DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO: W-02-1104-2011
RANJIT SINGH A/L JARNAIL SINGH … PERAYU
MALAYAN BANKING BERHAD … RESPONDEN
(DALAM PERKARA DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN SIVIL)
GUAMAN SIVIL NO: S-022-1831-04
RANJIT SINGH A/L JARNAIL SINGH … PLAINTIF
MALAYAN BANKING BERHAD … DEFENDAN)
MOHD HISHAMUDDIN BIN MOHD YUNUS, JCA CLEMENT SKINNER, JCA AZIAH BINTI ALI, JCA
GROUNDS OF DECISION
 We had earlier heard the appeal of Ranjit Singh A/L Jarnail Singh (“the Appellant”) against the decision of the High Court, Kuala Lumpur given on the 15.7.2011, when the Appellant’s claim against Malayan Banking Berhad (“”the Respondent”) was dismissed with costs of RM 50,000.00.
 After hearing the Appellant’s appeal, we dismissed it. These are our reasons for doing so.
The background facts
 On 15.2.1988 the Respondent bank as Chargee of a piece of land held under Grant No. 9611, Lot 26673, Mukim Kuala Lumpur (“the said Property”) obtained an Order for Sale by Public Auction of the said Property from the Kuala Lumpur High Court.
 The sale was conducted on 12.9.1990 by the Deputy Registrar of the High Court assisted by a Licenced Auctioner. The Appellant on being told by a friend about the sale, attended the auction and was the successful bidder for the said Property at RM 116,000.00.
 The Appellant duly paid all sums due under the auction sale but the said Property could not be transferred to him as there was a private caveat entered against the said Property.
 On 14.3.1991 the Chargor of the said Property applied to the High Court to set aside the Order for Sale dated 15.2.1988 as well as the sale of the said Property at the auction held on 12.9.1990. The High Court granted the orders applied for by the Chargor on 14.6.1997, on the principle ground that the notice of adjourned hearing of the application for sale was not served on the Chargor. The Appellant had intervened in the Chargor’s application to set aside the Order for Sale.
 The Respondent then appealed against the High Court Order made on 14.6.1997. The Court of Appeal dismissed the Respondent’s appeal on 23.11.2002 in Civil Appeal No. W-02-601-1999. The Court of Appeal held that the Order for Sale of the said Property was tainted with impropriety due to the Chargee’s failure to adhere to the provisions of the National Land Code and Order 83 of the Rules of the High Court 1980. However the Court of Appeal while affirming the decision of the High Court of 14.6.1997, set aside the order made by the High Court that damages be assessed and paid to the Chargor and the Intervener i.e. the Appellant here. The Court of Appeal made no orders regarding damages payable to the Chargor and Appellant as Intervener. The Court of Appeal only ordered that the purchase price paid by the Intervener (Appellant here) be refunded in full.
 On 16.12.2004 which is some 7 years and 6 months after the Order for Sale was set aside on 14.6.1997, the Appellant commenced this suit against the Respondent, pleading breach of contract, misrepresentation, negligence and breach of duties whether contractual, statutory, fiduciary or otherwise.
The High Court decision
 After a full trial, the High Court Kuala Lumpur dismissed the Appellant’s claims and gave full reasons for doing so in a written judgment dated 18.6.2011. In summary the learned Judicial Commissioner found that:
(a) there was no breach of contract as alleged;
(b) there was no actionable misrepresentation, whether negligent or innocent;
(c) the Appellant did not particularise the breach of duty alleged;
(d) the Appellant was uncertain of its causes of action and should have elected between inconsistent causes of action;
(e) the Appellant’s action is barred by limitation;
(f) the Appellant failed to mitigate his losses;
(g) the Appellant had been fully refunded for the purchase price he paid for the said Property at the auction and so should not be unjustly enriched by payment of damages.
 The Appellant contended that the learned Judicial Commissioner erred in holding that there was no contract between the Appellant and the Respondent in respect of which it can be said the Respondent was in breach of. The Appellant said the learned Judicial Commissioner had disregarded the fact that in the Contract of Sale entered into after the successful auction the Respondent bank was described as ‘the Vendor”. The Appellant further submitted that the learned Judicial Commissioner failed to consider that the Respondent was in breach of
a collateral warranty that the Order for Sale was obtained by the Respondent lawfully.
 We do not agree with the Appellant’s contentions. We find no merit in them. The learned Judicial Commissioner was at pains to explain in her judgment that this was not a normal case of a person selling his property as “Vendor” to an interested “purchaser”. The learned Judicial Commissioner said this was a case of the Respondent exercising its statutory remedy of sale as Chargee of the Property under the National Land Code. As such it was not correct to describe the Respondent as “Vendor” which the Appellant was trying to do. We agree with the learned Judicial Commissioner. The Court will always look at the true substance of the transaction and not the badge or term of convenience used by the parties. In our view despite the use of the term “the Vendor” to describe the Respondent in the contract of sale, it does not detract in any way from the fact that the Respondent had sold the said Property as “Chargee”.
 More importantly, we find that the reason the Appellant could not become the registered proprietor of the said Property was not because the Respondent had breached the terms of the alleged “contract” which was entered into after the successful auction, but because the Order for Sale was set aside some 9 years later, on grounds totally unrelated to the contract of sale entered into after the auction. Therefore the Respondent cannot be said to be in breach of contract as alleged.
 There is no substance in the Appellant’s contention that the Respondent was in breach of a collateral warranty that the Order of
Sale was obtained lawfully. The relevant moment in time which the Court must consider in relation to this submission is at the time when the auction sale was held. Can it be said that the Respondent was in breach of the alleged collateral warranty on 12.9.1990 when the Appellant bid at the auction sale? Certainly not because as at that date the Order for Sale was still a perfectly valid Order and had to be complied with and could be relied on until set aside. The evidence shows that when the auction sale was held on 12.9.1990 there was no pending application to set aside the Order of Sale of 15.2.1988. Therefore the question of the Respondent being in breach of the alleged implied warranty did not even arise.
 The Appellant complains that the learned Judicial Commissioner erred in dismissing his claims founded on misrepresentation, negligence and breach of duty, but we find that the learned Judicial Commissioner was correct in doing so. In respect of all these causes of action, the Appellant relies on one central feature, namely, that the Order for Sale of 15.2.1988 was set aside some 9 years later on 14.6.1997 on the ground of procedural impropriety.
 In our judgment all the Appellant’s causes of action above mentioned are clearly unsustainable in law. As we indicated earlier, the relevant question which the Court has to ask itself is whether on the date of the successful auction on 12.9.1990, was the Respondent guilty of the various acts of misrepresentation, negligence and breach of duty alleged by the Appellant? Clearly the answer must be “NO” as the auction sale was held pursuant to a valid and subsisting Order of Court. There is no evidence that the parties had been put on enquiry at the
date of the auction as the application to set aside the Order for Sale was only made years later.
 Another ground on which the learned Judicial Commissioner dismissed the Appellant’s claim was limitation, which the Appellant contends is wrong. We do not agree. In our view the learned Judicial Commissioner was correct in her decision. Here, the Appellant’s causes of action against the Respondent are founded on contract and tort and would have accrued when the High Court set aside the Order of Sale on 14.6.1997, but this suit was commenced by the Appellant only on 16.12.2004 which is well after 6 years from the 14.6.1997. The Appellant contends that it was only following the decision of the Court of Appeal on 23.11.2002 that he was deprived of his right to have damages assessed. The Appellant contends that his right cannot be separated from his remedy. Therefore, according to the Appellant, time will only run from 23.11.2002 and so this action was filed well within the 6 years limitation period provided in section 6 (i) (a) of the Limitation Act 1953.
 We do not agree. The remedy which the Appellant seeks must be based on a cause of action and here the Appellant’s causes of action are based on the fact that the Order for Sale was set aside on 14.6.1997, thereby giving the Appellant the right to bring this action. Clearly the Appellants action is caught by limitation.
 We are not inclined to consider the other grounds raised by the Appellant, such as whether the learned Judicial was correct to say that the Appellant was uncertain of its causes of action or that the Appellant
had not elected whether he would pursue his claim for breach of contract or misrepresentation or that the Appellant was not entitled to the damages he seeks and had failed to mitigate his losses. In our view these issues are really subsidiary issues which would only be relevant if the Appellant can show that the learned Judicial Commissioner had erred in the main issues before her, which we find is not the case.
 For all the reasons given above, we dismissed the appeal with costs of RM 20,000.00 and order a refund of the Deposit.
DATUK CLEMENT SKINNER Judge
Court of Appeal Malaysia
Dated: 17th December 2013 PARTIES:
For Appellant :
For Respondent :
Balbir Singh with Ho Hon Keong Messrs Najiana Wan Balbir Advocates & Solicitors, Kuala Lumpur
Shantini Koshy Messrs Yong & Associates Advocates & Solicitors Klang, Selangor