a) Advise HU Bank whether it can enter into a private treaty to sell the property to Jay.

The issue is whether HU Bank could sell the land to Jay in the form of Private Treaty.
Practically, the law works as if there is no bidder to bid the property during the public auction
by the court, then the chargee has the right to sell the land once consent of the charger has
been possessed. The National Land Code also had silent on which provision that prevent a
chargor to sell the charged property through the Private treaty with chargee’s approval.

We may refer to the case of Chartered Bank v Packiri Maideen [1963] MLJ 276, where
respondent had reluctant and objected against the appellant’s move to enter the property for
auction due to the respondent had default his payment for the charge he applied for. The
respondent had incline replace the transaction with Private Treaty before the foreclosure
proceeding had been commenced as public auction. The court held that, as long as the interest
of the appellant is not being jeopardize, then the court had would not object for such
application.

If we relate it to the instant case, HU Bank would enter into the private treaty to sell the
property to Jay as Kelly and Jenny had failed to repay their charge and subsequent loan for
the auction price therefore, it is not wrong to say that HU Bank may constitute a private treaty
with Jay to sell the property.

In addition, in the circumstances where the public auction had failed to gain the successful
bidder for the property then, the law had allowed the charge to sell the property through
Private Treaty.

The case that portrayed this issue was in the case Malaysian credit Finance v Yap Hok
Choon [1989] 1 MLJ 232, where the defendant had charged his property to the defendant.
Later, the property had been ordered for sale through auction but no bidder had interested
upon the property. The plaintiff had further enter the property for private treaty but the
defendant had objected upon the price stated and not on the issue of the said private treaty.
The court had affirmed plaintiff’s application.

As far as the above case is concern, it only dwell on the issue of non-disclosure of purchase’s
value but the main important that shall be addressed is that the charge (Malaysian Credit
Finance) have the right to constitute private treaty therefore, it affirm the current case issue
on whether the HU Bank had the legal capability to enter into a private treaty with Jay.

To conclude, from various case law we can see that the law had allowed the chargee to sell
the property through Private Treaty after no successful bidder to buy the property