A registered charge can be challenged if obtained via an invalid instrument; parties must be given the opportunity to present their case in full trials without being dismissed summarily.

[1] Via the writ of summons and the statement of claim, the appellant filed a suit against the respondent and sought for the following reliefs:

"(a) a declaration that the charge is not indefeasible within the meaning of s 340(2) of the National Land Code 1965;

(b) a declaration that the charge is null and void;

(c) a declaration that the charge, the instrument and the memorial are invalid;

(d) an order that the charge, the instrument and the memorial be set aside;

(e) an order that the order for sale dated 16 July 2007, the auction and other related orders in respect of the land made in the Kuala Lumpur High Court OS Proceedings (Suit No: S-24-2394-2005) be set aside;

(f) an order that the Registrar of Titles cancel the entries from the register in respect of the charge, the instrument and the memorial;

(g) costs; and

(h) such further or other orders as this honourable Court deems just and fit."

[2] By way of a summons in chambers, the respondent sought to strike out the appellant's writ of summons and the statement of claim under O 18 r 19(1)(a) and/or (b) and/or (c) and/or (d) of the Rules of the High Court 1980 ("RHC") and/or under the inherent jurisdiction of the Court, namely, under O 92 r 4 of the RHC.

[3] The High Court allowed the respondent's application and forthwith struck out the appellant's writ of summons and the statement of claim. Aggrieved, the appellant now appeals to this Court.

The Facts

[4] The appellant was the registered proprietor of that piece of land held under Geran 10012, Lot 38, Seksyen 51, Bandar Kuala Lumpur ("the land").

[5] The respondent is a financial institution incorporated in Malaysia.

[6] On 16 August 1993, the appellant executed an instrument in Form 16A pursuant to s 242 of the National Land Code (" NLC ") - hereinafter referred to as "the instrument", and by this instrument, the appellant was said to have created a charge in favour of Bank Bumiputra Malaysia Berhad ("BBMB") as trustee.

[7] On or about 3 April 2002, the respondent came onto the title of the land as chargee by way of a transfer of charge from the original chargee, namely, BBMB.

[8] BBMB executed the instrument as trustee. According to para (i) of the instrument, the charge was for the purpose of the repayment of RM186,000,000.00 to the chargee. The instrument also stated that the said sum had been received by the appellant.

[9] The instrument further provides that the repayment was to be in accordance with the terms stipulated in the annexure to the charge ("the annexure").

[10] The appellant and BBMB were the signatories to the annexure. inter alia, the annexure, in material particulars, stated as follows:

(a) that the charge, as specified in the recital was in favour of BBMB as security agent for a number of guarantors who provided monies to Metroplex Berhad pursuant to a guarantee facility agreement dated 16 August 1993 ("GFA");

(b) that, by virtue of cl 2, the undertaking to pay by the appellant was a covenant with the security agent for the benefit of the security agent and the guarantors;

(c) that, by vir