Abdul Aziz Mohamad JCA:

This appeal concerns an extension of time to pay the balance of purchase price, granted by the senior assistant registrar to the purchaser (the respondent applicant in this appeal) of the appellant's apartment at a public auction carried out at the instance of the respondents to recover moneys lent to the appellant on the security of the apartment. The appellant's appeal to the judge in chambers against the grant of the extension of time was dismissed and the appellant now further appeals to this court.

The respondents obtained the order for sale of the apartment on 19 April 1994 on their application by originating summons ("the main action"). The public auction at which the purchaser was the successful bidder was held on 18 December 1996. The price was RM287,000, of which the purchaser paid RM28,700 (10%) on that day, leaving a balance of RM258,300. Paragraph 12 of the Syarat-syarat Jualan Lelong ("the sale conditions") provided as follows:

Baki harga pembelian hendaklah dibayar oleh pembeli dengan bank deraf dalam tempoh sembilan puluh (90) hari dari tarikh jualan lelong kepada Mahkamah Tinggi Pulau Pinang ataupun tempoh sembilan puluh (90) hari dari tarikh kebenaran diberi oleh pihak Berkuasa Negeri untuk memindahmilik harta berkenaan (sekiranya perlu). Walau bagaimanapun, jangka masa sembilan puluh (90) hari tersebut boleh dipanjangkan oleh Penolong Kanan Pendaftar atas permohonan pembeli sebelum tamat tempohnya dan sekiranya diterima alasan yang diberi untuk memanjangkan tempoh tersebut. Permohonan ini hendaklah dibuat secara Saman Dalam Kamar.

(The emphasis relating to the consent of the State Authority is original).

According to that paragraph, the purchaser had to pay the balance of RM258,300 within 90 days from the date of the auction. The period could, however, be extended by the senior assistant registrar provided that the purchaser made the application before the period expired. It is common ground that the period expired on 18 March 1997. (The period highlighted by the emphasis is not relevant because no question has arisen that the consent of the State Authority was required for a transfer).

On 12 March 1997, before the expiry of the period, the purchaser filed in the main action an application by summons-in-chambers for extension of time. In support of her application, the purchaser explained by affidavit that on 4 February 1997 the Hong Leong Bank had approved a loan of RM240,000 for the purchaser to purchase the apartment but it would take some time before the loan could be released because certain documents that Hong Leong Bank required the respondents to furnish before the loan could be released had not yet been furnished. One of the documents was the consent of the developers to the sale and assignment of the apartment by the respondents to the purchaser. The purchaser exhibited a letter dated 28 February 1997 from Hong Leong Bank's solicitors to the respondents' solicitors requesting for those documents. According to the letter, another document, besides others, that was required was the respondents' letter of undertaking to do two things, one of which was to refund the loan in the event that the deed of assignment between the respondents and the purchaser could not be perfected. Although nothing has arisen about it, I think that it is appropriate to say, for the sake of completeness, that it seems to me from the mention of the developers' consent and of an assignment from the respondents to the purchaser that there was yet no separate title to the apartment, that the legal owner of the apartment was still the developers as legal owner of the entire land of which the apartment was yet an unsubdivided part, and that the security for the loan given by the respondents was in the form of an assignment of the appellant's rights in respect of the apartment to the respondents and not in the form of a charge under the National Land Code.

Advance copies of the purchaser's summons-in