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2020 MarsdenLR 1238
HIGH COURT MALAYA SHAH ALAM
PERMODALAN NEGERI SELANGOR BERHAD – Appellant
Versus
UNIJAYA TEKNOLOGI SDN BHD & ANOR – Respondent
[Civil Suit No: BA-22NCvC-308-07/2019]
A caveatable interest must be registrable under Section 323 of the National Land Code; mere contractual rights do not suffice for maintaining a private caveat.
Headnote:(A) National Land Code – Sections 323, 326, and 327 – Private caveat – The 2nd Defendant's application for extension of a caveat on the Plaintiff's land was dismissed, as the 2nd Defendant failed to establish a caveatable interest under s 323, which requires proof of a registrable interest. The Court held that the Joint Venture Agreement (JVA) did not confer any caveatable interest, instead establishing only a contractual right. The Plaintiff was entitled to apply to remove the caveat without restriction. (Paras 27-39)
(B)
Caveatable Interest – The court clarified that a caveator must present sufficient grounds to justify the lodgement and maintenance of a private caveat, including disclosing a serious issue for trial and establishing the balance of convenience. (Paras 10-15)
JUDGMENT
Introduction
[1] Enclosure 13 is the 2nd Defendant's application under s 326(2) National Land Code for an extension of a Private Caveat entered on 14 January 2019 upon the Plaintiff's land known as Lot 2164 PN 31844, Bandar Baru Salak Tinggi, Sepang, Negeri Selangor (the said property).
[2] The application is supported by the Affidavit of Tan Cheng Choo, the 2nd Defendant's director. This is found in encl 14.
[3] The Plaintiff filed its Affidavit In Reply in encl 18 opposing the application. The 2nd Defendant filed encl 19 which is its Affidavit in Reply to the Plaintiff's Affidavit in Reply in encl 18.
Background
[4] The background facts which have led the 2nd Defendant to file this application is as follows:
[5] The Plaintiff is the registered proprietor of the said land. The Plaintiff filed this suit against the 1st Defendant and 2nd Defendant on 19 July 2019 for inter alia a declaration that the Perjanjian Usahasama dated 20 August 2018 and Power of Attorney dated 29 October 2019 purportedly entered into by the Plaintiff and the 1st Defendant is forged and therefore invalid.
[6] The claim against the 2nd Defendant is for an order pursuant to s 327 National Land Code to remove the private caveat lodged by the 2nd Defendant against the said property.
[7] On 27 December 2018 the 1st and 2nd Defendants entered into a Joint Venture Agreement to jointly develop the land. Based on the JVA the 2nd Defendant agreed to undertake to construct and complete the project known as "Pembangunan Bercampur di Atas Tanah Hakmilik PNSB PN 31844 Lot 2164 Mukim Dengkil, Daerah Sepang, Selangor Darul Ehsan Seluas 100 Ekar Serta Lot PN 3138448, HAS 3138448 Mukim Dengkil, Daerah Sepang, Selangor Darul Ehsan Seluas 23 Ekar (hereinafter referred to as "the Project"). The sum of RM 1,250,000.00 was paid as a deposit to the Plaintiff's representative on the 1st Defendant's behalf. To protect its interest on the said land and in pursuance to cl 3(e)(v) of the JVA, the 2nd Defendant lodged a Private Caveat on the said property.
[8] The application to enter the Private Caveat in Form 19B contain the grounds for lodging the Private Caveat. It states:
"2. Alasan-alasan tuntutan kami ke atas *tanah* itu ialah
Merujuk kepada Perjanjian Usahasama yang bertarikh 20 August 2018 dibuat di antara Unijaya Teknologi Sdn Bhd (288829-H) pemegang kuasa bagi tuan tanah, Permodalan Negeri Selangor Berhad 9206347- V) dan kami, bagi menjaga kepentingan kami yang telah menjelaskan sebahagian wang pendahuluan dan oleh demikian kami memasukkan kaveat persendirian sehingga penyelesaian atas perjanjian tersebut."
[9] Whilst pleadings in the main suit have closed the Plaintiff made an application to the Selangor Land Office under s 326(1) of the National Land Code to remove the private caveat that was lodged by the 2nd Defendant. The application in encl 13 is to prevent the Plaintiff from doing so.
The Law
[10] In order to appreciate the issues raised by the opposing parties it is necessary to refer to the provisions of the National Land Code that are relevant.
Section 323 . Applications for entry of private caveats.
(1) The persons and bodies at whose instance a private caveat may be entered are:
(a) any person or body claiming title to, or any registrable interest in, any alienated land or undivided share in any alienated land or any right to such title or interest;
(b) any person or body claiming to be beneficially entitled under any trust affecting any such land or interest; and
(c) the guardian or next friend of any minor claiming to be entitled as mentioned in paragraph (b).
Section 326 . Removal of private caveats by Registrar
(1) Any person or body whose land or interest is bound by a private caveat may at any time apply in Form 19H to the Registrar for its removal, and such application shall be accompanied by the prescribed fee.
(1A) On receiving any application for removal under this section the Registrar shall:
(a) Serve upon the person or body at whose instance the ca
