Noraini Binti Mokhtar v Zaidi Bin MD Yusoff (KA-21NCvC-8-06/2021)

ZAIDI BIN MD YUSOFF

YUAN TRADING & AGENCY SDN BHD (Company No.: 1220472-A) 12/01/2026 23:57:05

YEAP PEI LEE

MUHAMMAD SHAKIRRULLAH BIN LUKMAN

NG CHAN WANG

WONG TAI HAU (Peguambela & Peguamcara beramal di

PENTADBIR TANAH DAERAH & TANAH KULIM ---DEFENDANTS Grounds of Judgment (After full trial)

Introduction This judgment resolves two consolidated actions, namely Civil Suit No. KA-21NCvC-8-06/2021 (“Suit 8”) and Civil Suit No. KA- 22NCvC-16-03/2022 (“Suit 16”). These actions were ordered to be heard jointly pursuant to the Court Order dated 23.12.2021.

The gravamen of the dispute concerns the validity of a property transfer concerning land known as HSM 9163, PT 84, Bandar Kulim (“the Property”). The conflict is between the original proprietor, who alleges the transaction was a loan disguised as a sale, and the subsequent purchaser and agents, who rely on the validity of an irrevocable Power of Attorney and Sale and Purchase Agreement. Brief Facts of the Case 3. The Plaintiff in Suit 8 and the Defendant in Suit 16, Noraini Binti Mokhtar (“Noraini”), was the original registered proprietor of the Property.

The D1 in Suit 8 and the Plaintiff in Suit 16, Zaidi bin Md Yusoff (“Zaidi”), is the current registered proprietor of the Property, having acquired the title via a Memorandum of Transfer registered on 21.03.2021 (“the MOT”).

The other Defendants in Suit 8 include Yuan Trading & Agency Sdn Bhd (D2) (“Yuan Trading”), a company alleged by Noraini to be a moneylender, Yeap Pei Lee (D3), Muhammad Shakirrullah (D4), and Ng Chan Wang (D5), who facilitated the transaction or introducing the parties, Wong Tai Hau (D6), the solicitor who prepared and witnessed the execution of the transaction documents, and the Land Administrator of Kulim (D7), responsible for the registration of the transfer.

On or around 15.01.2021, Noraini attended the office of the solicitor, D6. At this meeting, Noraini executed several legal documents, specifically: a) A Sale and Purchase Agreement dated 15.01.2021 (“the SPA”), intending to sell the Property to Zaidi for a consideration of RM200,000.00; b) A Power of Attorney dated 15.01.2021 (“the PA”) appointing Yuan Trading (D2) as her attorney; c) the MOT dated 21.03.2021; d) Various statutory declarations affirmed before a Commissioner for Oaths, Supriya a/p Unni Kumaran (SD1).

Noraini admits receiving a sum of approximately RM49,830.00 from Yuan Trading via cheques dated 15.01.2021. The Defendants contend that the balance of the purchase price (RM200,000.00) was utilised to pay off Noraini’s existing redemption sum to her bank, administrative fees, and other agreed deductions under a Consultancy Agreement dated 12.01.2021.

The genesis of the dispute lies in Noraini’s assertion that she never intended to sell her house. She avers that she approached D4 solely to obtain a personal loan. She further alleged that she was misled into signing the documents, believing them to be loan security documents rather than an outright sale, consequently, she invokes the doctrine of non est factum, asserting she did not understand the nature of the documents prepared by D6 and that the Defendants conspired to defraud her of her property.

Zaidi contends that the transaction was a genuine sale and purchase as he maintained that he is a bona fide purchaser for value who paid the full purchase price and has an indefeasible title.

Following the execution of documents, a Lien-holder's Caveat was entered by Yuan Trading on 17.01.2021. In March 2021, arguably aggrieved by the transaction, Noraini lodged a police report alleging fraud. She subsequently entered a private caveat on the Property on 18.03.2021 (“the Private Caveat”).

Notwithstanding the Private Caveat, the MOT in favour of Zaidi was presented and registered by D7 on 21.03.2021. D7 submits that the registration was regular, as the presentation of the transfer was supported by the lien-holder's authorisation and complied with the National Land Code (“the NLC”).

Noraini remains in occupation of the Property. Zaidi, asserting his rights as the registered owner, instituted Suit 16 to obtain vacant possession, while Noraini instituted Suit 8 to annul the transfer and restore the title to her name. The Trial 13. Noraini has called the following witnesses to support her claim of fraud and non est factum in Suit 8 and Suit 16: a) The Plaintiff herself, Noraini (SP1); b) The Plaintiff’s husband, Ramlee Aman (SP2); and c) The investigating officer, Inspector Stepanie Binti Shaiful Ahmad

Meanwhile, there were a total of seven (7) witnesses called by the Defendants in Suit 8 (and Plaintiff in Suit 16) to support their case during trial: a) The Commissioner for Oath, Supriya a/p Unni Kumaran (SD1); b) D3, who is the Director of Yuan Trading, Yeap Pei Lee (SD2); c) D4, who was the freelance broker who introduced Noraini to Yuan Trading, Muhammad Shakirrullah Lukman (SD3); d) D1 (Plaintiff in Suit 16), who is the purchaser of the Property, namely, Zaidi (SD4); e) D5, Ng Chan Wang (SD5); f) D6, the solicitor who prepared and witnessed the transaction documents, Wong Tai Hau (SD6); and g) The Assistant Legal Officer representing D7, Meenatchy Sundaram a/l Sinnathamby (SD7) Issues to be Determined by the Court 15. The issues for the determination by the court are as follows: a) Whether Noraini has discharged the burden of proving, on the balance of probabilities, that the SPA, the PA, and the MOT were obtained through fraud, fraudulent misrepresentation, or a conspiracy committed by the D1 to D6, thereby rendering the said instruments void ab initio and the transfer of title invalid; b) Whether Zaidi, as the registered proprietor of the Property, is entitled to an order for vacant possession against Noraini and to damages calculated for the period of holding over the Property; and c) Whether Noraini has established a cause of action in negligence against D6 for breach of professional duty in the attestation of the transaction documents, and against D7 for breach of duty in registering the transfer of the Property. Decision and Findings of the Court 16. Having scrupulously evaluated the totality of the evidence presented by all parties, including the testimonies of witnesses and the comprehensive submissions of learned counsel, the court finds that Noraini has failed to discharge the legal burden of proving, on a balance of probabilities, that the SPA, PA, and MOT were procured by fraud, conspiracy, or fraudulent misrepresentation in Suit 8. Consequently, and for the reasons that follow, this court dismisses the Plaintiff’s claim in Suit 8 and finds in favour of Zaidi in Suit 16. The reasoning of the Court is elucidated below. A. SUIT 8 (THE CLAIM FOR FRAUD) i. The Burden and Standard of Proof 17. Noraini’s case, in Suit 8, is anchored on the serious allegation that the impugned transaction, specifically the execution of the SPA, the PA, and the MOT, was vitiated by fraud, conspiracy, and fraudulent misrepresentation committed by the D1 to D6.

Noraini avers that she was misled into signing these documents under the impression that they were security for a personal loan, rather than an outright sale of the Property.

It is a cardinal principle of the law of evidence, codified in Section 101 of the Evidence Act 1950, that he who asserts must prove. The burden of proof lies on the party that asserts that certain facts exist. In this instance, as Noraini alleges that the transaction was tainted by fraud and conspiracy, the legal burden rests squarely on her to prove the existence of these facts to the satisfaction of this court.

Regarding the standard of proof required to discharge this burden in civil fraud cases, this Court is guided by the Court of Appeal’s recent decision in Skyworld Holdings Sdn Bhd v Neurogine Sdn Bhd [2025] MLRAU 278. In that case, Collin Lawrence Sequerah JCA (now FCJ) affirmed at para. [117] that the burden of proof lies on the party asserting the facts, and clarified the evidentiary threshold. While the standard of proof in civil proceedings is on the balance of probabilities, the gravity of an allegation of fraud requires the court to scrutinise the evidence with care.

Hence, based on Skyworld (supra), the court must be satisfied that the evidence adduced is credible and cogent, and commensurate with the seriousness of the allegation, as fraud cannot be established by mere suspicion, conjecture, or loose assertions.

The courts must be vigilant against the erosion of commercial certainty. To allow a registered title to be impeached on the basis of loose allegations of fraud, without cogent evidence, would be to unravel the very fabric of the Torrens system, which prides itself on the 'mirror' and 'curtain' principles.

This court has also considered the principles discussed in JW Development Sdn Bhd v Syarikat Bamas Enterprise Sdn Bhd & Ors [2024] MLRHU 456, where the Court reiterated that while fraud is infinite in variety, in the contemplation of a civil court, it must imply a wilful act on the part of anyone whereby another is sought to be deprived by illegal or inequitable means of what he is entitled to.

The Court is further guided by the principles in Lee Cheong Fah v Soo Man Yoke [1996] 2 MLJ 627, which established that to vitiate a registered title or interest under the NLC, the fraud alleged must constitute 'actual fraud,' necessitating a demonstration of dishonesty or moral turpitude, not merely constructive fraud, as per Abdul Malik Ishak J (as he then was) at p.649: “In order to vitiate title to land, fraud as alleged by the defendant must be actual fraud. Actual fraud has been judiciously defined as ‘dishonesty – a wilful and conscious disregard and violation of the rights of other persons’ (per Salmond J in Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd (1923) NZLR 1137 especially at p 1173); or in the words of Knox CJ in Stuart v Kingston (1923) 32 CLR 309 at p 329 as ‘something in the nature of personal dishonesty or moral turpitude.’ In Assets Co Ltd v Mere Roihi [1905] AC 176 at p 210, it was decided that fraud ‘must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents.’”

Furthermore, during cross-examination, Noraini alleged that the thumbprints on the impugned documents were merely "transposed" or fabricated, denying they were hers they were hers (See NOP, p.6) (Encl.90). Despite this serious allegation of forgery, the Plaintiff failed to adduce any handwriting expert evidence to substantiate her claim.

As held in the recent decision of Skyworld Holdings (supra), the burden of proof lies on the party who asserts that facts exist. By merely alleging forgery without expert corroboration, Noraini has failed to discharge the evidential burden. The court cannot act on bare assertions of forgery when the documents are regular on their face and witnessed by a solicitor (SD6).

In our present case, Noraini’s narrative is predicated heavily on her subjective state of mind (that she thought it was a loan) without objective evidence to show a deceptive scheme or actual dishonesty by the Defendants.

Consequently, having failed to establish "actual fraud," the Plaintiff’s attempt to set aside the transaction rests solely on her claim that she did not understand the documents she signed. This brings this Court to consider the validity of the execution and the specific plea of non est factum. ii. Validity of Execution and the Plea of Non Est Factum 29. Noraini pleads the defence of non est factum as her case rests on the assertion that she is an uneducated/illiterate person regarding legal matters and that she was induced into executing the impugned documents under a fundamental mistake as to their nature.

Specifically, Noraini alleged that she believed she was signing documents to secure a personal loan, and not documents to affect an outright sale of the Property to Zaidi. She further contended that she did not understand the content of the documents prepared by D6 and that her thumbprints were obtained through misrepresentation, thereby rendering the SPA, the PA and MOT void ab initio.

The learned counsels for Noraini submitted that the burden of proving the validity of the transaction lies on the Defendants, particularly given the allegation that the transaction was a scam disguised as a sale. Counsel for Noraini canvassed the argument that the disparity between the purchase price of RM200,000.00 and the amount she actually received (approximately RM49,000.00) supports her belief that this was a loan transaction. Furthermore, Noraini submitted that she relied entirely on the representations made by the agents, D2 to D5 and the solicitor, D6 and was not afforded an opportunity to fully comprehend the legal implications of the documents before affixing her thumbprint.

In reply, the learned counsel for the D1 to D5 submitted that Noraini is bound by her signature (or thumbprint) on the legal documents. They cited a High Court decision of Wan Salimah bte Wan Jaafar v Mahmood bin Omar (Anim bte Abdul Aziz, Intervener) [1998] 5 MLJ 162 to support their submission.

When a party of full age and understanding executes a document, in the absence of fraud or misrepresentation, they are bound by it even if they have not read it. This was illustrated by Abdul Malik J (as he then was) in Wan Saliman (supra) at p.172: “Certain salient issues surfaced from this brief recital of the facts. I now propose to examine these salient issues not in order of merit. Non est factum and other related issues It is trite law that when a party signs a contract knowing it to be a contract which governs the relations between them, like the present case, then, to use the words of Denning J (as he then was) in Curtis v Chemical Cleaning & Dyeing Co Ltd [1951] 1 All ER 631, ‘his signature is irrefragable evidence of his assent to the whole contract, including the exempting clauses, unless the signature is shown to be obtained by fraud or misrepresentation’. Way back in 1934, Scrutton LJ said in L'Estrange v F Graucob Ltd [1934] 2 KB 394 that ‘when a document containing contractual terms is signed, then, in the absence of fraud, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not’. It must be stressed that in the present case there was no allegation of fraud but there was an allegation that the written agreement (P1) had not been explained to the defendant”. [Emphasis added]

The D1 to D5 further submitted that the plea of non est factum is not available to Noraini because she failed to exercise reasonable care to ascertain the nature of the documents she was signing. Furthermore, they highlighted that Noraini admitted to receiving part of the consideration and only lodged a police report months later, which the Defendants argued as an afterthought.

In response to Noraini’s allegation that the documents were not explained to her, D6 pointed out that she is a rational individual who engaged in WhatsApp correspondence with him, demonstrating she is not illiterate in the sense pleaded. It is D6’s case that he had acted professionally by preparing the SPA, Option Letter, and the PA, and that Noraini voluntarily executed these documents after they were explained to her.

D6 further pointed to the WhatsApp exchange on 10.03.2021 (See D6’s Bundle of Documents, pp.1 to 14) (Encl. 50) where he offered her the option to cancel the agreement if she changed her mind, proving she was aware of the nature of the transaction. The excerpt of the conversation is reproduced herein for ease of reference:

The court places significant weight on the testimony of SD6, the solicitor who attended to the execution of the documents. SD6 testified under oath that he was appointed to witness the execution of the SPA, the Option Letter, the PA, and the MOT.

In his witness statement, SD6 explicitly stated that he explained the nature of the documents to Noraini before she voluntarily put down her thumbprint (See SD6’s Witness Statement, Q3, p. 1) (Encl.71). This evidence is corroborated by the contemporaneous conduct of the solicitor, who, upon realizing the dispute, communicated with Noraini via WhatsApp to clarify her position, asking her if she wished to cancel the agreement. The Court finds SD6 to be a credible witness whose testimony rebuts the allegation that Noraini was kept in the dark regarding the nature of the documents.

Crucially, the execution of the transaction was not limited to the documents signed before SD6. The evidence shows that Noraini appeared before SD1, a Commissioner for Oaths, to affirm four separate statutory declarations, all dated 17.01.2021, confirming the transaction details as follows (See Plaintiff’s Bundle of Documents, pp. 37,72, 74 & 76) (Encl. 44): a) Declaring she is the owner of the property and voluntarily giving the Power of Attorney to Yuan Trading; b) Confirming the Power of Attorney is valid, and she is alive and not under duress; c) Acknowledging the Power of Attorney to Yuan Trading and the terms regarding the advance payment of RM190,000.00; d) Confirming she entered into the Consent Agreement dated 12.01.2021, which 2021 served as the legal basis for Yuan Trading to enter a Lien-Holder's Caveat on the Property and Additional Consent Agreement dated 15.01.2021.

SD1 is a critical independent witness. The fact that Noraini attended a separate office and affirmed these declarations before a Commissioner for Oaths completely contradicts her narrative that she was coerced or unaware of the transaction's formality. The affirmation of statutory declarations requires a solemn declaration of truth; it is not a process typically associated with a casual loan application. This active step taken by Noraini serves as independent verification that she knowingly executed the documents to affect the transfer and the power of attorney.

As a matter of law, the plea of non est factum imposes a heavy burden of proof on the party raising it. This court is guided by the principle established in Wan Salimah (supra), which ruled that the defence of non est factum would typically be raised by one who could not read through blindness or illiteracy, or through no fault of their own, was precluded from comprehending the document.

However, the evidence before this Court, specifically the WhatsApp logs in Encl. 50 demonstrates that Noraini is capable of communicating via text messages and understanding the concept of cancelling an agreement. She is not “illiterate” in the manner required to sustain this plea. The principle remains that a competent adult who signs a document is bound by it, as discussed in Wan Salimah (supra).

After all, Noraini had the opportunity to ask questions or refuse to sign if she was unsure. Instead, she proceeded to sign the SPA and the MOT and later affirmed those documents before a Commissioner for Oaths. Consequently, the court finds that Noraini has failed to discharge the burden of proving that the document she signed was fundamentally different in character from what she thought she was signing. The plea of non est factum is therefore dismissed. iii. The Nature of the Transaction: Sale vs Loan 44. The pivot upon which Suit 8 turns is the nature of the transaction concluded on 15.01.2021. Noraini averred that the transaction was a personal loan disguised as a sale. However, the court must look primarily at the contemporaneous documents executed by the parties. It is undisputed that Noraini had executed a valid SPA dated 15.01.2021 and a MOT transferring the Property to Zaidi.

On the face of these documents, the transaction is unequivocally a sale and purchase of the Property for a consideration of RM200,000.00. The documents do not contain any terms suggestive of a loan arrangement. As testified by D6 during trial, these documents were prepared pursuant to a standard conveyancing practice and were explained to the Plaintiff before execution.

Noraini further submitted that the transaction is void because she did not receive the full purchase price of RM200,000.00, having only admitted to receiving approximately RM49,830.00 via cheques from Yuan Trading. She argues that this discrepancy proves the existence of a loan scheme.

With respect, this Court finds the submission devoid of merit. The documentary evidence before the court demonstrates an apparent financial reconciliation of the purchase price as follows.

First, regarding the balance of the purchase price, the evidence shows that a sum of RM190,000.00 was treated as an "Advance Sum" paid to Noraini. This is evidenced by the payment voucher dated 15.01.2021 and the Plaintiff's own admission in the Consultancy Agreement dated 12.01.2021, where she authorized the deduction of this sum (see Common Bundle of Documents, pp. 104 to109) (Encl. 46). Unlike the Plaintiff's oral testimony claiming this was a loan, the contemporaneous documents indicate this sum was part of the purchase consideration utilized to pay her directly or to settle her other obligations, rather than a redemption from a financier, as the private search confirms the title was unencumbered at the material time.

Secondly, further deductions were made for administrative fees, legal costs, and debts owed to Yuan Trading under the Consultancy Agreement. The authorisation for these deductions is contained in the Letter of Authorisation dated 15.01.2021 and the Consultancy Agreement dated 12.01.2021, which confirms Noraini's agreement to deduct the advance sum of RM190,000.00 and the 3% Consultant Fee from the purchase price (see Bundle C1, p.49) (Encl. 52).

Thirdly, the sum of RM49,830.00 received by Noraini represents the net balance of the purchase price after the necessary deductions and redemption as clearly stated in the letter from Messrs T. H. Wong & Co to Yuan Trading dated 22.04.2021, confirming that the Plaintiff had returned the sum (see D6’s Bundle of Document, pp.15 & 16) (Encl.50).

Noraini's claim that this was merely a loan is negated by the distinct financial trail documented in the Common Bundle (Encl. 46), which she acknowledged receiving: a) Standard Chartered Saadiq Bank cheque no. 800054 for RM190,000.00 dated 09.03.2021(p.56 of Encl.46); b) Standard Chartered Saadiq Bank cheque no. 800053 for RM 6,000.00 dated 09.03.2021 (p.54 of Encl.46); c) General Cash Voucher for RM 190,000.00 dated 15.01.2021 signed by Noraini (pp.104 to 109 of Encl.46); and d) CIMB Bank cheque no. 000023 (RM70,000) and Hong Leong Islamic Bank cheque no. 001061 (RM120,000), both dated 15.01.2021, received by Noraini (p.46 of Encl. 46).

These contemporaneous documents, signed and acknowledged by Noraini, override her oral testimony that she did not receive the consideration sum.

The court accepts the Defendants' submission that the fact that a vendor receives a net sum after the settlement of redemption sums and other agreed deductions does not convert a valid sale transaction into a loan. The consideration of RM200,000.00 was fully accounted for through these payments and the discharge of the Plaintiff’s liability to her bank. Consequently, the court finds that the transaction is a valid sale with valuable consideration.

In assessing the allegation of fraud, the court places significant weight on the WhatsApp transcripts between Noraini and D6 during the material time. These messages offer an unvarnished insight into the Plaintiff’s state of mind and the solicitor’s conduct, free from the afterthoughts of litigation.

A critical exchange occurred on 10.03.2021, where SD6 explicitly messaged the Plaintiff regarding the status of the transaction. SD6 gave her the option to cancel the SPA and the PA. He even asked Noraini to call him to discuss it further.

When the Plaintiff questioned the meaning of cancelling the agreement, SD6 further clarified: "Kalau puan nak batal perjanjian dan surat kuasa. Puan perlu cari peguam lain untuk menyediakan dokumen kerana saya merupakan saksi kepada surat wakil".

This evidence is fatal to the Plaintiff’s claim of fraud and conspiracy.

D6 had acted professionally by affording the Plaintiff a locus poenitentiae (an opportunity to withdraw). He clearly communicated that the buyer, Zaidi, was ready to proceed, but offered Noraini the option to cancel the SPA if she no longer wished to sell.

If D6 were a co-conspirator in a fraud to steal or defraud Noraini’s land, he would not have offered to cancel the agreements or advised her to seek another lawyer to formalise the cancellation.

If Noraini genuinely believed the transaction was merely a loan, her natural reaction to the word "jual" in the message would have been shock or immediate denial. Instead, her failure to formally cancel the transaction and refund the monies received at that juncture affirms the existence of a valid contract.

Further, in the same WhatsApp thread, Noraini made a telling admission regarding Zaidi. In a revealing missive sent at 10:55 AM, she wrote: "Dalam aggrement tipu tu banyak nama Zaidi. ... kambing hitam ke mamang jadi barua jefry n yuan trading..".

This admission contradicts Noraini’s pleading that Zaidi was a co-conspirator. By referring to Zaidi as a "kambing hitam” (literally 'black goat', colloquially a scapegoat or pawn), Noraini acknowledged that she viewed him as an innocent party being used by the agents, Yuan Trading. This supports Zaidi’s defence that he is a bona fide purchaser for value who did not know any alleged internal arrangements between Noraini and the agents.

Consequently, relying on the contemporaneous evidence in Enclosure 50, this court finds that Noraini has failed to prove on the balance of probabilities that the Defendants committed fraud or conspiracy. The evidence suggests a case of, more accurately, seller’s remorse, rather than a fraudulent machination. iv. The Claim for Negligence a. Allegations against the D6 64. Noraini submitted that D6 failed to explain the contents of the documents to her before she put down her thumbprint. She argued that she was deceived into believing the transaction was for a loan, not a sale, and that D6 did not rectify this misunderstanding or explain the true nature of the SPA and the MOT.

Noraini further submitted that D6 conspired with the other Defendants (specifically D1, D2, and D3) to deceive and defraud her. She argued that D6 facilitated a fraudulent transaction by witnessing documents that were part of a "scam" or "fraud" to deprive her of her property under the guise of a loan.

Noraini’s case is that D6’s testimony regarding the execution of documents was not credible and should be rejected as unreliable. She highlights a material contradiction between the contemporaneous documentary evidence and D6's oral testimony. While D6 testified that all documents were executed during a single meeting at his office on 15.01.2021, the Consent Agreement explicitly bears the earlier date of 12.01.2021. Noraini submits that D6’s claim of carefully explaining the documents on the 15th was a fabrication constructed to paper over the fact that the documents were pre-prepared and that she was pressured into affixing her thumbprint without the benefit of actual legal advice.

Furthermore, in her Reply submission, Noraini characterises D6 as a witness suffering from inherent contradictions, relying on the principle in Goh Ah Yew v PP [1949] MLJ 150 that a witness cannot be worthy of credit at one moment and unworthy at the next. She argues that D6 concocted the narrative regarding the signing date and the explanation of terms to evade the ambit of professional liability and to validate a transaction that she contends was fundamentally different from what was represented to her. Consequently, she urges the court to treat D6’s evidence with extreme caution and to find that he failed to discharge his duty to ensure that she understood the nature of the sale.

In determining whether D6, being the solicitor who prepared and witnessed the execution of the disputed agreements, is liable for professional negligence, I have directed my mind to the principles established in Tetuan Theselim Mohd Sahal & Co & Ors v Tan Boon Huat & Anor [2017] 4 MLJ 207.

This principle was adopted and applied by the High Court in Jamian Dolah lwn Lim Kok Peng & Satu Lagi [2021] MLRHU 2367, where Shamsulbahri Ibrahim JC (as he then was) held that a solicitor owes a duty to exercise a reasonable degree of care and skill expected of a competent and reasonably experienced practitioner.

In determining the liability of D6, I am guided by the principles in Tetuan Theselim Mohd Sahal & Co & Ors v Tan Boon Huat & Anor [2017] 4 MLJ 207 and the recent position in Medi-Circle Sdn Bhd v Tetuan Am Zaharil & Co and Anor [2025] MLRHU 1617. The duty of a solicitor is to exercise a reasonable degree of skill and care; he does not guarantee that the client will succeed in their cause in every instance.

Applying the test in Medi-Circle(supra), the burden rests on the Plaintiff to prove D6’s conduct fell below the standard of a reasonably competent solicitor. The evidence shows D6 explained the documents to the Plaintiff (See SD6’s Witness Statement, Q3) (Encl. 71). Crucially, when the dispute arose, D6 acted with the necessary diligence by:

Immediately contacting the Plaintiff via WhatsApp on 10.03.2021 to clarify her position (Encl. 50, p. 1);

Offering her the option to cancel the agreement ("Kalau puan nak batal perjanjian...") (Encl. 50, p. 2); and

Halting the registration of the transfer upon being notified of the dispute. These actions demonstrate that D6 acted professionally and not as a co-conspirator in fraud. Therefore, the claim for negligence against D6 fails.

Crucially, the High Court in Medi-Circle (supra) emphasised that a solicitor's conduct must not be assessed with the benefit of hindsight: “[12] The court must be cautious not to assess a lawyer’s conduct with the benefit of hindsight. At this juncture, it is prudent to refer to the case of Lanphier v Phipos (1838) 8 C & P 475, wherein Tindal CJ said – Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill... He does not undertake, if he is an attorney, that at all events you shall gain your case... but he undertakes to bring a fair, reasonable and competent degree of skill.” [Emphasis added]

Applying the tests from Tetuan Theselim and Medi-Circle to the factual matrix of this case, this Court finds that D6 has discharged his duty of care as a reasonably competent solicitor based on the following: a) D6 testified in his Witness Statement (SD6) that he had explained the content and terms of the SPA, Option Letter, and PA to the Plaintiff before she lowered her thumbprint (See Q&A 3 of D6’s witness statement) (Encl. 71). This evidence stands in contrast to the Plaintiff's bare assertion of ignorance; b) Following the principle in Medi-Circle, the court must avoid judging D6’s actions based on the Plaintiff’s subsequent allegations of fraud, which arose months later. At the material time of execution, 15.01.2021, the documents were regular on their face, and the Plaintiff executed them voluntarily before D6. To argue that D6 should have discerned the Plaintiff's alleged lack of intent in the absence of manifest irregularities would be to impose a standard of perfection or guarantee, which the law does not require; c) The evidence shows that D6 acted with the necessary diligence expected of a solicitor when a dispute actually materialised. Upon being informed by Noraini that she wished to cancel the transaction, D6 did not proceed to register the MOT at the Land Office (see Q&A 5 to 6 of D6’s witness statement) (Encl.71); d) D6 acted professionally by communicating the Plaintiff's intention to terminate the transaction to D2 and facilitating the return of the sum of RM49,830.00 to D2. This demonstrates that D6 acted in accordance with his client's instructions and the situation as it evolved, rather than negligently (see Q&A 7 of D6’s witness statement) (Encl.71).

Based on the above, it is the finding of the court that Noraini had failed to adduce expert evidence or sufficient proof to suggest that D6’s conduct fell below the standard of a reasonably competent solicitor. As stated in Medi-Circle, the burden of proving professional negligence lies with the Plaintiff to demonstrate a breach of the standard of care and a direct causal link to the loss.

The evidence shows D6 explained the documents, witnessed the execution, and crucially, halted the registration process once notified of the dispute. Therefore, applying the standards in Tetuan Theselim and Medi-Circle, the claim of professional negligence against D6 must fail. b. Allegations against the D7

Noraini also claims damages against D7 for negligence, alleging that D7 failed to investigate the validity of the transaction before registering the transfer to the First Defendant, despite the Plaintiff having entered a Private Caveat on 18.03.2021.

It is established law that the duties of the Land Administrator/Registrar are administrative in nature, governed by the NLC. This court adopts the principle in Eu Finance Bhd v Siland Sdn Bhd [1989] 1 MLJ 195, which establishes that the Registrar’s function is to record instruments that are fit for registration. The Registrar is not required to investigate the internal or underlying disputes between parties if the documents presented are facially valid and comply with the statutory requirements.

The court finds that D7 was not negligent based on the regularity of registration and the caveat. The witness for D7 confirmed that the MOT presented on 21.02.2021 was complete and in order (See NOP, p.)

The Plaintiff argues that her Private Caveat should have prevented the transfer. However, the evidence shows that a Lien-holder's Caveat was already registered by Yuan Trading (D2) on 17.01.2021.

Crucially, the transfer to Zaidi was buttressed by the requisite consent of the lien-holder to Zaidi. Furthermore, under Section 324(1) of the NLC, the Registrar’s duty upon receiving a caveat application is administrative, to enter it if it is in the correct form. However, a Private Caveat generally prohibits subsequent dealings.

D7 submits that the registration of the transfer was valid because it was supported by the lien-holder's consent and the documents were in order. The Registrar is not a court of law to adjudicate on allegations of fraud behind a facially valid MOT before registering it.

It is an undisputed fact that at the time the Plaintiff lodged the Private Caveat, she was the registered proprietor of the Property. The law is settled that a registered proprietor cannot enter a private caveat on their own land.

To answer the query by this Court concerning the capacity of a registered proprietor to enter a private caveat against their own title, the learned counsel of D7 highlighted the Court of Appeal’s decision in Mohamed Ali Abdul Razak v Sim Hock Yong [2007] 6 CLJ 337, which settled a long-standing conflict in Malaysian land law regarding whether a registered landowner can lodge a private caveat on their own land.

In Mohamed Ali (supra), Gopal Sri Ram JCA (as he then was) held that Eu Finance (supra) was correct and explicitly overruled the position in Hiap Yiak Trading Sdn Bhd [1990] 2 MLJ 155: “[3] In my judgment, the decision of KC Vohrah J in Eu Finance Bhd v. Siland Sdn Bhd is correct and that Hiap Yiak Trading Sdn Bhd & Ors v. Hong Soon Seng Sdn Bhd must be overruled. As a plain matter of statutory construction, a registered proprietor does not have a caveatable interest. The relevant provision is s. 323 of the National Land Code 1965 which in its first subsection permits the entry of a private caveat by "any person or body claiming title to... any alienated land". A person cannot "claim" title to something the title to which is already vested in him or her. Take the simplest case which exemplifies the point. If V agrees to sell and transfer his land to P, then P can claim the title to the land because the agreement renders V a constructive trustee for P. See, Temenggong Securities Ltd & Anor v. Registrar of Titles, Johore & Ors [1974] CLJU 175; [1974] 1 LNS 175. But V cannot "claim" title against P because the title to the land is already vested in him. Since a registered proprietor will be unable to bring himself or herself within the terms of s. 323(1), he or she does not have a caveatable interest. The very first requirement being absent, the caveat was properly removed by the learned judge in the instant case.” [Emphasis added]

This position is further fortified by the Federal Court in Score Option Sdn Bhd v Mexaland Development Sdn Bhd [2012] 6 MLJ 475, where Arifin Bin Zakaria CJ clarified that the only parties authorized to lodge a private caveat under Section 323(1)(a) of the NLC are those who can effect dealings in particular interests and have a "registrable interest". Since Noraini was the registered proprietor, she lacked the requisite caveatable interest in her own land.

Furthermore, in Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, the Federal Court reiterated that under the Torrens system, a caveat is devised for the protection of non-registrable interests on alienated land. There is no evidence that D7 acted principally beyond their powers or in breach of the strict provisions of the NLC. As submitted by D7, they do not know about the internal dealings or the alleged "scam" between Noraini and the agents. To impose a duty on the Land Office to investigate every allegation of fraud before registration would undermine the efficiency and certainty of the Torrens system.

Applying these authorities to the present case, Noraini, as the registered owner, had no legal standing to lodge the private caveat on 18.03.2021. Consequently, the caveat was invalid ab initio. D7, in executing its administrative duties under Section 324 of the NLC, is not required to investigate the validity of the claim behind the caveat at the point of entry.

However, when the complete and regular instruments of transfer, the MOT, were presented for registration on 21.03.2021, supported by the consent of the valid lien-holder (Yuan Trading), D7 was duty-bound to register the transfer. The existence of an invalid caveat by the owner cannot amount to a bar against a valid dealing, nor can the registration of said dealing constitute negligence on the part of the Land Administrator. Therefore, the claim of negligence on this ground fails.

D7 had performed its statutory duties in accordance with the NLC. There was no negligence in registering the transfer to D1. Hence, the claim against D7 is dismissed. v. Indefeasibility of Title 90. It is a cardinal principle of the Torrens System, which is codified in Section 340(1) of the NLC, that the title or interest of any person or body for the time being registered as proprietor of any land shall be indefeasible.

In the present case, it is an undisputed fact that the MOT was presented and registered on 21.03.2021 vide Presentation No. 590/2021 (See Encl. 48). Upon such registration, the title to the Property vested in Zaidi. Consequently, he holds a title indefeasible in rem, unless Noraini can establish one of the vitiating factors set out in Section 340(2) of the NLC.

Noraini contends that the transfer is void due to fraud. While Section 340(2)(a) of the NLC provides that a title may be defeated in cases of fraud or misrepresentation, the law requires that the fraud must be brought home to the person whose title is sought to be impeached.

I have again referred to the decision of the High Court in Lee Cheong Fah (supra), which establishes that a party seeking to disown a document they have signed must specifically plead the defence of non est factum. Abdul Malik Ishak J (as he then was) held that where such a plea is not manifested in the pleadings, the party is precluded from raising it at trial.

Furthermore, the principle laid in Lee Cheong Fah (supra) is that, even if the plea were considered, the fact that the party had affixed their signature or initials to the agreement was sufficient to bind that party irrevocably to the contract, thereby binding them to the contract. The court further rejected the defence of illiteracy or lack of understanding, noting that the evidence showed the defendant was a person of standing (a businesswoman) and that the solicitor had testified to explaining the documents in a language the defendant understood.

Applying these principles to the instant case, Noraini’s act of affixing her thumbprint to the SPA and the MOT, witnessed by D6, who testified that he explained the contents to her, binds her to the transaction and negates her bare assertion that she did not understand the nature of the document.

As analysed earlier regarding Enclosure 50, the Plaintiff herself admitted in a WhatsApp message to the Solicitor (D6) that Zaidi was merely a "kambing hitam" (scapegoat). This admission is fatal to her claim against Zaidi, as it acknowledges he was not a perpetrator of the fraud but rather a distinct party utilised by the agents. Even if the Plaintiff were a victim of the agents' sharp practices, the law of indefeasibility inevitably allocates the loss to the party who enabled the fraud, rather than the innocent third-party purchaser. As the Plaintiff voluntarily armed the agents with the Power of Attorney and the SPA, she cannot now shift the burden of that imprudence onto the First Defendant.

Even if this court were to accept the Plaintiff’s contention that the instrument of transfer was voidable due to the conduct of D2 to D5 (the agents), the facts remain that Zaidi acquires the title in good faith and for valuable consideration. He has performed his part under the SPA and MOT. As the other party to the SPA and MOT, Noraini has failed to perform her part of the bargain by refusing to deliver vacant possession of the Property.

There is evidence supporting this finding. First, it is evident that the purchase price was RM200,000.00. Noraini admitted receiving part of these proceeds (RM49,830.00) directly. At the same time, the remainder was utilised to redeem the property from the bank and settle other fees (see pp.1 to 14 of D6’s Bundle of Documents) (Encl. 50). D1 has therefore parted with the consideration sum stated in the MOT and SPA.

Secondly, there is no evidence that Zaidi had knowledge of any defect in the transaction or that he colluded with the agents to deprive Noraini of her land.

In fact, Zaidi had visited the Property and met with Noraini. Noraini’s own messages confirm that Zaidi came to see her ("Tadi Zaidi mari jumpa saya") regarding the cancellation, further demonstrating his genuine interest as a buyer in resolving the dispute.

In Wan Salimah (supra), the court affirmed that where a purchaser enters into a written agreement, and the transfer is registered, the title becomes indefeasible under the NLC in the absence of proof of fraud by that purchaser.

Therefore, I hold that Zaidi is a purchaser through a proper, valid conveyancing instrument of MOT and SPA, of which Noraini, the seller, has agreed to transfer the title to him upon payment of the consideration sum. Under the proviso to Section 340(3) of the NLC, his title to the Property is indefeasible and immune from challenge, notwithstanding any dispute Noraini may have with the agents regarding the net proceeds of the sale. Noraini’s claim to set aside the transfer against Zaidi is hereby dismissed.

B. SUIT 16 (THE CLAIM FOR POSSESSION) It is not in dispute that Noraini remains in occupation of the Property. Zaidi pleaded that he had issued a Notice to Vacate dated

03.05.2021 through his solicitors, Messrs C. P. Ang & Company, demanding that Noraini deliver vacant possession on or before 31.05.2021.

Since the court had rejected Noraini’s defence of fraud and non est factum in Suit 8, she holds no legal or equitable interest in the Property that supersedes the registered proprietor’s rights. Her licence or consent to remain on the Property (if any existed post-transfer) was effectively terminated upon the expiry of the Notice to Vacate.

Therefore, Noraini’s continued occupation of the Property after 01.06.2021 constitutes an act of trespass against the registered owner. A registered proprietor is entitled to recover possession of land from any person occupying it without his licence or consent.

Accordingly, the court finds that Zaidi has established his claim on the balance of probabilities and is entitled to the specific relief of vacant possession as prayed for in prayer (a) of his Statement of Claim.

It is also the court’s finding that the Plaintiff is estopped from denying the SPA's validity. By her conduct in accepting the sum of RM49,830.00 and subsequently negotiating for the return of funds to 'cancel' the deal (as seen in the WhatsApp logs in Enclosure 50), she treated the contract as valid and binding at the material time. As held in Loh Kuam Hong v Kewira Jaya Sdn Bhd [2021] MLJU 2661, a party may be estopped from rescinding a contract if its conduct unequivocally affirms the subsistence of the contract.

Therefore, I find that by accepting the sum of RM49,830.00 and negotiating to "cancel" the deal (as evidenced by WhatsApp logs), Noraini treated the contract as valid at the material time. Her later claim that it was a loan was determined to be a mere afterthought engendered by seller's remorse.

Conclusion For the reasons adduced above, the court proceeds to make the following orders: a) Suit 8: The Plaintiff’s claim against all Defendants (D1 to D7) is hereby dismissed. The Plaintiff shall pay costs to the Defendants, subject to the allocator fee; b) Suit 16: The Plaintiff’s claim is allowed. The court orders as follows: i An Order for Vacant Possession is granted. The Defendant, Noraini binti Mokhtar (the Plaintiff in Suit 8), is hereby ordered to deliver vacant possession of the Property to the Plaintiff within thirty (30) days from the date of this order; ii. The Defendant is ordered to pay damages to the Plaintiff calculated at the rate of 5% per annum on the purchase price of RM200,000.00, calculated from 01/06/2021 until the date vacant possession is fully delivered to the Plaintiff; and iii. Costs of this action shall be paid by the Defendant to the Plaintiff. Dated: 12th January, 2026 -------------------------------------------------------------------- DR. Hj. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR Table of Authorities Cases Eu Finance Bhd v Siland Sdn Bhd [1989] 1 MLJ 195 Jamian Dolah lwn Lim Kok Peng & Satu Lagi [2021] MLRHU 2367 JW Development Sdn Bhd v Syarikat Bamas Enterprise Sdn Bhd & Ors [2024] MLRHU 456 Lee Cheong Fah v Soo Man Yoke [1996] 2 MLJ 627 Loh Kuam Hong v Kewira Jaya Sdn Bhd [2021] MLJU 2661 Medi-Circle Sdn Bhd v Tetuan Am Zaharil & Co and Anor [2025] MLRHU 1617 Mohamed Ali Abdul Razak v Sim Hock Yong [2007] 6 CLJ 337 Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1 Score Option Sdn Bhd v Mexaland Development Sdn Bhd [2012] 6 MLJ 475 Skyworld Holdings Sdn Bhd v Neurogine Sdn Bhd [2025] MLRAU 278 Tetuan Theselim Mohd Sahal & Co & Ors v Tan Boon Huat & Anor [2017] 4 MLJ 207 Solicitor for the Plaintiff (Suit 16) and the 1st to the 5th Defendant (Suit 8) : KC Ang & Hanis Nabila Messrs.C.P Ang & Company Advocates & Solicitors Solicitor for the Plaintiff (Suit 8) and the Defendant (Suit 16) : Zabidah Ahmad & Nor Syazana Chambers of Zabidah Ahmad Advocates & Solicitors Solicitors for the 6th Defendant (Suit 8) : Wong Tai Hau Messrs. T.H Wong & Co Advocates & Solicitors Solicitors for the 7th Defendant (Suit 8) : Nor Hayati Ibrahim Kedah State Legal Advisor's Office Wan Salimah bte Wan Jaafar v Mahmood bin Omar (Anim bte Abdul Aziz, Intervener) [1998] 5 MLJ 162