Lord Oliver of Aylmerton:

This is an appeal from an order dated 4 August 1983 of the Federal Court of Malaysia (Salleh Abas CJ, Mohd Azmi FJ and Syed Agil FJ) dismissing with costs the appellant's appeal from the refusal of the High Court on 25 August 1982 of an order for the sale of certain land of which the appellant was the chargee.

The first respondent was at all material times the registered proprietor of certain land in the Mukim of Ulu Kinta which had been divided into 59 lots upon each of which it was proposed to construct a dwelling-house. On 14 October 1978 the first respondent applied to the appellant for credit facilities to finance the continuation of the development. At that time the majority of the plots had been sold to purchasers under agreements for sale each of which provided for an initial deposit and stage payments as the building erected on the plot progressed and which contained the following two Clauses:

3. Subject to the provisions of Clause 4 hereof, the purchaser agrees that the vendor may subject the land sold to the purchaser to encumbrances at any time after the signing this agreement.

4. The land sold to the purchaser shall be free from any e