Agenda Jernih Sdn. Bhd. v Cheing Jin Huang (BA-24NCvC-2836-12/2025)

AGENDA JERNIH SDN BHD [No.Syarikat: 200601028605 (748361-M)]

LADANG MAHA WARISAN SDN BHD [No.Syarikat: 201001009249 (893879-A)]

LADANG LENANG SDN BHD [No.Syarikat: 201001010807 (895467-D)] …PLAINTIF-PLAINTIF DAN CHEING JIN HUANG (No. K/P: 880405-43-5255) ...DEFENDAN GROUNDS OF DECISION (REMOVAL OF PRIVATE CAVEATS)

In this Originating Summons (“OS”), the Plaintiffs seek various reliefs against the Defendant, including an application to remove four private caveats concerning four properties registered in the Plaintiffs’ names lodged by the Defendant on behalf of his father, Cheing Boon Ngoung @ Chean Puan In (“Cheing Sr”). RELEVANT LAW ON THE NATIONAL LAND CODE Applicable Law: NLC 1965 or ACT 828?

Based on the intitulment of the OS, the Plaintiffs’ application to remove all the private caveats was made under Section 327(1) and 329 of the National Land Code 1965 (“NLC 1965”).

It is important to note that NLC 1965 was superseded by the National Land Code (Revised 2020) Act 828 (“Act 828”) upon its coming into force on 15 October 2020.

Therefore, reference should be made to Act 828 and not NLC 1965, although Sections 327(1) and 329 of Act 828 and Sections 327(1) and 329 of NLC 1965 carry similar provisions. Removal Of A Private Caveat: Three-Stage Inquiry

In Eng Mee Yong v Letchumanan [1979] 1 MLRA 143; [1979] 2 MLJ 212 PC, Lord Diplock explained the three-stage inquiry in a removal of private caveat application as follows: “This is the nature of the onus that lies upon the caveator in an application by the caveatee under s 327 for removal of a caveat: he must first satisfy the court that on the evidence presented to it his claim to an interest in the property does raise a serious question to be tried: and, having done so, he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party.” [Emphasis added]

Hashim Yeop A. Sani FJ (as he then was), in delivering the decision of the Federal Court in Wong Kuan Tan v. Gambut Development Sdn. Bhd. [1984] 1 CLJ Rep 441; [1984] 2 MLJ 113 FC, explained further about the removal of a private caveat: “To put it more simply, the caveator in this case must first satisfy the Court that he has ‘caveatable interest’ in the land. Only if he has such an interest can he qualify to lodge caveat under s. 323(1) of the National Land Code...” [Emphasis added]

Based on the foregoing authorities, the caveator must satisfy the following three-stage inquiry:

(a) whether the caveator has a caveatable interest in the land (“First-Stage Inquiry”);

(b) if a caveatable interest is established in the First-Stage Inquiry, the Court will then consider whether, based on the affidavit evidence, the claim discloses a serious question meriting a full trial (“Second-Stage Inquiry”); and

(c) whether on the balance of convenience, the caveator can show that it would be better to maintain the private caveat until the full trial of the action (“Third-Stage Inquiry”). ISSUE

Should the four private caveats lodged by the Defendant be removed? BACKGROUND FACTS Land Proprietorship

The First Plaintiff is the registered proprietor of a piece of land registered as HS(M) 24748, PT 31083, Mukim Klang, Daerah Klang, Negeri Selangor Darul Ehsan (“Land 1”).

The Second Plaintiff is the registered proprietor of a piece of land registered as PM 5029, Lot 80320, Mukim Klang, Daerah Klang, Negeri Selangor Darul Ehsan (“Land 2”).

The Second Plaintiff is also the registered proprietor of a piece of land registered as HS(M) 23608, PT 30115, Mukim Klang, Daerah Klang, Negeri Selangor Darul Ehsan (“Land 3”).

The Third Plaintiff is the registered proprietor of a piece of land registered as HS(M) 40058, PT 30113a, Mukim Klang, Daerah Klang, Negeri Selangor Darul Ehsan (“Land 4”). Lodgement Of Four Private Caveats By The Defendant

The Defendant lodged four private caveats on behalf of Cheing Sr:

(a) on 14 July 2025, the Defendant lodged a private caveat on Land 1 via Presentation No. 01B4560/2025 (“Private Caveat 1”);

(b) on 14 July 2025, the Defendant lodged a private caveat on Land 2 via Presentation No. 01B4562/2025 (“Private Caveat 2”);

(c) on 1 August 2025, the Defendant lodged a private caveat on Land 3 via Presentation No. 01B5153/2025 (“Private Caveat 3”); and

(d) on 14 July 2025, the Defendant lodged a private caveat on Land 4, via Presentation No. 01B4592/2025 (“Private Caveat 4”).

For these grounds of decision:

(a) Land 1, Land 2, Land 3, and Land 4 will be collectively referred to as “the Lands”; and

(b) Private Caveat 1, Private Caveat 2, Private Caveat 3 and Private Caveat 4 will be collectively referred to as “the Private Caveats”. ANALYSIS AND FINDINGS FIRST STAGE INQUIRY

Once the Plaintiffs challenged all the Private Caveats, the Defendant, as the caveator, must demonstrate that he has a caveatable interest in the Lands (Wong Kuan Tan v. Gambut Development Sdn. Bhd. [1984] 1 CLJ Rep 441; [1984] 2 MLJ 113 FC; Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLRA 496; [1995] 1 MLJ 719; [1995] 3 CLJ 520; [1995] 2 AMR 969 COA (paragraph [92]-[101])).

The Learned Counsel for the Defendant argued that the Private Caveats should not be removed for the following reasons:

(a) there are serious questions to be tried with respect to Cheing Sr and the Defendant’s interest in the Lands; and

(b) the balance for convenience lies in favour of maintaining the Private Caveats.

I disagree with the Learned Counsel for the Defendant’s arguments for the reasons set out below. Reason No.1 The Defendant Is Bound By the Grounds Stated In Form 19B

Under Section 323 of Act 828, the reason for lodging a private caveat must be stated in Form 19B of Act 828 (“Form 19B”).

The Court should focus solely on the grounds for lodging a private caveat as stated in Form 19B and not take into account any other grounds not specified in Form 19B (Goh Paik Swan v Ng Choo Lum [1996] 3 MLJ 437, CA; Chen Sook Peng v. Wee Phean Yung [2004] 5 MLJ 116).

Here, there are two grounds relied on by the Defendant in lodging Form 19B. They are as follows:

(a) firstly, to protect the interests of Cheing Sr’s as a shareholder of the Plaintiffs; and

(b) secondly, to await further clarifications.

The Defendant now raises new complaints not through Form 19B but via an affidavit, such as:

(a) Cheing Sr was diagnosed with Parkinson’s disease and dementia in April 2023;

(b) Cheing Sr was a shareholder and director of the Plaintiffs before his purported resignation on 18 July 2025;

(c) no resolutions which approved the transfer of the shares were ever provided by Cheing Jin Hui;

(d) Cheing Jin Hui appointed herself as a company secretary of the Plaintiffs and made the transfer of Cheing Sr’s shares to herself; and

(e) Cheing Jin Hui defrauded Cheing Sr of his shares and directorship, whereby Cheing Sr’s shares in the Plaintiffs were transferred to Cheing Jin Hui, who is also the daughter of Cheing Sr.

As per the authorities cited earlier, this Court should only focus on the grounds stated in Form 19B and the attached statutory declaration.

All other grounds not mentioned in Form 19B, such as fraud, should not be considered because:

(a) none of the Forms 19B lodged by the Defendant mentioned about fraud;

(b) before Cheing Sr passed away, he did not initiate any civil suit against Cheing Jin Hui to challenge her shareholdings in the First, Second and Third Plaintiffs;

(c) until today, there is no civil suit filed by the administrator of the estate of Cheing Sr against Cheing Jin Hui to challenge her shareholdings in the First, Second and Third Plaintiffs;

(d) until today, there is no finding of fraud as alleged by the Defendant (NKR Arunasalam Chettiar a/l Karuppan Chettiar v. Goh Yew Jing & Ors [1999] 6 MLJ 202);

(e) until it is set aside, the register of members serves as prima facie evidence of its contents under Section 50(3) of the Companies Act 2016;

(f) even if fraud is proven, it will only affect the shareholdings of the Plaintiffs. It will not impact the Lands, as they are assets of the companies; and

(g) in any event, the complaints raised by the Defendant are not about caveatable or registrable interests in the Lands, but merely concern disputes over shareholdings and directorships in the First, Second, and Third Plaintiffs. Reason No.2 Uncertain Reason For Lodging Private Caveat

All four Form 19B lodged by the Defendant used the same reason: awaiting further clarifications. 13 25. The same reason was also used in all the Statutory Declarations affirmed by the Defendant.

The reason for lodging private caveats is unclear, as the Defendant lodged them only to await further clarifications.

Therefore, these private caveats should be removed (NKR Arunasalam Chettiar a/l Karuppan Chettiar v. Goh Yew Jing & Ors [1999] 6 MLJ 202). Reason No.3 Shareholder Has No Caveatable Interest

A director or shareholder of a company does not have a caveatable or registrable interest under Section 323(1) of Act 828 in lands registered in the company’s name (Hew Sook Ying v Hiew Tin Hee [1992] 2 MLJ 189, SC; Suntrack Development Sdn Bhd v. Deepark Jaikishen a/l Jaikishan Rewachang [2021] MLJU 1624).

Therefore, as a shareholder of the Plaintiffs, it did not grant Cheing Sr an automatic caveatable interest under Section 323 of Act 828 in the Lands.

In short, Cheing Sr had no caveatable or registrable interest in the Lands. Reason No.4 The Defendant Has No Caveatable Interest Too

Since Cheing Sr had no caveatable interest in the Lands under Section 323(1) of Act 828 before his death, the Defendant and other beneficiaries of Cheing Sr’s estate would not be in a more advantageous position than Cheing Sr was during his lifetime.

In short, the Defendant and other beneficiaries of Cheing Sr also do not have any caveatable interest in the Lands. Reason No.5 The Defendant Cannot Alter His Position

In Form 19B and Statutory Declarations, the Defendant asserted that he lodged the private caveats on behalf of Cheing Sr.

Now, in his affidavit in reply, the Defendant adopts a different approach and states that he lodged the private caveats in his capacity as a beneficiary of Cheing Sr’s estate.

The Defendant cannot now use another reason which did not exist when the Private Caveats were lodged, as Cheing Sr was still alive when the Private Caveats were lodged.

The Defendant should not be allowed to alter his position from what is stated in Form 19B, as he is bound by the grounds specified in that form, as mentioned earlier. Reason No.6 Locus Standi To Lodge Private Caveats

The Learned Counsel for the Defendant made reference to the decision of the Federal Court in Al Rashidy Bin Kassim & Ors v Rosman Bin Roslan [2007] 4 MLJ 297 (“Al Rashidy”) and contended that as a beneficiary of the estate of Cheing Sr, he had locus standi to lodge the private caveat. 16 38. I disagree with the argument of the Learned Counsel for the Defendant for these reasons:

(a) firstly, the land in dispute in Al Rashidy was registered in the name of the deceased. In this case, the Lands are not registered in the name of the late Cheing Sr. From the outset, the Lands are the assets registered in the name of the companies i.e. the Plaintiffs;

(b) secondly, the facts in Al Rashidy are different from this case. In Al Rashidy, the issue was about the transfer of the estate land. The instant case, however, is not about the transfer of the estate land but a specific application to remove private caveats under Section 327(1) of Act 828 on assets belonging to the companies, not Cheing Sr; and

(c) thirdly, the issue in Al Rashidy was on the locus standi of the beneficiaries to sue on behalf of the estate without a letter of administration. Caveatable or registrable interest was not an issue before the Federal Court in Al Rashidy. Reason No.7 Trust For Conversion

The Learned Counsel for the Defendant’s argument that the Defendant has a caveatable interest in the lands because he is a beneficiary of a trust for conversion is devoid of merit. 17 40. The application of trust for conversion has been explained by the Court of Appeal in Faustina Anne Sta Maria v Mary Patricia De Cruz [2024] 1 MLJ 741. In that case, the Court of Appeal held that: “[21] What is a trust for conversion? [22] The Supreme Court case of Tan Heng Poh v Tan Boon Thong & Ors [1992] 2 MLJ 1 dealt with the question of whether a beneficiary in the estate of his late father was entitled to maintain a caveat over lands comprised in the estate. The Supreme Court affirmed the decision of the High Court removing the caveat, holding that, because the value of the estate remained uncertain pending completion of administration, the appellant was a beneficiary under a trust for conversion, which in turn meant that he had no caveatable interest over the eight parcels of land. [23] In a trust for conversion, the beneficiary is entitled under the trust not to the assets comprised in the trust itself, but to the proceeds of the sale of such assets, after deducting the liabilities of the estate. Where a legatee is beneficially entitled to the residuary in an estate, the law imputes the existence of a trust for conversion. Because the legatee is said not to possess an interest in the properties under the trust but rather to the proceeds of sale of such properties, he cannot therefore possess or maintain a caveatable interest over such properties. Similar principles apply to beneficiaries under an intestacy. The beneficiaries under an intestacy have a right to require distribution to be effected in accordance to s 6(1) of the Distribution Act 1958 and to the future proceeds of sale of the properties comprised in the estate, but they do not have any rights, title or interest in the specific properties themselves.” [Emphasis added]

Based on the facts of this case, where the Lands are assets of the Plaintiffs, and considering the decisions by the Supreme Court in Tan Heng Poh v Tan Boon Thong & Ors [1992] 2 MLJ 1 and the Court of Appeal in Faustina Anne Sta Maria v Mary Patricia De Cruz [2024] 1 MLJ 741, I am of the considered opinion that the Defendant has no caveatable interest in the Lands.

In any event, this issue of trust of conversion should not be considered because:

(a) it was not stated in Form 19B and the statutory declarations; and

(b) the Defendant’s complaint concerns the shareholding and directorship of the late Cheing Sr in the First, Second, and Third Plaintiffs, not the ownership of the Lands.

Since neither the Deceased nor the Defendant has a caveatable interest in the Lands, I need not consider the Second-Stage Inquiry or the Third-Stage Inquiry.

In Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLRA 496; [1995] 1 MLJ 719; [1995] 3 CLJ 520; [1995] 2 AMR 969, CA, Gopal Sri Ram, JCA (as he then was) had this to say: “[44] In my judgment, there are three stages through which an inquiry of this nature must go. The first stage is the examination of the grounds expressed in the application for the caveat. If it appears that the grounds stated therein are insufficient in law to support a caveat, then cadit quaestio, and the caveat must be removed without the necessity of going any further.” [Emphasis added]

The Plaintiffs’ prayer (e) in Enclosure 1 for an injunctive relief to prevent the Defendant from filing private caveats in the future is not justified because:

(a) the right to lodge a private caveat is provided by Section 323 of Act 828;

(b) the burden of proof remains on the Defendant or any other caveator to meet the Three-Stage Inquiry, especially regarding the issue of caveatable interest. If there is no caveatable interest, the private caveat will be removed; and

(c) in the instant case, there is no evidence indicating that the Defendant has previously lodged the same Private Caveats on the Lands. DAMAGES TO BE ASSESSED

Since the Defendant or the late Cheing Sr had no caveatable interest in the Lands, all Private Caveats must be removed and damages must be assessed in accordance with Order 37 of the Rules of Courts 2012 (Sayang Plantation Bhd v Koh Siak Poo [2006] 1 MLJ 230; Infra Elite Development Sdn Bhd v Pacific Treasure Land Sdn Bhd [2002] 6 MLJ 565; Labuan Ferry Corp Sdn Bhd v Chin Mui Kien (Trading Under The Name and Style Of Econ Focus Enterprise) & Ors and Other Appeals [2018] 3 MLJ 256; Rathnavel s/o Packirisamy & Ors v Koperasi NLFCS Bhd [2022] 3 MLJ 319).

The Plaintiff also claimed for aggravated and exemplary damages against the Defendant.

Wong Kian Kheong JCA, in delivering the Court of Appeal’s decision in Dr Chandran a/l Gnanappah v Gan See Joe (suing as the administrator of the estate of Gan Hong Wee, deceased) & Anor and another appeal [2025] 5 MLJ 216, explained the law on aggravated damages and said this: “[72] We express the following view regarding the court’s discretionary power to award aggravated damages:

(a) the nature and prevalence of the aggravating circumstances;

(b) the nature and extent of the distress, anguish, misery, hurt and/or injury to the feelings of the plaintiff;

(c) the court should ensure that a plaintiff is not unjustly enriched or overcompensated by the quantum (aggravated damages) and at the same time, the court should prevent a defendant from being financially ruined in an unjust manner (‘two considerations’) —please refer to Motordata Research Consortium Sdn Bhd v Ahmad Shahril bin Abdullah & Ors [2017] MLJU 1187; [2017] 7 AMR 560, at para [75](2). These two considerations are more important than any mathematical comparison between the quantum of aggravated damages and the total sum of general damages (as contended by the first defendant); and

(d) if the quantum (aggravated damages):

(i) exceeds the total amount of general and special damages (‘total sum (general/special damages)’);

Zawawi Salleh JCA (as he then was), in delivering the decision of the Court of Appeal in Sambaga Valli a/p KR Pannusamy v Datuk Bandar Kuala Lumpur [2018] 1 MLJ 784, explained the law on aggravated and exemplary damages and had this to say: “[32] Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant. [33] The exemplary damages or punitive damages - the two terms now regarded as interchangeable - are additional damages awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant’s tortious act, and to punish the defendant Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a ‘contumelious disregard’ for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may also have an important function in vindicating the rights of the plaintiff (see Rookes v Barnard [1964] 1 All E R 347; AB v Southwest Water Services [1993] All E R 609 Broome v Cassell & Co [1971] 2QB 354, Laksamana Realty Sdn Bhd v Goh Eng Hwa and Another Appeal [2006] 1 MLJ 675).”

In light of the facts of this case and the underlying rationale for the Plaintiffs’ claim for aggravated and exemplary damages, which is solely based on the Defendant’s disregard for the Plaintiffs’ demand for the removal of the Private Caveats, I find no compelling or aggravating circumstances that warrant the award of such damages in favour of the Plaintiffs.

For the foregoing reasons, the Defendant has no caveatable interest in the Lands.

The Private Caveats must be removed forthwith by the Pendaftar Hakmilik Tanah Selangor upon service of the sealed Order of this Court, in accordance with the Kaedah-Kaedah Tanah Selangor 2003.

Only prayers (a), (b), (c), (d), (f), (g) and (i) of Enclosure 1 are allowed, with costs of RM5,000.00, as agreed by the parties, subject to the allocatur fee. Dated this 13th day of April 2026 SGD HELMI BIN HAMZAH JUDICIAL COMMISSIONER HIGH COURT IN MALAYA AT SHAH ALAM NEGERI SELANGOR Counsel for the Plaintiffs : Mr. Joshua Ho Fung Lyn (Messrs Raj, Ong & Yudistra) Counsel for the Defendant : Mr. Chai Phing Zhou (Mr. Leonard Raj A/L Kanaga Raj) (Messrs Anad & Noraini)