JUDGMENT

Mohd. Azmi SCJ:

The appellant is one of the purchasers of new terrace houses in Semenyih, developed by Hew Brothers Holding Sdn. Bhd. (hereinafter referred to as "the company"), of which the respondent is the managing director. The land - the subject matter of the present dispute on which the house stands, is held under GM No. 422 [formerly HS(M) 1364A] No. PT 4022 Mukim of Semenyih. Due to the private caveat entered by the respondent on the said land, the appellant is prevented from registering the instrument of transfer as required under the National Land Code for the purpose of conveying the land title from the company to her. She therefore applies to the High Court for the removal of the caveat under s. 327 of the NLC. Her application by originating summons was dismissed on 10 August 1989. In the circumstances, the main issue for determination in this appeal is whether the learned Judge is correct in dismissing the application and thereby allows the caveat to continue. The value of the property being less than RM100,000 leave to appeal was granted by the learned Judge on 8 August 1990.

According to the appellant, on 30 March 1987 she purchased the property at the price of RM35,000 from the company vide a Pacific Bank Cheque No. 091197 for which she was issued with an official Receipt No. 1433 by the company (see "Exhibit HSY1"). On the said date, the company through two of its directors executed an instrument of transfer in Form 14A of the NLC in favour of the appellant, which was attested by an advocate and solicitor in the person of Mr. Kong Kim Leng. (see Exhibit "HSY2"). Prior to the presentation of the instrument of transfer for registration, a land search was made and showed the existence of the private caveat entered by the respondent on 29 July 1987 under Presentation No. 461/87 Jilid 31 Folio 51. On 6 July 1988, the appellant through her solicitors, Messrs. Kong Kim Leng & Co., wrote to the respondent requesting him to remove the caveat within seven days as the property had been lawfully purchased by the appellant from the company who was the registered owner. The letter was copied to the company. Despite the said demand, the respondent refused to remove the caveat, which resulted in the filing of the originating summons dated 6 August 1988.

Under s. 323(1) NLC:

The person or bodies at whose instance a private caveat may be entered are:

(a) any person or body claiming title to, or any registrable interest in, any alienated land or any right to such title or interest;

(b) any person or body claiming to be beneficially entitled under any trust affecting any such land or interest; and

(c) the guardian or next friend of any minor claiming to be entitled as mentioned in para. (b).

This Court has recently paraphrased this section in Tan Heng Poh v. Tan Boon Thong & 5 Ors.[1992] 1 CLJ 316 (Rep) (SCCA 02-228 of 1991) see.

Counsel for the appellant Mr. Low Hop Bing contends before us that in the first place the respondent cannot bring himself under s. 323(1) NLC and therefore he has no locus standi to enter the caveat. To this argument Mr. Murthi for the respondent argues that for the removal of the caveat it is for the appellant to show that she is a bona fide purchaser and it is for her to bring an action for specific performance of any sale agreement against the company, and consequently he says the learned Judge is correct in allowing the caveat to continue. If the originating summons had been allowed, so the argument goes, the respondent would be left without a remedy as the appellant would be able to dispose of the property in the meanwhile. Mr. Murthi has brought our special attention to the respondent's allegation that the purchase of the property is in reality a moneylending transaction and is a fraud against the Company by the appellant working in league with one or two of the company's directors. In his affidavit affirmed on 18 April 1989, the respondent alleges in para. 8 that the appellant "was a par