Back
2021 MarsdenLR 2904
HIGH COURT MALAYA ALOR SETAR
SERBA KEMAS SDN BHD – Appellant
Versus
PENTADBIR TANAH KULIM & ANOR – Respondent
[Civil Suit No: KA-21NCVC-2-03/2019]
Defendants were held negligent for failing to register ownership under the National Land Code, supported by previous Court of Appeal findings, thus allowing the Plaintiff to claim damages.
Headnote:(A) National Land Code 1965 – Sections 204A to 204H – Public Authorities Protection Act 1948 – Limitation Act 1953 – Estoppel – Defendants found negligent for failing to register land under correct ownership as per statutory duty – Court of Appeal's judgment established breach of duty and defendants' negligence, allowing the Plaintiff's claim for damages without full trial, ruling that the cause of action was not time barred due to late discovery of negligence. (Paras 1, 30, 35, 44)
(B) Questions of Law – Court adjudicated that the judgment by the Court of Appeal estops the Defendants from denying negligence, leading to entitlement for damages by the Plaintiff. (Paras 30, 35)
Facts of the case: Plaintiff sought to establish negligence of 1st Defendant regarding the registration of land ownership, following an earlier Court of Appeal ruling which deemed their actions under the National Land Code as negligent. (Paras 1-2, 4)
Findings of Court: The Plaintiff's application allowed with costs awarded against Defendants for their admitted omissions and statutory breaches under the National Land Code. (Paras 25, 45)
Issues: Whether the Defendants are estopped from denying negligence following the Court of Appeal's judgment and if the Plaintiff’s claim was time-barred. (Paras 30, 35)
Ratio Decidendi: The Defendants were held negligent for failing to register the land ownership correctly under statutory obligations which had already been established by the Court of Appeal. (Paras 30, 31)
Result: Application allowed, costs of RM2,000 to be paid by the Defendants.
JUDGMENT
Introduction
[1] This is the Plaintiff's application in encl 12 pursuant to Order 14A of the Rules of 2012 and/or Order 33 r 2 of the Rules of 2012 and/or the inherent jurisdiction of the Court for the following orders, namely:
(a) The determination of the following questions without the full trial of the action:
(i) Whether the 1st Defendant is estopped from denying its act of negligence against the Plaintiff for the reason that the Court of Appeal in Appeal No K-01-699-11/2011 had adjudicated that the 1st Defendant had breached its statutory duty under s 204A to 204H of the National Land Code 1965 by deciding the ownership of the subject land, namely H.S (M) 960/96 Lot No Pt 57000 Bandar Kulim?
(ii) Whether the Defendant's omission in exercising its duty under National Land Code 1965 that was admitted in their defence sufficiently constitute an act of negligence against the Plaintiff?
(b) If the answer to 1(a) and /or 1(b) is in the positive, the action be allowed and damages to be assessed by this Honourable Court;
(c) The costs of and incidental to this application be borne by the Plaintiff.
[2] The grounds for this applications are the followings:
(a) The act of negligence arose from the Court of Appeal Judgment in Appeal No K-01-699-11/2011 when the Court of Appeal had ruled that the 1st Defendant was not vested with the discretion to determine the ownership of the subject land;
(b) The 1st Defendant ought to have registered the subject land under the names of Meenachi and Caynman Development Sdn Bhd By failing to appreciate its duty under National Land Code, the 1st Defendant acted negligently;
(c) The Defendants admitted that it was its omission to register the name of Meenachi on the subject land. By the said admission, it is sufficient for this Honourable to establish the issue of liability against the Defendants;
(d) The questions posed herein are suitable for determination without the full trial of the action, given that they relate to the interpretation of judgment in the Court of Appeal only, as well as issues of law which involves undisputed facts.
The Cause Papers
[3] The Bundle of Pleadings has been filed as encl 12. The relevant affidavits pertaining to Plaintiff's application are as follows:
(a) Writ and the Statement of Claim dated 5 Mac 2019 ("Enclosure 1").
(b) Statement of Defence dated 2 June 2019 ("Enclosure 7")
(c) Affidavit In Reply to the Defence dated 8 July 2019 ("Enclosure 8")
(d) Plaintiffs Notice of Application dated 14 July 2019 ("Enclosure 12")
(e) Affidavit In Support affirmed by Ang Siak Ewe dated 14 July 2019 ("Enclosure 13")
(f) Defendant's Affidavit In Reply affirmed by Abdul Gafar bin Yahya dated 8 September 2019 ("Enclosure 14")
(g) Plaintiffs Affidavit In Reply dated 29 September 2019 ('Enclosure 16")
[4] Having read encl 12 and all the Affidavits and written submissions filed, I have allowed the Plaintiffs application with cost of RM2.000.00.
These are my full grounds for the decision.
Background Facts
[5] The Plaintiff is a company incorporated in Malaysia and having its registered office at No 232, Taman Kota Jaya, Kota Sarang Semut 06800 Alor Setar, Kedah. The 1st Defendant is the Pentadbir Tanah Daerah Kulim in Kedah and having its registered address at Pejabat Tanah Kulim, 09000 Kulim, Kedah. The 2nd Defendant is the State Government of Kedah and having its address at Aras 4 Blok B, Wisma Darul Aman, 05503 Alor Setar, Kedah Darul Aman, Malaysia. The 2nd Defendant is sued on the basis that it is responsible for the acts and/omissions of the 1st Defendant and/or his servants or agents.
[6] On 18 September 1995, Cayman Development Sdn Bhd ("Cayman Development") entered into a joint-venture agreement ("JVA") with Meenachi Holding and Trading (M) Sdn, Bhd ("Meenachi") with the intention to develop several pieces of land owned by Meenachi and Cayman Development respectively. Pursuant to the JVA, Cayman Development was under a duty to make necessary applications to the relevant auth
