Su Geok Yiam JC:

This is an appeal to the judge in chambers (encl. 31) by the defendant against the decision of the learned Senior Assistant Registrar dated 18 January 2002 allowing the plaintiff's application vide an originating summons filed on 10 April 2000 (encl. (2)) and ordering that the immovable property of the defendant be sold by public auction for nonpayment of arrears of rates due and owing to the plaintiff together with interest and costs.

Facts

The facts are, briefly, as follows:

The defendant is the registered proprietor of premises known as No. 1, Lebuh Tek Soon, 10000 Penang ("the property"). The defendant operates a multistoreyed car park known as the Komtar car park on the property.

The plaintiff is the local authority of the area where the property is situated.

The defendant failed to pay to the plaintiff the arrears of rates in respect of the property for the period from 10 April 1993 to 31 December 1999 ("the said period") amounting to RM835,264.07 ("the arrears of rates"). The plaintiff successfully instituted proceedings against the defendant pursuant to s. 151 of the Local Government Act 1976 ("the LGA") for the attachment and sale of the property in order to recover the arrears of rates together with interest thereon and costs.

Senior Assistant Registrar's Order For Attachment And Sale

On 18 January 2002 the learned Senior Assistant Registrar ("SAR") ordered that the property be attached and sold in order to pay the arrears of rates together with interest thereon at 6% per annum from 29 March 2000 which is the date of the service of the Form H notice until realisation and costs. The SAR also ordered that the property be sold by public auction on 17 April 2002, that the reserve price and other directions as regards the sale are to be fixed by the SAR of the High Court, Penang, that the defendant deliver vacant possession of the property within seven days of the date of sale, that costs as against the defendant be assessed and that the relevant authorities register the name of the purchaser ("the said order").

Grounds Of Appeal

In this appeal the defendant is seeking to set aside the said order on the following grounds:

First, the defendant says that the whole proceedings are a nullity because the plaintiff has adopted the wrong procedure. According to the defendant the correct procedure is for the plaintiff to register a charge over the property in respect of the arrears of rates and thereafter to issue to the defendant a Form 16D notice pursuant to s. 254 of the National Land Code 1965 ("the NLC"). It is only upon the failure of the defendant to comply with the Form 16D notice that the plaintiff can apply for an order for the sale of the property by public auction pursuant to O. 83 of the Rules of the High Court 1980 ("the RHC").

Secondly, the defendant says that there is no liability on the defendant to pay the amount claimed by the plaintiff as there are no arrears of rates due and owing by the defendant to the plaintiff because no half-yearly assessment bills requiring the defendant to pay rates for the duration of the said period were ever sent by the plaintiff to the defendant and the plaintiff cannot aggregate in one lump sum the arrears of rates for the said period.

Thirdly, the defendant says that the plaintiff's claim must fail because it is time barred. On 7 April 2003 having heard lengthy submissions from both the learned counsels for the parties stretching over several days and having considered the written submissions and further written submissions of Miss Karin Lim, learned counsel for the plaintiff, the authorities cited by Mr. Thayalan and Dato' Lakhbir Singh, learned counsels for the defendant and Miss Karin Lim, and the affidavits I dismissed the defendant's appeal with costs.

I now give my reasons for so doing.

First issue: Whether the correct procedure is for the plaintiff to register a charge over the property and thereafter to issue a Form 16D notice to the defendant be