Siti Norma Yaakob JCA:

The axis of the dispute in these proceedings is whether Standard Chartered Bank, a foreign bank and the 1st respondent before us can, after 1st July 1994, continue to pursue matters relating to these proceedings in its name as after that date it had already sold and vested all its banking business in

Malaysia to Standard Chartered Bank Malaysia Berhad, a separate legal entity incorporated locally and who we refer to as the successor bank. The 1st respondent as the predecessor bank, states it can, a contention that was upheld by the trial Judge whilst Leong Moh Sawmill Co Sdn Bhd, the appellant before us, states otherwise and to appreciate the many issues raised by them, we begin by setting out the factual background of the case.

At all material times, the appellant was the registered proprietor of two separate parcels of land held under HS(D) 17288 PT 253, Mukim Batu, Wilayah Persekutuan and HS(D) 14833 PT 9497 also in the Mukim of Batu, Wilayah Persekutuan (collectively referred to as "the lands"). It charged the lands to the predecessor bank, then known as Chartered Bank to secure loans granted to it by the predecessor bank in 1979. The appellant defaulted in the repayment of the loans and the predecessor bank as the chargee instituted foreclosure proceedings against the appellant in Kuala Lumpur Originating Summons No F 981/84.

On 4 October 1985, the predecessor bank obtained an order of Court to sell the lands by way of public auction. Since that date various attempts at auctioning the lands were either aborted or postponed on various grounds and finally fixed for 2 June 1993. However, on the eve of the auction date, the parties agreed to adjourn the auction indefinitely to enable a contributory to the appellant to settle the matter out of Court. In the meantime on 25 March 1988, by an order of Court, the appellant was compulsorily wound up under the provisions of the Companies Act 1965 in winding-up petition No: 42-22-86 instituted by the Inland Revenue Department against the appellant.

When the appellant's attempts at settlement failed in 1993, the predecessor bank filed a summons in chambers on 2 November 1993 for a fresh auction date and further directions for sale. This summons for directions was not heard until a year later as the Court file had gone missing and whilst waiting for the file to be reconstructed a number of events occurred that affected the status and business of the predecessor bank.

On 12 April 1994, after having obtained the approval of the Minister of Finance under s. 49(7) of the Banking and Financial Institutions Act 1989 (the Act) and by way of a sale and purchase agreement, the predecessor bank transferred and vested all its banking business in Malaysia to the successor bank. In Kuala Lumpur originating summons No: D3-24-88-94, both the predecessor bank and the successor bank jointly applied to give effect to the sale and purchase agreement under s. 50(1) of the Act . On 28 April 1994, the Court granted a vesting order and, inter alia, fixed 1 July 1994 as the effective date for the transfer of the business of the predecessor bank to the successor bank.

By November 1994, the Court's missing file was reconstructed and on l December 1994, the summons for directions filed by the predecessor bank to fix a new date of auction and further directions for sale was heard. 13 March 1995 was identified as the new auction date together with other terms and conditions of sale. It must be noted here that despite the change in the status of the predecessor bank after the transfer date, all proceedings in this matter continued in the name of the predecessor bank as the plaintiff. Thus the summons in chambers carried no change in the heading and citation and the proclamation of sale upon which the auction was conducted on 13 March 1995 still had the predecessor bank as the plaintiff.

At the auction on 13 March 1995, the 2nd and 3rd respondents had bid successfully for one p