Case Analysis

1. Asia Commercial Finance (M) Bhd v Kimden Housing Development Sdn. Bhd.
[1993] 1 MLJ 283

Facts An order for sale was granted by the court in default of appearance of
the defendant. Subsequent thereto, the defendant was wound up and its
affairs were initially taken over by the official assignee appointed as the
provisional liquidator up to 1 June 1992, when the private liquidator
took over the affairs of the defendant from the provisional liquidator.
The private liquidator, on behalf of the defendant, applied to set aside
the said order for sale on the grounds of errors and non-compliance with
existing rules and regulations in respect of the said order for sale. The
plaintiffs’ counsel, though admitting that there were irregularities,
argued that they could be cured under O 2 of the Rules of the High
Court 1980 (‘the Rules’) and that the defendants’ application to set
aside the order for sale made after a lapse of six years, was not made
within reasonable time.
Issue(s): 1. Whether the defendants can set aside the said order for sale due
to the non compliance with O 83 r 2(3) of the Rules in the
plaintiffs' foreclosure application.
2. Whether the defendants can set aside the said order for sale due
to the non compliance with O 83 r 2(4) of the Rules in the
plaintiffs' foreclosure application.
3. Whether the defendants can set aside the said order for sale due
to the non compliance with O 83 r 3(3) and O. 83 r. 3(3)(c) of
the Rules in the plaintiffs' foreclosure application.
Rules: 1. O 83 r 2(3) of the Rules - Where the plaintiff claims delivery of
possession there must be indorsed on the outside fold of the
copy of the affidavit served on the defendant a notice informing
the defendant that the plaintiff intends at the hearing to apply for
an order to the defendant to deliver up to the plaintiff possession
of the charged property and for such other relief (if any) claimed
by the originating summons as the plaintiff intends to apply for
at the hearing.
 2. O 83 r 2(4) of the Rules - Where the hearing is adjourned, then,
subject to any directions given by the Court, the plaintiff must
serve notice of the appointment for the adjourned hearing,
together with a copy of any further affidavit intended to be used
at that hearing, on the defendant not less than 2 clear days before
the day fixed for the hearing.
3. O 83 r 3(3) - Where the plaintiff claims delivery of possession
the affidavit must show the circumstances under which the right
to possession arises and, except where the court in any case or
class otherwise directs, the state of the account between the
chargor and chargee with particulars of –
(a) the amount of the advance;
(b) the amount of the repayments;
(c) the amount of any interest or instalments in arrear at the date
of issue of the originating summons and at the date of the
affidavit; and
(d) the amount remaining due under the charge.
4. Order 83 r 3(7) - Where the plaintiff's claim includes a claim for
interest to judgment, the affidavit must state the amount of a
day's interest.
Judgement: Allowed the application.
1. O 83 r 2(4) of the Rules specifically insisted that the adjourned
hearing date be made known to the defendants, thereby granting
it an opportunity to be heard. Here, the plaintiffs had failed to
issue and serve on the defendants a notice of appointment for the
adjourned hearing and this amounted to the deprivation of the
defendants fundamental right to be heard and as such, the
defendants would be entitled to an order to set aside the
judgment ex debito justitiae. It is the duty of the plaintiff and not
the duty of the court to inform the defendant of the adjourned
date (O83 r. 2(4) the Rules).
2. Non-compliance with O 83 rr 3(3)(c) and (7) of the Rules
deprived the defendants of the knowledge of the exact amount
outstanding and interest due under the charge. This was
 fundamental as the charge of the defendants property to the
plaintiffs is related to loans granted to the defendants. The
defendants must be offered every opportunity to repay the said
loan before its property is taken from the defendants for good.
The non-disclosure to the defendants of the exact amount and
interest due at relevant dates, is a failure to comply with
statutory requirements that is so serious as to render an order so
made therefrom to be set aside;
3. O 2 r 2(1) of the Rules clearly provides for reasonable time in
bringing the application after becoming aware of the
irregularity. As the defendants private liquidator was only
recently appointed and he only became aware of the irregularity
after his appointment, this application for setting aside, although
brought some six years later, is with merits and in compliance
with the Rules.

2. Muniandy Thamba Kaundan & Anor v Development & Commercial Bank Berhad &
Anor [1996] 1 MLJ 374

Facts: The appellants had charged a piece of land in Kuala Muda, Kedah to the
first respondent. The first respondent commenced proceedings on 8
March 1991 by way of originating summons to enforce the charge. The
originating summons was served on the appellants. Although the
appellants did not enter appearance, on 30 October 1991, that was, the
hearing date of the originating summons, the appellants did attend court
but the case was postponed to 29 January 1992. On 29 January 1992,
the case was heard ex parte and order in terms of the originating
summons including an order for sale pursuant to S256(3) and S257(1)
of the National Land Code 1965 (‘the ex parte orders’) was made. In
their application to set aside the ex parte orders, the appellants claimed
that they had not attended court on 29 January 1992 because they had
not been served with a notice of the adjourned hearing, pursuant to O 83
r 2(4) of the Rules of the High Court 1980 (‘the RHC 1980’). They
further contended that the ex parte orders were null and void as there
 had been a breach of the rule of natural justice, expressed in the maxim
audi alteram partem and reinforced in O 83 r 2(4) the RHC 1980. The
first respondent contended that: (i) the High Court was functus officio
as the ex parte orders had been perfected before the appellants’
summons in chambers to set aside had been filed; (ii) the effect of the
failure to serve the notice was merely to render the ex parte orders an
irregularity, which irregularity had been cured by waiver on the part of
the appellants by reason of their having made partial repayments of the
amount due to the first respondent while the originating summons was
still pending; and (iii) the appellant had not applied to set aside the ex
parte orders within reasonable time as the orders had been made 10
months ago. The first respondent’s contentions were upheld by the
judge. The appellants appealed.
Judgement: allowing the appeal: (1) the rule that the court has no power under any
application in the action to alter or vary a judgment after it has been
entered or an order after it has been drawn up, except insofar as is
necessary to correct errors in expressing the intention of the court, is
subject to exceptions, one of which is that an order which is a nullity,
owing to the failure to comply with an essential provision such as
service of process, can be set aside by the court which made the order in
the exercise of its inherent jurisdiction; (2) O 83 r 2(4) RHC 1980 is
merely a statutory enunciation of the fundamental rule of natural justice
expressed in the maxim audi alteram partem so that the obligation to
serve notice of the adjourned hearing remained even if O 83 r 2(4) the
RHC 1980 did not apply. It is a familiar canon of statutory
interpretation that unless a contrary intention appears, an enactment by
implication imports the principle of the maxim audi alteram partem; (3)
sending a notice is a far cry from serving one. Even if there was proof
of posting of the notice, this accompanied by the fact that it was not
returned would not have sufficed as proof of service in the absence of a
deeming clause in the contract of loan or annexure to the charge; (4) the
effect of the failure on the part of the first respondent to notify the
appellants of the date of the adjourned hearing was of such fundamental
importance as to render each and every one of the ex parte orders
 obtained a nullity; (5) lapse of time is no bar to a defendants application
to set aside a judgment which is a nullity. Further, under its inherent
jurisdiction to prevent an abuse of proceedings, the court has power to
set aside a judgment in default despite the defendants application being
out of time if the particular circumstances of the case require it; (6)
there can be no waiver in the absence of an intention to waive. Here, the
appellants were ignorant laypersons who were unrepresented and
obviously knew nothing about their legal rights. In any event, an order
which is a nullity is incapable of being waived. The appellants
application to set aside the ex parte orders, therefore, was not barred by
waiver.

3. Melantrans Sdn Bhd v Carah Enterprise Sdn Bhd & Anor [2000] 3 MLJ 304

Facts: The first respondent/plaintiff was the registered proprietor of the lease
of the land. The first respondent had created in favour of the second
respondent a debenture as well as a legal charge registered under the
National Land Code 1965. The second respondent had pursuant to the
provisions of the debenture appointed a receiver and manager in respect
of all assets and undertakings of the first respondent. The receiver and
manager had, as the receiver of the first respondent entered into a sale
and purchase agreement with the appellant/first defendant to sell the
lease to the appellant. Subsequently, the appellant did not wish to
proceed with the agreement on the grounds that the receiver and
manager did not have the right or capacity to sell, by contract only, the
lease in view of the Federal Court decision in Kimlin Housing
Development Sdn Bhd (Appointed receiver and manager) (In
liquidation) v Bank Bumiputra (M) Bhd & Ors [1997] 2 MLJ 805
(distd) ('the Kimlin case'). The first respondent applied for a declaration
that the sale and purchase agreement between the first respondent and
the appellant was valid and binding which was granted. The appellant
appealed. The issue in dispute was whether the receiver and manager of
the first respondent was entitled to sell the lease on behalf of the first
respondent.
Judgement: dismissing the appeal: The administrative receivers managers are the
authorised agents of the company under the debenture and as such are
authorised to enter into any sale and purchase agreement on the assets
of the company, subject however to the obtaining of the prior consent of
the debenture holders and which consent was freely given by the second
respondent to the court. Under these circumstances, the administrative
receivers[sol ]managers are to be agents of the company and are thus
absolutely free and empowered to dispose off the assets of the company
and their act binds the company (see p 307C-E) Kimlin Housing
Development Sdn Bhd (Appointed receiver and manager)(In
liquidation) v Bank Bumiputra (M) Bhd & Ors [1997] 2 MLJ 805
distinguished.

4. Lee Ah Chin v Wong Yoon Chai

Facts: This was an application by a chargor for the consequential reliefs and
for the return of his document of title which was in the possession of the
chargee. The title to the land was the subject of a charge and foreclosure
action had been instituted by the chargee arising from a moneylending
transaction. The foreclosure proceedings were dismissed by the court on
November 11, 1979. In his affidavit supporting the application, the
applicant said that his counsel through inadvertence had failed to apply
for these consequential orders resulting from the dismissal of action.
Issue(s): 1. Whether the respondent/chargee was entitled to restitution of the
sum of $12,693.50, the amount originally lent to the
applicant/charger.
Judgement: 1. As the chargee did not lodge any appeal against the dismissal of
the foreclosure proceedings and the order was extracted on
December 13, 1979 this puts an end to the litigation.
2. In the circumstances the reliefs sought by the chargor must be
granted in terms.

5. Public Bank v Chan Tak Kow [1988] 3 MLJ 330

Facts: This is an appeal under O 56 r 1 of the Rules of the High Court 1980
 against the decision of the senior assistant registrar in respect of an
application by the defendant for an order that the senior assistant
registrar's order dated 13 July 1986 in summons for directions be set
aside. In the order the reserve price was fixed at $216,000 according to
the forced sale value of the plaintiff's valuation report. The said order
also contained a ‘liberty to apply’ clause. The appeal was essentially on
two points, namely, the reserve price and the interpretation of the
‘liberty to apply’ clause.
Judgement: Dismissing the appeal.
1. Prima facie, the words 'liberty to apply' refer to the working out
of the actual terms of the order. It should be confined to the
problems relating to enforcing or executing the order, such as
difficulty in its enforcement because of the terms of the order
later found to be unclear or doubtful when faced with the actual
situation on the ground, so that the party which obtained the
order may approach the court again for its indulgence to seek
clarification.
2. With regard to the reserve price, s 257(1)(d) of the National
Land Code 1965 gives the registrar a discretion in that he needs
only to fix an 'estimated' market value. Having considered all the
reasons of the case, the court was of the view that the senior
assistant registrar had exercised her discretion fairly by
accepting the forced sale value.