Bulyah Binti Ishak v Ambank (M) Berhad (B-02(NCVC)(W)-638-04/2016)

NORAINI BINTI ABDULLAH (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT) …PERAYU-PERAYU AMBANK (M) BERHAD (NO. SYARIKAT: 8515-D) (Dalam Penggulungan) …RESPONDEN DENGAN DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. : B- 02(NCVC)(W)-803-04/2016 HE-CON SDN BHD (NO. SYARIKAT: 270572-M) (Dalam Penggulungan) …PERAYU

BULYAH BINTI ISHAK 2

NORAINI BINTI ABDULLAH (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT) …RESPONDEN-RESPONDEN [DALAM PERKARA DI MAHKAMAH TINGGI MALAYA DI SHAH ALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO: 22-NCVC-307-04/2013

NORAINI BINTI ABDULLAH (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT, simati) …PLAINTIF-PLAINTIF

HE-CON SDN BHD (NO. SYARIKAT: 270572-M) (Dalam Penggulungan)

TEOW BENG HUR

NARRIMAH BINTI ABDULLAH

AMBANK (M) BERHAD (NO. SYARIKAT: 8515-D) …DEFENDAN-DEFENDAN Keputusan yang diberikan oleh Yang Arif Dato’ Ahmad Zaidi bin Ibrahim pada 7.3.2016] 3 CORAM: PRASAD SANDOSHAM ABRAHAM, JCA ZAMANI BIN A. RAHIM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] There are two appeals fixed before us. Appeal No. B-02(NCVC)(W)-638-04/2016 (“Appeal No. 638”) is an appeal by the Appellants, Bulyah Binti Ishak and Noraini Binti Abdullah, the Administrators of the Estate of Nor Zainir Bin Rahmat (the 1st and 2nd Plaintiff/Plaintiff against of the decision of the learned High Court Judge of Shah Alam (“the learned Judge”) dated 07.03.2016 made after a full trial, which dismissed the Plaintiffs’ claim against Ambank (M) Berhad (“the 4th Defendant”) with costs of RM15.000.00. [2] Appeal No. B-02(NCVC)(W)-803-04/2016 (“Appeal No. 803”) is an appeal by the Appellant, He-Con Sdn Bhd (the 1st Defendant) against part of the decision of the learned Judge which allowed the Plaintiffs’ claim against the Appellant as per prayer (p) of the Statement of Claim, a declaration that the deceased was the beneficial owner of a 3½ Storey Shop Lot at No. 31, Jalan Tengku Ampuan Zabedah J9/J, Seksyen 9, 4 40100 Shah Alam, Selangor Darul Ehsan under Title No. HDS 151345, Lot No. P.T. 917 Mukim Bandar Shah Alam, Daerah Petaling, Selangor (“the Property”) with costs of RM15,000.00. [3] Both Appeal No. 638 and Appeal No. 803 were consolidated vide an order of this Court dated 31.05.2016. Parties had also informed the Court that for the purpose of these two appeals they would be referring to the Records of Appeal as in Appeal No. 638. [4] We will refer to the parties as they were described in the High Court. BRIEF BACKGROUND FACTS [5] The Plaintiffs are the joint administrators of the Estate of Nor Zainir bin Rahmat, the deceased (“the deceased”) who passed away on 26.06.2002. The 1st Plaintiff is also the widow of the deceased. [6] The 1st Defendant, who is the appellant in Appeal No. 803 is a company set up under the Companies Act 1965. The 1st Defendant has since been wound up. The 2nd and 3rd Defendants are directors of the 1st Defendant. Both the 2nd and 3rd Defendants are bankrupts. [7] The 4th Respondent (“the 4th Defendant”) is a licensed financial institution which registered address is at Level 22, Bangunan Ambank Group, Jalan Raja Chulan, 50200 Kuala Lumpur. 5 [8]

(a) The learned Judge erred in law and fact when the learned Judge has misdirected his mind to the principles enunciated in the two Federal Court cases, Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ 897 (Kamarulzaman) and Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 (Samuel Naik).

(b) The learned Judge erred in law and fact when the learned Judge had failed to direct his mind to the fact that after the Plaintiffs’ claim against the 1st Defendant was allowed, consequentially, the Plaintiffs’ claim against the 4th Defendant too must be allowed.

(c) The learned Judge erred and misdirected himself in law and fact when he failed to direct his mind to the fact that the Presentations Nos. 52709/2010, 52710/2010 and 52711/2010 all dated 27.05.2010 are defeasible under 9 section 340 (2) of the National Land Code (NLC) as the 4th Defendant is the immediate holder and / or charger of the Property.

(d) The learned Judge had erred and misdirected himself in law and fact when he failed to direct his mind to the fact that the 1st Defendant had no right to allow the 4th Defendant to execute the instrument for the registration of the charge over the said Property as the 1st Defendant was only a “bare trustee” of the said Property, having sold the same to the deceased and received the full purchase price as stated in the 1st Power of Attorney dated 26.04.2002 which was registered in the High Court Kuala Lumpur on 30.04.2002 (Registration No: 29503/02).

(e) The learned Judge had erred and had misdirected his mind in law and fact when he failed to direct his mind to the fact that the 1st Defendant had no right to charge the said Property and / or the 4th Defendant has no right to execute the registration of the charge in its favour, as the power to do was vested on the deceased as stipulated in Clause 4 of the 1st Power of Attorney and / or the 1st Plaintiff as stated in Clause 3 of the 2nd Power of Attorney dated 21.05.2002 and registered in the High Court of Kuala Lumpur on 19.07.2002 (Registration No. 13192/02). 10

(f) The learned Judge had erred and misdirected himself in law and in fact when he decided that the 4th Defendant had no knowledge about the fraud committed by the 1st Defendant when the issue of fides of the 4th Defendant were not relevant to its defence.

(g) The learned Judge had erred and misdirected his mind in law and in fact when the learned Judge, despite having decided that the deceased and / or the Plaintiffs were the beneficial owners of the Property went on to direct the 4th Respondent to proceed with the auction of the said Property and be entitled to the proceeds, the remaining balance if any, to be paid to the Plaintiffs.

(h) The learned Judge had erred and had misdirected his mind in law and in fact when the learned Judge failed to direct his mind to the fact that the instrument pertaining to the registration of the charge by the 4th Defendant was void and of no effect.

(i) The learned Judge erred and had misdirected his mind in law and fact when he dismissed the Plaintiffs’ claim against the 4th Defendant. 11 IN THE HIGH COURT The Plaintiffs’ case [21] Before the High Court, the following evidence was adduced through the 1st Plaintiff (SP2) and one, Bhadarul Baharain bin Sulaiman (SP1), the solicitor involved in the preparation and execution of the Agreement, Powers of Attorney:

(a) The deceased had purchased the Property from the 1st Defendant on 22.12.1997 vide the Agreement (“Exhibit P1”). This was supported by the Resolution of the Board of Directors of the 1st Defendant (“Exhibit D25”) (at page 660 of Volume 2(3) of AR). The deceased had paid the full purchase price of RM2,133,651.00 (“Exhibit P2”). However, before the Property could be transferred to the deceased, the deceased passed away (Exhibit P4 at page 296 of Volume 2(2) of AR). Before the deceased passed away, the deceased had executed the 2nd Power of Attorney dated 21.05.2002 wherein the deceased has appointed the 1st Plaintiff as “Substitute Attorney” (Exhibit P3). Both these Powers of Attorney had been duly registered in Kuala Lumpur High Court (Exhibits P2 & P3).

(b) At the time the Agreement was executed the individual grant of the Property had not yet been issued by the Land Office. 12

(c) During the time the Powers of Attorney were executed, the said Property had not been fully constructed. When the Property was completed around 2004, the 1st Plaintiff had requested the developer, Sunway Masalam Sdn Bhd to register the Property in the name of the deceased but the developer refused and had registered the Property in the name of the 1st Defendant instead.

(d) On 09.12.2008, the 1st Plaintiff managed to get the consent of the Court to transfer the estate of the deceased, including the Property in her name (Exhibit P6 (at pages 615 – 616 of Volume 2(3) of AR)).

(e) The 1st, 2nd and 3rd Defendants were fully aware that the 1st Plaintiff was one of the administrators of the estate of the deceased. Further after Exhibits P1 and P2 were executed, the 1st to the 3rd Defendants were never involved in any of the transactions concerning the Property.

(f) All payments of bills pertaining to quit rent and assessment were paid by the 1st Plaintiff representing the estate of the deceased. All these receipts were in the name of the deceased (Exhibit P13 (at pages 610-614) & Exhibit P14 (at pages 617-624) of Volume 2(3) of AR).

(g) The 1st Defendant agreed to transfer the said Property in the name of the estate of the deceased, however they failed to do 13 so and had fraudulently charged the said Property to the 4th Defendant despite knowing that the said Property belong to the deceased.

(h) The 1st Defendant had charged the said Property to the 4th Defendant on 27.05.2010 as a security for financial facilities it obtained from the 4th Defendant. The instruments for the purpose of the charge were executed by the 2nd and 3rd Defendants on behalf of the 1st Defendant without the consent of the 1st Plaintiff as the administrator of the estate of the deceased. The 1st Plaintiff had lodged Police reports concerning this matter.

(i) SP1 was the solicitor involved with the preparation of the Agreement (“Exhibit P1”), the 1st Power of Attorney (“Exhibit P2”) and the 2nd Power of Attorney (“Exhibit P3”). According to SP1 both the 1st Defendant and the deceased agreed that the purchase price had been paid in full. SP1 was also the solicitor who was involved with the registration of the 1st and 2nd Power of Attorney.

(j) There were elements of fraud involved which resulted in the registration of the charge instrument in favour of the 4th Defendant. The 4th Defendant was also negligent in not conducting a search with the proper authority to ascertain the status of the ownership of the Property before or after registering the charge instruments. 14 Case for the 1st Defendant’s case [22] Vide its witness, one Tee Siew Kai (SD1), the Liquidator of 1st Defendant, the 1st Defendant stated as follows:

(a) SD1 was appointed as the liquidator of the 1st Defendant vide an order of the Shah Alam High Court dated 10.12.2012. SD1 became aware of the Plaintiff’s claim only on 01.04.2013. He tried to contact the 1st Defendant’s directors, Teo Beng Hur and Narrimah binti Abdullah (“the 2nd & 3rd Defendant cited herein”) requesting them to hand over, amongst others, the Statement of Affairs”, books and records relating to the 1st Defendant in their possession but until the time he stood as the witness in Court these Defendants had not responded. Despite reminders having been sent there was no response from any of them.

(b) During SD1’s examination of the affairs of the 1st Defendant, SD1 discovered a Director’s Resolution dated 26.04.2004 authorising the 1st Defendant to enter the 1st Power of Attorney with the deceased with respect to the sale and purchase of the Property together with unattested copy of the 1st alleged Power of Attorney signed by the 2nd and 3rd Defendant. SD1 had also confirmed the existence of the Agreement and the two Powers of Attorney. From the 15 documents SD1 obtained from the Receiver & Manager SD1 also sighted the Agreement, 1st and 2nd Power of Attorney.

(c) SD1 couldn’t not verify the authenticity of the documents as he had no personal knowledge.

(d) SD1 could not retrieve any documents to prove the payment of the purchase price in the sum of RM213,363.10 and RM1,920,267.90 respectively, allegedly paid by the deceased to the 1st Defendant. According to SD1, there was nothing to prove that the sale and purchase of the Property had been concluded.

(e) SD1 confirmed that he did not send Exhibit P2 for analysis by a handwriting expert to ascertain the authenticity of the document as well as the signatures contained in the document which were relied by the Plaintiffs.

(f) SD1 testified that he had no personal knowledge pertaining to the Agreement and all transactions involving the said Property.

(g) According to SD1, the 1st Defendant is hopelessly insolvent and does not have any available cash. The 1st Defendant will not be able to satisfy the judgment, in event judgment is awarded to the Plaintiffs. 16 Case for the 4th Defendant [23] The 4th Defendant through its Manager, one Michael Khong Khai Tuck (SD2) testified as follows:

(a) The 4th Defendant had granted General Banking Facilities to the 1st Defendant consisting of Contract Financing Facility, Overdraft Facility and Trade Facility. A Facility Agreement was executed between the 1st Defendant and the 4th Defendant.

(b) The 1st Defendant was required to provide security with respect of the banking facilities. There was a resolution of the Directors of the 1st Defendant dated 10.09.2009 which resolved that the 1st Defendant shall create a 1st party charge over the Property. As a result of that three charges were created by the 1st Defendant in favour of the 4th Defendant.

(c) Before executing the charge instruments, the 4th Defendant had conducted a proper search on the Property and found that the 1st Defendant was the registered owner of the Property and the Property was free from all encumbrances. However, the 4th Defendant did not see it fit to visit and / or view the Property.

(d) As the 1st Defendant had breached the terms of financing Agreement, the 4th Defendant then terminated the financing 17 agreement, withdrew all facilities granted to the 1st Defendant and commenced proceedings to obtain an order for sale of the Property from the Kuala Lumpur High Court.

(e) At the time the 1st Defendant applied for the financing facilities the 4th Defendant had no information pertaining to the existence of the Agreement between the 1st Defendant and the deceased and / or the existence of the Power of Attorney executed by the deceased and the 1st Defendant and the “Substitute Attorney”. Neither was there any site visit made to the Property. The Decision of the High Court [24] The findings of the learned Judge are as follows:

(a) The deceased is the owner of the Property as the deceased had purchased the Property and paid the full purchase price of the Property to the 1st Defendant. The evidence of the Plaintiffs pertaining to the above was more probable as compared to the 1st Defendant. The Plaintiffs’ evidence was supported by documentary evidence in the form of Exhibit P2 which confirmed that the full purchase price had been paid to the 1st Defendant.

(b) Exhibit P2 was signed by the manager of the 1st Defendant and witnessed by the Plaintiffs’ witness, SP1, an advocate 18 and solicitor. Exhibit P2 was duly stamped in accordance with the applicable law. The 1st, 2nd and 3rd Defendants had never disputed the signing of the document and / or claim that the same is false. The 2nd and 3rd Defendants were not called by the 1st Defendant to challenge the evidence of the Plaintiffs.

(c) The burden is on the 1st Defendant to secure the attendance of the 2nd and 3rd Defendants as witnesses in court to prove their case.

(d) The 1st Defendant had not taken steps to challenge the authenticity of the document by sending the same to the handwriting expert for verification. No police report was lodged by the 1st Defendant. Only the 2nd and 3rd Defendant would be in a position to challenge the Plaintiffs’ evidence. The learned Judge had invoked the provision of section 114

(g) of the Evidence Act 1950 against the 1st Defendant.

(e) The 1st Defendant could not prove its allegation that the deceased did not have the means to pay that huge sum of money to the 1st Defendant. The 1st Defendant could not counter the overwhelming evidence offered by the Plaintiffs in the form the Agreement and the 1st and 2nd Power of Attorney.

(f) The fact that the 1st Defendant is the immediate owner of the Property was not disputed. The 1st Defendant had bought the Property when it was still under construction. The ownership 19 can still be disputed and / or the title is defeasible if the elements mentioned under section 340 (2) of the NLC existed.

(g) There were affirmative findings that the deceased was the lawful owner of the Property. The 1st Defendant knew from the outset that the purchase price had been paid in full to the 1st Defendant. As such the 1st Defendant was holding the Property as a “bare trustee” for the deceased and had no right to deal with the Property.

(h) As the 1st Power of Attorney was an irrevocable power of attorney and for valuable consideration, all rights and interest in the Property had been transferred to the deceased and subsequently by virtue of the 2nd Power of Attorney the rights and obligations had been transferred by the deceased to the 1st Plaintiff.

(i) The 1st Defendant failed to produce evidence to show that the Administrators of the Estate of the deceased had given permission and / or mandate to 1st Defendant to charge the Property as a security for financial facilities granted to it by the 4th Respondent.

(j) The Property belong to the deceased and the 1st Defendant was merely holding the Property as a “bare trustee” for the deceased. Therefore, the 1st, 2nd and 3rd Defendants had no power and / or authority to charge the Property to the 4th 20 Defendant as a security for the financing facilities the 1st Defendant took from the 4th Defendant.

(k) The 4th Respondent was a bona fide party. There was no evidence to prove that the 4th Defendant was negligent. Further it was disclosed during the trial that the approach taken by the Plaintiff was that the 1st, 2nd and 3rd Defendants had intentionally suppressed the information pertaining to Exhibit P1, P2 and D25 from the 4th Defendant at the time the application for the facilities was made.

(l) The 4th Defendant had taken all reasonable measures to verify the status of the Property before the loan was approved. The search conducted by them proved that the 1st Defendant was the owner of the Property and the Property was free from all encumbrances. Based on the aforesaid the Plaintiffs had failed to prove that the charge was void and unenforceable.

(m) The fact that the 1st Defendant had breached the terms of the financing facilities was not disputed. The process undertaken by the 4th Defendant in securing the order for sale is in order, the forfeiture of the Property was in accordance with the law. Therefore, the 4th Defendant has the right to proceed with the said auction, any amount remaining from the sale shall be paid to the Plaintiffs. 21 OUR DECISION The law [25] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. [26] In the course of that, we had sought guidance from the very often quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [27] Reference is also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. 22 The Appeals Before Us Appeal No. 803 [28] Having heard the evidence of the Plaintiffs’ witnesses and the evidence of SD1 as well as the documents that were tendered in Court, the learned Judge accepted the evidence of the Plaintiff as being more probable as compared to the evidence of SD1. The learned Judge went on to rule that the Plaintiffs had successfully proven that the purchase price for the said Property had been fully settled by the deceased based on the evidence of the 1st Plaintiff (SP2) and the solicitor (SP1) responsible for the preparation and execution Exhibits P1, P2 and P3 respectively. The evidence of the Plaintiffs was further supported by Exhibit D5, the 1st Defendant’s Circular Resolution dated 26.04.2002 which authorized the 2nd Defendant to sign all documents pertaining to the Power of Attorney on behalf of the 1st Defendant. The learned Judge held that the deceased is the rightful owner of the Property. [29] The 1st Defendant failed to challenge the evidence of the Plaintiffs pertaining to the existence of Exhibits P1, P2 and P3 or D5, as SD1 had no documents with him. All documents relevant to the case are still in the possession of the 2nd and 3rd Defendants who were not called as witnesses for the 1st Defendant. Neither, SD1, the 1st Defendant or the 2nd and 3rd Defendant for that matter had taken steps to challenge the authenticity of Exhibit P2. No police report was lodged and / or the documents sent for analysis to ascertain the authenticity of this document. Neither did SD1 verify with the 2nd and 3rd Defendants if they 23 had executed the same as they were the very persons who would be in the position to verify the authenticity of the document. [30] We noted that SD1 was appointed as a liquidator for the 1st Defendant only on 10.12.2012 vide an order of the Shah Alam Court dated 10.12.2012. SD1 testified that he became aware of the Plaintiff’s claim only on or about 01.04.2013. SD1 had also testified that he had no knowledge pertaining to Exhibits P1, P2 and P3 and other documents of the 1st Defendant as the same are still in the possession of the 2nd and 3rd Defendants who had refused to accede to SD1’s request to provide the documents. We observe Exhibits P1, P2 and P3 were executed on 22.12.1997, 26.04.2002 and 30.04.2002 respectively. The terms of Exhibit P2 are clear. Therefore, no evidence shall be given in proof of the terms of Exhibit P2 except the document itself. When the terms of the agreement have been reduced to writing parties are bound by the terms of the agreement and the agreement could only be proved by the agreement itself (see Section 91 of the Evidence Act 1950; Tindok Besar Estate Sdn Bhd v Tinjar & Co [1979] 1 LNS 119 ; MBF Leasing Sdn Bhd v Eng Poh Hong [2004] 6 CLJ 473). [31] As SD1 has no personal knowledge pertaining to the facts surrounding the sale and purchase of the Property and / or the execution of Exhibit P2 and P3, having come to the scene many years after Exhibits P1, P2 and P3 were executed and had no documents with him, he would not be in the position to offer evidence to the contrary to disprove the Plaintiffs’ case. 24 [32] We are of the view that the learned Judge had rightly invoked the provision of Section 114(g) of the Evidence Act 1950 against the 1st Defendant due to the non-calling of the 2nd and 3rd Defendants in Court as these Defendants had personal knowledge of the matter and would be in a better position to provide the best evidence for the 1st Defendant. The burden lies on the 1st Defendant to call the 2nd and 3rd Defendants to testify on its behalf. This finding is in line with the provision of Section 103 of the Evidence Act 1950 (see Maju Holdings Sdn Bhd v Fortune Wealth (H-K) Ltd & Other Appeals [2004] 4 CLJ 282 ; Formosa Resort Properties Sdn Bhd v Bank Bumiputra Malaysia Bhd [2010] 6 CLJ 530). [33] Based on the aforesaid, we found that the findings of the learned Judge are predicated on the evidence that was presented before him. Hence we found no appealable error on the part of the learned Judge that merit curial intervention. Appeal No. 603 [34] Turning now to the appeal filed by the Plaintiffs against the decision of the learned Judge to dismiss the Plaintiffs’ claim against the 4th Defendant. It was the contention of the Plaintiffs, once the claim of the Plaintiffs against the 1st Defendant is allowed, the Plaintiffs’ claim against the 4th Defendant ought to be allowed. [35] Having resolved that the 1st Power of Attorney is an irrevocable power of attorney and for valuable consideration and that the deceased 25 is the rightful owner of the Property, the next issue to be considered is whether the learned Judge was right in dismissing the Plaintiffs’ claim against the 4th Defendant. As shown above the 4th Defendant is a financial institution which had provided the financial facilities to the 1 st Defendant with the Property being pledged as a first party charge in favour of the 4th Defendant. [36] The 4th Defendant argued that it had no knowledge about the claim. Based on its own search, the 4th Defendant was satisfied, the 1st Defendant is the registered owner of the Property. The Plaintiffs were not privy to the charge which only involved the 1st Defendant and the 4th Defendant. [37] The next issue to be considered is whether for the purpose of Section 340 (2) of the NLC knowledge and fides of the 4th Defendant are relevant. [38] Section 340 (2) of the NLC states that the title and interest of a person or body shall not be indefeasible:

(a) In event of fraud or misrepresentation where the person or body, or agent of the person or body was privy to;

(b) In cases where the registration was secured by forgery, or by mean of an insufficient or void instrument. 26 [39] Subsection 340 (3) of the NLC states that in cases where the title or interest of any person or body is not indefeasible due to the circumstances illustrated above, it shall be liable to be set aside in the hands of any person or body to whom it may be subsequently transferred. [40] The learned Counsel for the Plaintiffs had stated in the Memorandum of Appeal that the learned Judge had erred and misdirected himself in law and in fact when His Lordship had ignored the established principles enunciated in the Federal Court case of Kamarulzaman Omar & Ors v Yakub Husin [2014] 1 CLJ 897 (“Kamarulzaman”) and followed by Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 (“Samuel Naik”) which provide the trial courts the guide on how to deal with the situation when the challenge is made under Section 340 (2) as follows:

(a) Firstly, the court must ascertain if the title or interest in dispute is registered in the name of an immediate purchaser or a subsequent purchaser;

(b) In the event the title or interest is registered in the name of an immediate purchaser, the court will not “offer a shield of indefeasibility”. The title is still liable to be set aside. [41] Guided by the above high authorities against the factual matrix of the case at hand, we are satisfied that the 4th Defendant is an immediate holder of the charge. Therefore, as illustrated above the fides of the 4th Defendant are irrelevant. 27 [42] The Plaintiffs argued as the learned Judge had ruled that the deceased is the rightful owner of the Property as he had paid the full purchase price, the 1st Defendant is merely holding the said Property as a “bare trustee” to the deceased. In view of this, the learned Judge ought to have made a finding that the Plaintiffs’ case against the 4th Defendant ought to be allowed. [43] We found merit in this argument. After having made the findings the full price for the said Property had been paid, the 1st Defendant stood in the position of a “bare trustee’ to the deceased. As a “bare trustee”, the 1st Defendant could not deal with the Property or treat as if the Property belong to him. Further in this case an irrevocable power of attorney had been executed. Clause 4 of Exhibit P2 states that the deceased had the sole right to deal with the Property. In view of the aforesaid, the transaction entered into by the 1st Defendant and the 4th Defendant for the purpose of the financing facilities is void ab initio. Hence, the learned Judge ought not to have dismissed the Plaintiffs’ case against the 4th Defendant. Obviously, His Lordship’s decision to dismiss the Plaintiffs’ claim and allow the 4th Defendant to proceed with the order for sale of the Property went against the principle enunciated in Kamarulzaman and Samuel Naik. From the cases cited herein a vendor who is a “bare trustee” has no beneficial interest in the Property. Therefore, the said vendor is not authorized by law to sell, transfer or deal with the Property to the new purchaser or holder of my interest in the land. There is sufficient evidence before us that the 1st Plaintiff had taken possession of the Property and had been paying quit rents and 28 assessment bills to the proper authorities (see paragraph 20(f)) of this Grounds of Judgment). [44] The learned Counsel for the Plaintiffs had referred us to the Supreme Court case of Yeong Ah Chee v Lee Chong Hai & Anor and Other Appeals [1994] 3 CLJ 20 where it was held that “When the full purchase price is paid, the vendor becomes a bare trustee for the purchaser”. In OCBC Bank (Malaysia) Bhd V Pendaftar Hakmilik Negeri Johor Darul Takzim [1999] 2 CLJ 949 the Court of Appeal clarified that the word “interest” used in Section 340 (2) of the NLC also applies to an interest in the form of a charge or a lease. [45] Notwithstanding the fact that the Plaintiffs in this case had not taken steps to lodge a caveat, it did not mean that the Plaintiffs’ rights and interest are vitiated, as in law a caveat does not create interest or rights (see Samuel Naik [supra]). [46] We found, the learned Judge erred and misdirected his mind as to the law and fact, when His Lordship ruled that the 4th Defendant was a bona fide party and was not negligent in causing the charge over the Property to be registered in its favour. There is clear and blatant disregard to the established principles enunciated in Kamarulzaman and Samuel Naik as discussed above. 29 CONCLUSION [47] Having examined the pleadings, the notes of proceedings, and having heard the respective learned Counsels, we found that with respect to Appeal No. 803, the learned Judge had sufficiently evaluated the evidence before His Lordship both testimonial and documentaries and had correctly allowed the Plaintiffs’ claim against the 1st Defendant. We are satisfied there was no appealable error which merit our intervention. [48] With respect to Appeal No.638, are as we have illustrated in the preceding paragraphs we found that the learned Judge fell into error in failing to appreciate the principles of law enunciated in in Kamarulzaman and Samuel Naik. We were constrained to hold that the learned Judge failed to judicially appreciate the evidence and / or the law presented before him so as to render his decision plainly wrong and upon curial scrutiny merit our appellate intervention. [49] Based on the aforesaid, we unanimously affirm the learned Judge’s decision which allowed the Plaintiffs’ claim against the 1st defendant with costs of RM15,000.00. With respect to the Plaintiff’s appeal against the decision of the learned Judge which dismissed the Plaintiff’s claim against the 4th Respondent, we allowed the Plaintiffs’ appeal with costs of RM15,000.00. Accordingly, we set aside the order of the learned Judge. We further order that the costs shall be subject to payment allocateur fees. 30 [50] We therefore ordered accordingly. Dated this 2nd October 2017. (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia 31 Parties:

Messrs Akberdin & Co Advocate & Solicitor For and on Behalf of the Appellants No.AAG/6, Block D, Tingkat Bawah Jalan Plumbun AA7/AA Pusat Komersial Seksyen 7 40000 Shah Alam Selangor Darul Ehsan [Ref: AK/L/3178/13(APP)] …Mr Tan Chong Lii

Messrs C.Sukumaran & Co Advocate & Solicitors For and on Behalf of the 4th Respondent Lot 2.01B, 2nd Floor Wisma Equity 150, Jalan Ampang 50450 Kuala Lumpur [Ref: CSC(KL) (Ambank)/29(OS)/Ain] …Mr Malcom Fernandez Mr Muhd Hadzwan Mr Mark Cheng

Messrs Ranjit Ooi & Robert Low Advocate & Solicitors For and on Behalf of the 1st Respondent No. 53 Jalan Maarof Bangsar 59000 Kuala Lumpur [Ref: OHL.TCL.TINA.0049.2012] … Mr Harjinder Singh Sandhu