Shaik Daud Ismail JCA:

This is an appeal from the decision of the Shah Alam High Court which had dismissed the appellant's originating summons for the removal of a private caveat entered by the respondent over the appellant's lands.

The appellant is a registered owner of all lands comprised in H.S.(D) 21918 up to H.S.(D) 21921 in the Mukim of Rawang, Selangor, on which is situated a golf course and country club called the Kundang Lakes Country Club Berhad. The respondent, a firm of contractors, entered into a contract with the appellant dated 12 March 1993, whereby the respondent undertook to do turfing work at the appellant's golf course. On completion of this work, there was allegedly a balance amount of RM668,011.03 due from the appellant to the respondent. A dispute arose on this balance with the appellant denying owing the respondent any amount and resulting in the respondent filing a petition to wind-up the appellant vide Winding-Up Petition No. 28-4-95. This petition was strenuously contested by the appellant on the ground that no money was owing to the respondent but that the respondent had in fact been overpaid. When the petition came up for hearing, the respondent withdrew the petition. Subsequently, the respondent filed a suit against the appellant claiming the same amount as owing, which suit is pending in the Shah Alam High Court.

The respondent then entered a private caveat over the appellant's lands. The appellant then filed this originating summons to have the caveat removed. At the hearing of the originating summons, the learned judge held that there are disputed issues in the affidavits which gave rise to serious issues to be tried, and further held that in the light of this it was improper for the appellant to file the originating summons and in exercising his discretion under O. 28 r. 8, directed that the originating summons be converted into a writ.

With respect, we are of the view that the learned judge went completely off tangent in arriving at the conclusion as he did. It is plain to us that the only issue for the learned judge to decide in the originating summons, is whether the respondent has a caveatable interest over the appellant's lands. The issue appears to be quite straight forward. The respondent filed a suit against the appellant for the recovery of monies allegedly due and owing. The respondent then entered a private caveat over the appellant's lands. The appellant filed an application for the removal of the caveat on the ground that the respondent had no caveatable interest. Therefore, the only issue to be decided is whether the respondent has a caveatable interest in order for the caveat to subsist. With respect, this the learned judge failed to consider at all.

The appellant had throughout contended that the respondent had no caveatable interest over its lands since the respondent's claim is for an alleged debt or monies allegedly owing. While not seriously denying this, it was the contention of the respondent that the appellant (without condescending to particulars) had given an undertaking that it would sell all those lands in question in order to repay the balance claimed by the respondent, and it was apparently on the strength of this representation that the respondent lodged the caveat. The respondent further mentioned that the representation gave rise to a proprietory estoppel and as such there existed a constructive trust enabling the respondent to lodge the caveat.

We find no merits in the contention of the respondent. The so called representation was a bare allegation without condescending to particulars. The appellant is a private limited company, but there is no evidence as to the identity of the person or persons who could have made the alleged representation on behalf of the appellant.

It is trite law that a claim for a mere debt cannot give rise to a caveatable interest. In the case of the Registrar of Titles Johore v. Temenggong Securities Ltd. [1976] 2 MLJ 44