Malaysia Case Law: Decisions & Judgments

Topic

Deferred indefeasibility

Legal area

Court

29 Jul 2024

SETIAKON ENGINEERING SDN. BHD. 1. ) MAK YAN TAI 2. ) MAK KHUM PHOI AMICUS CURIE MALAYSIAN BAR

Citation

02(f)-55-09/2023(W) (Mahkamah Persekutuan)
Court

f
Case number

02(f)-55-09/2023(W) (Mahkamah Persekutuan)

The High Court's setting aside of the fraudulently obtained judgment in default operated retrospectively to render the replacement title void ab initio; the appellant failed to prove on the balance of probabilities that it purchased in good faith and for valuable consideration and was in substance the immediate purchaser or had constructive notice of the fraud, therefore its registered title was defeasible under NLC s340 and the appeal is dismissed.
25 Sept 2023

MALAYAN BANKING BERHAD 1. ) Mohd Affandi Bin Ahmad 2. ) Aminah Binti Ahmad

Citation

J-02(NCvC)(W)-452-03/2022 (Mahkamah Rayuan)
Court

NCvC
Case number

J-02(NCvC)(W)-452-03/2022 (Mahkamah Rayuan)

Court affirmed High Court: SPAs between deceased and vendor were valid and vendor holds Lots 97 and 716 on constructive trust for the estate; the 2nd Defendant was an immediate purchaser from the same vendor (competing equitable/beneficial interest) and not a protected subsequent purchaser under deferred indefeasibility; the Bank failed to prove bona fide purchaser for value because it did not perform adequate due diligence (no proof of payment by 2nd Defendant, no valuation/site verification), therefore its registered charges are defeasible and set aside.
25 Sept 2023

Q-DEVELOPMENT SDN BHD 1. ) Mohd Affandi Bin Ahmad 2. ) Aminah Binti Ahmad

Citation

J-02(NCvC)(W)-549-03/2022 (Mahkamah Rayuan)
Court

NCvC
Case number

J-02(NCvC)(W)-549-03/2022 (Mahkamah Rayuan)

The Court affirmed the High Court: the SPAs were valid and the 1st Defendant holds Lots 97 and 716 on constructive trust for the deceased's estate; the 2nd Defendant was an immediate purchaser competing with the estate (not a protected 2nd‑layer purchaser under deferred indefeasibility) and its title is defeasible; the Bank, as chargee relying on the 2nd Defendant's title, failed to prove bona fides and adequate due diligence (no proof of payment, no valuation/site verification) and therefore its charges are defeasible; both appeals were dismissed and High Court judgment affirmed.
16 Mar 2023

Fung Lee Mee @ Jellsie 1. ) Fung Shaw Yiew @ Jellfer 2. ) Fung Siew Fa @ Emily

Citation

S-01(NCvC)(W)-390-08/2020 (Mahkamah Rayuan)
Court

NCvC
Case number

S-01(NCvC)(W)-390-08/2020 (Mahkamah Rayuan)

Appeals allowed; High Court judgment set aside. On the balance of probabilities the court found the MOT and transfers were valid or, alternatively, the evidence and practice supported the legitimacy of the transfer and the existence of a trust for the mother; the bank was a bona fide subsequent chargee entitled to deferred indefeasibility of its charge. Result: plaintiffs' claim dismissed and costs awarded to appellants.
16 Mar 2023

Public Bank Bhd 1. ) Fung Shaw Yiew @ Jellfer 2. ) Fung Siew Fa @ Emily 3. ) Registrar of Titles, Land & Surveys Department

Citation

S-01(NCvC)(W)-379-08/2020 (Mahkamah Rayuan)
Court

NCvC
Case number

S-01(NCvC)(W)-379-08/2020 (Mahkamah Rayuan)

The Court of Appeal allowed both appeals, set aside the High Court order, held that the plaintiffs failed to prove forgery of their signatures and had not discharged the burden on balance; the transfer was valid (consistent with a secret trust for the mother) and the 3rd Defendant Bank was a bona fide subsequent chargee entitled to deferred indefeasibility; plaintiffs' claims were dismissed and costs awarded to the appellants (RM70,000 and RM30,000 respectively).
18 Mar 2019

MEGA MEISA SDN BHD & 2 LAGI MUSTAPAH BIN DORANI

Citation

W-02(NCVC)(W)-395-02/2018 (Mahkamah Rayuan)
Court

NCVC
Case number

W-02(NCVC)(W)-395-02/2018 (Mahkamah Rayuan)

The Court of Appeal affirmed the High Court: the plaintiff had locus standi as trustee/representative via caveat; the SPA and JVA are interrelated and read together; evidence established actual fraud by the defendants in obtaining registration so the registered title was defeasible under s340(2) NLC; limitation did not bar the claim because of fraud; consequently the transfers were set aside and the plaintiff entitled to RM2,146,000 and transfer relief; appeals dismissed.
1 Jan 1900

CIMB ISLAMIC TRUSTEE BERHAD 1. PENDAFTAR HAKMILIK NEGERI SELANGOR 2. PEGARAH TANAH DAN GALIAN NEGERI SELANGOR 3. HOO CHIA CHOON 4. HOO MOOI HWA 5. HONG LEONG BANK BERHAD

Citation

B-01(NCVC)(W)-67-02/2018 (Mahkamah Rayuan)
Court

NCVC
Case number

B-01(NCVC)(W)-67-02/2018 (Mahkamah Rayuan)

Court held 1st and 2nd respondents breached mandatory duties under the Fourteenth Schedule when converting the manual title into the computerised register because the computerised title did not mirror the manual title; that breach rendered the computerised titles (HSD 40222/HSD 77602) void ab initio; section 22 NLC immunity did not apply because acts were not in good faith; PAPA limitation did not bar relief for ultra vires acts; consequently the 3rd respondent's registration and the bank's charge, derived from a void title, are invalid and the appellant's claim for rectification and declarat…
AU MENG NAM & ANOR V. UNG YAK CHEW & ORS

Citation

AU MENG NAM & ANOR V. UNG YAK CHEW & ORS
Court

Malaysian court

Court allowed the appeal, held Adorna Properties was not a binding precedent insofar as it was decided per incuriam and misread s.340; where the issue document itself is forged the purchaser who takes title directly from the forger does not obtain indefeasible title; the 1st defendant failed to prove he was a bona fide purchaser in good faith and for valuable consideration because of his haste and lack of proper inquiry; consequential orders follow to restore title and cancel the transfer endorsement.