Eng Mee Yong v Letchumanan s/o Velayutham

JurisdictionUK Non-devolved
Judgment Date1979
Date1979
Year1979
CourtPrivy Council
[PRIVY COUNCIL] ENG MEE YONG AND OTHERS APPELLANTS AND v. LETCHUMANAN S/O VELAYUTHAM RESPONDENTS [APPEAL FROM THE FEDERAL COURT OF MALAYSIA] 1979 Feb. 14, 15; April 4 Lord Diplock, Lord Morris of Borth-y-Gest, Lord Hailsham of St. Marylebone, Lord Edmund-Davies and Lord Fraser of Tullybelton

Malaysia - Land - Registration of title - Private caveat - Registered proprietors' application to remove caveat - Conflicting affidavit evidence - Caveator's evidence lacking credibility - Whether order to remove caveat from register justified - National Land Code (No. 56 of 1965), s. 327

The caveatees were the registered proprietors of land. The caveator was a purchaser of the land who had defaulted on the final payment of the purchase price on the date due under the terms of the written contract. On that default the caveatees had served notice on the caveator terminating the contract for breach. The caveator started an action for specific performance of the contract and entered a private caveat on the register to the extent of a whole share. The caveatees applied to the High Court under section 327 of the National Land CodeF1 for the removal of the caveat. They supported their application by an affidavit exhibiting the written contract of sale. The caveator also filed an affidavit which contained assertions which conflicted with that of the caveatees and also with the terms of the written contract. The judge rejected the conflicting assertions made by the caveator as false, inadmissible and unlikely and ordered the removal of the caveat. The caveator appealed to the Federal Court which set aside the judge's order on the ground that once the caveator had asserted that the contract of sale had not been lawfully terminated and had begun an action for specific performance the judge was bound to leave the caveat on the register until the action had been disposed of.

On the caveatees' appeal to the Judicial Committee: —

Held, allowing the appeal, that, where an application to the court under section 327 for the removal of a caveat was by the registered proprietor of the land, the caveator had to satisfy the court that there was a serious issue to be tried and, having done so, to show that on the balance of convenience, the status quo should be maintained until trial; that although on such an application a conflict of evidence usually indicated that there was a serious issue to be tried and it was normally inappropriate to resolve that conflict on affidavit evidence, the judge was entitled to consider whether the plausibility of the evidence merited further investigation and, since the judge exercising his discretion judicially had found that the caveator's evidence lacked credibility, his decision that the caveator had not shown that there was a serious issue to be tried should not be interfered with on appeal (post, pp. 376H–377A, D–F, 378D–E, 381D–G, 382B–C).

American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396, H.L.(E). applied.

Nanyang Development (1966) Sdn. Bhd. v. How Swee Poh [1970] 1 M.L.J. 145 and Kasivisvanathan Chettiar v. Pereira [1976] 2 M.L.J. 110 disapproved.

Judgment of the Federal Court of Malaysia reversed.

The following cases are referred to in the judgment:

American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396; [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504, H.L.(E.).

Kasivisvanathan Chettiar v. Pereira [1976] 2 M.L.J. 110.

Nanyang Development (1966) Sdn. Bhd. v. How Swee Poh [1970] 1 M.L.J. 145.

The following additional cases were cited in argument:

Connecticut Fire Insurance Co. v. Kavanagh [1892] A.C. 473, P.C.

Crabb v. Arun District Council [1976] Ch. 179; [1975] 3 W.L.R. 847; [1975] 3 All E.R. 865, C.A.

Evenden v. Guildford City Association Football Club Ltd. [1975] Q.B. 917; [1975] 3 W.L.R. 351; [1975] I.C.R. 367; [1975] 3 All E.R. 269, C.A.

Inter-Continental Mining Co. Sdn. Bhd. v. Societe des Etains de Bayas Tudjuh [1974] 1 M.L.J. 145.

Jit Kaur v. Parl Singh [1974] 2 M.L.J. 199.

Macon Engineers Sdn. Bhd. v. Goh Hooi Yin [1976] 2 M.L.J. 53.

Panoutsos v. Raymond Hadley Corporation of New York [1917] 2 K.B. 473, C.A.

Peychers' Caveat, In re [1954] N.Z.L.R. 285.

APPEAL (No. 25 of 1977) by Eng Mee Yong, Ng Yee Hong, Ng Yee Foo, Ng Yee Deng, Ng Yee Cheen and Ng Yee Thong (the caveatees) from a decision of the Federal Court of Malaysia (Gill Ag.L.P., Ong Hock Sim and Raja Azlan Shah F.JJ.) given on September 7, 1976, setting aside an order (November 10, 1975) of the High Court at Seremban (Ajaib Singh J.) that a caveat presented by the respondent V. Letchumanan s/o Velayutham (the caveator) and registered against land held under grant 2457 lot 593 in the Mukim of Ampangan, District of Seremban, should be removed from the register pursuant to the caveatees' application under section 327 (1) of the National Land Code.

The facts are stated in the judgment.

Christopher Bathurst Q.C. for the caveatees.

Jules Sher and Navaratnam Ramchandran (of the Bar of Malaysia) for the caveator.

Cur. adv. vult.

April 4. The judgment of their Lordships was delivered by LORD DIPLOCK.

This is an appeal from a judgment of the Federal Court of Malaysia in proceedings brought in the High Court in Malaya at Seremban under section 327 (7) of the National Land Code, and claiming the removal of a private caveat which had been entered on the register document of title to land under section 322 of the code.

The applicants in the High Court (“the caveatees”) were the registered proprietors of the land which is situated in the Ampangan district of Seremban. The respondent in the High Court (“the caveator”) was the person at whose instance a caveat was entered on the register document of title to the land, on November 9, 1974. The caveat was expressed to bind the land itself to the extent of a whole share. The caveatees had applied to the registrar on January 6, 1975, for removal of the caveat under section 326 (1) of the code; but the registrar was unable to serve notice of intended removal on the caveator as he could not be found. The caveatees were thus driven to proceed ex parte under section 327 (1) for an order for the removal of the caveat. This they did on August 26, 1975: their application was supported by a joint affidavit of the caveatees. The case came on for hearing before Ajaib Singh J. in the High Court on November 10, 1975. Shortly before that, the caveator had appeared and on November 4 had filed an affidavit in which he asserted a right to the title in the land under a contract of sale made between him and the caveatees. Shortly before the date of his affidavit he had issued a writ claiming specific performance of this contract. The judge granted the caveatees' application and ordered the removal of the caveat. He gave his reasons for judgment on February 5, 1976. The caveator appealed to the Federal Court on a number of grounds to which their Lordships will have to advert later. The appeal was heard on September 7, 1976. It was allowed, and the order for removal of the caveat set aside. From this judgment and order of the Federal Court appeal is now brought to His Majesty the Yang di-Pertuan Agong.

Although the facts of the instant case are peculiar to itself the appeal raises a question of law of more general importance as to the principles applicable to the exercise by the High Court of its jurisdiction under sections 326 and 327 of the National Land Code. Their Lordships will deal with this general question first before turning to the consequence of applying those principles to the facts of the instant case. The Torrens system of land registration and conveyancing, as applied in Malaya by the National Land Code, has as one of its principal objects to give certainty to title to land and registrable interests in land. Since the instant case is concerned with title to the land itself their Lordships will confine their remarks to this, though similar principles apply to other registrable interests. By section 340 the title of any person to land of which he is registered as proprietor is indefeasible except in cases of fraud, forgery or illegality...

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