Back
2021 MarsdenLR 2858
HIGH COURT SABAH & SARAWAK BINTULU
TIONG KING CHAI
[Originating Summons No: BTU-24-6/3-2021]
A claim for a mere debt does not provide a caveatable interest under the Sarawak Land Code; an interest must be registrable.
Headnote:(A) Sarawak Land Code (SLC) – Sections 173 and 177 – Caveat against dealing with land – Application for removal of caveat lodged by Deceased Caveator dismissed as the claim was solely for a monetary debt – A mere debt does not provide a caveatable interest; interest must be capable of registration – The caveator failed to show sufficient grounds for maintaining the caveat without any enforcement of rights. (Paras 4, 5, 14, 17, 20, 23)
Facts of the case: The Applicant sought to remove a caveat lodged by the Deceased Caveator, claiming an interest based solely on a monetary loan agreement, which the court found insufficient to sustain a caveatable interest.
Findings of Court: The Court found that the caveat was based on a debt claim, and mere monetary claims do not confer caveatable interest, thus allowing the removal application.
Issues: The main issue was whether the caveat was justifiable based on a debt alone.
Ratio Decidendi: The Court held that a caveatable interest must be a registrable interest and that debts do not qualify.
Result: Application allowed.
JUDGMENT
[1] This is an application by the Applicant, Tiong King Chai (f) made via Originating Summons (OS) pursuant to s 177 of the Sarawak Land Code (Cap 81) ( SLC ) for the removal of a private caveat lodged under s 173 of the entered by Huong Haw Seng, the Deceased Caveator affecting the Applicant's % share in all that parcel of land together with one unit of four storey intermediate terrace shophouse described as Lot 921 Block 921 Block 31, Kemena Land District situated at Tanjong Batu, Bintulu. The application was resisted by the Respondent on the ground that she had a beneficial interest in the said property.
[2] The material facts as summarised in the Applicant's written submissions are as follows:
(a) The Applicant is one of the registered owners holding % undivided right, title, share and interest in all that parcel of land together with one unit of four storey intermediate terrace shophouse thereon and appurtenances thereof situate at Tanjong Batu, Bintulu, containing an area of 133.7 square metres, more or less, described as Lot 921 Block 31 Kemana Land District ("the said property").
(b) On the 11 November 2019, one Huong Haw Seng (Deceased) ("the Deceased Caveator") lodged a caveat against the Applicant's % share in the said property which was registered at the Bintulu Land Registry Office as Instrument No.L.5336/2019, as the Deceased Caveator claimed to have an interest in the said property under a Statutory Declaration dated 25 October 2019.
(c) The said Statutory Declaration declared that based on an Agreement dated 11 October 2019, Tiong King Chai (Applicant) confirmed that as a security to the repayment of the debt owed by her, she has agreed to transfer and even signed the Memorandum of Transfer in escrow for the said property above in favour of the Deceased Caveator to off-set the debt that she owed to the Deceased Caveator as stated under cl 3 and 4 of the said Agreement.
Applicable Law
[3] In Sarawak, the entry of a private caveat is governed by s 173 of the Sarawak Land Code (Cap 81).
"Caveat against dealing
173. Any person-
(a) claiming to be entitled to or to be beneficially interested in any land, estate or interest under this Code by virtue of any unregistered agreement or other instrument or transmission, or of any trust express or implied or otherwise howsoever, or by virtue of a license issued pursuant to s 65B of the Forests Ordinance [Cap 126 (1958 Ed.)] for the establishment of a planted forest;
[Am. Cap. A42.]
(b) who is a guardian of the property of an infant beneficially interested in any land or any estate or interest therein; or
(c) transferring any estate or interest under this Code to any other person to be held in trust, may at any time lodge with the Registrar a caveat in Form O in the First Schedule."
[4] Section 177 of the Sarawak Land Code (Cap 81) governs the removal of private caveat by the Court. It reads:
"Procedure for removal
177. - (1) Any registered proprietor or any other person having a registered estate or interest in the estate or interest against which a caveat has been lodge, may at any time, if he thinks fit, apply to the High Court for an order that the caveat be removed.
(2) The Court, upon proof that notice of such application has been duly served, may make such order in the premises, either ex parte or otherwise, as in the circumstances seems just."
[5] In an application to remove a caveat under s 177 of the Sarawak Land Code (Cap 81), the test to be applied in determining whether a caveat should be removed is stated in the Court of Appeal case of Luggage Distributors (M) Sdn Bhd v. Tan Hor Teng, . In that case, the Court laid down a three stage test to determine whether a caveat can be maintained. Gopal Sri Ram JCA elucidated the test in these words:
"The first stage is the examination of the grounds expressed in the application for the caveat. If it appears that the grounds stated therein are insufficient in law to support a caveat, then cadit quaestio, and the
