[2023] 6 MLRA 144

Court of Appeal, Putrajaya
Lee Swee Seng, Hadhariah Syed Ismail, Gunalan Muniandy JJCA
[Civil Appeal No: J-02(NCVC)(W)-2088-11-2021]
28 August 2023


Gunalan Muniandy JCA (allowing the PO by majority):


[1] The Appellants who were Plaintiffs in the High Court have appealed against the whole of the decision of the Learned High Court Judge ['LJ'] who dismissed the Plaintiffs' claim with costs of RM25,000.00. Thereafter, the Respondent who was the Defendant in the Court below filed a cross-appeal in respect of their Third Party ['TP'] claim.

Summary Of Facts

[2] The Plaintiffs are the trustees and the current office bearers of a society known as Persekutuan Guru-Guru Melayu Johor ['PGMJ'].

[3] PGMJ was the beneficial owner of a piece of land held under GRN No 95172 Lot 229, Bandar Maharani, Daerah Muar Johor. The Property was charged to the Defendant, as security for a loan granted by the Defendant to PGMJ.

[4] Upon PGMJ's default to repay the loan, the Defendant auctioned the Property at a public auction for RM4.9 million on 4 July 2011.

[5] After deducting the outstanding sum owing to the Defendant, there was a balance of auction proceeds of RM3,652,025.98.

[6] On 25 November 2011, an individual named Omar Kassim, the 1st Third Party ['the 1st TP'] lodged a private caveat on the Property on the ground that he was the lawful holder of a Power of Attorney given by PGMJ.

[7] The legal firm of Messrs Sabaruddin Ali & Co ['the Firm') acted for the Defendant in respect of the auction. At all material times, Zul Azam Md Dahlan, the 2nd Thirty Party ['the 2nd TP'], a partner of the Firm was the solicitor having conduct of the matter. Sabaruddin Ali, the 3rd Third Party ['the 3rd TP'] was the other partner of the Firm.

[8] On 18 January 2012, the Defendant released a portion of the balance proceeds in the sum of RM2,340,000.00 to the 1st TP. The remaining portion of RM1,312,025.98 was released to PGMJ.

[9] A dispute arose between PGMJ and the Defendant as PGMJ alleged that they did not authorize the release of RM2,340,000.00 to the 1st TP.

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