 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(1) Withdrawn by the caveator s325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

PC takes effect by the endorsement

under the hand & seal of the Registrar
s324(2)
 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.

Removal of Private Caveat

 ‘Caveator’ – injunction instead of caveat
 Purpose – preserve the status quo
pending the court adjudication of
competing claims
 Pl – has arguable claim to the interest to
be protected
 Court – balance of convenience in
granting the injunction
 American Cynamid Co v Ethicon Ltd
[1975] AC 396

Sihombing commentary p727-9

 Other possible remedy (steps)
 Mareva injunction – granted to prevent
the D dissipating his assets until claims
can be settled by the court
 Mareva Compania v Naviera SA v
International Bulk Carriers SA ‘The
Mareva’ [1980] 1 All ER 213
 P – show to Court has greater right to the
injunction than he would have to show the
R in seeking to caveat.

Sihombing commentary p727-9

 Summary removal procedure by registered interest
holder (Caveatee)
 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]

Caveatee’s application s.326

lxec2103/fuu.um/zah 5
 Satisfy the court that there are sufficient
reasons in fact and law why the caveat
should continue

 Eng Mee Yong [1979] PC

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

Caveator’s extension application ~

onus = as s327 Caveator defends
his caveat when aggrieved person
appeals to remove
lxec2103/fuu.um/zah 6
 IN relation to an application by the RP
under s326 that the caveator: (onus to
prove has caveatable interest)

 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.

Eng Mee Yong v Letchumanan

[1979] 2 MLJ 212 – Privy Council
 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]

Application to extend the caveat

 ‘Aggrieved’ person’s remedy ~ s.327 ~
1. Prove onus to bring application to
remove – 3 months limitation

 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

Standing to be ‘aggrieved’ linked to his

ability to caveat or register a dealing.
 Sufficient reasons in fact & law to
receive him as a person who claims and
interest in that property aggrieved . . .

 RAP Nathan v Hj Abd Rahman [1980]

 Mohd Azhari v Shanmugam [2006]
 Danaharta Urus v Kekatong [2004]

 Other cases in COURSE OUTLINE

lxec2103/fuu.um/zah 10
 Original 1st RP 1stD sold to 2ndD who
entered joint venture agt w P to develop
land.
5 pieces
Kuala Muda
 2ndD Agt w District Kedah

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.

RAP Nathan v Hj Abd Rahman & Ors[1980] 1

MLJ 248 OCJ HCT Alor Star
 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

‘Aggrieved Person’ – s327

RAP Nathan v Hj Abd Rahman & Ors[1980] 1
MLJ 248 OCJ HCT Alor Star at p249 para 12
 Macon Engineers Sdn Bhd v Gohj Hooi Yin
[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.
 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

Bayas Tudjuh [1974] 1 MLJ 145
 Sing Lian Express [1974] 2 MLJ 24 – option for sale
exercisable within a certain period

RAP Nathan v Hj Abd Rahman & Ors[1980] 1 MLJ

248 OCJ HCT Alor Star at p249-250 para 15 - 16
(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

s.327 - Caveator’s onus

lxec2103/fuu.um/zah 19
COMPARE
Eng Mee Yong [1979]
Sua Betong Sdn Bhd [1992]
Luggage Distributors [1995]
Murugappa Chettiar v Lee Teck Moon
[1995]
 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?

APPLICATION
 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.

Yunley Enterprise Sdn Bhd v Loh

Seng Lee [2009] 10 CLJ
 Pl [purchaser] memohon mengeluarkan
kaveat.

 D hujah injunksi mengikat Pl & mencabar

keesahan prosiding foreclosure PT & PJ.
 [pentadbir tanah & perintah jualan]
 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.

Keputusan
 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.

Aggrieved person
 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.

D [RP] no caveatable interest

 D : 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
NOT CIRCUMSTANCES over &
above its status as a RP giving
rise to a DISTINCT INTEREST
entitling to lodge a PC
 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.

Fakta D
 Memulakan tindakan berasingan untuk
gantirugi terhadap bank kerana
membenarkan tanah-tanah dijual di
bawah nilai, jika berjaya membuktikan
dakwaan tersebut.

Keputusan remedi D