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PP Land Law > Chapter 2 - Indefeasibility of Title > Flashcards

Chapter 2 - Indefeasibility of Title Flashcards

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1
Q

INDEFEASIBILITY OF TITLE

Overview

A

1) Conclusiveness of RDT
2) Setting-aside title
3) What constitutes registration
4) Indefeasibility under NLC
5) Vitiating factor - fraud or misrep
6) Vitiating factor - forgery
7) Vitiating factor - void instrument
8) Vitiating factor - unlawful title or interest
9) Subsequent bona fide purchaser
10) Exception to indefeasibility by operation of law

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2
Q

CONCLUSIVENESS OF RDT

Overview

A

1) The law

2) Effect of registration

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3
Q

CONCLUSIVENESS OF RDT

The law

A

S.89

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4
Q

CONCLUSIVENESS OF RDT

Effect of registration

D, AC & E, UC

A

1) D - No deprivation:
- title or interest cannot be deprived.
2) AC & E - No adverse claim or encumbrances:
- registered title or interest is free from adverse claim or encumbrances.
3) UC - No unregistered claim:
- registration defeats all prior and subsequent unregistered claim.

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5
Q

SETTING-ASIDE TITLE

The law on limitation

A

S.21 LA:

  • Action to set aside must be brought within 12 years.
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6
Q

WHAT CONSTITUTES REGISTRATION

The law - trite

A

S.304(2)

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7
Q

WHAT CONSTITUTES REGISTRATION

The case - trite

A

Mohammad bin Buyong v Pemungut Hasil Tanah Gombak & Ors:

  • making memorial under the hand & seal of the registering authority;
  • w/o seal & under the hand, no registration.
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8
Q

INDEFASIBILITY UNDER NLC

Overview

A

1) The law
2) Meaning of indefeasibility
3) Scope of indefeasibility under S.340
4) Immediate & deferred indefeasibility

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9
Q

INDEFASIBILITY UNDER NLC

The law

A

S.340(1)

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10
Q

INDEFEASIBILITY UNDER NLC

Meaning of indefeasibility

A

Tan Yin Hong v Tan Sian San:

  • No adverse claim can be brought against the registered proprietor.
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11
Q

INDEFASIBILITY UNDER NLC

Scope of indefeasibility under S.340

A

Mohammad bin Buyong v Pemungut Hasil Tanah Gombak & Ors:

  • S.340 protects the title or interest of any person for the time being registered;
  • The title shall be indefeasible.
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12
Q

INDEFEASIBILITY UNDER NLC

Immediate & deferred indefeasibility

A

Tan Yin Hong v Tan Sian San:

  • Immediate indefeasibility: indefeasibility is conferred immediately despite existence of vitiating factors.
  • Deferred indefeasibility: indefeasibility only comes attached upon a subsequent transfer.
  • Indefeasibility under S.340, whether I or D:
  • — S.340 provides for D indefeasibility.
  • — In the absence or vitiating factors under S.340(2), a title is indefeasible once registered.
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13
Q

VITIATING FACTOR - FRAUD OR MISREPRESENTATION

Overview

A

1) The law
2) Meaning & scope of fraud
3) Standard of proof for fraud
4) Meaning & scope of misrepresentation

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14
Q

VITIATING FACTOR - FRAUD OR MISREPRESENTATION

The law & scope

A

1) The law - S.340(2)(a)
2) Scope - Recent - Teo Ping Tieng v Elitprop S/B (FC, 2019):

  • ‘Fraud’, within the meaning of s. 340(2)(a) of the NLC, means actual fraud and not constructive or equitable fraud on the part of the person whose title or interest is being impeached.
  • Whether or not fraud exists is a question of fact to be decided on the facts and circumstances of each case.
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15
Q

VITIATING FACTOR - FRAUD OR MISREPRESENTATION

Meaning & scope of fraud

ACTUAL FRAUD

A

Tai Lee Finance Co Sdn Bhd v Official Assignee & Ors:

  • fraud involves actual fraud or dishonesty which was committed prior or at the time of registration.
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16
Q

VITIATING FACTOR - FRAUD OR MISREPRESENTATION

Meaning & scope of fraud

DISHONESTY

A

Waimiha Sawmilling Co Ltd v Walone Timber Co:

  • fraud involves dishonesty or some sort of violation of rights of other persons.
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17
Q

VITIATING FACTOR - FRAUD OR MISREPRESENTATION

Meaning & scope of fraud

OBJECTIVE-BASED

A

Loi Hieng Cheong v Kon Tek Shin:

  • fraud is committed when the object is to cheat a man of a known existing right.
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18
Q

VITIATING FACTOR - FRAUD OR MISREPRESENTATION

Meaning & scope of fraud

DEPRIVING REGISTRATION

A

Loke Yew v Port Swettenham Rubber Co:

  • Dishonest is a deliberate & dishonest attempt to deprive the unregistered claimant of his claim or interest.
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19
Q

VITIATING FACTOR - FRAUD OR MISREPRESENTATION

Standard of proof for fraud

A

Sinnaiyah & Sons v Damai Setia Sdn Bhd:

  • on balance of probabilities.
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20
Q

VITIATING FACTOR - FRAUD OR MISREPRESENTATION

Meaning of misrepresentation

A

Loke Yew v Port Swettenham Rubber Co:

  • Misrepresentation under S.340 is a fraudulent misrepresentation;
  • It is a specie of fraud.
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21
Q

VITIATING FACTOR - FORGERY

Overview

A

1) The law
2) Scope of forgery
3) Whether forgery is a fraud
4) Standard of proof for forgery
5) Proving forgery via expert opinion
6) Proving forgery without expert opinion

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22
Q

VITIATING FACTOR - FORGERY

The law

A

S.340(2)(b)

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23
Q

VITIATING FACTOR - FORGERY

Scope of forgery

A
  • only requires that the registration is obtained by forged instrument or document.
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24
Q

VITIATING FACTOR - FORGERY

Whether forgery is a fraud

A

Letchumanan Chettiar Alagappan v Secure Plantations Sdn Bhd:

  • A complaint of forgery is a complaint of fraud;
  • This is so for the purpose of ascertaining standard of proof & pleading.
25
Q

VITIATING FACTOR - FORGERY

Standard of proof for forgery

A

Adorna Properties Sdn Bhd v Boonsom Boonyanit:

  • On balance of probabilities.
26
Q

VITIATING FACTOR - FORGERY

Proving forgery via expert opinion

A

Theow Say Kow Henry v Graceful Frontiers:

  • Even if the court is assisted by experts, it is ultimately up to the court to decide.
27
Q

VITIATING FACTOR - FORGERY

Proving forgery without expert opinion

A

Letchumanan Chettiar Alagappan v Secure Plantations Sdn Bhd:

  • Finding of forgery can be made w/o opinion of handwriting expert.
  • This is so if the feature of the writing & signature are so glaring that the court can form its own opinion.
28
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Overview

A

1) The law
2) Meaning of void or insufficient instrument
3) Scope of void or insufficient instrument
4) Test for void or insufficient instrument
5) Examples of void or insufficient instrument
6) Examples of not void or insufficient instrument

29
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

The law

A

S.340(2)(b)

30
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Meaning of void or insufficient instrument

A

Tan Tock Kwee & Anor v Tiey Siew Cha:

  • Insufficient instrument: failure to comply with the procedures or formalities under NLC.
  • Void instrument: relates to the prohibition imposed by NLC or other law.
31
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Scope of void or insufficient instrument

A

Mook Meng Sun v Lo Aa Kau:

  • Void or insufficient instrument relates to the character of the instrument itself.
32
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Test of void or insufficient instrument

A

Malaysian Building Society v KCSB Konsortium Sdn Bhd:

  • the instrument alone must be considered without resorting to other extraneous document.
33
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Examples of void or insufficient instrument - non-compliance with NLC

A

M&J Frozen Food v Siland Sdn Bhd:

  • Failure to comply with NLC was not just mere irregularities;
  • It was an illegality.
  • The certificate of sale issued is liable to be set aside.
34
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Examples of void or insufficient instrument - forged instrument

A

Tan Yin Hong v Tan Sian San:

  • Forged instrument is a void instrument;
  • Indefeasibility can be rebutted if it is obtained by void instrument.
35
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Examples of void or insufficient instrument - Invalid power of attorney

A

Puran Singh v Kehar Singh:

  • Instrument of dealing signed by invalid or insufficient power of attorney is regarded as insufficient or void instrument.
36
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Examples of void or insufficient instrument - dealing in contravention with restriction in interest

A

Toh Huat Khay v Lim A Chang:

  • Transfer when it is prohibited.

UMBC v Syarikat Perumahan Luas:

  • Charge when it is prohibited.
37
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Examples of void or insufficient instrument - dealing with minor

A

Tan Hee Juan v Teh Boon Keat:

  • Instrument of dealing effected in favour of or by a minor is invalid.
38
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Examples of not void or insufficient instrument - existence of PO

A

Mook Meng Sun v Lo Aa Kau:

  • Existence of PO cannot affect the character of the instrument so as to render the instrument void;
  • PO is extraneous to the instrument that has nothing to do with the character of the instrument.
39
Q

VITIATING FACTOR - VOID OR INSUFFICIENT INSTRUMENT

Examples of not void or insufficient instrument - Wrong charge created

A

Malaysia Building Society Sdn Bhd v KCSB Konsortium:

  • First party charge is created instead of 3rd party charge;
  • All other procedures are complied with;
  • Held: Form 16A filed is NOT an insufficient instrument.
40
Q

VITIATING FACTOR - UNLAWFUL TITLE OR INTEREST

Overview

A

1) The law

2) Examples of unlawful title or interest

41
Q

VITIATING FACTOR - UNLAWFUL TITLE OR INTEREST

The law

A

S.340(2)(c)

42
Q

VITIATING FACTOR - UNLAWFUL TITLE OR INTEREST

Example - In contravention of restriction of interest

A

Toh Huat Khay v Lim A Chang:

  • Transfer when it is prohibited.

UMBC v Syarikat Perumahan Luas:

  • Charge when it is prohibited.
43
Q

VITIATING FACTOR - UNLAWFUL TITLE OR INTEREST

Example - improper exercise of power

A

M&J Frozen Food v Siland Sdn Bhd:

  • SAR issued the certificate of sale despite the failure of the parties to comply with the procedures under NLC;
  • The act of SAR is ultra vires;
  • The title acquired by the ultra vires act of the SAR is unlawful.
44
Q

VITIATING FACTOR - UNLAWFUL TITLE OR INTEREST

Example - existence of caveat

A

Woon Kim Poh v Sa’amah bte Hj. Kassim:

  • Transfer effected when there is a caveat shall be voidable;
  • The caveat shall be removed first before effecting the transfer;
  • If the SAR go on & effect the transfer, his act is ultra vires & the title acquired is unlawful.
45
Q

SUBSEQUENT BONA FIDE PURCHASER

Overview

A

1) The law
2) Meaning of purchaser
3) Whether bank is a purchaser
4) Meaning of good faith
5) Example of good faith
6) Example of bad faith

46
Q

SUBSEQUENT BONA FIDE PURCHASER

The law

A

S.340(3)

47
Q

SUBSEQUENT BONA FIDE PURCHASER

Meaning of purchaser

A

S.5

  • includes both title & interest acquirer.
48
Q

SUBSEQUENT BONA FIDE PURCHASER

Whether bank is a purchaser

FC, 2017

A

CIMB Bank Berhad v Ambank Berhad:

  • A chargee comes within the meaning of purchaser under S.340(3);
  • therefore, a bank is a purchaser within the meaning of proviso.
49
Q

SUBSEQUENT BONA FIDE PURCHASER

Meaning of good faith

FC, 2018

A

T Sivam A/L Tharamalingam v Public Bank Bhd:

  • ordinary prudence has been exercised according to standards of a reasonable man.
  • an honest effort & determination to ascertain the facts;
  • essential elements of good faith are honesty free from fraud or taint.
50
Q

SUBSEQUENT BONA FIDE PURCHASER

Example of good faith

A

State Tailor Sdn Bhd v Nallapan:

  • The purchaser has no knowledge or no means of knowledge.
51
Q

SUBSEQUENT BONA FIDE PURCHASER

Example of bad faith

A

Au Meng Nam v Ung Yak Chew:

  • The purchaser bought the land below market price;
  • He was not involved with defrauding P;
  • But he was negligent for not carrying due diligence to ascertain facts.
52
Q

SUBSEQUENT BONA FIDE PURCHASER

Burden of proving good faith - recent

CA, 2007

A

Abu Bakar Ismail & Ors v Ismail Hussin:

  • On the person asserting that he is a good faith purchaser.
53
Q

SUBSEQUENT BONA FIDE PURCHASER

Burden of proving good faith - trite

A

Datuk Jagindar Singh & Ors v Tara Rajaratnam:

  • FC suggested the burden is on the person who dispute the title, i.e. to prove the purchaser is acting on bad faith.
54
Q

EXCEPTION TO INDEFEASIBILITY BY OPERATION OF LAW

Overview

A

1) The law
2) Scope of the law
3) Purpose of the law

55
Q

EXCEPTION TO INDEFEASIBILITY BY OPERATION OF LAW

The law

A

S.340(4)

56
Q

EXCEPTION TO INDEFEASIBILITY BY OPERATION OF LAW

Scope of the law

FC, 1997

A

Krishnadas Achutan Nair & Ors v Maniyam Samykano:

  • enable reliefs to be granted when there are failure to perform contractual obligations.
  • i.e. if a registered proprietor enters into a contract to transfer a title, he is obliged to do so.
  • If he fails to do so, his title may be defeasible under S.340(4).
57
Q

EXCEPTION TO INDEFEASIBILITY BY OPERATION OF LAW

Purpose of the law

A

Dr. Benjamin George & Ors v Majlis Perbandaran Ampang Jaya:

  • to preserve the in personam rights (contractual or equitable) existing between the developer and the purchaser of an apartment by virtue of the sale and purchase agreement for an apartment entered into by the parties.
58
Q

EXCEPTION TO INDEFEASIBILITY BY OPERATION OF LAW

Purpose of the law

FC, 1997

A

Krishnadas Achutan Nair & Ors v Maniyam Samykano:

  • to deal with fact patterns that do not fall squarely within the other exceptions to indefeasibility that appear in the second sub-section to s. 340 of the Code.
  • It is impossible & undesirable to predict with certainty the wide range of cases that may yet come within the scope of s. 340(4)(b);
  • But example is case decided under the Moneylenders Act 1951.

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