AFFIN BANK BERHAD v GAINVEST BUILDERS (M) SDN. BHD.
Catchwords
Land Law — Charge — Order for sale — Application under sections 256 and 257 National Land Code — Chargor’s opposition — Meaning of “cause to the contrary” under section 256(3) — Scope of court’s inquiry. Land Law — Charge — Order for sale — Statutory remedy of chargee — Mandatory nature of section 256(3) National Land Code — Court obliged to order sale unless cause to the contrary established. Land Law — Charge — Cause to the contrary — Categories recognised by law — Challenge to validity of charge — Failure to satisfy condition precedent — Contravention of rule of law or equity — Application of Low Lee Lian v Ban Hin Lee Bank Bhd and Thameez Nisha Hasseem v Maybank Allied Bank Berhad. Land Law — Charge — Statutory notice — Form 16D notice under section 254 National Land Code — Service of statutory notice — Whether condition precedent to order for sale satisfied. Land Law — Charge — Service of notices — Contractual deeming provisions — Service by registered post — Whether actual receipt necessary — Effect of agreed deeming clause — Proof of posting versus proof of delivery. Land Law — Charge — Notice of demand and Form 16D — Registered post — Absence of acknowledgement of receipt card (A.R. card) — Whether fatal to validity of service Contract Law — Deeming provisions — Contractual service clauses — Notices deemed served upon posting — Enforceability of contractual allocation of risk regarding non-receipt. Evidence — Proof of service — Registered-post receipts — Tracking records — Statutory declaration of service — Whether sufficient to establish posting and deemed service. Banking Law — Banking facilities — Overdraft facilities — Bankers’ acceptance facilities — Letters of credit — Trust receipt facilities — Default under banking facilities secured by registered charges. Banking Law — Secured lending — Multiple registered charges — Enforcement of security — Chargee’s entitlement to realise charged land upon default. Banking Law — Certificate of indebtedness — Conclusive evidence clause — Evidential effect of certificate issued by authorised bank officer — Burden on chargor to establish fraud, manifest error or inaccuracy. Banking Law — Secured indebtedness — Quantum of indebtedness — Whether indebtedness established — Absence of specific challenge to certified amount. Land Law — Charge — Chargor’s financial difficulties — Economic hardship following Covid-19 pandemic — Whether financial inability to pay constitutes cause to the contrary. Land Law — Charge — Request for postponement of sale — Proposed private treaty sale — Intention to source investors or purchasers — Whether court may defer order for sale pending private disposal. Equity — Cause to the contrary — Whether hardship, sympathy, commercial difficulties or request for indulgence constitute equitable basis to refuse statutory remedy. Land Law — Public auction — Reserve price — Valuation of charged property — Fixing reserve price by Deputy Registrar — Sale process under National Land Code. Land Law — Order for sale — Consequential orders — Vacant possession — Application of sale proceeds — Right of chargee to bid and set off purchase price against indebtedness. Practice and Procedure — Order for sale proceedings — Nature of proceedings under section 256 National Land Code — Enforcement of statutory remedy — Not a claim for money judgment — No adjudication of substantive rights in personam.
Practice Areas
Judges (1)
Judgment
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