Chapter 7.2 - Restraint of Dealings: Private Caveats Flashcards
(51 cards)
PRIVATE CAVEATS
Overview
1) Effect
2) Who can enter
3) Procedures for application
4) Procedures for entry
5) Defective private caveat
6) Removal of private caveat
PRIVATE CAVEATS
Effect of private caveats
S.322:
-
-
PRIVATE CAVEATS
Who can enter - the law
S.321
PRIVATE CAVEATS
Who can enter - person that has a claim or title to the land or registrable interest on the land
1) The law:
- S.323(1)(a)
2) Meaning of interest - Miller v Minister of Mines:
- must be registrable interests;
- i.e. S.292
3) Meaning of title & interests - Luggage Distributors v Tan Hor Teng:
- limited to registrable interests & title.
- makes claim or claims a right.
4) Meaning of caveatable interest - Score Options Sdn Bhd v Mexaland Sdn Bhd:
- interest representing that could ultimately lead to its registration;
- should be existing interest
- cannot include potential or future interest.
- caveatable interest cannot be created by agreement between parties.
PRIVATE CAVEATS
Who can enter - beneficiary under a trust
1) The law:
S.323(1)(b)
2) Residuary beneficiary - Tan Heng Poh v Tan Boon Thong:
- residuary has no caveatable interest, unless the administration of the estate has complete.
3) Non-citizen beneficiary - Brett McNamara v Kam Lee Kuan:
- a non-citizen beneficiary has caveatable interest;
- he may lodge a private caveat on the land he is entitled to as beneficiary.
4) Resulting or constructive trust - Registrar of Titles, Johor v Temenggong Securities:
- Beneficial interest arising under express, constructive or resulting trust amount to caveatable interest.
5) Trust arise in equity - Inter-Continental Mining v Societe des Estains:
- a PC may be entered to protect the rights under mining agreement;
- a trust is presumed to have arisen in equity as claimant has entered the land & spent a huge amount money to commence mining operations pursuant to the agreement.
PRIVATE CAVEATS
Who can enter - guardian or next of kin of beneficiary
The law:
S.323(1)(c)
PROCEDURES FOR APPLICATION OF PC
The law
S.323(2):
- Form:
- Attestation:
PROCEDURES FOR APPLICATION OF PC
Contents of application - nature of claim
Tan Heng Poh v Tan Boon Thong:
- application must state whether the claim is binding on the land itself or binding a particular interest.
- failure will render the caveat legally unsustainable.
PROCEDURES FOR APPLICATION OF PC
Contents of application - error on essential details
Wong Fok Seng v Mrs Fredericks Nee Khoo Swee Choo:
- Error in stating the proprietor’s name as the person executing Form 19B was fundamental error going to the root of the caveat;
- Fundamental error in the attestation clause in Form 19B renders the form & caveat a nullity.
PROCEDURES FOR ENTRY OF PC
The law
S.324
- Note:
- Entry:
- Effecting:
- Service:
DEFECTIVE CAVEATS
Overview
1) Grounds for defect
2) Effect of defective caveat
3) Duty of court
DEFECTIVE CAVEATS
Grounds for defect
1) Non-compliance with S.232(2) - Tan Heng Poh v Tan Boon Thong:
- failure to state nature of claim renders the caveat defective.
2) Essential errors in form 19B - Wong Fok Seng v Mrs Fredericks Nee Khoo Swee Choo:
- Error in stating the proprietor’s name as the person executing Form 19B was fundamental error going to the root of the caveat;
- Fundamental error in the attestation clause in Form 19B renders the form & caveat a nullity.
DEFECTIVE CAVEATS
Effect of defective caveat
1) Not bound to amend:
- court is not bound to amend or modify to save the caveat.
2) No power to allow amendment:
- court has no power to allow amendment simply by supplemental affidavits.
DEFECTIVE CAVEATS
Duty of court
Tan Heng Poh v Tan Boon Thong:
- in deciding whether a caveat is defective or not, court shall confine itself to the caveat & other supporting documents.
- where necessary, court may not order for removal but amendment under S.327(1) to protect the right of caveator.
REMOVAL OF CAVEATS
Overview
1) By caveator
2) By Registrar
3) Issues
4) By court
REMOVAL OF CAVEATS
By Caveator
S.325:
- When:
- Form:
- Attestation:
- Fee:
- Notice:
- Sign & seal:
REMOVAL OF CAVEATS
By Registrar
S.326:
- By whom:
- Form:
- Attestation:
- Notice:
- Time limit:
- Service:
REMOVAL OF CAVEATS
Issues - removal by unregistered applicant
Tan See Hock v D&C Bank Sdn Bhd:
- application by unregistered chargee is held to be bad;
- subsequent issuance of notice in Form 19 is held to be ultra vires.
REMOVAL OF CAVEATS
Issues - defective service of notice
Alagarsamy v Tai Phaik Khee:
- removal will be invalid if there is no service of notice or unsuccessful attempt of notice;
- in such a case, the notice is deemed to be unserved & removal of caveat is invalid.
REMOVAL OF CAVEATS
By court - overview
1) Procedures
2) Meaning of aggrieved party
3) Examples of aggrieved party
4) Ex-parte application
5) Grounds for removal
6) Test for removal
REMOVAL OF CAVEATS BY COURT
Procedures
S.327
REMOVAL OF CAVEATS BY COURT
Meaning of aggrieved party
RAP Nathan v Haji Abdul Rahman bin Haji Yusoff:
- aggrieved means something wrongful in law which has been done that affects their title or property or cause them loss if the caveat is not removed.
REMOVAL OF CAVEATS BY COURT
Example of aggrieved party - registered chargee
Oversea-Chinese Banking Corp Ltd v Konsortium Utama Sdn Bhd:
- registered chargee is treated as an aggrieved party as he has an indefeasible interest in the land.
REMOVAL OF CAVEATS BY COURT
Example of aggrieved party - purchaser at judicial sale
Gondola Motor Credit Sdn Bhd v Almurisi Holdings Sdn Bhd:
- successful purchaser who had paid deposit or full purchase price & in possession of valid certificate of sale is recognised as an aggrieved party.
