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2021 MarsdenLR 522
HIGH COURT MALAYA SHAH ALAM
SHATILA CHE SAAD – Appellant
Versus
M MISNAN ALANG & ANOR – Respondent
[Originating Summons No: BA-24NCvC-1281-10/2020]
The ownership and right to vacant possession of a property can be transferred through auction and assignment agreements, irrespective of prior occupancies or defaulting parties.
Headnote:(A) Financial Services Act 2013 – Sections 2 and 3; Specific Relief Act 1950 – Section 7; Rules of Court 2012 – Order 89 – Vacant possession of property – Plaintiff, a successful auction bidder, seeks vacant possession after Defendants defaulted on loan payments – Defendants raised preliminary objections, citing procedural defects which were dismissed as frivolous – Court affirmed that Plaintiff held all rights to property post-auction and could seek eviction of the Defendants – Key issue is whether Section 7 of SRA applies only to landlord-tenant situations, which the court clarified it does not – Defendant's argument regarding the necessity of the power of attorney being revoked was also rejected (Paras 2, 5, 12, 23, 42, 47-49).
(B) Court's findings confirmed the clarity of the assignment of rights by Ambank to the Plaintiff upon successful auction, thereby supporting the Plaintiff's claim for possession (Paras 28, 30, 37).
(C) The Defendants failed to demonstrate any substantial miscarriage of justice resulting from the Plaintiff's procedural compliance (Paras 19, 57-58).
Findings of Court: Plaintiff declared the owner of the Property; Defendants ordered to vacate within 14 days, with damages assessed for loss of use (Paras 62(1)-(7)).
JUDGMENT
A. Introduction
[1] This is an application by the Plaintiff for vacant possession of the property known as Unit C-1-12, Block C, Pangsapuri Seri Perantau, Pesiaran Sireh Junjung / KS4, 42000 Pelabuhan Kalang, Selangor Darul Ehsan ("the Property") from the Defendants.
[2] The facts in this case are not in dispute.
[3] The Plaintiff was the successful bidder of the Property at an auction on 26 November 2018 held by Ambank (M) Berhad (formerly known as AmFinance Berhad) ("Ambank") who is the assignee of the Property pursuant to a Composite Loan Agreement and Assignment and Power of Attorney both dated 7 October 2003 ("CLAA") between the Defendants and Ambank.
[4] The Defendants had purchased the Property from Perbadanan Kemajuan Negeri Selangor ("PKNS") pursuant to a Sale and Purchase Agreement dated 28 August 2003 between the Defendants and PKNS ("the Principal SPA"). They had absolutely assigned their rights, title, interest, and benefits in the Property to Ambank pursuant to the CLAA as security for the loan facilities granted by Ambank in favour of the Defendants to finance their purchase of the Property.
[5] The Defendants subsequently defaulted in their loan repayments to Ambank in breach of the CLAA.
[6] Following the Defendants' breach of the CLAA, Ambank pursuant to the rights, title and interests in the Property assigned to it under the CLAA, auctioned off the Property on 26 November 2018.
[7] The Plaintiff after successfully bidding for the property at the auction on 26 November 2018, signed the Declaration of Sale (Perisytiharan Jualan) on the same day and executed the Deed of Assignment with Ambank on 27 August 2019 ("DOA") to transfer the ownership interest in the Property from Ambank to her.
[8] Ambank, as the absolute beneficial owner of the Property under the CLAA, pursuant to the DOA, in consideration of the purchase price of RM70,000.00 (which receipt it had acknowledged in the DOA) had assigned all its rights, title, interests and benefits in and over the Property to the Plaintiff and the Plaintiff accepted the assignment of the Property from Ambank.
[9] The Defendants, although informed of the Plaintiff's purchase of the Property and served by her solicitors a formal Notice of Eviction and Delivery of Vacant Possession (Notis Pengusiran dan Serahan Milikan Kosong) dated 20 September 2020, have to date, refused to vacate the Property and to deliver vacant possession of the Property to the Plaintiff.
[10] On 11 October 2020, the Plaintiff filed the originating summons in encl 1 ("OS") seeking vacant possession of the property. In the OS, the Plaintiff sought for a declaration that she is the owner of the Property; that the Defendants are occupying the Property without her licence or consent; that the Defendants are to vacate the Property and deliver vacant possession to her within 14 days from the date of this Court's order; that the Defendants are restrained from using or occupying the Property without the Plaintiff's consent. She also sought for the costs of this action and compensation from the Defendants for her loss of use of the Property.
[11] At the conclusion of the hearing of encl 1, this Court allowed the Plaintiff's application.
[12] The full grounds for this Court's decision is set out in this Judgment.
B. Defendants' Preliminary Objection
[13] In their affidavit in reply, the Defendants do not deny that they had defaulted in their loan repayments to Ambank, in breach of the CLAA. However, they raised a preliminary objection and several issues of law, which objection and issues were submitted by the learned counsel for the Defendants to this Court during the hearing of encl 1.
[14] The Defendants' preliminary objection to the Plaintiff's OS is that the OS is defective and should be struck out because the Plaintiff's affidavit in support was affirmed one day before the filing date of the OS.
[15] The same preliminary objection had been raised by the defendant in S Vigneswaran M Sanasee v.
