RHB BANK BHD. (Co. No.: 6171-M) LIM CHEE TAT (NRIC. No.: 670811-10-6099)

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO. : BA-24FC-514-04/2018 APPLICATION FOR EXECUTION NO. : BA-38-937-09/2016 BETWEEN RHB BANK BHD. (Co. No.: 6171-M) … PLAINTIFF AND LIM CHEE TAT (NRIC. No.: 670811-10-6099) … DEFENDANT JUDGMENT (Court enclosure no. 64) A. Background 1. The plaintiff bank (Plaintiff) had given credit facilities amounting to RM4,500,000.00 (Facilities) to Lokasi Unggul Sdn. Bhd. (LUSB). 2. LUSB’s repayment of the Facilities had been secured by a charge (Charge) registered under the National Land Code (NLC) over a piece of land held under title PT No. 136760, HS(D) 144754, Mukim and District of Klang, Selangor Darul Ehsan (Land) which is owned by the defendant (Defendant). 3. The particulars of the Land are as follows: 1 (1) the Land is located at a corner with the address of No. 1, Jalan Omboh 34/1, off Jalan Bukit Kemuning, 40470 Shah Alam, Selangor Darul Ehsan; (2) there is a four-storey shop-office erected on the Land. The Land is occupied as a sales gallery, showroom and office; (3) the provisional area of the Land is 455.10 square metres (4,899 square feet); (4) the Land has been alienated to the Defendant in perpetuity, namely the Defendant owns “freehold” Land; (5) the Land is subject to the “building” category of land use and an express condition that the Land shall be used as a commercial building; and (6) the Land is not subject to any restriction in interest. 4. LUSB had defaulted in respect of the Facilities. Consequently, the Plaintiff enforced the Charge against the Defendant and obtained an order from the High Court to sell the Land (Order for Sale). The Defendant did not appeal to the Court of Appeal against the Order for Sale. 5. Pursuant to the Order for Sale, the first public auction of the Land was held on 30.10.2018 (1st Public Auction) with a reserve price of RM3,893,940.00 (1st Reserve Price). There was no bidder for the Land at the 1st Public Auction (Abortion of 1st Public Auction). 2 6. On 8.9.2018, the Plaintiff applied to the learned Senior Assistant Registrar (SAR) in court enclosure no. 49 (Enc. 49) for the following directions, among others: (1) a second public auction of the Land (2nd Public Auction) shall be held by the court; and (2) a reserve price for the Land of RM3,504,546.00 or any other reserve price as deemed appropriate by the court shall be fixed by the court for the 2nd Public Auction. 7. In support of Enc. 49, the Plaintiff had obtained a valuation of the Land dated 11.1.2019 by Mr. Lim Chang Mee, a Chartered Valuation Surveyor and Registered Valuer, from Jordan Lee & Jaafar (S) Sdn. Bhd. (Mr. Lim’s Valuation). According to Mr. Lim’s Valuation, among others, on 7.1.2019 (the date of valuation and inspection of the Land by Mr. Lim) - (1) the market value of the Land was RM4,000,000.00; and (2) the “forced sale value” of the Land was RM3,200,000.00. 8. The Defendant had resisted Enc. 49. In reply to Mr. Lim’s Valuation, the Defendant had obtained a valuation of the Land dated 21.3.2019 by Sr. Syamzul Bahari Bin Saupi, Registered Valuer, from Qaiser Harta Sdn. Bhd. (Encik Syamzul’s Valuation). Encik Syamzul’s Valuation stated that, among others, on the valuation date of 18.3.2019 - (1) the market value of the Land was RM7,500,000.00; and (2) the forced sale value of the Land was RM6,375,000.00. 3 9. The learned SAR allowed Enc. 49 and decided (SAR’s Decision), among others, that the 2nd Public Auction would be held with a reserve price of RM4,000,000.00 (2nd Reserve Price). 10. This is the Defendant’s appeal against the SAR’s Decision to the High Court Judge (Enc. 64) under O 56 r 1(1) of the Rules of Court 2012 (RC). 11. In this judgment, I will refer to parties as they are before the learned SAR. B. Issues 12. Enc. 64 raises the following questions: (1) as there was no appeal to the Court of Appeal against the Order for Sale, was the learned SAR estopped by the res judicata doctrine from directing the conduct of the 2nd Public Auction with the 2nd Reserve Price? This issue discusses the effect of s 259(2)(c) NLC; (2) whether the Defendant could resist the 2nd Public Auction with the 2nd Reserve Price on the ground that the Plaintiff (as a NLC chargee of the Land) had breached its duty owed to the Defendant (the registered proprietor of the Land) under the tort of negligence to take all reasonable care to ensure that the 2nd Reserve Price is not below the prevailing market value of the Land. In this regard, are cases from the United Kingdom (UK), Hong Kong and Singapore (concerning a mortgagee’s duty to take all reasonable care to obtain the market value of the mortgaged property at the time of the mortgagee’s sale of the mortgaged property) applicable when the 4 reserve price for the public auction of land charged under NLC is fixed by the court under ss 257(1)(d) and s 259(2)(c) NLC (and not by the NLC chargee). This is a novel question; and (3) should this court [exercising appellate jurisdiction over the SAR’s Decision under O 56 r 1(1) RC] intervene in Enc. 64 and set aside the exercise of the learned SAR’s discretion in fixing the 2nd Reserve Price? In this respect, did the learned SAR err in taking into account Mr. Lim’s Valuation and not Encik Syamzul’s Valuation? C. Whether res judicata doctrine bars 2nd Public Auction with 2nd Reserve Price 13. It is clear that the Order for Sale is final and res judicata because neither the Plaintiff nor Defendant has appealed to the Court of Appeal against the Order for Sale - please see the Supreme Court’s judgment delivered by Peh Swee Chin FCJ in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, at 197-198. Although the Order for Sale is final in effect - (1) the court “shall” have the power to give directions on matters as provided in s 257(1)(a) to (h) and (2) NLC. I reproduce s 257 NLC below - “s 257 Matters to be dealt with by order for sale. (1) Every order for sale made by the Court under section 256 shall be in Form 16H and shall - (a) provide for the sale to be by public auction; 5 (b) require the sale to be held on, or as soon may be after, a date specified therein, being a date not less than one month after the date on which the order is made; (c) specify the total amount due to the chargee at the date on which the date on which the order is made; (d) require the Registrar of the Court to fix a reserve price for the purpose of the sale, being a price equal to the estimated market value of the land or lease in question; (e) specify that no bidder shall be allowed to bid in the sale unless the officer of the Court is satisfied that the bidder possesses, at the time of the sale, the sum equivalent to ten per centum of the reserve price specified under paragraph (d) ; (f) specify that where the full amount of the purchase price is not paid after the fall of the hammer by the successful bidder, the sum specified in paragraph (e) shall be paid as deposit to the chargee and forthwith credited into the account of the chargor pending the settlement of the balance of the purchase price; (g) specify that the balance of the purchase price shall be settled on a date not later than one hundred and twenty days from the date of the sale and that there shall be no extension of the period so specified; and (h) specify that where the balance of the purchase price is not settled on a date specified under paragraph (g) , the sum paid as deposit under paragraph (f) to the chargee shall be forfeited and disposed of in the manner specified under section 267A. (2) Any such order may contain such other directions with respect to the sale as the Court may think fit, and in particular (but 6 without prejudice to the generality of the foregoing) may, where the charge in question relates to more lands or leases than one, direct - (a) that they be offered for sale individually, and in a specified order; and (b) that, in the event of the price fetched by one or more of them exceeding an amount specified in the order, or to be determined by the Registrar of the Court, the other or others shall be withdrawn from the sale, and shall cease to be subject to the order. (3) In specifying or determining any amount for the purposes of paragraph (b) of sub-section (2), the Court or the Registrar, as the case may be, shall have regard not only to the liability of the chargor under the charge, but also to any liabilities which (under section 268) will fall to be discharged out of the proceeds of sale in priority thereto.” (emphasis added). It is clear that after the Order for Sale has been granted, the learned SAR “shall” fix the 1st Public Auction with the 1st Reserve Price under s 257(1)(a) and (d) NLC respectively. It is to be noted that the Defendant did not appeal to the High Court Judge pursuant to O 56 r 1(1) RC against the learned SAR’s decision regarding the 1st Public Auction with the 1st Reserve Price. In Universal Trustee (M) Bhd v Dynawell Corporation (M) Sdn Bhd & Anor [2015] 9 CLJ 531, at [7], Rosnaini Saub J decided as follows in the High Court - 7 “[7] At the outset, I must say that the relevant provision under the NLC that is applicable in the second SFD is s 257(1)(d) and not s 259(2)(c). This is because the first auction was vacated, and not aborted due to no bidder. In other words, the duty of the court, and in this case the learned SAR, was to fix a reserve price being a price equal to the estimated market value of the said property. The duty of the learned SAR in the second SFD is the same as in the first SFD.” (emphasis added); and (2) after the Abortion of 1st Public Auction, by reason of s 259(2)(c) NLC the learned SAR “shall” direct a 2nd Public Auction with the 2nd Reserve Price. Section 259 NLC provide as follows: “s 259 Procedure at sale. (1) Every sale pursuant to an order under section 256 shall take place under the direction of an officer of the Court, but this sub-section shall not prevent the Court from taking the assistance thereat of any licensed auctioneer. (2) The officer under whose direction the sale takes place shall - (a) receive the bids (including any bid by or on behalf of the chargee); (b) settle summarily any question arising in the course of the proceedings; (c) in the absence of any bid at or above the reserve price, withdraw the land or lease in question from the sale, direct that it be put up for auction on a subsequent date, either at the same or at a new reserve price, and see that the subsequent sale is 8 publicly advertised in the like manner; and sale is publicly advertised in the like manner; and (d) subject to paragraph (c), declare the sale concluded in favour of the highest bidder. (3) The purchaser at the sale shall, upon payment to the said officer of the full amount of the purchase price, be entitled to receive from him - (a) a certificate in Form 16F that the land or lease in question has been sold to him under the authority of this Act (which certificate shall, as provided by section 267, be registrable by the provided by section 267, be registable by the purchaser as if it were an instrument of dealing); and (b) if deposited with the Court pursuant to paragraph (b) of sub-section (2) of section 258, the issue document of title to the land or, as the case may be, duplicate lease. (3A) Notwithstanding sub-section (3), where the chargee is a financial institution, the purchaser at the sale shall, upon payment of the full amount of the purchase price to the chargee and upon receipt of the certification in writing from the chargee not later than fourteen days following the payment of such sum, that the balance or the full amount of the purchase price has been paid, shall be entitled to receive from the said officer of the Court - (a) a certificate in Form 16F that the land or lease in question has been sold to him under the authority of this Act (which certificate shall, as provided by section 267, be registrable by the purchaser as if it were an instrument of dealing) ; and (b) if deposited with the Court pursuant to paragraph (b) of sub-section (2) of section 258, the issue document of title to the land or, as the case may be, duplicate lease. 9 (4) Where the order for sale under sub-section (1) of section 257 requires the payment of any deposit by the successful bidder in any public auction and the balance to be settled on a date not later than one hundred and twenty days from the date of the sale, the provisions of section 267A shall apply.” (emphasis added). 14. In view of ss 259(2)(c) NLC, the learned SAR is not estopped by res judicata doctrine from directing a 2nd Public Auction with the 2nd Reserve Price. It is to be noted that NLC is intended by Parliament to be a code on land law which is comprehensive - please see the Court of Appeal’s judgment given by Gopal Sri Ram JCA (as he then was) in Ibrahim Ismail & Anor v Hasnah Puteh Imat & Ors [2004] 1 CLJ 797, at 805- 806. The doctrine of res judicata is a creature of Malaysian case law and is subject to our statutes, especially a codified written law in the form of NLC. D. Whether Defendant can resist 2nd Public Auction based on Plaintiff’s alleged negligence regarding 2nd Reserve Price 15. The Defendant’s learned counsel has contended that the Plaintiff as a NLC chargee of the Land owes a duty under the tort of negligence to the Defendant to take all reasonable care to ensure that the 2nd Reserve Price is not below the prevailing market value of the Land. Reliance has been placed by the Defendant’s learned counsel on the following cases: (1) the judgment of Salmon LJ (as he then was) in UK’s Court of Appeal in Cuckmere Brick Co Ltd & Anor v Mutual Finance Ltd [1971] Ch 949; 10 (2) the decision of the Privy Council in Tse Kwong Lam v Wong Chit Sen [1983] 1 WLR 1349 (an appeal from Hong Kong); (3) the judgment of Singapore’s Court of Appeal in How Seen Ghee v Development Bank of Singapore Ltd [1994] 1 SLR 526; and (4) our Federal Court’s decision in United Malayan Banking Corporation Bhd v Palm and Vegetable Oils (M) Sdn Bhd & Ors [1983] 1 MLJ 206 (UMBC). 16. In Cuckmere Brick, at p. 968-969, Salmon LJ decided as follows: “I accordingly conclude, both on principle and authority, that a mortgagee in exercising his power of sale does owe a duty to take reasonable precautions to obtain the true market value of the mortgaged property at the date on which he decides to sell it.” (emphasis added). 17. The above judgment of Salmon LJ in Cuckmere Brick has been followed in the following cases: (1) the Privy Council’s judgment delivered by Lord Templeman in Tse Kwong Lam, at p. 1355 and 1356; and (2) Warren LH Khoo J’s decision in Singapore’s Court of Appeal case of How Seen Ghee, at p. 531-532. 18. Firstly, I am of the view that the Federal Court in UMBC has not decided that a NLC chargee owes a duty under the tort of negligence to take all reasonable care to ensure that the reserve price for the public auction of 11 charged land is not below its prevailing market value. I reproduce below the relevant part of the Federal Court’s judgment delivered by Raja Azlan Shah Ag LP (as His Majesty then was) in UMBC, at p. 207 and 208: “… The respondents also complain of the timing of the sale and the price realised and we would on this aspect refer to Cuckmere Brick Co Ltd & Anor v Mutual Finance Ltd [1971] Ch 949 [which was applied in Duke v Robson All ER 481 488] that the duty of a mortgagee to a mortgagor when exercising his power of sale is to take reasonable care to obtain a proper price, … … We have not dealt in any detail with the facts and particulars of the several allegations made on both sides as it is not our province to touch on the merits of the issues involved. We only need to consider whether or not there are issues or questions in dispute which ought to be tried. Summary judgment is only given in a plain and obvious case. This is certainly not one. We find as we have indicated that there are in fact triable issues and this is substantiated by the necessity for applications for the admission of Queen's Counsel in this appeal on the grounds of the complexity of the case which involves difficult questions of fact and law and also the voluminous affidavits and exhibits put in and the arguments presented before us over a period of two days.” (emphasis added). The above judgment in UMBC clearly shows that the Federal Court merely dismissed the appellant bank’s appeal for summary judgment for a sum of money due to the appellant bank from the appellant bank’s debtor and guarantors. Furthermore, UMBC does not concern the enforcement of a NLC charge, let alone the reserve price for the public auction of charged land. 12 19. Secondly, I am of the view that Cuckmere Brick, Tse Kwong Lam and How Seen Ghee are decisions regarding a mortgagee’s remedy to foreclose a mortgaged property under the Common Law (Mortgagee’s Common Law Remedy of Foreclosure). A Mortgagee’s Common Law Remedy of Foreclosure is different from a chargee’s remedy of sale of charged land under NLC. The following cases are pertinent: (1) in the High Court case of Bank Bumiputra Malaysia Bhd v Doric Development Sdn Bhd & Ors [1988] 1 MLJ 462, at 462 and 463, Peh Swee Chin J (as he then was) held as follows: “Before me on appeal, learned counsel for the company submitted implicitly on the basis that the said charge executed by the company was an English mortgage at common law or a transaction exactly like such an English mortgage. On the said basis, he submitted that the equity of redemption had been lost because of the order of sale by public auction made by the court. … … In the first place, the premise that a charge under National Land Code is the same as an English mortgage at common law is patently erroneous. A charge is governed by detailed statutory provisions of the [NLC] while an English mortgage at common law was a horse of a different colour altogether. It is not necessary to delve into all the differences between a charge and a mortgage beyond mentioning one or two of such differences. In an English mortgage at common law, the mortgaged property was transferred to the name of the mortgagee on the creation of the mortgage with a proviso for redemption. Under the said proviso, the mortgagee agreed to re-transfer the mortgaged property by a certain date beyond which it was stated to be 13 irredeemable. Equity stepped in and provided the equity of redemption, by which the right to redeem was extended beyond the said date and would be lost only on foreclosure or sale. The rules of mortgage at common law would therefore not apply at all to a charge under the National Land Code.” (emphasis added); and (2) it is decided as follows in Malaysian Trustees Bhd v Pilecon Engineering Bhd [2019] 11 MLJ 537, [2019] 4 CLJ 366, at [14], as follows - “[14] Learned counsel for the Trustee and Defendant have used the term “foreclosure” in this OS. At the expense of being punctilious, the term “foreclosure” concerns a Common Law mortgage and not a NLC charge. It was decided in Jambatan Merah Sdn Bhd (in liquidation) v Public Bank Bhd [2014] 1 LNS 1657, at paragraphs 26 and 27, as follows: “26. The RC and its predecessor, the Rules of the High Court 1980 (RHC), are based on the English Supreme Court Rules 1965 (SCR). The SCR used the terms “redemption” and “foreclosure” for mortgages under English land law. Our NLC however uses the phrases “discharge of charge” (please see ss 245 and 278 to 280 NLC) and “order for sale” (please see ss 253-269 NLC) for charges registered under the NLC. 27. I am of the respectful view that Order 83 RC should be amended by the Rules Committee to be consistent with the NLC in respect of a chargee’s remedy to apply for an “order for sale” of the charged 14 land (not to “foreclose”) and chargor’s right to discharge the charge (not to “redeem”). I rely on the following decisions of our apex court regarding our land legislation which embodies the Torrens system: (a) the opinion of the Privy Council in Haji Abdul Rahman & Another Appellant v Mohamed Hassan [1917] AC 209, at 216-217, given by Lord Dunedin, on an appeal from the Federated Malay State of Selangor regarding the Registration of Title Regulations 1891 of Selangor (a Torrens legislation) - “It seems to their Lordships that the learned judges, in these observations, have been too much swayed by the doctrines of English equity, and not paid sufficient attention to the fact that they were here dealing with a totally different land law, namely, a system of registration of title contained in a codifying enactment. The very phrase 'equity of redemption' is quite inapplicable in the circumstances. There is no provision in the [Registration of Title Regulations 1891 (Selangor)] for mortgages apart from what is described as a 'charge'; indeed, they are, except as regards those of the past, de facto abolished after the date of the enactment by s 4 already quoted. That provides for charges, which must be made in a statutory form and must 15 appear on the register to be effective. Under such a system the right to the land remains with the registered owner. He has nothing to redeem, his right on paying the debt being to have the charge cleared off the register.” (emphasis added); (b) the Supreme Court’s judgment in Malayan United Finance Bhd v Tay Lay Soon [1991] 1 MLJ 504, at 507, delivered by Jemuri Serjan CJ (Borneo) as follows - “It certainly would avoid confusion if the term equity of redemption should not be used at all in dealing with a charge under the [NLC] because in other jurisdictions, besides England, it conveys an entirely different idea. For instance, in New South Wales, Australia, it was used in a different sense altogether. In Abigail v Lapin [1934] AC 491 at p 500 Lord Wright explained that the Real Property Act 1900, New South Wales, embodied the Torrens system of registration of title to land, not of deeds and of mortgages. … It thus can be appreciated that the equity of redemption as is known in England 16 which is in the nature of a right bears no similarity in idea and effect with the equity of redemption in New South Wales, Australia, where a mortgage is closely analogous to a charge under our [NLC], but in practice, coupled with a transfer of the legal title as well and where the equity of redemption is not a right but has grown out of practice. 'Equity of redemption' is a misnomer but persistence in its use is not a matter of law but of habit in Australia and in Malaysia it does not exist at all, either in the sense as understood in English law or in Australia, at least in New South Wales. Under the [NLC] the interest in the land subject to a charge does not vest in the chargee but, upon registration of a charge, it renders the land subject to the charge liable as a security only in accordance with the provisions of the charge, express or implied (s 243). Under s 244(1), the chargee is entitled to the custody of the issue document of title so long the liability stays under the charge. There is no statutory provision for the discharge of the charge by the chargor but his right and that of a borrower to do so is embodied in the provisions of the charge itself. See cl 3(ii) of the annexure to the charge and s 249(1) [NLC]. However, 17 under s 266(1) any chargor may at any time before the conclusion of a judicial sale of a charged land tender the amounts due to the Registrar of the court or the Collector and the amount sufficient to cover all expenses.” (emphasis added); and (c) the dissenting judgment of Abdul Hamid Mohamad FCJ (as his Lordship then was) in the Federal Court case of Perwira Habib Bank Malaysia Bhd v Lum Choon Realty Sdn Bhd [2005] 4 CLJ 345, at 361, 362 and 363-364, as follows - “Before considering the provisions in detail, perhaps something should be said about the background of [Order 83 RHC]. This order was taken from O. 83 of the Rules of the High Court 1970 (Singapore) which was in turn taken from O. 88 of the Rules of the Supreme Court 1965 (England). … As a result of the adoption of the English rules by changing only the word and words related to the word “mortgage” with the word and words related to the word “charge”, we find that such words as “redeem”, “redemption”, “foreclosure”, “reconveyance”, “equitable charge” 18 are still retained in the Malaysian rules. They are actually out of place. … Regarding the word “equitable charge” in r. 1(2) of O. 83, the question is, is there such a thing in our land law? Is it not contrary to the term “charge” as provided in the NLC? If there is such a thing as an “equitable charge” and since it is not a “charge” under the NLC could the remedies provided in the NLC be made available in relation to such a “charge”? The former Federal Court in Mahadevan s/o Mahalingam v. Marilal & Sons (M) Sdn. Bhd. [1984] 1 CLJ 286; [1984] 1 CLJ (Rep) 230 seems to think that our law recognize “equitable charge”. But, the court was actually interpreting the words “mortgage or other charge” in s. 2(1) of the Limitation Act 1953, an Act passed prior to the NLC and the cases relied on were pre-NLC cases. Thus Teo Keong Sood and Khaw Lake Tee commented at p. 233 “… it is doubtful what his Lordship meant by the term “equitable charge””. I shall say no more on this. “Redemption” is another misplaced term used in O. 83. … So is “reconveyance”. … 19 As a result, such English land law terms are being used interchangeably but erroneously with the terms used in the NLC: “mortgage” for “charge”, “foreclosure” for “order for sale”, “redemption” for “discharge” etc. leading to confusion as they have different legal meanings. In my view, to avoid confusion, it is better that we stick to the terms used in the NLC 1965 and ignore those English land law terms even though they are used in O. 83. O. 83 is not land law and it cannot override or add to the provisions of the NLC regarding substantive land law.” ” (emphasis added). 20. Thirdly, by virtue of ss 257(1)(d) and s 259(2)(c) NLC, the reserve price for the public auction of charged land is fixed by the court and not by the chargee. It is to be emphasized that the sale of charged land by way of a public auction is conducted by the court under NLC and not by the chargee under the contract between the chargee and chargor. 21. Fourthly, even if it is assumed that a NLC chargee owes a duty under the tort of negligence to the registered owner of the charged land (Owner) to take all reasonable care to ensure that the reserve price for the public auction of the charged land is not below the prevailing market value of the charged land (Duty of Care), the existence of the Duty of Care only entitles the Owner to commence a civil suit based on the tort of negligence against the chargee after the charged land has been sold 20 and after the Owner has consequently suffered loss due to a breach of the Duty of Care. Accordingly, the existence of the Duty of Care does not in itself prevent the conduct of a public auction of the charged land by the court based on a reserve price which is fixed by the court in accordance with ss 257(1)(d) or s 259(2)(c) NLC (as the case may be). 22. Premised on the reasons stated in the above paragraphs 18 to 21, I have no hesitation to reject the Defendant’s contention that the 2nd Public Auction with the 2nd Reserve Price should be set aside on the ground that the Plaintiff has breached the Duty of Care. E. Should there be appellate intervention in Enc. 64? 23. The 2nd Reserve Price was fixed by the learned SAR pursuant to his exercise of discretion under s 259(2)(c) NLC. It is trite law that an appellate court should not intervene regarding a lower court’s exercise of discretion unless the appellant can satisfy the appellate court that - (1) the lower court has - (a) committed an error in law; (b) failed to consider a relevant matter; or (c) taken into account an irrelevant consideration; and (2) an injustice has been caused to the appellant due to the occurrence of any of the matters as stated in the above sub-paragraphs (1)(a) to (c). 21 24. In this case, the Defendant has not satisfied the court that the learned SAR - (1) has committed an error in law; (2) has failed to consider a relevant matter; or (3) has taken into account an irrelevant consideration - in fixing the 2nd Reserve Price pursuant to s 259(2)(c) NLC. Furthermore, the Defendant did not appeal to the Court of Appeal against the Order for Sale. Nor did the Defendant appeal to the High Court Judge under O 56 r 1(1) RC against the 1st Public Auction with the 1st Reserve Price. More importantly, the learned SAR had fixed the 2nd Reserve Price (RM4,000,000.00) which was higher than the 1st Reserve Price (RM3,893,940.00). In these circumstances, I am unable to see how any injustice has been occasioned to the Defendant by the SAR’s Decision. 25. I have perused Mr. Lim’s Valuation and Encik Syamzul’s Valuation. I am of the view that the learned SAR has correctly exercised his discretion under s 259(2)(c) NLC in accepting Mr. Lim’s Valuation and not Encik Syamzul’s Valuation. This decision is based on the following reasons: (1) Mr. Lim’s Valuation is based on three previous sale transactions of shop-office buildings which are comparable to the Land (Mr. Lim’s 3 Comparables); (2) Encik Syamzul’s Valuation had only considered the previous sale of a “Petron” petrol station (Encik Syamzul’s Sole Comparable); and 22 (3) as there is a four-storey shop-office erected on the Land, Mr. Lim’s 3 Comparables (not Encik Syamzul’s Sole Comparable) are clearly relevant in the valuation of the Land. F. Outcome of Enc. 64 26. Premised on the above reasons, Enc. 64 is dismissed with costs. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 4 FEBRUARY 2020 Counsel for Plaintiff: Encik Hapizi Bin Hashim (Messrs Sidek Teoh Wong & Dennis) Counsel for Defendant: Mr. Chong Hang Lim (Messrs The Chambers of Cheong) 23