- 原告(业主) 在法庭上要求撤销之前被告申请的冻结令，并让被告赔偿他RM10000，以及另外RM30000的损失。然而法庭驳回了原告的申请。原告提出上诉。
- 在1965土地法令327条文下，1965只要是因为有关私人冻结令而蒙受损失的起诉人或受害者（person aggrieved），也有权向法庭申请撤除冻结令。法庭在决定是否撤销冻结令时，会采取3个步骤。
- By Originating Summons (Encl 1) the Plaintiff applied for the private caveat under Presentation Number 956/2014 dated 8.9.2014 (hereinafter called “the said Caveat”) and lodged by the Defendant on 9.9.2014 (Encl 2 exhibit TKT-2) over the Plaintiff’s land held under GM 1265, Lot 3517, Mukim Durian Sebatang, Daerah Hilir Perak, Negeri Perak Darul Ridzuan (hereinafter called “the said Land”) to be removed forthwith pursuant to Section 327 of the National Land Code 1965 (Act 828) (“hereinafter called “NLC”).
- The Plaintiff further applied for:
(i) the Land Administrator of Daerah Hilir Perak to register the removal of the said Caveat with immediate effect in keeping with the Order sought;
(ii) the Defendant to pay general damages of RM10,000;
(iii) exemplary damages of RM30,000 to the Defendant due to the wrongful entry of the said Caveat over the said Land;
(iv) Costs for the application as well as interest at 4% per annum on the Judgment amount from the date of the Judgment until full settlement; and
(v) the issue document of title to the said Land be surrendered to her.
- The Court dismissed the Plaintiff’s application with no order as to costs. Dissatisfied with the decision, the Plaintiff appealed.
Court not to act in vain
- Section 328 (1) of the NLC provides that a private caveat shall, if not sooner withdrawn under section 325 or lapsing pursuant to sub-section 326 (1B) or removed by the Registrar pursuant to an order of the Court under section 327, lapse at the expiry of six years from the time from which it took effect, and the entry thereof may be cancelled by the Registrar either of his own motion or on an application in that behalf by any interested person or body.
- The provisions of Section 325 and Sub-section 326 (1B) are not relevant for purposes of this action. Shorn of them, the net effect is that a private caveat shall lapse at the expiry of six years from the time from which it took effect.
- The said Caveat is a private caveat which was entered on 9.9.2014. Therefore, the said Caveat has lapsed by the time the application for its removal (Encl 1) came before the Court for hearing on 16.10.2020.
Law on removal of caveat
- The approach to be undertaken by a court hearing an application under Section 327 (1) of the NLC for the removal of a private caveat is settled. There are three stages:
(i) the first stage is the examination of the grounds expressed in the application for the caveat to ascertain whether the caveator’s claim amounts in law to a caveatable interest;
(ii) the second stage is to go on to see whether based on the affidavits filed, his claim discloses a serious question meriting trial; and
(iii) the third is to ascertain where the balance of justice or convenience lie (see Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor  3 CLJ 520 CA).
- In the statutory Form 19B accompanying the lodgment of the said Caveat (Encl 2 exhibit TKT-2), the Defendant averred that he has purchased the said Land from Lee Kian Tui (who is the late husband of the Plaintiff and hereinafter referred to as “LKT”) and is entering the caveat to protect his interest.
- It is settled law that a purchaser of land acquires a right ad rem or in personam to the land (Tan Ong Ban v Teoh Kim Heng  3 CLJ 193 FC) and by reason thereto has a caveatable interest in the land.
- The Defendant deposed that there is a written agreement for the sale and purchase of the said Land made between the late LKT that he purchased the said Land from LKT who was the registered proprietor of the said Land for RM140,000.00 that the original issue document of title was deposited by LKT with the Defendant’s solicitors, M/s Ng Choo Beng R Naidu & Partners, who continue to hold the same, pursuant to the purchase, he had effected full payment of RM140,000 and had exhibited copies of the five cheques for the total sum of RM140,000 paid in full.
- The Defendant raised a counterclaim in his affidavit seeking:
(i) declaration that the sale and purchase agreement he made with the late LKT is valid and sought specific performance of the same;
(ii) the Defendant counterclaimed against the Plaintiff a sum of RM10,000 by way of general damages and RM30,000 by way of exemplary damages; and
(iii) the action to be converted from an Originating Summons to a Writ action.
- The Plaintiff challenges the veracity of the Defendant’s assertions saying that her late husband had never told her of the sale of the said Land, instead her late husband borrowed money from the Defendant and the sale and purchase transaction is but a security for the repayment of a loan and asserted that from various bank statements, the late LKT had repaid more than the RM140,000 to the Defendant, to wit RM234,720 and given the hundreds of thousands of ringgit in loans given by the Defendant, he is but an illegal money lender.
- On the request that the action commenced by Originating action be converted to a Writ action, the Plaintiff asserted that it was unnecessary as the only issue was whether the late LKT has repaid his loan to the Defendant.
- The Plaintiff’s case taken at its highest is that, there was some documentary evidence produced by the Plaintiff showing there were payments made by LKT in excess of RM140,000 for her to launch her attack that the sale and purchase agreement was a suspicious transaction and is merely a cloak to circumvent the Money Lenders Act 1951. However, the Defendant averred these other payments has nothing to do with the sale and purchase agreement for the said Land. 原告有文件证明地主还回超过140千的付款。被告声称这些付款是与买卖此土地无关。死无对证
- On the evidence that obtain from the exchange of evidence, the Defendant has passed the second stage that the Defendant’s claim merits a trial given the documentary evidence produced by him in the form of the sale and purchase agreement, the cheques made in payment and the original issue document of title being deposited with his solicitors as against the suppositions and assumptions that the Plaintiff sought to rely upon.
- On the assertion by the Plaintiff that there is considerable delay by the Defendant in prosecuting his claim with the Defendant only raising a counterclaim in this proceedings initiated in 2019 when the sale and purchase agreement was said to be made in 2014, the law is clear in that if the full purchase price has been paid, the landowner holds the said Land as a bare trustee for the purchaser and as a trustee, the landowner is prohibited from dealing with the land for the benefit of any third party (see He-Con Sdn Bhd v Bulyah Bt Ishak & Anor & Another Appeal  7 CLJ 271 FC). With the original issue document of title to the said Land with his solicitors, the Defendant would have the added comfort that he can take his time to effect the transfer of the said Land.
- In the circumstances, the Court was of the opinion that the balance of convenience favoured the maintenance of the caveat even if it had not lapsed by effluxion of time. In other words, the issue of delay did not tilt the balance in favour of the Plaintiff.
- The Court could have on its own motion ordered the counterclaim raised in the Originating Summons to be converted to a Writ action pursuant to Order 28 R 8 (1) Rules of Court 2012 with the affidavits filed to stand as pleadings. However, given the number of affidavits filed with the various allegations and counter allegations made, to a question raised by the Court on whether the Defendant would consider withdrawing his counterclaim and initiate a Writ action so that the pleadings would be more structured, to the credit of the Defendant, he agreed.
- The Court sympathizes with the Plaintiff widow in having to manage the matter without LKT whom the Defendant in his affidavit averred was his friend but the application has been rendered academic and even if not, the Defendant had succeeded in the three-stage test. Wherefore, the Court dismissed the application in Enclosure 1 but with no order as to costs.
Source: Tee Kim Tin v Teoh Huan Huat-Removal of Caveat. High Court Ipoh. Su Tiang Joo JC.
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