1. Kok Lok Kong v 1. Chow Jack Seon (BA-24NCVC-14-01/2016)

KOK LOK KONG

KOK AH KHEONG (NRIC NO: 641004-08-5305) …PLAINTIFFS 2

CHOW JACK SEON

CHOW YIP JANE (NRIC NO: 911115-14-5187) ...DEFENDANTS GROUNDS OF JUDGMENT (ENCLOSURE 1 – REMOVAL OF CAVEAT) A. BACKGROUND FACTS [1] The present case before this Court is a simple application by the Plaintiffs, as registered owners of a land, for the removal of caveats wrongfully lodged by the Defendants. The Defendants have wrongfully lodged the caveat on the misconceived notion that a previous co-owner of the land, one Kok Yun Thai (“KYT”) had put the land on trust for the Defendants’ benefit. But it is altogether clear to this Court that since KYT had sold her 1/3 share of the land, and also executed a Power of Attorney assigning all her rights 1/3 share of the land to the 1st Plaintiff, KYT had become defensive over her previous share, and had continuously as well as agonizingly hindered the rights of the Plaintiffs to deal with their land. KYT had twice instigated third parties to lodge caveats on the 3 same erroneous notion of Trust, of which if KYT was confident that she had never sold or assigned her rights off, KYT would have no reason at all to instigate third parties to enter caveats to ‘protect’ her rights. If KYT was utterly sure of her proprietorship of the land, there was no reason at all for her to instigate the lodgement of caveats, simply because her rights would be under total protection of the Register and the other co-proprietors cannot deal with the land without her consent. It is this agonizing attempt in instigating the Defendants to wrongfully lodge the caveats that forms the basis of the Plaintiff’s cause of action. [2] Kok Loh Kong (“1st Plaintiff”) and Kok Ah Keong (“2nd Plaintiff”)(collectively referred to as “Plaintiffs”) are the current owners of a piece land held under Title No PM 3756, Lot 13523, Pekan Kayu Ara, Tempat Kg Sungai Kayu Ara, Daerah Petaling (“Land”). KYT although having relinquished her share of the Land to the 1st Plaintiff, had continuously failed to surrender her share of the Land to the 1st Plaintiff. Thus, at the time of this Application, the Plaintiffs as well as KYT each hold 1/3 shares of the Land. [3] It is resoundingly clear that KYT had sold off her share to the 1st Plaintiff via a Sale and Purchase Agreement dated 2.1.1990 4 (“S&P”), in which the 1st Plaintiff had already paid the full purchase price RM39,210.00. KYT in executing the S&P had admitted that the 1st Plaintiff had already paid and KYT had received a sum of RM18,275.00 and the balance purchase price of RM20,935.00 was paid to KYT’s chargor, the then Southern Finance Company Berhad (“Bank”) to discharge KYT of liability under KYT’s charge with the Bank. [4] Not only that, two years after the S&P, in solidifying the sale of her share to the 1st Plaintiff, KYT had executed a Power of Attorney dated 9.1.1992, assigning all her interest, rights, and benefits in her 1/3 share in the Land to the 1st Plaintiff. [5] However, since KYT had lawfully assigned and sold her share to the 1st Plaintiff, KYT suddenly became sorely defensive, defending a share which was no longer hers. KYT had since, instigated two wrongful lodgement of caveats on the false pretext that KYT intends to put the share (which was no longer KYT’s) on trust for the benefit of the third party. The first lodgement of caveat was done on 8.10.2009 by one, Kok Bok Tai who KYT initially intended to put the share on trust for. This caveat has since been withdrawn on 18.5.2015. 5 [6] However, succumbing to her unusual paranoia, KYT again set the same modus operandi in motion to instigate Chow Jack Seon and Chow Yip Jane (“Defendants”) to lodge a caveat on the similar bogus pretext of a trust on 13.10.2015. [7] The second lodgement of caveat had hindered the Plaintiff’s proprietorship of the Land and their rights to deal with the Land. The 2nd Plaintiff recently intended to sell his 1/3 share to one, Koh Choon, in which the 1st Plaintiff has no objection of. The 1st Plaintiff and Koh Choon had also entered into a Loan Agreement with CIMB Bank Berhad (“CIMB”) on 7.8.2015 to finance the sale of the 2nd Plaintiff’s shares having the Land put as security. However, none of this can be put into effect having the caveat being an obstacle. [8] This incessant lodgement of caveat also forms the basis of the Plaintiff’s Application in the present case B. KYT CERTAINLY HAS FULL KNOWLEDGE OF THE S&P AND THE POWER OF ATTORNEY 6 [9] The Defendants have very little to nothing at all to contend against the Plaintiffs’ Application. All that was afforded to this Court were bare assertions that both the S&P and the Power of Attorney were sham forged documents. Unsurprisingly, these bare averments came with nothing in support besides one Police Report which was lodged clearly as an afterthought. No actions have ever been taken by the Police. In fact KYT, the supposed ‘victim’ of the forgery had not even taken any action in Court for this ghastly supposed sham. It is simply impossible for this Court to find any credence in the Defendants’ contention that the Defendants and KYT was taken by ‘surprise’. In fact, it is infinitely more probable than not, given KYT’s peculiar fear and agonizing attempts to ‘protect’ her rights, that KYT clearly had full knowledge and had out of her own volition agreed to the S&P as well as the Power of Attorney. [10] And it is also pertinent to note that the Defendants here have never contested the factum that the 1st Plaintiff had paid the full purchase price for KYT’s share over the land. At the most, the bare averments only deny the S&P and the Power of Attorney, not at all against the fact of payment. Thus, it is firstly, verily odd that KYT would have received these monies, and being discharged from her 7 liability with the Bank, without knowing the underlying reasons why these monies were paid to her benefit. Clearly and surely, KYT herself entered into the S&P and executed the Power of Attorney. [11] Secondly, the Court begs to question, what was the motivation behind KYT’s instigation which had led KYT to fear losing her share that she needed to put an added gloss of protection of a third party caveat, on top of her registered proprietorship (if she so genuinely believed that she had never sold, assigned, or surrendered her rights as registered proprietor of the land). If indeed KYT genuinely have no idea at all about the sale and assignment, there was no reason at all for KYT to incur costs to prepare all the documents for a Deed of Trust and requisite documents to register a caveat on the Register just to protect her interests. If indeed KYT genuinely believed her rights as registered proprietor were never in any risk of loss, then she would have been sure that her rights and her intent to create such trust would never be defeated since she was the registered proprietor of the Land. And the fact that KYT attempted to put this added protection twice, adds more weight to the probability that KYT knows well that she no longer has rights over the Land, and that she is just 8 desperate to devise any manner whatsoever to ensure that her share of the Land is not surrendered. [12] Thus, it is this Court’s finding that indeed KYT has full knowledge of both the S&P and the Power of Attorney and that both of the S&P and Power of Attorney is never a sham or forgery. C. THE DEFENDANTS HAVE NO CAVEATABLE INTEREST [13] The absence of caveatable interest is glaring that there is no reason for this Court to go to an extremity of lengths to make its finding. [14] Just the mere fact that the S&P had already been executed between the 1st Plaintiff and KYT marks the vesting of the beneficial ownership of the Land onto the 1st Plaintiff as purchaser, while KYT as vendor only has rights to the purchase price (which the 1st have paid in full). This is the exact principle upheld by the Supreme Court in the case of Yeong Ah Chee v Lee Chong Hai & Anor and other appeals [1994] 2 MLJ 614: 9 “…it is an old and well-settled rule of equity that under a valid contract for sale of land, the beneficial ownership of the land passes to the purchaser who becomes the equitable owner, while the vendor has a right to the purchase money for which he has a lien on the land.” [15] Thus, KYT no longer has ownership over the Land at the time of the execution of KYT’s trust deed in favour of the Defendants. It legally and logically entails that the trust deed is invalid for the sheer lack of certainty of subject, being the Land itself since the Land is no longer KYT’s to pass on to the Defendants. [16] It is also time celebrated principle that a vendor, upon receipt of the full purchase price becomes a bare trustee holding the land for the benefit of the purchaser and ceases to have any beneficial interest in the land. (see Temenggong Securities Ltd & Anor v Registrar of Titles, Johore & Ors [1974] 2 MLJ 45; Yeong Ah Chee v Lee Chong Hai & Anor and other appeals [1994] 2 MLJ 614) [17] The Supreme Court in Yeong Ah Chee had held the following: 10 There was no evidence to support the finding that the transfers deeds… the other trust deeds lacked certainty of subject ie the trust property, because the beneficial ownership of the lands had already passed to the purchasers when the sale agreements were executed, the Lee brothers, as trustees under the trust deeds, could not vest the lands in themselves as trustees when, at the time of signing the trust deeds, they were not owners of the lands in law and equity” [18] Similarly in the present case, it is undisputed that the 1st Plaintiff indeed had paid the full purchase price to KYT. Thus, KYT now holds the land for the benefit of the 1st Plaintiff. It naturally entails then, that KYT no longer has any beneficial interest to hold on trust for the benefit of the Defendants. Thus, the Defendants have no beneficial interest at all in the Land. [19] Thereto, it is this Court’s finding that the Defendants do not at all have any beneficial interest over the land. It follows that the Defendants do not have any caveatable interest in the Land. 11 D. THE DEFENDANTS’ CAVEAT OUGHT TO BE REMOVED [20] The law on removal of caveat is well settled. It is first incumbent for the caveator to show that he has a caveatable interest. Only if the caveator succeeds to prove caveatable interest that the caveator then must prove that he has a serious question meriting a trial. Finally, the Court would then have to look at the balance of convenience. If the balance of convenience lies with the Applicant (in that the Applicant would suffer grave damage if the caveat is retained), then the caveat ought to be removed. (see Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719) [21] All of the Defendants’ defence is a non-starter in regards to all of the above requisites. The Defendants have already failed the 1st requisite to prove caveatable interest. Clearly then, there would be no serious question meriting a trial. All that was afforded by the Defendants were mere bare assertions and averments which hold no weight in Court. Similarly, the issue of balance of convenience is a non-starter. The Defendants stand to lose nothing in the 12 present Application as nothing is beneficially theirs. However, the Plaintiffs stand to lose both the land, as well as the loan facilities which were already accepted from the CIMB since the Land is in a stalemate, unable to be dealt with to be transferred to Koh Choon, or to be put as security for the loan. [22] Thus, it is this Court’s decision that the Defendants’ caveat ought to be removed.

[23] In view of all of the findings and deliberations above, it is this Court’s decision that the Plaintiffs have successfully proven their case. [24] It is also this Court’s decision that the Defendants have utterly failed to prove any defence to challenge the Plaintiff’s present Originating Summons. This Court hereby dismisses the Defendants’ defence. [25] Thus, this Court grants order-in-terms to the Plaintiff’s present Originating Summons. 13 [26] This Court also orders the Land Office to remove the caveat No Perserahan 3181/2015 lodged by Chow Jack Seon and Chow Yip Jane registered in the Land held under Title No PM 3756, Lot 13523, Pekan Kayu Ara, Tempat Kg Sungai Kayu Ara, Daerah Petaling on 13.10.2015. [27] Finally, this Court also orders both the Defendants to pay the Plaintiffs RM 8000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 15 Julai 2016 For the Plaintiffs - Messrs Low & Partners Loke Yuen Hong For the Defendants - Messrs Hee & Lim Hee Wai Ming