A lender is not liable for negligence in the transfer of property title, as this duty lies with the parties of the Sale and Purchase Agreement.

Introduction

[1] The Plaintiff, who is the administratrix of her late father's estate, has a valid grievance in commencing the present action. The Plaintiff's late father, through a Sale and Purchase Agreement dated 2 March 2000 bought a house from the 1st Defendant for the sum of RM92,000.00.

[2] To partially finance the purchase, the Plaintiff's late father obtained a loan from the 2nd Defendant in the sum of RM25,000.00, with an additional RM463.00 imposed for takaful charges. The agreed repayment period was 15 years, with monthly instalments of RM245.00. By a letter dated 4 May 2018, the 2nd Defendant informed the Plaintiff's late father that the loan had been fully settled and invited him to meet with the bank to discuss the release of the original title to the house.

[3] To date, the title remained in the name of the vendor, namely the 1st Defendant, prompting the Plaintiff to commence the present action in seeking for the title of the house to be registered in the Plaintiff's name. The Plaintiff has named two Defendants, Radzali bin Ahmad Koldi (the vendor) and Maybank Islamic Berhad (the lender) as the 1st and 2nd Defendants respectively.

[4] This decision concerns a Notice of Application in encl 12, that is, the 2nd Defendant's application for the Plaintiff's Amended Statement of Claim against it to be struck out pursuant to O 18 r 19(1)(a), (b) and/or (d) of the Rules of Court 2012.

The Overarching Issue

[5] The predominant issue is whether this is a proper case for this Court to exercise it discretion to strike out the Plaintiff Amended Statement of Claim against the 2nd Defendant.

The Plaintiff's Claim Against The 2nd Defendant

[6] Based on the Amended Statement of Claim (in Enclosure 7), the Plaintiff's claim against the 2nd Defendant is premised on the cause of action of negligence. The Plaintiff alleged that the 2nd Defendant was negligent in failing to take steps to transfer the original title of the house from the name of the 1st Defendant to the name of the Plaintiff's late father.

[7] The particulars of negligence of the 2nd Defendant can be broadly summarized as follows:

(a) failure to deal with the issue as to why the said house was not transferred into the name of the Plaintiff's late father and failure to register the Plaintiff's late father as owner;

(b) failure to inform the Plaintiff's late father prior to the settlement of the loan;

(c) failure to register a charge;

(d) failure to complete the documentation for the transfer of ownership prior to making payment of the loan sum to the 1st Defendant; and

(e) failed to complete the documentation following the regular process of a Sale and Purchase Agreement.

[8] Plaintiff prayed for the 2nd Defendant to bear the cost of transfer, general damages amounting to RM200,000.00 and special damages amounting to RM5,000.00.

The 2nd Defendant's Contentions In Support Of Its Striking Out Application

[9] As noted, the 2nd Defendant's application was made pursuant to O 18 r 19(1)(a), (b) and/or (d) of the Rules of Court 2012 and was premised on the following grounds:

• That the Plaintiff has no reasonable cause of action against it and the claim is frivolous and vexatious and abuse of Court process;

• That it is not the duty of the 2nd Defendant to take steps to transfer the title of the house from the name of the 1st Defendant to the Plaintiff's late father;

• That pursuant to cls 1, 4 and 5 of the Sale and Purchase Agreement, it is for the 1st Defendant, the Plaintiff's late father and Messrs Panneer & Co being solicitors acting for the Plaintiff's late father in the sale and purchase transaction, upon completion of