Caveatable interest must be grounded in existing rights and cannot arise from mere contractual agreements or contingent interests awaiting approval, as reaffirmed by statutory provisions.

Introduction

[1] This is an application by Sinohydro Corporation (M) Sdn Bhd ("the Plaintiff") in Originating Summons MA-24NCVC-413-10/2023 ("the OS") for the removal of the private caveats lodged by Bidari Kekal Sdn Bhd ("the Defendant") against 13 parcels of land ("the Lands"). The application was made under s 327(1) National Land Code (" NLC ").

[2] The details of the Lands are stated in "Jadual A" of Enel. 1. At all material times KAJ Development Sdn Bhd ("KAJ") were the registered owners of these lands situated in the district of Melaka Tengah in the state of Melaka.

[3] After hearing parties and perusing the affidavits filed by them, I decided to allow the Plaintiffs application to remove the caveats. The Defendant appealed against this decision.

[4] To fully appreciate the key issues in this case it is essential to track the history of the litigation and chronology of events that led to this application.

Chronology And Background Facts

[5] This case has a chequered history as the sequence of events will show.

[6] KAJ was the developer of the "Melaka Gateway Project" ("the project"). The Plaintiff was engaged by KAJ to carry out works known as "Design and Build Contract for the Reclamation and Related Works" for a portion of the 609 acres of land at the Project.

[7] A dispute arose between the Plaintiff and the Defendant in respect of payments for the work done by the Plaintiff. On 18 June 2019 the Plaintiff initiated proceedings against the Defendant pursuant to the Construction industry Payment and Adjudication Act 2012 ("CIPAA 2012") for the outstanding payment for work done by the Plaintiff for the project pursuant to the construction contract between KAJ and the Plaintiff.

[8] On 21 October 2020 the appointed adjudicator handed down an Adjudication Decision dated 21 October 2020 favouring the Plaintiff and directed KAJ to pay the Plaintiff the sum of RM205,805,673.05 together with interests and costs ("the Adjudication. Decision").

[9] On 29 December 2020 the Plaintiff made an application through the High Court at Kuala Lumpur in Originating Summons WA-24C-250-12/2020 to enforce the Adjudication Decision as if the judgment was an order of the High Court. This was pursuant to s 28 of the CIPAA 2012.

[10] On 16 April 2021 the High Court allowed the Plaintiffs application and granted an order to enforce the Adjudication Decision ("the Enforcement Order"). By the Enforcement Order KAJ was ordered to pay the sum of RM202.180,729.25 together with interest and costs to the Plaintiff.

[11] Being dissatisfied with the Adjudicator's decision KAJ had applied to the High Court to set aside the Adjudication Decision. The application was dismissed. The appeal to the Court of Appeal was also dismissed on 31 July 2023.

[12] On 19 April 2021 KAJ appealed to the Court of Appeal against the Enforcement Order by way of Civil Appeal No. 02(C)(A)-835-04/2021 ("KAJ's Appeal No 835").

[13] On 7 November 2022 the Plaintiff applied to the High Court for an Order to Seize the Lands in execution of the Enforcement Order pursuant to O 47 r 6 of the Rules of Court 2012 ("ROC 2012").

[14] On 11 November 2022 the High Court issued a Writ of Seizure and Sale and Prohibitory Order ("PO") to seize the lands. The PO dated 11 November 2022 was presented for registration at the registry of titles on 23 November 2022 and was accordingly registered on the Register Document of Title in respect of the Lands. The PO was valid for 6 months until 10 May