The court held that a co-owner can apply to terminate co-proprietorship without requiring prior partition, emphasizing expedient resolution in property disputes under the National Land Code.

JUDGMENT

Hashim Hamzah JCA:

Introduction

[1] For ease of reference, parties to the present appeal shall be referred to as they were before the High Court.

[2] This is the 3rd and 4th defendants' appeal against the decision of the learned Judicial Commissioner ("JC") on Encl 1, which was delivered on 21 July 2020.

[3] Enclosure 1 is the plaintiffs' application under ss 417 and 145 of the National Land Code 1965 ("NLC 1965") and under O 7 and 31 of the Rules of 2012 (" ROC 2012") seeking, among others, the following reliefs:

(a) the plaintiffs' and the defendants' co-proprietorship or joint ownership over a property known as No 919, Mk 13 Relau 11900 Bayan Lepas, Pulau Pinang erected on Lot No 1852, Mukim 13, Tempat Relau, Daerah Timor Laut, Negeri Pulau Pinang held under Geran Mukim No GM 346 ("the said Property") to be terminated forthwith;

(b) the 3rd defendant to vacate the said Property within 14 days from the date of the order;

(c) the said Property is to be sold by way of a public auction at the current market price or at a price which is not less than RM10,500,000.00, which is the market price calculated as of 21 December 2018;

(d) a licensed auctioneer to be appointed by the Court to manage and conduct the public auction;

(e) both parties in the action to be at liberty to appoint an accredited valuer to prepare a valuation report to determine the current market price of the said Property together with vacant possession;

(f) the net proceeds of the sale of the said Property after the deduction of all cost, charges and all expenses incurred for the sale, including legal fee, valuer's fee and other related charges and cost in respect of the sale and transfer of the said Property be divided equally between the plaintiffs and the defendants calculated based on one- tenth (10%) per person;

(g) both parties to the action are required to execute and complete any documents required to give effect to the order herein after being given seven (7) days' notice; the Deputy Registrar or the Senior Assistant Registrar of the Court be authorised to execute or complete any document and to take all action required to give effect to the order herein; and

(h) the District and Land Office of Daerah Timor Laut in Pulau Pinang or any relevant authorities to be given full authority to transfer the said Property to the name of the purchaser or new owner after receipt of relevant documents to give effect to the order herein.

[4] On 21 July 2020, after hearing both parties, the learned JC allowed the plaintiffs' application in Encl 1 with costs of RM6,000.00, subject to allocatur. The 3rd and 4th defendants were dissatisfied with the decision, hence the present appeal.

Brief Facts

[5] Briefly, the facts in the present case are as follows.

[6] The said Property previously belonged to one Ong Hooi Hong @ Ong Kim Huat ("the deceased"). The deceased was the father of all the plaintiffs and the defendants.

[7] A consent judgment dated 26 February 2014 was recorded between the parties before the High Court of Malaya in Pulau Pinang in Civil Suit No: 22NCVC-260-08-2013. In the consent judgment, the deceased's estate was ordered to be divided equally between the plaintiffs and the defendants.

[8] The said Property was later registered in the names of the plaintiffs and the defendants as joint owners, each holding 10% undivided shares in the said Property.

[9] On 22 July 2019, the plaintiffs, through their appointed solicitors, issued a letter to the defendants notifying their intention to sell the said Property. By way of letters dated 3 August 2019 and 16 October 2019, the 1st and 2nd defendants agreed to sell the said Property. The 3rd and 4th defendants did not reply.

[10] As of December 2016, the said Property was valued at RM10,500,000.00 based on the valuation report dated 21 December 2016. The land has been valued at RM 13,000,000.00 as of October 2019 based on the Updated Valuation Report dated 22 October 2019.

[11] On 1 October 2019, the plaintiffs filed their applic