Mohamed Aminudeen Bin Abdul Hamid v 1. ) Menteri Kewangan Malaysia (WA-25-88-02/2020)

RESOLUTION ALLIANCE SDN BHD

MALAYAN BANKING BERHAD-RESPONDEN JUDGMENT The Parties [1] The applicant is the registered owner of all that piece of land known as HS(M) 17794 PT No. 20513, Mukim Klang, Selangor, with a postal address at No. 2, Jalan Tun Dr Ismail, Taman Sri Andalas 41200 Klang, Selangor (“the said property”). [2] The 1st respondent is the Minister of Finance. The 2nd respondent is the Central Bank of Malaysia. [3] The 3rd respondent is the Government of Malaysia (“GOM”). The 4th respondent, Resolution Alliance Sdn Bhd (“RASB”), is in the business of investing or acquiring non-performing assets of financial institutions. [4] The 5th respondent, Malayan Banking Berhad (“Maybank”), is the bank that extended two separate loans (“the Loans”) to the applicant and the chargee with respect to the said property. [5] On 17.4.2008, Maybank and RASB obtained a vesting order from the Kuala Lumpur High Court for the sale and transfer to RASB of part of Maybank’s assets, namely the rights, benefits and interests in inter alia all the Non-Performing Loans (“NPLs”), which included the Loans extended to the applicant by Maybank. [6] Sometimes in September 2020, the applicant received a notice dated 3.8.2020 from the Klang Land Administrator that the said property would be auctioned off. In view of the vesting order, the RASB is now the chargee in respect of the said property. The Background Facts [7] On 13.02.2020, my learned predecessor granted leave for the applicant to commence this application for judicial review. [8] In the judicial review application, the applicant is seeking for that part of the decision of the 1st respondent, the Minister of Finance, in granting the blanket approval under s 49(1)(b) of the Banking and Financial Institutions Act 1989 (“BAFIA”) be stayed pending the disposal of this application for judicial review at the substantive stage. [9] On an oral application made by counsel for the applicant, the learned Judge also granted a stay order (“the 1st Stay Order") in the following manner: Pelaksanaan bahagian keputusan Responden Pertama bertarikh 6 Julai 2007 yang memberi kelulusan menyeluruh (blanket approval) kepada institusi kewangan perbankan untuk menjual dan melupuskan sebahagian akaun pinjaman tidak berbayar (NPL-NPL) (iaitu Bahagian Tersebut Keputusan Responden Pertama) digantung sehingga Permohonan Semakan Kehakiman atas merit dilupuskan. [10] As aforesaid, it is to be noted that the applicant did not pray for a stay order in his application for leave for judicial review in Encl 1. It was not particularised in the Statement under O 53 r 3(2) of the Rules of Court 2012 (“ROC”) either. [11] Aggrieved by the 1st Stay Order, the AGC filed the Notice of Appeal to the Court of Appeal on 14.10.2020 (“the Appeal”). [12] On 15.3.2023, the Court of Appeal, while affirming the Leave Order, unanimously set aside the 1st Stay Order. The minutes of the proceedings before the Court of Appeal are, inter alia, as follows: Court: On the issue of the ex parte order, we agree with submissions of the learned SFC and counsels for the 2nd, 3rd and 4th Respondents that the High Court should not have granted the ex parte stay as it was not in accordance with the established principles. The ex parte stay was not prayed for in the leave application proper nor was it alluded through in the statements in the affidavit in support of the leave application. Further, parties affected by the ex parte order were not before the High Court and they were not heard. Hence, the appeal is allowed in part. The order of stay is set aside whereas the order granting leave is affirmed. There shall be no order as to costs. 1st respondent’s counsel (Angeline Low Lu-Yen): Would an interim stay pending application for a formal stay application? Court: You can file a proper Notice of Motion. Let the other side have their say. [13] It is not in dispute that, to date, no formal Notice of Motion for a stay has been filed at the Court of Appeal. [14] By way of an application in Encl 55, the applicant sought relief for a second stay order under O 53 r 3(5) of the ROC. [15] Prayer 1 of the 2nd stay application states as follows: Bahawa pelaksanaan bahagian keputusan Menteri Kewangan Malaysia yang bertarikh 6.7.2007 yang ‘memberi kelulusan menyeluruh di bawah Seksyen 49(1)(b) ABIK kepada mana-mana IKB (institusi kewangan perbankan) yang lain yang mengemukakan permohonan kepada Bank Negara Malaysia, untuk memasuki perjanjian pelaksanaan cadangan penjualan, pelupusan atau pemindahan sebahagian akaun pinjaman tidak berbayar mereka dengan syarat penjualan, pelupusan atau pemindahan itu adalah selaras dengan keperluan yang ditetapkan di dalam ‘Guidelines on the Disposal/Purchase of Non-Performing Loans by Banking Institutions’ (“Kelulusan Menyeluruh”) digantung sehingga Permohonan Semakan Kehakiman Pemohon atas merit dilupuskan. [16] On 3.10.2023, I dismissed the application in Encl 55, mainly on two grounds:

The applicant failed to file an application for leave to appeal to the Federal Court meant that the applicant had accepted the correctness of the decision of the Court of Appeal in refusing to grant a stay.

In any event, the 1st stay order, which was reversed by the Court of Appeal and prayer 1 of the 2nd Stay Application, related to a stay of the same subject matter. It is anchored on the Minister’s decision dated 6.7.2007 in granting a blanket approval for financial institutions to dispose of the NPLs for the same period until the disposal of the substantive judicial review proceedings. In short, prayer 1 of the application in Encl 55 is identical to the 1st Stay Order. [17] Aggrieved by the said findings, the applicant appealed to the Court of Appeal (“the said appeal”). The stay application in Encl 109 [18] By way of an application in Encl 109, the applicant seeks the following relief: Bahawa Responden Keempat tidak meneruskan lelongan terhadap hartanah yang dikenali sebagai H.S.(M) 17794 P.T No. 20513, Mukim Klang, Daerah Klang, Selangor Darul Ehsan dengan Alamat No. 2, Jalan Tun Dr Ismail, Taman Sri Andalas, 41200 Klang, Selangor Darul Ehsan (“Hartanah tersebut”) dan lelongan Hartanah tersebut digantungkan sehingga Rayuan Sivil No. W-01(IM)-536- 10/2023 (“Rayuan tersebut”) dilupuskan. [19] In short, the applicant is seeking an order that the auction in respect of the said property be stayed pending the disposal of the said appeal at the Court of Appeal. [20] The application for stay in Encl 109 is supported by the affidavit of the applicant in Encl 110. In essence, the grounds of the application can be summarised as follows:

The applicant has filed an appeal against the decision of this Court dated 3.10.2023 through the said Appeal in Rayuan Sivil No. W-01(IM)-536-10/2023.

The balance of convenience favours the granting of a stay.

The applicant’s appeal to the Court of Appeal in the said Appeal will be rendered nugatory if no stay is granted.

Special circumstances exist which warrant the exercise of the Court’s discretion to grant the stay. In the event that the Klang Land Administrator were to proceed with the order of sale of the said property, it would destroy the subject-matter of the action or otherwise deprive the applicant of the means of prosecuting the appeal; see Kosma Palm Oil Mill Sdn Bhd v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 FC. The Analysis [21] In this application for a stay, the applicant is seeking an order for RASB not to proceed with the order of sale of the said property. [22] Let me begin with the law. The order of sale of the said property was made under s 263(1) of the National Land Code 1965 (“NLC”). It provides as follows:

At the conclusion of any enquiry under section 261, the Land Administrator shall order the sale of the land or lease to which the charge in question relates unless he is satisfied of the existence of cause to the contrary. In short, in making the order of sale, the Klang Land Administrator was exercising his power under the NLC. If indeed the applicant is aggrieved with such an order, the proper avenue available to him under the law is to file an appeal under s 418 of the NLC and make the Land Administrator a party in the appeal. S 418 provides as follows:

Any person or body aggrieved by any decision under this Act of the State Director, the Registrar or any Land Administrator may, at any time within the period of three months beginning with the date on which it was communicated to him, appeal therefrom to the Court. [23] There is no evidence before me that this remedy has been exhausted by the applicant. [24] That apart, the question is what is the effect of restraining Maybank from proceeding with the order of sale of the said property? With respect, restraining Maybank has the effect of injuncting the Klang Land Administrator from proceeding with his statutory duty in executing the order of sale of the said property. In short, this is a collateral attack on the order of sale properly made under s 263(1) of the NLC. [25] Can the applicant take this route? Does the application for a stay in Encl 109 have the effect of indirectly restraining the Klang Land Administrator as well? If it does, then s 29 of the Government Proceedings Act 1956 (“GPA”) will come into operation. It reads as follows:

In any civil proceedings by or against the Government the court shall, subject to this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that—

where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property or to the possession thereof.

The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government. [26] What then is the law? The law can be seen in the majority judgment of the Supreme Court in Lim Kit Siang v. United Engineers (M) Bhd & Ors [1987] 2 CLJ 195 SC. Salleh Abas LP laid down the proposition of law as follows: This means that no injunction could be directly or indirectly issued against the Government or its officers. Similarly, the court has no jurisdiction to grant an injunction against a private litigant if the injunction would have the effect of restraining the Government or its officers from performing their functions. This has been the interpretation which has been placed by the courts in England as well as in this country. [27] To my mind, to allow an order of stay to RASB in the form of the application in Encl 109 would have the indirect effect of restraining the Klang Land Administrator from proceeding with the order of sale under the NLC and I so hold. This, in my considered view, flies in the face of s 29 of the GPA especially so when there is no evidence that an appeal has been filed under s 418 of the NLC. [28] The Court of Appeal in Tan Bun Teet & Ors V Menteri Sains, Teknologi dan Inovasi Malaysia & Ors [2013] 3 CLJ 115 CA, held that it is settled law that an injunction, interlocutory or permanent, could not be granted against the government under s 29 of the GPA and s 54 of the Specific Relief Act 1950 (“SRA”). [29] If the stay sought by the applicant is granted, it would interfere with the public duty of the Klang Land Administrator under the Act. As such, s 29 of the GPA protects the Land Administrator, a public authority, from any form of injunctive orders, either direct or indirect. [30] In Tan Bun Teet, the appellant sought an injunction restraining the 2nd respondent, the Atomic Energy Licensing Board, which was established under the Atomic Energy Licensing Act 1984 (“AELA”), from issuing further licenses, permits or approvals in relation to and following upon its decision made on 30.1.2012 to approve a TOL to the 4th respondent, Lynas Malaysia Sdn Bhd. Azahar Mohamed JCA (later CJ (Malaya)), in delivering the judgment of the Court remarked as follows: It follows from this, after giving due considerations to the submissions of all parties, if the relief sought for is granted, this will interfere with the public duty of the second respondent under the AELA and as such, s 29 of the GPA protects the second respondent, being a public authority, from any form of injunctive orders. [31] Applying the said propositions to the instant case, my respectful view is that the granting of a stay to RASB as prayed by the applicant in Encl 109 would have interfered with the discharge of the statutory duties of the Klang Land Administrator and I so hold. To restrain RASB within the context of the stay application would have the effect of restraining the Klang Land Administrator through the instrumentality of RASB. [32] Simply put, it has the effect of allowing the applicant to enter through the back door when it is clear that he cannot do it through the front door. [33] There is another point which I have to underline concerning this application for a stay. It is this. There is no evidence before me that this application in Encl 109 has been served on the Klang Land Administrator. My view is it is against the principle of natural justice for this Court to restrain the Land Administrator from proceeding with the order of sale of the said property when he is not given the opportunity to be heard. [34] The general rule is that this Court has no jurisdiction over any person other than those brought before it and no order can be made for or against or bind a non-party before a proceeding, as in this case. If any authority is needed for the aforesaid proposition, it can be seen in the judgment of the Federal Court in Tenaga Nasional Bhd v Majlis Daerah Segamat [2022] 2 CLJ 497 FC. [35] In any event, this Court cannot allow the applicant to launch a collateral attack against the Klang Land Administrator since it has the effect of circumventing the appeal process under s 418 of the NLC. Findings [36] For the aforesaid reasons, this application in Encl 109 is dismissed with costs in the cause. [37] In view of my ruling, I will not address the issues raised by the respondents in objecting to this application for a stay. Tarikh: 4 April 2025 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. Pihak-pihak: Bagi Pihak Pemohon : Angeline Low, Sya Kit Yin Valerie Tetuan Wong & Lu-Yen Partnership Bagi Pihak Responden : Muhammad Hidayat bin Wahab SFC Pertama & Ketiga Azza Binti Azmi SFC Jabatan Peguam Negara, Putrajaya Bagi Pihak Responden : Sunil Abraham, Noor Muzalifah Shabudin & Kedua Yap Jing Wen Tetuan Cecil Abraham & Partners Bagi Pihak Responden : Kwong Chiew Ee & Lee Ji Kean Keempat Tetuan Rahmat Lim & Partners Bagi Pihak Responden: Ramesh Sathasivam, Melvin Moi Kai Sen & Kelima Ng Jean Yenn Tetuan Ramesh Dipendra Jeremiah Law