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[2003] Part 1 Case 15 [HCM] |
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www.ipsofactoJ.com/highcourt/index.htm
[2003] Part 1 Case 15 [HCM] |
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HIGH COURT OF MALAYA |
The Hongkong & Shanghai Banking Corporation
- vs -
Salam Daud
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Coram RAMLY ALI J |
4 JULY 2002 |
Judgment
Ramly Ali, J
This is an application by the intended intervenor, RHB Bank Bhd (the intervenor), vide Encl 124 for leave that the intervenor be allowed to intervene in the proceedings under Ord. 15 r 6(2)(b)(ii) of the Rules of the High Court 1980 (RHC); and in the event leave is granted, for an order that the order of this court dated November 18, 1997 which set aside an earlier order of this court dated January 8, 1992, be set aside.
The grounds of the said application are essentially as follows:
that the intervenor is the holder of a lien holder's caveat and equitable charge over the land in question;
based on A, the intervenor has a legal interest in the subject matter of the proceedings;
that the intervenor was not aware of the defendant's application to set aside the earlier order dated January 8, 1992;
that the November 18, 1997 order has affected the intervenor's interest in the said land; and
that the November 18, 1997 order is invalid in law.
FACTUAL MATRIX
The defendant had executed in favour of the plaintiff, The Hongkong & Shanghai Banking Corporation (HSBC) a third party first legal charge over a piece of land held under CT 1817, Lot 597, Mukim Mentakab, for a loan facility granted by the plaintiff to one Patra Sdn Bhd (the borrower).
The borrower had defaulted in its payment. The plaintiff then filed an originating summons on August 28, 1986 to foreclose the property. The said originating summons was renewed three times. The plaintiff's notice of appointment to hear the originating summons that first came up for hearing on August 13, 1990 was adjourned four times and on the fifth date (January 8, 1992) in the absence of the defendant, the court granted the order for sale (the January 8, 1992 Order) and ordered that a public auction be held on April 17, 1992 (the auction date).
As at January 8, 1992, the court records revealed that no affidavit of service to show that the adjourned notice of appointment to hear the originating summons on January 8, 1992 had been served on the defendant; and no supplementary affidavit giving particulars of the account in accordance with Ord. 83 r 3 of the RHC. The plaintiff's summons for directions came up for hearing on January 30, 1992 and the plaintiff obtained the relevant directions for sale and the reserved price being RM240,000.
On the auction date (April 17, 1992) the said land was sold to the bidder Mohd Azni Sudin (the auction purchaser) for RM240,100 i.e. RM100 above the reserved price. (The said auction purchaser has been added as a party to the proceedings). The said land was then registered in the auction purchaser's name on May 4, 1992 (i.e. within 20 days of the auction date on April 17, 1992).
The defendant then filed an application dated July 9, 1992 (Encl 45B) seeking various reliefs, inter alia, to set aside the January 8, 1992 Order and including an order that the auction purchaser be added as a party to the proceedings. The defendant's application (Encl 45B) was served on the auction purchaser on August 9, 1992. On August 12, 1992 the Judge granted an order, inter alia, that the auction purchaser be added as a party to the proceedings. There were numerous affidavits filed by the plaintiff and the defendant in respect of Encl 45B namely:
Plaintiff's affidavits - Encls 49B, 52A, 59A;
Defendant's affidavits - Encls 47A, 51A.
The defendant filed an application on March 4, 1997 (Encl 95A) to amend Encl 45B in accordance with the directions given by the Judge on February 5, 1997. The Judge directed counsels for the plaintiff and defendant to file in written submissions together with bundles of authorities. The application came up for disposal on August 27, 1997 before the Judge and after considering the various affidavits and submissions by both counsels and the authorities, the Judge reserved his decision. On November 18, 1997, the Judge granted the defendant various orders, inter alia, an order that the earlier order for sale (dated January 8, 1992) and the public auction (dated April 17, 1992) be set aside.
In supporting the said application, the defendant had raised numerous issues in his written submissions as well as oral submissions on August 27, 1997. The gist of the defendant's main contention was that the January 8, 1992 Order was a nullity on the grounds:
that the plaintiff had not served the notice of adjourned hearing on the defendant in breach of Ord. 83 r 2(4) of the RHC; and
that as at January 8, 1992, there was no affidavit of particulars of the account in accordance with Ord. 83 r 3(d) of the RHC and s 257(i)(c) of the National Land Code (NLC).
The plaintiff appealed to the Court of Appeal against the November 18, 1997 order by filing a notice of appeal on December 17, 1997. On June 18, 1998, the plaintiff filed a notice of motion in the Court of Appeal for extension of time to file and serve the appeal records. The plaintiff's notice of motion came up for disposal on January 31, 2000 and the Court of Appeal dismissed the said notice after hearing submissions from both counsels. There is no further appeal by the plaintiff against the Court of Appeal order of dismissal dated January 31, 2000.
In the meanwhile, the defendant had filed a private caveat on the said land on January 31, 1992.
BASIS OF INTERVENOR'S LIEN HOLDER'S CAVEAT
ON SAID LAND ENTERED ON SEPT 2, 1992
Rakyat Merchant Bankers Bhd (RMBB) had entered into a loan agreement dated August 28, 1992 to grant credit facilities to one Foong Giap Group Sdn Bhd (which company was later known as Fana Gading Group Sdn Bhd). The said loan agreement, refers inter alia to three individuals who were supposed to charge their respective three properties to RMBB by way of third party first legal charge and this include Mohd Azni Sudin (the auction purchaser). In addition, there were three other individuals (the directors of Fana Gading) who were supposed to be the guarantors. However, instead of a third party first legal charge over the said land, RMBB had entered a lien holder's caveat September 2, 1992 (notwithstanding that at that point of time the defendant's private caveat of May 27, 1992 was already on the land register). The intervenor (RHB Bank Bhd) has taken over all the assets and liabilities of RMBB vide a vesting order dated November 7, 1996, including matters relating to the said loan agreement and lien holder's caveat.
In the present application before this court (vide Encl 124) the intervenor has raised the following issues:
whether this court is functus officio; and -
if the court rules in favour of the intervenor, i.e. that the court is not functus officio-
whether the intervenor is entitled to intervene; and
whether the November 18, 1997 order ought to be set aside.
When the present application came up for hearing on February 27, 2002, the counsel for the auction purchaser, indicated that he would adopt the submissions made by the defendant's counsel. The counsel for the plaintiff on the other hand indicated that she was supporting the present application made by the intervenor. Basically, this court is only dealing with the relevant affidavits and submissions by the defendant and the intervenor.
FINDINGS OF COURT
Before this court deals with the issues posed by the intervenor, this court ought to consider the question of whether the RMBB lien holder's caveat dated September 2, 1992 has any basis in law in the light of the relevant provisions of the NLC. Section 281(1), (2) of the NLC read as follows:
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(1) |
Any proprietor or lessee for the time being, may deposit with any other person or body, as security for a loan, his issue document of title or, as the case may be, duplicate lease and that person or body -
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(2) |
Where the holder of any lien has obtained judgment for the amount due to him thereunder, he shall be entitled to apply to the court for, and obtain forthwith an order for sale of the a land or lease. |
Section 281(1), in very clear language, provides that only
a proprietor of alienated land or a lessee may deposit his respective issue
document of title or duplicate lease as the case may be. The word "proprietor"
is defined in s 5 of the NLC as "any person or body for the time being
registered as the proprietor of any alienated land". In other words, the
right to grant a lien holder's caveat belongs only to the registered proprietor
of the property (in the present case is the auction purchaser). It is not possible
for a third party (e.g. the borrower) with whom the document of title has been
deposited to be able to create a lien holder's caveat in favour of another third
party (e.g. the bank). In Perwira Habib Bank (M) Bhd v Loo & Sons Realty
Sdn Bhd (No 1) [1996] 3 AMR 3484, the Court of Appeal reiterated the principle that only the
registered proprietor had the power or the right to deposit the title deed for
the purpose of creating a lien-holder's caveat. RK Nathan J in Perwira Habib
Bank Malaysia Bhd v Megat Najmuddin
Megat Khas [1999] 3 AMR 3679 has also shared the
same sentiment on the same issue. At p 3686, in dealing with the provisions of subsections (1) and (2)
of s 281
of the NLC, he said:
Based on these two sub-sections the right to grant a lien holder's caveat
over property belongs only to the registered proprietor or lessee of the said
property. It is not possible for a third party such as the plaintiff in this
case with whom the original document of title has been deposited for some other
purpose, to be able to create a lien-holder's caveat in favour of the third
party or the plaintiff in this case.
It is incumbent on the intervenor to prove that the proprietor's act of deposit of the document of title was made on the advance of money. The intervenor must connect the deposit of the title made between the proprietor (the auction purchaser) and RMBB with the advance. The intervenor must prove the true intention of the proprietor when the title was deposited by the proprietor with RMBB. In this context, the court is in full agreement with the learned author SY Kok in his articles: The Nature & Application of the Torrens Liens & Lien-Holders' Caveats in West Malaysia, MLJ (January 1983) p XI when he said (at p lii):
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In other words, the holder must show that the deposit was made as security for a loan advanced by the holder to the depositor-proprietor. If the deposit is for any reason other than 'as security for a loan', the act of deposit cannot be construed as being connected with a loan or advance and therefore no valid lien could, under the circumstances, be validly created under section 281(1). |
In the present case, RMBB had granted a loan facility to Fana Gading and not to the auction purchaser, Mohd Azni Sudin. There is no satisfactory evidence before this court to show that the auction purchaser had deposited his title with RMBB as a security for any loan to the auction purchaser. The intervenor's affidavit affirmed on August 4, 2000 merely refers to a loan agreement between RMBB and Fana Gading. The mere possession of an issue document of title is not proof of an intention to deposit the title as security for a loan where the origin of the possession is not explained by the intervenor and no evidence is adduced to connect the deposit with the loan advanced. There will be no such deposit as to create a lien under s 281(1) of the NLC. There is also no material whatsoever before this court for the basis upon which RMBB proceeded to create a lien-holder's caveat over the said land instead of a third party first legal charge over the said land. In addition, there is also no evidence before this court as to whether RMBB or its solicitors had written to and obtained the consent from the auction purchaser for RMBB to have a lien holder's caveat over the said land. The consent of the proprietor is essential to enable RMBB to create a lien-holder's caveat over the said land. This requirement has been stressed by Watson JC sitting in the Court of Appeal in the case of Peter P'Chient v Ramasamy Chetty [1923] 3 FMSLR 220 at p 227. In that case, Watson JC also held that -
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the Torrens sections creating the Torrens liens or statutory liens should be read with the greatest strictness and be strictly construed and applied, or else the security of tenure of land which the Torrens statutes seek to set up would be seriously undermined. |
On the strength of the above consideration this court is of the view that the said RMBB's lien holder's caveat is therefore invalid in law (see also: Perwira Habib Bank Malaysia Bhd v Megat Najmuddin Megat Khas (supra)).
The RMBB's lien holder's caveat is also invalid in law on the ground that the said caveat was registered on September 2, 1992, when in fact the defendant's private caveat had been registered on May 27, 1992 and was still in force. Section 322(2)(c) of the NLC expressly prohibits the entry of any lien holder's caveat over the land so long as there is private caveat in force. The relevant provisions of ss 322(2)(c), (4) and (5) read as follows:
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(2) |
The effect of any private caveat expressed to bind the land itself shall, subject to sub-sections (4) and (5), be to prohibit so long as it continues in force the registration, endorsement or entry on the register document of title thereto of-
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(4) |
A private caveat shall not prohibit the registration, endorsement or entry of any instrument, claim or lien holder's caveat where the instrument was presented, or the application for endorsement or entry received, prior to the time from which the private caveat takes effect. |
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(5) |
A private caveat shall not prohibit the registration or endorsement of any instrument or claim where-
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In Woon Kim Poh v Sa'amah Hj Kasim [1987] 1 MLJ 400, Hashim Yeop A Sani SCJ, sitting in the Supreme Court held (at p 402):
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Under s 322 of the National Land Code so long as a caveat is in force, registration, endorsement or entry on the register document of title of any instrument of dealing shall be prohibited. The effect of a private caveat expressed to bind the land itself is to prevent any registered disposition of the land except with the caveator's consent until the caveat is removed. |
At the same page, he went on to say:
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In the Torrens system where registration is the very basis of the system the prohibition in s 322(2) must be strictly complied with. In other words the Registrar is statutorily obliged to refuse the registration because to do so would be a violation of an expressed provision of the National Land Code. |
In fact under s 322(6) of the NLC the Registrar is required to reject the lien holder's caveat where there is a private caveat in force. Section 331(4) of the NLC further provides that the court, if satisfied that any lien holder's caveat ought not to have been entered, may order the cancellation thereof by the Registrar.
CAN INTERVENOR INTERVENE AT THIS STAGE OF
PROCEEDINGS UNDER ORD. 15 r 6(2) OF THE RHC
The intervenor's written submission is to the effect that it has a right to intervene at this stage of the proceedings, even though the November 18, 1997 Order has been perfected. The intervenor relied on Ord. 15 r 6(2)(b)(ii) of the RHC which reads as follows:
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(2) |
At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either on its own motion or on application-
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Although Ord. 15 r 6(2) states that such an application could be made "at any stage of the proceedings", this does not mean that such an application can be made after the final judgment or order has been entered and perfected. This principle was decided by the Court of Appeal in the case of Tai Choi Yu v Syarikat Tingan Lumber Sdn Bhd [1998] 4 AMR 3807. In another case, Shell Malaysia Trading Sdn Bhd v Leong Yuet Yeng [1990] 3 MLJ 254, the court held that Ord. 15 r 6 only applies to proceedings where the substitution of any of the parties to the cause or matter is made before the final judgment. In that case, the application was made after the judgment had been finalised. It is stated in United Asian Bank Bhd v Personal Representative of Roshammah (deed) [1994] 3 MLJ 327 at p 335, that -
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Intervention to be legitimate must qualify with the conditions prescribed by Ord. 15 r 6(2)(b)(i) or (ii) of the Rules of the High Court 1980. It may be permitted at any stage of the proceedings. This means it must be applied for before the final order is made, not after it has been perfected and extracted. |
In the present case, the November 18, 1997 Order was finalised and perfected. The plaintiff's notice of motion to extend the time to file and serve the appeal records has been dismissed by the Appeal Court on January 31, 2000; and there is no further appeal by the plaintiff against the said decision. The proceedings have been concluded. Therefore, it is not appropriate for the court to invoke Ord. 15 r 6(2) of the RHC to grant leave to the intervenor to intervene at this stage of the proceedings.
Another ground to show that Ord. 15 r 6(2) of the RHC is not applicable to the present application is that there does not exist any question or issue arising out of or relating to or connected with any relief or remedy claimed in the suit which remains to be determined between the plaintiff and the defendant and the intervenor. The plaintiff's action against the defendant has been adjudicated upon, the action has been determined by the court.
In Gula Perak Bhd v Varghese Mathai [1988] 3 MLJ 358, the court in dismissing an application by the applicant to be added as a party to that proceeding held (at p 358):
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For there to be jurisdiction to add as a party, it has to be established that there is a question or issue to be tried as between the applicant and one of the existing parties in the petition and that the question or issue arises out of or relates to or is connected with any relief or remedy claimed in the petition. The court further has to be satisfied that it would be just and convenient for the question or issue to be determined as between the intervenor and that party and between the existing parties to the petition. |
In the present case, the intervenor's intention in intervening is in essence an exercise to enforce their purported lien over the said land and in order to enforce the judgment obtained against Fana Gading and the guarantors. It must be noted that to date no legal proceedings have been commenced by the intervenor against the auction purchaser. In short the intervenor has not secured any judgment against the auction purchaser under the purported lien holder's caveat. The intervenor has no direct legal interest in the subject matter of the proceedings. The intervenor has only a commercial interest. A mere commercial interest does not entitle the intervenor to intervene. The intervenor after having obtained judgment against Fana Gading and the guarantors and the fact that the judgment has not been satisfied, is now seeking relief against the auction purchaser instead.
In Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 MLJ 63, the Supreme Court held:
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It is settled law, on the authorities, that a party may be added if his legal interests' will be affected by the judgment in the action but not if his commercial interests alone would be affected. |
In Moser v Marsden [1892] 1 Ch 487 and In re IG Forbenindustrie AG [1944] 1 Ch 41, it was held that a party may be added if his legal interest may be affected by the judgment but not if his commercial interest only would be affected. Their Lordships in both cases agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not sufficient ground to entitle him to be added as a party.
In another case - Sanders Lead Co Inc v Entores Metal Brokers Ltd [1984] 1 WLR 452, the Court of Appeal held that a person had to have an interest directly related to the subject matter of an action before he is entitled to intervene in the action under Ord. 15 r 6(2)(b)(ii) of the RSC; a mere commercial interest in the outcome of the action, divorced from its subject matter, such as interest of a creditor of one of the parties, was not sufficient to entitle a person to intervene.
THE ISSUE OF FUNCTUS OFFICIO AND RES JUDICATA
The court is of the view that to allow the intervenor to intervene at this stage of the proceedings with a view to set aside the November 18, 1997 Order will be tantamount to asking the court to reopen and re-litigate the very issues that have already been determined by the court after full and proper deliberation by the Judge and after the Judge had considered all the affidavits and submissions of both the plaintiff and the defendant. It must be noted that the November 18, 1997 Order is final and binding on all parties. This court has no jurisdiction to set aside the November 18, 1997 Order bearing in mind that the auction purchaser had been added as a party prior to the November 18, 1997 Order being granted and the auction purchaser had notice of the proceedings and therefore this notice binds the intervenor as well. The mere fact that the auction purchaser did not participate in the proceedings or that the intervenor's contention that they had not been informed of the proceedings by the auction purchaser does not in any way alter the legal position as notice to the auction purchaser is binding on the intervenor.
The intervenor's submission that the court is not functus officio and the reliance on the Black's Law Dictionary on the meaning of the words functus officio to suggest that the court has not yet completed the "original commission" is misplaced. In the present case, the court has completed the "original commission" when the court granted the November 18, 1997 Order. The plaintiff's appeal to the Court of Appeal against the November 18, 1997 Order has come to an end and hence there is nothing further for this court to adjudicate on with respect to the validity of the said order. In allowing the intervenor to intervene and to set aside the said November 18, 1997 Order would also be tantamount to allow the intervenor to obtain a conflicting decision in respect of identical issues which have already been determined and adjudicated by the court after full arguments.
The general principles on the rule on functus officio have been laid down by the Federal Court in Hock Hua Bank Bhd v Sahari Murid [1981] 1 MLJ 143 where it was held:
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the court had no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it had been entered or an order after it has been drawn up, except under the slip rule, so far as is necessary to correct errors in expressing the intention of the court, unless it is a judgment by default or made in the absence of a party at a trial or hearing. But if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will be to impeach the original judgment. |
In that case, the Federal Court held that the Judge was functus officio and therefore had no jurisdiction to set aside his own order and the original order must be restored, leaving it to the respondent to take out a fresh action to set aside the order on the ground of fraud. In a more recent Federal Court case of Badiaddin Mohd Mahidin v Arab Malaysian Finance Bhd [1998] 1 AMR 909 (which was presided by Five Federal Court Judges), it was held inter alia that:
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It is settled law that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. The one special exemption to this rule is where the final judgment of the High Court can be proved to be null and void on the ground of Illegality or lack of jurisdiction. |
From both the cases (Hock Hua Bank Bhd and Badiaddin Mohd Mahidin) it can be stated that the exceptions to the general principle that the court has no power to alter vary or set aside a judgment regularly obtained after it has been entered and drawn up, are as follows:
the slip rule under Ord. 20 r 11 of the RHC;
where an order has been made by default or made in the absence of a party at the trial or hearing;
where the order has been obtained in breach of the rules of natural justice;
where the order had contravened a substantive statutory prohibition so as to render the order defective on grounds of illegality or lack of jurisdiction;
where in exceptional cases where the justice of the case requires the court to intervene and correct an earlier order that contains a serious defect and there is a need to have it set aside.
In our present case, the intervenor's case does not fall within any of the above mentioned exceptions and hence the principle of functus officio precludes this court from allowing the intervenor in their attempt to set aside the November 18, 1997 Order. There has to be finality of litigation and the principle of issue estoppel and res judicata clearly apply given the circumstances of this case.
In a Supreme Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 AMR 2559, Peh Swee Chin FCJ has said (at p 2571):
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What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth: res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation - interest rei publicae at sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debet bis vexaripro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. |
In Chia Ah Sng v Hong Leong Finance Ltd [2001] 1 SLR, Singapore High Court has held:
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The doctrine of finality, which is the doctrine of res judicata, states that an adjudicated matter cannot be re-adjudicated. It applies where a judgment has been regularly entered on a thing or matter after final adjudication on its merit by a tribunal of final result having competent jurisdiction of the subject matter of the litigation. A given decision cannot be revisited even though it is overruled subsequently by a higher court. |
In Yat Tung Investment Co Ltd v Dao Heng Bank Ltd (1975) AC 581, Lord Kilbrandon speaking for the Privy Council declared by referring to the doctrine of res judicata and said:
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There is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. |
Correctness of the decision or judgment is irrelevant to the doctrine of res judicata. On this issue, I would like to quote a relevant passage from The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3rd Edn, 1996 at paragraph 189 which says:
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It is not necessary to prove that the decision relied on is correct in law or fact: if it is a final decision, by a tribunal having jurisdiction as to the same question, and between the same parties, it will be binding on them, until upset on appeal. Res Judicata ... gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the decision may be wrong. This rests on the fact that a competent tribunal has jurisdiction to decide wrongly, as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal. |
Applying the above principles and authorities to the fact of the present case, the court is satisfied that this court is functus officio in dealing with the present application by the intervenor and that the doctrine of res judicata applies. Therefore the intervenor's application to intervene and to set aside the November 18, 1997 Order (as in Encl 124) must fail.
THE ISSUE OF KNOWLEDGE
It has been submitted by the intervenor that the defendant had knowledge of the intervenor's lien holder's caveat and hence the defendant is estopped from objecting to the intervenor's application to intervene.
At the point of time the defendant entered his private caveat on May 27, 1992 and even at the point of time the defendant filed the application to set aside the January 8, 1992 order (Encl 45B), the defendant could not possibly have been aware of the intervenor's alleged interest in the land for the simple reason that the intervenor's lien holder's caveat was entered on September 2, 1992. On the contrary it is more than evident that RMBB had express knowledge of the defendant's private caveat at the time RMBB's lien holder's caveat was presented for registration and yet RMBB had chosen not to take any step to set aside the defendant's private caveat in order to protect their interest, if any.
ISSUE OF RMBB AS AN EQUITABLE CHARGEE
The intervenor also submitted that the intervenor has an equitable charge merely on the premise that the document of title in respect of the said land was deposited with RMBB.
There is no evidential material before this court as to how RMBB got custody of the said document of title and hence RMBB cannot contend that RMBB has an equitable charge. There is also no evidential material before this court as to whether the auction purchaser had even executed any charge documents over the said land in favour of RMBB and as to the reason if any, for the non-presentation of the charge documents at the Land Office registry.
On the question of whether the intervenor has an equitable charge, the case relied on by the intervenor, Mahadevan v Manilal & Sons (M) Sdn Bhd [1984] 1 MLJ 266 (at p 271) had laid down the following test:
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Whether or not these transactions created an equitable charge depend upon the intention and conduct of the parties at the time when the payments were made. |
In the present case, the intervenor has failed to provide sufficient evidential material before this court to show that the intention and the conduct of the parties, particularly that of the auction purchaser, that he intended to create a lien holder's caveat in respect of the said land. In the circumstances, this court is of the view that the intervenor has no equitable charge over the said land.
CONCLUSION
Based on the above consideration, this court finds that:
this court is functus officio in dealing with the present application by the intervenor (vide Encl 124) and the doctrine of res judicata applies;
there is no legal basis for the intervenor to be allowed to intervene at this stage of the proceedings;
the November 18, 1997 Order is valid in law and binding on all parties; and shall not be set aside.
Therefore, the intervenor's application (vide Encl 124) is dismissed with costs.
Cases
Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 AMR 2559; Badiaddin Mohd Mahidin v Arab Malaysian Finance Bhd [1998] 1 AMR 909; Chia Ah Sng v Hong Leong Finance Limited [2001] 1 SLR; Gala Perak Bhd v Varghese Mathai [1988] 3 MLJ 358; Hock Hua Bank Bhd v Sahari Murid [1981] 1 MLJ 143; IG Forbenindustrie AG, In re [1944] 1 Ch 41; Mahadevan v Mamlal & Sons (M) Sdn Bhd [1941] 1 MLJ 266; Moser v Marsden [1892] 1 Ch 487; Perwira Habib Bank (M) Bhd v Loo & Sons Realty Sdn Bhd (No 1) [1996] 3 AMR 3484; Perwira Habib Bank Malaysia Bhd v Megat Najmuddin Megat Khas [1999] 3 AMR 3679; Peter P'Chient v Ramasamy Chetty [1923] 3 FMSLR 220; Sanders Lead Co Inc v Entores Metal Brokers Ltd [1984] 1 WLR 452; Shell Malaysia Trading Sdn Bhd v Leong Yuet Yeng [1990] 3 MLJ 254; Tai Choi Yu v Syarikat Tingan Lumber Sdn Bhd [1998] 4 AMR 3807; Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 MLJ 63; United Asian Bank Bhd v Personal Representative of Roshammah (deed) [1994] 3 MLJ 327; Woon Kim Poh v Sa'amah Kasim [1987] 1 MLJ 400; Yat Tung Investment Co Ltd v Dao Heng Bank Ltd (1975) AC 581
Legislations
Malaysia
National Land Code: s.5, s.257(i)(c), s.281(1), (2), s.322(2)(c), (4), (5), (6), s.331(4)
Rules of the High Court 1980: Ord.15 rr 6, 6(2), 6(2)(b)(ii), Ord.20 r 11, Ord.83 rr 2(4), 3, 3(d)
United Kingdom
Rules of the Supreme Court: Ord.15 r 6(2)(b)(ii)
Authors and other references
Black's Law Dictionary
Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 1996, 3rd Edn
SY Kok, The Nature and Application of the Torrens Liens and Lien-Holders' Caveats in West Malaysia, MLJ (Jan 83)
Representation
Vignesh Kumar (Balendran Chong & Bodi) for Plaintiff
Ramesh Ranghvi (Kassim Tadin, Wai & Co) for Defendant
PS Mutty (Mura Raju & Co) for Auction Purchaser
LK Chow (Lee Hishamuddin) for the Intended Intervenor
Notes:-
This decision is also reported at [2003] 3 AMR 3755
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