A party must have a proprietary interest in land to intervene in foreclosure proceedings; once an order for sale is perfected, it cannot be set aside except by fresh action.

(Enclosures 11 and 24)

Suria Kumar Dj Paul J

Introduction

[1] Enclosures 11 and 24 are applications to intervene in the present proceeding made by Megafest Sdn Bhd (In Liquidation).

[2] The Proposed Intervener will be referred to as "the Company" hereinafter.

[3] The Company seeks to intervene in this foreclosure proceeding to stay the auction of the property known as H.S.(D) 28798, PTD 29150, Mukim Simpang Kanan, Daerah Batu Pahat, Negeri Johor (the Land) to be held on 3 February 2025, all the proceedings arising thereon from the auction and completion of the judicial sale pending disposal of their appeal to the Court of Appeal.

[4] The Company's appeal to the Court of Appeal is about the dismissal of their suit to recover the Land.

Background Facts

[5] The Company is the original owner of the Land.

[6] The Land was transferred from the Company to the Defendant ("Sonata") on 16 December 2011.

[7] Subsequently, the Company was wound up on 2 July 2012 and a Liquidator was appointed.

[8] The Liquidator commenced an action in the High Court of Muar against Sonata and other related Defendants on 4 December 2013 vide Suit No. 22NCVC-84-12/2013 ("Suit 84") to recover the assets of the Company.

[9] On 27 February 2020, the Plaintiff granted a loan facility for the sum of RM 5,250,000.00 to an associate company of Sonata, Style Manufacturing Sdn Bhd (Style) by way of a third party charge on the Land.

[10] Suit 84 was dismissed by the Muar High Court on 21 February 2022 after a full trial.

[11] The Company has appealed against the said decision to the Court of Appeal. The appeal is fixed for hearing now on 15 October 2025.

[12] In the meantime, the borrower, Style defaulted on the loan repayments and the Plaintiff commenced this foreclosure proceeding.

[13] The application was not opposed by Sonata and the Plaintiff obtained an Order for Sale on 19 September 2024.

[14] Thereafter, the Plaintiff obtained an Order for directions from the Senior Assistant Registrar on 12 December 2014. The Proclamation of Sale was issued on 16 December 2024, and the public auction of the Land was set to be held electronically via e-lelong on 3 February 2025 at 11.00 am (Auction).

[15] However, before encl 11 could be heard, the auction proceeded on 3 February 2025 and concluded at around 11.15 am. with Maple Tricot Sdn Bhd being the successful bidder ("Successful Bidder").

[16] Despite this, the Company insisted on proceeding to stay the judicial sale pending the disposal of their Appeal. The Court then directed the Company to serve all the cause papers for further proceedings on the Successful Bidder".

[17] It is not in dispute that the Order for Sale is still subsisting and has yet to be set aside and the Company's claim to recover the Land stands dismissed at this juncture.

[18] In my judgment, it is pertinent to bear in mind and not to lose sight of the fact that the primary relief sought by the Company in the present applications is to stay the completion of the judicial sale of the Land pending the disposal of their Appeal in the Court of Appeal.

[19] According to the Company, if they succeed in their Appeal, Sonata's title will be set aside, the Plaintiff's charge on the Land will be invalidated and the Land title will be reinstated to the Company.

[20] Therefore, for the Company to obtain the stay, it must first intervene in the present proceeding.

[21] In the circumstances, the Company needs to satisfy the requirements of the adjectival law to intervene as set out in O 15 r 6(2)(b) ROC, 2012. This Rule reads:

"Misjoinder and non-joinder of parties (O 15, r 6)

(2) Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application:

(b) order any of the following persons to be added as a party, namely:"

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter m