Sri Muda Corner Holdings (M) Sdn Bhd v Tan Sri Dato' Sri Ramasamy A/L Muthusamy (BA-24NCvC-1604-11/2019)

This constitutes the Plaintiff's application for the Assessment of Damages in accordance with section 329 of the National Land Code 1965 (NLC) and Order 37 of the Rules of Court 2012 (ROC 2012).

To begin with, both parties have agreed that the assessment will proceed through Affidavits.

The Plaintiff in this suit (Suit 1604) applied for the removal of the caveat lodged by the Defendant on the property H.S.(M) 4531 PT 773, Tempat Padang Jawa, Mukim Bukit Raja, Daerah Petaling, Negeri Selangor (the Property), and for damages to be assessed.

On 24 August 2021, the learned Judicial Commissioner Khairil Azmi Bin Hj Mohamad Hasbie granted the Plaintiff’s application to remove the caveat but dismissed the Plaintiff's claim for damages and costs on a solicitor and client basis.

The Plaintiff subsequently appealed, and the Court of Appeal allowed the Plaintiff's appeal, leading to the case being remitted to the High Court for the Assessment of Damages. Thus, this application was filed by the Plaintiff on 17 August 2022.

The Plaintiff acquired the Property for RM3,720,200.00 via an auction conducted by the Alliance Bank and executed the Memorandum of Sale on 27 April 2019. Pursuant to the Memorandum of Sale, the Plaintiff paid a deposit of RM372,020.00, with the remaining purchase price of RM3,348,180.00 to be settled within 90 days from the auction date.

The Plaintiff's loan for the Property purchase was approved by Ambank Bank (M) Berhad on 14 May 2019, amounting to RM2,790,000.00, and by Alliance Islamic Bank Berhad on 1 July 2019, for RM1,540,000.00.

At the relevant time, the Property remained registered under the developer's name, IRDK Land Sdn. Bhd. (IRDK) and a caveat had been lodged by the Defendant on the Property. Subsequently, the Plaintiff's legal representatives corresponded with IRDK multiple times, requesting direct transfer of the Property to the Plaintiff's name and urging the Defendant, who served as the director of IRDK, to remove the caveat lodged on the Property. However, neither IRDK nor the Defendant responded to these requests.

Consequently, the Plaintiff initiated legal action vide Suit 1604 on 13 November 2019 seeking the removal of the caveat lodged by the Defendant on the Property and compensation for any damage or loss incurred as a result of the Defendant’s caveat. The High Court granted the removal of the caveat on 24 August 2021. In the current application before the Court, the Plaintiff seeks compensation for the damage or loss incurred due to the Defendant’s caveat.

The Plaintiff asserted that they had to pay late payment interest to Alliance Bank, in addition to facing the risk of sale termination and forfeiture of the deposit paid.

Section 329 (1) of the NLC states on compensation for wrongful caveats, and Iimitation on repeated applications: “Any person or body who, wrongfully or without reasonable cause, secures the entry of, or fails to withdraw, any private caveat shall be liable to pay compensation to any person or body who thereby suffers any damage or loss.”

In the case of Antonina Marleen Yarendra v Chai Wei Chung [2017] 4 MLJ 359 (Antonina Marleen), the Court of Appeal ruled that the order to pay compensation under section 329(1) of the NLC is not mandatory. Compensation under this section is only warranted if the Plaintiff has incurred damage or loss as a result of the caveat. It is incumbent upon the Plaintiff to prove, on a balance of probabilities, the existence of such damage or loss. Therefore, before issuing an order for compensation, this Court must be convinced that the damage or loss stemming from the caveat has been substantiated both factually and legally.

Upon perusal of the cause papers filed herein and having considered the written and oral submissions from both parties, I concluded that the Plaintiff had failed to prove on a balance of probabilities, that it incurred damage or loss as a result of the caveat lodged by the Defendant. My reasons are as follows:

In its application for Assessment of Damages, the Plaintiff claimed to have incurred a total damage or loss amounting to RM979,028.10 (and continuing) and also sought costs on a solicitor-client basis. The particulars of the damage or loss claimed are as follows: i. Late payment interest charges to Alliance Bank (exhibit TNK-8) RM694,388.00 ii. Interest paid to Pajak Gadai Kian Ngien Sdn. Bhd. (exhibit TNK-9) (and continuing) RM 45,018.00 iii. Interest due and paid to SKF Solutions Sdn. Bhd.

09/06/2022 RM 60,000.00

09/07/2022

09/08/2022

09/09/2022

09/10/2022 and continuing iv. Legal fees (exhibit TNK-12) RM 100,000.00 v. Assessment by Majlis Bandaraya Shah Alam (exhibit TNK-13) RM 51,678.00 vi. Quit Rent (cukai tanah) (exhibit TNK-14) RM 7,944.10 TOTAL RM979,028.10 ——————— (and continuing)

The Plaintiff claimed that they were unable to pay the balance purchase price to Alliance Bank within the specified time, leading their solicitors to request an extension of time from Alliance Bank. The extension was granted from 27 July 2019 to 24 September 2019, incurring a late payment interest of RM58,726.20. Additionally, Alliance Bank agreed to further extend the deadline for the balance purchase price until 24 November 2019, with the extension subsequently prolonged until 30 June 2022.

The Plaintiff argued that they suffered damage or loss because they were unable to proceed with loan approval documentation due to the caveat lodged by the Defendant. Additionally, another related lawsuit, filed by the Plaintiff against IRDK Land Sdn. Bhd. (IRDK) (1st Defendant) and Alliance Bank (2nd Defendant) in suit BA- 24NCVC-1603-11/2019 (Suit 1603), further contributed to this issue. Suit 1603 was filed concurrently with the current Suit 1604, concerning the same subject property for an order that IRDK adheres to its developer’s undertaking and to transfer the subject property in favour of the Plaintiff. Suit 1603 concluded on 24 March 2021, with IRDK being ordered to execute Form 14A and transfer the title to the Plaintiff.

IRDK appealed against the decision in Suit 1603, and the Court of Appeal dismissed the appeal on 23 September 2022.

The Plaintiff contended that Alliance Bank did not grant any further extension beyond 30 June 2022 and had notified the Plaintiff that failure to pay the balance purchase price would result in the bank forfeiting the deposit of RM372,020.00 and all late payment interest paid to Alliance Bank, totalling RM694,388.00.

The Plaintiff stated that their director found themselves in a desperate situation upon receiving notice from Alliance Bank that the deadline to pay the balance purchase price was expiring on 30 June 2022. Compounding this issue was the fact that the appeal in Suit 1603 was scheduled for a hearing only on 23 September 2022. In desperation, the director convened a family meeting and managed to gather a total cash sum of RM1,348,180.00. Subsequently, the family secured all available family jewellery from its members and deposited it with Pajak Gadai Kian Ngien Sdn. Bhd., yielding an additional sum of RM500,000.00. This amount was obtained at an interest rate of RM45,180.00, to be repaid on 27 July 2022, with an additional interest payment due on 26 October 2023, also amounting to RM45,180.00. Despite securing cash of RM1,348,180.00 and RM500,000.00 through pledging their jewellery, the Plaintiff still faced a shortfall of RM1,500,000.00 to meet the balance purchase price.

Hence, the family opted for an Investment Agreement with SKF Solutions Sdn. Bhd. on 9 May 2022 for a loan amount of RM1,500,000.00 at an interest rate of 4%, equating to RM60,000.00 per month. The RM1,500,000.00 loan was disbursed by SKF Solutions Sdn. Bhd. on 9 June 2022, with the first interest payment of RM60,000.00 made on the same date. Through an undertaking agreement, it was mutually decided that the Plaintiff would pay RM30,000.00 per month as interest instead of the initially agreed RM60,000.00 per month until 9 April 2023. Additionally, any remaining accrued interest up to that date would be settled alongside the repayment of the principal sum.

The balance purchase price of RM3,348,180.00 was paid to Alliance Bank on 13 June 2022.

The Plaintiff argued that they had no other recourse, as all other financial institutions had declined to enter into a loan agreement. Without executing the Investment Agreement with SKF Solutions, the Plaintiff would be unable to make the payment to Alliance Bank. This would result in the forfeiture of the auction deposit of RM372,020.00, along with the interest payment totalling RM694,388.00 paid by the Plaintiff. Additionally, the Plaintiff would lose ownership of the property.

The Plaintiff also sought assessment fees imposed by Majlis Bandaraya Shah Alam and quit rent (cukai tanah), arguing that these land costs should have been paid by the Defendant. The Plaintiff contended that both IRDK and the Defendant prevented them from occupying the Property, thus the Defendant should bear the responsibility for settling the respective amounts of RM51,678.00 and RM7,944.10.

Regarding the term "continuing”, the Plaintiff clarified that the Court of Appeal's decision for Suit 1603 was issued on 23 September 2022, with the Title ordered to be handed over to the Plaintiff within 30 days from that date. However, the Title was only received by the Plaintiff on 2 November 2022. Consequently, the interpretation of the term "continuing" extends until 2 November 2022, thus necessitating the calculation until that date. This adjustment results in an additional sum of approximately RM28,500.00, bringing the total to RM73,018.00.

It is worth noting that damages under section 329 of the NLC are not automatic, as the Plaintiff must substantiate the damage or loss directly attributable to the caveat lodged by the Defendant.

In Antonina Marleen, the Court of Appeal held: “[13] It is clear to us that s.329 casts upon the caveatee, that is the appellant, a liability to pay compensation. That liability arises only in the circumstances as defined under s.329(1) and that is where the appellant has wrongfully entered the private caveat; where the appellant has lodged the caveat without reasonable cause; or where the appellant has failed to withdraw the caveat, presumably after being asked to do so or when the appellant realises that the caveat ought to be removed but fails to do so. In such instances, s.329(1) provides that the appellant shall be liable to pay compensation. [14] Again, such payment of compensation is only where the person has suffered damage or loss by virtue of such caveat –‘pay compensation to any person or body who thereby suffers any damage or loss’. (Emphasis added). This clearly means that before the order for compensation may be made, the court must be satisfied that damage or loss by reason of the caveat has been established on the facts and in law. These terms in s.329(1) are not surplusage but are instead the conditions which must be met before compensation may be ordered. [15] The respondent, as the aggrieved party bears the burden of proving liability to pay compensation. The court must be satisfied, on a balance of probabilities that liability is attached on the particular facts and circumstances. To suggest that s.329(1) is mandatory in that the court must necessarily order compensation upon a removal of a caveat under s.327 is to read into s.329 words and intention that are just not there. Section 329(1) provides for a liability to pay; it does not provide that the appellant shall pay compensation for the wrongful entry of the caveat. … [22] Given that s.329(1) itself requires that compensation is only for damage or loss which is ‘thereby’ suffered, it is evident that proof of the existence of damage or loss is first of all, required. The respondent must prove on a balance of probabilities that he has suffered a particular damage or loss ‘thereby’ or as a result of, the wrongful act of the appellant. How is compensation to be ordered unless there is in existence proof of the damage or loss allegedly suffered? Damage or loss is not presumed for this wrongful act; it must be established in law and on the facts. If the respondent fails to discharge that burden, the court may either refuse compensation or order nominal compensation to be paid. Until and unless the respondent has discharged that burden, it would be an improper exercise of discretion by the court to order any compensation or assessment. Until and unless the court is so satisfied, it would be wrong for the court to direct an assessment of the amount, be it by the court itself, or as in this case, by the learned SAR. As it is, the learned High Court judge did not address this matter of compensation under s.329(1). “[23] Consequently, the respondent's entitlement to compensation remains very much a matter of absolute discretion of the court. The order to pay compensation is not automatic but subject to proof of the existence of damage or loss suffered. Since there was none, for this reason alone, the appeal must be allowed as the High Court had granted the order in prayer (c), seemingly as a matter of course.” [emphasis added]

In the case of Quill Construction Sdn. Bhd. v Tan Hor Teng @ Tan Tien Chi & Anor [2003] 6 MLJ 279, Abdul Malik Ishak J (as His Lordship then was) held at page 294 para I: “It is always useful to remember that in the assessment of damages for the wrongful entry of a private caveat, the court must always be vigilant and must ensure that no award for damages will be made unless and until the aggrieved party has proved actual loss. In this context, the plaintiff has to prove the actual loss occasioned by the entry of the private caveat by the defendants.”

Having closely examined the precedent set forth in the case of Antonina Marleen, this Court is bound by the decision rendered by the Court of Appeal. Given the similarity between the facts of that case and the present one, I find that the principle established in Antonina's case is relevant and applicable here.

It is undisputed that the subject property was auctioned while the Defendant's caveat was already in existence. This indicates that the Plaintiff bid on the property fully aware of the potential encumbrances, regardless of whether the Plaintiff conducted the search before or after placing the bid.

It is also evident from the Proclamation of Sale at TNK-1 of enclosure 72 (as stated in the Plaintiff’s Affidavit in Support), particularly in the "Note" section and clause 12 of the Condition of Sale attached to it, that prospective bidders were advised to conduct necessary searches to ascertain any encumbrances on the subject property. In addition to the Plaintiff's obligation to conduct such searches, clause 12 of the Condition of Sale had explicitly stated that the property is sold on an "as is where is" basis. The pertinent excerpts from the Proclamation of Sale and the Condition of Sale are provided below: PROCLAMATION OF SALE “NOTE: “Prospective bidders are advised to (i) seek independent legal advice on all matters in connection with the auction sale, including the Conditions of Sale herein; (ii) inspect the subject property; (iii) conduct an official title search at the relevant land office, land registry and/or other relevant authorities; (iv) make the necessary inquiries with the Developer and/or Proprietor and/or Strata Authorities and/or other relevant bodies on the necessary confirmation/terms of consent to the sale herein prior to the auction sale; and (v) conduct and rely on their own searches, enquiries, investigations and verifications on the accuracy and correctness of the particulars and information provided…” “RESERVE PRICE The property will be sold on an “as is where is” basis, subject to a reserve price of RM3,720,200.00…” CONDITION OF SALE Clause 12 SEARCH, ENQUIRY, INVESTIGATION,

The Property is sold on an “as is where is” basis subject to all the necessary inspection, search (including but not limited to the status or title), enquiry (including but not limited to the terms of consent to transfer and/or assignment and outstanding charges) investigations, examination and verification of which the Purchaser is already advised to conduct prior to the auction and which the Purchaser warrants to the Assignee has been conducted by the Purchasers independent legal advisors at the time of execution of the memorandum

The intending bidder or the Purchaser is responsible at own costs and expenses to make and shall be deemed to have carried out own search, inquiry, investigation, examination and verification on all liabilities and encumbrances affecting the property, the title particulars as well as the accuracy and correctness of the particulars and information provided.” [emphasis added]

In the present case, the Plaintiff, neglected to conduct the necessary search or inspection on the Property and proceeded with the bid despite knowing the risks involved. Therefore, the Plaintiff cannot now attribute any blame to the Defendant for any alleged damage or loss. It is evident that the Plaintiff willingly bid on the Property, fully aware of and notwithstanding the encumbrances, including the Defendant’s caveat.

Furthermore, the Plaintiff was well aware that the Property would be sold on an "as is where is" basis, with specific provisions in the Condition of Sale, as mentioned above, serving as a warning to the Plaintiff as the prospective bidder about its obligations. Consequently, the damage or loss claimed by the Plaintiff appears to be losses that the Plaintiff was willing to assume from the outset. Therefore, the Plaintiff has clearly disentitled itself to any compensation under section 329(1) of the NLC.

I am guided by the decision in the case of Antonina Marleen, where the facts are akin to those in the present case. The Court of Appeal held as follows: “[30] What is further clear is that any damage or loss that the respondent claims to have sustained, which we do not find established, were actually damage or loss which the respondent himself appears to have been prepared to bear in the first place. We have reached this conclusion because of the terms of the proclamation of sale itself. [31] The proclamation of sale found at pp 19-26 of the record of appeal, clearly warns all members of the public who intend to bid at the public auction of the said property to amongst others, conduct an official title search at the relevant land office. The warning is set out in bold and underlined terms: NOTE: Prospective bidders are advised to inspect the subject property, seek independent legal advice on the Conditions of Sale, conduct an official title search at the relevant Land Office and to make inquiries with the Developer and/or other relevant authorities on the terms of consent to the sale herein prior to the auction sale. The successful bidder shall be responsible to obtain the consent of the Developer for direct transfer if individual/strata title issued. [32] The proclamation advised that the public auction would be held on 9 July 2015. Although there is no indication when this proclamation was actually notified, it would be fair to say that the usual practice of 7-14 days’ notice for the conduct of public auctions would have been given. This gives the respondent adequate time to conduct a title search at the relevant land office before bidding for the said property. The respondent did not. In fact, from his own solicitor’s letter dated 14 September 2015, the respondent did not conduct the search until after he had made his bid and he had been successful in his bid. And, it would appear that he did so even after he had made the necessary arrangements for the loan. Under such circumstances, the appellant cannot lay any blame on the appellant for any damage or loss that he claims to have suffered. It would be reasonable to conclude that he was bidding for the said property, knowing of and despite the encumbrances, including the appellant’s caveat. [33] Furthermore, the proclamation notified that the ‘subject property’ will be sold on an ‘as is where is basis’. Then, there are specific provisions in the conditions of sale, again warning or alerting the respondent to his obligations. Under conditions 14 and 16 of the conditions of sale, the respondent, as are all other interested members of the public are informed that:

The Property is sold subject to all existing easements, leases, tenancies, occupiers, charges, caveats, previous sale and purchase, previous assignment, covenants, liabilities subsisting thereon or thereover and the Purchaser shall be deemed to have full knowledge of the state and condition of the Property. 15…

The Property is believed and shall be taken to be correctly described and is sold subject to all express conditions, restrictions-in-interest, easements, leases, tenancies, occupiers, charges, caveats, previous sale and purchase, previous assignment, covenants, liabilities (including but not limited to liabilities to local authorities incurred but not ascertained and any rates made but not demanded), encumbrances and rights, (if any), subsisting thereon or thereover without any obligation arising to define the same respectively and the Purchaser shall be deemed to have full knowledge of the state and conditions of the Property and no error, mis-statement, omission, or mis-description shall annul the sale nor shall any compensation be allowed in respect hereof. [34] Although these terms are in the one sense inter partes and applicable between UOB and the respondent, the successful bidder, these terms nevertheless bind any person who would be interested in bidding at the auction. That would certainly extend to the respondent. These terms and conditions warn that the auction and thereby the sale would be subject to any encumbrances, including as it turned out the appellant’s caveat. Had the respondent conducted the search before making his bid, which he was obliged to under the clear terms of the proclamation, he would have discovered the existence of the appellant’s caveat. Had he proceeded to bid despite that knowledge of the existence of the caveat, he cannot turn round and complain in the event any damage or loss results from or related to the removal of the caveat. With the clear terms of the warning as well as conditions 14 and 16 in the proclamation, while the respondent may be entitled to the removal of the caveat, the respondent has clearly disentitled himself to any compensation, especially under s 329(1) of the National Land Code.” [emphasis added]

Therefore, following the aforementioned precedent, the Plaintiff in this case is not entitled to compensation for the purported damage or loss.

Nevertheless, after assessing the damage or loss claimed by the Plaintiff under the various categories mentioned above, I find that the Plaintiff had failed to substantiate its claims and discharge its burden of proof. Late Payment Interest paid to Alliance Bank

Through exhibit TNK-8 enclosure 72, the Plaintiff presented the purported Summary of the Late Payment Interest amounting to RM694,388.00, which was a document introduced during the trial in suit BA-22NCVC-14-01/2021. This figure was allegedly provided by Ting Mee Na, the Vice President Head of Collection, Litigation & Recovery at Alliance Bank. The Plaintiff only submitted a Certificate under section 90A of the Evidence Act 1950, which was produced in the aforementioned suit and attempted to persuade this Court to accept exhibit TNK-8 by arguing that the Court can take judicial notice of documents presented in other court proceedings and that it is also admissible pursuant to Order 38 rule 10 of the ROC 2012.

I find that TNK-8 was not adequately substantiated by the Plaintiff. The Summary of the Late Payment Interest was not presented in this proceeding but in another proceeding, and this Court lacks information on whether the said summary was accepted by that court. No grounds of judgment were provided to demonstrate the basis for admitting the Summary of the Late Payment Interest as evidence, or whether it was admitted by the said court.

Furthermore, there was no evidence provided regarding the accuracy of the amount stated in the said summary. It is noteworthy that the caveat in Suit 1604 was removed by the Court order dated 24 August 2021. Even if the Plaintiff incurred the late payment interest due to the Defendant’s caveat, it would have ceased on the date the order to remove the caveat was granted. The learned counsel for the Plaintiff concurred with this fact. However, the Summary of the Late Payment Interest in TNK-8 indicates that the amount of RM694,388.00 was for interest paid until the extension date of 30 June 2022, which occurred after the removal of the caveat.

It is apparent that the purported late payment interest until 30 June 2022 was incurred due to the Suit 1603 (decision of the Court of Appeal on 23 September 2022). The Plaintiff's argument that the Defendant should also be held accountable for the delay caused by Suit 1603 does not withstand scrutiny. This Court concurs with the Defendant's assertion that Suit 1603, although concerning the same subject property, was a lawsuit filed against IRDK and Alliance Bank, with the Defendant not being a party to Suit 1603. It is trite that IRDK, as a corporate entity, maintains a separate legal identity from its director, the Defendant. Therefore, the Defendant cannot be held responsible for the delay incurred in Suit 1603. Accordingly, the Plaintiff should have pursued compensation for any damage or loss caused by Suit 1603 in the respective lawsuit, which the Plaintiff failed to do.

To compound the issue, the Summary of Late Payment Interest, along with the certificate under Section 90A of the Evidence Act 1950, submitted, was not affirmed in the present proceeding. This summary of the account, even though utilised in another proceeding, does not automatically prove the alleged damage or loss in the present Suit 1604. Without adequate evidence confirming the authenticity and accuracy of TNK-8, I am compelled to reject it on the basis that it was not properly presented and substantiated in this case.

Hence, there was no cogent evidence to support that the Plaintiff had paid the late payment interest to Alliance Bank due to the Defendant’s caveat.

This Court also finds that there was no evidence to suggest that the late payment interest incurred by the Plaintiff was solely due to their inability to secure financing for paying the balance purchase price as a direct result of the caveat lodged by the Defendant.

Notably, the Plaintiff's submission to this Court acknowledged that due to IRDK's appeal to the Court of Appeal and its failure to comply with the decision in Suit 1603, all financial institutions were unwilling to consider granting any loan to assist in paying the balance purchase price owed to Alliance Bank, amounting to RM3,348,180.00, until the appeal was finalised. Hence, the Plaintiff recognised that Suit 1603 was the key factor hindering their ability to secure a loan for paying the balance purchase price and finalising the purchase.

Apart from Suit 1603, it was also noted that there was another caveat lodged on the Property on 2 July 2021 by Uthama Kumara Naidu (Uthama), who was the original borrower of the Alliance Bank facility which defaulted resulting in the public auction. As of 14 July 2022, the land search shows that the said caveat was still in place. Hence, even after the removal of the Defendant’s caveat on 24 August 2021, Uthama’s caveat was still in effect.

Hence, it is evident that other intervening factors, and not solely the Defendant’s caveat, hindered the Plaintiff's ability to secure financing to complete the purchase. Therefore, any damage or loss incurred by the Plaintiff (if any) cannot be solely attributed to the Defendant’s caveat. Interest amounting to RM500,000.00 was paid to ‘Pajak Gadai’

I find no evidence presented to demonstrate that the proceeds from the pledged jewellery were used to partially finance the subject property.

Furthermore, the interest incurred by the Plaintiff cannot be attributed to the Defendant, as it occurred after the Defendant’s caveat was removed on 24 August 2021. The jewellery was pledged, and interest was incurred between 27 July 2022 to 26 January 2023. Interest payments under an Investment Agreement with SKF Solutions Sdn. Bhd. amounting to RM180,000.00

I find that the agreement for the said Investment Agreement was not made with the Plaintiff but with another entity, namely Hotel Sri Muda Corner Sdn. Bhd. Therefore, there was no nexus.

Furthermore, the said agreement was entered on 9 May 2022, which was 10 months after the subject matter caveat was removed on 24 August 2021. I find the interests incurred under the mentioned Investment Agreement have no connection to the subject matter caveat. Thus, this purported damage or loss is irrelevant in the present case.

I agree with the Defendant's argument that the Plaintiff's decision to opt for financing via the Investment Agreement with an allegedly higher interest could not be attributed to the Defendant. Legal Fees on Solicitor Client basis

The High Court awarded RM6,000.00 for the removal of the caveat, which has been paid.

Regarding the legal fees at the Court of Appeal, costs of RM10,000.00 were granted. Furthermore, the subject matter of the appeal did not pertain to the removal of the caveat but to the assessment of damages. Therefore, the Plaintiff is not entitled to further costs. The Land charges-Assessment by MBSA and Quit Rent (cukai tanah)

The Condition of Sale attached to the Proclamation of Sale, specifically in Clause 7.3(b) and 7.5(b), stipulates that the purchaser is responsible for settling any charges owed to the authorities after a successful bid. Consequently, the Plaintiff is liable for these charges. Such obligations are unrelated to the lodging of the caveat.

Moreover, the Property was acquired on an "as is where is" basis, signifying that the Plaintiff assumes responsibility for all land costs as the successful bidder, regardless of any delays in completing the transfer.

Thus, for the reasons explained above, I find the Plaintiff had failed to establish, on a balance of probabilities, that the damage or loss purportedly suffered was attributable to the Defendant’s caveat. Consequently, I, therefore, dismissed the Plaintiff’s application in enclosure 71 with costs of RM5000.00. Dated: 13 March 2024 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : J.J. Naidu (Messrs. J.J. Naidu Dan Rakan-Rakan) For the Defendant : Muhammad Farhan Shafee together with Thilagan Mohanathan (Messrs. Shafee & Co.)