RK Nathan J:

Facts

By a sale and purchase agreement dated 10 August 2000, the plaintiff purchased a parcel known as A-19-B Taman Impian, Leader Garden, Pulau Pinang, situated on Lot No. 4200, Daerah Timur Laut, Tanjong Bungah, Pulau Pinang (together known as the said parcel) from Leader Garden Sdn. Bhd., the developer, at a purchase price of RM410,000. To effect the said sale the plaintiff obtained a loan of RM348,500 by way of a facility agreement dated 5 September 2000 from the defendant. Pursuant to a deed of assignment dated 5 September 2000, the plaintiff surrendered all his rights over the said property and the said land to the defendant. As the plaintiff needed a further loan of RM78,000 the defendant referred the plaintiff to a registered valuer who gave a written market value of the freehold interest in the said parcel at RM650,000.

Somehow in August 2002 pursuant to the power granted under the deed of assignment, the defendant proceeded, by way of a public auction to sell the said parcel at a reserve price of RM480,000 on 21 August 2002. On 27 August 2002 the strata title to the said parcel was issued and registered in the name of Taman Leader Management Corporation. In the meantime the plaintiff also appointed his own valuers on 9 August 2002. The said valuers also valued the said parcel at RM650,000.

Case For The Plaintiff

It is the plaintiff's case that he had not been given any sufficient or reasonable notice of the said sale and that he only came to know of the Proclamation of Sale on or about 7 August 2002. The plaintiff also questioned how the defendant was able to decide that the sum of RM480,000 was to be the reserve price. The plaintiff pleaded that he was never served with any valuation report that had determined the reserve price, nor was he given any opportunity to challenge the said reserve price. So far as the plaintiff was concerned the value of the said parcel was RM650,000 pursuant to the earlier valuation. The plaintiff contended that setting the reserve price at RM480,000 was against all rules of natural justice and also contended that the defendant was in breach of its duty to exercise reasonable care in assessing and affixing the true market value.

Since the strata title has now been issued and registered in the name of the developer, the plaintiff contends that the defendant can no longer proceed with the auction of the said property.

The plaintiff therefore prayed for:

(1) an injunction to restrain the defendant or its agent from selling by way of public auction the said parcel at the reserve price of RM480,000;

(2) a declaration that the action of the defendant in issuing out a proclamation of sale to sell the said parcel at the reserve price of RM480,000 is against the rules of natural justice or in breach of the rules of equity;

(3) Damages

(4) Interests

(5) Costs

(6) Such further or other relief that the court deems fit and proper.

The Application

By way of a certificate of urgency, the plaintiff took out an application (encl. 3) and prayed for an interlocutory injunction; but in encl. 3 the plaintiff only asked for an injunction to restrain the defendant or its agent from selling the said parcel by way of a public auction. In the interlocutory injunction the plaintiff had prayed for a total ban on the sale whereas in the statement of claim, the prayer for an injunction was that the property be not sold at the reserve price of RM480,000.

Findings Of The Court

The plaintiff filed a supplementary affidavit and annexed a copy of the Strata Title registered in the name of Leader Garden Sdn. Bhd., the developer herein. The defendant filed an affidavit in reply and so I thought it was. However in perusing the said affidavit I find that one Andrew Ho Beng Teik contends that he is the vice president of the plaintiff and that he has been authorised by the plaintiff to affirm the said affidavit in reply on behalf of the plaintiff and he contends that the facts deposed to are within his own