A registered proprietor cannot lodge a caveat unless they demonstrate a caveatable interest distinct from mere ownership; pending legal actions against a developer do not suffice to establish this interest.

MUHAMMAD KAMIL J:

On 29 May 1998 the plaintiff, the caveator, lodged Caveat No L 1255/1988 on Lots 2363, 2365 and 2400 Block 24 Muara[1999] 5 MLJ 533 at 535 Tuang Land District ('the said lands'), at the Samarahan Land Registry. The Registrar of Land and Survey, Samarahan had served on the plaintiff a notice under s 178 of the Sarawak Land Code (Cap 81) that the caveat would lapse on the expiration of three months of the notice. This is the plaintiff's application to extend the caveat until the trial of the plaintiff's actions against the defendants and Rich Baron Sdn Bhd, the developer of the said land.

The application is supported by the affidavits of Tan Kit Theng @ Tan Kheng Meng affirmed on 26 November 1998 and 11 January 1999. The application is opposed by the first defendant's affidavit of Lee Heng Cheong affirmed on 28 December 1998 and the second and third defendants' affidavits of Seow Chaw Jiew affirmed on 18 December 1998 and 26 January 1999.

The plaintiff and his brother (deceased) were co-proprietors (in undivided shares) of a plot of land ('the parent land'), and they had entered into a development agreement with Rich Baron Sdn Bhd ('the developer').Under the agreement it was agreed that after the partition and subdivision of the parent land, ¹/ ₂ share of the parent land, aproximately 2.149 hectares or 5.31 acres, would be transferred to the plaintiff. Rich Baron Sdn Bhd transferred an area of 1.9483 hectares or 4.814 acres, which is less than ¹/ ₂ share of the parent land as agreed. The plaintiff allege that there is a shortage of 0.20 hectare or 0.496 acres which means that the developer had breached the development agreement. Thus, the plaintiff brought an action against the developer for breach of the agreement.

The defendants in this action submitted that under s 173 of the Sarawak Land Code (Cap 81), a registered proprietor cannot caveat his own land and cited the case of Sharifah Mastura bte Tuanku Ibrahim v Wan Aziz Ibrahim 1994 MarsdenLR 1362 Kuland Development Sdn Bhd v Tho Shaw Ping (Originating Summons No 24-30-97-III/II (unreported)).

To maintain a caveat, the caveator must show that he has a caveatable interest in the land. A registered proprietor can caveat his own land if he can show circumstances that affirmatively give rise to a distinct interest in the land other than the fact that he is a registered proprietor. In other words, the proprietor must show a caveatable interest other than by virtue of his beneficial interest as a proprietor. It is upon him to discharge the onus of proving of the circumstances that he has a caveatable interest in the land. See Barry v Heider & Anor (1914) 19 CLR 197; Great West Permanent Loan Co v Friesen & Ors [1925] AC 208; Re an application by Haupiri Courts Ltd (No 2) [1969] NZLR 353; and Sharifah Mastura bte Tuanku Ibrahim v Wan Aziz Ibrahim .

Learned counsel for the second and third defendants, Mr Alvin Chong submitted that under the development agreement the plaintiff had agreed that his share of the parent land (ie Lot 2403) shall be for agricultural purposes. Now, the plaintiff is alleging that his Lot 2403 is smaller than the[1999] 5 MLJ 533 at 536 ¹/ ₂ share as agreed, and that sublots 2363, 2365 and 2400, which in fact had been changed into residential purpose lots, had encroached on to his Lot 2403. As the agreed ¹/ ₂ share (approximately) of the plaintiff was 1.9483 hectares, it had been transferred and accepted by the plaintiff without a murmur. Under clause 19 of the development agreement, it is clearly provided that the mutual rights of the parties shall remain unaffected by the size of the plaintiff's ¹/ ₂ share of the parent land.

Clause 4 of the development agreement and para 7 of the power of attorney allowed the developer to sell Lots 2363, 2365 and 2400. The developer had sold sublots 2363 and 2400 to the second and third defendants, financed by loans from the first defendant.The sale of these sublots was agreed to by the plaintiff. Now the