Tetuan Patrick Dass & Co, Kuala Lumpur v 1. ) Tetuan Kalai & Partners, Petaling Jaya (22NcVc-450-08/2015)

S. SHUNMUGAM A/L SETHURAMAN [NO KP: 660329-10-7051]

GOVINDASAMY A/L SELLALIAH [NO KP: 580528-10-5139]

3.

4.

PENDAFTAR HAKMILIK TANAH/ PENTADBIR TANAH DAERAH PETALING ... DEFENDAN GROUNDS OF JUDGMENT [1] By an agreement dated 15.12.2004 entered between the Plaintiff and the 2nd Defendant, as administrator of the estate of Sellaliah a/l Murugayan, (“SPA”) the Plaintiff agreed to purchase and the 2nd Defendant agreed to sell a plot of land belonging to the said estate known as Lot PT No. 7514, Tempat Bukit Cheraka, Mukim Bukit Raja, Daerah Petaling, Negeri Selangor Darul 2 Ehsan, held under document of title No. HS (M) 703 (“the said land”). The agreed price was RM500,000. [2] The 2nd Defendant refused to complete the agreement and transfer the said land to the Plaintiff. The Plaintiff then commenced an action against the 2nd Defendant in the High Court of Malaya at Shah Alam vide Civil Suit No: 22NCVC-439-2011 for, inter alia, a decree of specific performance of the SPA. [3] On 21.6.2012, the Plaintiff obtained judgment in default against the 2nd Defendant for, inter alia, specific performance of the SPA. By an application dated 27.9.2013, the 2nd Defendant applied to set aside the said judgment in default, but the High Court dismissed that application with cost on 7.5.2014. The 2nd Defendant was at all material time represented by the 3rd Defendant during the proceedings to set aside the said judgment dated 21.6.2012. The 2nd Defendant appealed that decision of the High Court to the Court of Appeal but subsequently discontinued the appeal. Hence, the judgment in default dated 21.6.2012 became final, and was valid and subsisting against the 2nd Defendant at all material time, and the 2nd Defendant had full knowledge of the same. [4] After the 2nd Defendant’s discontinuance of his appeal to the Court of Appeal, the Plaintiff, in reliance of the order dated 21.6.2012, sought to register its name as the legal owner of the said land, by way of registering the 3 transfer of title at the 5th Defendant’s office, but the transfer was rejected. The 5th Defendant informed the Plaintiff that as of 10.3.2014, the 1st Defendant was the registered owner of the said land. The change of ownership of the said land from the 2nd Defendant to the 1st Defendant was done during the course of proceedings to set aside the aforesaid judgment in default decreeing specific performance of the SPA was in progress. The transfer of ownership of the said land by the 2nd Defendant to the 1st Defendant was done without any notice or information to the Plaintiff. [5] The Plaintiff claims title to the said land and states that the transfer of title to the 1st Defendant is defeasible as the same was procured by way of fraud and/or in contempt of court perpetrated by the 1st, 2nd, 3rd and 4th Defendants. [6] The Plaintiff has particularized the fraud in paragraph 14 of the Statement of Claim, and they are:

By letter dated 17.12.2012, the Plaintiff’s solicitors had notified and informed the 1st Defendant about the SPA and in particular that:

the Plaintiff had obtained an order of specific performance of the SPA from the Shah Alam High Court dated 21.6.2012 and forwarded a copy of the said order; 4

(ii) a sum RM100,000 had been paid by the Plaintiff to the 2nd Defendant as part payment of the purchase price for the said land and a further sum of RM400,000 has been deposited into court as per the court order dated 21.6.2012; and

(iii) the Memorandum of Transfer had been executed by the parties and the consent to transfer had been obtained from the state authority.

By letter dated 29.1.2013 the 4thDefendant, who was the 1st Defendant’s solicitor, informed the Plaintiff that:

the 1st Defendant has entered into a sale and purchase agreement dated 15.8.2011 with the 2nd Defendant for the purchase of the said land; and

(ii) the Plaintiff was requested to withdraw its private caveat lodged on the said land.

The Plaintiff’s solicitors, Messrs Patrick Dass & Co, via letter dated 27.2.2013 replied to the 1st Defendant’s solicitors, i.e. the 4th Defendant, stating that: 5

the Plaintiff had entered into the SPA dated 15.12.2004 with the 2nd Defendant, and that the Plaintiff had obtained an order of specific performance of the SPA from the Shah Alam High Court dated 21.6.2012 and forwarded a copy of the said order under cover of that letter;

(ii) a sum RM100,000 had been paid by the Plaintiff to the 2nd Defendant as part payment of the purchase price for the said land and a further sum of RM400,000, being the balance purchase price, has been deposited into court as per the court order dated 21.6.2012; and

(iii) the private caveat lodged by the 1st Defendant on the said land be removed as the Plaintiff had a clear prior interest.

The Plaintiff had commenced an action against the 1st Defendant vide Originating Summons No: 24-610-04/2013 for the removal of the 1st Defendant’s private caveat lodged on the said land, and had on 20.11.2013 obtained an order from the Shah Alam High Court for the removal of the same.

The registered ownership of the said land was transferred from the 2nd Defendant to the 1st Defendant on 10.3.2014 even though a copy of the 6 order of specific performance dated 21.6.2012 had been served on the 1st, 2nd, 4th and 5th Defendants, and the 3rd Defendant who was the 2nd Defendant’s solicitor had full knowledge of the order, having acted for the 2nd Defendant to set aside the said order.

The 1st Defendant had full knowledge of the 2nd Defendant’s attempt to set aside the order of specific performance dated 21.6.2012, as the 2nd Defendant had shown a copy of the said order to the 1st Defendant and it was the 1st Defendant who had introduced the 3rd Defendant to act for the 2nd Defendant in the setting aside application.

The 4th Defendant, as solicitors for the 1st Defendant, despite having full knowledge of the order of specific performance dated 21.6.2012, had in disregard of the said order of court and in contempt of court presented the Memorandum of Transfer at the 5th Defendant’s office for registration of transfer of ownership of said land from the 2nd Defendant to 1st Defendant.

Hence, the Plaintiff states that the 1st Defendant is not a bona fide purchaser in good faith as the combined act of the 1st, 2nd 3rd and 4th Defendants is an act of fraud to deny the Plaintiff of its legal ownership 7 rights to the said land flowing from the SPA and as decreed in the order of specific performance dated 21.6.2012.

The 2nd and 3rd Defendants ought not to have allowed the transfer of ownership of the said land to 1st Defendant as they very well knew that the 2nd Defendant’s application to set aside the order of specific performance dated 21.6.2012 was pending in court. Hence their combined conduct in doing so was an act calculated to deceive the Plaintiff into thinking that the 2nd Defendant was not intending to transfer the said land to the 1st Defendant until after the court rules on the application to set aside. [7] The Plaintiff further states that it had obtained an order from the High Court for the cancellation of the 1st Defendant’s private caveat on 20.11.2013 and could have proceeded to register the transfer of ownership of the said land to the Plaintiff, but did not do so as a mark of respect for the ongoing court proceedings in respect of the 2nd Defendant’s application to set aside the order of specific performance dated 21.6.2012. In that regard, learned counsel for the Plaintiff has referred to the pronouncement of the full bench of the Patna High Court in King v Parmanand AIR 1949 Pat 222 where it was held inter alia that it is a cardinal principle that when a matter is pending for 8 decision before a court of justice, nothing should be done which might disturb the full course of justice. [8] Hence, the Plaintiff alleges that the combined conduct of the 1st, 2nd and 4th Defendants in going ahead with the presentation of transfer of title to the said land from the 2nd Defendant to the 1st Defendant is an abuse of process, aided by the 3rd Defendant in not informing the Plaintiff’s solicitors that the transfer had been effected whilst the 2nd Defendant’s application to set aside the order was going through the process of adjudication, and was pending decision by the High Court. [9] The Plaintiff further states that by letter dated 7.1.2014, the Plaintiff’s solicitors had written to the 5th Defendant:

informing that the Plaintiff had obtained an order of specific performance dated 21.6.2012 in respect of the SPA and that the balance purchase price of RM400,000 had been deposited in court; and

(ii) applied on behalf of the Plaintiff for the entry of a private caveat on the said land, pending the execution of the order of specific performance dated 21.6.2012. [10] The Plaintiff alleges that the 5th Defendant failed and/or neglected to enter the said private caveat to protect the Plaintiff’s interest in the said land 9 which had resulted in the fraud being perpetrated by the 1st to 4th Defendants to transfer ownership of the said land to the 1st Defendant. The Plaintiff further alleges that the 5th Defendant negligence in failing to enter the Plaintiff’s private caveat had resulted in the Plaintiff suffering loss and damage. [11] The Plaintiff seeks declaratory relief to the effect that the Plaintiff is entitled to be registered as the owner of the said land and for consequential order that the registration of ownership of the said land in the name of the 1st Defendant be set aside or cancelled. The Plaintiff further seeks damages, interest and cost against all the Defendants. [12] The Defendants deny liability and the 1st Defendant in particular state that he is a bona fide purchaser for valuable consideration and that he is not complicit in any fraud perpetrated by the other Defendants, if any. Hence, the 1st Defendant states that his title to the said land is indefeasible and avers that the Plaintiff does not have an actionable cause against the 1st Defendant. [13] The 2nd Defendant states that the order of specific performance dated 21.6.2012 was procured against him in his capacity as the administrator of the estate of Sellaliah a/l Murugayan, but by then the said land was registered in his name as absolute owner, and as such he argues that he is not bound by the order of specific performance dated 21.6.2012. Hence, the 2nd Defendant 10 denies any wrong doing and states that the said land was properly transferred to the 1st Defendant. [14] The 3rd Defendant denies that he had perpetrated any deceit on the Plaintiff and/or the Plaintiff’s solicitors. The 3rd Defendant further denies any role in the fraud alleged by the Plaintiff or in aiding and abetting the 1st, 2nd and 4th Defendants to wrongfully transfer title to the said land from the 2nd Defendant to the 1st Defendant. [15] The 4th Defendant denies perpetrating fraud or deceit on the Plaintiff and states that the transfer of title to the 1st Defendant, for whom the 4th Defendant acted as solicitor, was done in accordance to the law. The 4th Defendant further states that the SPA is not enforceable against the 2nd Defendant personally as the order of specific performance dated 21.6.2012 was made against the 2nd Defendant in his capacity as administrator of the estate of Sellaliah a/l Murugayan, whilst the said land was registered in the 2nd Defendant as absolute owner. [16] The 5th Defendant denies any negligence on his part and states that the non-registration of the Plaintiff’s private caveat was because of non-compliance of the Plaintiff in forwarding a certified true copy of the the order of specific performance dated 21.6.2012 together with the requisite form. 11 [17] Having analysed the pleadings and evidence, both oral and documentary, I find that the Plaintiff has successfully establish its case against the 1st, 2nd and 4th Defendants but had failed to establish its case against the 3rd and 5th Defendants. The reasons for that findings are as follows. [18] The fact of the matter is that there is a valid and subsisting the order of specific performance dated 21.6.2012 made by the High Court at Shah Alam. This is a crucial fact in deciding the issues at hand. Court orders must be obeyed and it goes without saying that parties to the order of 21.6.2012 must obey and give full effect to it. Further, any non-party to that order, cannot aid and abet the breach of that court order by any party to the order, especially if that non-party has knowledge of that order and stands to gain from that breach or non-compliance. The evidence shows that the 1st, 2nd and 4th Defendants had actively acted in concert to go against the order of specific performance dated 21.6.2012. In this regard, the testimony of the 1st, 2nd, 3rd and 4th Defendants is quite telling and I quote the following from the Notes of Evidence.

The 1st Defendant testified that:

he had known the 2nd Defendant since sometime in 2003 and had rented the said land from the 2nd Defendant and carried on the 12 business of a scrap yard dealer on the said land. The 1st Defendant further said that he had spent between RM700,000 to RM800,000 to make improvements on the said land before it was transferred to him - see page 89 of the Notes of Evidence;

(ii) he and the 2nd Defendant had a close landlord and tenant relationship;

(iii) the 2nd Defendant had informed him of the Plaintiff’s interest in the said land before he entered into the sale and purchase agreement with the 2nd Defendant to purchase the said land - see page 90-91 of the Notes of Evidence;

(iv) he knew of the order of specific performance dated 21.6.2012 made by the High Court at Shah Alam sometime in 2013 when he engaged the 4th Defendant to find out more about the private caveat on the said land lodged by the Plaintiff - see page 91 of the Notes of Evidence;

he confirmed this in the following manner “After I engaged Mr Raja Raman, that’s where I came to know about the order.” - see page 93 of the Notes of Evidence.

The 2nd Defendant in his testimony had confirmed that: 13

he was aware of the order of specific performance dated 21.6.2012 and that he had informed the 1st Defendant of the said order – see page 104 of the Notes of Evidence;

(ii) he had shown the order of specific performance dated 21.6.2012 to the 1st Defendant - see page 104 of the Notes of Evidence;

(iii) the 1st Defendant had introduced the 3rd Defendant to him and to act for him in the matter of setting aside the order of specific performance dated 21.6.2012 - see page 105 of the Notes of Evidence. The 2nd Defendant changed his story after the lunch break when in re-examination he said that it was not the 1st Defendant who introduced him to the 3rd Defendant but this about turn was unconvincing;

(iv) he and the 1st Defendant were old friends - see page 105 of the Notes of Evidence;

the 1st Defendant had introduced the 3rd Defendant to him and to act for him in the matter of the sale and transfer of the said land and its change of ownership – 105-106 of the Notes of Evidence;

(vi) he knew that he must sell the said land to the Plaintiff only and that he cannot transfer ownership of the said land other than in 14 accordance to the order of specific performance dated 21.6.2012 - see page 106 of the Notes of Evidence;

(vii) the 3rd Defendant told him that he could transfer the said land to the 1st Defendant even though the order of specific performance dated 21.6.2012 was not set aside - see page 124 of the Notes of Evidence (the 3rd Defendant says otherwise and states that he categorically advised the 2nd Defendant not to deal with the said land until the said order is set aside);

(viii) even though the order of specific performance dated 21.6.2012 was valid and subsisting, the 2nd Defendant and/or his solicitors did not inform the Plaintiff and/or the Plaintiff’s solicitors of his intention to transfer the said land to the 1st Defendant and that he did it ‘diam-diam’ i.e. on the quiet-see page 113-114 of the Notes of Evidence;

(ix) the 3rd Defendant had told him that he had lost his application to set aside the order of specific performance dated 21.6.2012 - see page 115 of the Notes of Evidence; and

the 1st Defendant had paid him RM900,000 as purchase consideration for the said land. 15

The 3rd Defendant on the other hand had testified that:

he had no dealings with the 1st Defendant;

(ii) he had acted for the 2nd Defendant in the matter of his application to set aside the order of specific performance dated 21.6.2012, and that he had verbally advised the 2nd Defendant not to transfer the said land to any third party while the proceeding to set aside was going on - see page 145 of the Notes of Evidence; and

(iii) he had no role in the transfer of title of the said land from the 2nd Defendant to the 1st Defendant.

The 4th Defendant testified that:

he first knew the 2nd Defendant in early 2013 and was emphatic about this – see page 151 of the Notes of Evidence; [This testimony of the 4th Defendant was in contrast to the evidence of the 2nd Defendant who said that he only came to know the 4th Defendant some 6 months ago sometime in 2017 – see page 110 of the Notes of Evidence].

(ii) he agreed that his law firm had received the Plaintiff’s solicitor’s letter dated 27.2.2013 (page 409 Bundle D) but said that the 16 annexure, namely, the order of specific performance dated 21.6.2012, was not annexed to the said letter, even though the letter states otherwise. The 4th Defendant admitted that he knew the importance of the court order and yet did not write to the Plaintiff’s solicitors asking for the said court order if he had indeed not received it – see page 152-153 of the Notes of Evidence; and

(iii) he said that even if he had received a copy of the court order dated 21.6.2012, he would still have gone ahead with the presentation of the transfer as the land search conducted at the land office did not reveal any impediments to the transfer being registered. [19] Though the evidence of the 1st, 2nd, 3rd and 4th Defendants is materially inconsistent in some aspects, the evidence generally shows that the 1st, 2nd and 4th Defendants had colluded to defraud the Plaintiff of its lawful interest in the said land. As a starting point, by the Plaintiff’s solicitor’s letter dated 17.12.2012 (page 407 of Bundle D), the 1st Defendant’s solicitors at the material time, Messrs K Vasandi & Co, was informed of the SPA between the Plaintiff and the 2nd Defendant and that a sum of RM100,000 as part payment of the purchase price had been paid to the 2nd Defendant. The 2nd Defendant’s solicitors were also informed in that same letter about the court order dated 17 21.6.2012 and that the balance purchase price of RM400,000 due to the 2nd Defendant had been deposited into court as per the said court order. A copy of the court order of 21.6.2012, as well as a copy of the receipt for the deposit of RM400,000 into court, were forwarded to the 1st Defendant’s then solicitors. This evidence stands unrefuted. [20] It is trite law that the knowledge of the solicitor can generally be imputed to the client. The Federal Court in Doshi v Yeoh Tiong Lay [1975] 1 MLJ 85 reiterated that principle as follows: Now the general rule is that the knowledge of a solicitor is the knowledge of the client, so that it is not open to the client to say that the solicitor did not disclose the true facts to him. Thus in Rolland v Hart (1870) Ch App 678; , 681, which was followed by the High Court of Australia in Stuart v Kingston (1923) 32 CLR 309, Lord Hatherley LC said: Then the only question is, what is actual notice? It has been held over and over again that notice to a solicitor of a transaction, and about a matter as to which it is part of his duty to inform himself, is actual notice to the client. Mankind would not be safe if it were held that, under such circumstances, a man has not notice of that which his agent has actual notice of. The purchaser of an estate has in ordinary cases, no personal knowledge of the title, but employs a solicitor, and can never be allowed to say that he knew nothing of some prior incumbrance because he was not told of it by his solicitor. See also Abu Bakar bin Ismail & Anor v Ismail bin Husin & Ors and other appeals [2007] 4 MLJ 489 CA, where this principle of the knowledge of the 18 agent being attributed to the principal was restated and applied by the Court of Appeal. [21] So based on the above facts, the law presumes that the 1st Defendant, through his then solicitors Messrs K Vasandi & Co, had full and actual knowledge of the court order dated 21.6.2012, and was well aware of the terms of the decree of specific performance contained in the said order. In any event, there is nothing in evidence to indicate otherwise. [22] Now, despite the 1st Defendant’s knowledge of the Plaintiff’s interest in the said land via the SPA between the Plaintiff and 2nd Defendant, and the court order dated 21.6.2012 decreeing specific performance of the SPA, the 1st Defendant’s subsequent solicitors, i.e. the 4th Defendant, had vide their letter dated 29.1.2013 (page 411 of Bundle D) written to the Plaintiff informing that the 1st Defendant had entered into a sale and purchase agreement dated 15.8.2011 with the 2nd Defendant to purchase the said land and wished to complete that transaction. In this regard the 4th Defendant, on behalf of the 1st Defendant, demanded that the Plaintiff withdraw its private caveat lodged on the land. [23] The Plaintiff’s solicitors replied to the 4th Defendant vide letter dated 27.2.2013 (page 409 of Bundle D) restating the contents of its earlier letter 19 dated 17.12.2012 to Messrs K Vasandi, and once again informed the 1st Defendant’s solicitor, the 4th Defendant, that the Plaintiff had a prior interest in the said land by virtue of the SPA, as well as the order of court dated 21.6.2012. In that letter of 27.2.2013 to the 4th Defendant, the Plaintiff’s solicitors had also enclosed copies of the court order of 21.6.2012 and the court receipt for the payment into court of the sum of RM400,000. However, the 4th Defendant says that he only received the letter of 27.2.2013 but not the enclosures stated therein, i.e. court order and the payment receipt. Now, it is rather strange that the 4th Defendant did not immediately write to the Plaintiff’s solicitors stating that the court order and payment receipt were missing and ask for a copy of these allegedly missing documents. This is precisely the thing that any reasonably competent advocate and solicitor would have done, for such documents are important and necessary to be sighted so that proper legal advice could be given to the client. When questioned on this, the 4th Defendant was rather dismissive of it. In this regard, the following question and answer during cross examination of Mr Raja Raman, the sole proprietor of the 4th Defendant, about the said letter dated 27.2.2013 and his inaction is worth reproducing: Q: Wouldn’t you as a lawyer want to see the Court Order? A: It seems that there are no annexes in the letter and the search was clear, so we proceed with the transfer. 20 Q: But wouldn’t it be reasonable as a lawyer to ask for this Court Order if you think it was not sent to you? A: If it was there... Q: My question is wouldn’t it be reasonable for you as a professional lawyer to ask for this Court Order if there was no attachment? A: No I don’t agree. ... ... Q: Now, I put it to you that with this court order in your mind, you still proceeded to apply for that transfer. A: Yes because the search are clear. Q: What search? A: The title search which we did on the 3rd March 2014. Q: But do you agree with me after seeing the Court Order today in front of you, that if you had seen this Court Order, you would not have done the transfer? A: I would still maintain that, the land search was clear. So I will proceed. Q: No, answer my question, if you have seen this court order at that time before you did the transfer, would you still proceed. A: I will proceed because it does not affect the land search. Q: You will have proceeded even if you knew about this court order? A: Title search was clear. ... ... Q: This letter which I sent to your law firm, did you show this letter to your client? 21 A: No. I have informed him over the phone. Q: What did you say? A: There is a letter sent by the Plaintiff’s solicitor they claim there is an attachment of a court order. But nothing is attached, is only a letter. That’s all. Q: But there is nothing in writing to confirm this? A: Nothing in writing. Q: You wouldn’t agree with me that you as a professional lawyer you seeing a letter like this enclosing with the Court Order, it would be reasonable for you to get this court order and then advice your client Mr Shunmugam accordingly? A: I don’t agree. I find Mr Raja Raman’s answers to be incredible. Firstly, the contents of the letter dated 27.2.2013 reads as follows: Please be informed that our client and the abovenamed Owner has executed a sale and purchase agreement for the sale and purchase of the said Property wherein our client has paid a total sum of RM100,000.00 to the abovenamed Owner. Further, the consent to transfer has already been obtained and the Memorandum of Transfer has been perfected. However, the said Owner has refused to complete the transaction and our client had obtained a court Order (Sivil Action: 22NCVC-439-2011) on the 21 June 2012 for specific performance of which our client had even deposited (as directed by the court) the balance sum of RM400,000.00 to the Court. Copies of the Order as well as the payment to court receipt are enclosed herewith for your reference. Now, any reasonably competent solicitor, having been given such detailed notice of the Plaintiff’s interest in the said land, and having been informed of 22 the order of court dated 21.6.2012 decreeing specific performance of the SPA between the Plaintiff and the 2nd Defendant, would not have acted in a manner that would be construed as defiance of such an order. In light of the notice given by the Plaintiff’s solicitor in the letter 27.2.2013 to the 4th Defendant, I find that the 4th Defendant ought not to have proceeded with the presentation of transfer of ownership of the said land from the 2nd Defendant to the 1st Defendant. If, he had not received a copy of the court order, then the only prudent and reasonable thing for him to do is to request for a copy from the Plaintiff’s solicitors. The failure of the 4th Defendant to do is indicative of the fact that he had indeed received a copy of the court order together with the letter of 27.2.2013. The first time the 4th Defendant raised the issue of non-receipt of the court order together with the letter of 27.2.2013 was at the Advocate and Solicitor’s Disciplinary Committee hearing in regards the complaint lodged by the Plaintiff against Mr Raja Raman. This, I find is a clear after thought. The totality of evidence leads to the irresistible conclusion that the 4th Defendant did receive the copy of the court order and chose to aid and abet the 1st and 2nd Defendants to wilfully defy it. Mr Raja Raman’s own testimony bears evidence to the fact that he was not interest in the terms of the court order and its effect. He testified that even if he had a copy of the court order dated 21.6.2012, he would still have gone ahead to register the 23 transfer of ownership of the said land from the 2nd Defendant to the 1st Defendant because the land search at the 5th Defendant’s office did not reveal and impediments to the transfer of title to the said land. Mr Raja Raman seems to place more importance on the result of the land search rather than the explicit terms of an order of the High Court. This defiant answer from an advocate and solicitor, who is also an officer of the court, which shows complete disobedience of a valid court order, is indeed very disturbing. Mr Raja Raman is in effect saying that he would wilfully assist the 2nd Defendant to commit an act of contempt of court by breaching the order of specific performance of the SPA decreed by the High Court found in the order dated 21.6.2012 to transfer title of the said land to his client, the 1st Defendant. Such active show of defiance of a court order by an officer of the court is clearly conduct unbecoming and will have to be dealt with by the severest expression of contempt. [24] In this regard, it must also be noted that the testimony of Mr Raja Raman is also materially inconsistent with the testimony of his client the 1st Defendant. The 1st Defendant testified that he knew of the court order dated 21.6.2012 sometime in 2013 when he engaged Mr Raja Raman to act for him in the transaction to transfer the said land to him and in respect of the removal 24 of the private caveat lodged by the Plaintiff. The 1st Defendant says at page 103-104 of the Notes of Evidence as follows: “Q: In 2011 you bought the land? Yes. Did you know before you agree to buy the land, did you know of ALH Industries’ interest in the land? Yeah, I was informed by Mr Govindasamy. Mr Govindasamy did inform you about the Plaintiff’s interest? Yes. What did he inform? He showed me the S&P that he signed with ALH and also the paper that he signed accordingly. Can you repeat the answer? He showed me the letter, this two letters and the agreement that he signed with the ALH. ... ... Did you know about the Plaintiff ALH obtaining a court order? At the time of signing my S&P I was not aware about that. When were you aware? Somewhere in the year 2013 when I engaged Mr Raja Raman to find out more about the caveat. 25 The 1st Defendant retained the 4th Defendant as his solicitor sometime in January 2013, and that’s when the 4th Defendant wrote his letter dated 29.1.2013 to the Plaintiff demanding the removal of the Plaintiff’s private caveat on the said land. So, obviously, Mr Raja Raman is not being truthful. He must have received a copy of the court order together with the Plaintiff’s solicitor’s letter dated 27.2.2013 for him to have been able to advise the 1st Defendant of its content and inform the 1st Defendant about the court order. In light of the 1st Defendant’s testimony, the denial of Mr Raja Raman as to his receipt of the court order dated 21.6.2012 from the Plaintiff’s solicitors together with the letter dated 27.2.2013 rings hollow. [25] In addition to this, the 2nd Defendant testified that he had a copy of the court order dated 21.6.2012 well before he instructed the 3rd Defendant to apply to set aside the said order, and he further testified that he had shown it to the 1st Defendant. The 1st Defendant testified as follows: Mr Govindasamy, kamu tahu ada satu Court Order, betul? Dalam kes ini, Court Order muka surat 1, 2 dan 3 Ikatan B. Ya. Dan adakah kamu beritahu Encik Shanmugam berkenaan perintah ini? Ada. Adakah kamu beritahu dia? 26 Ada case order tentang Mahkamah. Ada tunjuk dia order ini? Ada. The 2nd Defendant further testified that he had engaged the 3rd Defendant to act for him in the application to set aside the said court order upon the 1st Defendant’s introduction. The following testimony of the 2nd Defendant is relevant: Macam mana kamu kenal Mr T Durai? Daripada Encik Shunmugam. Kamu dengan Mr Shunmugam sudah kawan lama? Ya. Berapa lama lebih kurang? Lebih kurang 10 tahun. Though the 2nd Defendant did an about turn and changed his testimony after the lunch break, I find that the reason given by the 2nd Defendant for this change in testimony is untenable. [26] In addition to that, the 3rd Defendant, who acted as the 2nd Defendant’s solicitor and counsel in the application to set aside the court order of 21.6.2012, testified that he had advised the 2nd Defendant that until the said court order is set aside he cannot transfer the said land to any other party 27 other than the Plaintiff. The following testimony of the 3rd Defendant at pages 166-167 of the Notes of Evidence is relevant: Did you tell your client Mr Govindasamy that he should not transfer the property to any Third Party while this proceeding of setting aside is going on? Did you tell him? Of course I told him that he is bound by that. The 3rd Defendant also adduced in evidence the Notes of Proceedings of the Advocates & Solicitors Disciplinary Committee hearing (page 311-312 Bundle C) in regards a complaint against the 3rd Defendant relating to the very subject matter in this suit, and in that proceedings the 3rd Defendant had this to say during cross-examination: Do you agree that the transfer was effected before your clients applied to set-aside the court order? Yes. Did you tell your client not to transfer the property to his name? Yes, I clearly called him that we are merely filing an application to set aside the default order and it was proper to refrain from dealing with the property in any manner. I told him he is bound by the order. And further he did not ask me to file any application for a stay order. I called him to my office and he was present in my office when I advised him so. You regarded the specific performance court order as an important order. Yes, I believe the order is valid until set aside. I already advised him that he should not do anything adverse to the court order. 28 So that it is important that he does not do anything adverse to the court order? Naturally. Besides your oral evidence here, do you have any documentary evidence that you actually told your client not to disobey the court order. I do not have any documentary evidence. The court decided to dismiss your client’s application on 30.4.2014. Yes. You would agree with me that there was no appeal against that order by your client. There was an appeal to the Court of Appeal against that decision. What happened to that appeal? Before the appeal came up for hearing, we came to know that Govindasamy has defied the said order and acted against my advise so we discharged ourselves from conducting the appeal further. We thought such a client we should not represent. Therefore, from the evidence of the 3rd Defendant it is clear that the 2nd Defendant has been clearly forewarned that he should not defy the court order by transferring the said land to any one else until and unless the court order is set aside. The 3rd Defendant says that he had in fact discharged himself from acting for the 2nd Defendant when he found out that the 2nd Defendant had defied the said court order and acted against his advice. 29 [27] Hence, the cumulative effect of the evidence of the 1st, 2nd, 3rd and 4th Defendants shows that:

prior to the 1st Defendant entering into his sale and purchase agreement with the 2nd Defendant for the purchase of the said land, the 1st Defendant had actual knowledge of the SPA between the 2nd Defendant and the Plaintiff and knew of the Plaintiff’s prior interest in the said land;

the 1st Defendant had direct knowledge of the court order dated 21.6.2012 as the 2nd Defendant had shown and given him a copy of the said order;

the 1st Defendant had introduced the 3rd Defendant to the 2nd Defendant in order for the 3rd Defendant to be retained to apply to set aside the court order dated 21.6.2012, as the 1st Defendant was desirous of completing the agreement to purchase the said land;

the 3rd Defendant, as solicitor, had advised the 2nd Defendant that he cannot deal with the said land until the order of court dated 21.6.2012 is set aside;

whilst the application to set aside the said order was pending adjudication, and before the court delivered its decision dismissing the application on 30.4.2014, the ownership of the said land was transferred 30 by the 2nd Defendant to the 1st Defendant on 10.3.2014. This was done in total and complete defiance of the 3rd Defendant’s advice to the 2nd Defendant that any such disposition would be in breach of the court order dated 21.6.2012;

the 4th Defendant, an advocate and solicitor, and an officer of the court, had knowledge of the court order dated 21.6.2012 as his client, the 1st Defendant, states in his evidence that he came to know about the court order from the 4th Defendant after he had retained him to act for him sometime in January 2013;

the Plaintiff’s solicitors had informed the 4th Defendant of the court order dated 21.6.2012 and also forwarded a copy of the said court order to the 4th Defendant. The 4th Defendant’s denial of receipt of the said court order from the Plaintiff’s solicitors is spurious for the reasons discussed earlier and also by virtue of the 1st Defendant’s testimony that he came to know of the court order from the 4th Defendant after he had retained him to act in respect of his sale and purchase agreement with the 2nd Defendant and to remove the private caveat lodged by the Plaintiff on the said land. Thus, the 4th Defendant had direct and actual knowledge of the court order and as such the 1st Defendant, as client, 31 would in law be imputed to have the same knowledge, as knowledge of the solicitor is knowledge of the client; and

the 4th Defendant testified that even if he had the court order with him he would still go ahead with the registration of the transfer of the said land from the 2nd to the 1st Defendant, because the land search did not show any impediment to the registration. This shows the 4th Defendant’s intention to wilfully defy the court order of 21.6.2012. [28] Hence, the collective acts of the 1st, 2nd and 4th Defendants in registering the transfer of the said land from the 2nd to the 1st Defendant is clearly an act done in total defiance of the court order dated 21.6.2012. This is nothing but an act of fraud perpetrated by the 1st, 2nd and 4th Defendants by thumbing their collective noses at this court and showing open defiance to the law and its administration, with the unscrupulous object to defeat the Plaintiff’s interest and title to the said land. [29] The 1st Defendant argues that since he is the registered owner of the said land, his title is indefeasible by virtue of the doctrine of indefeasibility of title found in section 340(1) of the National Land Code 1965. I am afraid that I cannot accept that contention. Section 340 (1) & (2) of the National Land Code 1965 states: 32

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.

The title or interest of any such person or body shall not be indefeasible-

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law. [30] The law is well settled in that subject to sub-section (2) of section 340 of the National Land Code, a registered title or interest is indefeasible (Ong Chat Pang & Anor v. Valliappa Chettiar [1971] 1 LNS 96; [1971] 1 MLJ 224 FC; Teh Bee v. K. Maruthamuthu [1977] 1 LNS 134; [1977] 2 MLJ 7 FC). The burden is on the Plaintiff to prove that there was fraud and establish a case for defeasibility under section 340(2)(a) of the National Land Code. The fraud must be actual fraud and must be brought home to the person whose registered title is impeached or to his agents (PJTV Denson (M) Sdn Bhd & Ors v. Roxy (Malaysia) Sdn Bhd [1980] 2 MLJ 136; [1980] 1 LNS 55; Tueh Guat Choo alias Tin Wat Choo (f) v. Cheah Ah Hoe & Yong Pow Meng [1932] 1 LNS 94; [1932] MLJ 109; Doshi v. Yeoh Tiong Lay [1974] 1 LNS 30; [1975] 85 FC). Hence, a 33 careful reading of section 340 (2)(b) of the National Land Code 1965 shows that the title of registered proprietor is not indefeasible if the registered proprietor was party to or privy to a fraud that led to the said registration of ownership. [31] Vernon Ong J (as he then was) has very well summarised the application of section 340(2)(a) in Yeo Ah Gian & Anor v. Wan Mohd Zaidi Wan Nawang & Ors [2009] 9 CLJ 599, as follows: In order to render an indefeasible title defeasible it is necessary to prove actual fraud (see Perwira Habib Bank (M) Bhd v. Bank Bumiputra (M) Bhd [1987] 1 LNS 75; [1988] 3 MLJ 54). In this context actual fraud means dishonesty of some sort where the designed object of a transfer is to cheat a person of an existing right or whether by a deliberate and dishonest act a person is deprived of his existing right (see Datuk Jagindar Singh v. Tara Rajaratnam [1983] 1 LNS 21; [1983] 2 MLJ 196; Loke Yew v. Port Swettenham Rubber Co Ltd [1913] AC 491 and Robertson v. Keith [1870] 1 VR (E) 11). The fraud must be that of the registered proprietor or his privy. The fraud of an agent will affect the principal who is the registered proprietor unless the agent acted outside his authority (Schultz v. Corwill Properties Pty Ltd [1969] 2 NSWR 576; Ratcliffe v. Waiters [1969] 2 NSWR 146). The Federal Court’s decision in Tan Ying Hong v. Tan Sian San & Ors [2010] 2 CLJ 269 reversing its earlier decision in Adorna Properties Sdn Bhd v. Boonsoom Bonyanit [2001] 2 CLJ 133 and putting to rest the ghost of Adorna Properties, again reiterates this principle. The learned Zaki Tun Azmi CJ in Tan Ying Hong v. Tan Sian San & Ors had this to say about s. 340 of the NLC. 34 I would like to look at s. 340 of the NLC in a more simplified manner. Let us refer to the first owner of a piece of land as "A" who then transfers the same piece of land to "B" and which subsequently is transferred to "C". As far as s. 340(1) of the NLC is concerned, A's title to the land is totally indefeasible. In short if A's name appears on the registration, no one can come and claim for that title. The law will not entertain it at all. Now comes the next person, B, whose name appears in the register. If it can be shown that the title or interests obtained by B was obtained by fraud or misrepresentation by him or anyone else to which he was a party or privy then his claim to the title or interest can be defeated. (See s. 340(2)(a) of the NLC). Otherwise B stands in the same position as A. The situation where it is proved that the registration in B's name was obtained by forgery or by means of an insufficient or void instrument is the same (see s. 340(2)(b) of the NLC). His title or interest to the land is liable to be set aside by the previous owner who has good title. In this latter instance, there is no need to show that B was a party or privy to that forgery or to obtaining the title or interest by a void instrument. The third instance where B's title or interest could be defeated is where it was unlawfully acquired through the exercise of any power or authority conferred by any law. Section 340(2)(c) of the NLC deals with one who was for example acting in his capacity as an agent to a power of attorney. Even if C is in the same position as B, subsection (3) does not give protection to C unless he can show that he had acquired the title in good faith and for valuable consideration. Any title or interest gained by any person thereafter is also liable to be set aside unless it could be shown that he had acquired it in good faith and for valuable consideration. This is what is called deferred indefeasibility of title. if his title or interest is challenged on similar grounds, the burden of proving there was valuable consideration and good faith lies on him. (emphasis added). 35 [32] In our case, the 1st Defendant finds himself in the position of "B" above, and since my finding is that the 1st Defendant is party to the fraud perpetrated by the 2nd Defendant in defying the court order and transferring ownership of the said land to the 1st Defendant, his title is defeasible. The act of total and complete defiance of the order of court by the 1st, 2nd and 4th Defendants wilfully and surreptitiously done to deny the Plaintiff of its lawful title to the said land is not only contempt of court but certainly amounts to fraud. In PJTV Denson (M) Sdn Bhd & Ors v Roxy (Malaysia) Sdn Bhd [1980] 2 MLJ 136 the Federal Court held that: Whether fraud exists is a question of fact, to be decided upon the circumstances of each particular case. Decided cases are only illustrative of fraud. Fraud must mean "actual fraud, i.e. dishonesty of some sort" for which the registered proprietor is a party or privy. "Fraud is the same in all courts, but such expressions as 'constructive fraud' are … inaccurate;" but "'fraud' … implies a wilful act, on the part of one, whereby another is sought to be deprived, by unjustifiable means, of what he is entitled." (per Romilly M.R. in Green v Nixon (1857) 23 Beav 530 535 53 ER 208). Thus in Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 & 106 it was said that "if the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent…" [33] The 1st, 2nd and 4th Defendants knew very well that the Plaintiff had a prior interest to the said land and they also knew of the court order dated 21.6.2012. They also had knowledge of the fact that the Plaintiff had deposited the full balance purchase amounting to RM400,000.00 into court as per the 36 court order. For all intents and purposes, the High Court’s decree of specific performance by its order dated 21.6.2012 has given lawful recognition to the Plaintiff’s rights of ownership to the said land. Once the Plaintiff had fulfilled its obligations under the said order of court dated 21.6.2018, the Plaintiff is the lawful owner of the said land. The uncontroverted evidence shows that the Plaintiff has fulfilled all its obligations under the said court order. The 2nd Defendant was merely a bare trustee in the circumstance. Hence, the collective acts of the 1st, 2nd and 4th Defendants in proceeding to register the transfer of the said land onto the 1st Defendant, in total and complete defiance of the said court order, was clearly done for the designed object of depriving and cheating the Plaintiff of its known existing right of title to the said land. These collective acts, according to the principles enunciated by the Federal Court in PJTV Denson (supra), amounts to fraud. The 1st, 2nd and 4th Defendants had actual knowledge of the Plaintiff’s unregistered interest in the said land and they also had actual knowledge of the court order decreeing specific performance of the SPA, and despite having such actual knowledge they had dishonestly acted in concert to deprive the unregistered claimant, i.e. the Plaintiff, of its right to title to the said land. [34] The 2nd Defendant argues that the court order dated 21.6.2012 is not binding on him for the following reasons: 37

the 2nd Defendant was appointed the administrator of the estate of Sellaiah a/l Murugayan by order of the Pentadbir Tanah Daerah Petaling under the provisions of the Small Estates Distribution Act 1955 vide Borang F and Borang FF dated 4.4.1995 (File Ref: PTP.15/158/94);

following the said Small Estate Distribution order, ownership of the said land was vested in the name of the 2nd Defendant as administrator of the estate of Sellaiah a/l Murugayan;

the 2nd Defendant as administrator of the estate of Sellaiah a/l Murugayan entered into the SPA with the Plaintiff on 15.12.2004 for the sale of the said land to the Plaintiff;

whilst the SPA was pending completion, the 2nd Defendant had on 14.3.2006 obtained an order from the Pentadbir Tanah Daerah Petaling for the ownership of the said land be further transferred from his capacity as administrator of the estate of Sellaiah a/l Murugayan to himself in his personally capacity. This order, which was obtained in the very same File Ref: PTP.15/158/94, was given effect by the Land Office on 18.5.2007 when the 2nd Defendant was registered as the registered proprietor; 38

the 2nd Defendant entered into the sale and purchase agreement with the 1st Defendant for the sale of the said land to the 1st Defendant on 15.8.2011;

the Plaintiff commenced an action in the Shah Alam High Court via Civil Suit No: 22NCVC-439-2011 sometime in late 2011 against the 2nd Defendant in his capacity as the administrator of the estate of Sellaiah a/l Murugayan and obtained the court order for specific performance on 21.6.2012;

when the Civil Suit No: 22NCVC-439-2011 was commenced and the court order of 21.6.2012 obtained, the land was no longer held by the 2nd Defendant in his capacity as the administrator of the estate of Sellaiah a/l Murugayan;

since the said land was registered in his name absolutely and not as administrator of the estate of Sellaiah a/l Murugayan at the time the said order of court was obained, the 2nd Defendant argues that he is not bound by the terms of the court order dated 21.6.2012. [35] With respect, I am unable to accept that argument for the simple reason that even though the registration of ownership of the said land was changed from the 2nd Defendant in his capacity as administrator of the estate of Sellaiah 39 a/l Murugayan to that of the 2nd Defendant in his personal name, the 2nd Defendant was not the absolute owner of the said land. The transfer of the said land unto his personal name was done in order to overcome an administrative requirement of the state authority. The title to said land had a restriction endorsed, wherein any transfer required the state authority’s consent. Ms Kee Li Ling (PW2), the solicitor who acted for the Plaintiff in the SPA testified that in order to apply for the state authority’s consent to transfer, the title cannot be in the name of the estate’s administrator. Therefore, there was a need to nominally transfer ownership of the said land onto the name of the 2nd Defendant in his personal capacity. It was for this reason that the transfer of ownership of title from the 2nd Defendant in his capacity as administrator of the estate to his personal capacity was done. Following that nominal transfer in name, PW2 then proceeded to apply for the consent to transfer from the state authority and obtained the same. This evidence of PW2 remains uncontroverted and unchallenged. [36] The evidence shows that even though the said land came to be registered in the personal name of the 2nd Defendant, he continued to hold the property as trustee for the estate of Sellaiah a/l Murugayan. This is evident from the fact that the said transfer to the 2nd Defendant in his personal name was done by an order of Pentadbir Tanah Daerah Petaling under the same 40 Small Estate Distribution Order File Ref: PTP.15/158/94 where the original order was made in 1994. Secondly, there is no evidence of any consideration passing from the 2nd Defendant to the estate of Sellaiah a/l Murugayan for the said transfer, such that the 2nd Defendant can claim absolute ownership of the said land. Thirdly, the 2nd Defendant confirmed when questioned by the court that he had distributed the purchase consideration that he received from the 1st Defendant to all the beneficiaries of the estate of Sellaiah a/l Murugayan and that he still kept some balance of the sales proceeds. So clearly, he was holding the said land as administrator and trustee of the estate of Sellaiah a/l Murugayan and not in his personal capacity as a personal asset. The said land remained the asset of the estate of Sellaiah a/l Murugayan at all times. [37] In PJTV Denson (supra), the facts were that a plot of land belonging to a company was transferred to two of its directors absolutely, and in deciding to set aside the registration of title of the two directors on grounds of fraud under section 340(2)(a) of the National Land Code, the Federal Court held as follows: Upon a true perspective of the facts, we are satisfied that "fraud had been brought home to the person whose registered title is impeached." The first appellant was substantially indebted to the judgment creditor as on June 6, 1974. It was as at that date in a position of tight liquidity. It did not have its own funds sufficient money to cover its financial commitments. In the meanwhile court proceedings were brought to enforce the judgment but to no avail. Later the said land in which it had an 41 interest was transferred to its two directors in circumstances which gave rise to suspicion over the bona fides of the transaction. It is our opinion that the transfer was a mere cloak to deprive the judgment creditor of recourse to the property which would otherwise be applicable for its benefit. If this was not a case of deliberate fraud on the judgment creditor, we do not know what is. In concluding this part of our reasons for judgment it is useful to refer to a passage from the judgment of Lord Mansfield in Cadogan v. Kennett (supra, page 1172): "One case was, where there had been a decree in the Court of Chancery and a sequestration. A person with knowledge of the decree, bought the house and goods belonging to the defendant, and gave a full price for them. The court said, the purchase being with a manifest view to defeat the creditor, was fraudulent, and therefore, notwithstanding a valuable consideration, void. — So, if a man knows of a judgment and execution, and, with a view to defeat it, purchases the debtor's goods, it is void: because, the purpose is iniquitous. It is assisting one man to cheat another, which the law will never allow." In the result, the respondent succeeds in setting aside the transfer. The crucial question now is the ownership of the said land. If it is the property of the first appellant, which is the case of the respondent, then it is available to the respondent for execution. Our view is that the second and third appellants were trustees and they held the said land in trust for the first appellant. We say it for this reason. At all material times the second and third appellants were directors and in a fiduciary relationship to the company, the first appellant. (See Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 139). And by virtue of the Specific Relief Act, 1950 (Revised — 1974) they were trustees. A "trustee" is defined in that Act as including every person holding expressly, by implication or constructively, a fiduciary character. As such they had attached to them, for the benefit of the shareholders, all the liability and duties which attached to a trustee and agent (see The Great Luxembourg Railway Co v Sir William Magnay (1858) 25 Beav 586; 53 ER 761). "Again directors are called trustees. They are no doubt trustees of assets which have come to their 42 hands, or which are under their control." — (per Sir George Jessel M.R. in In re Forest of Dean Coal Mining Co (1878) 10 Ch D 450). As trustees they could not purchase the said land. The inflexible rule of equity forbade them to do that. "This doctrine as to purchase by trustees, assignees, and persons having a confidential character, stands much more upon general principles than upon the circumstances of any individual case. It rests upon this: that the purchase is not permitted in any case however honest the circumstances; the general interests of justice requiring it to be destroyed in every instance; as no court is equal to the examination and ascertainment of the truth in much the greater number of cases." (per Lord Eldon L.C. in Ex parte James (1803) 8 Ves 337 345 32 ER 385). They no doubt could purchase only with full knowledge and consent of their cestui que trust. In the absence of such knowledge and consent they were accountable: see Keech v Sandford Sel Cas T King 61 25 ER 223 and Regal (Hastings) Ltd. v. Gulliver, supra. The allegation that the company lacked the funds to purchase and that the second and third appellants bought the said land with their own money as members of the public is a travesty of the facts. The same argument was raised and rejected in Regal (Hastings) Ltd. v. Gulliver supra. Lord Russell of Killowen said (at page 149): "It was contended that it was impossible for Regal to get the shares owing to lack of funds and that the directors in taking the shares were really acting as members of the public. We cannot accept this argument. It was impossible for the cestui que trust in Keech v. Sandford, supra, to obtain the lease, nevertheless the trustee was accountable. The suggestion that the directors were applying simply as members of the public is a travesty of the facts. They could, had they wished, have protected themselves by a resolution (either antecedent or subsequent) of the Regal shareholders in general meeting. In default of such approval, the liability to account must remain." [38] The evidence shows that the 2nd Defendant’s role as registered owner of the said land was fiduciary in character. Section 2(1) of the Specific Relief Act, defines "trustee" to include “every person holding, expressly, by implication or 43 constructively, a fiduciary character”. The facts show that 2nd Defendant, constructively and by implication clearly held the said land in a fiduciary capacity, i.e. as trustee of the estate and administrator of the estate of Sellaiah a/l Murugayan. Even though the land had been registered in the 2nd Defendant’s personal name, it still remained the property and asset of the estate of Sellaiah a/l Murugayan. Thus, the 2nd Defendant is clearly bound by the terms of the court order of 21.6.2012 and has to specifically perform the said order. The 2nd Defendant has chosen to breach the court order dated 21.6.2012, even after having been advised not to do so by his solicitor, the 3rd Defendant. The 2nd Defendant chose perpetrate to so for clear pecuniary gain, in that the purchase consideration derived from the 1st Defendant, i.e. RM900,000.00 is much more than that payable by the Plaintiff, i.e. RM500,000.00. The 1st Defendant, on the other hand, had colluded with the 2nd Defendant to breach the said court order and deprive the Plaintiff of its rights in the said land in order to get title to the said land and continue occupying it for his scrap business and also to ensure that he does not lose the monies that he had expanded on the said land in making improvements thereon by building structures on it for his business. [39] Hence, I find that the Plaintiff has successfully established its case against the 1st, 2nd and 4th Defendants that the registration of title to the said 44 land in the name of the 1st Defendant had been procured by fraud to which the 1st Defendant was a party. Thus, “fraud had been brought home to the person whose registered title is impeached” and as such the 1st Defendant’s title to the said land ought to be set aside by virtue of the provisions of section 340(2)(a) of the National Land Code. [40] Wherefore, I granted the declaratory order sought in paragraph 24 (a) of the Statement of Claim, and declared that the Plaintiff is entitled to be registered as the registered owner of the said land and in consequence thereof I ordered that the registration of the 1st Defendant as the registered proprietor of the said land be cancelled. I further ordered that the 2nd Defendant shall execute all relevant documents, including the Memorandum of Transfer, if required, to facilitate the said transfer and registration of title to the said land in the name of the Plaintiff within 30 days, failing which the Senior Assistant Registrar shall be authorized to do so. I also ordered that the 2nd Defendant shall file, if necessary, an application to the relevant state authority for consent to transfer the said land onto the Plaintiff within 30 days of sealing of the order granted herein and the Plaintiff shall render all assistance in this regard. [41] As the Plaintiff did not adduce evidence as regards damages suffered, I awarded nominal damages of RM1,000.00 against each of the 1st, 2nd and 4th Defendants, having taken into account their overall conduct in the matter and 45 the fact that by the Plaintiff being deprived of the use of the said land for several years, they would have suffered some loss and damage. I also ordered that the 1st, 2nd and 4th Defendants jointly and severally pay cost of RM40,000 to the Plaintiff. [42] As for the claim against the 3rd Defendant, the Plaintiff’s case is essentially one of acting in concert with the 1st, 2nd and 4th Defendants to commit fraud on the Plaintiff by dragging on the application to set aside the order of court dated 21.6.2012 and of surreptitiously aiding the 2nd Defendant to transfer the said land to the 1st Defendant in defiance of the said court order. Having combed the evidence, I do not find sufficient evidence to establish culpability on the part of the 3rd Defendant. The fact is that the 3rd Defendant had acted for the 2nd Defendant in the application to set aside the court order dated 21.6.2012, and had subsequently discharged himself at the Court of Appeal stage when he discovered that the 2nd Defendant had acted in defiance of his advice not to deal with the property until the order of specific performance is set aside. This evidence was not challenged by the Plaintiff. Additionally, unlike the role of the 4th Defendant who was actively involved in the registration of transfer of title, there is no evidence of the 3rd Defendant having played any such role. The 3rd Defendant’s role had been limited to that of solicitor and counsel in the application to set aside the order dated 46 21.6.2012, and nothing more. Wherefore, I dismissed the Plaintiff’s claim against the 3rd Defendant with cost of RM15,000.00. [43] As for the claim against the 5th Defendant, the Plaintiff states that on 7.1.2014, its solicitors had written to the 5th Defendant informing him of the court order dated 21.6.2012 inter alia for specific performance of the SPA and that it had deposited the balance purchase price of RM400,000 into court as ordered in the said court order. In this regard, the Plaintiff’s solicitors applied for a private caveat to be lodged to prevent any improper dealings on the said land until the said court order is specifically enforced. [44] The Plaintiff complains that it did not heed the Plaintiff’s request for the lodgment of the private caveat, which had resulted in the 1st, 2nd and 4th Defendants committing fraud by registering the transfer of title to the 1st Defendant. [45] The Plaintiff further alleges that the 5th Defendant was negligent in not entering the Plaintiff’s private caveat in a timely manner and that the 5th Defendant ought to have taken immediate and reasonable steps to prevent fraud or improper dealings in the said land in contravention of the said court order. 47 [46] The evidence shows that the 5th Defendant had rejected the Plaintiff’s application for entry of the private caveat as the application was not accompanied by a certified true copy of the order of court dated 21.6.2012. The witnesses for the 5th Defendant stated that it is the requirement of the land office that whenever any dealings or registration relating to land is purported to be done in compliance of a court order, a certified copy of that court order is required to be enclosed with the application. Learned counsel for the 5th Defendant submits that the rejection of the entry of the Plaintiff’s private caveat was done bona fide in accordance to the provisions section 322(7) of the National Land Code, and the procedures in place at the material time. The 5th Defendant had issued a notice of rejection to the Plaintiff stating that the documents were incomplete in that certified copy of the court order was not enclosed. The 5th Defendant had expeditiously and rejected the Plaintiff’s application on 15.1.2014, i.e. 5 days after the lodgment of documents. When any application for lodgment of a private caveat is made over the counter, there is a notice printed in the payment receipt issued by the 5th Defendant’s office to the effect that the applicant is to collect the documents presented after 7 days. Now, if the Plaintiff’s solicitors had acted in accordance to that 7 day’s notice, and called to check on its status at the 5th Defendant’s office, they would have known that the Plaintiff’s application to 48 enter the private caveat had been rejected. The Plaintiff’s solicitors only called at the 5th Defendant’s office sometime on 7.5.2014 to enquire as to the status of the Plaintiff’s application. This was some 5 months after presentation of the documents for the registration of the private caveat. [47] The practice of the 5th Defendant’s office is that whenever any application is rejected, the letter notifying the decision of the 5th Defendant is not posted or dispatched to the applicant, but it is rather kept in the 5th Defendant’s office for collection by the party making the application. In this regard, the party lodging any documents for registration, in this case, the solicitors for the Plaintiff, would have to follow up and make enquiry within the next few days to ensure that the registration has been done, and if rejected, collect the letter notifying the rejection from the counter staff. In the present case, the Plaintiff’s solicitor did not follow up on the application until after some 5 months later. I find that this is entirely the fault of the Plaintiff’s solicitors. They ought to have followed up expeditiously with the 5th Defendant’s office. Hence, I do not find any default or negligence on the part of the 5th Defendant in rejecting the Plaintiff’s application for lodgment of the private caveat. Nor do I find any fault or shortcoming on the part of the 5th Defendant in not posting or dispatching the letter of rejection. The 5th Defendant’s conduct was reasonable in the circumstance and done in 49 accordance to the law and procedure in place at the material time. Wherefore, I dismissed the Plaintiff’s claim against the 5th Defendant with cost of RM15,000. Orders accordingly. Dated this 24th day of September 2018. Vazeer Alam Mydin Meera Judge High Court in Malaya Shah Alam 50 SENARAI NAMA PEGUAMBELA & PEGUAMCARA Tetuan Patrick Dass & Co,. Peguambela & Peguamcara No. 34-2, Jalan 2/109E Desa Business Park Taman Desa Off Jalan Klang Lama 58100 Kuala Lumpur Tel : 03-79813535 Fax : 03-7980 2413 Tetuan Kalai & Partners Peguambela & Peguamcara No. 14A-3 Tingkat 2 Jalan 14/20 Seksyen 14, 46100 Petaling Jaya Tel : 03-79552335 Fax: 03-79576917 Tetuan Govin T.Durai & Co Peguambela & Peguamcara No. 12A, Lorong Batu Nilam 21B Bandar Bukit Tinggi 2 41200 Klang , Selangor Tel: 03-33232747 Fax: 03-33231547 Kamar Penasihat Undang-Undang Negeri Selangor Darul Ehsan Tingkat 4, Podium Utara