Académique Documents
Professionnel Documents
Culture Documents
1.
2.
PENTADBIR TANAH,
PEJABAT TANAH DAN GALIAN NEGERI JOHOR
DEFENDAN-DEFENDAN
DI HADAPAN
YA TUAN GUNALAN A/L MUNIANDY
PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI
GROUNDS OF DECISION
[1]
In this application, the Plaintiff (P) prayed for the following orders:
(a) Selaras dengan Seksyen 340 (2) (b) Kanun Tanah Negara
1965, gadaian yang dimasukkan oleh Defendan Pertama
melalui perserahan no 35022 bertarikh 2hb Ogos 1999 ke
atas harta tanah yang dipegang di bawah Pajakan No. 548,
No. Lot 139, Mukim Tebrau, Negeri Johor, milik Plaintif
diketepikan dan tidak mempunyai kesan;
(b)
(c)
Background Facts
[2]
P was awarded a contract by the Government of Malaysia
pursuant to a letter of intent issued by the Prime Ministers Department
dated 02.03.1996 for a Ministry of Defence Army Camp Project on 3 pieces
of land in Pulai, Johor Bahru (JB) at a price of RM250 million. The 3 lots
of land were:
(i)
(ii)
(iii)
(ii)
[3]
Upon negotiations, P and the Government entered into a
Privatisation Agreement dated 10.07.2007 for privatisation of the project
and development on the said land.
[4]
On the same date, P entered into an assignment agreement with
one Kausar Corporation Sdn Bhd (Kausar) whereby P assigned all its
rights and benefits under the Privatisation Agreement (PA) to Kausar. In
return, Kausar agreed to assume all of Ps obligations and liabilities under
the PA.
[5]
MBSB Development Sdn Bhd (MDSB) was thereafter invited by
Kausar to participate in the development of the land on a joint venture basis
and to share the benefits thereof. As a result, the 2 parties executed a
Joint Venture Agreement (JVA) pursuant to which they agreed to establish
a joint venture company named Definite Pure Sdn Bhd (DP) to carry out
mixed development on the land.
[6]
At the request of DP and pursuant to a Loan Agreement dated
21.10.1997, the 1st Defendant (MBSB) provided 2 loan facilities to DP,
namely:
(i)
(ii)
[7]
Contrary to above term of the agreement, the charge instrument
(Form 16A) was registered as a 1st party charge instead of a 3rd party
charge whereas the Charge Annexure clearly classifies the charge as a 3rd
party charge. Both P and MBSB admitted that the Form 16A was a
mistake and thus, defective. Hence, this application to set aside the charge
on the ground that the Form 16A creating the charge was an insufficient
instrument that rendered the charge void and invalid.
Issues Arising
[9]
1)
2)
3)
(b)
(c)
[11]
In Hassan Seman v. Jusoh Awang Kechik [1982] CLJ (Rep) 110
the Federal Court held:
5
[12]
The first and crucial point to note is that the power conferred by
section 380 (1), NLC is confined to correction of errors in documents of title
or any other instrument relating to land and more importantly, that the
power is vested in the Registrar of Titles and not in the Court. Nowhere in
section 380, NLC is there provision for the Court to exercise its powers to
correct any error or omission as stated. The 1st Defendants contention in
this regard was, thus, plainly misconceived and erroneous. Despite being
fully aware of the purported genuine mistake or error in the registration of
the impugned charge, the 1st Defendant had to date not made any
application to the Registrar to correct it and rectify the charge pursuant to
the powers provided for in section 380, NLC.
[13]
I agree with the proposition of law that under section 380, NLC
only the Registrar of Titles was empowered to make the correction of any
error and that the Court was only empowered to act on appeal from the
Registrars decision under section 418 or on reference by the Registrar
under section 419, NLC. This was decided by Mohd Hishamudin Yunus, J
(as he then was) in Kuah Chiew Ann v. Pendaftar Hakmilik Tanah Wilayah
Persekutuan [2000] 6 MLJ 127 where it was held:
The court does not possess the power to make the order as
prayed for because under s 380 of the National land Code 1965
(the NLC), the party authorized to amend the document of title is
the registered proprietor and not the court.
Therefore, an
interested party who wishes to have the amendments must defer
to the registered proprietor. The court can only act where the
matter has been brought to court under s 418 or s 419 of the NLC
(see pp 130D, 132B-C).
6
[14]
From the clear and unambiguous terms of s. 380, NLC read
literally, there can be no doubt that the 1st Defendant did not have recourse
to the Court to correct or amend the mistake in the charge instrument
without having applied to the Registrar to do so in the exercise of his
powers under the same section.
[15]
The Plaintiff next submitted that the power conferred by section
380, NLC did not extend to correcting the nature or vital terms of the
document creating the charge, the document in this case being the Form
16A. Under section 380, NLC, the errors or omissions on documents of
title or instruments amenable to correction or amendment are as specified
therein. I upheld the submission that these do not include mistakes relating
to the very nature of the instrument itself or amendments to its fundamental
terms. In this case, the Form 16A that created the charge was in conflict
with the Loan Agreement and JVA entered into between the parties. The
7
mistake that occurred went to the type of charge as intended by the parties
or the nature of the instrument itself that wrongfully created a first party
charge over the subject land to the detriment of the Plaintiff. The Form 16A
had the effect of changing the nature of the transaction between the parties
in that the Plaintiff was described as the borrower of the loan of
RM465,000.00 from the 1st Defendant whereas the 2nd Defendant was the
borrower to whom the loan had been released. It had clearly altered the
capacity of the Plaintiff from that of a third party chargor to that of a
borrower liable under the Loan Agreement. A mistake of this nature going
to the type and status of the charge, was in my view, fundamental and
serious that did not fall with the types of error or omission that were curable
or rectifiable under section 380, NLC.
[16]
A charge that is created, inter-alia, by an insufficient or void
instrument, is rendered defeasible under the exceptions to indefeasibility
specified in section 340 (2), NLC. In this case, the Form 16A that
fundamentally conflicted with the Loan Agreement that was the basis of the
charge over the subject land and the express intention of the contracting
parties, could be regarded as an insufficient and defective instrument. It
was, thus, voidable at the instance of the affected or aggrieved party, viz.,
the Plaintiff as the chargor. [See Tan Tock Kwee & Anor v. Tey Siew Cha
& Anor [1995] MLJU 408]. Section 340, NLC states that:
340
(1) The title or interest of any person or body for the time
being registered as proprietor of any land, or in whose name any
lease, charge or easement is for the time being registered, shall,
subject to the following provisions of this section, be indefeasible.
(2) The title or interest of any such person or body shall not
be indefeasible
(a) in any case of fraud or misrepresentation to which
the person or body, or any agent of the person or
body, was a party or privy; or
[19]
The mistake in the Form 16A adverted to is serious and
fundamental as, inter alia, it altered the status of the Plaintiff from that of a
9
11