Malayan Banking Berhad v Sivakolunthu Thirunavukarasu and Others

Malayan Banking Berhad v Sivakolunthu Thirunavukarasu and Others

The registered mortgage stands and is indefeasible because the plaintiff and its solicitor were not parties to, nor colluded in, the fraud; the solicitor's conduct amounted at worst to negligence or lack of due diligence and did not constitute wilful blindness akin to fraud under s46(2)(a); s160(1)(b) did not apply as registration was not shown to have been obtained by fraud, omission or mistake attributable to the plaintiff or its agent; no personal equity existed to defeat indefeasibility.

Citation
[2007] SGHC 161
Parties
Plaintiff: Malayan Banking Berhad; First Defendant: Sivakolunthu Thirunavukarasu; Second Defendant: Sim Chiang Lee; Third Defendant: Sim Sien Tiong; Fourth Defendant: Sim Ah Ban
Court
General Division of the High Court
Jurisdiction
Singapore
Judgment Date
28 September 2007
Case Number
OS 1009/2005
Procedural Posture
Civil Action Concerning Land Title, Mortgage and Indefeasibility Under the Land Titles Act / Judgment (high Court)
Outcome
Plaintiff's claims allowed; defendants' counter-claim dismissed.
Legal Topics
Registration of Title, Land Titles Act, Indefeasibility of Title, Mortgage Obtained by Fraud/forgery, Wilful Blindness Vs Negligence, Rectification Under S160(1)(b), Undue Influence by Solicitor
Source Language
English
Land Law Equity Property Registration Civil Procedure Registration of Title Land Titles Act Indefeasibility of Title Mortgage Obtained by Fraud/forgery +3 more

Case Brief

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Parties

Malayan Banking Berhad

Plaintiff

Sivakolunthu Thirunavukarasu

First Defendant

Sim Chiang Lee

Second Defendant

Sim Sien Tiong

Third Defendant

Sim Ah Ban

Fourth Defendant

Procedural Posture

Civil Action Concerning Land Title, Mortgage and Indefeasibility Under the Land Titles Act / Judgment (high Court)

Legal Issues

  1. 1 Whether a registered mortgage obtained in circumstances involving forgery and a fraud by a third party can be defeated because the mortgagee or its solicitor was wilfully blind or voluntarily ignorant amounting to fraud under s46(2)(a) LTA
  2. 2 Whether s160(1)(b) permits rectification where registration was obtained by fraud, omission or mistake attributable to the registered proprietor or its agent
  3. 3 Whether a presumption of undue influence arose from solicitor relationships and whether a personal equity existed to defeat indefeasibility

Ratio Decidendi

The registered mortgage stands and is indefeasible because the plaintiff and its solicitor were not parties to, nor colluded in, the fraud; the solicitor's conduct amounted at worst to negligence or lack of due diligence and did not constitute wilful blindness akin to fraud under s46(2)(a); s160(1)(b) did not apply as registration was not shown to have been obtained by fraud, omission or mistake attributable to the plaintiff or its agent; no personal equity existed to defeat indefeasibility.

Court Disposition

Plaintiff's claims allowed; defendants' counter-claim dismissed.

Orders

  • Declaration that the mortgage registered by Malayan Banking Berhad is valid and the bank's title under the mortgage is indefeasible
  • Declaration that the plaintiff is entitled to enter into possession of the property, to receive rents and profits and to exercise the mortgagee's power of sale