Low Hop Bing J:

Application

This matter before me raises an issue of critical importance to advocates and solicitors who are entrusted with the responsibility of attesting statutory forms prescribed by Parliament in the National Land Code 1965 in general or Form 19B in particular, as in the instant case. This is an application by way of originating summons in encl. (1) filed by the plaintiff for an order, inter alia, that the private caveat entered by the plaintiff be allowed to remain until Civil Suit No. 22-76-97 is finally determined and disposed of.

For the purpose of this judgment, any reference to a section herein is a reference to that section in the National Land Code 1965, until the context otherwise requires.

Facts Of The Case

The defendant is at all material times the registered owner of a piece of land held under QT(R) 1295, Lot No. 14656, Mukim Klang, Negeri Selangor, together with a bungalow house erected thereon ("the Property").

The plaintiff alleges that the defendant has orally agreed to sell the Property to the plaintiff for a consideration of RM400,000 on the basis of which the plaintiff has instructed his solicitors to prepare a draft Sale and Purchase Agreement ("draft SPA"). The draft SPA was sent to the defendant's solicitors who amended some clauses therein.

The plaintiff alleged that he has accepted absolutely and without qualification all the amendments proposed by the defendant.

However, on 15 July 1996 at 1539 hours, defendant's solicitors faxed a letter to the plaintiff informing the plaintiff that the defendant wishes to discuss further with her son who was due to return from overseas and that the offer to sell the Property was withdrawn.

On 16 July 1996, plaintiff's solicitors informed the defendant's solicitors that a contract clearly existed between the plaintiff and the defendant for the sale of the Property to the plaintiff.

On 16 September 1996, the defendant confirmed that she has no intention to sell the Property at all.

On 18 November 1996, the plaintiff through his solicitors sent a notice requiring the defendant to sell the Property to the plaintiff but the defendant refused to do so, whereupon the plaintiff filed writ No. 22-76-96 on 28 February 1997. The defendant filed her defence on 28 February 1997.

Submissions For The Parties

Since the issue for determination by the court is whether the said private caveat should be allowed to remain, learned counsel for the plaintiff contended that there is a serious question to be tried and that on a balance of convenience, the said private caveat should continue to remain.

Learned counsel for the defendant contended that on the facts of this case, the plaintiff has no caveatable interest. Further, there is also no serious question to be tried. Besides, the balance is not in favour of the continuance of the said private caveat, in which case, the caveat should not be extended but be removed forthwith.

Decision Of The Court

(1) Fundamental Defect In Form 19B

Form 19B is the form prescribed under s. 323 for the purpose of an application for entry of a private caveat. It is a form prescribed by Parliament in order to enable a caveator to make a solemn claim with a view to imposing a serious restraint upon the exercise by the registered proprietor of his rights over his immovable property: per Gopal Sri Ram JCA in Goh Paik Swan v. Ng Choo Lum [1996] 3 MLJ 437, 445 . That being the case, it is absolutely essential for the caveator or his learned counsel to ensure that the form is filled with particulars which reflect both correctness and accuracy. There can be no compromise in ensuring that the particulars contained in the form are both correct and accurate. Where, after a proper perusal of the form, a manifest fundamental error is found, that error may render the entry of a caveat a nullity.

In the instant case, after a careful and proper perusal of Form 19B, I find as a fact that the caveator is the plaintiff ie, Wong Fook Sen