Mystique Bay Sdn Bhd v Chin Kok Chiu (WA-38-171-03/2021)

The Defendant appealed to the Judge in Chamber against the decision of the Registrar who did now allow a stay of auction as well as fixed a date of auction and the reserve price for a land held under No. H.S.(D) 152242, Lot No. 25012, Bandar Petaling Jaya, Daerah Petaling, Negeri Selangor (“the land”) which was first charged to

By way of a vesting order dated 20/11/2007 the Plaintiff replaced the Standard Chartered Bank as the chargee of the said land. An order of sale was given by the Court on 23/6/2006. However the auction of the said which was held on 28/10.2020 with a reserve price of RM 1,050,000 was unsuccessful.

The Plaintiff applied to get another date for auction by reducing the reserve price by 10% to RM945,000. This application for another date was allowed by the Registrar despite the objections raised by the Defendant.

Hence the Defendant has appealed against the decision of the Registrar to the Judge in Chambers.

The issue as determined by the Court after considering the submissions of the Defendant is the validity if the Order for Sale given by the Court.

In the Court’s view any objections to the Order of Sale must be made at the hearing of the Originating Summons for the Order of Sale and not by way of another proceedings as in this case. Once the Order is given by the Court it can only be set aside by way of an appeal. The Defendant’s attempt to set aside and nullify the Order of Sale in this case is therefore misconceived and an abuse of the process of Court.

However for the sake of completeness the Court considered the contention of the Defendant that the order for Sale was defective. The first reason given by the Defendant on the defect of the Order of Sale is that it was obtained without specifying the exact amount owed by the Defendant. On perusing the record In this case it is clear an affidavit stating the sum owed by the Defendant on the date of the Order of Sale was filed before the Order of Sale was given.

The other contention of the Defendant that the Order of Sale was given to the Bank and not the Plaintiff is also baseless as the Plaintiff has been given a vesting order to replace the original chargee.

In this case there is also no evidence of under valuation as the reserve price was fixed based on the valuation done for the said land. The Defendant’s contention that the land is undervalued is also misconceived.

In short the Order of Sale is a valid Court Order and all the procedures were followed by the Registrar in allowing a second auction for the reserve price as applied.

In the upshot the Court dismissed the appeal of the Defendant against the decision of the Registrar with a cost of RM2,000. The Court also dismissed the Defendant’s application to stay proceeding awaiting the decision of the Court of Appeal, with a cost of RM2,000 as there were no special circumstances allowing for the stay. Dated: 16.8.2022 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Tetuan Arnold Andrew & Co. Level 6 (Right Wing) Menara Liberty 1008 Jalan Sultan Ismail 50250 Kuala Lumpur For the Defendant: Tetuan Chandran Nair & Associates No. 10 (1st floor)