Ramly Ali J:

This is an application by the intended intervenes, RHB Bank Bhd. (the intervenor), videencl. 124 for leave that the intervenor be allowed to intervene in the proceedings under O. 15 r. 6(2)(b)(ii) of the Rules of the High Court 1980 (RHC); and in the event leave is granted, for an order that the order of this court dated 18 November 1997 which set aside an earlier order of this court dated 8 January 1992, be set aside.

The grounds of the said application are essentially as follows:

(i) that the intervenor is the holder of a lien holder's caveat and equitable charge over the land in question;

(ii) based on (i), the intervenor has a legal interest in the subject matter of the proceedings;

(iii) that the intervenor was not aware of the defendant's application to set aside the earlier order dated 8 January 1992;

(iv) that 18 November 1997 order has affected the intervenor's interest in the said land; and

(v) that 18 November 1997 order is invalid in law.

Factual Matrix

The defendant had executed in favour of the plaintiff, The Hongkong & Shanghai Banking Corporation (HSBC) a 3rd party 1st Legal Charge over a piece of land held under C.T. 1817, Lot 597, Mukim Mentakab, for a loan facility granted by the plaintiff to one Patra Sdn. Bhd. (the borrower). The borrower had defaulted in its payment. The plaintiff then filed an originating summons on 28 August 1986 to foreclose the property. The said originating summons was renewed three times. The plaintiff's notice of appointment to hear the originating summons that first came up for hearing on 13 August 1990 was adjourned four times and on the fifth date (8 January 1992) in the absence of the defendant, the court granted the order for sale (8 January 1992 Order) and ordered that a public auction be held on 17 April 1992 (the auction date). As at 8 January 1992, the court records revealed that no affidavit of service to show that the adjourned notice of appointment to hear the originating summons on 8 January 1992 had been served on the defendant; and no supplementary affidavit giving particulars of the account in accordance with O. 83 r. 3 of the RHC. The plaintiff's summons for directions came up for hearing on 30 January 1992 and the plaintiff obtained the relevant directions for sale and the reserved price being RM240,000. On the auction date (17 April 1992) the said land was sold to the bidder Mohd. Azni bin Sudin (the auction purchaser) for RM240,100 ie, RM100 above the reserved price. (The said auction purchaser has been added as a party to the proceedings). The said land was then registered in the auction purchaser's name on 4 May 1992 (ie, within 20 days of the auction date on 17 April 1992).

The defendant then filed an application dated 9 July 1992 (encl. 45B) seeking various reliefs, inter alia, to set aside 8 January 1992 order and including an order that the auction purchaser be added as a party to the proceedings. The defendant's application (encl. 45B) was served on the auction purchaser on 9 August 1992. On 12 August 1992 the judge granted an order, inter alia, that the auction purchaser be added as a party to the proceedings. There were numerous affidavits filed by the plaintiff and the defendant in respect of encl. 45B namely:

(i) Plaintiff's affidavits encl. 49B, 52A, 59A;

(ii) Defendant's affidavits encls. 47A, 51A.

The defendant filed an application on 4 March 1997 (encl. 95A) to amend encl. 45B in accordance with the directions given by the judge on 5 February 1997. The judge directed counsels for the plaintiff and defendant to file in written submissions together with bundles of authorities. The application came up for disposal on 27 August 1997 before the judge and after considering the various affidavits and submissions by both counsels and the authorities, the judge reserved his decision. On 18 November 1997, the judge granted the defendant various orders, inter alia, an order that the earlier order for sale (dated 8 January 1992) and the