两间店铺两个业主, 其一业主申请将其拍卖 [1997] MLJU 216

原告是两家店铺的业主。原告之后将店铺的1/2租给被告。
被告在约满后通知原告，他愿意根据租约的第12条文购买原告那1/2的拥有权。原告表示同意。
然而原告之后通过法庭申请准拍卖上述的两家店铺。被告对此申请提反对。被告表示由于当初合约有提到被告有权购买此产业，因此原告无权通过法庭申请公开拍卖这两家店铺。
被告申请介入原告的拍卖程序。
法庭拒绝了被告的介入申请。
Clearly Enclosure 7 which was filed on 12.6.97 was filed about one and a half months later. Whilst it can be argued that Enclosure 7 was not in reply to any affidavit filed by the plaintiff, I rejected Enclosure 7 on two grounds. Firstly, if Enclosure 7 is held not to be a reply to an affidavit of the plaintiff and thereby not falling within O 32 r 13(2)(b) then clearly Enclosure 7 must fall within O 32 r 13(2)(a). In other words, it is an affidavit filed in support of the application and since the application itself was filed on 31.12.96, Enclosure 7 is well out of time and must therefore be rejected. Secondly, Enclosure 7 was filed after the hearing had commenced. The least the defendant could have done is to apply to Court for leave to file an affidavit out of time and if the matter to be averred would assist the Court in arriving at a just decision, perhaps the Court could have been invited to exercise its discretion under O 92 r 4 of the RHC. No such application was made in this case. I therefore rejected the defendant’s attempt to refer to Enclosure 7. Once I rejected Enclosure 7, the defendant conceded that there was no evidence of estoppel raised in the application or affidavits.

详细的案情和判决，请阅读以下的英文版文章。

JUDGMENT

This is an application by the plaintiff for an order for sale pursuant to Order 31(1) of the Rules of the High Court 1980 (the RHC) read together with section 25 and item 3 of the schedule to section 25(2) of the Courts of Judicature Act 1964 (Act 91).

FACTS

Both the plaintiff and defendant are co-owners of 2 shoplots in Sungai Wang Plaza, Kuala Lumpur. By way of a compensation agreement dated 1.9.90 which to all intents and purposes was a lease agreement, the plaintiff agreed to allow the defendant to utilise and use its half undivided share of the shoplots upon terms and conditions contained in the compensation agreement. The defendant occupied the said 2 lots and upon expiry of the lease proceeded to occupy the lots having exercised the option to renew for a further 3 years as contained in the compensation agreement. After the expiry of the lease pursuant to the option, the defendant continued to rent the said 2 lots at the same rates as before. There were negotiations for the new rates which did not materialise. The defendant then wrote to the plaintiff on 1.8.96 expressing its desire to exercise its right of option to purchase the plaintiff’s half share, pursuant to clause 12 of the compensation agreement. The plaintiff responded by its letter dated 5.8.96 agreeing to sell its half share pursuant to clause 12 of the said agreement. Thereafter the defendant made no further moves. Hence this application by the plaintiff for leave of Court to sell the said 2 lots by public auction and after deducting all expenses for the proceeds to be distributed equally between the parties and for other consequential orders.

COURT’S FINDINGS

Order 31 rule 1 of the RHC reads:

“1 Power to order sale of immovable property Where in any cause or matter relating to any immovable property it appears necessary or expedient for the purposes of the Page 2 of 3 PRESIDENT SHOES SDN BHD v MACCI FASHION CENTRE SDN BHD cause or matter that the property or any part thereof should be sold, the Court may order that property or part to be sold, and any party bound by the order and in possession of that property or part, or in receipt of the rents and profits thereof, may be compelled to deliver up such possession or receipt to the purchaser or to such other person as the Court may direct.”

Section 25 of the Courts of Judicature Act 1964 reads:

“25 Powers of the High Court (1) Without prejudice to the generality of Article 121 of the Constitution the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately [*4] prior to Malaysia Day and such other powers as may be vested in it by any written law in force within its local jurisdiction. (2) Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule: Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.”

Schedule 3 to section 25(2) reads:

“3. Partition of land Power to direct a sale instead of partition in any action for partition of land; and in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part thereof to be sold, and to give all necessary and consequential directions.”

Procedure wise the application is correct and the defendant, quite correctly took no procedural objections.
On 2.5.97, the solicitors for the defendant submitted that since it was a term of the agreement that the defendant has the option to purchase, any order made by this Court for a sale by public auction would be illegal and that therefore I ought to reject this application. On 16.6.97, the new solicitors for the defendant had conceded that this Court had jurisdiction to order a sale if necessary. In other words he had in my view very correctly abandoned the previous solicitors’ argument that this Court had no right to order a sale by public auction. The new solicitors for the defendant however raised estoppel and confirmed his willingness to submit on estoppel.

LATE AFFIDAVIT

The new solicitors for the defendant then referred me to an affidavit (Enclosure 7) affirmed by the director of the defendant which explained the question of estoppel. This affidavit was filed on 12.6.97. The plaintiff objected to the said affidavit on the ground that the said affidavit was filed 14 days after the last affidavit which was filed on 25.4.97 (Enclosure 5). The defendant however pointed out that Enclosure 5 was also an affidavit by the same director of the defendant. In the circumstances he argued that O 32 r 13(2)(b) of the RHC cannot apply to Enclosure 7 and that I ought not to reject the same.
O 32 r 13(2) reads:

“(2) Save as otherwise provided in these rules –

(a) an affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application; and

(b) a party wishing to reply an affidavit served on him must file his affidavit and serve it on the other party within 14 days from the date on which the affidavit he intends to reply was served on him.”

Clearly Enclosure 7 which was filed on 12.6.97 was filed about one and a half months later. Whilst it can be argued that Enclosure 7 was not in reply to any affidavit filed by the plaintiff, I rejected Enclosure 7 on two grounds. Firstly, if Enclosure 7 is held not to be a reply to an affidavit of the plaintiff and thereby not falling within O 32 r 13(2)(b) then clearly Enclosure 7 must fall within O 32 r 13(2)(a). In other words, it is an affidavit filed in support of the application and since the application itself was filed on 31.12.96, Enclosure 7 is well out of time and must therefore be rejected. Secondly, Enclosure 7 was filed after the hearing had commenced. The least the defendant could have done is to apply to Court for leave to file an affidavit out of time and if the matter to be averred would assist the Court in arriving at a just decision, perhaps the Court could have been invited to exercise its discretion under O 92 r 4 of the RHC. No such application was made in this case. I therefore rejected the defendant’s attempt to refer to Enclosure 7. Once I rejected Enclosure 7, the defendant conceded that there was no evidence of estoppel raised in the application or affidavits.
In the circumstances I granted an order in terms of Enclosure 1 except for the last prayer being a general prayer for the Court to grant any order it sees just and proper.

Source: President Shoes Sdn Bhd v. Macci Fashion Centre Sdn Bhd [1997] MLJU 216. High Court Kuala Lumpur. Kamalanathan Ratnam JC.

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