Zainudin Bin Maksom (J-01(NCVC)(A)-61-02/2019)

MALAYSIA BUILDING SOCIETY BERHAD

MUHAMAD HASRAIE BIN BAHARUDIN

PENTADBIR TANAH MUAR 25 PEJABAT TANAH DAN DAERAH MUAR …RESPONDEN-RESPONDEN (Dalam perkara guaman Saman Pemula No. JB-24NCvC-323-08/2018 dalam Mahkamah Tinggi Malaya, Malaysia (Bahagian Sivil)) 30 [Dalam Mahkamah Tinggi Malaya di Muar Di Dalam Negeri Johor, Malaysia Saman Pemula No. JB-24NCvC-323-08 Tahun 2018] 35 Di dalam perkara Memorandum Kontrak bertarikh 13.6.2017 dengan pembeli bernama Muhamad Hasraie bin Baharudin (No. KP: 890921-23-5267) 40 Dan Di dalam Perintah bertarikh 12.1.2017 di dalam Guaman Sivil Mahkamah Tinggi Malaysa di Muar Saman Pemula No. 45 24(F)NCVC-697-11/2012, Pelaksanaan No. 38-58-03/2013 2 Dan 5 Di dalam Perkara Gadaian Bagi Tanah yang dipegang Di Bawah No. H.S(M) 1315, PTD 5235, di Mukim Parit Jawa, Daerah Muar, Negeri Johor yang 10 didaftarkan di Pejabat Pentadbir Tanah Daerah Muar, Dalam Fail Gadaian Perserahan No. 717/2005, Didaftarkan pada 1 Februari 2005 15 Dan Di dalam perkara Aturan 7 Kaedah 2 dan Aturan 92 Kaedah 4 Kaedah-kaedah Mahkamah 2012 dan dalam 20 bidangkuasa sedia ada Mahkamah Mulia ini. DI ANTARA 25 ZAINUDIN BIN MAKSOM …PLAINTIF (NO. KP: 720205-01-5093) 30

MALAYSIA BUILDING SOCIETY BERHAD (No. SYARIKAT: 9417-K)

MUHAMAD HASRAIE BIN BAHARUDIN

PENTADBIR TANAH MUAR PEJABAT TANAH DAN DAERAH MUAR …DEFENDAN-DEFENDAN 40 CORAM ZALEHA BINTI YUSOF, JCA 45 LAU BEE LAN, JCA HJH AZIZAH BINTI HJ NAWAWI, JCA 3 GROUNDS OF DECISION 5 Introduction [1] Vide a Notice of Motion dated 5/4/2019 (encl.11), Malaysia Building Society Berhad, the 1st Respondent (1st Defendant in the Court below) applied to strike out the Notice of Appeal dated 31/1/2019 filed by 10 Zainudin bin Maksom, the Appellant (Plaintiff in the Court below) and that costs be in the cause. [2] The 1st Respondent’s application was supported by (i) the Affidavit in Support affirmed on 1/4/2019 (encl.12), 1st Respondent’s Affidavit in 15 Reply (No.1) affirmed on 22/5/2019 (encl.14) and 1st Respondent’s Affidavit in Reply (No.2) affirmed on 24/9/2019 (encl.24). All the said Affidavits were affirmed by one Rozilah binti Rozali. [3] The Appellant opposed the 1st Respondent’s application by the 20 Appellant’s Affidavit in Reply (No.1) affirmed on 2/5/2019 (encl. 13) and Appellant’s Supplementary Affidavit affirmed on 29/7/2019 (encl. 19). Both Affidavits were affirmed by the Appellant. [4] The 1st Respondent’s application to strike out the Appellant’s appeal 25 is premised on the grounds that-

the Appellant’s appeal did not fulfil the requirement of s. 68(1) (a) of the Courts of Judicature Act 1964 (Act 91) (‘CJA’);

the Appellant’s action is estopped by res judicata; and

the Appellant’s failure to come with “clean hands” before the 30 Court disentitled him to request for the aid of equity. 4 [5] The Appellant’s grounds to oppose the 1st Respondent’s application, 5 in summary, are-

the underlying reason to strike out the appeal by the 1st Respondent is to stifle the appeal from being heard;

res judicata does not apply as the merits of the appeal were not heard or decided in Originating Summons No. JB-24NCvC- 10 269-07/2017, its appeal and the Court’s judgment on 9/1/2019 (made pursuant to Originating Summons No. JB-24NCvC-323- 08/2018);

s. 68(1) (a) of the CJA is inapplicable as the Appellant’s prayers under Originating Summons No. JB-24NCvC-323-08/2018 15 are prayers for declarations;

the Appellant’s Originating Summons No. JB-24NCvC-323- 08/2018 is bona fide; and

striking out should not be allowed on public policy grounds. 20 [6] Having heard and considered the respective parties’ cause papers, written submissions and the oral arguments, we had unanimously allowed the 1st Respondent’s application in encl.1, i.e struck out the appeal with no order as to costs. Dissatisfied with the decision the Appellant has appealed. These are our reasons in respect of the said 25 decision. Brief Facts [7] The brief facts relevant to this appeal are these. This appeal stems from a foreclosure action by the 1st Respondent against the Appellant 30 who had failed to pay the outstanding loan amount due as follows:

Loan Amount RM162,000.00

Monthly Instalment RM1,024.00 5

Total Repayment made by Appellant RM4,269.22 5

Last payment date by Appellant

28.03.2006

Outstanding Balance as at 26.12.2012 RM265,118.78 (inclusive of Interest) [8] The 1st Respondent had commenced a foreclosure action against 10 the Appellant to sell the subject property, a piece of land held under HSM 1315, PTD5235, Mukim Parit Jawa, Daerah Muar, Johor together with a semi-detached house erected thereon. [9] The chronology of the foreclosure proceedings in the Muar High 15 Court has been neatly summarised by the Appellant as follows: On 9/11/2012, the 1st Respondent commenced foreclosure proceedings Originating Summons No. 24 (F)NCvC-697-11/2012. Order for Sale was granted on 26/12/ 2012. Between 29/1/2014 to 21/11/2016, 6 auctions were carried out, some auctions were aborted and some were cancelled 20 as the balance of the auction reserve price was not paid within time. On 13/2/2017, the 7th auction was successful and the subject property was sold to the successful bidder, the 2nd Respondent at the reserve price of RM206,100.00. A Memorandum of Contract was executed between the 1st Respondent and the 2nd Respondent witnessed by the Senior Assistant 25 Registrar of the Muar High Court. On 23/7/2017 the Appellant filed Originating Summons No. JB-24NCvC-269-07/2017 to seek an order to annul the Memorandum of Contract which was dismissed by Halijah binti Abbas J on 14/12/2017. On12/2/2018 , the Appellant filed a Notice Of Appeal in the Court of Appeal with a Notice of Motion for extension of 30 time to file the said appeal. The Court of Appeal dismissed the latter on 12/4/2018. On 28/8/2018 the Appellant filed Originating Summons No. JB-24NCvC-323-08/2018 (‘the present OS’) with the same intitulement 6 as Originating Summons No. JB-24NCvC-269-07/2017 (‘the earlier OS’) 5 and seeking primarily for the same reliefs as the present OS. On 9/1/2019, Ahmad Nasfy bin Yasin J dismissed Originating Summons No. JB-24NCvC-323-08/2018. On 31/1/2019, the Appellant filed a Notice of Appeal against the 9/1/2019 Order. Hence the filing of the Notice of Motion dated 5/4/2019 (encl.11) by the 1st Respondent on 5/4/2019 to strike out 10 the Notice of Appeal against the 9/1/2019 Order. Our Decision [10] We noted that in the Notice of Motion in encl.1, there are 3 grounds 15 upon which the 1st Respondent has mounted to strike out the Appellant’s Notice of Appeal as mentioned in para 4 above. In our considered view, the primary and sole issue before us is whether the Appellant has fulfilled the threshold requirement of obtaining leave under s. 68(1) (a) of the CJA, the failure of which would render the Appellant’s appeal 20 incompetent and ought to be struck out. The other 2 grounds of whether the Appellant is estopped by res judicata and whether equity can come to the Appellant’s aid on account of not coming to Court with “clean hands” canvassed by the 1st Respondent are in our view not relevant considerations for the determination of the threshold issue of whether 25 leave is required. [11] S. 68(1) of the CJA provides, among others, as follows: “Non-appealable matters

68.

No appeal shall be brought to the Court of Appeal in any of the 30 following cases:

when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit*, except with the leave of the Court of Appeal;”. 35 7 [12] Counsel for the 1st Respondent submitted that the Appellant’s 5 appeal is incompetent because as to date, no leave under s. 68(1) (a) of the CJA has been obtained by the Appellant. Counsel argued that leave is required because-

the value of the subject matter before the Court of Appeal is only RM206,100.00, which is the value of the subject property in 10 the Memorandum of Contract as exhibited in exhibit RR-1, Affidavit in Support of the 1st Respondent;

the loan amount advanced by the 1st Respondent to the Appellant is RM162,000.00 which is even lesser than the value of the subject property as exhibited in exhibit RR-5, 1st 15 Respondent’s Affidavit in Reply (No.1). [13] To bolster their arguments, Counsel relied on a decision of this Court in Mohd Tahir bin Mohd Sheriff v Ramlah bt Abdullah [2004] 6 AMR 165 at 167 [5] and [6] and the Federal Court case of Harcharan 20 Singh Sohan Singh v. Ranjit Kaur S Gean Singh [2011] 3 CLJ 593 at p.597 [3] and p.600 [18] and [19]. [14] On the other hand, Counsel for the Appellant in his written submission contended that no leave is required because s.68(1) (a) of the 25 CJA is not applicable. Counsel submitted that in both the present OS and the earlier OS, the Appellant has prayed for declarations to be made against the Respondents. In support of the proposition that leave of the Court of Appeal is not required for prayers of declaration, Practice Direction No. 2 dated 17/6/1996 was cited as follows: 30 “PERMOHONAN KEBENARAN UNTUK MERAYU KE MAHKAMAH RAYUAN 8 Adalah didapati sehingga kini ada di antara peguam-peguam yang masih 5 samar-samar sama ada sesuatu kes itu memerlukan terlebih dahulu kebenaran Mahkamah Rayuan sebelum notis rayuan boleh difailkan dalam kes-kes yang tidak ada kaitan dengan amaun atau nilai yang tertentu. Maka dengan ini, YAA Presiden Mahkamah Rayuan membuat garis panduan bahawa dalam perkara-perkara seperti berikut kebenaran tidaklah diperlukan: 10 …

(ii) Deklarasi – untuk mengisytiharkan bahawa sesuatu pemberian lesen, perbuatan, peninggalan atau keputusan sesuatu badan atau mana-mana orang yang diberi kuasa oleh undang-undang adalah tidak sah dan terbatal.” 15 [15] Counsel for the Appellant further submitted that in any event, the merits of the present OS are related to the validity of the orders given by the Deputy Registrar and the High Court Judge in the earlier OS and not on the value of the land. 20 [16] It is our respectful opinion that the contention of the Appellant is flawed. In our judgment there is merit in the submission of the 1st Respondent that leave under s. 68(1) (a) of the CJA is required. First, the Federal Court in Harcharan Singh Sohan Singh (supra) endorsed 25 the view of this Court in Mohd Tahir bin Mohd Sheriff (supra) at p.599[12] as follows: “We agree with the Court of Appeal’s decision in Mohd Tahir Mohd Sheriff v. Ramlah Abdullah [2004] 1 CLJ 865 that s. 68(1)(a) of the Act is unambiguous. It clearly states that no appeal shall be brought to the Court of Appeal when the 30 amount or value of the subject matter of the claim (exclusive of interest) is less than RM250,000, except with leave of the court of Appeal.” [17] Further at p.599 [13] of Harcharan Singh Sohan Singh, the 35 Federal Court opined that the phrase “amount of value of the subject 9 matter of the claim” in s.68(1) (a) of the CJA was considered by the 5 Supreme Court in Yai Yen Hon v. Teng Ah Kok & Sim Huat Sdn Bhd & Anor [1997] 2 CLJ 68 “where it was held that it must be read as the amount or value of the claim filed in the civil suit and not the judgment amount granted against. That would be the determinant factor in deciding whether leave was necessary.” 10 The said principle was reiterated by the Federal Court at p.600[21] in answering the 2nd question of law posed by following Yai Yen Hon (supra) and holding that “The time for determining the current value of the subject matter of the claim (exclusive of interest) [w]ould be at the time of filing the claim.” 15 [18] Having regard to the principle of determining the amount or value of the subject matter of the claim being “at the time of filing the claim“ as enunciated in Harcharan Singh Sohan Singh, we find that based on the present OS, the value of the subject matter of the claim i.e the 20 subject property in question which was the subject of the foreclosure proceedings is RM 206,1 00.00 as stated in the Memorandum of Contract entered between the 1st Respondent and the 2nd Respondent. As the amount is below the threshold limit of RM 250,000.00, leave of the Court of the Appeal is required. 25 [19] Secondly, the contention of the Appellant that no leave is required since the primary relief are for declarations against the Respondents and the Appellant’s reliance on Practice Direction No.2 of 1996 was an argument similarly ventilated before the Federal Court in Harcharan 30 Singh Sohan Singh. This is what the Federal Court had to say at p.600: “[18] As for the contention that s. 68(1)(a) of the Act does not apply because the relief sought by the appellant is for a declaration, we agree with the 10 judgment of the Court of Appeal in Lam Kong Company Ltd. V. Thong Guan 5 Co. Pte Ltd. (supra) where it was held inter alia that item (ii) of the Court of Appeal Practice Direction No. 2 of 1996 only applies to declarations respecting subject matters that have no value attached to them or those with values that cannot be quantified. [19] In the appeal before us, the subject matter of the claim had been 10 identified and its value determined at RM248,500. Therefore we are of the view that s. 68(1)(a) of the Act is still applicable” (Emphasis added) 15 [20] Following the principle established in Harcharan Singh Sohan Singh, we similarly find that in the present OS, the subject of the claim has been identified and its value determined at RM206,100.00. Therefore contrary to the position taken by the Appellant, we are of the considered view that s. 68(1)(a) of the CJA is still applicable. 20 [21] Thirdly, Counsel for the Appellant during oral submission admitted that he could not find fault with the high authority of Harcharan Singh Sohan Singh. Counsel however sought for a short adjournment to allow the Appellant to procure a valuation report from a reputable valuer to 25 determine the current value of the subject property as he contended that the purchase price of RM 206,100.00 was only the reserve price in 2017. In our opinion it was too late in the day now to accede to the request of the Appellant’s Counsel as Counsel had every opportunity to engage the services of a registered valuer to conduct a proper valuation of the 30 subject property if he had deemed it necessary then. This is because the 1st Respondent had specifically averred in para 6 of the 1st Respondent’s Affidavit in Support as follows: “6. Responden Kedua telah Berjaya membida Hartanah tersebut pada harga rezab sejumlah RM208,100.00 dan satu Memorandum Kontrak telah 35 11 ditandatangani di antara Responden Pertama dan Responden Kedua 5 (“Memorandum Kontrak tersebut”).” But alas we find the Appellant had failed to challenge the value of the subject property but had merely averred, among others, the following in paras 6 and 11 of the Appellant’s Affidavit in Reply (No.1): 10

“Perenggan-perenggan 3 hingga 15 Affidavit Responden Pertama [1st Respondent’s Affidavit in Support] adalah dinafikan.”; and

“Saya telah dinasihati oleh peguamcara saya bahawa tindakan yang telah difailkan di Mahkamah Tinggi Muar 15 hanyalah untuk memohon deklarasi-deklarasi dan perintah-perintah terhadap Responden-Responden dan tidak berkaitan langsung dengan nilai Hartanah tersebut.” 20 Conclusion [22] In light of the foregoing reasons we concluded that the Appellant’s appeal was incompetent as the value of the subject matter of the claim was lower than the requisite amount of RM250,000.00 provided under s.68(1) (a) of the CJA and leave ought to have been obtained but there 25 was none. We accordingly struck out the appeal with no order as to costs. Dated: 25/02/2021 -sgd- 30 LAU BEE LAN Judge Court of Appeal Malaysia Putrajaya 12 COUNSEL: 5 Dinesh Praveen Nair for the Appellant [Messrs. Dinesh Praveen Nair] Nurul Nasyira, Aisyah Razak and Iman Sorkapli for the 1st Respondent 10 [Messrs. Adillah A. Nordin] [Messrs. Chris Lee & Partners (Muar)] for the 2nd Respondent [Pejabat Penasihat Undang-Undang Negeri Johor] for the 3rd 15