Abdul Malek Ahmad J:

This is an appeal by the claimant against the decision of the learned Senior Assistant Registrar on 14 May 1988 dismissing their claim for the property attached by the plaintiff in execution of judgment obtained in default of appearance against the defendant on 14 January 1987 for RM429,202.76 sen with interest and costs. The property had been attached at No. 76, Jalan Sultan Iskandar, Ipoh (the premises) on 27 January 1988 which at the time of the attachment was occupied by the claimant but which at the time of the judgment was occupied by the defendant.

It is pertinent to note that this was in fact the second attachment on the premises, the first being on 21 August 1987 but this was abandoned after discussions between the parties. It is also relevant to take into account that the claimant had in fact been incorporated on 14 April 1987 with a RM50,000 issued and paid up capital and RM300,000 authorised share capital.

According to the managing director of the claimant (who had worked for the defendant for 16 years before it was wound up on 16 April 1987) in his affidavit dated 29 January 1988 (encl. 11), by a sale agreement dated 13 April 1987 (LW3) he and four others had purchased from the defendant chattels (RM3,000) and cloth materials (RM47,000) amounting to RM50,000 which purchase was for the purpose of contribution of their respective capital in the claimant which was incorporated the following day.

This was formalised by letter dated 2 June 1987 (LW4) when they transferred the said chattels and cloth materials to the claimant in consideration of 50,000 shares of RM1 each. Since then, the claimant had purchased from 28 suppliers more cloth materials totalling approximately RM459,735.49 sen (LW5). As from 1 May 1987, the claimant became the tenant of the said premises at RM1,900 a month (rental receipt - LW6) as evidenced by the tenancy agreement commencing on 1 June 1987 between the claimant and Tan Soo Choo dated 28 June 1987 (LW7). All these facts were later supplemented by another affidavit from the same deponent (encl. 22) which, apart from stating the same details, exhibited the remainder of the rental receipts and the names of the 28 suppliers from whom the cloth materials had been purchased.

The hearing before the learned Senior Assistant Registrar took a number of days with the claimant having called not less than 15 witnesses, 12 of whom testified that it was the claimant who had bought the said goods attached from them on different dates, the details of which were amply supported by invoices, account books, delivery orders and other documents. However, all these were rejected by the learned Senior Assistant Registrar who held that there were only two issues to be decided:

(a) Whether the claimant had purchased the goods as listed in the inventory from the judgment debtor at the time of the first intended attachment; and

(b) Whether the purchase was done bona fide , if the answer to the first issue is positive.

In the consequence, he relied on Sigma Air Conditioning Sdn. Bhd. v. World Wide Agencies [M] Sdn. Bhd.[1979] 1 MLRH 404, [1980] 1 MLJ 179, and was of the view that there was no bona fide purchase in the circumstances.

I am aware that this appeal is by way of rehearing but at this injuncture there would be no oral evidence of witnesses and the appeal Court is dependant on the notes of evidence taken before the Senior Assistant Registrar. On a question of fact, I should not, in the normal nature of things, question the decision of the presiding officer who had seen and heard the witnesses who appeared before him as he would be at an added advantage in being able to observe their demeanour at the time of giving their testimony.

Before me, Counsel for both the execution creditor and claimant chose not to submit orally but relied on their somewhat lengthy written submissions and affidavits. I had had the opportunity over the 3-week period of adjournment to painstakingly peruse through these