Vous êtes sur la page 1sur 73

REGISTRAR’S CAVEAT

05/14/14 Ainul Jaria Maidin 1


Outline

•Examine the features & important concepts


related to RC
•Effect of RC
•Procedure for entry & removal of RC

05/14/14 Ainul Jaria Maidin 2


– A specific type of caveat where power to
enter caveat lies with Registrar.

05/14/14 Ainul Jaria Maidin 3


Nature & Scope
– RC is entered to protect and inhibit dealings
with land

– Entry or lodgement of RC does not create or


enhance any existing claim to title or interest
or give rise to any claim to title or interest

05/14/14 Ainul Jaria Maidin 4


Functions of Registrar

• S.319(a) NLC: “A caveat may be entered by


the Registrar on the register document of
title of any land.”

05/14/14 Ainul Jaria Maidin 5


• Issue: Whether Registrar has discretion to
enter caveat or refuse entry of Caveat

• AR. PL. Palaniappa Chettiar v PL. AR.


Letchumanan Chettiar & Anor[1982] 1 MLJ
232 – discretion is with Registrar as to
whether to enter a caveat.
• discretion of Registrar must be exercised
judiciously and reasonably without any
element of mala fide (bad faith)
05/14/14 Ainul Jaria Maidin 6
Registrars Powers
RC entered in circumstances specified in
S.320(1) NLC whenever it appears
necessary or desirable to Registrar.

• Registrar performs quasi-judicial function

05/14/14 Ainul Jaria Maidin 7


• Court can remove RC if entry is
misleading and no longer necessary or
desirable - Lim Ah Hun v Pendaftar
Hakmilik Tanah, Pulau Pinang & Anor
[1990] 3 MLJ 34 p.37

05/14/14 Ainul Jaria Maidin 8


• Issue: Can Court order
Registrar to enter caveat
pursuant to s.417(1) NLC?

05/14/14 Ainul Jaria Maidin 9


• S. 417 (1) NLC
• “The court may make an order directing
Registrar or LA to do all such things as may
be necessary to give effect to any judgment
or order of given or made in any proceedings
relating to land, and it shall be the duty of
the registrar or collector to comply with the
order forthwith.”

05/14/14 Ainul Jaria Maidin 10


• Palaniappa Chetty v Letchumanan
Chetty [1982] 1 MLJ 232 - Ct have no
jurisdiction to order entry of RC since
Registrar was not made a party to
proceedings

05/14/14 Ainul Jaria Maidin 11


• Seet Soh Ngoh v Venkateswara
Bhd. [1976] 1 MLJ 242, - power
to order Registrar to enter RC
since Registrar was before court.

05/14/14 Ainul Jaria Maidin 12


• prudent to include Registrar as a party to
action,
• however no provisions in NLC preventing or
restricting courts powers if it deems just to
order Registrar
• HC –Ct has powers pursuant to s.417(1) NLC
to order Registrar to enter RC pursuant to
s.320 NLC for prevention of fraud, or
improper dealings, whether or not Registrar
is a party to proceedings
05/14/14 Ainul Jaria Maidin 13
• In Tan Soo Bing v Tan Kooi Fook [1996] 3 MLJ
547 at 557 (the decision in the above cases were
overruled), per Wan Adnan FCJ:
“… it is clear that a person who desires to have a RC
entered in respect of any land must apply to
Registrar. If registrar refuses his application, his
remedy is to appeal to court against such refusal.
He cannot go straight to court… the court has no
jurisdiction to entertain such applications. The
court only has appellate jurisdiction under S.418
NLC.
05/14/14 Ainul Jaria Maidin 14
• Under S.418 NLC - court may reverse decision
of Registrar and direct him to enter RC.
• aggrieved party cannot disregard appeal
provisions under S.418 and go to High Court for
an order that Registrar enters a RC.
• court can only direct Registrar to enter RC if
court do not agree with decision of Registrar
when exercising the appellate jurisdiction under
S.418 NLC.”

05/14/14 Ainul Jaria Maidin 15


• Effect of Registrars Caveat - S.319(1)(b)
is to prevent:
• a.  Any Dealings on disputed land
• b. Claim for tenancy exempt from
registration on disputed land
• c. Entry of a Lien-Holders caveat on
disputed land.

05/14/14 Ainul Jaria Maidin 16


• RC takes retrospective effect.
• It has the effect of preventing
registration of any dealing, which was
presented for registration and yet to be
registered when RC was entered.
• RC will not have any effect on a prior
registered dealing.

05/14/14 Ainul Jaria Maidin 17


READ

• Lim Ah Hun v Pendaftar Hakmilik Tanah


Pulau Pinang & Anor [1990] 3 MLJ 34
• Development and Commercial Bank Bhd v
Govt of Malaysia & Ors [1989]3 MLJ 359
• Temenggong Securities Ltd. v Registrar
of Titles [1974] 2 MLJ 45

05/14/14 Ainul Jaria Maidin 18


• Overseas Chinese Banking Corp.Ltd. v
PHT Negeri Kedah [1990] 2 MLJ 478;
[1991] 2MLJ 177
• Development and Commercial Bank Bhd.
v Land Administrator WP [1991] 2 MLJ
180
• MUI Finance Bhd. v Pendaftar Hakmilik
Shah Alam & Anor [1993] 1 AMR

05/14/14 Ainul Jaria Maidin 19


Circumstances where Registrars
Caveat Can be Entered
S.320(1)

05/14/14 Ainul Jaria Maidin 20


• RC can be entered in respect of any land
wherever it appears to Registrar to be
necessary or desirable.
• (a) for the prevention of fraud or
improper dealing; or

05/14/14 Ainul Jaria Maidin 21


• (b) for protecting interests of the
followings:
– (i) federation or State Authority
– (ii) any person under:
-disability of minority; or
- mental disorder or unsound mind; or
- absent from the Federation
05/14/14 Ainul Jaria Maidin 22
• (ba ) to restraint the land from being dealt
with in order to ensure that the land is
available to satisfy the whole or any part of
debt due to the Federation or the State
Authority, irrespective if judgment has
been obtained or nor; or
• (c) due to an error on the register
document of title to land or any related
instrument
05/14/14 Ainul Jaria Maidin 23
Prevention of Fraud or Improper
Dealing
S 320 (1)(a) NLC

05/14/14 Ainul Jaria Maidin 24


• Registrar can enter RC on application of
persons or representatives of persons in
s.320(1)(a)(b) NLC to prevent fraud or
improper dealing with land.

• Registrar does not have to take part in


any examination of severity of fraud or
improper dealing

05/14/14 Ainul Jaria Maidin 25


• If there is evidence that raises suspicion
of such dealing, should be adequate for
Registrar to decide to enter RC.
• Registrar must make adequate inquiries
but not required to make a decision that
alleged act of fraud has actually been
committed.

05/14/14 Ainul Jaria Maidin 26


Caveating one’s own land
• Landowner is prohibited from caveating own
land, unless can show existence of an interest
to that arising beyond legal proprietorship.
• This is difficult to prove
• However, in instances where IDT to land is lost
or stolen owner since cannot enter a Private
Caveat can apply to Registrar to enter a RC
for prevention of fraud or improper dealings

05/14/14 Ainul Jaria Maidin 27


• Re An Application by Haupiri Courts
(No.2) [1969] NZLR 358
• Eu Finance Berhad v Siland S.B.& (M&J)
Frozen Food S.B. [1989]1 MLJ 195
• Boonsom Boonyanit v Adorna Properties
[1990] 3 MLJ 444
• Lim Ah Hun v Pendaftar Hakimilik Tanah
Pulau Pinang & Anor [1990] 3 MLJ 34

05/14/14 Ainul Jaria Maidin 28


• Ss-320(1)(b)(i) NLC provides that interest of
Federation or SA can be protected using RC
• Registrar usually enter a caveat even before an
interest in land in favour of Federation or State
Authority arises.
• Temenggong Securities Ltd. v Registrar of Titles
[1974] 2 MLJ 45 registrar entered a Caveat to
protect interest of IRD in respect of a claim for
unpaid income tax.

05/14/14 Ainul Jaria Maidin 29


• Privy Council - interests, which can be
protected are those ‘in land that are
recognised by NLC as being either
registerable or otherwise entitled to
protection.
• interest must be proprietary as such an
unsecured creditor of proprietor of land
has no such interest in the land.
• Caveat must be removed because interest
did not represent Ainul
05/14/14 an Jaria
interest
Maidin in land 30
Amendment to NLC to
Insert Subsection(ba)
• Government dissatisfied with decision in
Temenggong Securities inserted sub-sec
(ba)
• In circumstances where debt is unsecured
or judgment has yet to be obtained
against registered proprietor, Govt
reserves right to apply to enter a RC to
prevent dealing with caveated land prior
to settlement of Government’s claim.

05/14/14 Ainul Jaria Maidin 31


Effect of RC entered by
govt
• Though Registrar is permitted to enter
caveat on behalf of Govt, caveat will
not have effect of overriding interests
of existing interest holders.
• Thus prior registered chargee’s rights
will never be affected by subsequent
entry RC on behalf of Govt.

05/14/14 Ainul Jaria Maidin 32


• Development & Commercial Bank Bhd v
Govt. of Malaysia &Ors.[1989]3MLJ 359
• Overseas Chinese Banking Corp. Ltd. v
PHT Negeri Kedah [1990]2 MLJ 478;
[1991]2 MLJ 177
• Development and Commercial Bank Bhd. v
Land Administrator WP [1991] 2 MLJ 180
• MUI Finance Bhd. v Pendaftar Hakmilik
Shah Alam & Anor [1993]1 AMR
05/14/14 Ainul Jaria Maidin 33
Who can apply for RC
-S.320(1)(b) NLC

• (i) Federation or State Authority


• (ii) any person under the
– (a) disability of minority; or
– (b) mental disorder or unsound mind; or
– (c) absent from the Federation.

05/14/14 Ainul Jaria Maidin 34


(a) disability of minority

• Registrar can enter RC to protect


interest in land or a right to such an
interest for a minor.
• Age of Majority Act 1971 (Act 21)
provides in S.2 that age of majority is
18 years old.

05/14/14 Ainul Jaria Maidin 35


• (b)mental disorder or unsound mind; or

• Registrar can enter RC to protect interest


in land or a right to such an interest for a
person who is unsound mind.
• Mental Disorders Ordinance 1952.

05/14/14 Ainul Jaria Maidin 36


(c)absent from
Federation

• Registrar can enter RC to protect


interest in land or a right to such an
interest for a person who is absent from
Federation

05/14/14 Ainul Jaria Maidin 37


Entry of RC
S.321 NLC
• Form 19F, endorsed & sealed by Registrar:

“Registrars Caveat Entered” together with


statement of time and entry.

05/14/14 Ainul Jaria Maidin 38


Duration -S.321(3) NLC

• No fixed duration or specific life span for


RC
• s.321(3) - RC shall continue in force until
cancelled by Registrar.
• RC does not lapse with the effluxion of
time.

05/14/14 Ainul Jaria Maidin 39


• Once RC entered - serve notice on
registered proprietor in Form 19A -
s.321(2) NLC

05/14/14 Ainul Jaria Maidin 40


• RC continue in force until cancelled by
Registrar:
• a.S.321(3)(a) - of his own motion;
• b.S.321(3)(b)- application by proprietor of
caveated land; or
• b.S.321(3)(c) - pursuant to Court Order.

05/14/14 Ainul Jaria Maidin 41


Questions
• Who can apply to enter RC
• What are the functions/discretionary powers
of Registrar in RC
• What are the functions of RC
• Can a RC affect prior registered interests to
give effect to subsequent unsecured
interests/claims
05/14/14 Ainul Jaria Maidin 42
REMOVAL OF REGISTRARS
CAVEAT

05/14/14 Ainul Jaria Maidin 43


• RC continue in force until cancelled by
Registrar:
• a.S.321(3)(a) - of his own motion;
• b.S.321(3)(b)- application by proprietor of
caveated land; or
• b.S.321(3)(c) - pursuant to Court Order.

05/14/14 Ainul Jaria Maidin 44


Removal by Registrar
s.321(3)(a) NLC

• Registrar can remove caveat when he is


of view that there is no need for caveat
to remain as it has served its’ purpose.

05/14/14 Ainul Jaria Maidin 45


Removal by landowner-s.321(3)(b)
• Registered proprietor (Caveatee) of land,
upon receiving Notice of Entry of Caveat
Form 19A can apply to Registrar to remove
caveat.

05/14/14 Ainul Jaria Maidin 46


• Registrar can remove or reject
application for removal.
• Registrar removes RC, matter will be
resolved
• Registrar refuses to remove RC,
Caveatee can appeal to Court against
decision of Registrar not to remove RC.

05/14/14 Ainul Jaria Maidin 47


05/14/14 Ainul Jaria Maidin 48
Pursuant to Court
order -S.321(3)(c)
• Caveatee, can appeal against decision
of Registrar not to remove caveat
pursuant to S.418 - S.321(3)(c) NLC

05/14/14 Ainul Jaria Maidin 49


Appeal pursuant to s.418
NLC

• registered proprietor is required to appeal


to High Court within 3 months from time of
communication of decision of Registrar
rejecting the application to remove
Registrars Caveat - S. 321(3)(b) NLC

05/14/14 Ainul Jaria Maidin 50


• Any other person who is not registered
proprietor but aggrieved by decision of
Registrar must appeal to H Ct within 3
months from date on which decision was
communicated to him.

05/14/14 Ainul Jaria Maidin 51


Removal of Registrars’ Caveat
by Aggrieved Chargees

05/14/14 Ainul Jaria Maidin 52


• registered Chargee aggrieved by entry of
Registrars Caveat has right to seek to
remove the Registrars Caveat from time
entry of Caveat is communicated to them.
• appeal can be made pursuant to S 418 NLC

05/14/14 Ainul Jaria Maidin 53


• Aggrieved chargee cannot apply to
Registrar to remove caveat –s.321(3)(c)

• S.321(3)(C) NLC–provides for registered


proprietor whose application to remove
caveat to registrar is rejected.

05/14/14 Ainul Jaria Maidin 54


Remedy to aggrieved
chargee

05/14/14 Ainul Jaria Maidin 55


• Development & Commercial Bank v LA WP
[1991] 2 MLJ 180
• SC -considered issue whether chargee
who is not aware of entry of Registrars
Caveat or who has not objected to entry
of caveat in first instance has a right to
appeal pursuant to S.418 NLC

05/14/14 Ainul Jaria Maidin 56


Azmi SCJ at p.185 …,
• “… firstly there is no express provision in
s 321 NLC to enable a chargee on its own
right to apply to Registrar or Land
Administrator to cancel or remove the
registrars caveat, thereby making it
quite impossible for the chargee to
obtain a decision of the registrars
caveat, for the purpose of an appeal
under s. 418
05/14/14 Ainul Jaria Maidin 57
• Secondly, under s 321(3) read with s.418, a
in the absence of the right to apply for
cancellation and as well as the absence of
express appeal provision chargee can only
appeal against the decision of the registrar
to enter the caveat but not against a
decision refusing to cancel the caveat.

05/14/14 Ainul Jaria Maidin 58


• In absence of right to apply for cancellation
and as well as the absence of express appeal
provision by a chargee relating to refusal of
Registrar to remove caveat entered under s
320(1)(ba) declaratory relief should be
available to chargee.

05/14/14 Ainul Jaria Maidin 59


• power to grant a declaratory
judgment must be exercised with
great care and judiciously and in
appropriate cases

05/14/14 Ainul Jaria Maidin 60


• Pendaftar Hakmilik Negeri Kedah v Overseas Chineese
Banking Corp. Ltd. (1991) 2 MLJ 177 at 179 (SC)
• sale of charged land by chargee was disrupted by
existence of RC entered by Registrar to protect interest
of unsecured debt of the federation.
• Gunn Chit Tuan SCJ - … Registrar had failed to take into
consideration several material factors in entering RC on
application of IRD.
• Reg has not acted judiciously or reasonably within ambit
of NLC.
• He has exceeded his powers and acted ultra vires and his
act is invalid.

05/14/14 Ainul Jaria Maidin 61


… cont….
• court - before exercising his discretionary
power under subsection (ba) Registrar must
first check market value of disputed land &
amount of debt due to government.
• If debt due on any prior charge or charges
exceeds market value of land, RC cannot be
entered against land as it can be reasonably
inferred that debt due to Federation can
never be satisfied from sale of land.

05/14/14 Ainul Jaria Maidin 62


Public Bank Berhad v Pengarah
Tanah & Galian & Anor.[1990] 2
MLJ 510
• Ct - rights of a prior registered interest-
holder would enable him to defeat rights of
Federation or State Authority.
• Ct - willing to allow entry of RC on behalf by
unsecured Federal or state government.
• Interest of Federation can be upheld only if
there are no prior registered interest of a
third party which would have been adversely
affected by existence of caveat.
05/14/14 Ainul Jaria Maidin 63
• Development and Commercial Bank Bhd v
Government of Malaysia & Ors [1989] 3 MLJ
359
• Overseas Chinese Banking Corpn. Ltd. v PHT
Negeri Kedah [1990] 2 MLJ 478; [1991] 2
MLJ 177
• MUI Finance Bhd v Pendaftar Hakmilik Shah
Alam & Anor [1993] 1 AMR
• Lim Ah Hun v Pendaftar Hakimilik Tanah Pulau
Pinang & Anor [1990] 3 MLJ 34
05/14/14 Ainul Jaria Maidin 64
Summary
Procedure of Removal of RC
by Registered Proprietor

05/14/14 Ainul Jaria Maidin 65


• i. Communication of entry of caveat
by Registrar to proprietor
• ii. Proprietor appeal to registrar
against entry of caveat
• Registrar refuse to remove caveat
• Appeal to court –s.418 within 3
months from decision of Registrar to
remove RC.
05/14/14 Ainul Jaria Maidin 66
Procedure of Removal of RC
Registered Interest Holder

05/14/14 Ainul Jaria Maidin 67


• Communication of entry of RC by
registrar.
• Within 3 months from decision of
Registrar to enter RC must apply to court
to remove RC.

05/14/14 Ainul Jaria Maidin 68


Registered Interest Holder

• D&C Bank v Govt. of M’sia [1989] 3 MLJ


359 – time to seek to remove RC by any
person having registered interest on land
begins from time of communication of
entry of RC.
• registered interest holder has no right to
apply for removal of RC to the registrar
• He must act expeditiously under s.418.
05/14/14 Ainul Jaria Maidin 69
• Public Back Bhd. v Pengarah Tanah &
Galian JB [1990] 3 MLJ 100 – right of
appeal for others with registered
interest is pursuant to s.418.

05/14/14 Ainul Jaria Maidin 70


Cancellation of Registrars
Caveat
S.321(4) NLC

05/14/14 Ainul Jaria Maidin 71


• Registrar shall give effect to any order of
court by making a note under his hands
and seal the date of cancellation of
Caveat entered – s.417
• If Registrar acts on his own motion to
remove Caveat, he shall notify registered
proprietor of affected land.

05/14/14 Ainul Jaria Maidin 72


Any questions?

05/14/14 Ainul Jaria Maidin 73

Vous aimerez peut-être aussi