2. Express conditions to charges can be found
in the Charge Annexure (charge agreement).
These are conditions imposed by the parties
that are not mentioned in the NLC provisions.
3. S.249 – Fixed obligation of chargor:
1) That chargor will pay all sums secured. i.e.
repay the loan.
2) Pay rent (land revenue) to the State
Authority.
3) Observe and perform all conditions to
which the land is subject.
(see s.250 for obligations of the chargor that
can be altered or amended.)
4. S.251:
A chargee must not without reasonable
cause, withhold consent to the granting by
the chargor of any lease/tenancy.
5. A charge that fails to comply with fixed
requirements is VOID.
Examples:
1) Where the charge is to secure an
UNENFORCEABLE LOAN. (e.g. a loan that
does not follow the provisions of the
Moneylenders Ordinance 1951 – see Phuman
Singh’s case and Associated Finance Corp
Ltd. V Poomani.
6. 2) Where title of the chargee is defeasible
due to fraud in the transfer, the charge is
also null and void. (Owe Then Kooi’s case)
3) Where consideration for the charge over
the land is PAST CONSIDERATION.
(See Lau Ngiik Ping’s case)
7. Upon default of the charge (i.e. non-payment
of loan and interest), the chargee can enforce
the charge and has 2 remedies:
1) Sale by public auction of the land. (Pt. 16,
Ch. 3 NLC))
2) Possession. (Pt. 16, Ch. 4 NLC)
Both remedies can be applied for
simultaneously. (s.253(2))
8. This remedy is also popularly referred to as
‘foreclosure proceedings’.
NLC prescribes different procedures for the
application for an order of sale in respect of
Registry Titles and Land Office Titles. ( See
difference in these titles in s.77(3))
Registry title (ss256-259)
Land Office Title (ss266-269)
9. 1. Where breach of charge agreement hs
continued for more than a month, the
chargee will serve on the chargor a Notice
in Form 16D.
10. Contains 3 things:
a) specifies the breach in question.
b) requires it to be remedied within 1 month.
c) warns the chargor that if the notice is not
complied with, the chargee will take
proceedings to get an order for sale.
However, if the principal sum secured is
payable ON DEMAND (must ascertain this
from the Charge Annexure), the chargee will
issue Form 16E (see).
11. 2) After the period to remedy the breach or
to pay the sum has lapsed, the chargee
may make an application to the High
Court by way of Originating Summons
supported by an affidavit for an order for
sale of the land. (See s.256(2), cross refer
to Rules of the High Court 1980, Order
83)
12. 3) Court will grant order for sale. (See
s.256(3) NLC):
“On any such application, the Court shall
order the sale of the land or lease to which
the charge relates unless it is satisfied of the
existence of cause to the contrary.”
13. See s.257(1):
a) provide for sale to be by public auction.
b) will require the sale to be held on a date
not less than 1 month from the date of the
order.
c) specify the total amount due to the
chargee at the date of the order.
d) require the Registrar of the court to fix a
reserve price for the purpose of sale.
14. (e) that a bidder during the auction must
have 10% of the reserve price;
(f) that the 10% is deposited into the
chargor’s account.
(g) specify that the balance purchase price be
paid within 120 days from the date of the
sale, with no extension.
(h) that is not paid within 120 days, the
deposit of 10% will be forfeited.
15. 4) The Court Registrar will serve a copy of the
order for sale on the chargor. (s.258(1)(a))
and advertise the order for sale to be done
by public auction. (newspapers and
posters).
5) Chargee will prepare the conditions of sale
according to the court order and shall
deposit the IDT/duplicate lease to the
court a week before auction date.
16. 6) Under section 259, sale will be carried out
by an officer of the court or a licensed
auctioneer. (see s.259(2) as to duties of
the auctioneer).
17. 7) The successful bidder (‘purchaser’) in the
public auction, upon paying the full
purchase price, will receive from the
auctioneer 2 things:
i) Form 16F (CERT. OF SALE BY COURT)–
registrable as an instrument of dealing at
the Land Registry office.
ii) The IDT/duplicate lease.
18.
19. 4 Issues:
1) Whether serving the wrong notice of
demand effects the charge action?
2) Whether failure to specify the exact breach
rendered notice ineffective?
3) Whether duration of notice of demand can
be changed?
4) Effect of failure to serve the Notice of
Demand according to provisions of the
NLC.
20. V.A.M Hussain v BP Malaysia Sdn. Bhd. [1970]
Held:
The proper notice to issue where the principal
sum is payable on demand should be Form
16E.
21. Fed. Cit. held:
“Form 16D can be used whether or not the
principal sum is payable on demand. Form
16E can only be used where the principal sum
is payable on demand.”
Result? CONFUSION.
22. Federal Court cleared the confusion and held:
(a) Where there has been a breach of any
obligation Form 16D may be used,
regardless of the nature of the obligation,
including the payment of the principal
sum on demand; and
(b) where the principal sum is payable on
demand then either notice in Form 16D or
Form 16E may be served.
23. If Form 16E has been served, and there is
non-compliance by the chargor, there is no
need to follow up with Form 16D.
Can straightaway apply for an order for sale.
(See Bank Bumiputra Malaysia Bhd. v.
Mahmud [1989] 1 MLJ 381.)
24. No. If the details of the breach had been
specified in detail in an earlier letter of
demand, failure to specify the details of the
breach in Form 16D will not effect its validity.
(See RHB Bank Bhd. lwn Syarikat Sungei Nal
Timber Industries Sdn. Bhd. [2007] 4 MLJ
567.)
25. S.254(1)(b) stipulates the period to pay the
amount demanded in the notice of demand
(Form 16D) to be ‘within 1 month… or such
alternative period as may be specified in the
charge.’
Q: whether the chargee could stipulate a
period lesser than one month?
26. Court of Appeal (literally interpreting the
words in s.254(1)(b)) held that the chargor
and chargee may agree to accept a statutory
notice of less than one month.
NLC expressly permits this.
27. See s. 431(1) NLC on method of service.
What is the method of service for a company?
S.431(1)(b)(ii) – delivering the notice at the
body’s registered office or usual or last
known place of business to its servant or
agent – or leaving it in a cover addressed to
the registered office or last known place of
business – or pre-paid registered post at the
body’s registered office or last known place
of business .
28. In Kekatong Sdn. Bhd v BBMB [1998] , the
App./chargor had changed its registered
office address and had duly informed the
Registrar of Companies in Form 44.
Chargee enforced the charge and sent Form
16D to the previous registered address.
Order for sale given. App. applied to set it
aside on the ground that there was failure to
serve the notice of demand.
29. Such service was not in accordance with the
NLC and was therefore VOID.
Ratio: (Gopal Sri Ram, JCA):
1) Ownership of land is a fundamental right
under Art. 13 FC. Any deprivation must be
in strict compliance of both, substantial
and procedural law.
2) Effect of order for sale and the subsequent
public auction, etc. are designed to
permanently deprive a registered
proprietor of his land.
30. 3) The provisions of the NLC that govern the
enforcement of registered charges exist
not only as a means of a lender recovering
his money but also for the protection of
the chargor. The court, by treating the
service provision in s. 431(1) NLC as
mandatory will ensure that the protection
given by the NLC is not rendered illusory.
Thus, the order for sale was void as F.16D
was not served in the manner prescribed by
the NLC.
