[1] This is the defendant’s appeal to the judge in chambers against the decision of the learned deputy registrar given on 17 December 2007 dismissing the defendant’s summons in chambers (encl 6).

BACKGROUND FACTS

[2] The defendant is the registered owner of a piece of land held under Grn 72167 Lot No 15368 in the Township and District of Johor Bahru, Johor Darul Ta’zim together with a double-storey semi-detached house erected thereon identified as No 185, Jalan Dato Suleiman, Taman Century, 80250 Johor Bahru, Johor Darul Ta’zim (‘the land’) which was charged to the plaintiff. Pursuant to an order for sale the plaintiff took out a summons for directions which came up for hearing on 17 September 2007. The defendant was not present at the hearing of the summons for directions. After hearing of counsel for the plaintiff the learned senior assistant registrar fixed the reserved price of the land at RM420,000. Dissatisfied with the reserved price the defendant filed the summons in chambers for an order that the reserved price be fixed at RM550,000. In support of the said application the defendant tendered a valuation report dated 8 October 2007 (exh SLS-2 in encl 7) (‘the defendant’s valuation report’). The defendant’s application was dismissed by the learned deputy registrar on 17 December 2007.

PRELIMINARY ISSUE

[3] At the outset learned counsel for the plaintiff submitted that the defendant’s application is an abuse of process of court. It was submitted that at the initial hearing of the summons for directions before the senior assistant registrar (‘SAR’), the defendant was granted two weeks to file his valuation report. The defendant was not present at the subsequent hearing. The [*574] defendant also failed to file his valuation report. Learned counsel for the plaintiff also submitted that the defendant’s application is an abuse of process of court because the matter is res judicata.

[4] In reply learned counsel for the defendant contended that the defendant was unable to obtain the valuation report within the stipulated time. He had written in to the court applying for an adjournment on 12 September 2007. He said that his absence in court on that day was due to a miscommunication between the defendant’s solicitor and the court’s staff. Learned counsel also contended that res judicata did not apply in this situation. The SAR’s order fixing the reserved price is not a final judgment on merits (see The Pacific Bank Bhd v Chan Peng Leong [1998] 2 MLJ 613). The defendant’s application is merely to vary the reserved price. This is an incidental and interlocutory application. At the time the SAR fixed the reserved price at RM420,000, the SAR only relied on the valuation report submitted by the plaintiff.

[5] In regard to the first preliminary issue, the court notes that the plaintiff did not challenge or dispute the defendant’s averment that his absence in court on that day was due to a miscommunication between the defendant’s solicitor and the court’s staff. In the circumstances it must be taken as admitted by the plaintiff that on the day in question there was indeed a miscommunication and that the defendant could not be faulted for their absence. The plaintiff’s preliminary objection on this point is without merit and is overruled. In regard to the second preliminary issue that the matter is res judicata, the court is of the view that it is not. The fixing of a reserved price is not a judgment or final order in the sense that it determines the point in issue. In making the determination the valuation reports of both the plaintiff and the defendant ought to have been placed before the SAR. The SAR ought to have been given the opportunity to scrutinise the reports carefully, to hear both parties and to take into account all relevant matters. In the circumstances of the case the reserved price of RM420,000 was determined by the SAR without the benefit the defendant’s valuation report. Read together with s