Tetuan Mazwan Pathma & Co v T & L Park Sdn. Bhd. (W-01(NCvC)(W)-140-03/2023)

TETUAN TEE BEE KIM & PARTNERS ... RESPONDENTS [In the Matter of High Court of Malaya at Kuala Lumpur Civil Appeal No.: WA-21NCvC-44-05/2018 Between T & L Park Sdn. Bhd. (Co. No.: 1251918-M) ... Plaintiff

Ng Kee Wei (NRIC No.: 560620-10-6427)

Tetuan Tee Bee Kim & Partners

Tetuan Mazwan Pathman & Co.

Ng Kim Chuan @ Ng Sing Seong (NRIC No.: 521105-10-6295) & Ng Kim Hoong (NRIC No.: 491119-10-5029) [As Administrators and Beneficiaries of the Estate of Ng Kee Wei (NRIC No.: 220806-10-5157), Deceased]

Pendaftar Hakmilik, Pejabat Pengarah Tanah Dan Galian Wilayah Persekutuan ... Defendants] CORAM: SUPANG LIAN, JCA WONG KIAN KHEONG, JCA ISMAIL BIN BRAHIM, JCA

We shall refer to the parties as they were in the High Court.

The fifth defendant ( $ 5^{\mathrm{th}} $ Defendant) is the Registrar of Titles, Kuala Lumpur.

The deceased, Mr. Ng Kee Wei (Deceased), was the registered proprietor and true owner of a piece of vacant and freehold land held under Geran 37366, Lot 260, Seksyen 46, Bandar Kuala Lumpur, Daerah Kuala Lumpur (Land).

The following particulars of the Deceased and the Deceased's ownership of the Land are pertinent in this case:

the National Registration Identity Card (NRIC) number of the Deceased was 220806-10-5157. The court can take judicial notice that the first six digits of a person's NRIC number indicate his or her date of birth. Premised on the Deceased's NRIC number, the Deceased was born on 6.8.1922;

the Deceased was registered by the $ 5^{\mathrm{th}} $ Defendant as the proprietor of the Land on 20.4.1951;

on 25.7.2012, the Deceased passed on. The fourth defendants （ $ 4^{\mathrm{th}} $ Defendants） are the administrators and beneficiaries of the Deceased's estate (Estate); and

since the death of the Deceased, the "Issue Document of Title" (IDT) [as understood in s 5 of the National Land Code (NLC)] of the Land [IDT (Land)] was always and still is in the possession of the $ 4^{\mathrm{th}} $ Defendants.

The first defendant (1 $ ^{1st} $ Defendant) has the same name as the Deceased but is a different person. The $ 1^{st} $ Defendant's NRIC number is 560620-10-6427. According to the $ 1^{st} $ Defendant's NRIC number, the $ 1^{st} $ Defendant was born on 20.6.1956. The $ 1^{st} $ Defendant did not have legal and beneficial ownership of the Land. Nor did the 1 $ ^{st} $ Defendant claim any ownership of the Land, be it legal or beneficial.

In this case, an impostor (Impostor) had fraudulently misused the identity of the $ 1^{\mathrm{st}} $ Defendant to impersonate as the Deceased (the registered proprietor of the Land) for the purpose of effecting a fraudulent sale of the Land purportedly by the Deceased, first to CK Parkland Sdn. Bhd. (CKP) and then to the plaintiff company (Plaintiff).

The second defendant ( $ 2^{n d} $ Defendant) and third defendant ( $ 3^{r d} $ Defendant) are firms of Advocates and Solicitors (A&S).

CKP intended to purchase the Land from the Deceased. For this purpose-

the $ 2^{\mathrm{nd}} $ Defendant acted for CKP; and

on behalf of CKP, the $ 2^{nd} $ Defendant did a land search of the Land on 8.8.2017 [ $ 2^{nd} $ Defendant's Land Search (8.8.2017)]. The $ 2^{nd} $ Defendant's Land Search (8.8.2017) showed "Ng Kee Wei" as the registered proprietor of the Land. The NRIC number of "Ng Kee Wei" was not stated in the $ 2^{nd} $ Defendant's Land Search (8.8.2017).

On 7.9.2017, CKP entered into a Sale and Purchase Agreement with the Impostor (impersonating as the Deceased) to purchase the Land at a price of RM7,035,500.00 [SPA (Impostor-CKP)]. With regard to the SPA (Impostor-CKP) -

the $ 2^{\mathrm{n d}} $ Defendant acted for CKP while the $ 3^{\mathrm{r d}} $ Defendant represented the Impostor;

the NRIC number of the Deceased was stated as 56062010-6427; and

pending the completion of the SPA (Impostor-CKP), CKP paid a total sum of RM1,400,700.00 as "deposit" {Deposit [SPA (Impostor-CKP)]} to the $ 3 ^{rd} $ Defendant. The Deposit [SPA (Impostor-CKP)] was held by the $ 3 ^{rd} $ Defendant as stakeholders.

At 1.48 pm, 18.9.2017, Messrs Zawahid & Co., a firm of A&S (Messrs ZC) applied to the $ 5^{\mathrm{th}} $ Defendant-

to add the NRIC number, 560620-10-6427 (not the correct NRIC number of the Deceased which was 220806-10- 5157), to the name of "Ng Kee Wei" in the Register Document of Title (RDT) (as defined in s 5 NLC) of the Land [RDT (Land)]; and

to replace the IDT (Land) with a replacement IDT (Land) which showed the Deceased's NRIC number as 560620 10-6427 (Messrs ZC's Application). Attached to Messrs ZC's Application were the following documents-

a forged IDT (Land) [Forged IDT (Land)]; and

a statutory declaration (SD) purportedly affirmed by the Deceased on 14.9.2017 which falsely stated that, among others, the NRIC number 560620-10-6427 was the correct NRIC number of the Deceased.

The Registrar issued "Version 2" of the RDT (Land) and IDT (Land) {Version 2 [RDT/IDT (Land)]} on 19.9.2017. Both Version 2 [RDT/IDT (Land)] stated falsely that the Deceased's NRIC number was 560620-10-6427.

CKP did not proceed with the SPA (Impostor-CKP). However, CKP, the Impostor and Plaintiff agreed for the Plaintiff to purchase the Land and the Deposit [SPA (Impostor-CKP)] would be used for the Plaintiff's purchase of the Land from the Impostor. The $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants continued to act for the Plaintiff and Impostor respectively in this sale.

On 31.10.2017-

one of the $ 4^{\mathrm{th}} $ Defendants, Mr. Ng Kim Chuan (NKC), lodged a Dang Wangi police report no. 29515/17 regarding the fraudulent transfer of the Land by the Impostor to the Plaintiff (Fraud). NKC also applied to lodge a private caveat over the Land (NKC's Private Caveat); and

the $ 4^{\mathrm{th}} $ Defendants' solicitors, Messrs Chooi & Co (Messrs CC), applied to the Registrar for the entry of a Registrar's caveat over the Land (Registrar's Caveat).

On 1.11.2017-

the Sale Purchase Agreement between the Plaintiff and the Impostor (impersonating as the Deceased) was signed (SPA). According to the SPA, among others-

the NRIC number of the Deceased was stated as 560620-10-6427; and

the Plaintiff bought the Land from the Impostor at a price of RM6,536,600.00 (Price); and

a total sum of RM2,801,400.00 was paid by the Plaintiff to the Impostor as "deposit" [Deposit (SPA)]. The Deposit (SPA) included the Deposit [SPA (Impostor-CKP)]. The balance of the Price in a sum of RM3,735,200.00 [Balance (Price)] shall be paid in accordance with clause 2 SPA (Clause 2).

On 2.11.2017, the $ 5^{\mathrm{th}} $ Defendant entered a Registrar's Caveat. NKC's Private Caveat was entered on 3.11.2017.

The SPA was stamped on 13.11.2017. Hence, the SPA was dated 13.11.2017.

Messrs CC served a demand dated 16.11.2017 on the $ 1^{\mathrm{st}} $ Defendant regarding the Fraud (Messrs CC's Demand). The $ 1^{\mathrm{st}} $ Defendant was then alerted to the Fraud which involved his name and NRIC number. With regard to the Fraud -

the $ 1^{\mathrm{st}} $ Defendant lodged two police reports, Queen's Bay police report no. 2337/17 (made on 28.11.2017) and Queen's Bay police report no. 2453/17 (made on 11.12.2017), which stated that the $ 1^{\mathrm{st}} $ Defendant was not a party to the Fraud; and

on 30.11.2017, the $ 1^{\mathrm{st}} $ Defendant instructed Messrs Yoges & Co to reply to Messrs CC's Demand and inform Messrs CC that the $ 1^{\mathrm{st}} $ Defendant was not involved in the Fraud.

On 26.1.2018, on behalf of the Plaintiff, the $ 2^{nd} $ Defendant applied to enter a private caveat over the Land （ $ 2^{nd} $ Defendant's Private Caveat Application). By way of a letter dated 29.1.2018 from the $ 5^{th} $ Defendant to the $ 2^{nd} $ Defendant, the $ 5^{th} $ Defendant informed the $ 2^{nd} $ Defendant that the $ 5^{th} $ Defendant had rejected the $ 2^{nd} $ Defendant's Private Caveat Application on the ground that "Form 19B" (application form for the entry of a private caveat in the First Schedule to the NLC) was incomplete or unclear (tidak lengkap/tidak jelas).

The $ 2^{nd} $ Defendant forwarded a cheque for the Balance (Price) (RM3,735,200.00) to the $ 3^{rd} $ Defendant in a letter dated 12.2.2018 [ $ 2^{nd} $ Defendant Letter (12.2.2018)]. The $ 2^{nd} $ Defendant Letter (12.2.2018) stated that the payment of the Balance (Price) was subject to Clause 2.4 and clause 12 SPA (Clause 12).

The $ 3^{rd} $ Defendant replied to the $ 2^{nd} $ Defendant Letter (12.2.2018) in a letter dated 28.2.2018 $ [3^{rd} $ Defendant's Letter (28.2.2018)]. According to the $ 3^{rd} $ Defendant's Letter (28.2.2018) -

the $ 3^{rd} $ Defendant handed over, among others, Version 2 [IDT (Land)] (Vendor's Documents), to the $ 2^{nd} $ Defendant to be held by the $ 2^{nd} $ Defendant as stakeholders under the SPA; and

pursuant to clause 2.5 SPA (Clause 2.5), the $ 3 ^{rd} $ Defendant was "obliged to release the [Balance (Price)] within 14 working days upon receipt of the [Vendor's Documents]' by the $ 2 ^{nd} $ Defendant as the Plaintiff's solicitors.

On 19.3.2018-

the $ 5^{\mathrm{th}} $ Defendant rejected the $ 2^{\mathrm{nd}} $ Defendant's presentation for registration of the Memorandum of Transfer of the Land from the Deceased to the Plaintiff (MOT); and

the $ 3^{\mathrm{rd}} $ Defendant conducted a land search $ [3^{\mathrm{rd}} $ Defendant's Land Search (19.3.2018)] and knew about the Registrar's Caveat and NKC's Private Caveat (referred collectively in this judgment as the " Registrar's Caveat/NKC's Private Caveat").

The Impostor sent a letter dated 20.3.2018 to the $ 3 ^{rd} $ Defendant which authorised the $ 3 ^{rd} $ Defendant to release the following sums of money from the Balance (Price) (RM3,735,200.00):

RM326,830.00 to Messrs Farhana Hui & Co. as stakeholders for the commission payable to "Agents";

RM2,000,000.00 to Emizen Line Sdn. Bhd.; and

a cash sum of RM1,408,370.00 to the Impostor [Impostor's Letter (20.3.2018)].

By way of a letter dated 21.3.2018 to the $ ^{3 rd} $ Defendant [Impostor's Letter (21.3.2018)] , the Impostor acknowledged receipt of RM800,000.00 in cash from the $ ^{3 rd} $ Defendant [being the part payment of the Balance (Price)].

The $ 2^{nd} $ Defendant sent a letter dated 21.3.2018 to the $ 3^{rd} $ Defendant [ $ 2^{nd} $ Defendant Letter (21.3.2018)]. According to the $ 2^{nd} $ Defendant Letter (21.3.2018), among others-

the MOT could not be registered due to the Registrar's Caveat/NKC's Private Caveat;

the $ 3^{\mathrm{rd}} $ Defendant was required to furnish to the $ 2^{\mathrm{nd}} $ Defendant within seven working days from the date of the $ 2^{\mathrm{nd}} $ Defendant Letter (21.3.2018), evidence of the removal of the Registrar's Caveat/NKC's Private Caveat; and

the $ 3^{\mathrm{rd}} $ Defendant should withhold the release of the Balance (Price) to the Impostor until the $ 2^{\mathrm{nd}} $ Defendant had "successfully presented the transfer of the Land in favour of the [Plaintiff]".

On 22.3.2018, on behalf of the Plaintiff, the $ 2^{\mathrm{n d}} $ Defendant entered a private caveat over the Land (Plaintiff's Private Caveat).

The $ 3^{rd} $ Defendant sent a letter dated 2.4.2018 to the $ 2^{nd} $ Defendant which informed the $ 2^{nd} $ Defendant as follows, among others:

a total sum of RM3,126,830.00 had been disbursed by the $ 3 ^{rd} $ Defendant to the Impostor;

a sum of RM608,370.00 was still held by the $ 3 ^{rd} $ Defendant "pending release" to the Impostor; and

with regard to the Registrar's Caveat/NKC's Private Caveat, the $ 3^{\mathrm{rd}} $ Defendant was waiting for "further instructions" from the Impostor. B. Proceedings in the High Court

On 11.4.2018, the $ 1^{\mathrm{st}} $ Defendant filed Kuala Lumpur High Court Civil Suit no. WA-24NCvC-702-04/2018 against the $ 4^{\mathrm{th}} $ and $ 5^{\mathrm{th}} $ Defendants (Suit 702). On 18.5.2018, all the parties in the Suit 702 entered into a consent judgment which stated as follows, among others:

the signatures of the $ 1^{\mathrm{st}} $ Defendant on, among others, the application under s 378 NLC and SD (sent by way of Messrs ZC's Application to the $ 5^{\mathrm{th}} $ Defendant), had been forged and were not the genuine signatures of the $ 1^{\mathrm{st}} $ Defendant;

the application under s 378 NLC and SD had no legal effect;

the Deceased is declared to be the Registered Proprietor of the Land; and

the $ 5^{\mathrm{th}} $ Defendant was ordered to give full effect to the above court order within seven days from the date of the court order, including a rectification of all relevant records of the $ 5^{\mathrm{th}} $ Defendant [Consent Judgment (Suit 702)].

The Plaintiff filed this suit (This Suit) against the $ 1^{\mathrm{st}} $ to $ 5^{\mathrm{th}} $ Defendants (collectively referred to in this judgment as the "Defendants").

In This Suit-

the Amended Statement of Claim (ASOC) prayed for the following relief, among others-

an order for the $ 2^{n d} $ and $ 3^{r d} $ Defendants to indemnify the Plaintiff for all losses, expenses and cost incurred by the Plaintiff with regard to the SPA;

an order for the $ 3 ^{rd} $ Defendant to return the sum of RM608,370.00 to the Plaintiff; and

an order for general damages to be assessed by the High Court's Senior Assistant Registrar (SAR) and the assessed general damages shall be paid by the $ 2 ^{n d}, $ $ 3 ^{r d} $ and $ 5 ^{t h} $ Defendants to the Plaintiff; and

the $ 4^{th} $ Defendant counterclaimed for the following relief, among others-

a declaration that-

the Estate is the legal and beneficial owner of the Land; and

(ii) the $ 1^{\mathrm{st}} $ Defendant has no right in the Land; and

an order to remove the Plaintiff's Private Caveat (4th Defendant's Counterclaim).

After a trial (Trial), the learned High Court Judge decided as follows:

This Suit against the $ 1^{\mathrm{st}} $ Defendant was dismissed with costs of RM70,000.00 to be paid by the Plaintiff to the $ 1^{\mathrm{st}} $ Defendant (subject to allocatur fee);

with regard to the $ 4^{\mathrm{th}} $ Defendant-

This Suit was dismissed with costs of RM70,000.00 to be paid by the Plaintiff to the $ 4^{th} $ Defendant (subject to allocatur fee); and

the $ 4^{\mathrm{th}} $ Defendant's Counterclaim was allowed;

This Suit against the $ 5^{\mathrm{th}} $ Defendant was dismissed with costs of RM50,000.00 to be paid by the Plaintiff to the $ 5^{\mathrm{th}} $ Defendant (subject to allocatur fee);

This Suit was allowed against the $ 2^{\mathrm{n d}} $ Defendant with the following order-

the $ 2^{n d} $ Defendant shall indemnify the Plaintiff for all losses, expenses and cost incurred by the Plaintiff with regard to the SPA;

the $ 2^{\mathrm{n d}} $ Defendant shall indemnify the Plaintiff for the costs of This Suit;

an order for general damages to be assessed by the SAR and the assessed general damages shall be paid by the $ 2 ^{n d} $ Defendant to the Plaintiff; and

the $ 2 ^{nd} $ Defendant shall pay a sum of RM80,000.00 as costs to the Plaintiff (subject to allocatur fee); and

This Suit was allowed against the $ 3^{\mathrm{rd}} $ Defendant with the following order-

an order for the $ 3^{rd} $ Defendant to return the sum of RM608,370.00 to the Plaintiff;

the $ 3^{rd} $ Defendant shall indemnify the Plaintiff for all losses, expenses and cost incurred by the Plaintiff with regard to the SPA;

the $ 3^{\mathrm{rd}} $ Defendant shall indemnify the Plaintiff for the costs of This Suit;

an order for general damages to be assessed by the SAR and the assessed general damages shall be paid by the $ 3 ^{rd} $ Defendant to the Plaintiff; and

the $ 3 ^{rd} $ Defendant shall pay a sum of RM80,000.00 as costs to the Plaintiff (subject to allocatur fee) (High Court's Decision).

With regard to the $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 5^{\mathrm{th}} $ Defendants, the following reasons for the High Court's Decision were provided in the learned High Court Judge's "Grounds of Judgment" (GOJ):

the $ 2^{\mathrm{n d}} $ Defendant was liable to the Plaintiff for the tort of professional negligence due to four negligent acts and omission as follows-

if the $ 2^{n d} $ Defendant had done a search of the Land before the SPA was stamped on 13.11.2017,the $ 2^{n d} $ Defendant would have known about the Registrar's Caveat/NKC's Private Caveat - paragraphs 105 to 117 GOJ (High Court's $ 1^{\mathrm{st}} $ Finding of $ 2^{\mathrm{nd}} $ Defendant's Negligence);

according to paragraphs 118 to 121 GOJ, the $ 2^{nd} $ Defendant failed to enter a private caveat over the Land after the formalisation of the SPA and before the payment of the Balance (Price) (High Court's $ 2^{nd} $ Finding of $ 2^{nd} $ Defendant's Negligence);

on 19.3.2018, the $ 2^{nd} $ Defendant knew about the Registrar's Caveat/NKC's Private Caveat but the $ 2^{nd} $ Defendant delayed for two days in informing the $ 3^{rd} $ Defendant regarding the Registrar's Caveat/NKC's Private Caveat on 21.3.2018 - paragraphs 122 and 123 GOJ (High Court's $ 3^{rd} $ Finding of $ 2^{nd} $ Defendant's Negligence); and

in paragraphs 124 to 126 GOJ, the learned High Court Judge found the $ 2^{nd} $ Defendant to be negligent in not refuting a statement in the $ 3^{rd} $ Defendant's Letter (28.2.2018) that the $ 3^{rd} $ Defendant was "obliged" under Clause 2.5 to release the Balance (Price) within 14 working days upon receipt of the Vendor's Documents by the $ 2^{nd} $ Defendant from the $ 3^{rd} $ Defendant (High Court's $ 4^{th} $ Finding of $ 2^{nd} $ Defendant's Negligence);

according to paragraphs 139 and 140 GOJ, by way of the $ 3^{rd} $ Defendant's Land Search (19.3.2018), the $ 3^{rd} $ Defendant knew about the Registrar's Caveat/NKC's Private Caveat. Hence, the $ 3 ^{rd} $ Defendant was negligent in releasing the sums of money to the Impostor and the parties authorised by the Impostor; and

in paragraphs 86 to 99 GOJ, the High Court accepted the following submission by the learned Senior Federal Counsel (who acted on behalf of the $ 5^{th} $ Defendant) that the $ 5^{th} $ Defendant was not liable to the Plaintiff-

the $ 5^{\mathrm{th}} $ Defendant did not breach any statutory duty under the NLC because the particulars in the RDT (Land) were always correct (sentiasa tepat); and

the $ 5^{\mathrm{th}} $ Defendant was not negligent in allowing Messrs ZC's Application. C. Proceedings in the Court of Appeal

Three appeals had been filed against certain parts of the High Court's Decision (3 Appeals). The 3 Appeals are as follows:

Civil Appeal no. W-01(NCvC)(W)-119-03/2023 had been filed by the $ 2^{nd} $ Defendant against a part of the High Court's Decision, namely, the $ 2^{nd} $ Defendant's liability to the Plaintiff in this case ( $ 2^{nd} $ Defendant's Appeal);

the Plaintiff lodged Civil Appeal no. W-01(NCvC)(W)-123- 03/2023 against a part of the High Court's Decision, ie., the dismissal of This Suit against the $ 5^{th} $ Defendant (Plaintiff's Appeal). The Plaintiff did not appeal to the Court of Appeal with regard to the High Court's dismissal of This Suit against the $ 1^{st} $ and $ 4^{th} $ Defendants; and

Civil Appeal no. W-01(NCvC)(W)-140-03/2023 was the $ 3^{rd} $ Defendant's appeal against a part of the High Court's Decision which allowed This Suit against the $ 3^{rd} $ Defendant $ (3^{rd} $ Defendant's Appeal).

These 3 Appeals were heard together in the Court of Appeal. D. Issues

We will discuss the following issues in these 3 Appeals:

with regard to the $ 5^{\mathrm{th}} $ Defendant-

whether the $ 5^{\mathrm{th}} $ Defendant is liable to the Plaintiff for a tort of breach of statutory duty under s 378 NLC to take reasonable care to ensure that the correct NRIC number of the Deceased (as the registered proprietor of the Land) was inserted in Version 2 [RDT/IDT (Land);

did the $ 5^{\mathrm{th}} $ Defendant commit a tort of negligence in inserting the $ 1^{\mathrm{st}} $ Defendant's NRIC number (not the Deceased's NRIC number) in Version 2 [RDT/IDT (Land)?; and

if the $ 5^{\mathrm{th}} $ Defendant is liable to the Plaintiff for a tort of breach statutory duty under s 378 NLC and/or tort of negligence in respect of the inclusion of the $ 1^{\mathrm{st}} $ Defendant's NRIC number in Version 2 [RDT/IDT (Land) （ $ 5^{\mathrm{th}} $ Defendant's Torts），can the $ 5^{\mathrm{th}} $ Defendant rely on s 22 NLC as a defence to exclude its liability for the $ 5^{\mathrm{th}} $ Defendant's Torts?;

in respect of the $ 2^{n d} $ Defendant -

was the ASOC defective in not pleading the standard of the duty of care to be exercised by the $ 2^{n d} $ Defendant as the Plaintiff's A&S for the SPA [Standard (Duty of Care)]?;

was the Plaintiff required by case law to adduce at the Trial pursuant to s 45(1) of the Evidence Act 1950 (EA) an expert opinion of an A&S who is competent in conveyancing matters (Conveyancer) regarding the Standard (Duty of Care) at the time of the SPA (Conveyancer's Expert Opinion)?; and

whether the High Court's Decision regarding the $ 2^{nd} $ Defendant's professional negligence in this case ( $ 2^{nd} $ Defendant's Professional Negligence), in particular the High Court's $ 1^{st} $ Finding of $ 2^{nd} $ Defendant's Negligence to the High Court's $ 4^{th} $ Finding of $ 2^{nd} $ Defendant's Negligence, were "plainly wrong" so as to justify appellate intervention regarding the $ 2^{nd} $ Defendant's Appeal;

regarding the $ 3^{rd} $ Defendant-

was the ASOC required by O 18 r 10 of the Rules of Court 2012 (RC) to plead in the alternative the factual allegations and causes of action against the $ 3^{rd} $ Defendant?;

whether the $ 3^{rd} $ Defendant had breached its duties as a stakeholder with regard to the Balance (Price) (Stakeholder's Duties); and

in respect of the Balance (Price), did the $ 3 ^{rd} $ Defendant owe to the Plaintiff (not the $ 3 ^{rd} $ Defendant's client) a duty of care with regard to the tort of negligence?;

had the Plaintiff proved its loss (Plaintiff's Loss) due to -

the $ 5^{\mathrm{th}} $ Defendant's Torts; and/or

the $ 3^{rd} $ Defendant's breach of its Stakeholder's Duties $ [3^{rd} $ Defendant's Breach (Stakeholder Duties)]? The above question discusses the following matters -

"causation in fact" (Factual Causation) and "causation in law" (Legal Causation) with regard to the Plaintiff's Loss; and

(ii) in respect of the Factual Causation of the Plaintiff's Loss, whether the court should apply the following test(s) -

(ii)(a) the "but for" test;

(ii)(b) a "common sense" and "fair, just and reasonable" approach; and/or

(ii)(c) the "material contribution" test; and

if the $ 3^{\mathrm{rd}} $ and/or $ 5^{\mathrm{th}} $ Defendant is/are liable to the Plaintiff in this case, could the High Court order the Plaintiff to be indemnified by the $ 3^{\mathrm{rd}} $ and/or $ 5^{\mathrm{th}} $ Defendant with regard to the Plaintiff's Loss? OUR DECISION E. Was the 5th Defendant liable to the Plaintiff for a tort of breach of statutory duty in this case?

As to when our case law recognises a tort of breach of statutory duty, we refer to the following judgment of the High Court in Azman bin Karim & Anor v Hasa Arkitek Sdn Bhd & Ors [2024] 2 MLRH 322, at [36(1)] and [36(2)]: [36] My understanding of cases regarding the tort of breach of statutory duty is as follows:

whether an Act of Parliament (AP) has created a tort of breach of statutory duty is a matter of construction of the AP so as to ascertain the intention of Parliament. The issue is whether Parliament has intended an AP to confer a right of private action on a plaintiff when the defendant has breached a duty imposed by the AP. I cite the following judgment of Lord Normand in the House of Lords in Cutler v Wandworth Stadium Ltd (in Liquidation) [1949] AC 398, at 412- "My Lords, I find myself in close agreement with the judgments in the Court of Appeal. In particular I respectfully agree with the Master of the Rolls that the proper approach to the case is to consider whether on a true construction of the statute as a whole a right of action by an individual aggrieved by the breach of one of the statutory duties ought to be implied." (emphasis added);

a tort of breach of statutory duty may be imposed by Parliament through an AP in the following circumstances-

Parliament has intended in the AP to protect a particular class of persons [Protected Class (AP)] by imposing a duty on a defendant (not any other party) [Duty (AP)] - please refer to the 3-2 majority decision of Lord Carnwath JSC (concurred by Lord Mance and Lord Reed JJSC) in UK's Supreme Court in Campbell v Peter Gordon Joiners Ltd [2016] AC 1513, at [7] and [13];

the defendant has breached the Duty (AP); and

the defendant's breach of the Duty (AP) has caused injuries, damage and/or loss to the plaintiff who falls within the Protected Class (AP); ..." (emphasis added).

We reproduce below ss 89(a), 319(1)(a), (2), 322(1)(a), 340(1), 378 [after amendment by the National Land Code (Amendment) Act 2016 (Act A1516)], 384(a) and 385(1) NLC: "s 89. Conclusiveness of [RDT] Every [RDT] duly registered under this Chapter shall, subject to the provisions of this [NLC] be conclusive evidences 319. Nature and effect of Registrar's caveats.

that title to the land described therein is vested in the person or body for the time being named therein as proprietor; ...

A caveat under this section shall be known as a "Registrar's caveat", and -

may be entered by the Registrar on the [RDT] to any land in any of the circumstances specified in section 320;

subject to sub-section (3), shall, so long as it continues in force, have the effect of prohibiting the registration, endorsement or entry on that document of -

any instrument of dealing;

(ii) any claim to the benefit of a tenancy exempt from registration; and

(iii) any lien-holder's caveat.

The prohibition imposed by a Registrar's caveat shall apply to any such instrument notwithstanding that it was presented for registration before the caveat was entered, and to any such claim or lien-holder's caveat notwithstanding that the application for its endorsement or entry was received before that time. s 322. Nature and effect of private caveats.

A caveat under this section shall be known as a "private caveat", and -

may be entered by the Registrar on the [RDT] to any land at the instance of any of the persons or bodies specified in section 323;

shall have the effect specified in sub-section (2) or (3), according as it is expressed to bind the land itself or an undivided share in the land or merely a particular interest therein. s 340. Registration to confer indefeasible title or interest, except in certain circumstances.

The title or interest of any person or body for the time being registered as proprietor of any land, 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. s 378. Changes of name by proprietors, etc.

Subject to subsection (2), the Registrar may, upon the production to him of evidence (whether in the form of a deed poll, official certificate, [SD] or otherwise) from which he is satisfied of a change of name on the part of any person or body in whom any alienated land or interest is for the time being vested, or at whose instance a caveat has been entered in respect of any land or interest, make a memorial of the change in the relevant [RDT] and in any [IDT] or other instrument relating to the said land or interest.

In the case of a natural person, such change may also refer to the description of his citizenship or the number of identity card issued to him under the National Registration Act 1959 [Act 78] or, where no such identity card has been issued to him, the number appearing in his passport or any other official document of identity. s 384. Private searches. Any person or body may, at any time during normal office hours of any Registry or Land Office, but subject to payment of the prescribed fee and such other conditions (if any) as may be prescribed, inspect and take notes of or extracts from-

any register of title, Presentation Book or Correction Notebook maintained by the Registrar or any predecessor in office; and

any instrument of dealing or application presented or made to, or in the custody of, the Registrar. s 385. Official searches.

Any person or body may apply to the Registrar for an official search in respect of any land." (emphasis added).

Our NLC is based on the Torrens system which has the following essential features [Essential Features (Torrens System)]:

as provided by s 89(a) NLC, as a general rule, all details of registration in the RDT of a title and interest in land (Title/Interest) in the name of a person (X), is conclusive evidence of X's registered Title/Interest [subject to certain exceptions as provided in s 340(2)(a) to (c) NLC] (Conclusiveness of RDT Principle);

subject to exceptions specified in s 340(2)(a) to (c) NLC, X's registered Title/Interest is indefeasible under s 340(1) NLC (Indefeasibility of Registered Title/Interest Principle);

the NLC has provided for a claimant to Title/Interest (Claimant) to enter a private caveat under s 322(1)(a) NLC in the RDT regarding the Claimant's claim to the Title/Interest (Private Caveat Procedure);

the "Registrar of Titles" and "Land Administrator" (defined in s 5 NLC) (referred collectively in this judgment as the "Land Authorities") may enter a Registrar's Caveat in the RDT pursuant to s 319(1)(a) NLC (Registrar's Caveat Procedure);

the RDT is the "mirror" of -

all registered Titles/Interests; and

all claims to the registered Titles/Interests by way of the Private Caveat Procedure (Mirror Principle) - please refer to the Court of Appeal's judgment in Maysie Long & Anor v Rahimah bt Mohd Noor & Ors, at [68(4)(a)]; and

parties need not go behind the "curtain" of the RDT (Curtain Principle) because any person can conduct a "Private Search" and "Official Search" of the RDT under ss 384(a) and 385(1) NLC respectively [Private/Official Search (RDT)] - Maysie Long, at [68(4)(b)].

We are of the view that-

the Land Authorities owe a statutory duty under s 378 NLC to take reasonable care to ensure that the correct NRIC number of a registered proprietor of land （Registered Proprietor）is inserted in the RDT and IDT regarding the land [Statutory Duty (Section 378 NLC)];

the Statutory Duty (Section 378 NLC) is owed to -

the Registered Proprietor; and

any person who -

intends to purchase the Registered Proprietor's land (Proposed Purchase);

(ii) has conducted a Private/Official Search (RDT) for the purpose of the Proposed Purchase; and

(iii) has provided valuable consideration for the Proposed Purchase (Purchaser); and

if the Land Authorities breach the Statutory Duty (Section 378 NLC) and if-

the Registered Proprietor loses title to the land; or

if the Purchaser loses money with regard to the Proposed Purchase - the Land Authorities are liable for a tort of breach of the Statutory Duty (Section 378 NLC) to the Registered Proprietor and Purchaser (referred collectively in this judgment as the "Registered Proprietor/Purchaser") for the loss as stated in the above sub-paragraphs (3)(a) and (b). The above decision is premised on the following reasons:

as explained in the above paragraph 37, by reason of the Essential Features (Torrens System), in particular, the Conclusiveness of RDT Principle, Indefeasibility of Registered Title/Interest Principle, Mirror Principle and Curtain Principle, Parliament has clearly intended to confer a right of private action on a particular class of persons, namely, the Registered Proprietor/Purchaser for a breach of the Statutory Duty (Section 378 NLC) by the Land Authorities which has caused loss to the Registered Proprietor/Purchaser; and

(ii) if there is no tort of breach of Statutory Duty (Section 378 NLC), this will directly undermine the Conclusiveness of RDT Principle, Indefeasibility of Registered Title/Interest Principle, Mirror Principle and Curtain Principle.

It is not disputed that as decided by Zabariah Mohd. Yusof FCJ in the Federal Court case of Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67, at [78], an appellate court can only set aside a trial court's factual finding which is a "plain" factual error as understood in the following two cumulative circumstances:

the learned trial court's finding of fact cannot be reasonably explained or justified; and

no reasonable trial judge could have arrived at the factual finding.

We are satisfied that the learned High Court Judge had committed a plain error of fact in deciding that the $ 5^{th} $ Defendant did not breach the Statutory Duty (Section 378 NLC) on the ground that the particulars in the RDT (Land) were always correct [High Court's $ 1^{st} $ Plain Factual Error $ (5^{th} $ Defendant)]. This is because -

the above High Court's finding of fact cannot be reasonably explained or justified; and

no reasonable trial judge could have arrived at the factual finding of the learned High Court Judge. The High Court's Plain Factual Error ( $ 5^{\mathrm{th}} $ Defendant) is premised on the following evidence and reasons-

when the $ 1^{\mathrm{st}} $ Defendant's NRIC number 560620-10-6427 (not the correct NRIC number of the Deceased which was 220806-10-5157) was inserted in Version 2 [RDT/IDT (Land)] , the particulars regarding the Deceased's NRIC number in Version 2 [RDT/IDT (Land)] were clearly wrong;

the Consent Judgment (Suit 702) had adjudged, among others, as follows-

the signatures of the $ 1^{\mathrm{st}} $ Defendant on, among others, the application under s 378 NLC and SD (sent by way of Messrs ZC's Application to the $ 5^{\mathrm{th}} $ Defendant), had been forged and were not the genuine signatures of the 1 $ ^{st} $ Defendant;

(ii) the application under s 378 NLC and SD had no legal effect; and

(iii) the $ 5^{\mathrm{th}} $ Defendant was ordered to give full effect to the above court order within seven days from the date of the court order, including a rectification of all relevant records of the $ 5^{\mathrm{th}} $ Defendant. By reason of the Consent Judgment (Suit 702), the $ 5^{\mathrm{th}} $ Defendant is now estopped from denying that the $ 1^{\mathrm{st}} $ Defendant's NRIC number 560620-10-6427 in Version 2 [RDT/IDT (Land)] was wrong and had no legal effect. In fact, the $ 5^{\mathrm{th}} $ Defendant was compelled by the Consent Judgment (Suit 702) to rectify the RDT (Land) with regard to the $ 1^{\mathrm{st}} $ Defendant's NRIC number 560620-10-6427 in Version 2 [RDT/IDT (Land)];

s 378(1) and (2) NLC empower the Land Authorities to "change" the NRIC number of the Deceased as the registered proprietor of the Land. In this case, there was no change in the Deceased's NRIC number as the original RDT (Land) did not contain the Deceased's "old" NRIC number. Hence, there was no basis for the $ 5^{\mathrm{th}} $ Defendant to allow Messrs ZC's Application to "add" the $ 1^{\mathrm{st}} $ Defendant's NRIC number (purportedly as the Deceased's NRIC number) in the RDT (Land); and

in s 378(1) NLC, our legislature had employed the term "satisfied". Accordingly, there was a Statutory Duty (Section 378 NLC) for the $ 5^{\mathrm{th}} $ Defendant to be "satisfied" by taking reasonable care that Messrs ZC's Application contained the correct NRIC number of the Deceased (not the $ 1^{\mathrm{st}} $ Defendant's NRIC number). In this regard, the $ 5^{\mathrm{th}} $ Defendant had breached the Statutory Duty (Section 378 NLC) to take reasonable care that Messrs ZC's Application contained the correct NRIC number of the Deceased ( $ 5^{\mathrm{th}} $ Defendant's Tort of Breach of Statutory Duty). The $ 5^{\mathrm{th}} $ Defendant's Tort of Breach of Statutory Duty is based on the following reasons-

the Deceased was registered by the $ 5^{\mathrm{th}} $ Defendant as the proprietor of the Land on 20.4.1951. According to the $ 1^{\mathrm{st}} $ Defendant's NRIC number, the $ 1^{\mathrm{st}} $ Defendant was born on 20.6.1956. It is therefore clear beyond peradventure that the $ 1^{\mathrm{st}} $ Defendant could not be the registered proprietor of the Land because how could the $ 1^{\mathrm{st}} $ Defendant become the registered proprietor of the Land at the time of the $ 1^{\mathrm{st}} $ Defendant's birth, ie., when the $ 1^{\mathrm{st}} $ Defendant was only five years and two months old!;

(ii) Messrs ZC's Application was made at 1.48 pm, 18.9.2017 but was allowed by the $ 5^{\mathrm{th}} $ Defendant on the very next day (19.9.2017) and Version 2 [RDT/IDT (Land)] was also issued by the $ 5^{\mathrm{th}} $ Defendant on 19.9.2017. Such extraordinary speed, in fact unholy haste, for the $ 5^{\mathrm{th}} $ Defendant to approve Messrs ZC's Application, could only mean "something is rotten in the state of Denmark";

(iii) according to the SD, the address of "Ng Kee Wei" was at F-3-4, Melati Apartment, Taman Sri Nibong, Lebuh Bukit Kecil Tiga 11900 Bayan Lepas, Penang. The Land in this case is at Lot 260, Jalan Chow Kit, 50350 Kuala Lumpur. How could a resident in Penang own vacant and valuable freehold land in Kuala Lumpur? The residential address of the $ 1^{\mathrm{st}} $ Defendant in the SD should have raised a "red flag" which would then require the $ 5^{\mathrm{th}} $ Defendant to inquire further from Messrs ZC on the genuineness of Messrs ZC's Application;

(iv) in view of the matters stated in the above subparagraphs (d)(i) and (iii), the $ 5^{\mathrm{th}} $ Defendant should have called the $ 1^{\mathrm{st}} $ Defendant and the solicitor from Messrs ZC for a face-to-face meeting so as to be "satisfied" under s 378(1) NLC regarding the genuineness of Messrs ZC's Application; and

before allowing Messrs ZC's Application, the $ 5^{th} $ Defendant should have examined the Forged IDT (Land) and be "satisfied" of the authenticity of the Forged IDT (Land). It would be remiss of the $ 5^{th} $ Defendant in failing to ascertain the genuineness of the Forged IDT. (Land) in this case. If the Land Authorities themselves cannot verify the authenticity of an IDT, which other party can?

In Part N(1) below, we will discuss the Plaintiff's Loss arising from the $ 5^{\mathrm{th}} $ Defendant's Tort of Breach of Statutory Duty. F. Did the 5th Defendant commit a tort of negligence in approving Messrs ZC's Application?

Firstly, we have no hesitation to decide that the $ 5^{\mathrm{th}} $ Defendant owed to the Plaintiff a duty in respect of a tort of negligence to exercise reasonable care before-

allowing Messrs ZC's application; and

inserting the $ 1^{\mathrm{st}} $ Defendant's NRIC number (not the Deceased's NRIC number) in Version 2 [RDT/IDT (Land) [Duty of Care (Section 378 NLC)]. We rely on the following judgment of Zaleha Yusof JCA (as she then was) in the Court of Appeal case of Pendaftar Hakmilik Negeri Selangor v Caesius Development Sdn Bhd & Ors and another appeal [2020] 3 CLJ 327, at [33] to [35], [38] and [39] (Caesius Development): [33] It was the contention of the learned ALA [Assistant Legal Advisor] that the seventh defendant had at all material time performed its statutory duties as provided by the NLC in particular s 378 which reads, inter alia, as follows: [34] It was his contention that the learned High Court Judge was wrong in finding PW4 was negligent in registering the change of name when s 378 was clear and unambiguous and did not specifically state the type of documents which needed to be attached to the application. Section 378 does not put extra burden on PW4 but only requires the production of documents which can satisfy the seventh defendant. [35] In any event, the learned ALA submitted that s.22 [NLC] which provides as follows, gives protection to the seventh defendant: [38] With due respect to the learned ALA, we find the argument put forward is a hollow one and does not hold water. We cannot expect the Legislature to specifically list down all the documents required under s. 378 as every application is distinct, hence its requirement differs. Hence the need for an office flowchart as an administrative guide to the work process. It did exist in the seventh defendant's office but the learned High Court Judge found it had not been adhered to by PW4. Officers of the seventh defendant are not robots and therefore they need to apply their minds and attention in processing every such application, which the learned High Court Judge found they had failed to do so. [39] As a keeper of all land titles, for a particular State (in this case Selangor) it is reasonable to impose upon the land office, including the seventh defendant, a duty of care towards all landowners, to ensure that the landowners' interests are well protected and safeguarded. The land office, including the seventh defendant, has to ensure that the law and proceedings are followed strictly, failing which it can cause the landowners losing their lands." (emphasis added).

Secondly, as a matter of stare decisis, the learned High Court Judge was bound by the Court of Appeal's decision in Caesius Development. Consequently, the High Court erred in law by not applying Caesius Development in this case [High Court's Legal Error (5th Defendant)]

Thirdly, as explained in the above sub-paragraphs 40(d)(i) to (v), the $ 5^{th} $ Defendant had breached the Duty of Care (Section 378 NLC) in this case [ $ 5^{th} $ Defendant's Breach (Duty of Care)]. The learned High Court Judge had made a plain error of fact in not arriving at the $ 5^{th} $ Defendant's Breach (Duty of Care) [High Court's $ 2^{nd} $ Plain Factual Error ( $ 5^{th} $ Defendant)].

We will discuss the Plaintiff's Loss arising from the $ 5^{th} $ Defendant's Breach (Duty of Care) in Part N(1) below. G. Whether the 5th Defendant could rely on the defence in s 22 NLC

According to s 22 NLC- "s 22. Protection of officers No officer appointed under this Part shall be liable to be sued in any civil court for any act or matter done, or ordered to be done or omitted to be done, by him in good faith and in the intended exercise of any power, or performance of any duty, conferred or imposed on him by or under [NLC]." (emphasis added).

We decide that in this case the $ 5^{\mathrm{th}} $ Defendant cannot rely on the defence in s 22 NLC. This is because due to the evidence and reasons stated in the above sub-paragraphs 40(a) to (d), the $ 5^{\mathrm{th}} $ Defendant did not act in "good faith" as required by s 22 NLC. The meaning of "good faith" in s 22 NLC has been explained in the following two cases:

the judgment of the Court of Appeal in Caesius Development, at [35] and [38]; and

in Md Erpan bin Mairi v Kamaruddin bin Yacoob & Ors [2020] MLJU 1882, at [61] to [63], the High Court decided as follows- [61] Both s 22 NLC and s 5 GPA [Government Proceedings Act 1956] provide a defence for the $ 2^{nd} $ Defendant's act or omission in "good faith". The NLC and GPA do not define the expression of "good faith". I refer to a Federal Court case of Liputan Simfoni Sdn Bhd v Pembangunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141 which concerns, among others, the meaning of "good faith" in the context of the proviso to s 340(3) NLC (purchaser of land or interest in land in good faith and for valuable consideration). It is decided by Hasan Lah FCJ in Liputan Simfoni, at [72], as follows- "In Stroud's Judicial Dictionary of Words and Phrases (9th Ed) it states that the words 'in good faith' have a core meaning of honesty. It further states that the term is to be found in many statutory and common law contexts, and because they are necessarily conditioned by their context, it is dangerous to apply judicial attempts at definition in one context to that of another." (emphasis added). [62] I am of the view that the above definition of "good faith" as provided in Stroud's Judicial Dictionary of Words and Phrases, (9th Edition) (which has been applied by the Federal Court in Liputan Simfoni) may be used to interpret the expression of "good faith" in s 22 NLC and s 5 GPA. [63] I find that the 2 $ ^{nd} $ Defendant [Land Administrator] is not able to rely on s 22 NLC and s 5 GPA in this case. It is clear that SD3 [an officer at the Land Office] did not act in "good faith" within the meaning of s 22 NLC and s 5 GPA because SD3 did not act honestly when SD3 carried out the Registration (1 $ ^{st} $ Transfer) and accepted the PA [Power of Attorney]. The evidence and reasons which I have explained in the above paragraph 57 (SD3's breach of his duty of care owed to the Plaintiff) also support the inference that SD3 had acted dishonestly in this case. An honest ALA [Assistant Land Administrator] in SD3's circumstances would not have performed the Registration (1 $ ^{st} $ Transfer) and would have rejected the PA. ...” (emphasis added). H. Was the ASOC defective in not pleading particulars of the $ 2^{n d} $ Defendant's Professional Negligence?

O 1A, O 2 r 1(2) and O 18 r 7(1) RC state as follows: "O 1A Regard shall be to justice In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. O2r1(2) These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective. O18r7 Facts, not evidence, to be pleaded

Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits." (emphasis added).

Learned counsel for the $ 2^{n d} $ Defendant had submitted at length that the ASOC did not plead sufficient particulars regarding the $ 2^{n d} $ Defendant's Professional Negligence, including the Standard (Duty of Care). We are not able to accept this contention. Our reasons are as follows:

paragraphs 34 to 37 ASOC, in our view, had complied with O18 r 7(1) RC. In this regard, we cite the following judgment of the High Court in Aragreens Residences Joint Management Body & Anor v HSB Development Sdn Bhd (in liquidation) [2024] MLJU 1126, at [12(1)] and [12(2)]-

paragraphs 5, 8.1 to 8.10, 9 to 11, 14.1 to 14.4, 15.1 to 15.6 and 16 to 18 ASOC had pleaded a summary of material facts concerning the tort of negligence committed by the Defendant regarding the 6 Alleged Defects. The contents of a pleading are governed by O 18 r 7(1) [RC] ... It is to be emphasized that by virtue of O 18 r 7(1) RC-

a pleading "shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim" [Summary (Material Facts)];

the Summary (Material Facts) "shall be as brief as the nature of the case admits"; and

a pleading is not required to contain the "evidence by which those facts are to be proved". The mandatory nature of the Summary (Material Facts) in a pleading, is clear from the use of the imperative term "shall" in O 18 r 7(1) RC, not once but twice. O 18 r 7(1) RC had been applied by the Court of Appeal in Asia Capital Commodities Trade Sdn Bhd v The Owner of the Vessel "Oriental Dragon" [2025] 8 AMR 1, at [34]; In accordance with O 1A and O 2 r 1(2) RC, the requirement regarding the contents of a pleading in O 18 r 7(1) RC, should be administered with regard to the "overriding interest of justice and not only to the technical non-compliance" with RC. In view of the enforcement of O 1A and O 2 r 1(2) RC, previous cases which had required a dogmatic approach regarding pleadings, should be read with caution. At the sake of repetition, paragraphs 5, 8.1 to 8.10, 9 to 11, 14.1 to 14.4, 15.1 to 15.6 and 16 to 18 ASOC had clearly pleaded a Summary (Material Facts) regarding the tort of negligence committed by the Defendant in respect of the 6 Alleged Defects. To decide otherwise would be contrary to the "overriding interest of justice" as embodied in O 1A and O 2 r 1(2) RC." (emphasis added); and

in this case, the $ 2^{nd} $ Defendant's solicitors did not apply to the Plaintiff's then solicitors (not the present solicitors for the Plaintiff in these 3 Appeals) for further and better particulars of the ASOC. Nor did the $ 2^{nd} $ Defendant apply to court for further and better particulars of the ASOC under O 18 r 12(3) RC. In fact, the $ 2^{nd} $ Defendant's Defence was filed and later amended. The $ 2^{nd} $ Defendant had called Ms. Tee Bee Kim (DW4), the A&S in the $ 2^{nd} $ Defendant who handled the SPA on behalf of the Plaintiff, to give evidence at the Trial. After the Trial, the $ 2^{nd} $ Defendant had filed two lengthy written submissions to oppose This Suit. In such circumstances, we are not able to see any prejudice occasioned to the 2 $ ^{nd} $ Defendant by any defect in the ASOC regarding the tort of negligence pleaded against the 2 $ ^{nd} $ Defendant. I. Whether the Plaintiff was required by case law to adduce a Conveyancer's Expert Opinion at the Trial

Section 45(1) EA provides as follows: "s 45 Opinions of experts

When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts." (emphasis added).

At the Trial, the Plaintiff did not call a Conveyancer as an expert witness to provide to the High Court a Conveyancer's Expert Opinion on whether the $ 2^{n d} $ Defendant had breached the Standard (Duty of Care) in this case.

Unlike the Plaintiff, the $ 2^{\mathrm{nd}} $ Defendant called DW4 to give evidence at the Trial (DW4's Testimony). At the time of DW4's Testimony, DW4 had more than 29 years of experience as a Conveyancer. According to DW4's Testimony, among others, since the SPA in this case concerned a cash acquisition of the Land, the 2 $ ^{nd} $ Defendant was only required to do two searches on the Land as follows:

the $ 2^{\mathrm{nd}} $ Defendant's Land Search (8.8.2017) was first conducted before the signing of the SPA (Impostor-CKP) on 7.9.2017; and

a second search on the Land was done by the $ 2^{\mathrm{nd}} $ Defendant before the presentation of the MOT on 19.3.2018.

We should state that the present learned counsel and solicitors who now appear for the Plaintiff in these 3 Appeals, did not act for the Plaintiff during the Trial.

Firstly, we note that s 45(1) EA does not expressly refer to an expert opinion of an A&S. Having said that, we refer to the following judgment of the High Court in Badan Pengurusan Bersama Subang Parkhomes v Zen Estates Sdn Bhd, Fadhullah & Associates Consulting Engineers Sdn Bhd (Third Party) [2025] 7 MLJ 780, at [25] (Subang Parkhomes): [25] Firstly, s 45(1) EA applies to "an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions". However, our case law has decided that to assist the court to decide a factual issue in a case, s 45(1) EA allows expert evidence to be tendered even though the expert opinion is not "a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions". In the High Court case of Chandrasekaran & Ors v Public Prosecutor [1971] 1 MLJ 153, at 159 to 160, Raja Azlan Shah J (as his Majesty then was) admitted an expert opinion regarding typescripts pursuant to s 45 EA even though s 45 EA is silent on typescripts." (emphasis added). Premised on Subang Parkhomes, the Plaintiff could have called a Conveyancer as a expert witness at the Trial to provide a Conveyancer's Expert Opinion on whether the Standard (Duty of Care) in this case had been breached by the $ 2 ^{n d} $ Defendant.

Secondly, we accept the submission by the $ 2^{\mathrm{nd}} $ Defendant's learned counsel that the following four Court of Appeal cases (Quadrilogy) require a plaintiff who alleges professional negligence against an A&S (Y) in a non-litigious matter, to adduce an expert opinion from another A&S who is competent in the non-litigious matter in question (Z) to prove Y's professional negligence:

in Ngan Siong Hing v RHB Bank Bhd [2014] 2 MLJ 449, a bank filed a professional negligence suit against the bank's own solicitors regarding the alleged breach of contractual duties and duties of care of the bank's solicitors owed to the bank regarding the preparation and execution of a loan security document by the bank's solicitors. Hamid Sultan Abdul Backer JCA delivered the following majority judgment of the Court of Appeal in Ngan Siong Hing, at [5], [9] and [29] - [5] The appellant practicing as solicitors under the firm name Abbas & Ngan was acting for the respondent bank as financier's solicitors in relation to a bogus sale and purchase agreement. The purported vendor as well as the purchaser, were also bogus. To compound the problem the purported solicitor who witnessed the sale and purchase agreement and who was acting for the purchaser/borrower was also bogus. [9] This is what has happened in this case. And two eminent conveyancing practitioners have given evidence, one supporting the respondent (Ms Low Beng Choo - SP7) and the other the appellant (Mr Yeo Yang Poh - SD2). [29] ... The duty of care and breach complained of relates to professional conduct of the appellant. And to determine whether the appellant had breached the duty, whether in contract or tort, the opinion of the expert of the profession plays a major role to determine the issue according to their professional standards or obligations (see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) (Emphasis added.)" (emphasis added);

the issue that arose in Shearn Delamore & Co v Sadacharamani Govindasamy [2017] 2 CLJ 665 was whether the appellant, a law firm, had negligently given a written opinion to the respondent. According to Hamid Sultan Abdul Backer JCA in Shearn Delamore & Co, at [1], [5], [13] and [15] - [1] The appellant (a professional firm of advocates and solicitors) appeals against the decision of learned High Court Judge who ruled that the appellant was liable in negligence and ordered for assessment of damages. The action arose in respect of opinion given by the appellant relating to intellectual property rights. [5] In the instant appeal, at the commencement of the appeal, we enquired whether the case is one related to professional negligence. Both counsel admitted so. Then we enquired whether experts or professionals were called to give evidence on 'standard of care' a very important element in professional negligence case for the plaintiff to succeed. That is to say that the 'Clapham Omnibus' reasonable man test will not be applicable in professional negligence case. (See Dato' Dr V Thuraisingam & Anor v. Sanmarkan Ganapathy & Anor [2015] 8 CLJ 248; Shalini Kanagaratnam v. Pusat Perubatan Universiti Malaya & Anor [2016] 6 CLJ 225). The response from counsel was in the negative. ... [13] We have read the appeal record and the submission of learned counsel. After much consideration to the submissions of learned counsel for the respondent, we take the view that the appeal must be allowed in limine. Our reasons inter alia are as follows:

It is well settled that in professional negligence, the burden is on the plaintiff to establish the standard of care has been breached before the defendant is required to call his witness to rebut the same. (See Dato' Dr V Thuraisingam & Anor v. Sanmarkan Ganapathy & Anor [2015] 8 CLJ 248]. [15] In the instant case, the failure of the learned trial judge to take cognisance of the pleading rules as to 'standard of care' and failing to appreciate the respondent has not satisfied the requirement of the elements of standard of care principles by way of evidence at the stage of the plaintiff case warrants the judgment to be set aside as of right." (emphasis added);

in Tetuan Theselim Mohd Sahal & Co & Ors v Tan Boon Huat & Anor [2017] 4 MLJ 207, at [29] to [31], Harmindar Singh JCA (as he then was) decided as follows- [29] The final finding which was also attacked was with regard to the failure by the defendants to advise the plaintiffs as to the progress of the transaction and also for unprofessional conduct. A glaring omission, which appeared to have been overlooked all round, was that no evidence was adduced to show the appropriate standard of care, competence and diligence which the defendants should be held up to in conveyancing practice. A solicitor, like all professionals, has a duty to exercise reasonable degree of care and skill expected of a competent and reasonably experienced solicitor. ... [30] Thus, whether the first defendant, and in particular the second defendant, who was the solicitor handling the transaction, were negligent may be determined by a consideration of the following questions:

whether the standard of care practised by the second defendant was the same standard of reasonably competent solicitors in conveyancing practice; and

whether the second defendant had acted with diligence in exercising the reasonable care and skill expected to assist the completion of the SPA. [31] As alluded to earlier, it is unfortunate that no evidence was led as to the conveyancing practice in existence at the time. The learned judge appeared to rely on the evidence of the plaintiffs who were quite obviously not solicitors professing expertise in the field of conveyancing practice. The defendants, on the other hand, had the evidence of the third defendant who was a senior conveyancing practitioner. She testified that the procedure applied by the second defendant was in accordance with the accepted standards in conveyancing practice. Although she was an interested witness, her testimony was the best available evidence before the court. There was, at least, no material before the court to rule that the second defendant was guilty of unprofessional conduct. The finding of negligence in this context was therefore unfortunate." (emphasis added); and

Nantha Balan JCA gave the following judgment in Ng Bee Ken Kenny (an Advocate and Solicitor practising under the name and style of Messrs Azri, Lee Swee Seng & Co) v Tan Yee Shen & Anor [2022] 2 MLJ 385, at [69], [79] and [87] - "[69] Essentially, the plaintiffs' claim is predicated on the allegation that the defendant was negligent in terms of handling the SPA transaction. ... [79] Of course, on hindsight, the handling of the SPA could have been much better. In this regard, we agree with Dato' Low Beng Choo (DW2) (the conveyancing expert who was called by the defendant) who said that there were things which could have been done better. But, we do not think that, that in itself translates into a finding of negligence. [87] Thus, in so far as the allegation of breach of duty of care is concerned, looking at the evidence as a whole, we find no basis for the suggestion that the defendant had breached his duty of care as a conveyancing solicitor. The plaintiffs had not even called an expert to testify that there was a departure from any particular standard of conveyancing practice (see: Tetuan Theselim, Shearn Delamore). ..." (emphasis added).

When there is a claim that an A&S is professionally negligent in a litigation, there are two judgments from the House of Lords case of Moy v Pettman Smith (a firm) & Anor [2005] 1 WLR 581 that the plaintiff should have adduced an expert view from a competent barrister as to whether the defendant barrister had committed professional negligence in the litigation in question. We rely on the following two judgments in Moy:

according to Lord Hope, at [19] (concurred by Lord Nicholls, Baroness Hale and Lord Brown) - "[19] Where a claim is brought for professional negligence the court will usually expect to be provided with some evidence to enable it to assess whether the relevant standard of care has been departed from. No such evidence was adduced in this case. Judges, recalling how things were when they were in practice, no doubt feel confident that they can do this for themselves without evidence. But judges need to be careful lest the decision in the case depends on the standard they would set for themselves. If this were to happen, it would vary from judge to judge and become arbitrary." (emphasis added); and

Baroness Hale, at [26] (agreed to by Lord Nicholls and Lord Brown) delivered the following decision- [26] ... In cases against advocates, however, the court assumes that it can rely upon its own knowledge and experience of advocacy to make that judgment. This brings, as Lord Hope has pointed out, an obvious risk that a judge will ask himself what he would have done in the particular circumstances of the case. But this is not the test. The doctor giving expert evidence in a medical negligence claim is not asked he himself would have done, but what a reasonable doctor might have done." (emphasis added).

All the Malaysian cases cited by the Plaintiff's learned counsel concerned litigation and could be easily distinguished from the instant case which involved a SPA of real property. In any event, we leave open the question of whether a plaintiff who alleges professional negligence of an A&S regarding a litigation, should, in accordance with Moy, adduce an expert view from another A&S who is competent in litigation.

With respect to the learned High Court Judge, by virtue of the doctrine of stare decisis, the High Court should have applied the Quadrilogy which is binding on the learned High Court Judge [High Court's Legal Error (2 $ ^{nd} $ Defendant)]. J. Had the Plaintiff proven the 2 $ ^{nd} $ Defendant's Professional Negligence in this case?

Sections 101 and 102 EA state as follows: "s 101. Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. s 102. On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." (emphasis added).

It is not disputed the Plaintiff bears the legal and evidential burden under ss 101(1), (2) and 102 EA to prove on a balance of probabilities the $ 2^{n d} $ Defendant's Professional Negligence at the time of the SPA (Legal/Evidential Burden). The issue of whether a plaintiff has discharged the Legal/Evidential Burden in a particular case, is an issue of mixed law and fact. An appellate court can only set aside a trial court's finding of mixed law and fact if the finding is plainly erroneous - please refer to the Court of Appeal's judgment in SPM Energy Sdn Bhd & Anor v Multi-Discovery Sdn Bhd [2015] 3 AMR 953, at [57].

Without a Conveyancer's Expert Opinion to support This Suit against the $ 2^{nd} $ Defendant, after the Trial, DW4's Testimony stood unrebutted by the Plaintiff. Furthermore, DW4's Testimony is supported by the Essential Features (Torrens System), ie., the Conclusiveness of RDT Principle, Indefeasibility of Registered Title/Interest Principle, Mirror Principle, Curtain Principle and Private Caveat Procedure. On this ground alone, the High Court had committed a plain error of mixed law and fact by not deciding that the Plaintiff had failed to discharge the Legal/Evidential Burden in this case [High Court's Error of Mixed Law and Fact ( $ 2^{nd} $ Defendant)].

The High Court's $ 1^{\mathrm{st}} $ Finding of $ 2^{\mathrm{nd}} $ Defendant's Negligence to the High Court's $ 4^{\mathrm{th}} $ Finding of $ 2^{\mathrm{nd}} $ Defendant's Negligence, in our respectful view, are plain erroneous factual findings [High Court's 4 Plain Factual Errors ( $ 2^{\mathrm{nd}} $ Defendant)] because-

with regard to the High Court's 1 $ ^{1 s t} $ Finding of $ 2 ^{n d} $ Defendant's Negligence, there was no Conveyancer's Expert Opinion which stated that the $ 2 ^{n d} $ Defendant should have done a search of the Land before the stamping of the SPA on 13.11.2017;

even if the $ 2^{nd} $ Defendant had entered a private caveat over the Land on behalf of the Plaintiff, in accordance with the SPA, the Balance (Price) would still have to be released by the $ 2^{nd} $ Defendant to the $ 3^{rd} $ Defendant as stakeholders. Hence, we fail to see how the $ 2^{nd} $ Defendant's failure to enter a private caveat over the Land after the formalisation of the SPA and before the payment of the Balance (Price), could constitute professional negligence on the $ 2^{nd} $ Defendant's part which led to the Plaintiff's loss of the Balance (Price) in this case. In other words, the High Court's $ 2^{nd} $ Finding of $ 2^{nd} $ Defendant's Negligence was plainly wrong;

the High Court's $ 3^{rd} $ Finding of $ 2^{nd} $ Defendant's Negligence was plainly erroneous because the delay of two days on the part of the $ 2^{nd} $ Defendant in informing the $ 3^{rd} $ Defendant regarding the Registrar's Caveat/NKC's Private Caveat, was of no consequence in this case. This was because when the $ 2^{nd} $ Defendant knew about the Registrar's Caveat/NKC's Private Caveat on 19.3.2018, the Balance (Price) had already been released by the $ 2^{nd} $ Defendant to the $ 3^{rd} $ Defendant as stakeholders on 12.2.2018; and

the $ 3^{rd} $ Defendant are a firm of A&S. As stakeholders under the SPA, the $ 3^{rd} $ Defendant had actual knowledge of the relevant provisions in the SPA. As such, the $ 3^{rd} $ Defendant should have known the circumstances when the $ 3^{rd} $ Defendant could lawfully release the Balance (Price) to the Impostor. The $ 2^{nd} $ Defendant's failure to refute a statement in the $ 3^{rd} $ Defendant's Letter (28.2.2018) that the $ 3^{rd} $ Defendant was "obliged" under Clause 2.5 to release the Balance (Price) within 14 working days upon receipt of the Vendor's Documents by the $ 2^{nd} $ Defendant from the $ 3^{rd} $ Defendant, could not support the $ 2^{nd} $ Defendant's Professional Negligence in this case. It is therefore clear that the High Court's $ 4^{th} $ Finding of $ 2^{nd} $ Defendant's Negligence is plainly wrong.

We should add that in deciding whether the $ 2^{\mathrm{nd}} $ Defendant's Professional Negligence had been proven on a balance of probabilities in this case, the court should consider all the evidence which existed at the time of the SPA. The court should not decide a case "with the benefit of hindsight" [Approach (With the Benefit of Hindsight)]. If the court has applied an Approach (With the Benefit of Hindsight), this may cause an injustice because parties, including A&S, cannot be penalised in law for not having prescience. K. Was the Plaintiff required to plead in the alternative factual allegations and causes of action against the $ 3^{rd} $ Defendant in the ASOC?

According to the $ 3^{rd} $ Defendant's learned counsel, the ASOC did not plead in the alternative the factual averments and causes of action against the $ 3^{rd} $ Defendant. On this ground alone, the $ 3^{rd} $ Defendant's learned counsel submitted that This Suit against the $ 3^{rd} $ Defendant should be dismissed in limine and the $ 3^{rd} $ Defendant's Appeal should be consequently allowed.

We are not able to accept the above contention by the $ 3^{rd} $ Defendant's learned counsel. Our reasons are as follows:

we reproduce below O 2 r (1), (3) and O 18 r 10 RC- "O2r1 Non-compliance with [RC[

Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these [RC], the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

The Court or Judge may, on the ground that there has been such non-compliance as referred to in paragraph (1), and on such terms as to costs or otherwise as it or he thinks just, bearing in mind the overriding objective of these Rules, exercise its or his discretion under these Rules to allow such amendments, if any, to be made and to make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity. O 18 r 10 Departure

A party shall not in any pleading make an allegation of fact or raise any new ground or claim inconsistent with a previous pleading of his.

Paragraph (1) shall not be taken as prejudicing the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative." (emphasis added). It is clear from O 18 r 10(1) and (2) RC that a pleading may plead in the alternative averments of fact and causes of action if the allegations of fact and causes of action in that pleading are "inconsistent with a previous pleading". We have perused the ASOC. We are satisfied that the ASOC did not plead against the $ 3^{\mathrm{rd}} $ Defendant any inconsistent averment of fact and cause of action. Hence, there was no requirement for the ASOC to plead in the alternative factual allegations and causes of action against the $ 3^{\mathrm{rd}} $ Defendant; and

even if it is assumed that the ASOC had breached O 18 r 10(1) RC {Breach [O 18 r 10(1) RC]}-

by reason of O 2 r 1(1) RC, the court "shall" treat the Breach [O 18 r 10(1) RC] "as an irregularity and shall not nullify the proceedings, any step taken in the proceedings ... judgment or order"; and

the Breach [O 18 r 10(1) RC] can be cured pursuant to O 2 r 1(3) RC because the $ 3^{\mathrm{rd}} $ Defendant was not prejudiced in any manner by the Breach [O 18 r 10(1) RC]. The following evidence and reasons support this decision-

the $ 3^{rd} $ Defendant did not apply to the Plaintiff's solicitors for further and better particulars of the ASOC. The $ 3^{rd} $ Defendant did not also apply to court for further and better particulars of the ASOC under O 18 r 12(3) RC;

(ii) the $ 3^{\mathrm{rd}} $ Defendant had no difficulty in filing a defence in This Suit;

(iii) Mr. Pathmarajah a/l Mylvaganam (DW5), the principal partner in the $ 3^{\mathrm{rd}} $ Defendant, gave evidence at the Trial; and

(iv) the $ 3^{\mathrm{rd}} $ Defendant filed two written submissions to resist This Suit at the High Court. The above decision is in consonance with O 1A and O 2 r 1(2) RC which have provided that in the administration of the RC, including O 18 r 10(1) RC, the court "shall have regard to the overriding interest of justice". L. Had the 3rd Defendant breached Stakeholder's Duties in this case?

Ruling 14.10(3) of the "Rules and Rulings of the Bar Council" [Ruling 14.10(3)] states as follows: "14.10 Stakeholders

Terms of stakeholding to be strictly adhered to A Solicitor acting as stakeholder for 2 or more parties must strictly adhere to the terms of the stakeholding at all times. No money or document held by a Solicitor as stakeholder shall be released, utilised, applied or otherwise dealt with by such Solicitor except in accordance with the terms of the stakeholding or with the express written consent of all relevant parties. For example, a Solicitor holding the final 5% of the purchase price under a sale and purchase agreement prescribed by the Housing Development (Control and Licensing) Regulations 1989 must not (for whatever reason) release the same before the expiry of the stakeholding period(s) and/or in contravention of Schedule G Agreement or Schedule H Agreement as the case may be." (emphasis added).

With regard to the Stakeholder's Duties of an A&S pursuant to a SPA, it suffices for us to rely on the following two cases:

in Kuldip Singh & Anor v Lembaga Letrik Negara & Anor [1983] 1 MLJ 256, at 259, Wan Hamzah J (as he then was) delivered the following judgment of the High Court- "The question is: What is a stakeholder? A stakeholder is a person who receives money and holds it in medio pending the outcome of a future event. In Burt v Claude Cousins & Co [1971] 2 QBD 426 @ p 435 Lord Denning M.R. stated: "If an estate agent or a solicitor, being duly authorized in that behalf, receives a deposit "as stakeholder", he is under a duty to hold it in medio pending the outcome of a future event. He does not hold it as agent for the vendor nor as agent for the purchaser. He holds it as trustee for both to await the event ... Until the event is known it is his duty to keep it in his own hands." (emphasis added); and 64

according to Jeffrey Tan Kok Wha FCJ in the Federal Court in Datuk M Kayveas & Anor v Bar Council [2013] 5 MLJ 640, at [31] - [31] In our system of conveyancing, 'the word 'stake' is in common parlance used to apply to any money to be disposed of in accordance with what may happen in future: and whoever is in possession of the money is often described as a stakeholder. The manner in which the money is to be disposed of depends on the terms on which it is held' (Toh Theam Hock v Kemajuan Perwira Management Corporation Sdn Bhd [1988] 1 MLJ 116 per Hashim Yeop A Sani SCJ, as he then was, delivering the judgment of the former Supreme Court). 'Solicitors who hold funds which are paid to them as stakeholders hold those funds as trustees for the client, whose property the funds remains at all times. Such funds are not held in a contractual or quasi-contractual capacity' (Halbury's Laws of England (4th Ed), Reissue vol 44(1) para 126). '... the obligations arising under a solicitor's undertaking go beyond contractual effect. They are obligations which a solicitor has a professional duty, as well as a contractual duty, to observe' (Bentley and another v Gaisford and another [1997] 1 All ER 842, at p 848 per Sir Richard Scott V-C). When solicitors hold funds as stakeholders, they hold those funds as trustees and not in a contractual or quasi-contractual capacity (see Alimand Computer Systems Ltd v Radcliffes & Co, (1991) Times, 6 November, QBD). 'If an estate agent or solicitor, being duly authorised in that behalf, receives a deposit 'as stakeholder', he is under a duty to hold it in medio pending the outcome of a future event. He does not hold it as agent for the vendor, nor as agent for the purchaser. He holds it as trustee for both to await the evidence: see Skinner v The Trustee of Property of Reed and Others [1967] 2 All ER 1286 at p 1287 [1967] Ch 1194 at p 1200) per Cross J. Until the event is known, it is his duty to keep it in his own hands; or to put it on deposit at the bank ...' (Burt v Claude Cousins & Co Ltd [1971] 2 QB 426 per Lord Denning MR in his dissenting judgment, which statement of the law was accepted by the House of Lords in Sorrell v Finch [1977] AC 728, and referred in Kuldip Singh v Lembaga Letrik Negara & Anor, Dato Seri Au Ba Chi v Malayan United Finance Bhd & Anor and OCBC Bank (Malaysia) Bhd v Lee Lee Fah & Ors and another appeal, amongst others). 'Once a solicitor holds money in trust for his client or any other party for a purpose, it does not matter whether the amount is sufficient to be utilised for that purpose. The money remains to be in trust' (Selvaratnam a/l Vellupillai v Dr Jayabalan Karrupiah [2009] 1 MLJ 794 per Zaki Azmi CJ, delivering the majority judgment of the court). Therefore, it is beyond argument that a stakeholder is a trustee and that the breach of a stakeholding term is not just a breach of undertaking but also a breach of trust." (emphasis added).

Premised on the cases cited in the above paragraph 67, an A&S who holds funds with regard to a SPA as a stakeholder, has fiduciary duties as a trustee in respect of those funds. In this judgment we shall refer to these Stakeholder's Duties as "Duties (Stakeholder/Trustee)". In our view, an A&S shall perform the Duties (Stakeholder/Trustee) as follows:

it is necessarily implied that an A&S has to fulfil honestly the Duties (Stakeholder/Trustee) {Honest Performance [Duties (Stakeholder/Trustee)]}. It is axiomatic that an A&S holding money as a Stakeholder cum trustee (Stakeholder/Trustee), as a fiduciary, should act honestly at all times with regard to the execution of the Duties (Stakeholder/Trustee); and

in accordance with Ruling 14.10(3), there should be a strict performance of the Duties (Stakeholder/Trustee) {Strict Performance [Duties (Stakeholder/Trustee)]}.

We reproduce below the relevant parts of Clauses 2 and 12.1 of the SPA: "Clause 2. PAYMENT OF [BALANCE (PRICE)]

1 The [Balance (Price)] as stated in Section 10 of the First Schedule ... shall be paid by the Purchaser [Plaintiff] to the Stakeholders [ $ ^{3 rd} $ Defendant] within the period as stated in Section 10 of the First Schedule (hereinafter referred as "the Completion Date").

4 The Stakeholders are hereby authorised to deal with the [Balance (Price)] in the following manner:-

subject to delivery of vacant possession of the Property to the Purchaser, to release such balance thereof to the Vendor upon presentation of the Transfer (as defined in Clause 4.1 hereof) and the charge (in favour of the Purchaser's Financier, if any) for registration at the relevant land office/registry, PROVIDED that the Property is free from encumbrance (other than encumbrances/caveat created by the Purchaser and/or the Purchaser's Financier) and the Transfer is registrable.

5 For the avoidance of doubt, the Purchaser's Solicitors or the Purchaser's Financier's Solicitors, as the case may be, shall present the Transfer and the charge (if any) for registration within fourteen (14) working days upon receipt of the Vendor's Documents [as defined in Clause 3.1(b) hereof] by the Purchaser's Solicitors or the Purchaser's Financier's Solicitors, as the case may be, failing which the Transfer and the charge (if any) is deemed presented for registration within fourteen (14) working days upon receipt of the Vendor's Documents by the Purchaser's Solicitors or the Purchaser's Financier's Solicitors, as the case may be.

6 Notwithstanding Clause 2.5 above, neither the Purchaser's Solicitors nor the Purchaser's Financier's Solicitors are obliged to present the Transfer for registration in the event that:- the search conducted against the computerised records of the Property at the land registry/land office, conducted by the Purchaser's Solicitors and/or the Purchaser's Financier's Solicitors on the date of presentation of the Transfer for registration reveals that apart from the charge/encumbrances as spelt out in Section 5 of the First Schedule and/or the private caveats and/or other encumbrances lodged by the Purchaser and/or the Purchaser's Financier's Solicitors, there are caveats or encumbrances of whatsoever nature over the Property. Then, in such event, the Completion Date shall automatically be suspended for the equivalent of time required to remove such caveats/encumbrances and to provide documentary evidence of such removal to the Purchaser's Solicitors nor the Purchaser's Financier's Solicitors; ...

1 Vacant possession of the Property shall be delivered to the Purchaser by the Vendor within four (4) working days upon receipt by the Stakeholders of the [Balance (Price)] and Late Payment Interest (if any) together with the apportioned outgoings, failing which the Vendor shall pay to the Purchaser the liquidated damages calculated at the Prescribed Rate on a daily basis on the [Price] from the day next following the expiry of the said four (4) working days date to the date of actual delivery of vacant possession of the Property Provided that this shall be without prejudice to the Purchaser's rights to apply for specific performance under Clause 7 herein." (emphasis added).

With regard to the interpretation of the SPA in this case, we express the following view:

the SPA was a commercial contract and should be construed by the court in a manner which makes business common sense [Business Common Sense Interpretation (Commercial Contract)] - please refer to the judgment of Zainun Ali FCJ in the Federal Court in SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, at [78];

the interpretation of the SPA is a question of law to be decided by the court only and not by factual and/or expert witnesses through their oral evidence - please refer to the Court of Appeal's judgment delivered by Gopal Sri Ram JCA (as he then was) in NVJ Menon v The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96, at 103 to 104; and

according to the Business Common Sense Interpretation (Commercial Contract) -

by reason of Clause 2.1, the $ 3^{\mathrm{rd}} $ Defendant had been appointed as a stakeholder for the Balance (Price);

Clause 2.6 overrides Clause 2.5 due to the express opening words of "Notwithstanding Clause 2.5 above" in Clause 2.6;

according to Clause 2.6(i) -

if a search of the Land is conducted by the $ 2^{\mathrm{nd}} $ Defendant on the date of presentation of the MOT [Land Search (Date of Presentation of MOT)]; and

(ii) if the Land Search (Date of Presentation of MOT) reveals a private caveat or encumbrance (not from the Plaintiff) (Encumbrance) - the "Completion Date" [defined in section 11 of the First Schedule to the SPA as three months from the date of the SPA (13.11.2017)] "shall automatically be suspended" for a period of time which would enable the Encumbrance to be removed; and

if Clause 2.6 does not apply, Clauses 2.4(c) and 2.5 can only apply in the following circumstances-

the $ 3^{\mathrm{rd}} $ Defendant can only release the Balance (Price) to the Impostor if the following two conditions are fulfilled cumulatively-

(i)(a) the Land is free from any Encumbrance and the MOT can be registered. Such a condition is clear from the word in capital (PROVIDED) and the phrase {the Property is free from [Encumbrance] ... and the Transfer is registrable) in Clause 2.4(c); AND

(i)(b) the Impostor is able to deliver vacant possession of the Land [Vacant Possession (Land)] to the Plaintiff. This condition is clear from the opening words (subject to delivery of vacant possession) in Clause 2.4(c). Clause 12.1 also supports the imposition of this condition because if the Balance (Price) is to be released by the $ ^{3 rd} $ Defendant to the Impostor, the Impostor is obliged by Clause 12.1 to deliver Vacant Possession (Land) to the Plaintiff. In this regard, the rule of harmonious construction requires both Clause 2.4(c) and 12.1 to apply together in harmony; and

(ii) Clause 2.5 only provides for when the MOT is deemed to have been presented to the $ 5^{th} $ Defendant for registration. Clause 2.5, in itself, cannot override Clause 2.4(c). This is because the release of the Balance (Price) by the $ 3 ^{rd} $ Defendant to the Impostor is specifically provided in Clause 2.4(c) and by reason of the maxim of construction, generalia specialibus non derogant, the specific provision of Clause 2.4(c) should prevail over Clause 2.5. If Clause 2.5 overrides Clause 2.4(c) -

(ii)(a) the above interpretation does not make any business common sense because the $ 3^{\mathrm{rd}} $ Defendant could then unlawfully evade its Duties (Stakeholder/Trustee) under Clause 2.4(c) by releasing the Balance (Price) to the Impostor notwithstanding the existence of an Encumbrance and notwithstanding the Impostor's inability to deliver Vacant Possession (Land); and

(ii)(b) the above construction would facilitate fraud, as had happened in this case.

Firstly, by reason of the $ 3^{rd} $ Defendant's Land Search (19.3.2018), the $ 3^{rd} $ Defendant had actual knowledge on 19.3.2018 regarding the Encumbrance in the form of the Registrar's Caveat/NKC's Private Caveat $ [3^{rd} $ Defendant's Actual Knowledge (Encumbrance, 19.3.2018]). With the $ 3^{rd} $ Defendant's Actual Knowledge (Encumbrance, 19.3.2018) -

the Honest Performance [Duties (Stakeholder/Trustee)] mandatorily required the $ 3^{rd} $ Defendant not to release the Balance (Price) after the acquisition of the $ 3^{rd} $ Defendant's Actual Knowledge (Encumbrance, 19.3.2018); and

the Strict Performance [Duties (Stakeholder/Trustee)] was breached by the $ 3^{rd} $ Defendant when the $ 3^{rd} $ Defendant did not comply with Clause 2.4(c) [as construed in the above sub-paragraph 70(3)(d)] and unlawfully released a substantial part of the Balance (Price) to the Impostor. In this regard, as explained in the above sub-paragraph 70(3)(d), the $ 3^{rd} $ Defendant's interpretation of Clause 2.5 in the $ 3^{rd} $ Defendant's Letter (28.2.2018), was clearly erroneous.

Secondly, there is a grave doubt about the Honest Performance [Duties (Stakeholder/Trustee)] by the $ 3 ^{rd} $ Defendant in this case because -

the $ 3^{\mathrm{rd}} $ Defendant did not furnish any documentary proof regarding the $ 3^{\mathrm{rd}} $ Defendant's release of a total sum of RM3,126,830.00 to the Impostor and the Impostor's nominees $ [3^{\mathrm{rd}} $ Defendant's Total Release (Impostor)]; and

there are material contradictions with regard to the following sums of money-

the total sum of money allegedly authorised by the Impostor for the $ 3 ^{rd} $ Defendant to release in the Impostor's Letter (20.3.2018);

the sum of RM800,000.00 allegedly received in cash by the Impostor [as stated in the Impostor's Letter (21.3.2018)]; and

the $ 3^{\mathrm{rd}} $ Defendant's Total Release (Impostor).

In view of the reasons stated in the above paragraphs 70 to 72, the learned High Court Judge had correctly decided in this case that the Plaintiff had discharged the Legal/Evidential Burden to prove on a balance of probabilities the $ 3^{\mathrm{rd}} $ Defendant's Breach (Stakeholder Duties).

Additionally or in the alternative, sitting as an appellate panel, we are not satisfied that the $ 3^{rd} $ Defendant had managed to persuade us that the High Court's finding of fact regarding the $ 3^{rd} $ Defendant's Breach (Stakeholder Duties), was plainly wrong (so as to justify appellate intervention). M. Did the $ 3^{rd} $ Defendant owe a duty of care to the Plaintiff (who was not the $ 3^{rd} $ Defendant's client)?

We accept the contention by the $ 3^{rd} $ Defendant's learned counsel that with regard to a tort of professional negligence, the $ 3^{rd} $ Defendant did not owe a duty of care to the Plaintiff. This is clear from the following judgment of Azahar Mohamed FCJ (as he then was) in the Federal Court case of Pushpaleela a/p R Selvarajah & Anor v Rajamani d/o Meyappa Chettiar and other appeals [2019] 2 MLJ 553, at [95] and [124]: [95] ... Leave to appeal was granted by this court on 11 October 2016. The questions of law for which leave to appeal was granted by the Federal Court are as follows: Question 1 - The third and fourth defendants' appeal (first appeal): In deciding whether a solicitor who acted for a fraudster owner of land who sold the said land owes a duty of care to the real owner of the land, whether the Court of Appeal decision in Yap Ham Seow v Fatimawati bt Ismail & Ors and another appeal [2014] 1 MLJ 645 or the Court of Appeal decision below is the correct decision. [124] Hence, based on all the above, we conclude that our court should not impose a duty of care on solicitors who acted for a fraudster owner of land who sold the said land, towards the real owner of the land, as there is no foreseeability, no proximity, and there are policy considerations against imposing such a duty." (emphasis added).

There is another reason why the $ 3 ^{rd} $ Defendant owed no duty of care to the Plaintiff in this case. As explained in the above paragraphs 66 to 68, in respect of the Balance (Price), the $ 3 ^{rd} $ Defendant owed fiduciary Duties (Stakeholder/Trustee) to both the Plaintiff and Impostor. Consequently, with regard to the Balance (Price), the appointment of the $ 3 ^{rd} $ Defendant as the stakeholder for the Balance (Price), in itself, would negate the existence of any duty of care which could be owed by the $ 3 ^{rd} $ Defendant to the Plaintiff.

In view of the reasons stated in the above paragraphs 75 and 76, the learned High Court Judge committed the following two errors:

an error of law in failing to decide that the $ 3^{rd} $ Defendant did not owe a duty of care to the Plaintiff [High Court's Legal Error ( $ 3^{rd} $ Defendant)]; and

a plain error of fact that the $ 3^{rd} $ Defendant had committed professional negligence with regard to the Plaintiff [High Court's Plain Factual Error ( $ 3^{rd} $ Defendant)].

Section 72 of the Courts of Judicature Act 1964 (CJA) provides as follows: "s 72. Immaterial errors No judgment or order of the High Court, or of any Judge, shall be reversed or substantially varied on appeal, nor a new trial ordered by the Court of Appeal, on account of any error, defect, or irregularity, whether in the decision or otherwise not affecting the merits or the jurisdiction of the Court." (emphasis added). We have no hesitation to decide that notwithstanding the High Court's Legal Error (3rd Defendant) and High Court's Plain Factual Error (3rd Defendant), the High Court's Decision against the 3rd Defendant [High Court's Decision (3rd Defendant)] could be justified due to the 3rd Defendant's Breach (Stakeholder Duties) - please refer to the above Part L. Accordingly, by virtue of s 72 CJA, the High Court's Decision (3rd Defendant) should not be set aside on the ground of the High Court's Legal Error (3rd Defendant) and High Court's Plain Factual Error (3rd Defendant). This is because the High Court's Legal Error (3rd Defendant) and High Court's Plain Factual Error (3rd Defendant) did not affect the "merits or the jurisdiction" of the High Court's Decision (3rd Defendant) within the meaning of s 72 CJA. In Abdul Rahman bin Soltan & Ors v FELDA Land Development Authority & Anor and 2 other appeals [2023] 4 MLJ 318, at [54], the Court of Appeal had invoked s 72 CJA to "cure" an error of the High Court (in making the High Court's decision which was the subject matter of the appeal) which did not affect the "merits or the jurisdiction" of the High Court.

Without descending to semantics, our understanding of Factual Causation and Legal Causation is as follows:

Factual Causation refers to the question of whether a plaintiff has discharged the onus to satisfy the court that a defendant's tort or breach of contract was the "cause in fact" of the plaintiff's injury, loss and/or damage [Injury/Loss/Damage] for which the defendant is liable to the plaintiff; and

Legal Causation concerns a plaintiff's burden to satisfy the court that the plaintiff's claim for the Injury/ Loss/Damage is-

not too remote to be recovered in law from a defendant; and

not barred by any policy consideration.

With regard to Factual Causation -

certain cases had applied the "but for" test, namely, would the plaintiff have suffered the Injury/Loss/Damage "but for" the defendant's wrongful act? - please refer to the High Court's judgment in Ravi A/L Ratnam v Ghandi Rajan A/L Arjunan & Ors [2020] 7 MLJ 591, at [23] and [24];

in the Federal Court case of Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389, at [4], Steve Shim CJ (Sabah & Sarawak) applied a "common sense" and "fair, just and reasonable" approach [Approach (Common Sense/Fair/Just/Reasonable)]- [4] ... The expression 'causa causans' merely means a cause that causes (see Smith, Hogg & Company Ltd v Black Sea & Baltic General Insurance Co Ltd [1940] AC 997 at p 1003). There may be more than one cause that causes a particular injury. From the passage cited above, it would appear that Mr Abraham [counsel] was of the view that causa causans merely meant an effective cause. It has been held that such an expression should be avoided as the issue of causation does not necessarily turn upon it (see Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 23 at p 29). Causation is a matter to be determined by common sense and what the law regards as fair, just and reasonable in the circumstances of a particular case (see Fairchild (suing on her own behalf) etc v Glenhaven Funeral Services Ltd & Ors, etc [2002] 3 WLR 89, March v E & MH Stramare Pty Ltd & Anor (1991) 99 ALR 423 at p 429). The relevant question is whether the acts and/or omissions of a particular defendant made a material contribution to the harm suffered by the plaintiff (see Bonnington Castings v Wardlaw [1956] AC 613 at pp 620, 623; Nicholsons & Ors v Atlas Steel Foundary & Engineering Co Ltd [1957] 1 WLR 631 at p 624; Fairchild (suing on her own behalf) etc v Glenhaven Funeral Services; Chappel v Hart (1998) 156 ALR 517 at pp 524-524).” (emphasis added); and

the "material contribution" test (Material Contribution Test) was laid down by Richard Malanjum CJ (Sabah & Sarawak) (as he then was) when he delivered the judgment of the Federal Court in Wu Siew Ying t/a Fuh Lin Bud-Grafting Centre v Gunung Tunggal Quarry & Construction Sdn Bhd & Anor [2011] 2 MLJ 1, at [36], as follows- [36] In the light of these authorities, we are of the view that the 'but for' test is not the exclusive test to be applied to determine causation of the injury. It can still be applied but not in circumstance when there are two or more acts or events or factors that could or contribute to the injury of the plaintiff. This instant case is a case in point where evidence is established that there are a multiple of factors that could bring about the injury to the plaintiff. And to decide whether there is causation in these circumstances the approach of Lord Reid in Bonnington Casting Ltd v Wardlaw: whether any of these acts or events or factors has materially contributed to the plaintiff's injury should be adopted. What is a material contribution must be a question of degree. This is for the court to decide but certainly anything that is trifle is not material. As Lord Reid in the same case expounded: 'contribution which comes within the exception of de minimis non curat lex (the law does not concerns itself with trifles) is not material.' (emphasis added).

In this case, there are three causes for the Plaintiff's Loss, ie. -

the Fraud committed by the Impostor in this case;

the $ 5^{\mathrm{th}} $ Defendant's Torts; and

the $ 3^{\mathrm{rd}} $ Defendant's Breach (Stakeholder Duties).

In respect of Factual Causation, we are not in favour of applying the "but for" test in this case. Our reasons are as follows:

our apex court had applied the Approach (Common Sense/Fair/Just/Reasonable) and Material Contribution Test in Majlis Perbandaran Ampang Jaya and Wu Siew Ying respectively. From the view point of the doctrine of stare decisis, the Court of Appeal is bound by these two Federal Court judgments; and

if we have applied the "but for" test in this case, this will cause an injustice to the Plaintiff because "but for" the Fraud, the Plaintiff's Loss would not have been incurred. Worse still, this will allow the Land Authorities and A&S (who had accepted appointment as stakeholders to hold funds), to evade liability for their wrongdoing (as in this case).

Regarding Legal Causation for the tort of negligence, in an appeal to the Privy Council from Australia, Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No.1) [1961] 1 All ER 404, at 413, Viscount Simonds applied the "reasonable foresight" test. The reasonable foresight test in The Wagon Mound No.1 had been adopted by Gill J (as he then was) in the High Court case of Jaswant Singh v Central Electricity Board [1967] 1 MLJ 272, at 275. N(1). Was the Plaintiff's Loss "caused" in fact and in law by the 5th Defendant's Torts?

We are of the view that in respect of the $ 5^{\mathrm{th}} $ Defendant's Torts, the $ 5^{\mathrm{th}} $ Defendant was only liable to the Plaintiff for the Balance (Price) (RM3,735,200.00) and not for the Deposit (SPA) (RM2,801,400.00). This decision is premised on the following evidence and reasons:

the $ 2^{\mathrm{nd}} $ Defendant's Land Search (8.8.2017) was done before the commission of the $ 5^{\mathrm{th}} $ Defendant's Torts {before the 5th Defendant issued Version 2 [RDT/IDT (Land) on 19.9.2017]. The SPA was signed on 1.11.207 based on the 2nd Defendant's Land Search (8.8.2017). Applying the Approach (Common Sense/Fair/Just/Reasonable) -

as a matter of common sense-

premised on, among others, the $ 2^{nd} $ Defendant's Land Search (8.8.2017), the Deposit (SPA) was paid by the $ 2^{nd} $ Defendant (on behalf of the Plaintiff), first to the $ 3^{rd} $ Defendant and then to the Impostor {Payment [Deposit (SPA)]} . In other words, the Payment [Deposit (SPA)] was not "caused in fact" by the $ 5^{th} $ Defendant's Torts; and

(ii) the $ 2^{nd} $ Defendant (on the Plaintiff's behalf) paid the Balance (Price) to the $ 3^{rd} $ Defendant (as stakeholders under the SPA) on 12.2.2018 {Payment [Balance (Price)]} , after the $ 2^{nd} $ Defendant had received from the $ 3^{rd} $ Defendant, among others, Version 2 [IDT (Land)]. Version 2 [IDT (Land] included the $ 1^{st} $ Defendant's NRIC number (not the Deceased's NRIC number). As a matter of common sense, if the $ 2^{nd} $ Defendant had not received Version 2 [IDT (Land)], the Payment [Balance (Price)] would not have been made by the $ 2^{\mathrm{nd}} $ Defendant. Hence, common sense dictates that the Balance (Price) was the Plaintiff's Loss which was "caused in fact" by the $ 5^{\mathrm{th}} $ Defendant's Torts; and

it is only fair, just and reasonable for the $ 5^{\mathrm{th}} $ Defendant to be liable to the Plaintiff for the Balance (Price). This was because the Payment [Balance (Price)] was made due to the issuance of Version 2 [IDT (Land)]. It is not fair, just and reasonable for the $ 5^{\mathrm{th}} $ Defendant to be liable to the Plaintiff for the Deposit (SPA) because the Payment [Deposit (SPA)] was not "caused in fact" by Version 2 [IDT (Land)]; and

applying the Material Contribution Test, the $ 5^{\mathrm{th}} $ Defendant's Torts did not materially contribute to the Payment [Deposit (SPA)]. However, the $ 5^{\mathrm{th}} $ Defendant's Torts, by way of the issuance of Version 2 [IDT (Land)], had materially contributed to the Payment [Balance (Price)].

The Plaintiff's Loss in the form of the Balance (Price) was reasonably foreseeable as a result of the $ ^{5th} $ Defendant's Torts. We are not aware of any policy consideration which would exclude the $ ^{5th} $ Defendant's liability to the Plaintiff for the Balance (Price). Accordingly, the Plaintiff had proven against the $ ^{5th} $ Defendant the Legal Causation for the Plaintiff's Loss in the form of the Balance (Price). N(2). Had the Plaintiff proven the Balance (Price) as the Plaintiff's Loss which was "caused" in fact and in law by the 3 $ ^{rd} $ Defendant's Breach (Stakeholder Duties)?

We have no hesitation to decide that the Plaintiff had proven against the $ 3 ^{rd} $ Defendant that the Plaintiff's Loss in the form of the Balance (Price), was "caused in fact" by the $ 3 ^{rd} $ Defendant's Breach (Stakeholder Duties). The following reasons support this decision:

an invocation of the Approach (Common Sense/Fair/Just/Reasonable) would reveal the following decision-

in accordance with common sense, the Plaintiff's Loss in the form of the Balance (Price) was due to the $ 3 ^{rd} $ Defendant's Breach (Stakeholder Duties); and

it is only fair, just and reasonable for the $ 3^{rd} $ Defendant to be liable to the Plaintiff for the Balance (Price) because the $ 3^{rd} $ Defendant did not perform the Duties (Stakeholder/Trustee) in an honest and strict manner - please refer to Part L; and

undoubtedly, the $ 3^{\mathrm{rd}} $ Defendant's Breach (Stakeholder Duties) materially contributed to the Plaintiff's Loss in the form of the Balance (Price).

The Plaintiff had proven Legal Causation against the $ 3^{rd} $ Defendant with regard to the Plaintiff's Loss in the form of the Balance (Price). There is no policy consideration to exclude the $ 3^{rd} $ Defendant's liability for the Plaintiff's Loss. On the contrary, policy considerations with regard to role and function of A&S who act as stakeholders, strongly support the imposition of liability on the $ 3^{rd} $ Defendant for the Plaintiff's Loss in this case. O. Could the High Court order the Plaintiff to be indemnified in this case?

In the Federal Court case of Taiping Poly (M) Sdn Bhd v Wong Fook Toh & Ors [2011] 3 CLJ 837, at [18], Richard Malanjum CJ (Sabah & Sarawak) (as he then was) had explained that when a tortious claim is allowed by the court, the court should award a sum of compensatory damages which should, as nearly as possible, put a victim of the tort in the same position as the victim would have been in if the tort had not been committed. This is the general principle of restitutio in integrum. Clearly, for the $ ^{5} $ th Defendant's Torts, the Plaintiff is only entitled to damages for the Plaintiff's Loss, namely, the Balance (Price) (RM3,735,200.00).

With regard to the $ 3^{rd} $ Defendant's Breach (Stakeholder's Duty), the $ 3^{rd} $ Defendant, as Stakeholder/Trustee has a fiduciary duty to account for the Balance (Price). This duty to account has been described by certain cases as "equitable damages" or "equitable compensation".

Section 77 of the Contracts Act 1950 (CA) provides as follows: "s 77. "Contract of indemnity" A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a "contract of indemnity"." (emphasis added). In this case, there is no indemnity contract as understood in s 77 CA. The difference between a remedy of damages and an indemnity order had been explained by Arifin Zakaria FCJ (as he then was) in the Federal Court in Malayan Banking Bhd v Basarudin Ahmad Khan [2007] 1 MLJ 613, at [15], as follows: [15] By contrast, indemnity is a right which has to be provided for in the original bargain between the parties. It is a formal legal acceptance of responsibility for damage or loss. Indemnity springs from contract express or implied (see P Ramanatha Aiyur's The Law Lexicon (2nd Ed)). As stated earlier indemnity and damages as incidence to breach of contract or tortious act are not synonymous but distinct." (emphasis added).

As explained in the above paragraphs 88 to 90, the learned High Court Judge could not order the $ 2^{n d} $ and $ 3^{r d} $ Defendants to indemnify the Plaintiff in this case. P. What remedies should be awarded in this case? P(1). Joint and several liability of the $ 3^{\mathrm{rd}} $ and $ 5^{\mathrm{th}} $ Defendants

As the Plaintiff's Loss in the form of the Balance (Price) had been proven against the $ 3^{rd} $ and $ 5^{th} $ Defendants [please refer to the above Parts N(1) and N(2)] , both the $ 3^{rd} $ and $ 5^{th} $ Defendants are jointly and severally liable to the Plaintiff with regard to the Balance (Price). It should be noted that the Plaintiff was not entitled to double recovery of the Balance (Price) from each of the $ 3^{rd} $ and $ 5^{th} $ Defendants. P(2). Should the High Court assess damages or take an account in this case?

In our view, since the Plaintiff's Loss in the form of the Balance (Price) had been proven in this case, there is therefore no reason for the High Court to -

assess damages to be paid by the $ 3^{\mathrm{rd}} $ and $ 5^{\mathrm{th}} $ Defendants to the Plaintiff pursuant to O 37 RC; and

take an account under O 43 RC of the sum of money to be returned by the $ 3 ^{rd} $ Defendant to the Plaintiff. P(3). Is the Plaintiff be entitled to interest on the Balance (Price)?

We reproduce below s 11 of the Civil Law Act 1956 (CLA) and O 42 r 12 RC: "s11 Power of Courts to award interest on debts and damages In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in this section -

shall authorize the giving of interest upon interest;

shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or

shall affect the damages recoverable for the dishonour of a bill of exchange. O 42 r 12 RC Interest on judgment debts Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment debt shall carry interest at such rate as the Chief Justice may from time to time determine or at such other rate not exceeding the rate aforesaid as the Court determines, such interest to be calculated from the date of judgment until the judgment is satisfied." (emphasis added).

It is not disputed the court has a discretion under s 11 CLA to award pre-judgment interest - please refer to the judgment of Raja Azlan Shah FJ (as His Majesty then was) in the Federal Court case of Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109, at 120.

In this case, the ASOC only prayed for pre-judgment interest from the date of the filing of This Suit (20.6.2018). In view of this prayer in the ASOC, we exercise our discretion pursuant to s 11 CLA and O 42 r 12 RC to order interest at the rate of 5% per annum (pa) to be paid, jointly and severally, by the $ 3 ^{rd} $ and $ 5 ^{th} $ Defendants to the Plaintiff as follows:

interest at the rate of 5% pa on the sum of RM3,735,200.00 from 20.6.2018 (date of filing of This Suit) until the date of the $ ^{3 rd} $ Defendant's payment of the sum of RM608,370.00 to the Plaintiff [Date (Payment of RM608,370.00)]; and

interest at the rate of 5% pa on the sum of RM3,126,830.00 from the Date (Payment of RM608,370.00) until full payment. Needless to say, if there was no payment of the sum of RM608,370.00, interest at the rate of 5% pa shall be imposed on the sum of RM3,735,200.00 from 20.6.2018 until date of full payment. Q. Outcome of the 3 Appeals

We decide these 3 Appeals as follows:

in view of the High Court's $ 1^{\mathrm{st}} $ Plain Factual Error $ (5^{\mathrm{th}} $ Defendant), High Court's $ 2^{\mathrm{nd}} $ Plain Factual Error $ (5^{\mathrm{th}} $ Defendant) and High Court's Legal Error $ (5^{\mathrm{th}} $ Defendant), the Plaintiff's Appeal (against the $ 5^{\mathrm{th}} $ Defendant) is allowed with costs;

the $ 2^{nd} $ Defendant's Appeal (against the Plaintiff) is allowed with costs due to the High Court's Legal Error $ (2^{nd} $ Defendant), High Court's Error of Mixed Law and Fact $ (2^{nd} $ Defendant) and High Court's 4 Plain Factual Errors $ (2^{nd} $ Defendant); and

the $ 3^{\mathrm{rd}} $ Defendant's Appeal (against the Plaintiff) is dismissed with costs - please refer to the above Part L. R. Costs

The Court of Appeal has an unfettered discretion under s 70 CJA read with rr 54 and 96 of the Rules of the Court of Appeal 1994 to award costs.

With regard to the Plaintiff's Appeal, we order the $ ^{5th} $ Defendant to pay to the Plaintiff costs here and below in a sum of RM100,000.00. This amount of costs takes into consideration that the $ ^{5th} $ Defendant had breached the Statutory Duty (Section 378 NLC) and had undermined the Essential Features (Torrens System).

The $ 2 ^{nd} $ Defendant's Appeal (against the Plaintiff) is allowed with costs here and below in an amount of RM100,000.00 to be paid by the Plaintiff to the $ 2 ^{nd} $ Defendant (subject to allocatur fee).

With regard to the $ 3^{\mathrm{rd}} $ Defendant's Appeal, we take note of the following two disconcerting considerations:

the $ 3^{\mathrm{rd}} $ Defendant did not fulfil the Duties (Stakeholder/Trustee) in an honest and strict manner - please refer to the above Part L; and

the $ 3^{\mathrm{rd}} $ Defendant had not complied with Ruling 14.10(3). It is to be noted that DW5 was called to the Malaysian Bar on

6.1985. At the time of the SPA in 2017, DW5 was a senior Conveyancer with about 32 years of legal practice. In view of the above two matters, we are constrained to order the $ 3 ^{rd} $ Defendant to pay to the Plaintiff costs for the $ 3 ^{rd} $ Defendant's Appeal in a sum of RM100,000.00 (subject to allocatur fee).

Premised on the above evidence and reasons, we order as follows:

the Plaintiff's Appeal (against the $ 5^{\mathrm{th}} $ Defendant) is allowed;

the $ 2^{\mathrm{nd}} $ Defendant's Appeal (against the Plaintiff) is allowed;

the $ 3^{\mathrm{rd}} $ Defendant's Appeal (against the Plaintiff) is dismissed;

the $ 3^{\mathrm{rd}} $ and $ 5^{\mathrm{th}} $ Defendants shall, jointly and severally, pay a sum of RM3,735,200.00 to the Plaintiff with interest as stated in the above paragraph 96;

the High Court's orders of indemnity and assessment of damages (against the $ 2^{n d} $ and $ 3^{r d} $ Defendants) are set aside;

costs shall be paid in accordance with the above paragraphs 99 to 101; and

save as ordered above, the High Court's Decision is affirmed. S. Conclusion

A draft copy of this judgment (Draft) had been previously forwarded by me to Supang Lian and Ismail bin Brahim JJCA. Both my learned sister and brother had agreed with the Draft.

We end this judgment with two earnest hopes, namely-

the Land Authorities should take all reasonable steps to ensure that the correct NRIC numbers of registered proprietors of land are inserted in the RDTs and IDTs so as to prevent an emanation of land fraud from the Land Office. In this regard, the Land Authorities should "clean the Augean stables" before public confidence in the Land Authorities and the Essential Features (Torrens System) (upon which our NLC is based) is undermined; and

an A&S who accepts an appointment to hold funds as a stakeholder, should ensure an honest and strict fulfilment of the A&S's fiduciary Duties (Stakeholder/Trustee) with regard to the funds. DATE: 30 MARCH 2026 WONG KIAN KHEONG Judge Court of Appeal Appeal No.: W-01(NCvC)(W)-119-03/2023 Counsel for Mr. Justin Voon, Mr. Mark Lau, Mr. Kristen Tan & the Appellant: Ms. Cheryl Leong (Messrs Sreenevasan Young) Counsel for Dato' Ambiga Sreenevasan, Ms. Shireen Selvaratnam, the Respondent: Mr. Preakas Sampunathan, Mr. Edward Lee Way Yang, Ms. Cassandra Lee, Puan Nur Azyan bt. Khairul & Mr. Miguel Sequerah (Messrs Cassandra Lee Chambers) Appeal No.: W-01(NCvC)(W)-123-03/2023 Counsel for Dato' Ambiga Sreenevasan, the Ms. Shireen Selvaratnam, Appellant: Mr. Preakas Sampunathan, Mr. Edward Lee Way Yang, Ms. Cassandra Lee, Puan Nur Azyan bt. Khairul & Mr. Miguel Sequerah (Messrs Cassandra Lee Chambers) Counsel for Puan Joennly @ Siti Badariah Mohd Yusof the (Senior Federal Counsel) & Respondent: Puan Norazlin bt. Mohamad Yusoff (Federal Counsel) (Attorney General's Chambers) Appeal No.: W-01(NCvC)(W)-140-03/2023 Counsel for Mr. T. Gunaseelan & Mr. Keshvinjeet Singh the Appellant: (Messrs G Gunaseelan & Associates) Counsel for Dato' Ambiga Sreenevasan, the Ms. Shireen Selvaratnam, Respondent: Mr. Preakas Sampunathan, Mr. Edward Lee Way Yang, Ms. Cassandra Lee, Puan Nur Azyan bt. Khairul & Mr. Miguel Sequerah (Messrs Cassandra Lee Chambers)