The indefeasibility of registered titles under the National Land Code prevails over unregistered interests, and claims of fraud or abuse must be substantiated with clear evidence.

JUDGMENT

Lau Bee Lan JJCA:

Introduction

[1] This appeal was brought by the Appellant/Plaintiff against the decision of the learned High Court Judge made on 23 February 2017 dismissing the Appellant/Plaintiff's claim against the 1st, 2nd, 3rd and 4th Respondents/1st, 2nd, 3rd and 4th Defendants with costs of RM400,000.00 on an indemnity basis ie, RM100,000.00 per Respondent/Defendant.

[2] We shall refer to the parties as follows: Appellant/Plaintiff as MBB, 1st to 4th Respondents/1st to 4th Defendants as Sparrows & Arrows, Kopetro, Nga and Liang, respectively.

[3] This Court had directed that the 2nd Respondent/2nd Defendants Notice of Motion (Encl 16a) to adduce fresh evidence be heard and disposed of together with the appeal proper. Having heard and considered the respective parties' oral and written submissions and the relevant Records of Appeal, we had adjourned the appeal for decision after requesting the parties to parties to submit further on issues which arose at the hearing on 19 June 2020, namely: (i) can a lawyer carrying out his legal duty be found liable for abuse of process?; (ii) can fraud be established if there is no benefit/advantage gained by the perpetrator?; and other issues which arose during the hearing.

[4] This is our judgment in respect of the appeal proper and Kopetro's Notice of Motion (Encl 16a) to adduce further evidence.

Brief Facts

[5] The brief facts relevant to this appeal are these. On 13 September 1995, vide a Sale and Purchase Agreement of even date, Sparrows & Arrows purchased Unit No B-05-G, Ground Floor, Block B, Phileo Avenue Parcel 64, Tingkat 1, Bangunan M1-B, Lot 144, s 44 Bandar Kuala Lumpur ('the Megan Avenue Property') from AAB Avenue 11 Sdn Bhd ('the Developer').

[6] On 23 April 1997, Sparrows & Arrows took a loan from MBB ('the Sparrows & Arrows Loan') to part-finance the purchase of the Megan Avenue Property and assigned the same absolutely to MBB as security under the Loan Agreement Cum Assignment ('LACA') dated 23 April 1997.

[7] Sparrows & Arrows defaulted under the loan. On 2 April 2008, MBB entered summary judgment vide Shah Alam High Court Suit No MT1-22-421-2006 ('SAHC Suit') for the sum of RM1,724,928.16 as at 31 January 2006 with interest and costs against Sparrows & Arrows and the guarantors, Chew Nee Hee ('Chew') and Ling Yun Yoke ('Ling') ('the Sparrows & Arrows Judgment').

[8] Ling had 2 term loans with MBB bearing 2 different account numbers: 414329200112 and 414329200105 ('Ling's Accounts'). Ling's Accounts was secured by a charge over a property bearing residential address of No 4, Jalan Setiabakti, Bukit Damansara, Kuala Lumpur ('the Bukit Damansara Property').

[9] Ling defaulted and an order for sale in respect of the Bukit Damansara Property was obtained against Ling on 22 November 2010 ('the OFS') via the Kuala Lumpur High Court Originating Summons No S-24-223-2010 ('the 223 OS'). The proceeds went to settle Ling's 2 term loans with MBB.

[10] Messrs Nga Hock Cheh & Co ('Messrs NHCC'), of which Nga and Liang are partners, was only appointed as Ling's solicitors midway through the 223 OS via a Notice of Change of Solicitors dated 20 May 2011.

[11] Ling and Chew had another account with MBB via a company called the Rock. This debt was sold by MBB to Gale Force. On 22 December 2009, vide Kuala Lumpur High Court Civil Suit No: D5-22-1615-225 ('the Gale Force Suit'), Gale Force obtained a judgment against the Rock (who had secured loan from MBB), Ling and Chew (as guarantors), for the sum of RM2,669,550.90 as at 26 November 2009 together with interest and costs ('Gale Force Judgment').

[12] On 29 October 2010, MBB entered into a consent judgment with HS Dunamis (who secured 2 loans from MBB), Chew and Ling (both stood as guarantors) for the sum of RM286,560.44 as at 30 September 2004 and the sum of RM 178,070.76 as at 30 September 2004 with interest and costs ('HS Dunamis Judgment').

[13] Via letters dated 26 October 2010 and 28 October 2010, MBB and Chew 30 agreed to settle the S