DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA

(BAHAGIAN SIVIL)

[SAMAN PEMULA NO: 24NCVC-952-2011]

Dalam Perkara Seksyen 5 Kanun Tanah

Negara (Akta 56) 1965;

DAN

Dalam Perkara Seksyen 43(b) Kanun

Tanah Negara (Akta 56) 1965;

DAN

Dalam perkara Seksyen 253(3) Kanun

Tanah Negara (Akta 56) 1965;

DAN

Dalam perkara Seksyen 253(4) Kanun

Tanah Negara (Akta 56) 1965;

DAN

Dalam perkara Seksyen 258(1) dan (2)

Kanun Tanah Negara (Akta 56) 1965;

DAN

Dalam perkara Seksyen 259(1), (2)(a), (b),

(c) dan (d) Kanun Tanah Negara (Akta 56)
1965;

DAN

1
Dalam perkara Seksyen 259(3A) Kanun
Tanah Negara (Akta 56) 1965 -
Memorandum Syarat 8;

DAN

Dalam perkara Seksyen 263(2)(d) dan (e)

Kanun Tanah Negara (Akta 56) 1965;

DAN

Dalam perkara Seksyen 266(1) Kanun

Tanah Negara (Akta 56) 1965;

DAN

Dalam perkara Bahagian Tiga Puluh Tiga

(A) Kanun Tanah Negara (Akta 56) 1965;

DAN

Dalam perkara Gadaian Perserahan

12362/2000 Jilid 732 Folio 27 dan
Pemindahan Gadaian Perserahan No.
5255/2002 atas Geran 10012, Lot No. 38,
Seksyen 51, Bandar Kuala Lumpur, dalam
Negeri Wilayah Persekutuan;

DAN

Dalam perkara Perintah Mahkamah

Tinggi Malaya di Kuala Lumpur yang
dibuat pada 16.7.2007, 3.3.2008,
18.9.2008, 6.1.2009, 8.3.2010,
22.4.2010, 12.1.2011, 28.1.2011,
21.2.2011 melalui Permohonan Untuk
Perlaksanaan No. AE: 38-190-2008;

2
DAN

Dalam Perkara Perintah Perisytiharan

Jualan dalam Mahkamah Tinggi Malaya di
Kuala Lumpur untuk Lelongan Awam
bertarikh 30.3.2011;

DAN

Dalam perkara Syarat-Syarat Jualan yang

dicetak dalam Perisytiharan Jualan
Lelongan Awam bertarikh 30.3.2011;

DAN

Dalam perkara Seksyen 4 Akta Syarikat-

Syarikat 1965;

DAN

Dalam perkara Undang-Undang Pasaran

Modal Perkhidmatan 2007 (Akta 671);

DAN

Dalam perkara ‘Guidelines on Real Estate

Investment Trust’ yang dikeluarkan oleh
Suruhanjaya Sekuriti yang berkuatkuasa
pada 21.8.2008;

DAN

Dalam perkara Metroplex Berhad

(Pelikuidasi Sementara Dilantik) lawan
Commerce International Merchant
Bankers Berhad dalam Mahkamah Tinggi
Malaya di Kuala Lumpur Guaman No. D-
22NCVC-177-2011;

3
 DAN

Dalam perkara Metroplex Holdings

Sdn Bhd lawan Commerce
International Merchant Bankers
Berhad dalam Mahkamah Tinggi
Malaya di Kuala Lumpur Guaman No.
22-329-2009;

DAN

Aturan 92 Kaedah 4 Kaedah-Kaedah

Mahkamah Tinggi 1980

ANTARA

METROPLEX BERHAD
(Pelikuidasi Sementara Dilantik) ... PLAINTIF

DAN

1. Commerce International Merchant Bankers Berhad

2. OSK TRUSTEES BERHAD

3. SUNWAY REAL ESTATE INVESTMENT TRUST

4. SUNWAY REIT MANAGEMENT SDN BHD

5. AHMAD FAIRUZ BIN MOHD PUZI

(Sebagai seorang Pegawai Mahkamah
yang menjalankan Lelongan Awam
Putra Place pada 30.3.2011)

6. MAYBANK INVESTMENT BANK BERHAD ... DEFENDAN

4
CIVIL PROCEDURE: Striking out - Action - Application for -
Whether plaintiff had locus standi to institute action against 1 st
defendant - Whether fact that MHSB was a wholly owned subsidiary of
plaintiff vested plaintiff with requisite locus standi to initiate present
action - Whether plaintiff had sufficient interest in auction sale of the
Land - Whether there was duplicity of proceedings and action was
vexatious and an abuse of process - Whether Originating Summons
disclosed any reasonable cause of action against 1 st defendant or other
defendants - Whether a fit and proper case for the court to strike out
plaintiff's claim

CIVIL PROCEDURE: Parties - Misjoinder - Whether 3 rd defendant

was merely an investment trust traded on Bursa Malaysia and ought
not to have been made a party - Whether 2 nd defendant was trustee who
held the Land on trust for 3 rd defendant - Whether legal entity was 2 nd
defendant and not 3 rd defendant - Whether any purpose in joining 3 rd
defendant as a party

CIVIL PROCEDURE: Estoppel - Issue estoppel - Present action was

second attempt by plaintiff to challenge 1 st defendant's exercise of its
rights under the Charge - Whether issue estoppel operated against
plaintiff to bar present action - Whether present action vexatious and
abusive in nature

CIVIL PROCEDURE: Jurisdiction - Registrar - Whether 5 th defendant

improperly and unnecessarily made a party to action - Whether 5 th
defendant acted ultra vires or in excess of jurisdiction - Whether 5 th
defendant's action covered under s. 14(2) of the Courts of Judicature
Act which shielded him from any suit in a civil court - Whether judicial
immunity applied to 5 th defendant - Whether plaintiff's remedy, if any,
in respect of any orders or rulings made by 5 th defendant was to file an
appeal

5
LAND LAW: Sale of land - Auction - Whether plaintiff or the chargor
could question propriety of allowing 2 nd defendant to bid at auction
sale - Whether fact that there were foreigners who purchased Sunway
REIT on Bursa Malaysia made Sunway REIT a foreign entity - Whether
any prohibition in the National Land Code against local companies
such as 2 nd defendant bidding in a public auction as trustee for a REIT,
even if a portion of the REIT was owned or subsequently owned by
foreigners

[1 st to the 5 th defendants applications to strike out the Originating

Summons allowed; Consequential order that the 6 th d efendant be
also struck out as a party to the suit.]

Case(s) referred to:

AMBank (M) Bhd v. Razshah Enterprise Sdn Bhd [2010] 3 CLJ 137
(refd)

Anafartalar Caddesi Sdn Bhd v. Southern Investment Bank Bhd [2003]

2 CLJ 1 (refd)

Bandar Builders Sdn Bhd & Ors v. United Malayan Banking

Corporation Bhd [1993] 3 MLJ 36 (foll)

Commerce International Merchant Bankers Bhd v. Metroplex Holdings

Sdn Bhd [2010] 6 MLJ 385 (refd)

Ho Kok Thin & Ors v. The Sheriff/Registrar of the High Court Borneo
& Anor [1989] 3 MLJ 181 (foll)

Law Hock Hua & Anor v. Timbalan Pendaftar Mahkamah Tinggi Kuala
Lumpur & Anor [2006] 4 MLJ 300 (foll)

Lee Phet Boon v. Hock Thai Finance Corp Bhd [1994] 2 MLJ 448 at
455 (refd)

People’s Insurance Co (M) Sdn Bhd v. People’s Insurance Co Ltd &

Ors [1986] 1 MLJ 68 (refd)

6
Yeng Hing Enterprise Sdn Bhd v. Liow Su Fah [1979] 2 MLJ 240 (foll)

Penolong Kanan Pendaftar Mahkamah Tinggi Johor Bahru v. Tan

Beng Sooi [1997] 2 CLJ 409 (dist)

Thilagavathy d/o Durairajoo v. Penolong Kanan Pendaftar [2002] 1

LNS 148 (dist)

Legislation referred to:

Capital Markets and Services Act 2007

Courts of Judicature Act 1964, ss. 14(1),(2), 68

Guidelines on Real Estate Investment Trust

National Land Code, 1965, ss. 259(1), 259(2)(b)(c), 259(3A), 340,

433B(4)

Rules of the High Court 1980, O. 56

7
 ALASAN PENGHAKIMAN

The facts

[1] Prior to 19.4.2011, Metroplex Holdings Sdn Bhd (“MHSB”) was the

registered and beneficial owner of an integrated commercial complex

known as “Putra Place” which comprises a retail shopping mall, an office

block, Service Apartments and a five star hotel known as “The Legend”

together with 1,323 car parking bays (“the buildings”) all situated on a piece

of land held under Geran No. 10012 Lot No. 38 Seksyen 51, Mukim and

Bandar Kuala Lumpur, Daerah Kuala Lumpur, Wilayah Persekutuan (“the

said Land”).

[2] MHSB had charged the said Land to Commerce International

Merchant Bankers Bhd (“CIMB”), the 1 st Defendant herein, by way of a third

party charge to secure financing facilities granted to Metroplex Berhad, the

Plaintiff herein. There was a default on the charge resulting in foreclosure

proceedings on the said Land initiated by the 1 st Defendant. Despite MHSB’s,

and at times the Plaintiff’s, vehement resistance to the foreclosure

proceedings, the Kuala Lumpur High Court had ordered that the said Land

be sold by way of public auction to satisfy the chargee’s security. MHSB

8
and the Defendant had along the way fought many a battle to stall and

derail the public auction; the saga of which is well documented in the

judgment of Lee Swee Seng JC in Commerce International Merchant

Bankers Bhd v. Metroplex Holdings Sdn Bhd [2010] 6 MLJ 385.

[3] After several abortive sale by public auction, for lack of bidders, the

High Court had fixed 30.3.2011 as the next date of public auction of said

Land together with all buildings thereon. On the date of the auction, there

were two potential bidders who had registered their interest to bid at the

said public auction. One was a non-citizen (an Indonesian national), while

the other was the 2 nd Defendant who was bidding as trustee for the 3 rd

Defendant. However, before the auction could proceed solicitors for

MHSB had objected to the participation of the Indonesian national as the

same would have been in contravention of s. 433B(4) of the National Land

Code, 1965 (‘NLC’). The objection was then referred to the 5 th Defendant

under whose direction the sale was to take place pursuant to s. 259(1) of

the NLC and the Order of the High Court. The 5 th Defendant after hearing

submissions from counsel for MHSB and the 1 st Defendant settled the

issue summarily pursuant to s. 259(2)(b) of the NLC by disqualifying the

9
non-citizen. The end result of that was, only the 2 nd Defendant remained

and was the eventual successful purchaser.

[4] The Memorandum of Sale dated 30.03.2011 issued under hand of

the Senior Assistant Registrar of the High Court of Malaya at Kuala Lumpur

states that the said Land was sold to “OSK TRUSTEES BERHAD (NO.

SYARIKAT 573019-U) TINGKAT 20, PLAZA OSK, JLN AMPANG, 50450

KUALA LUMPUR (SBG PEMEGANG AMANAH SUNWAY REIT)” at the

price of RM513,945,000.00. A sum of RM51,394,500.00 had been paid as

deposit at the auction, leaving the balance purchase sum of

RM462,550,500.00 to be settled within 120 days.

[5] The balance purchase sum was paid in full by the 2 nd Defendant

within the stipulated time. The Deputy Registrar of the High Court of

Malaya at Kuala Lumpur had then pursuant to s. 259(3A) of the NLC issued

the statutory Form 16F (Certificate of Sale by Court) on 18.4.2011. The

Certificate of Sale clearly states that the said Land is sold to OSK Trustees

Berhad (Company No. 573019-U) as trustee for the 3 rd Defendant -

Sunway Real Estate Investment Trust (Sunway REIT) under the terms of a

Trust Deed dated 20.5.2010.

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[6] Thereafter the Certificate of Sale was presented at the Pejabat Tanah

dan Galian Wilayah Persekutuan Kuala Lumpur on 19.4.2011 for

registration of transfer of ownership of the said Land. A new issue

document of title has since been issued wherein the new registered owner

is identified as “OSK Trustees Berhad sbg Pemegang Amanah 1, 1/1 bhgn.

No Syarikat: 573019-U Tertubuh di bawah Akta Syarikat 1965 Level 20,

Plaza OSK, Jalan Ampang, 50450 Wilayah Persekutuan KL.”. Therefore

the new registered owner of the said Land is the 2 nd Defendant as trustee

for the 3 rd Defendant.

[7] In this Originating Summons the Plaintiff is challenging the auction

sale of the said Land on the basis of alleged breaches of the law. The

Plaintiff has prayed for numerous declaratory Orders relating to the sale

with the resultant effect being an Order to set-aside the sale of the said

Land and that the matter be remitted back to the Registrar for fresh

proceedings as provided under s. 259(2)(c) of the NLC. The Plaintiff’s

application primarily rests on the grounds that the sale of the said Land to

the 2 nd Defendant on 30.3.2011 was in breach of:-

(i) the NLC;

11
 (ii) the Capital Markets and Services Act 2007 (Act 671); and

(iii) the Guidelines on Real Estate Investment Trust issued by the

Securities Commission on 21.8.2008.

[8] The 1 st to 5 th Defendants had filed separate applications to strike out

the Plaintiff’s action on various grounds as follows:-

i. the 1 st Defendant’s application as found in enclosure 7;

ii. the 2 nd and 3 rd Defendant’s application as found in enclosure 16;

iii. the 4 th Defendant’s application as found in enclosure 17;

iv. the 5 t h Defendant’s application as found in enclosure 13; and

is supported by various affidavits filed by the Defendants.

[9] After hearing lengthy arguments I had allowed all the above said

applications to strike out the Originating Summons. The Plaintiff has

appealed against my decision in respect of those enclosures. My reasons

for the decision are as follows.

[10] The 1 st Defendant’s application is premised on essentially two

grounds, namely:-

12
i. that the Plaintiff does not have locus standi to institute this action

against the 1 st Defendant; and

ii. the Originating Summons does not disclose any reasonable cause of

action against the 1 st Defendant.

[11] I agree with the 1 st Defendant’s contention on both counts. It is

undisputed that the Plaintiff is not:-

i. the registered proprietor of the said Land; or

ii. the chargor of the said Land; or

iii. a party to the Charge action or the foreclosure proceedings; or

iv. a party to the Orders of Court dated 12.1.2011 and 28.1.2011 in

respect of the Order for Sale of the Land.

[12] The registered proprietor of the said Land was MHSB and not the

Plaintiff. The Chargor was MHSB and not the Plaintiff. The Charge action

was between MHSB and the 1 st Defendant. On 16.7.2007 Justice Abdul

Wahab Patail (as he then was) granted the 1 st Defendant an Order for Sale

of the said Land. The Plaintiff was not a party to that Order or any

subsequent Orders in respect of the sale.

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[13] The Plaintiff alleges that MHSB is a wholly owned subsidiary of the

Plaintiff and that the Plaintiff is involved in the transaction leading to the

creation of the Charge, in particular by way of a Guarantee Facility

Agreement dated 18.8.1993. The Plaintiff therefore alleges a tri-partite

relationship in respect of the Charge and relies on the Federal Court’s

pronouncement in AMBank (M) Bhd v. Razshah Enterprise Sdn Bhd [2010]

3 CLJ 137. The Plaintiff further states that if the proceeds from the sale is

insufficient to meet the Plaintiff’s financial obligations to the 1 st Defendant,

then the Plaintiff bears the burden to pay the difference. In this regard, the

Plaintiff argues that it has an interest in the subject matter of the sale of the

said Land to ensure that the best price is obtained.

[14] I find the Plaintiff’s contention that it has locus standi because it is the

sole shareholder of MHSB is clearly misplaced. It is trite law that a

company is a separate legal entity from its shareholders and directors. In

People’s Insurance Co (M) Sdn Bhd v. People’s Insurance Co Ltd & Ors

[1986] 1 MLJ 68, it was held that a parent company and subsidiary

company, even a 100 percent subsidiary company, are distinct legal

entities. Further in Yeng Hing Enterprise Sdn Bhd v. Liow Su Fah [1979] 2

MLJ 240 the Federal Court found that where the appellant company was

14
not a party to any of the transactions between respondent/plaintiff and the

first defendant, the respondent did not have a reasonable cause of action

enforceable against the appellant. Thus, the Federal Court held the

proceedings instituted by the respondent against the appellant were

frivolous, vexatious and abuse of process; and obviously unsustainable.

[15] Hence, the mere fact that MHSB is a wholly owned subsidiary of the

Plaintiff is irrelevant and does not vest the Plaintiff with the requisite locus

standi to initiate this action. Further, the simple answer to the argument that

the Plaintiff had an interest in the proceedings by virtue of its position as

the benefactor of the Charge and that any shortfall has to be made good by

the Plaintiff is that the sale price of RM513,945,000.00 is more than

sufficient to extinguish the entire financial exposure of the Plaintiff to the 1 st

Defendant. In fact there is surplus fund from the auction sale to which the

6th Defendant as a subsequent chargee has staked a claim. That is the

reason for the 6 th Defendant’s earlier application to intervene in this action

to be made a co-defendant, which I had allowed. Therefore, the Plaintiff

has no sufficient interest in the auction sale of the said Land to cross

threshold locus standi.

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[16] Further, MHSB has initiated an action against, inter alia, all the

Defendants in this suit, in Kuala Lumpur High Court Originating Summons

No. 21NCVC-95-2011, seeking identical relief to that sought in this suit.

There is manifest duplicity of proceedings and this action is vexatious and a

clear abuse of process.

[17] Finally, it is also material to note that the 2 nd Defendant is now the

registered proprietor of the said Land and pursuant to s. 340 of the NLC,

the 2 nd Defendant’s title is indefeasible. The Plaintiff has not asserted that

the exceptions to s. 340 of the NLC apply, nor does the Originating

Summons seek a declaration that the 2 nd Defendant’s title is defeasible and

liable to be set aside by virtue of s. 340(2) of the NLC. In the circumstance,

I find that the Originating Summons does not disclose any reasonable

cause of action against the 1 st Defendant, nor any of the other Defendants.

[18] The position taken by the 2 nd, 3 rd and 4 th Defendants are very similar

to that of the 1 st Defendant. Counsel for the 2 nd and 3 rd Defendants states

that the proper party to challenge the sale is the chargor MHSB and not the

Plaintiff and refers to the Court of Appeal case of Anafartalar Caddesi

Sdn Bhd v. Southern Investment Bank Bhd [2003] 2 CLJ 1 for the proposition

16
that the Plaintiff does not have locus standi to sue for any wrong done to

the owner and/or chargor. Additionally, counsel for the 2 nd Defendant

submits that the 3 rd Defendant is not a legal entity. It is merely an

investment trust that is traded on the Bursa Malaysia and ought not to have

been made a party. The 2 nd Defendant is the trustee who holds the said

Land on trust for the 3 rd Defendant. The legal entity is the 2 nd Defendant

and not the 3 rd Defendant. I find merit in that argument. No purpose is

served by bringing the 3 rd Defendant as a party to this action.

[19] There was a foreign bidder at the auction who was excluded by the

5th Defendant on the basis of s. 433B(4) of the NLC . Now s. 433B(4) of

the NLC bars non-citizens from bidding in an action sale where the

category of use of land is ‘agricultural’ or ‘building’ unless prior state

authority consent had been obtained. Counsel for the Plaintiff argues that

the 3 rd Defendant has amongst its members foreigners and that they would

be equally prohibited from bidding for the said Land via the 2 nd Defendant.

I find that it is not for the Plaintiff to question the propriety of allowing the

2nd Defendant to bid in the auction sale. The Plaintiff has not demonstrated

requisite interest in the subject matter to establish locus standi to raise this

17
argument. Whether or not this argument has any merit, it is for the chargor

and not the Plaintiff to raise it.

[20] In any event, the mere fact that there are foreigners who purchase the

Sunway REIT on the Bursa Malaysia does not make the Sunway REIT a

foreign entity. As pointed out earlier, the REIT itself is not a legal entity.

It is akin to a financial product - a commodity of sorts that is traded on the

stock exchange. Ownership of the REIT is always in a state of flux - as is

expected of a publicly listed and traded valuable instrument. There would

be hundreds or even thousands of buyers and registered owners of the

REIT at any given time. Precisely for this reason it would be neigh

impossible for the Court or the auctioneer to ascertain the ownership of the

entire REIT at the point when the auction is held. I find that there is no

discernable prohibition in the NLC for local companies such as the 2 nd

Defendant to bid in a public auction as trustee for a REIT, even if a portion

of the REIT is owned or subsequently owned by foreigners.

[21] Counsel for the 4 th Defendant has additionally raised the issue of the

dismissal of the Plaintiff’s writ action against the 1 st Defendant in the Kuala

Lumpur High Court Suit No. 22NCVC-177-2011 wherein the Plaintiff had

18
challenged the very Charge and consequently the Order for Sale. In

dismissing that action Justice Zabariah Mohd Yusuf had made a finding

that the Plaintiff lacked locus standi. The present action is therefore the

second attempt by the Plaintiff to challenge the 1 st Defendant’s exercise of

its rights under the Charge. In the circumstance, issue estoppel would

operate against the Plaintiff to bar this action. Again this is clear evidence

of the vexatious and abusive nature of the present action.

[22] The 4 th Defendant further states that it is merely the management

company which has been appointed as agent of Sunway REIT to manage

Putra Place. The 4 th Defendant did not partake in the auction nor is it

vested with any proprietary or beneficial interest. As such, counsel for the

4th Defendant submits, the Plaintiff has no sustainable cause of action or

grievance against the 4 th Defendant. I agree with that. The Plaintiff has

absolutely no cause of action or grievance against the 4 th Defendant.

[23] Now moving on to the 5 th Defendant’s application. The application is

premised on two grounds, namely:-

i. that the Originating Summons does not disclose any reasonable or

recognizable cause of action; and

19
ii. that the action against the 5 th Defendant is misconceived in law and is

an abuse of court’s process.

[24] A perusal of the Originating Summons discloses an attempt to plead

a cause of action against the 5 th Defendant in respect of his decision to

disallow a non-citizen from bidding for the said Land at the public auction

held on 30.3.2011. In fact the 5 th Defendant is being sued as an officer of

the Court carrying out his duties in conducting the public auction, as is

evident from the title to this action. The Plaintiff in its various affidavits and

through submissions of counsel states that the Plaintiff’s cause of action

and complaint against the 5 th Defendant is that he did not carry-out the

auction in accordance to the provisions of the law, in particular the NLC.

The Plaintiff accuses the 5 th Defendant of dereliction of duty and complete

disregard of procedure. Therefore, the Plaintiff argues that the 5 th

Defendant is a necessary party to this action as the Plaintiff’s ultimate aim

in the present proceedings is to set aside the auction sale. Thus, it is clear

that the 5 th Defendant has been brought in as a party to this proceedings as

an officer of the Court conducting the auction pursuant to an Order for Sale

given by the High Court Judge.

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[25] The learned Senior Federal Counsel who appeared for the 5 th

Defendant argues that the action against the 5 th Defendant is an abuse of

process. The argument hinges on s. 14(1) and (2) of the Courts of

Judicature Act, 1964 which provides:-

14. Protection of Judges and other judicial officers.

(1) No Judge or other person acting judicially shall be liable to be sued in any
civil court for any act done or ordered to be done by him in the discharge of his
judicial duty, whether or not within the limits of his jurisdiction, nor shall any order
for costs be made against him, provided that he at the time in good faith believed
himself to have jurisdiction to do or order the act complained of.

(2) No officer of any court or other person bound to execute the lawful warrants
or orders of any Judge or other person acting judicially shall be liable to be sued
in any civil court for the execution of any warrant or order which he would be
bound to execute if within the jurisdiction of the person issuing the same.

(3) .....

[26] It is an undisputed fact that the 5 th Defendant in carrying out the

public auction was executing the orders and directions of the Kuala Lumpur

High Court Judge who had granted the Order for Sale. Therefore, the 5 th

Defendant’s action are clearly covered under s. 14(2) of the Courts of

Judicature Act which shields him from any suit in a civil court within

jurisdiction. In Ho Kok Thin & Ors v. The Sheriff/Registrar of the High Court

21
Borneo & Anor [1989] 3 MLJ 181, where the facts were similar, Haidar J

(later CJM) held that the Registrar:-

“...can properly claim the protection of s. (14)(2) of the Courts of Judicature Act
1964. There is therefore no reasonable cause of action against the first
defendant. In the event the first defendant may pray for the action against her to
be struck out and it follows that under O. 15 r. (6)(2)(a) of the RHC the first
defendant has been improperly or unnecessarily made a party. The proper order
in the circumstances is to strike out the first defendant as a party to the action.”

I am in full agreement with the pronouncement of Haidar J and agree with

submissions of counsel for the 5 th Defendant that the 5 th Defendant has

been improperly and unnecessarily made a party to this action. The

accusation of dereliction of duty on the part of the 5 th Defendant is

completely devoid of substance and is baseless.

[27] Further, it is evident that the 5 th Defendant was conducting the public

auction pursuant to s. 259(1) and (2) of the NLC. That section of the law

provides that a public auction sale shall be conducted by an officer of the

Court and that such officer has powers to summarily settle any questions

arising in the course of the proceedings. Thus, the 5 th Defendant in

conducting the public auction was carrying out a judicial function. There is

no evidence that the 5 th Defendant had acted mala fide; or ultra vires his

22
powers; or in want of jurisdiction. In fact I find that the 5 th Defendant has

correctly interpreted s. 433B(4) of the NIC when he disqualified the

Indonesian national from bidding in the auction sale. The 5 th Defendant did

not act ultra vires or in excess of jurisdiction as he has powers under s.

259(2)(b) of the NLC to do so. In the premise, the principle of judicial

immunity as enshrined in s. 14(1) of the Courts of Judicature Act 1964

would clearly apply. This principle was applied by Rohana Yusuf JC (as

she then was) in Law Hock Hua & Anor v. Timbalan Pendaftar Mahkamah

Tinggi Kuala Lumpur & Anor [2006] 4 MLJ 300. I agree entirely with the

rationale of Rohana Yusuf J in that case and adopt them fully.

[28] The remedy of the Plaintiff, if any, in respect of any orders or rulings

made by the 5 th Defendant lies in an appeal as spelt out in O. 56 of the

RHC and s. 68 of the Courts of Judicature Act 1964. (Please see the case

of Lee Phet Boon v. Hock Thai Finance Corp Bhd [1994] 2 MLJ 448 at 455).

The action of the Plaintiff in bringing this suit against the 5 th Defendant and

the strong language used by the Plaintiff and counsel in making baseless

accusations against the 5 th Defendant is completely unwarranted and

deserves the strongest rebuke.

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[29] Counsel for the Plaintiff relies on the cases of Penolong Kanan

Pendaftar Mahkamah Tinggi Johor Bahru v. Tan Beng Sooi [1997] 2 CLJ

409 and Thilagavathy d/o Durairajoo v. Penolong Kanan Pendaftar [2002] 1

LNS 148 for the proposition that the shield of judicial immunity is not

absolute but can be pierced when the judicial officer had acted mala fide,

ultra vires or without jurisdiction. Though that may be the general

exception to the principle of judicial immunity, there is however, no

evidence of bad faith or of any ultra vires act on the part of the 5 th

Defendant. In the premise the principles enunciated in those two cases do

not apply here.

[30] In arriving at my decision to allow the 1 st to the 5 th Defendants to

strike out the Plaintiff’s case, I am mindful of the pronouncement of

Mohamed Dzaiddin SCJ (later CJ) in Bandar Builders Sdn Bhd & Ors v.

United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. In the premise

of the foregoing I find that the Plaintiff’s claim is obviously unsustainable

and that it is vexatious and an abuse of process. This is a fit and proper

case for me to exercise my powers under O. 18 r. 19 of the RHC to strike out

the Plaintiff’s claim and so I ordered.

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[31] The 6 th Defendant was added on as they had an interest on the

residual of the sale price after settling the outstanding amount due to the 1 st

Defendant; and in the event the Plaintiff had been successful in this action,

to ensure that the charge in favour of the 6 th Defendant remains valid and

subsisting on the said Land. As the suit against the five original

Defendants had been struck out, I made a consequential order that the 6 th

Defendant be also struck out as a party to the suit.

[32] I also ordered that cost be borne and paid personally by the

Provisional Liquidators of the Plaintiff, namely Ong Lai @ Ong Kong Lai

and Wong Chan Mew of Messrs O & M Corporate Advisory Sdn Bhd to the

Defendants as follows:-

a. the sum of RM25,000.00 to the 1 st Defendant;

b. the sum of RM20,000.00 to the 2 nd and 3rd Defendants;
c. the sum of RM20,000.00 to the 4 th Defendant;
d. the sum of RM10,000.00 to the 5 th Defendant;
e. the sum of RM5,000.00 to the 6 th Defendant.

I so ordered as I find that the Provisional Liquidators ought to be more

circumspect and responsible in the manner in which they carry on and

discharge their professional duties. The institution of this action in the face

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of the decision by Justice Zabariah Mohd Yusuf in striking out the Plaintiff’s

action in the Kuala Lumpur High Court Suit No. 22NCVC-177-2011, also on

the locus standi point, only goes to show the frivolous and vexatious nature

of the Plaintiff’s case. The Provisional Liquidators had taken a completely

lackadaisical attitude without regard to the interest of the Plaintiff’s

contributories to whom they are ultimately responsible. The Provisional

Liquidators cannot go on whimsical and fanciful rides at the expense of the

contributories. They had chosen to disregard the views of the learned

Judge in the Kuala Lumpur High Court Suit No. 22NCVC-177-2011 at their

own peril. The baseless accusations and strong intemperate language

used is wholly unwarranted. The Provisional Liquidators ought to pay the

cost of this action personally.

Dated: 3 OCTOBER 2011

[VAZEER ALAM MYDIN MEERA]

Pesuruhjaya Kehakiman
Mahkamah Tinggi
Kuala Lumpur

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Counsel:

For the plaintiff - Chandran Nair & Joachim Maria; M/s Maria &
Associates
For 1 s t defendant - Tommy Thomas, Alan Gomez & Ganesan Nethi;
M/s Tommy Thomas

For 2 n d & 3 r d defendant - Lambert Rasa-Ratnam & Sean Yeow; M/s

Lee Hishamuddin Allen & Gledhill

For 4 t h defendant - NV Sree Harry; M/s Sree Harry & Co

For 5 t h defendant - Nadia Hanim Tajuddin; Jabatan Peguam Negara

Malaysia

For 6 t h defendant - Bahari Yeow & CB Loh; M/s Lee Hishamuddin

Allen & Gledhill

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