Siti Norma Yaakob JCA:

[1] The only issue raised in this appeal is whether the respondent has a caveatable interest in a piece of property which has been purchased by the appellant, that entitles her to lodge a private caveat in the first place. In the Court below, the trial Judge held that she has, in proceedings commenced by the appellant to have the caveat removed, and it is to appeal against the dismissal of the appellant's application to have the private caveat removed that the present appeal is founded.

(1) Whether the respondent has disclosed a caveatable interest under s 323(1) of the National Land Code

(2) Whether the evidence discloses a serious question to be tried.

(3) Whether the balance of convenience lies in favour of the caveat continuing to remain on the register.

[3] The caveat in these proceedings is lodged against Lot 1915 held under Grant No 3548, Mukim Durian Tunggal, Daerah Alor Gajah, Melaka. The land was originally registered in the name of Kumpulan Realty Melaka Sdn Bhd, now under liquidation. Kumpulan Realty charged the land as security for a loan granted by Mayban Finance Berhad. When Kumpulan Realty defaulted, Mayban Finance as the chargee, decided to sell the land. This was achieved by Mayban Finance giving an option to purchase dated 4 September 1992, to a company known as Airport Auto Centre Sdn Bhd The respondent is a Director of Airport Auto.

[4] As Airport Auto had no funds to purchase the land, it assigned all its rights under the option to the appellant by letter dated 5 October 1992. Mayban Finance had no objection to this arrangement and by a Court order dated 30 November 1992, giving leave to the Official Receiver as the liquidator for Kumpulan Realty to sell the land, and a sale and purchase agreement dated 6 January 1993, executed by the Official Receiver as the liquidator for Kumpulan Realty (the vendor) with the appellant (the purchaser) and Mayban Finance (the chargee), the appellant purchased the land together with two other lots at the agreed price of RM1.1 million.

[5] The appellant has every intention to develop all the three lots into a housing estate and it is the respondent's contention that her company, Airport Auto, would enter into a joint venture agreement with the appellant for that project. As evidence of this, the respondent produced an unsigned joint venture agreement which the appellant refused to execute. It was following the appellant's conduct in refusing to acknowledge Airport Auto as a partner of the housing project that the respondent lodged the caveat on 7 July 1993, to protect her company's interests in the land. At the same time, Airport Auto filed Malacca High Court Civil Suit No: 22-111-93 on 14 December 1993, against the appellant and Kumpulan Realty, praying for a number of reliefs, but as against the appellant, Airport Auto's principal reliefs are:

(1) for a declaration that between them there exists a valid and enforceable joint venture agreement over the land.

(2) that the appellant execute the joint venture agreement.

[6] It is the respondent's contention that although Airport Auto has no contractual obligations with the appellant over the land, nevertheless she claims that by virtue of Airport Auto's prayer for a declaratory decree in the civil suit, she has a caveatable interest over the land. For this she relies on the decision reached in the case of Raju M Kerpaya @ Jayaraman Kerpaya v. Kwong Yik Bank Berhad & Anor, [1994] 2 MLJ 408, where the Supreme Court held that "a person who is entitled to initiate an action for a declaratory decree affecting his rights under the National Land Code is just as entitled as a person seeking for a specific performance or an injunction to enter a caveat pending the disposal of his suit.

[7] By analogy, the respondent argues that her company's claim for a declaratory relief in the civil suit is sufficient to clothe her with the necessary int