Gopal Sri Ram JCA:

This appeal is directed against the judgment of Clement Skinner J in the High Court at Kuching, Sarawak granting the plaintiff, the chargee, an order for sale over the defendant's land. The facts are not in dispute and have been admirably dealt with by the learned judge.

By memorandum of charge dated 31 January 2000 the defendant charged its lands held under Lots 394, 395 and 396 to the plaintiff to secure a fixed loan of RM1,620,000 and an overdraft of the same amount. The annexure to the charge contains a cl. 30 which reads as follows:

It is hereby agreed between the Chargor and/or the Customer and the Chargee that this Charge shall in addition to the terms and conditions herein be subject to the express conditions, if any, set out in the Chargee's Letter of Offer and in the event of any conflict, discrepancies of variance the express conditions set out in the Chargee's Letter of Offer shall prevail.

This clause necessitates us to refer to the relevant paragraph of the letter of offer dated 6 May 1997. That paragraph reads as follows:

Notwithstanding the provisions relating to the rate of interest as hereinafter provided the Bank shall be entitled at any time and from time to time hereinafter to vary at its absolute discretion such rate of interest by serving a notice in writing of its intention and such amended rate of interest shall be payable as from the date specified in the said notice. Service of such notice may be affected by ordinary post.

Before us, learned counsel for the defendant argued two points either of which he said warranted the appeal being allowed. The first has to do with the non-compliance of O. 83 [rr. 3 and 6] of the Rules of the High Court 1980. The complaint is that particulars of interest in accordance with those rules were not provided by affidavit. Counsel for the defendant submits that the plaintiff's summons for sale ought therefore to have been dismissed. But, as pointed out by learned counsel for the plaintiff, this ground was not raised in the court below and finds no mention in the defendant's memorandum of appeal. We have said often enough that this court will not permit an appellant to take a point not raised at first instance or not pleaded in his or her memorandum of appeal. It is a question of fairness to the primary judge who has been deprived of an opportunity to express his views on the point. It is also a matter of fairness to the respondent, who, having succeeded on the grounds advanced in the court below has a legitimate expectation that he would not be confronted in the appeal with new grounds of attack which are raised without proper amendment to the memorandum of appeal. Accordingly, we think that there is nothing in the first point.

So far as the second point is concerned, the defendant's argument is that the order for sale ought to have been refused on the ground that the plaintiff had varied its interest rate without prior notice to the defendant. He argued that the notice of demand served on his client was defective because it included interest in respect of which no prior variation notice had been given. Accordingly, sums had been demanded which were not due from his client. Counsel then submitted that following the Federal Court's decision in Low Lee Lian v. Ban Hin Lee Bank Bhd [1997] 2 CLJ 36, the demand served on his client was invalid and for that reason the order for sale should have been refused.

In our judgment these arguments are, for several reasons, bereft of any merit. In the first place, as submitted by Mr Wong of counsel for the plaintiff, with which submission we agree, since it is the defendant who alleges that undue sums were demanded, the burden of proving this fact is, in the ordinary way, on the defendant. Having examined the material in the record of appeal, we find that there is nothing to show that the demand contains sums not actually due. Therefore, the defendant has, in our opinion, plainly failed to establish its comp