Consent of the chargee is necessary for a chargor to sell charged property by private treaty; failure to comply with prior court orders leads to dismissal of the application.

RK Nathan J:

Facts

The plaintiff is the wife of one Yap Sin Guan (Yap). Both are co-owners of premises known as No. 8, Jalan Awan Cempaka Satu, Overseas Union Garden, Off Jalan Klang Lama, Kuala Lumpur (the property). Yap has been adjudicated a bankrupt on 23 March 1989 by the 2nd defendant to whom the said property has been charged. The 1st plaintiff wrote numerous letters to the 1st defendant to obtain his consent as the official assignee to sell the said property by way of private treaty since June 1996 but to date the 1st defendant has not given his consent. Even the 2nd defendant's numerous letters to the 1st defendant has elicited no response.

In the meantime, to resolve the impasse the 2nd defendant wrote a letter dated 15 January 1997 to the plaintiff stating that the 2nd defendant had agreed to the plaintiff's proposal of a composite payment of RM175,000, whereby RM5,000 would be paid in two instalments and the balance of RM170,000 would be paid after selling the property by way of private treaty.

On 7 January 1997 by way of Originating Summons No: S5-25-28-96 (the 1st application) the plaintiff obtained an order for sale of the said property by way of private treaty. Notwithstanding the fact that the 1st defendant was absent, the court gave the 1st defendant the consent to sell, on behalf of Yap, his half share of the said property by way of private treaty. However, it was expressly ordered by the court that the sale by private treaty ought to be effected within six months from the date of the said order and that all proceeds from the said sale ought to be handed to the 2nd defendant in full settlement of the balance due.

Since the plaintiff was unable to effect the sale by way of private treaty within the said six months the plaintiff made a second application by way of Originating Motion No: S4-21-167-97 (the 2nd application). On 30 March 1998 the court made an order compelling the 1st defendant to give his consent for the sale by private treaty of the said property at a price of RM170,000 to one Kok Ken Seng. It was further ordered that if the 1st defendant failed to sign the sale and purchase agreement within three months from the date of the order, the Senior Assistant Registrar of the High Court (the SAR) be empowered to sign the sale and purchase agreement on behalf of the 1st defendant. It was further ordered that the entire proceeds of the sale be paid to the 2nd defendant in settlement of the loan arising out of the said charge and it was finally ordered that the sale by private treaty ought to be effected within six months of the date of the said order.

The sale and purchase agreement was only signed by all parties and in respect of the 1st defendant by the SAR, Kuala Lumpur on 13 November 1998. In the meantime, the purchaser, Kok Ken Seng, was only able to obtain a loan of only RM136,000 from the Malayan Banking Berhad to finance the purchase on 25 February 1999. Notwithstanding the delay, the 2nd defendant, by way of a letter dated 8 March 1999 said as follows:

Please be informed that our clients are agreeable to your client's request for extension of time to pay to our clients the said composite sum of RM170,000.00 provided the purchaser pay to our clients an upfront of RM34,000.00 (refundable free of interest) being the difference of the loan amount of RM136,000.00 and composite sum of RM170,000.00 on or before 16 March 1999.

The plaintiff was only able to send the said sum of RM34,000 by way of a letter dated 18 March 1999 and which said letter was received by the 2nd defendant's solicitors on 22 March 1999. The 2nd defendant's solicitors' reply letter dated 21 April 1999 reads as follows:

1. Our clients are agreeable in granting your clients an extension of 4 months from 21 April 1999 (expiring on 21 August 1999) to fully settle the balance sum of RM136,000.00.

2. In this respect our clients have rein