for an order declaring that the sale of the parcel of land with factory erected thereon held under HS(M) 5433, 5434, PT 2522 & 2523 Mukim Simpang Kanan Batu Pahat Johor bearing postal address at No. 601, Jalan Kluang Bt 4 ½ Batu Pahat Johor from the 2nd to 7th Defendants to the 10th Defendant vide Sale and Purchase Agreement dated 1.11.2012 is null and void and of no effect and that the same be re-transferred to the Plaintiff. [38] But no such Order is sought as far as this Land is concerned. [39] I find the Company’s pleaded case in respect of the Land seems to be premised on the sale of the Land between related parties at an undervalued price and they are seeking damages as compensation. [40] In the circumstances, in my view, even if the Company succeeds in their Appeal, they will only be entitled to damages. [41] Henceforth, it’s my finding that the Company has failed to establish that it still has a proprietary interest in the Land. Their claim in Suit 84 about the Land seems to be only for damages. [42] Furthermore, it is not in dispute that the Plaintiff was never made a party to Suit 84. [43] The charge was created over the land on 14.9.2020. The suit was filed on 4.12.2013 and disposed of by the High Court on 21.2.2022. [44] In my judgement, whilst suit 84 was pending and after the charge was created, the Company ought to have added the Plaintiff as a party to the suit. May 22, 2025 12 [45] They could have done so after the second private caveat had expired in April 2020 and before lodging the third private caveat on 31.10.2021, by making a search on the title of the Land and becoming aware of the charge created by the Plaintiff. [46] Hence, the Plaintiff is not a party in Suit 84 to date. Surely, any Court cannot adjudicate at this stage on the validity of the charge registered by the Plaintiff without having heard the Plaintiff. [47] The charge was statutorily created as a security to the Plaintiff providing banking facilities to the borrower, Style. [48] It can only be defeated on the grounds stated in section 340(2) NLC (Revised 2020). This is clear from the wording in sub-section (1), which reads: - “The title or interest of any person or body……………………. or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.” [49] Henceforth, in my opinion, the Company needs to claim specifically against the Plaintiff to defeat the registration of the Plaintiff’s charge and to set it aside. It cannot be done by way of a collateral attack against Sonata on the transfer of the title to the Land from the Plaintiff to Sonata. [50] It is also pertinent to note that the Company, when it filed Suit 84 in 2013, did not obtain a restraining Order against Sonata and other Defendants from dealing with the Land. Nothing prevented the Company from obtaining an injunction to restrain the transfer of the May 22, 2025 13 Land while maintaining the Private caveat lodged at the same time. In Seet Soh Ngoh v Venkateswara Sdn Bhd & Anor [1976] 1 MLJ 242, Chang Ming Tat J (as he then was) allowed an order for injunction to restrain the transfer of the land to stand despite the existence of a Registrar’s Caveat restraining dealings on the land. [51] Next, the Company argues that the Plaintiff has notice of the Company’s claim to set aside Sonata’s title in the Land and to reinstate the Land back to the Company’s name. According to the Company, this was done by way of lodgement of caveats by the Liquidator. [52] Three (3) private caveats were lodged by the Liquidator, i.e. in 2013, 2014 and 2021. [53] Hence, the Company submits that this was adequate notice of the Company’s pending claim to recover the Land and to challenge Sonata’s title but yet the Plaintiff accepted a charge over the Land from Sonata as security. [54] Whereas, the Plaintiff submits that at the time of creation of the charge on 14.9.2020, no existing caveats were lodged or endorsed on the title of the Land. The first private caveat was withdrawn on 17.4.2014, and the second private caveat had expired on 16.4.2020 and the third private caveat was only lodged on 31.10.2021, which was more than a year after the charge was registered on 14.9.2020. [55] It cannot be disputed that the Plaintiff was never a party in suit 84 and when the charge was created on 14.9.2020, the Land was not encumbered. May 22, 2025 14 [56] In the circumstances, I do not see any reason for the Plaintiff to investigate the history of the private caveats in 2013 which was withdrawn and the one in 2014 which had expired after six (6) years. [57] In my opinion, so long as the Plaintiff is satisfied that the Land is not encumbered before registering the charge and disbursing the loan, the Plaintiff Bank is perfectly entitled to do so. [58] On this point, I agree with the views echoed by the Federal Court in Malayan Banking Bhd v Mohd Affandi bin Ahmad & Anor [2024] 6 MLJ 220, cited by the learned counsel for the Plaintiff as follows: - “[36] The facts also disclosed that, based on the land searches, there was one private caveat lodged by the first plaintiff, which was subsequently withdrawn on 30 September 2015. The two lots were transferred from D1 to D2, four years later, on 2 June 2019. At the time when D2 became the registered owner of the same, there was indeed no encumbrance on the two lots. As a result, D3 had no notice of the plaintiffs’ unregistered interest on the two lots. The plaintiffs are Singaporeans and do not reside on the land. [89] Caveats serve as a substitute for the equitable doctrine of notice under the English Land Law (see Eng Mee Yong & Ors v V Letchumanan [1972] 2 MLJ 212 at p 214). By s 322(2) of the NLC, the effect of the entry of caveats binds the land itself to prevent any registered disposition of the land except with the caveator’s consent until the caveat is removed. In the present appeal, there was no such caveat on the lots as the 1st plaintiff’s private caveat on the land was withdrawn about four years before the lots were sold and transferred to D2. Neither should a duty be imposed on D3 to investigate as to why the private caveat had been withdrawn, particularly if withdrawn years ago.” May 22, 2025 15 [59] In short, so long as the Land is free from encumbrance at the present moment, there is no duty on the Plaintiff to investigate further into the past history. [60] In the foregoing, based on my findings that the Company no longer possesses a proprietary right in the Land, they cannot intervene in this proceeding and therefore are not entitled to the stay as prayed. Whether this Court is Functus Officio. [61] Learned Counsel for the Company submits that the Federal Court’s decision in Staghorn (supra) on the point of functus officio does not apply to the present case. [62] According to the learned counsel for the Company, in Staghorn (supra) and Lim Eng Chong v SG Sarawak Recycle Industries Sdn Bhd. & Ors [2014] 10 MLJ 50, the auction was completed and the certificate of sale had already been issued. Unlike in our present case, where the judicial sale has yet to be completed and the certificate has yet to be issued. [63] In support of his contention, he relies on the decision in Lee Chai Seng v Magnum Consortium Sdn. Bhd. [2015] MLJU 1871 wherein the Court of Appeal distinguished Staghorn’s case as follows: - “[18] We have carefully considered the case of Hong Leong Bank Bhd v Staghorn Sdn Bhd & Other Appeals (“Staghorn”) cited by the learned counsel for the appellant. We are of the view that, on the facts, Staghorn is distinguishable from the facts in the present appeal because Staghorn concerns the granting of leave to intervene under O.15 r.6 of the RHC to set aside an order for sale May 22, 2025 16 after it had been made and perfected, after the auction sale had been completed and after the certificate of sale had been issued.” [64] Wherefore, learned counsel for the Company submits that the intervention in the present case is by a non-party who has not been heard and therefore the decision in Staghorn (supra) does not apply. [65] Whereas Learned Counsel for the Plaintiff relied on the decision in Staghorn (supra) wherein the Federal Court concluded that once the Order for Sale is drawn up and perfected, the Court is functus officio to set aside the Order. [66] In my judgment, to determine this issue, it is important to analyse the reasoning of the Federal Court in Staghon (supra) on this point. [67] Firstly, according to the Federal Court, the words “At any stage of the proceedings” mean intervening before judgment, before proceedings are concluded and the cause or matter is extant or alive. The Federal Court explained the rationale behind this was to achieve a comprehensive and global resolution of the cause or matter by the additional party. [68] But does this apply to a non-party? Upon reading the Federal Court judgment carefully, it does apply to a non-party in matters concerning an Order for Sale obtained via foreclosure proceedings. [69] In para 61 of its judgement, the Federal Court in Staghorn (supra) held as follows: - “[61] Fourthly, any party, whether a party in the original proceeding or not, who wants to challenge the order for sale, or for that matter, May 22, 2025 17 any judgment, other than a default judgment or where it is specifically provided for in the rules, may only do so by filing a fresh action.” [70] In addition to this, I also find that there are no specific provisions under Order 83 of the old RHC 1980 and the new ROC 2012 for setting aside an Order for Sale. In the circumstances, the proper recourse for the Company would be to file a fresh action. [71] My views are further fortified by the decision of the Supreme Court in Mui Bank Bhd v Cheam Kim Yu (Bei Sai Ming, Intervener) [1992] 2 MLJ 642 wherein it was held as follows: - “Indeed, following Hock Hua Bank Bhd v Sahari bin Murid, the learned judge was functus officio after he made the order for sale on 29 August