Chee Sen Lean @ Choo Sin Lean (No. K/P: 320426-07-5070) Chin Choon Woon (No. K/P: 610607-07-5323)

DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG SAMAN PEMULA NO: 24NCvC-427-05/2015 Dalam perkara mengenai hartanah yang dikenali sebagai Geran No. 19976, Lot No. 809, Seksyen 1, Bandar Gerogetown, Pulau Pinang; Dan Dalam perkara mengenai pemilikan berdaftar Chin Choo Woon ke atas kesemua ½ bahagian di dalam hartanah yang dikenali sebagai Geran No. 19976, Lot No. 809, Seksyen 1, Bandar Gerogetown, Pulau Pinang; Dan Dalam perkara mengenai seksyen 145(1) & (2)(c) dan seksyen 417, Kanun Tanah Negara, 1965; Dan Dalam perkara mengenai Aturan 31, kaedah-kaedah 1, 2, 3 & 4 dan Atruran 7, Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara mengenai seksyen 25(2) dan perkara 3 di dalam Jadual Akta Mahkamah Kehakiman 1964. Antara 1 Chee Sen Lean @ Choo Sin Lean (No. K/P: 320426-07-5070) ...Plaintif Dan Chin Choon Woon (No. K/P: 610607-07-5323) ...Defendan JUDGMENT Introduction [1] On 3.9.2020, at the conclusion of the hearing of the notice of application I made an order that the property be sold by way of private treaty. The issue that arose for this Court’s consideration relates to the right to sell property by way of a private treaty or some other manner subsequent to the making of an order for sale which had directed the sale to be made by way of public auction under section 25(2) read with paragraph 3 of the Schedule to the Courts of Judicature Act 1964 (“CJA”). I now give my reasons for making the orders sought in the notice of application. 2 Background [2] The plaintiff, who is the defendant’s mother and the defendant are co-proprietors of a double-storey semi-detached house held under Geran No.19976, Lot No. 809, Section 1, Town of Georgetown, North East District, Penang (”the property”). Five years ago, on 18.5.2015, the plaintiff then aged 83 years had moved this Court under section 145 of the National Land Code (“NLC”) and/or section 25(2) read with paragraph 3 of the Schedule to the CJA for the sale of the said property. [3] On 14.9.2015 this Court ordered that the property be sold by way of public auction with the necessary consequential orders. At that time the reserve price was fixed at RM2 million. The public auction was held twice, on 28.9.2016 and 24.10.2017 but on both occasions there were no bidders and the auction was aborted. The plaintiff had received an offer of RM1.8 million for the property form a third party on 12.3.2019 but the defendant refused to give consent for the sale. The plaintiff has again on 22.1.2020 received another offer to purchase the property at RM1.68 million with the assistance of 3 a real estate firm, Urban Prestige Properties Sdn Bhd. The defendant again refused to give consent for the sale. [4] To avoid the impasse the plaintiff turned to this Court for an order that the property be sold by a private treaty with the selling price of RM1.68 million. The plaintiff produced a valuation report dated 24.6.2020 from CH Williams Talhar & Wong Sdn Bhd which puts the market value of the property at RM1.7 million while the defendant has produced a valuation report dated 3.7.2020 from VPC Alliance (Pg) Sdn Bhd dated 3.7.2020 which puts the market value of the property at RM1.9 million. [5] The plaintiff says that she needs the money from the sale of the property as she has not enjoyed the property since the order was made terminating the co-proprietorship 5 years ago and now stays in private home for the elderly. The defendant still is and has been occupying the premises throughout the said period. 4 The position taken by the parties [6] The present application is premised on Order 31 of the Rules of Court 2012. The plaintiff contended that this Court has the power to direct that the sale of the property by way of a private treatyconsequent to the unsuccessful public auctions. In other words this Court is not functus officio when requiring the court’s order for sale to proceed by private treaty instead of a public auction. [7] The defendant, on the other hand, opposed the application on the following grounds: (i) Order 31of the Rules of Court 2012 does not apply as there is no longer any cause or matter to allow the property to be sold as the order for sale has already been made pursuant to this originating summons; (ii) this Court is functus officio after making the order dated 14.9.2015 in this originating summons for sale by way of public auction; 5 (iii) the matter in the application is res judicata and the plaintiff is estopped from seeking the relief for the sale of the land by way of a private treaty; and (iv) that the offer of RM1.68 million is way below the market value of RM1.9 million determined by the defendant’s valuers. Decision of the Court Section 25(2) and paragraph 3 of the Schedule to the CJA [8] The order dated 14.9.2015 was made pursuant to section 25(2) read with paragraph 3 of the Schedule to the CJA. Section 25(2) provide additional powers of the High Court as set out in the Schedule and require the said powers be exercised in accordance with any written law or rules of court relating to the same. [9] Paragraph 3 to the Schedule confers power on the High Court to direct the sale of land in certain circumstances. The 6 said paragraph is reproduced below due to its importance to the issue at hand. The paragraph reads as follows: Power to direct a sale instead of partition in any action for partition of land; and in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part thereof to be sold, and to give all necessary and consequential directions. [10] Paragraph 3 is made up of two parts. The first part which concerns an application for partition of land is obviously not applicable as this originating summons did not concern an application for partition of land. The second part is clearly applicable. It provides that in any cause or matter relating to land, an order for the land to be sold will be made where it appears necessary or expedient for such order to be made. The originating summons herein is clearly a “cause” relating to land as it comes within the definition of cause provided by section 3 of the CJA. The definition of “cause” includes any “action” or “other original proceedings between a plaintiff and a defendant”. The meaning of “action” is further defined as a civil proceeding 7 commenced by writ or any other manner as is prescribed by the rules of court. Order 5 rule 1 of the Rules of Court 2012 provides that an originating summons is a mode of beginning civil proceedings. Thus, an originating summons is an “action” or “original proceeding between a plaintiff and a defendant” and therefore a “cause” within the meaning of paragraph 3 to the Schedule. [11] As pointed out above, the additional powers must be exercised in accordance with either any written law or rules of court relating to the matter which is the subject of the additional power. In respect of paragraph 3 of the Schedule, there is no written law but there are rules of court providing for the exercise of such power. The relevant rule is Order 31 of the Rules of Court 2012. In this regard the applicability of Order 31 in respect of the sale of land under paragraph 3 of the Schedule was accepted in KK Kumaran v TS Sambanthamurthi [1997] 2 CLJ 26 and Vong Hin Seong & Anor v Yong Teik Seong [2003] 6 MLJ 38. 8 Order 31 of the Rules of Court 2012 [12] Again due to its importance to the issue at hand the relevant parts of Order 31 of the Rules of Court 2012 is reproduced below. Order 31 rule 1 provides for an order of sale to be made in any cause relating to land upon the fulfilment of the conditions therein. The rule reads as follows: Where in any cause or matter relating to any immovable property it appears necessary or expedient for the purposes of the cause or matter that the property or any part thereof should be sold, the Court may order that property or part to be sold, and any party bound by the order and in possession of that property or part, or in receipt of the rents and profits thereof, may be compelled to deliver up such possession or receipt to the purchaser or to such other person as the Court may direct. while Order 31 rule 2 provides for matters after an order for sale has been made in the following words: 9 (1) Where an order is made, whether in Court or in Chambers, directing any immovable property to be sold, the Court may permit the party or person having the conduct of the sale to sell the property in such manner as he thinks fit, or may direct that the property be sold in such manner as the Court may either by the order or subsequently direct for the best price that can be obtained, and all proper parties shall join in the sale and conveyance as the Court directs. (2) (There is no paragraph (2)) (3) (There is no paragraph (3)) (4) The Court may give such directions as it thinks fit for the purpose of effecting the sale, including without prejudice to the generality of the foregoing words, directions – (a) appointing the party or person who is to have the conduct of the sale; 10 (b) fixing the manner of sale, whether by contract conditional on the approval of the Court, private treaty, public auction, tender or some other manner; (c) fixing a reserve or minimum price; (d) requiring payment of the purchase money into Court or to trustees or other persons; (e) for settling the particulars and conditions of sale; (f) for obtaining evidence of the value of the property; (g) fixing the security, if any, to be given by the auctioneer, if the sale is to be by public auction, and the remuneration to be allowed him; and 11 (h) requiring the title to be referred to a solicitor for his opinion thereon and to settle the particulars and conditions of sale. [13] In exercising the power under paragraph 3 of the Schedule, this Court in making the order for sale on 14.9.2015 had utilised the provisions of Order 31 rules 1 and 2 as shown above. The order for sale was made under rule 1 and the manner of effecting the sale was made under rule 2(1) and (4). It is not in dispute that pursuant to the aborted first public aution application was made for another public auction which was also aborted in absence of any bidders. The nature of the present application (enclosure 22) [14] In the present application the plaintiff is not seeking directions of sale by way of a fresh public auction but a sale by way of a private treaty to give effect to the order of sale obtained on 14.9.2015. [15] In my judgment the plaintiff is entitled to make such an application under Order 32 rule 2(1) which provides that the 12 Court may direct that the property be sold in such manner as the Court may direct in the order or subsequently direct. Thus, the Court has power to subsequently direct upon application the manner of sale to give effect to the order of sale. [16] In my considered view upon making the order for sale in the cause or originating summons on 14.9.2015 the Court became functus officio only in respect of the order for sale. The order for sale cannot be varied or amended. It can only be reversed on an appeal against the making of the order of sale. The Court still retains power to make directions on application as to the manner the sale is to take form to give effect to the order for sale under Order 32 rule 2(1). This provision acts as an exception to the principle of functus officio. In this regard, the general established law is that a court is functus officio once it has delivered its judgment or order and is not empowered to vary or change such regularly obtained judgment or order. The exception to this general position is where the courts may issue directions or consequential orders to “work out” or give effect to the initial judgment or order (Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 4 CLJ 354). 13 [17] The above would answer the defendant’s submission that Order 31 would only apply if there is a cause or matter relating to the property and in this case the cause or originating summons was spent with the making of the order dated 14.9.2015. As shown above the submission has failed to appreciate that what is being sought are directions to give effect to the order dated 14.9.2015 and not the making of a fresh order of sale. The submission did not consider that Order 31 rule 2(1) allows subsequent directions to be given by the court regarding the manner the sale is to take form. [18] The above would also answer the submission of functus officio raised by the defendant. Further, the reliance on the established principle in Hock Hua Bank Berhad v Sahari bin Murid [1981] 1 MLJ 143 that: the Court has no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up does not apply or assist the defendant. This Court is not in the present application being moved to vary or set aside the order dated 14.9.2019. 14 [19] Similarly, the case of Khoo Cheng Tat v Lim Soon Teik & Anor.; B.M. Kamdar, Intervening [1982] 1 MLJ 289 does not assist the defendant. In that case the respondents, as administrators of the estate of the deceased applied by way of an originating summons and were on 6.10.1978 granted leave of the court to sell a piece of land to the intervener at a fixed price of $1,458,616.00. Subsequently, the applicant, a beneficiary of the deceased filed a fresh originating summons seeking to vary the order dated 6.10.1978 so that the land could be sold by public tender at a minimum price of $2,188,040.586.10 to some other person. It was held by the learned JC in that case, which decision I am in complete agreement, that the court had no power to alter or vary the such order either in the original originating summons or in a fresh originating summons. The order sought in the fresh originating summons would have reversed or set aside the original order. This would clearly be in violation of the established principle in Hock Hua Bank Berhad. As shown above in the present case the original order dated 14.9.2015 for the sale of the land is not sought to be disturbed and remains intact and enforceable. 15 [20] The defendant’s next point is res judicata. It was contended that the plaintiff ought to have reasonably foreseen, before or at the time the order for sale was made, that the sale by public auction would not be successful and ought to have considered the viable option to sell the land by way of a private treaty. The plaintiff, it was argued, should have prayed for the sale by private treaty as a direct or alternative prayer and a result of the failure to do so is now after the originating summons had been disposed estopped and cannot raise the issue to be litigated afresh. For this point the defendant relied on the wider principle of res judicata as was established in Superintendent of Pudu Prison v Sim Kie Chon [1986] 1 MLJ 494, namely, that it is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings. Similarly, as with the functus officio point the point of res judicata would also fail on the ground that the present application is merely seeking one of the several manners of sale provided in Order 31 rule 2(4) to give effect to the prayer that ordered the sale of the property. 16 Conclusion [21] After considering the valuation reports of the respective parties and to facilitate and make the order of sale made on 14.9.2015 workable I make the following orders: (i) that the order of sale of the property held under Geran No. 19976, Lot No. 809, Seksyen 1, Bandar Georgetown Town of Georgetown, Daerah Timur Laut, Pulau Pinang with the premises No. 9, Jalan Midlands 10250 Pulau Pinang made pursuant the order of court dated 14.9.2015 be sold by way of private treaty. (ii) the defendant is given the opportunity to obtain a buyer at a price of RM1,900,000.00 within three (3) months from the date of this order; (iii) in the event the defendant fails in achieving para (ii) above, it is ordered that the defendant is given the first opportunity to purchase the property at the price of RM1,680,000.00 also within the period of three (3) months from the date of this order and if the defendant does not indicate his 17 intention within the said period the property will be sold by private treaty at the price of RM1,680,000.00 to any person or body identified by the plaintiff; (iv) in the event of either paragraph (ii) or (iii) materialising the parties are at liberty to apply for further directions; and (v) costs of this application to be paid by the defendant to the plaintiff subject to allocator. ………………Sgd………………….. Amarjeet Singh Serjit Singh Judicial Commissioner High Court of Malaya at Penang Dated: 3rdSeptember 2020 Counsel for the Applicant: Tan Bak Lee [TAN BAK LEE & CO.] Counsel for the Respondent: Yiew De Xian [ GOH ENG KEE & CO. (PENANG) ] 18 Cases referred to: 1. KK Kumaran v TS Sambanthamurthi [1997] 2 CLJ 26 and Vong Hin Seong & Anor v Yong Teik Seong [2003] 6 MLJ 38. 2. Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 4 CLJ 354. 3. Hock Hua Bank Berhad v Sahari bin Murid [1981] 1 MLJ 143. 4. Khoo Cheng Tat v Lim Soon Teik & Anor.; B.M. Kamdar, Intervening [1982] 1 MLJ 289. 5. Superintendent of Pudu Prison v SimKie Chon [1986] 1 MLJ 494. 19