GROUNDS OF JUDGMENT

This is an appeal by the chargee against the decision of the Court of Appeal in allowing the Respondent’s application to set aside an order for sale obtained by the chargee on 25^th of June 1992.

We do not propose to set out at length the chronology of events concerning the case as this is well laid out in the judgment of the Court of Appeal report in [2003] 5 AMR 577. Leave was given by this Honourable Court on 23.9.03 on 3 issues of law namely –

(1) Whether or not the failure to state the precise amount due to the Chargee in the letter of demand preceding the statutory notice under the National Land Code, 1965 would render an application for an order for sale of the charged land defective.

(2) Whether or not the failure of a Chargee to comply with the provisions of 0.83 r3(3)(c) and 0.83 r.3(7), Rules of the High Court by not stating:-

(i) the amount of interest in arrears as at the date of the Originating Summons;

(ii) the amount of daily interest

would render an Order for Sale defective and be set aside.

(3) Whether the decision of the Court of Appeal in holding that there had been non-compliance by the Chargee with the provision of 0.83 r.3, Rules of the High Court, to wit, by including in the sum claimed as due in the Order for Sale, interest, notice of variation of which had not been given, and thus holding that the Order for Sale was defective, was in conflict with the decision of the Federal Court in Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77.

To our minds the fundamental issue in this appeal is the applicability of 0.83 r. 3(1), r. 3(3) and r. 3(6) and (7), Rules of the High Court, 1980 to an application for an order seeking enforcement of a charge registered under the National Land Code by way of an order for sale. The order for sale was made pursuant to the chargee’s application by way of an Originating Summons wherein the principal reliefs prayed for were inter-alia –

(a) that the land held under Perakuan Pendahuluan Mengenai Hakmilik, Pegangan Nos: 288, 289. 294 and 302 and Geran Nos: 4559 and 4755 Lots 292 and 3385 Mukim 13 Daerah Timur Laut, Pulau Pinang (hereinafter referred to as “the said lands”) charged to the Plaintiff under a First Charge Presentation No. 10464/82, Volume 243 Folio 140 and Second Charge Presentation No. 13398/83 Volume 282 Folio 25 registered by the Pendaftar Hakmilik Tanah, Pulau Pinang on the 6^th day of August 1982 and 1^st day of November 1983 respectively be sold by public auction under Section 256 of the National Land Code 1965 to satisfy the sum of $47,884,178.68 due and owing to the Plaintiff under the First Charge and Second Charge as at the 26^th day of November, 1986 together with interest thereon at a rate per annum, which is 6% above the Plaintiff’s Base Lending Rate currently at 10.5% per annum on monthly rests with effect from the 27^th day of November 1986 until date of full settlement;

(b) that a date be specified on which such sale shall be held being a date not less than one (1) month from the date of the Order;

(c) that within seven (7) days of the sale of the said lands the Defendant do deliver vacant possession of the said lands.

Counsel for Appellant and Respondent on both sides argued at length on the legal impact of non-compliance of 0.83 r. 3(3), r.3(6), and r.3(7), R.H.C. 1980 relating to the order for sale.

We are not unaware that there has been much judicial agitation on this issue of compliance of 0.83 r. 3(1), r. 3(3), r. 3(6) and r.3 (7), R.H.C. 1980 and a divergence of opinion on these provisions in the context of an order for sale under the National Land Code.

The cases of Diamond Peak Sdn Bhd v United Merchant Finance Bhd [2003] 2 CLJ 8, Maimunah binti Megat Montak v Mayban Finance Bhd [1996] 2 MLJ, Citibank N.A. v Ibrahim bin Othman [1994] 1 AMR 7, Perwira Affin Bank Bhd v Tan Tian Ser [1995] 2 CLJ 133 and Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77, Chong Keat Realty Sdn Bhd v Ban Hin Lee Bank Bhd [2003] 4 AMR 421 were among the decisions cited by the respective counsel on this issue.

For the record O. 83 r. 1, r. 3(1), r. 3(3) and r. 3(6) and r.3(7) of the Rules of the High Court, 1980 read as follows –

“1.(1) This Order applies to any action (whether begun by writ or originating summons) by a chargee or charger or by any person having the right to foreclose or redeem any charge, being an action in which there is a claim for any of the following reliefs namely –

(a) payment of moneys secured by the charge;

(b) sale of the charged property;

(d) delivery of possession (whether before or after foreclosure or without foreclosure) to the chargee by the charger or by any other person who is or is alleged to be in possession of the property;

(e) redemption;

(f) reconveyance of the property or its release from the security;

(g) delivery of possession by the chargee.

3.(1) The affidavit in support of the originating summons by which an action to which this rule applies is begun must comply with the following provisions of this rule.

This rule applies to a charge action begun by originating summons in which the plaintiff is the chargee and claims delivery of possession or payment of moneys secured by the charge or both.

3.(3) Where the plaintiff claims delivery of possession the affidavit must show the circumstances under which the right to possession arises and, except the Court in any case or class otherwise directs, the state of the account between the charger and chargee with particulars of –

(a) the amount of the advance;

(b) the amount of the repayments;

(c) the amount of any interest or instalments in arrear at the date of issue of the originating summons and at the date of the affidavit; and

(d) the amount remaining due under the charge.

3.(6) Where the plaintiff claims payment of moneys secured by the charge, the affidavit must prove that the money is due and payable and give the particulars mentioned in paragraph (3).

3.(7) Where the plaintiff’s claim includes a claim for interest to judgment, the affidavit must state the amount of a day’s interest.”

Whilst, applications made pursuant to s. 256 of the National Land Code read together with s. 257 of the National Land Code provides for matters to be dealt with by order for sale. The relevant sections 256 and 257 read as follows –

“(1) This section applies to land held under –

(a) Registry title;

(b) The form of qualified title corresponding to Registry title; or

And to the whole of any divided share in, or any lease of, any such land.

(2) Any application for an order for sale under this Chapter by a chargee of any such land or lease shall be made to the Court in accordance with the provisions in that behalf of any law for the time being in force relating to civil procedure.

(3) On any such application, the Court shall order the sale of the land or lease to which the charge relates unless it is satisfied of the existence of cause to the country.”

Section 257 reads –

“(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;

(b) require the sale to be held on, or as soon as may be after, a date specified therein, being a date not less than one month after 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.”

We have noticed in the course of the hearing that there is with the exception of Perwira Affin Bank Bhd v Tan Tian Ser (supra) a similar ethos echoed in the judgments cited a moment ago. In these judgments there appears to be a mandatory requirement on the part of the chargee to comply with the requirements of 0. 83 r. 3(3) to (6) R.H.C. 1980 when enforcing a charge registered under the Code by way of an order for sale, regardless of the relief claimed.

Before we proceed to comment on the decision of Abdul Aziz Mohamed J. (as he then was), in Perwira Affin Bank Bhd (supra) special mention must be made in respect of the case of Chong Keat Realty (supra) which seemingly regards the non-compliance of 0.83 r. 3(3) R.H.C. 1980 as not a fundamental flaw. This however does not appear to be so on, a curial scrutiny of the case.

In Chong Keat Realty (supra) when the Originating Summons in respect of the foreclosure proceedings was heard the Defendant, who had retained Counsel offered no resistance nor filed any affidavit in opposition for the non-observance of 0. 83 r. 3 R.H.C. 1980. The High Court in that instance then granted an order for sale. Some 8 years later, the Defendant filed an application to set aside the order for sale citing as a principal ground that the order for sale granted was fundamentally flawed for non-compliance of 0.83 r. 3 R.H.C. 1980.

Gopal Sri Ram JCA in dismissing the appeal of the Defendant at the Court of Appeal had this to say at page 424 –

“Now, as a first step to deciding this appeal, it is essential that the principle applicable to the facts must be identified. To this end, it is important to notice a feature of this case that is of critical importance. This is not a case where the impugned order was obtained ex parte the appellant. It was not an order made in default of the appellant’s appearance. The order here was made inter partes. The appellant was very much present by its advocate at the hearing of the bank’s summons to foreclose.”

His Lordship continued further and stated at page 427–

“Now let us take this very case. Here we have a situation where the defendant to foreclosure proceedings enters an appearance, instructs counsel who attends the hearing in chambers and raises no opposition whatsoever to the making of the order. Nothing is said about the affidavit being defective. Then, after the passage of some eight years it comes forward with the argument that the order was made on a defective affidavit and that it ought therefore be set aside. In our view the appellant’s conduct amounts to an abuse of the court’s process. If accepted, it would be an affront to justice.”

To digress for a moment, in the course of delivery of his judgment in Chong Keat Realty (supra) his Lordship made certain observations on the decision of the Court in Diamond Peak Sdn Bhd v United Merchang Finance Bhd [2003] 2 AMR 637, and stated –

“Learned counsel for the appellant placed much reliance upon the decision of this court in Diamond Peak Sdn Bhd v United Merchant Finance [2003] 2 AMR 637 in support of his submission that neither long and inordinate delay nor the fact that the order for sale was made in the presence of the appellant’s counsel could detract from the invalidity of the order occasioned by non-compliance with the mandatory provisions of RHC Order 83 r 3. We have carefully examined that case and find it readily distinguishable from the present. In Diamond Peak, the principal ground of complaint was the breach by the chargee of the mandatory provisions of s 257(1)(b) of the National Land Code 1965. This Court found this complaint to be entirely justified. It accordingly set aside the order for sale despite a delay of six years on the part of the chargor in making its application and despite the order having been made in the presence of the chargor’s counsel. This is entirely in keeping with the principle enunciated by Mohd Azmi FCJ in Badiaddin and no difficulty is thereby occasioned. However, this court also relied on the chargee’s failure to observe the mandatory requirements of RHC Order 83 r 3 as an added reason for setting aside the order for sale. This was not a point strictly necessary for the outcome of the case on its merits. It is therefore pure obiter.”

With respect to his Lordship’s observation in the case of Diamond Peak Sdn Bhd v United Merchant Finance (supra) the decision of the Court in Diamond Peak Sdn Bhd (supra) was based on two issues that were argued and adjudicated upon by the Court of Appeal. The first was whether the order for sale of the Appellant’s property by way of public auction pursuant to s. 257(1)(b), of the National Land code was invalid for non-conformity with s. 257(1)(b) of the National Land Code and secondly, whether the Respondent had failed to comply with 0.83 r.3(3), (c) and (6) of the Rules of the High Court, 1980.

The Court of Appeal in Diamond Peak Sdn Bhd (supra) allowed the appeal on both the above-mentioned grounds. There was no question in the said judgment that the dicta relating to 0.83 r.3(3), (c) and (6), R.H.C. 1980 was purely ‘obiter’.

For good measure we choose to reproduce this aspect of the judgment –

“Next, on the issue of non-compliance with Order 83 r 3(3)(c) and (6) of the RHC.

The originating summons of the respondent of March 20, 1986 concerns claim by the respondent under paragraph (6) of Order 83 r 3 of the RHC. By the said paragraph, the respondent is required to satisfy the requirements in paragraph (3)(c) thereof in that the originating summons and the affidavit must state the amount of any interest or instalments in arrear as at the date of the issue of the originating summons and the date of the affidavit. Apart from that, paragraph (7) needs also to be complied with, though here the appellant did not specifically raise it as an issue.

The originating summons in this case was issued and the affidavit in support was dated on March 20, 1986 respectively. However, the figures given in the summons and the affidavit relate to the outstanding sum together with overdue interest due and owing by the appellant to the respondent as at January 17, 1986 with further interest to be calculated from January 18, 1986 till date of full payment, and not the position as at March 20, 1986 as so required by paragraph (6) read with paragraph (3)(c) of Order 83 r. 3 of the RHC. The affidavit fails to state the amount of a day’s interest as so required by paragraph (7) thereof. There was however, a supplementary affidavit affirmed by the general manager of the respondent dated September 18, 1986. But the position of the outstanding balance of money due and owing by the appellant to the respondent on the said charge given was as at September 22, 1986 which failed to cure the defect in non-compliance with the necessary paragraphs earlier mentioned.

On this issue, the learned judge in his judgment stated at p 6 as follows:

In the present case, the charge action begun by originating summons was not an action for the delivery possession or payments of moneys secured or both. It was a action for an order for the sale of the charged property, an altogether dissimilar and distinct relief not regulated by rr 2 and 3 – see Order 83 r 3(3)(c) read together with r 3(6) was not followed. Indeed, even if Order 83 r 3(3)(c) and (6) regulated the instant charge action (i.e. Citibank Bhd v Ibrahim bin Othman [1994] 1 AMR 369; [1994] 1 MLJ 608 is truly to be preferred over Perwira Affin Bank Berhad v Tan Tian Ser [1995] 1 AMR 295; [1995] 2 CLJ 133), it ought not to have been so contended, as the affidavit clearly showed the amount of the interest in arrear (in the instant case of a fixed loan repayable on demand, the amount of instalments in arrear was not applicable0 at the date of the affidavits, and at the date on which the order for sale was made. Ineluctably, the plaintiff stated the exact amount that the defendant was legally liable to pay to stave off the sought auction sale.

In giving preference to Citibank’s case, supra, over Perwira Affin Bank Berhad’s case, supra, the learned judge must be referring to the dicta of Edgar Joseph Jr FCJ in Maimunah bte Megat Montak, supra, at p 2476 (AMR); P 11 (CLJ) thereof, where the Federal Court preferred the reasoning and conclusion of Shankar J in Citibank. But the learned judge in so concluding in the above passage has misconstrued the decision in Citibank and misapplied it in the present matter before him. In Citibank, the bank applied for an order for sale of the defendant’s land in order to effect payment of moneys secured by the charge of the land (which is the case here before the learned judge). The defendant claimed that the plaintiff had failed to provide the statutory particulars required under Order 83 r. 3 of the RHC. The plaintiff however contended that Order 83 r. 3 only applied to a claim for delivery of possession and, as that was a foreclosure action, Order 83 r. 3 did not apply. Shankar J disagreed with the contention of the plaintiff but agreed with the contention of the defendant and accordingly dismissed the application of the plaintiff. In the present case, the respondent clearly has failed to comply with the mandatory requirements of Order 83 r. 3(3)(c) and (6) of the RHC as enumerated above. On this ground too we were of the view that this appellant’s appeal ought to be allowed.”

And now to the case of Chong Keat Realty (supra). What we can discern from the dicta is that it was not as if His Lordship was making short shrift over the non-compliance of 0. 83 r. 3, R.H.C. 1980. It was more about the manner in which the Defendant there had conducted themselves from the hearing of the application for order of sale where no challenge was proffered for non-compliance of 0.83 r. 3, R.H.C. 1980 to the Defendant’s subsequent attempt some 8 years later to set aside the sale order principally for non-compliance of 0. 83 r. 3, R.H.C. 1980. His Lordship quite naturally found the conduct and delay of the Defendant in making the application to set aside the order for sale an untenable situation amounting to an abuse of Court process.

The factual matrix in the present case, is slightly different. The order for sale was granted by the High Court on 15.10.1987 despite the infractions of law, vis-à-vis 0.83, R.H.C.1980, in the absence of the Respondent and his Solicitors. Admittedly, the Respondent was served with the Originating Summons. However, at the subsequent hearing of the Originating Summons to set aside the order for sale, arguments were canvassed by the chargor’s Solicitors on the necessity to comply with the provisions of 0.83 r. 3(1), r. 3(3), r. 3(6) and r. 3(7), R.H.C. 1980. In vain, these arguments of the chargor did not find favour with the trial judge, who instead gave the Appellant the opportunity to rectify these breaches of law. Even this requirement was not complied with by the Appellant. The rest is history.

As to the judgment of Abdul Aziz bin Mohamed J. (as he then was), in Perwira Affin Bank Bhd (supra). This judgment did raise a pertinent issue on the language employed in 0. 83 r. 1 (a to g) read in conjunction with 0. 83 3(1) to (3), R.H.C. 1980. His Lordship opined that from a literal reading of 0.83 r. (3), R.H.C. 1980 compliance will only be required of it when the chargor claims delivery of possession or payment of money secured by the charge or both. For emphasis 0.83 r. 3 (1), R.H.C. 1980 reads as follows –

“3.(1) The affidavit in support of the originating summons by which an action to which this rule applies is begun must comply with the following provisions of this rule.

This rule applies to a charge action begun by originating summons in which the plaintiff is the chargee and claims delivery of possession or payment of moneys secured by the charge or both.” (emphasis is ours).

We do not propose to reproduce in extenso the judgment of his Lordship Abdul Aziz bin Mohamed J. (as he then was) as recourse could be made to the said judgment in (1995) 2 CLJ page 133.

Attractive as the proposition is from a literal reading of the provision, we take the view that it would be absurd for the requirements of 0. 83 r. 3 (3) R.H.C. 1983 to be complied with only in situations when it is for payment of moneys secured by a charge or for delivery of possession but not for the foreclosure or sale of the charged property. Why should there be such a distinction, we ask ourselves? There is no reason in reason and in law for the distinction. To our minds 0.83 r. 1 (a), (b), (c) and (d), R.H.C. 1980 read with 0.83 r. 3(1), R.H.C. 1980 has the same impact. It concerns and protects the rights of a chargor who is on the brink of having his property sold at an auction, to know exactly where he stands in terms of inter-alia, the amount of advance, amount of repayment and the amount of interest or instalments in arrears at the date of the issue of the originating summons, in order to have the opportunity for repayment, before the fall of the hammer. This is as provided for in s. 266 of the National Land Code 1965.

From a legal and moral standpoint, it would seem to us more incumbent for the chargee to provide particulars in consonance with 0.83 r. 3(3) R.H.C. 1980 when the chargor is facing the prospect of losing his property pursuant to 0.83 r. 1(1) (b) or (c), R.H.C. 1980. This we believe is the legislative intent in enacting 0.83 r. 3(3) to r. 3(7), R.H.C. 1980, and is such reflected in the judgment of James Foong J in Asia Commercial Finance (M) Bhd v KimDen Housing Development Sdn Bhd (1993) 1 MLJ, page 283 on page 288.

However, it cannot be gainsaid, that 0. 83 r. 3(1) and (3), R.H.C. 1980 is far from felicitously drafted, to reflect the true intention of Parliament. To that end, what do we as judges need to do? Do we merely wring our hands and say nothing can be done? This would be far from satisfactory. We dare say we would be failing in our duty if we do not rise to the occasion now, instead of approving helplessly an interpretation of a statute which is certain to subvert the legislative intention and endanger the public good. Effect we feel should be given to the true intention of the legislature even if a provision of a statute is far from being happily enacted. It would be apposite to quote the judgment of Lord Simon of Claisdale in Rugly Joint Water Board v Foothit (1972) 1 All ER 1057, where his Lordship has this to say –

“The task of courts is to ascertain what was the intention of Parliament, actual or to be imputed, in relation to the facts as found by the court … But on scrutiny of a statutory provision, it will generally appear that a given situation was within the direct contemplation of the draftsman as the situation calling for statutory regulation, this may be called the primary situation. As to this, Parliament will certainly have manifested an intention. The primary statutory Intention. But situations other than the primary situation may present themselves for judicial secondary situations. As regards these secondary situations, it may seem likely in some cases that the draftsman had them in contemplation, in others, not. Where it seems likely that a secondary situation was not within the draftsman’s contemplation, it will be necessary for the Court to impute an intention to the Parliament in the way I have prescribed, that is, to determine, what would have been the statutory intention if the secondary situation had been within the parliamentary contemplation (a secondary intention).”

A fortiori in Nothman v Barnet London Borough Council (1978) 1 W.L.R. page 220, Denning M.R. had this to say -

“Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the Judges can and should use their good sense to remedy it by reading words in, if necessary so as to do what Parliament would have done had they had the situation in mind … “ in all cases now in the interpretation of statutes we adopt such a construction as will promote the general legislative purpose underlying the provision.”

Closer to home we have the decision of the Court of Appeal in Akberdin Hj Abdul Kadir & Anor v Majlis Peguam Malaysia [2002] 4 CLJ 689 wherein Gopal Sri Ram JCA said the following –

“Additionally, we observe that the modern approach to statutory interpretation is purposive not literal. Indeed the abandonment of the literal approach these days is evidenced by the speech of Lord Griffiths in Pepper v Hart [1993] 1 All ER 42. This is what his Lordship said at p 50 of the report:

‘The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted.’ “

Against this illuminating dicta, we are more sanguine to carry out that task that we are called upon to do now, to bridge the gap between the conflicting views on the interpretation and observance of 0. 83 r. 3(1), r.3(3), and r.3(6) and r.3(7), R.H.C. 1980 in respect of foreclosure proceedings in the sale of charged property. But before we can do so, we cannot resist making mention of the decision of Low Lee Lian v Ban Hin Lee Bank Bhd, a decision of the Apex Court which touched on whether there was a need to comply with 0.83 before granting an order for sale.

We cannot in all honesty say we have not appreciated the arguments proffered by the Appellant’s Counsel over the impact of Low Lee Lian v Ban Hin Lee Bank Bhd (supra), and the fact that at page 88 of the said judgment his Lordship Gopal Sri Ram JCA in delivering the judgment of the Federal Court had this to say -

“Although each case turns upon its own facts, we propose to consider, by way of illustration only, the usual kind of case with which this court has been faced on numerous occasions. An application under s 256 is opposed by the charger on the ground that the chargee has acted in breach of contract, eg by not releasing moneys due under the loan agreement or by increasing the rate of interest without proper notice or by not giving any proper account of the sums paid by the borrower (emphasis is ours). A judge faced with such complaints will merely say that they do not, on a proper reading of s 256(3) and the authorities which have considered the section, constitute cause to the contrary. He will not, and ought not to, enter upon a discussion of the question whether any or all of these complaints have or are devoid of any merit. Much confusion and difficulty has been occasioned in this area of the law by a failure on the part of those concerned with the task dealing with applications under s 256 to properly appreciate their true role assigned to them by Parliament.”

We observe that this aspect of the dictum appears to posit a somewhat narrow interpretation of what constitutes a cause to the contrary, but then goes against the grain of what his Lordship had said earlier on the same decision at page 88 –

“A judge hearing an application under s 256 must bear in mind that the procedure under the section is meant to be speedy and summary in nature. He is first concerned with whether the chargee has given the appropriate statutory notices as stipulated in the Code. Next, he must ensure that the procedural requirements prescribed by 0. 83 of the Rules of the High Court have been complied with (emphasis is ours). Next he is concerned with the very narrow question whether the material produced before him by the chargor constitutes cause to the contrary.”

We thus find there is thus a certain degree of inconsistency in the learned judge’s approach to the procedural requirement of 0. 83 R.H.C. 1980, and compliance of it in matters involving sale of charged property or foreclosure proceedings.

On our part we are not prepared to surmise why his Lordship had decided on this course of reasoning. Hitherto, we are only prepared to state at this juncture that the procedural requirements of 0.83 r. 3(1), (3), (6) and (7) R.H.C. 1980 must be complied with strictly for the purpose of seeking an enforcement of a charge registered under the National Land Code by way of an order for sale, regardless of the reliefs sought. In this we wish to associate ourselves entirely with the decision of Maimunah bte Megat Montak v Mayban Finance Bhd (supra) that cites in support of its preference to the judgment of Citibank N.A. v Ibrahim bin Othman where this very issue of the procedural requirements of 0.83 r. 3 (3) R.H.C. 1980 was canvassed, and Diamond Peak Sdn Bhd (supra) that affirmed this proposition of law.

As to the question of delay in applying to set aside the order for sale by the Respondent, in our view, lapse of time is no bar to the Respondent’s application to set aside an order for sale that is so fundamentally flawed. We are supported by the following passage in a judgment of the Federal Court in case of Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd at page 42 –

“Nevertheless, it is clear law that the court still retains a discretion to set aside an irregular judgment despite long delay, provided it is satisfied that:

(a) no one has suffered prejudice by reason of the defendant’s delay;

(b) alternatively, where such prejudice has been sustained, it can be met by an appropriate order as to costs; or

(c) to let the judgment to stand would constitute oppression. (See Atwood v Chichester (1878) 3 QBD 722; Harley v Samson (1914) 30 TLR 450.)”.

We would interpolate to say that in the present circumstances the said charged property has yet to be sold by public auction, and thus no third party has suffered prejudice by reason of the Respondent’s delay in applying to set aside the order for sale.

In the upshot, in response to question 2, we say affirmatively that non-compliance with the provisions of 0.83 r.3(3), and r.3(6) and r.3(7), R.H.C. 1980 would render an order for sale defective and liable to be set aside. In view of our finding in respect of question 2, we hold it would be superfluous to answer question 3. As to question 1, Counsel for Appellant at the outset informed the Court that Respondent’s Counsel had conceded to question 1. Hence, it did not necessitate our deliberation on this issue.

For these reasons, we uphold the decision of the Court of Appeal and dismiss this appeal with costs. Deposit to Respondent towards taxed costs.

My learned brother Tan Sri Datuk Amar Steve Shim, Chief Justice Sabah & Sarawak has read the draft of my judgment and has expressed his agreement with it.

Dated this 10^th day of August 2005.

Sgd: PAJAN SINGH GILL

Federal Court Judge

Counsel for the Appellant: Porres P. Royan with

S.M. Yoong and

M F Wong

(Tetuan Shook Lin & Bok)

Counsel for the Respondent: Dato’ Mahinder Singh Dulku

and Harjit Singh a/l Harbans Singh

(Tetuan Harjit Singh Sangay

& Co)