A fresh suit to set aside an order requires exceptional grounds like illegality or lack of jurisdiction, and delay must be justified.

Introduction

[1] This is an Originating Summons filed by the Plaintiff on 28 October 2022 to set aside an Order for Sale granted by the KL High Court more than three [3] years ago on 2 July 2019. ["Order for Sale"].

[2] The acute issue brought into focus in this Originating Summons is the scope and ambit of the Federal Court decision of Badiaddin bin Mohd Mahidin v. Arab Malaysian Finance Bhd , 1997 MarsdenLR 2081 FC. ["Badiaddin"].

[3] The Plaintiff argues that Badiaddin allows her to come to Court at any time to set aside the Order for Sale without the need for an appeal, and notwithstanding the passage of time without the need to justify the delay in her application.

[4] For the Plaintiff's learned counsel to assert that any delay in the Plaintiff's application is not relevant and thus need not be explained, I say at the outset I do not accept. That would "be going a bridge too far," to quote the opinion of a worried Lieutenant General Frederick Browning to Field Marshal Montgomery during the final conference on Operation Market-Garden. This quote, since immortalised in Cornelius Ryan's World War 2 classic A Bridge Too Far, and the similarly titled movie, has become an idiom in the English language to denote an act of overreaching for something.

[5] The Order for Sale was granted in the foreclosure Originating Summons because the chargors [the Plaintiff and the 2nd Defendant in this Originating Summons] failed to repay the loan owed to the chargee / the 1st Defendant in this Originating Summons ["CIMB"].

[6] The Plaintiff contends the Order for Sale should be set aside because;

a) This Court has jurisdiction to set aside the Order for Sale.

b) The Order for Sale did not comply with s 8(2A) of the Bankruptcy Act 1967 as CIMB had claimed for interest accruing on the loan after the making of the receiving order on the 2nd Defendant on 25 June 2017; and

c) The supporting affidavit affirmed in the foreclosure Originating Summons, by CIMB, failed to comply with O 83 r 3(3) Rules of 2012 as no particulars of the amount remaining due under the charge as at the hearing date of the Originating Summons was furnished.

[Emphasis Added]

[7] CIMB resists this Originating Summons on the following grounds:

a) The Order for Sale once sealed cannot be set aside as the Court is functus officio [Latin for having performed his duty, having served its purpose]. An appeal must be filed if the Plaintiff wishes to set aside the order.

b) The Plaintiff must file the setting aside within the same proceedings or action in which the Order for Sale was obtained and not in a separate fresh proceeding or new action.

c) There was inordinate delay as this Originating Summons was filed on 28 October 2022 when the Order for Sale was granted on 2 July 2019. No explanation was given for the delay.

d) CIMB was entitled to claim for interest post the bankruptcy of the 2nd Defendant as the Plaintiff and 2nd Defendant were joint borrowers under the loan and owed a joint and several liability to CIMB. Clause 2.1[b] of the Charges states expressly that in the event one of the borrowers is declared a bankrupt the other borrower ie the Plaintiff, who is not a bankrupt, is under a legal obligation to pay interest notwithstanding s 8(2A) of the Bankruptcy Act 1967 .

e) The supporting affidavit affirmed in the foreclosure Originating Summons, by CIMB, had complied with O 83 r 3(3) Rules of 2012 as particulars of the amou