Вы находитесь на странице: 1из 25

Discuss the requirements to enter a

Registrars Caveat and critically


analyse the development of the
recent
cases
interpreting
s.321
regarding removal of Registrars Caveat.
TUESDAY 12.00 1.00 BS5

PART 1
Discuss the requirements to
enter a Registrars Caveat

REQUIREMENTS TO ENTER A REGISTRARS


CAVEAT
Section 319(1)(a) :
A caveat may be entered by the Registrar on the register document of title by any
land in any of the circumstances specified in Section 320.

Circumstances to enter RC under Section 320(1) NLC :


(a)to prevent fraud or improper dealing;
(b)(i)to protect the interests of the Federation or the State Authority; or
(b)(ii) any person who is in his opinion under the disability of minority, mental
disorder or unsoundness of mind, or is shown to his satisfaction to be absent
from the Federation;
(ba)to secure that the land will be available to satisfy the whole or part of any
debt due to the Federation or the State Authority, whether such debt is secured or
unsecured and whether or not judgment thereon has been obtained;
by reason of some error appearing to him to have been made in the register or
issue document of title to the land or any other instrument relating thereto.

S320(1)(a)
FACTS:

Seet Soh Ngoh v Ventkateswara Bhd


[1976] [HC]

The defendant had sold a piece of land and contracted to build a house on the said
land for the plaintiff and the plaintiff in this case had paid more progress money than
it was entitled to. However, the defendant demand for more payment, and when it
was refused, they claimed that the plaintiff had no money to complete the purchase
and they sought to repudiate the agreement to sell to a third party.
The Plaintiff applied for a Registrars Caveat to be entered on the grounds of
prevention of improper dealings. Counsel for the Defendant argued that, on a proper
reading ofs. 319 of the National Land Code, the Registrar was the only person who
could decide whether to enter his Caveat. His contention was that there was no power
HELD
:
in anyone,
not even the Court, to order him to do so.
The High Court held that S320(1)(a) of the NLC empowers the Registrar to enter a
Registrar Caveat for the prevention of fraud and improper dealing and the court has
the power to order the Registrar to enter registrar caveat since Registrar was before
the Court under s417(1).

S320(1)(b)(i) & (b)(a)


Development & Commercial Bank Bhd v. Gov of Malaysia
[1989] [HC] The plaintiff company, obtained a Court order for the sale
Facts of the
Case

Held

of a piece of land which had been charged to the plaintiff.


However, the Registrar of Land Titles, Kedah, entered a
Registrar's caveat on the said land for the protection of
the Federation's interest. The reason given was that the
previous owner had not settled his income tax with the
Government of Malaysia.

The Registrar was empowered to enter a registrar's caveat


at the request of the Director-General of Inland Revenue to
protect the Federation's interest as the chargor had not
settled his taxes. A caveat was entered under s 320(1)(b)
(i) and (ba) of the NLC. The only remedy that was open to
the plaintiff company was to appeal against the decision
of the Registrar entering the caveat, proceeding under s.
321(3)(c)read with s. 418 of the Code.

CREATION OF RC UNDER S321 NLC


PROCEDURE
Registrar will fill in Form 19F and endorse the entry in the RDT
Registrars Caveat Entered.
Then Registrar will notify the proprietor of the land in Form 19A.
REGISTRARS POWER
The Registrar must be satisfied that the info or material supplied to him in
support of the request for the entry must be credible on the face of it.
He must act reasonably according to the circumstances of the case.
COURTS ORDER
Under S417(1), the court can order the registrar to enter into a RC.

REGISTRARS POWER

Discretion is with Registrar as to whether to enter a caveat or not.


In this case, the word may in s.319 was interpreted: It is clearthe

Palaniappa
Chettiar v
Letchuman
an Chettiar
[1982]
[Federal
Court]

Registrar may act on his own motion or upon information/request


made to him. The word may indicates a discretion on the part of
the Registrar. Thus, the Registrar is said to perform a quasi-judicial
function in the exercise of that discretion but the discretion must
always be exercised judiciously and not arbitrarily .By contrast, in
the case of an application for the entry of a private or lien-holders
caveat, his function is purely ministerial or administrative.

COURTS ORDER

Boonsom Boonyanit
v Adorna Prop.
[1990] [HC]

Lim Ah Hun v
Pendaftar Hakmilik
Tanah P. Pinang &
Anor. [1990] [HC]

Mdm Boonsom sought entry of a Registrars Caveat


where she complained that her title had been used with
a forged transfer to obtain the registration of Adorna
Prop.
Held: The High Court has the power under s 417(1) to
order the registrar to enter the registrars caveat under
s 320 to prevent fraud or improper dealing.

The Registrar had entered a RC on the land based on a


letter sent by the 2nd Df and a police report alleging a
fraudulent transfer of the land.
However, based on new facts, the information given by
the second respondent to the registrar was found to be
misleading and is no longer valid. There was no
improper dealing concerning the said property.
Held: The court may remove the caveat if the entry was
misleading, no longer necessary or desirable in
circumstances specified.

PART 2
Critically analyse the
development of the recent
cases interpreting s.321 regarding
removal of Registrars Caveat.

SECTION 321(3)
A Registrars caveat shall continue in force until
it is cancelled by the Registrar
Of his own motion; or
On an application in that behalf by the
proprietor of the land affected; or
Pursuant to any order of the Court made on an
appeal under Section 418 against his decision
to enter the caveat, or his refusal of any
application for its cancellation under
paragraph (b)

Original Principles
Lim Ah Hun v.
Pendaftar Hak Milk
Tanah , Pulau
Pinang (1990)
(High Court)
Development &
Commercial Bank
v. LA Wilayah
Persekutuan
(1991) (Supreme
Court)
Pendaftar
Hakmilik
Negeri Kedah v.
Overseas Chinese
Banking Corp
(1991) (Supreme
Court)
Public Bank Bhd v.
Pengarah Tanah &
Galian (1990)
(Supreme Court)

Held: Court can remove RC if entry is misleading and no longer


necessary or desirable

Held: Chargee cannot apply to registrar to cancel or remove RC


under s. 321 of the NLC. However, declaratory relief would be
available.
Held: Registrar acted ultra vires as he did not examine market
value of disputed land and as the debt to the federation exceeded
market value of the land, the debt can't be satisfied and therefore
RC should not have been entered.
Held: Chargee cannot appeal against refusal to remove, only
entry. Also, court held the 3 months limit and the Chargee's
appeal against entry was rejected with regret since it was filed out
of time the 3 months.

THE DEVELOPMENT

otif Unik Sdn Bhd v Khoo Ah Soon [2012] 10 CLJ 612 (High Co

FACTS
22 lots of land originally owned by Sungei Bakau Realty Snd Bhd (SBR).
Those lands were transferred to the applicant .
In year 1997 ,1st Respondent initiated 2 civil proceedings against SBR . 1
was dismissed and the other suit was struck off
13 years later,1st Respondent reinitiated civil proceedings against SBR and
the applicant. A Registrar Caveat was entered
Applicant applied to the court to remove the RC entered by Registrar (2 nd
Respondent) pursuant to a request by the police which based on a
complaint by the 1st Respondent.

Core Issue Whether 2nd Respondent Was Right In Refusing To Cancel The
Registrars Caveat
1. Registrar must be satisfied objectively before entering a Registrars Caveat

Before Registrar exercises his power, he must be satisfied objectively with the information
1. Lim Ah Hun v Pendaftar Hakmilik Tanah , Pulau Pinang (1990)
and facts supplied to him. If this was not done, the caveat can be challenged and the court
(High
Court)
may issue
a direction to remove the caveat.
2. Pendaftar Hak Milik Negeri Kedah v Overseas-Chinese Banking Corp Ltd
(1991)
Registrar
did not exercise
(Supreme
Court) his discretionary power according to the limits in Section 320(1)
(ba) because he failed to take relevant considerations into account.
He acted ultra vires and his act was invalid. Since the sole consideration taken by the
Registrar to enter Registrar Caveat was the request of the police , the Registrar did not
assess the matter objectively.
Registrars role to enter a Registrar Caveat is not a mechanical one at all. He must assess
all relevant information or facts supplied by applicant before such caveat to be entered or it
to be cancelled.
It is not enough for Registrar to say since it was the police who requested to enter a
Registrar Caveat and they did not withdraw such request, the Registrar is not in a position
to cancel such caveat.

Motif Unik Sdn Bhd v Khoo Ah Soon [2012] 10 CLJ


612 (High Court)

S 320(1)(a) states that RC can be entered to prevent fraud or improper


dealing.
Dealing in Section 5 of NLC relates to instruments , forms ,process of
registration etc. related to transfers , charges , leases and tenancies ,
easements , liens and caveat on land.
It was not intended to be available for all and diverse kind of fraud or
cheating in its widest compass.
The present cases caveat was entered based on a complain by
1stRespondent which alleged cheating and falsification of affidavit by
the applicant.

Motif Unik Sdn Bhd v Khoo Ah Soon [2012] 10 CLJ


612
(HighCaveat
Court)
3. Registrar
Not Sustainable On Facts

Abdul

Hamid Muhammad J in the first civil suit held that 1st


Respondent was merely a b roker , not an actual purchaser.
Both civil suits were dismissed and struck off by the Court.
These information were certainly available to the Registrar when
applicant applied to remove the Registrars Caveat.
It was abundantly clear that Registrar did not apply his or her mind to
all relevant considerations before refusing the application to remove
the caveat.
If the registrar had done so , the caveat ought to have been cancelled
as there was no justification in law or on facts to continue and retain
the same as against the said lots.
Decision
Court ordered the Registrar Caveat to be removed.

Moden Hartawan Sdn Bhd v Pentadbir Tanah Johor Bahru


[2015] 11 MLJ 191 (High Court)

FACTS OF
THE CASE

The plaintiff had purchased a piece of land from its registered


proprietor free from any encumbrances for valuable
consideration. The land search together with the defendant's
certification of title showed that the vendor, WH, was the
registered proprietor at all material times and the plaintiff was
abona fidepurchaser for value without notice of any alleged
fraud or mistake in the transfer of ownership of the subject land
to WH.
The plaintiff became the sole equitable and beneficial owner of
the subject land while WH became the bare trustee. However, a
caveat was entered on the subject land by the registrar. Thus
the plaintiff, in its capacity and sufficient interest, prayed for the
registrar's caveat to be cancelled forthwith pursuant tos. 418 of
the National Land Code ('NLC'). The issue that arose was
whether the registrar's caveat was wrongly entered unders.
320 NLC.

THE DEVELOPMENT
Moden Hartawan Sdn Bhd v Pentadbir Tanah Johor Bahru [2015] 11
MLJ 191 (High Court)
(On the issue of whether the plaintiff has sufficient interest to apply for
removal);
Held:
The Court in deciding whether the plaintiff has the right to file application for the
removal of RC said that: The plaintiff was clearly an aggrieved party by the entry and existence of the caveat
and thus qualified to apply for its removal or cancellation unders. 418 NLC.
Having paid the full purchase price of the land to the vendor, who then executed the
Form 14A and handed over possession of the issue document of title and the land to P,
P became the sole equitable and beneficial owner of the subject land while the
previous proprietors became the bare trustees for P with no further interest in or claim
to title to the land. Hence, P had sufficient interest and capacity to make the
application for cancellation of the RC that prohibited registration of title of the said
land in Ps name.

THE DEVELOPMENT
Moden Hartawan Sdn Bhd v Pentadbir Tanah Johor Bahru [2015] 11 MLJ 191
(High Court)
(On the issue of whether the registrar's caveat was wrongly entered)
Held:
Under the Torrens system practised in Malaysia and legislatedviathe NLC, the register is
everything and absolute with regard to title and ownership, save for some exceptions under the
NLC. WH had an indefeasible registered title to the subject land and was capable of passing a
good title to the subject land to the plaintiff who, as abona fidepurchaser for value, had
become the equitable and beneficial owner.
The registrar, after having issued the certification of title which showed that the ownership of
the subject property was wholly in the name of WH, was now estopped from denying the
certification to the detriment of the plaintiff who relied on the document of title duly certified to
purchase and obtain ownership of the property lawfully.
The defendant did not have valid grounds that were good in law to enter the registrar's caveat
on the land particularly in view of the conclusiveness of the register document of title unders.
89 NLC. Therefore, the registrar had wrongly entered the caveat and erroneously refused to
register the duly executed transfer documents of title by the then registered proprietor to the
plaintiff.

KIU SU SIENG & ORS v. REGISTRAR OF LANDS AND


SURVEYS, KUCHING DIVISION [2016] 2 CLJ 959

FACTS
OF THE
CASE

The plaintiffs have filed an action to remove caveats lodged by


the Registrar of Lands and Surveys, Kuching Division (the
defendant) against two pieces of land owned by the plaintiffs.
The defendant has entered those caveats based on the official
request made in a letter by a Senior Police Officer.
The reason for that request is because of an ongoing police
investigation involving an offence of giving false evidence
under s. 191 of the Penal Code which involved nine parcels of
land, two of which are the plaintiffs' land.
The plaintiffs stated that they have never been called by the
police to give their statements in that investigation and neither
have they been charged with any offence pertaining to the said
offence.
The plaintiffs also questioned the non-disclosure of the police
report which she said was a "deliberate suppression" showing
bad faith by defendant.

JUDGMENT BY THE COURT


S320 of the NLC and s182 of the Sarawak Land Code was compared.
320. (1) Subject to sub-section (2), a Registrar's caveat may be entered in
respect of any land wherever such appears to the Registrar to be necessary or
desirable
(a) for the prevention of fraud or improper dealing; or
(b) for protecting the interests of
(i) the Federation or the State Authority, or
(ii) any person who is in his opinion under the disability of minority, mental
disorder or unsoundness of mind, or is shown to his satisfaction to be absent
from the Federation; or
(c) by reason of some error appearing to him to have been made in the register
or issue of title to the land or any other instrument relating thereto.
(2) Knowledge by the Registrar of the fact that any land or interest therein has
been acquired, or is to be held, by any person or body in a fiduciary capacity
shall not of itself constitute a ground for entering a Registrar's caveat in respect
of that land.

Section 182 of the Sarawak Land Code.


182. (1) The Registrar may enter caveats for the protection

of any
person who is under the disability of infancy or unsoundness of
mind, or is absent from Sarawak, to prohibit the transfer or dealing
with any estate or interest belonging or supposed to belong to any
such person, or on behalf of the Government to secure the interests
of the Government, or the enforcement of any charitable trust or
the interests of the public, or any class or section of the public, or of
any public body, and also to prohibit the dealing with any land,
estate or interest in any case in which it appears to him that an
error has been made in any document of title, or for the prevention
of fraud or improper dealing.

Despite

the difference, both Land Codes allow the Registrar to lodge


the caveat "for the prevention of fraud or improper dealing" and that
appears to be the reason given by the police to the Registrar for the
lodgment of the caveats.
Under these sections the Registrar's functions in relation to
Registrar's caveats are not exclusively ministerial as they are in
relation to the other kinds of caveats. They require the exercise of a
discretion that is quasi-judicial in its nature. The prohibitory
consequences resulting from the entry of a Registrar's caveat impose
what may be very damaging restrictions upon the private rights of the
proprietor of the land. The Registrar is not entitled to impose them
unless they appear to him to be necessary or desirable for one or
more of those purposes of section 320 (1). Temenggong Securities
case.

There were no legal justifications to maintain the


Registrars caveat.

This is because the defendant did not provide any


evidence to show how exactly the case under
investigation was tied to the two parcels of land
which must, in turn, be protected by the caveats.
The police report was not exhibited and this omission
was fatal. Without the basic details of the alleged
crime, maintaining the caveats would not be a
reasonable option.

IMPORTANCE OF THIS CASE

If a caveat is challenged, the Registrar must show the grounds for


the exercise of their power.
Furthermore, this case has highlighted the function of a Registrar
to be of a quasi-judicial nature and discretion should be exercised.
If a caveat is deemed not to be necessary or desirable to be
entered, then a Registrar has a discretion to not enter them.
This case can be distinguished from Agrimal Project Sdn Bhd v.
Pendaftar Hakmilik, Pejabat Tanah Dan Galian, Johor & Ors [1997] 3
CLJ Supp 491; [1997] 4 AMR 3398 because the police in their letter
to the Director of the said department in that case actually
provided the details supporting the reason for the application for
the lodgement of the caveat.

THANK YOU

Вам также может понравиться