READY CASH SDN BHD v 1. ) NOORHAYATI BINTI MUSTAPHA 2. ) ROHIZIR BIN ABDUL RASHID

Case Significance

Illustrates the special-circumstances requirement for staying the public auction of charged land after an order for sale under the National Land Code 1965 and Order 45 rule 11 of the Rules of Court 2012: a stay is not granted as of right, and chargors who cannot show special circumstances — where any loss is compensable — will be refused.

This High Court decision at Shah Alam, delivered by Judicial Commissioner Hazizah Kassim, concerns an application by chargors to stay a public auction of charged land. The plaintiff, Ready Cash Sdn Bhd, was the chargee of land held under a title in Mukim Dengkil, and had obtained an order for sale under the charge provisions of the National Land Code 1965 and Order 83 of the Rules of Court 2012. Following the order for sale, the defendant chargors applied under Order 45 rule 11 of the Rules of Court 2012 to stay the public auction proceedings. The central question was whether the defendants had established the special circumstances required to justify a stay of execution of the order for sale.

The court dismissed the application. It reiterated the settled principle that a stay of execution is not granted as of right and that the burden lies on the applicant to show special circumstances warranting the exercise of the court's discretion in its favour. On the material before it, the court was not persuaded that the defendants had demonstrated any such special circumstances; it noted that the chargee could be compensated for any loss the defendant might suffer, so that the balance did not favour halting the enforcement of a valid order for sale. Having found that the defendants failed to establish special circumstances to justify a stay, the court dismissed the notice of application with costs of RM3,000, subject to allocatur. The court's reasoning reflects the policy underlying the statutory charge remedy: once a chargee has obtained an order for sale in accordance with the National Land Code 1965, the security is meant to be readily enforceable, and a chargor who merely wishes to postpone the auction, without pointing to circumstances that make execution unjust or an eventual remedy inadequate, will not be allowed to stall the process. The judgment is a useful illustration of the special-circumstances requirement governing an application to stay the public auction of charged land after an order for sale, and of the courts' reluctance to interrupt statutory foreclosure proceedings absent a compelling reason.