Suriyadi Halim Omar J:

Pursuant to a summons for direction hearing, the Deputy Registrar on 7 November 2002 had fixed the gross reserved price at RM27,680,000 for the sale of three pieces of land, which were earlier subject to a High Court order of foreclosure. It was apparent to all and sundry that the summons for direction had a supporting affidavit, which contained a valuation report whilst the defendant had filed no affidavit in reply. With no affidavit in reply forthcoming the latter's position outwardly appeared precarious.

Even though acknowledging that this was a hearing by affidavit counsel for the defendant still requested for permission to be heard, which request was obliged by the Deputy Registrar. After a brave attempt by the defendant, and inspite of the ventilation of his views, the Deputy Registrar had meted out the current order, to be promptly followed by the defendant's notice of appeal.

Although I had stressed the necessity of evidence being given on oath, as it is a principle fundamental to Malaysia's adversarial system, the defendant's counsel before me in this appeal had strenuously applied to express his views again from the bar table, founded on the reason of there being certain fundamental infirmities apparent on the valuation report (Ng Hee Thoong & Anor v. Public Bank [1995] 1 CLJ 609 CA). Much as I abhorred the idea of ignoring the basic tenets of the law of evidence, especially when there was an uncontradicted position taken in the report by the valuer of the plaintiff, due to its intrinsic dissatisfactory reporting, I permitted him to continue (see Re Sama Corporation Sdn Bhd; CI Holding Bhd v. Jabatan Pemegang Harta [1992] 2 MLJ 251). I could not don on blinkers in the circumstances of the case, to borrow the phrase of the defendant's counsel, and ignore the obvious that two plus two could not be six. With advancing the course of justice in mind, I permitted him to assist the court.

The market value of the subject properties, free from all encumbrances, was opined by the plaintiff's valuer ie, CH Williams Talhar & Wong to have a market value of RM27,680,000. As said earlier, with such a positive assertion, and without the availability of any contradictory valuation report, in the normal course of events without more I would not have hesitated to dismiss the appeal with costs. It is a well settled principle that where a party makes a positive assertion, and there is failure on the part of the opponent to dispute or contradict that assertion, the latter is deemed to admit the fact so asserted (Overseas Investment Pte Ltd v. Anthony William O'brien [1988] 3 MLJ 332). Unfortunately the matter before me was not as straightforward as I thought.

The subject lands here were identifiable as lots 147, 167, and 210 with their locations in section 63. A cursory perusal of the valuation report showed that the comparables were lots 777, 778, 924, 926, 163, all being in s. 57. Yet it was quite clear, even during the brief exchanges between the court and the parties that the plaintiff's valuer had failed to indicate the whereabouts of the location of the comparables in relation to the subject properties, in the photostated map supplied in the valuation report. In a gist the defendant had submitted that, with the valuation report peppered with loopholes, the value given to the subject properties were unsubstantiated and thus unsafe to be accepted. To substantiate its stance the defendant adverted to a few cases in the like of Eu Finance Bhd lwn. Sim Sen Organization Bhd [1990] 1 CLJ 361 (Rep); [1990] 2 CLJ 554; [1990] 2 MLJ 357; Re Sama Corporation Sdn Bhd; CI Holding Bhd v. Jabatan Pemegang Harta (supra); Eight Development (M) Sdn Bhd v. Antara Steel Mills Sdn Bhd(Guaman No. 22-390-96).

Touching on the three cases supplied above, I had no difficulty in rejecting them, as they were distinguishable, irrelevant and perhaps prejudicial to the defendant's case. I begin off with the case of Eight Development