JUDGMENT

(Enclosure 1)

Shamsul Bahrin Abdul Manaf JC:

[1] This judgment is with regard to an application by the Plaintiff to remove a private caveat lodged by the Defendant on a piece of land held under title PN3024, Lot 5056, Mukim Panchor, Jajahan Kota Bharu, Negeri Kelantan Darul Naim ("the Property").

Background Facts

[2] The Plaintiff is the registered proprietor of the Property

[3] Defendant is a director and shareholder of the Plaintiff.

[4] Plaintiff had obtained financing for the development and operations of the Property and had entered into 2 debentures dated 5 February 2018, debenture (Specific Assets) dated 3 November 2020, and Debenture (Specific Assets) dated 7 March 2021, and the Property was charged to Bank Islam Malaysia ("Bank Islam"), who is the debenture holder.

[5] Plaintiff was wound up pursuant to an order of Kota Bharu High Court dated 29 November 2022. Subsequently, Mok Chew Yin and Bernard Tan Chek Hean were appointed as the joint and several Receivers and Managers of the Plaintiff ("R&M").

[6] In the discharge of their duties, the R&M conducted 3 open tenders for the sale of the Property. The 1st open tender was carried out from 17 April 2023 to 17 May 2023 and was advertised in 5 local newspapers. The 2nd open tender was carried out from 26 February 2024 to 1 April 2024 and was advertised in 6 local newspapers, and the 3rd open tender was carried out from 23 September 2024 to 23 October 2024 and was advertised in 6 local newspapers.

[7] The 3rd open tender resulted in the Property to be sold to the successful bidder, one Tl KCP Sdn Bhd ("Tl KCP"). The Sale and Purchase Agreement was executed on 21 February 2025, and is pending completion.

[8] The sale of the Property cannot be completed as the Defendant had, on 13 May 2025 entered a private caveat on the Property resulting in the Plaintiff not being able to transfer the Property to Tl KCP.

[9] Plaintiff then filed an application to remove the private caveat (encl 1) with a certificate of urgency. Encl. 1 was initially fixed for hearing on 15 October 2025, but was adjourned because the Defendant filed an application for a stay of proceedings (encl 13) on 13 October 2025.

[10] Although encl 1 was fixed for hearing on 15 October 2025, the counsel for the Defendant did not turn up in Court , but instructed a solicitor to mention on his behalf at the hearing. The hearing of encl. 1 was adjourned to 29 October 2025, and I awarded costs of the day in the sum of RM8,000.00 to the Plaintiff as 2 counsel for the Plaintiff appeared and were ready to proceed with the hearing on 15 October 2025.

[11] At this juncture, it is worth mentioning that the decision to adjourn or proceed with a hearing is the sole discretion of the Court . I was surprised that the counsel for the Defendant did not attend the hearing fixed for encl 1 just because the Defendant had filed an application for a stay of proceedings and the solicitor mentioning on his behalf informed the Court that the hearing of encl 1 could not proceed in light of the filing of encl 13. On this note, the parties should not assume that the hearing would be adjourned and made a unilateral decision not to attend the hearing without a formal adjournment being granted by the Court .

[12] At the proceedings on 15 October 2025, I informed the counsel including the solicitor mentioning on behalf of the Defendant's solicitors that I will hear the stay application first on the 29 October 2025, and will proceed with the hearing of encl 1 if the stay is dismissed.

[13] After the hearing of the stay application, I found that there is no special circumstances warranting a stay of the proceedings and proceeded to hear encl 1.

Analysis And Decision

[14] In order to determine if the private caveats should be removed, it is important for this Court to first determine whether the Defendant has a caveatable interest in the Property. Defendant lodged the private caveat pursuant to s 323(1)(a) of the NLC which provides as follows:

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