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2025 MarsdenLR 4404
HIGH COURT MALAYA SHAH ALAM
PUBLIC BANK BERHAD – Appellant
Versus
KOK KON SANG – Respondent
[Originating Summons No: BA-24FC-553-06/2024]
A statutory action on a registered charge is valid despite disputes on debt quantum, and non-stamping does not invalidate the document unless it affects its validity.
Headnote:(A) Statutory Notice in Form 16D - Foreclosure proceedings - The Plaintiff foreclosed on property due to default on loans secured by the Defendant. The Defendant was previously declared a vexatious litigant, barring him from legal proceedings without court permission. The court found that the Defendant failed to substantiate his claims against the Plaintiff and dismissed his allegations. (Paras 1-11)
(B) Certificate of Indebtedness - The court relied on the Plaintiff's certificate of indebtedness, emphasizing that disputes regarding the quantum of debt do not affect statutory actions on registered charges. (Paras 9A)
(C) Admissibility of Charge - Non-stamping of documents does not invalidate them unless it affects the document's validity. The charge was deemed valid and properly assessed. (Paras 9B)
(D) Counterclaim - Allegations of breach of contract do not defeat a chargee's rights under a registered charge. The Defendant's claims were found to be frivolous and vexatious. (Paras 9C)
Findings of Court:
The court granted the foreclosure order as the Defendant failed to show legitimate cause against the Plaintiff's claims. Costs awarded to the Plaintiff. (Paras 10, 11)
Issues: The main issues included the validity of the charge, admissibility of the Defendant's claims, and the implications of being declared a vexatious litigant. (Paras 4, 9)
Ratio Decidendi: The court ruled that statutory actions on registered charges are not undermined by disputes over debt quantum and that the non-stamping of documents does not invalidate them unless it affects their validity. (Paras 9A, 9B)
Result: Order for sale granted; Defendant's application for stay dismissed.
[1] In this action, the Plaintiff foreclosed on land held under title No H.S.(D) 97336, No PT 3795 (Lot 7976) di Mukim Damansara, Daerah Petaling, Negeri Selangor ("Property") which had been charged by the Defendant as security for 2 fixed loans and an overdraft facility. Due to default, the Plaintiff terminated the facilities and demanded payment of the debt. The Statutory Notice in Form 16D dated 19 March 2024 was eventually served to commence these proceedings.
[2] Based on the certificate of indebtedness furnished according to the terms of the facilities, as at the date of the hearing on 27 February 2025, the debt claimed by the Plaintiff amounted to:
(a) RM35,052.50 under the RM50,000.00 Fixed Loan (Account No 2-1384066-21) with interest accruing at 6.7% + Base Rate at daily rests
(b) RM41,244.89 under the RM50,000.00 Fixed Loan (Account No 2-1434767-17) with interest accruing at 6.7% + Base Rate at daily rests
(c) RM268,859.54 under the RM220,000.00 Overdraft (Account No 3-1747083-22) with interest accruing at 6.7% + Base Rate at daily rests
The Plaintiff's Base Rate was stated to be 3.25% p.a. and subject to change.
[3] The Defendant was unrepresented and had been previously declared a vexatious litigant not once, but twice, in:
(a) KL High Court Originating Summons No: WA-24NCvC-1904-06/2022 [Institut Akauntan Malaysia v. Kok Kon Sang] dated 4 December 2023
(b) KL High Court Originating Summons No: WA-24NCvC-1212-03/2024 [CIMB Bank Malaysia Berhad v. Kok Kon Sang] dated 16 July 2024]
and is barred from commencing further legal proceedings in any Court in Malaysia except with the leave of the High Court of Malaya. These orders were duly gazetted ("Order and Notification of Vexatious Litigant").
[4] When this matter first came up for hearing before me on 20 February 2025, there were various letters, a notice to attend pre-trial case management and 2 pending interlocutory applications filed by the Defendant, the substance of which were difficult to decipher. The Defendant's papers were filed with random references to law and did not conform to the requirements of the Rules of Court 2012. For identification purposes, the 2 applications may be loosely described as follows:
(a) Notice of Application dated 14 October 2024 (Enclosure 10), which sought to strike out the Plaintiff's Affidavit in support of the Originating Summons; and
(b) Notice of Application dated 17 February 2025 (Enclosure 45), whichsought to stay these proceedings pending disposal of Court of Appeal Civil Appeal No: W-02(IM)(NCVC)-2127-12/2024
The appeal in question related to the Order and Notification of Vexatious Litigant from the proceedings with CIMB Bank Berhad.
[5] In the light of the terms of the Order and Notification of Vexatious Litigant, this Court informed the Defendant in no uncertain terms on 20 February 2025 that the applications in encls 10 and 45 would not be heard until he sought permission, but in the interest of justice, the Court would hear him on any cause to the contrary why an order for sale should not be made on the Originating Summons. Further, this Court allowed a postponement of the hearing of the Originating Summons so that the Defendant could be prepared.
[6] The Originating Summons was heard on 27 February 2025. The proceedings were complicated by the Defendant's unfamiliarity with and/or disregard of the rules of civil procedure. He also claimed to be literally hard of hearing. The Defendant did not understand and/or refused to acknowledge the supplementary affidavits filed by the Plaintiff in these proceedings to update the amount of the indebtedness and the affidavits of service of the same with each postponement of the hearing of the Originating Summons.
[7] On 27 February 2025, the same plethora of allegations raised on 20 February 2025 were repeated and fresh allegations were made about the conduct of counsel for the Plaintiff. The Defendant further declared that he would not apply for leave to file encl
