5th presentation

Mon 3 – 4 BS 8
Explain and analyse the creation, entry and removal of the
Registrar’s Caveat, the Private Caveat and the Lien-holder’s
Caveat

How do they differ?

What is the relation with s.417 and s.418?

6th presentation
Tues 11 – 12 BS9

 Critically analyse from decided cases the types of interests

recognised as caveatable interests capable of entering a private
caveat under s.323(1).

 Lectures =1/3 of learning IDENTIFICATION

 Group presentation & written essay = 2/3 of learning w
understanding & demonstrating COMPREHENSION
 Individual tutorial, test & exam = 3/3 APPLICATION &
PERFORMANCE (OUTCOME)
7th presentation
Wed 10 – 11 BS 5

 Discuss the requirements to enter a Registrar’s Caveat and

critically analyse the cases regarding removal of Registrar’s
Caveat.
 Entering a RC- s321
 S321(1) Form 19F – enter the RC
 S321(2) Form 19A Notification to RP &
 registered interest holder
Time runs from date notification received – s.321(3c) & s.418
√√ - to appeal the R’s decision of entering the RC within 3
months it was communicated to the caveatee
 Registrar/Pendaftar – Quasi-Judicial role

 Tan Soo Bing & Ors v Tan Kooi Fook [1996] 3 MLJ 547, 556-57.
FCT – NEWER CASES
 ‘wherever such appears to the Registrar to be necessary and desirable’
 DUTY TO DECIDE ~ tugas memutuskan
 His refusal is a decision within s 418 – entry
 Appealable

4 lxeb2103/fuu.um/zah
 Entering a Registrar’s Caveat
 RC – s.319, 320 and 321
 A person who desires to have a RC in respect of any land
must apply to the registrar .

 If the R refuses his application his remedy is to appeal to

the court against such refusal. He cannot go straight to
the court.
 Under s.418, the court may reverse the decision of the R
and direct the R to enter the RC.

5 lxeb2103/fuu.um/zah
 RC Effective until cancelled by
Registrar- s.321(3)
(a) Own motion; OR

(b) Application by RP; atau

RP has the right to apply to cancel the RC

(c) Pursuant to Court order on appeal under s418

against Registrar’s decision to enter the RC,

OR Registrar’s refusal on an application to cancel

under para (b).

6 lxeb2103/fuu.um/zah
 s.418
(1) Person aggrieved by any decision . . .
State Director, Registrar or Land Administrator may within
3 MONTHS beginning from the date on which it was
COMMUNICATED to him appeal to the COURT.
(the decision of not agreeing to cancel? –not caveatee?) *
(2) In accordance with civil procedure; Court
Shall make such order thereon as it considers
just/ membuat perintah sepertimana ia
memikirkan adil
(3) “keputusan” termasuk perbuatan, ketinggalan,
keengganan, arahan atau perintah.
Decision – act, omission, refusal, direction or
order.

7 lxeb2103/fuu.um/zah
 s.417 general authority of the court
 (1) The Court or a Judge may by order direct the Registrar
or any Land Administrator to do all such things as may be
necessary to give effect to any judgment or order given or
made in any proceedings relating to land, and it shall be the
duty of the Registrar of Land Administrator to comply with
the order forthwith.

8 lxeb2103/fuu.um/zah
 General Authority of the Court - S.417
 Enables the R to ‘do all such things as may be necessary to give effect
to any judgment or order or made in any proceedings relating to
land’ – duty to comply forthwith
(2) (3).
 But does not involve the court ordering him to do so in the exercise of
his discretion - contrast w s320
 There must be a final judgment or order of the court.
 Then..in order to give effect to such judgment or order, the court can
give directions to the Registrar.

9 lxeb2103/fuu.um/zah
 New cases – will return to these issues later
~ SPECTRUM update & PRESENTATION
 Al Rashidy Kassim & Ors v Rosman Roslan
[2007 3 CLJ 361 FC
 Takako Sakao v Ng PekYuen & Anor (No2) [2010] 1 CLJ 419
FC
 Taipan Focus Sdn Bhd v Tunku Mudzaffar Tunku Mustapha
[2011] 1 CLJ 133 FC
 Hassan Kadir & Ors v Mohamed Moidu Mohamed & Anor
[2022] 5 CLJ 136 FC

10 lxeb2103/fuu.um/zah
 MAKLUMAT – Daftar Hakmilik [RDT] &
permohonan [19F]
 Registrar of Titles Johor v Temenggong Securities [1976] 2 MLJ 44
(PC)

 Fakta Material – market value, debts owing to SA, total

debts under the charge
 OCBC Ltd v Pemungut Hasil Negeri Kedah [1991] 2 MLJ 177
(SCT)

 NECESSARY OR DESIRABLE ?

11 lxeb2103/fuu.um/zah
 Palaniappa Chettiar v Letchumanan
Chettiar & Anor [1982] 1 MLJ 252
 Declaration transfer in favour of 2ndD executed by 1stD was null &
void
 Injunction restraining the R from registering the transfer & an order
that the R enter a R’s Caveat
 P claimed:
 Earlier ct order required 1st D to offer the land to the P before selling
it to a 3rd party
 P attempted to exercise that option but the land had been sold to the
2nd D.
 The Ct refused to grant the injunction – R had a statutory duty to
register a properly presented instrument
 BUT CT could order R enter a R’s caveat under s417 – Balance of
Convenience – R not ordered to enter REGISTRAR’S CAVEAT
12 lxeb2103/fuu.um/zah
 Palaniappa Chettiar v Letchumanan
Chettiar & Anor [1982] 1 MLJ 252
 P should have caveated earlier & should have completed the contract into which he
claimed to have entered.

 Cases:
 Tan Soo Bing v Tan Kooi Fook [1996] 3 MLJ 547
 Seet Soh Ngoh v Venkateswara Sdn Bhd & Anor [1976] 1 MLJ 242
 Palaniappa Chettiar v Letchumanan Chettiar & Anor [1982] 1 MLJ 232
 Boonsom Boonyanit v Adorna Properties [1990] 3 MLJ 444
 D & C Bank Bhd v Government of Malaysia & Ors [1989] 3 MLJ 359
 Al Rashidy Kassim & Ors v Rosman Roslan [2007 3 CLJ 361 FC
 Takako Sakao v Ng PekYuen & Anor (No2) [2010] 1 CLJ 419 FC
 Taipan Focus Sdn Bhd v Tunku MudzaffarTunku Mustapha [2011] 1 CLJ 133 FC
 Hassan Kadir & Ors v Mohamed Moidu Mohamed & Anor [2022] 5 CLJ 136 FC

13 lxeb2103/fuu.um/zah
Oversea Chinese Banking Corp Ltd v Pendaftar
Hakmilik Negeri Kedah [1990] 2 MLJ 478
 R.Caveat remaining on the RDT would infringe the rights
of the registered chargee [since 1982]. R.Cv entered on
request of IRD Aug 86 – unpaid taxes

 OFS obtained April 88. Chargee unaware of R.Cv till

received notice Oct 89.
 Pl appealed s.418. – ALLOWED
 Oversea Chinese Banking Corp Ltd v
Pendaftar Hakmilik Negeri Kedah [1990] 2
MLJ 478
 Searches? – but RCv applies retrospectively
 Presence of RCv inhibited the sale of land.
 Court:
 RCv could not be entered under s321(1bi) for the protection of
the interests of the Fed as the arrears of income tax was an
unsecured civil debt which did not produce an interest in land, R
did not know the value of the debt to the G. – debt represented
personal claim
 R – interfered w the legitimate right of the chargee
 The provision does not turn a mere unsecured debt into a secured
debt in relation to the land or give it the status of a registrable
interest on the land.

15 lxeb2103/fuu.um/zah
Private Caveat

Nature & Effect s.322

Entering s.323, s.324
Withdraw s.325
Removal
By caveatee s.326
By aggrieved person s.327
Effect – s322(1b) – subsection (2) or (3) , binds
the land itself or a particular interest therein
 Proviso – caveat not capable being entered on a part of land
(2) – effect binds the land itself subject to subsections (4) & (5)
prohibits registration, endorsement or entry on the RDT-
(a) Instrument of dealing executed by or on behalf of RP, certificate
of sale relating thereto;
(b) Claim to tenancy granted by the RP;
(c) Lien-holder’s caveat.
(3) Binds a particular interest
(a) Instrument of dealing affecting that interest
(b) (i) tenancy (ii) lien-holder’s caveat
S322(4) Not bind instruments presented
before private caveat takes effect
(5) Not prohibit registration or endorsement of any
instrument or claim where-
(a) made by the person at whose instance the caveat was
entered [caveator’s dealing etc]
(b) Application was accompanied by caveator’s written
consent
Entry of Private Caveat
 S323(1) – CAVEATABLE INTEREST – s322(1a)
 1. claim title/registrable interests;
 2. beneficially entitled;
 3. guardian/next friend of a minor claiming entitled in para (b).

 S323(2) – Form 19B & S323(3)

 Prescribed fee
 Grounds stating the claim, verified by statutory declaration
 Description/plan of the land affected sufficient for identification
 S324 – procedure on application
Registrar has administrative role
entering the PC s324(1)
 Subject to s329(2) shall as soon as may be thereafter (and
without being concerned to enquire into the validity of the
claim on which it is based)
 [g]ive effect thereto by entering the caveat applied for in the
manner provided by subsection 2.
Registrar has administrative role entering
the PC s324(1)
 The R has no discretion in respect of the application which
complies with the requirements of the Code.

 Up to the Court to determine whether or not the Caveat can

remain. – ss326 & 327

 If R refuses to enter the caveat w complies w the requirements of

the Code, up to the Court to determine whether or not the caveat
can remain. Appeal the decision of the Registrar – s418 & s417
PC takes effect by the endorsement under
the hand & seal of the Registrar s324(2)
 Remains effective until it is
(1) Withdrawn by the caveator s325
(2) Applied for removal by the caveatee s326
(3) Ordered to be removed by the Court on an application by
an ‘aggrieved’ person s327
(4) Removed by an order of the Court to the R in judicial
proceedings relating to the land s417
(5) Expires after 6 years s328
RP cannot caveat his own land
Eu Finance Bhd v Siland Sdn Bhd (M7J Frozen Food Sdn
Bhd, Intervener) [1989] 1 MLJ 195
 A person who relies on his status as registered owner
must necessarily be a person already possessing title
or interest in the land and not merely a person
claiming title to or any interest in that land and must
as a matter of logic have been excluded by the
language of s323(1)

 If the title is lost or stolen RP should seek the entry of

a Registrar’s caveat.
 HiapYiak Trading Sdn Bhd & ors v Hong Soon Seng Sdn Bhd [1990] 2
MLJ 155
 Peculiar facts – Court allowed the private caveat entered by the RP to remain.
 Caveating own land ~ RP
 Show DISTINCT INTEREST that differs from the interest that is held by him
as a proprietor
 HiapYik Trading v Hong Soon Seng [1990]
 Eu Finance Bhd v Silang Sdn Bhd [1989]
 Asia Commercial Finance v Development & Realtors [1992]
 Sharifah Mastura bte Tuanku Ibrahim v Wan Aziz Ibrahim [1993]
 Saw Cheng Boon v Mohd Farook [1995]
 Trans Summit v Chun Nyook Lin [1995]
 Tan Kit Theng v RHB Finance [1999]
 Affin Bank v Dato’ Mohamed bin Embong [2002]
 Danaharta Urus v Kekatong [2004]

24 lxec2103/fuu.um/zah
Removal of Private Caveat
 Court will test the underlying circumstances to see whether
it can remain
 Caveat acts as a temporary injunction preventing dealings
from being registered & a lien holder’s caveat from being
entered
 Registrar not have quasi-judicial role in the entry or
retention of the caveat – belongs to the Court.
 Caveatee’s application s.326
 Summary removal procedure by registered interest holder
 Form 19H with fee
 Registrar’s notice Form 19A of intended removal

 PC expires after 2 months unless Registrar is served with a

court order extending the caveat s.326 (1B)
 Caveator applies to extend caveat – s326(2)
 R records the caveat cancellation s326(3)

 [time ‘given’ when register had been frozen; ought to act timeously;
had prevented RP & other owners of registered interests from
dealing with the land]

26 lxec2103/fuu.um/zah
 Caveator’s extension application ~ onus = as s327
Caveator defends his caveat when aggrieved
person appeals to remove
1. Caveator has a caveatable interest
2. Satisfy the court that there are sufficient reasons in fact
and law why the caveat should continue – serious question
to be tried
3. On a balance of convenience the caveat should remain

 Eng MeeYong [1979] PC

 Ooi Chek Chai & Anor v Low ThowYoong [2000] 3 MLJ 277–
Court of Appeal

27 lxec2103/fuu.um/zah
Eng Mee Yong v Letchumanan [1979]
2 MLJ 212 – Privy Council
 IN relation to an application by the RP under s326 that the
caveator:

 must first satisfy the court that on the evidence

presented to it his claim to an interest in the property
does raise a serious question to be tried; and having
done so, he must go on to show that on the balance of
convenience it would be better to maintain the status
quo until the trial of the action by preventing the
[registered proprietor] from disposing of his land to
some third party.
Application to extend the caveat
 Court – look to any other action taken by the caveator
 If the caveator is seeking specific performance of an
agreement with RP
 [time ‘given’ when register had been frozen; ought to act
timeously; had prevented RP & other owners of registered
interests from dealing with the land]
s.327 – removal by the Court
 Standing to be ‘aggrieved’ linked to his ability to
caveat or register a dealing.
 ‘Aggrieved’ person’s remedy ~ s.327 ~
1. Prove onus to bring application to remove
 Sufficient reasons in fact & law to receive him as a person
who claims and interest in that property aggrieved . . .
 Registrable interest in land ~ right to deal with his interest in the land
prejudiced by the existence of the caveat
 Any party who is claiming an interest in the land
 RAP Nathan v Hj Abd Rahman [1980]
 Mohd Azhari v Shanmugam [2006]
 Danaharta Urus v Kekatong [2004]

 Other cases in Case List

 s.327 - Caveator’s onus
(1) Caveatable interest
(2) His claim to an interest in the land gives rise to a serious
question to be tried; AND
(3) On the balance of convenience the caveat has to be retained
to preserve the status quo of the property until the court
decides the claim
COMPARE
Eng MeeYong [1979]
Sua Betong Sdn Bhd [1992]
Luggage Distributors [1995]
Murugappa Chettiar v Lee Teck Moon [1995]
31 lxec2103/fuu.um/zah
RAP Nathan v Hj Abd Rahman & Ors[1980] 1 MLJ
248 OCJ HCT Alor Star
 Original 1st RP 1stD sold to 2ndD who entered joint venture
agt w P to develop land. 5 pieces
Kuala Muda
District Kedah

 2ndD Agt w 3rdD, 3rdD

transferred land to limited company in which 3rdD was the
managing director.
RAP Nathan v Hj Abd Rahman & Ors[1980] 1 MLJ
248 OCJ HCT Alor Star
 Held:
 The dispute between the parties – resolved by action in court
 3rdD was a person aggrieved by the existence of the caveat, even
though he had transferred the lands to the company
 Pl had a caveatable interest
 Applications of the 3rd D relating to the caveat must be dismissed
– pl entitled to enter a caveat against the lands.
RAP Nathan v Hj Abd Rahman & Ors[1980] 1 MLJ 248
OCJ HCT Alor Star

 Pl
 Declaration that agt btwn 2nd & 3rdD void
 Specific performance of the agt btwn him & the 2nd D
 Entered caveat against the land – extended by the Court

3rdD
 the writ of summons against him be set aside or struck out
 The caveat entered by the plaintiff be set aside
 The order for extension of the caveat be set aside
RAP Nathan v Hj Abd Rahman & Ors[1980] 1 MLJ 248 OCJ
HCT Alor Star

 PL
 $ paid for 3 instalments only left to pay $33,800.
 2ndD allowed Pl to subdivide & construct houses for sale
 Pl had sole & exclusive right to develop entitled to possession.
 2ndD x allowed to lease, mortgage, charge land.
 Pl employed architect, solicitors to draw up, survey, subdivide &
conversion & building plans to submitted these to local
authorities.
RAP Nathan v Hj Abd Rahman & Ors[1980] 1 MLJ 248 OCJ
HCT Alor Star

 3rdD

 Transfer was done after the 2ndDhad been informed by the Pl that
he was unable to raise sufficient funds and was no longer
interested in the joint venture and that the Pl was well aware of
the negotiations of the sale & joint venture agreements between
the 2nd & 3rd Ds. – alleged that the Pl had acquiesced to the
subsequent agreement.
‘Aggrieved Person’ – s327
RAP Nathan v Hj Abd Rahman & Ors[1980] 1 MLJ 248
OCJ HCT Alor Star at p249 para 12
 3rdD
 Will he suffer loss if the caveat lodged is not removed?
 3rdD was RP at the time caveat was lodged but subsequently transferred to
company in which he was MD. NOT the RP
 3rd agt executed with 2ndD an AGT of Sale – paid $ w prov to enable to
develop the land as a housing project. 3rdD made arrangements to develop the
land.
 Within aggrieved person
 Macon Engineers Sdn Bhd v Goh HooiYin [1976] 2 MLJ 53

 The 3rd agreement which is still in existence appears to be a valid agreement for
the sale of land – entitled to lodge a caveat to protect his rights under the
contract.

 A caveat lodged by the plaintiff may affect the company in relation to the
enjoyment of his legal right in developing the lands.
RAP Nathan v Hj Abd Rahman & Ors[1980] 1 MLJ 248 OCJ
HCT Alor Star at p249-250 para 15 - 16
 Caveatable interest

 Alleged as well as proved interests and of interests that have not yet become
actual interests in land.

 In the case of an agreement which is valueless as a transfer or burdening

instrument but is good as a contract, the contractual right may be sufficient to
give a person an “interest’ in land for the purposes of protection by restrictive
entry in the register

 Inter-continental Mining Co Sdn Bhd v Societe Des Etains De BayasTudjuh [1974] 1

MLJ 145
 Sing Lian Express [1974] 2 MLJ 24 – option for sale exercisable within a
certain period
APPLICATION
 Facts: Competing interests between registered &
unregistered = decide priority
 What is the position under the law & what to do?

 Advise the parties

 Each party stands as what = what does the law say?
 How to go about it?
 What remedies to seek?
Yunley Enterprise Sdn Bhd v Loh Seng
Lee [2009] 10 CLJ
 Pl [Purchaser] penawar berjaya mendapatkan
tanah D. [RP]
 Pl bayar deposit 10% kepada Pentadbir Tanah.
 D masukkan Kaveat Psdn menyangkal
hutangnya kepada PC [chargee] untuk
mendapatkan PJ.
 RP perolehi injunksi menahan bank dari
melaksanakan tindakan foreclosure pada hari
SAMA tanah dilelong kepada Pl.
 D mengenepikan penghakiman yang membawa
kpd PJ.
 Pl [purchaser] memohon mengeluarkan kaveat.

 D hujah injunksi mengikat Pl & mencabar

keesahan prosiding foreclosure PT & PJ.
 [pentadbir tanah & perintah jualan]
Keputusan
 Pl “orang terkilan” di bawah s.327
 A contract comes into being when the hammer comes down during a
sale by public auction.The P having successfully bid at the public
auction, having paid the 10% deposit of the auction price and
having duly executed the contract of sale, had a right or interest in
the lands.The P would suffer loss if the private caveat was not
removed.The caveat had wrongfully affected the P’s right and interest
in the lands.
Aggrieved person
 As the successful purchaser at the auction, the P was legally
entitled to obtain a loan to pay off the remaining 90% of the
auction price in order to complete the contract of sale
whereupon he would be entitled to a certificate of sale of the
lands. The existence of the private caveats would

 frustrate his prospects of obtaining the loan, completing the

sale and purchase of the lands and ultimately impede the
registration of the sale of the lands to the P.
D [RP] no caveatable interest
 Failed to establish to the satisfaction of the court that there
existed a set of circumstances over & above that of its own
status as a registered proprietor.
NOT CIRCUMSTANCES over & above its status as a
RP giving rise to a DISTINCT INTEREST entitling to
lodge a PC
 Berjaya ketepikan perintah summary berkenaan hutang
kepada bank
 Prosiding di bawa ke perbicaraan penuh
 Berjaya dapatkan injunksi terhadap bank
 Memfailkan saman pemula (OS) terhadap bank
 PL memohon relief deklatori
Fakta D
 Injunksi adalah injunksi interim ex parte terhadap bank. Pl
[purchaser] dan PT [pentadbir tanah] tidak dijadikan pihak
kepada injunksi.
 Tiada bukti Injunksi diperolehi dan diserahkan kepada PL dan
PT sebelum lelongan awam dilakukan pada hari yang sama.
 Injunksi ex parte akan luput 21 hari selepas tarikh dikeluarkan
(RHC).
 Injunksi remedi ekuiti, bertindak in personam bukan in rem.
Fakta D
 PJ dilakukan menurut s.263 KTN.
 Perintah mengikat tanah-tanah.
 D harus merayu terhadapnya dan ketepikan dengan
menimbulkan sebab-sebab untuk tidak membenarkan PJ
diberikan (cause to the contrary).
 Tempoh merayu PJ telah luput. S.418. D tidak boleh
melaksanakan hak statutori dengan memohon deklatori selain
dari cara yang diperuntukkan UU.
Keputusan remedi D
 Memulakan tindakan berasingan untuk gantirugi terhadap
bank kerana membenarkan tanah-tanah dijual di bawah nilai,
jika berjaya membuktikan dakwaan tersebut.