Registrar\'s Caveat - Summary Land Law II PDF

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Registrar's CaveatSS 319-Official caveat, superior to private caveats To prevent fraud & improper dealings in land To protect the interest of Federal/State Authority, minors, persons of unsound mind, owners who are not in the countryWHEN REGISTRAR'S CAVEAT SHOULD NOT BE ENTERED No RC over la...

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Registrar's Caveat SS 319-321 Official caveat, superior to private caveats To prevent fraud & improper dealings in land To protect the interest of Federal/State Authority, minors, persons of unsound mind, owners who are not in the country WHEN REGISTRAR'S CAVEAT SHOULD NOT BE ENTERED No RC over land which the V merely holds as bare trustee for the P Temenggong Securities Ltd & Anor v Registrar of Titles, Johore [1974] 2 MLJ 45 FC DISCRETION OF THE REGISTRAR S 319(1)(a) RC may be entered by the Registrar on RDT of any land in any of the circumstances in s 320 Palaniappa Chettiar v Letchumanan Chettiar [1982] 1 MLJ 232, 234 The discretion is with the Registrar as to whether to enter a caveat or not. But the discretion must be exercised judiciously and reasonably without mala fide. Lim Ah Hun v Pendaftar Hakmilik Tanah, Pulau Pinang [1990] 3 MLJ 34 The court may remove the caveat if its entry is misleading and no longer necessary or desirable in the circumstances. Registrar of Titles, Johor v Temenggong Securities [1976] 2 MLJ 44 PC The Registrar’s functions in s 320 are not exclusively ministerial as they are in relation to the other types of caveats. They require the exercise of a discretion that is quasi-judicial in nature. PROCEDURE S 321(1): From 19F -entry effected by endorsement under the hand & seal of the Registrar ‘Registrar’s Caveat Entered’ -with statement of the time of entry S 321(2): upon entry of RC Registrar shall serve notification (Form 19A) on: -RP -Any person/body with registered interest in the land S 417: Court to direct Registrar to enter RC? If Registrar refuses to enter RC upon a person's application, the remedy lies under s 418 to appeal against Registrar's refusal Q: can the court direct Registrar to enter a RC under s 417?

S 417 General authority of the court (1) The Court or a judge may by order direct the Registrar or any Land Administrator to do all such things as may be necessary to give effect to any judgment or order given or made in any proceedings relating to land, and it shall be the duty of the Registrar or Land Administrator to comply with the order forthwith. Tan Soo Bing v Tan Kooi Fook [1996] 3 MLJ 547 FC The court can only give direction to the registrar if such directions are necessary to give effect to any judgment or order of the court. There must first be a final judgment or order of the court. Then only, in order to give effect to such judgment or order, the court can give directions to the registrar. By contrast to s 417, s 418 empowers any party aggrieved by a decision of the Registrar to appeal to the court. S 418 is the starting point for many actions which result in a judgment which is the subject matter of the order to the registrar under s 417. Held: The Registrar has the duty to decide whether to enter a RC under s 320(1) (a), (b), (ba) or (c). His refusal is a decision within s 418 and thus the aggrieved party must appeal to the court under s 418. EFFECT OF A REGISTRAR'S CAVEAT S 319(1)(b): prohibiting registration, endorsement, or entry of – (i) Any instrument of dealing (ii) Any claim to benefit of tenancy exempt from registration (iii) Any lien-holder’s caveat Note that it does not have the effect of preventing entry of – -Private caveat -Trust caveat -Prohibitory order S 319(2) the prohibition shall apply to – Instrument presented for registration before entry of RC Claim or LHC, the application for endorsement/entry was received before entry of RC RETROSPECTIVE EFFECT -having retrospective effect means if any instrument has been presented for registration but has not been successfully registered before the entry of the registrar`s caveat, will not be allowed to be registered, the registrar`s caveat will take effect as if it has been entered before the presentation for registration. FUNCTION S 320(1) (a) Prevention of fraud or improper dealing

(b)(i) Protecting the interests of Federation/State Authority (ii) Protecting interests of persons with disability (minority, mental disorder or unsoundness of mind) or absent from the Federation S 320(1)(b)(i) Registrar of Titles, Johor v Temenggong Securities [1974] 2 MLJ 45 FC RC entered to protect the interest of inland revenue department in respect of a claim for unpaid income tax. Vs, after receipt of the full purchase price and surrender of possession of the lands to As, were bare trustees for As of the land. Thus Vs had no interest in the lands which can be the subject matter of a caveat. S 320 speaks of entry of a caveat in respect of any land wherever desirable of protecting the interests of the Federation. It does not extend to a contingent claim, a right to execution solely by reason of the fact that the Federation is interested in the collection of a debt. What was being claimed was not some right or interest in respect of the lands to be caveated but a mere assessment of contingent claim to a debt. Held: Vs, having parted with their interest in the lands to As, were bare trustees and have no interest in the land over which a valid caveat can be lodged. PC decision: Registrar of Titles, Johor v Temenggong Securities [1976] 2 MLJ 44 PC -Upheld FC's decision. Interests, which can be protected were those in the land that are recognized by the NLC as being registrable or otherwise entitled to protection. The interest must be proprietary and thus unsecured creditor of RP has no such interest in land. *{overruled by the insertion of s 320(1)(ba) but remains relevant on the meaning of 'interest' in other paragraphs} S 320(1) (ba) for securing that the land will be available to satisfy the whole or part of any debt due to the Federation/State Authority, whether such debt is secured or unsecured and whether or not judgment has been obtained MUI Finance Bhd v Pendaftar Hakmilik, Shah Alam [1993] 1 MLJ 98 The purpose of s 320(1)(ba) is nothing more than to give the government an expeditious way of effecting an attachment before judgment for the

tax due and payable. Once the caveat has been filed it behoves the revenue to take timeous action to obtain judgment and enforce it. NOTE: A RC entered under S 320(1)(ba) cannot take priority over the earlier registered charge (s 340) Development & Commercial Bank Bhd v Land Administrator, Wilayah Persekutuan [1991] 2 MLJ 180 SC Problem of reconciling the indefeasibility of interest of registered charges under s 340 (esp. the right to foreclose the land), and of freezing the land by the Inland Revenue by refusing to remove RC subsequently entered under s 320(1)(ba). RC was entered four years after the registration of the charge to secure the chargor's income tax due to Inland Revenue. The debt due to the chargee was RM11.2m while the land value was estimated at RM1.8m. Held: There is nothing unlawful in the entry of the RC merely because there is an existing charge. S 320(1)(ba)has enlarged the interests of the govt to be protected to include unsecured creditors. But there is nothing in the NLC or elsewhere which creates a charge in favour of the Inland Revenue over the land/rights giving priority over the chargee. The only form of priority given under s 320(1)(ba) is the priority over other unsecured creditors conferred by s 10(1) Government Proceedings Act 1956. Held: Thus the right of the Registrar to maintain a caveat under s 320(1)(ba) is subject to the indefeasible interest of the chargee. The indefeasible interest of the A chargee takes priority over the subsequent RC. Note:  The “interest” under section 320 only covers interests that are registrable, other than that, RC cannot be applied for the protection of those interests.  Section 320(1)(ba) provides that even an unregistrable interest (unsecured debt) can be protected under the RC (can apply for RC) when it involves a debt to the Federation. (but registered chargee still has priority over it ) s 320(1) (c) Some error appearing to the Registrar to have been made in RDT/IDT to the land or any other instrument relating thereto pending correction of errors on the register If there is registered charge, no RC should be entered to secure govt debt

without considering relevant information, e.g. Whether the debt under the charge exceeds the land's market value Pendaftar Hakmilik Negeri Kedah v OCBC [1991] 2 MLJ 177 SC If there is registered charge, no RC should be entered to secure govt debt without considering relevant information, e.g. Whether the debt under the charge exceeds the land's market value In order to enable the Registrar to decide whether that land will be available to satisfy the whole or part of the debt due to the Federation, surely he must find out before exercising his discretion under s 320(1)(ba) …the market value of the land, the amount of debt due on any registered charge/charges, and also the value of the debt owed to the Govt. If the value of the charges equals or exceeds the value of the land there cannot be any surplus for the landowner and it is hard to see how it can possibly appear to the Registrar that it would be necessary or desirable for securing that the land 'will be available to satisfy the whole or part' of the debt due to the Govt. The Registrar had decided to enter the RC without all those information on several material matters which need to be considered by him before he decided to do so. He had thus not exercised his discretionary powers according to and within the limits set out in s 320(1)(ba). Held: As the Registrar had not acted judiciously or reasonably within the ambit and scope of s 320(1)(ba), he has thus exceeded his powers under that section and has acted ultra vires and his act was invalid. Kiu Su Sieng v Registrar of Lands & Surveys, Kuching Division [2016] 2 CLJ 959 D had lodged caveats against several pieces of land including 2 held by Ps upon the official request by the police that the lands were involved in an ongoing police investigation relating to the offence of giving false evidence. Ps applied to remove the caveats as none of them were called by the police to give statements or charged with any offence. No police report was given to Ps on the matter too. The Registrar’s caveats were lodged under s 182 Sarawak Land Code ‘for the prevention of fraud or improper dealing’ (≈ s 320 NLC). Held: The RC should be removed due to lack of evidence to support its entry. DETERMINATION OF RC S 321(3) until it is cancelled by the Registrar-

a) Of his own motion b) On RP’s application c) Pursuant to an order of the Court made on appeal under s 418 against his decision to enter the RC, or his refusal of application for cancellation under para (b) S 418(1) any person/body aggrieved by decision under NLC of … Registrar, may appeal to the court within the period of three months beginning with the date on which it was communicated to him Q: An aggrieved chargee who wishes to remove a RC Does the aggrieved chargee have the right to apply to the Registrar for removal of RC under s 321(3)? Does the aggrieved chargee have the right to appeal to the court against the Registrar’s decision to enter the RC? Public Bank Bhd v Pengarah Tanah dan Galian, Johore Bahru [1990] 3 MLJ 100 SC The RP charged the land to A. Due to default by RP, A obtained an order of sale of the land in August, 1988. On 20.10.88, A received a copy of Form 19A about the entry of a RC by the Inland Revenue Department. In December 1988 A's solicitors wrote to R1 requesting removal of the RC but R1 refused. On 29.1.89, A filed action appealing against R1's refusal to cancel the RC. Held: For the purpose of computation of time under s 418, time runs from the date of communication of the decision of R1 to enter the RC, i.e. from 20.10.88. The decision in this case which could be appealed against by A, who is not the RP, under s 418 was the act of the Registrar in entering the RC. Remedy if aggrieved by entry of RC RP S 321(3)(b) application for removal If Registrar refuses: S 321(3)(c)2nd limb appeal under s 418 against the refusal Chargee or any other person aggrieved by the RC -No avenue of application for removal under NLC: Malayan Banking Bhd v Pendaftar Hakmilik, Negeri Pahang [1990] 2 CLJ 999 MUI Finance Bhd v Pendaftar Hakmilik, Shah Alam [1993] 1 MLJ 98 -A is chargee -RC entered by Inland Revenue Department (to secure arrears of tax owed by RP) -making discharge of charge impossible -A filed app for removal of RC – IRD objected to removal H: A as chargee does not have any right under s.321(3) to apply for removal of RC (only RP or Registrar can do that)

-S 418 appeal within 3 months after communication of the Registrar's decision to enter RC Chargee's remedy for removal of RC – No! Development & Commercial Bank Bhd v Land Administrator, Wilayah Persekutuan & Anor [1991] 2 MLJ 180 SC The chargee was not informed of the entry of the RC. Held: -Chargees are completely excluded from making an application to cancel the caveat under s 321(3) -thus there cannot be any decision against which they can possibly appeal Thus A chargee has no alternative remedy and is entitled to apply for a declaration and a consequential order to set aside the caveat under s 417. Held: 1) there is no express provision in s 321 to enable a chargee on its own right to apply for removal of RC, thus making it impossible for the chargee to get a decision of the Registrar for the purpose of an appeal under s 418 2) under s 321(3) read with s 418, a chargee can only appeal against the Registrar's decision to enter the caveat but not against a decision refusing to cancel the caveat. Thus a declaratory relief should be available to A chargee. See s 321(2)- a chargee will be notified of the entry of RC (Form 19A) However, there is no special provision for application to remove RC by a chargee under s 321(3) See also: Sungei Biak Tin Mines Ltd v Saw Choo Theng & Anor (No 2) [1970] 1 LNS 150 FC Takako Sakao v Ng Pek Yuen & Anor (No. 2) [2010] 1 CLJ 419 FC Taipan Focus Sdn Bhd v Tunku Mudzaffar b Tunku Mustapha [2011] 1 MLJ 441 FC...