Chapter 3 - Remedies Against Defeasibility of Title Flashcards
REMEDIES AGAINST DEFEASIBILITY OF TITLE
Overview
1) Rectification or errors or mistake
2) Claims in personam
3) Claims for damages
RECTIFICATION OF ERROR OR MISTAKE
Overview
1) Power of registrar
2) Power of court
POWER OF REGISTRAR
Overview
1) The law
2) Scope of power
3) Who is entitled to be rectifying
4) Test for rectification
POWER OF REGISTRAR
The law
S.380(1)
- Limited to errors made by the Registry;
- Does not include errors made by parties or solicitors.
POWER OF REGISTRAR
Scope of power
Mohammad bin Buyong v Pemungut Hasil Tanah, Gombak:
- Powers are limited to errors made the Registry;
- It can include errors by Registrar, arising from errors made by third party.
POWER OF REGISTRAR
Who is entitled to be rectifying
Kuah Chiew Ann:
- Registrar of title, NOT the court.
POWER OF REGISTRAR
Test for rectification
FC, 2017
Malaysian Building Society Berhad v KCSB Konsortium Sdn Bhd:
- Test to allow for correction is:
1) Whether there has been substantial compliance of the prescribed form;
2) Whether any party has been prejudiced or misled by the error.
- OTF, rectification is allowed as there is substantial compliance with the procedures & no party is misled or prejudiced by the error.
POWER OF COURT
Overview
1) To rectify - the law
2) To rectify - the scope
3) To rectify - limitation of power
4) To hear appeal - the law
5) To hear appeal - procedures to appeal
6) To hear appeal - power in appeal hearing
POWER OF COURT
To rectify - the law
S.417
POWER OF COURT
To rectify - the scope
Sungai Biak Tin Mines Ltd v Saw Choo Teng:
- S.417 allows court to rectify or make consequential orders to give effect to any judgment or order.
POWER OF COURT
To rectify - limitation of power
Hassan bin Seman & Ors v Jusoh bin Awang Chik:
- Powers cannot be exercised in violation of indefeasibility.
POWER OF COURT
To hear appeal - the law
S.418
POWER OF COURT
To hear appeal - procedures to appeal
Pengarah Hasil Tanah & Galian WP v Sri Lempah Enterprise:
- Appeal must be filed within 3 months;
- Service of originating motion need not be effected within 3 months but follow the normal course of service.
POWER OF COURT
To hear appeal - power in appeal hearing
UMBC Bhd v Pemungut Hasil Tanah Kota Tinggi:
- Appellate court must examine the relevant substantive law before making order as it thinks just.
CLAIMS IN PERSONAM
Overview
1) What is claim in personam
2) Right to claim in personam
3) Example of application
CLAIMS IN PERSONAM
What is claim in personam
Krishnadas & Ors v Maniyam:
- A form of relief that is granted against a person personally.
- e.g. rectification of contract, mandatory injunction.
CLAIMS IN PERSONAM
Right to claim in personam
Wong Yew Kwan v Wong Yu Kee:
- Right in personal arises in equity;
- For right to arise, the opposite party must act unconscionably.
CLAIMS IN PERSONAM
Example of application
Oh Hiam & Ors v Tham Kong:
- Parties mistakenly believe as to the plots of land for cross-purpose;
- The transaction is void pursuant to doctrine of common mistake;
- Court ordered for rectification of the agreement as equity operated in personam.
CLAIMS FOR DAMAGES
Overview
1) The law
2) Scope & application
3) Relief
CLAIMS FOR DAMAGES
The law
S.206(3)
CLAIMS FOR DAMAGES
Scope & application
FC, 2015
Damai Freight (M) Sdn Bhd v Affin Bank Bhd
Section 206(3) of the NLC, by providing a liberal application of equity, recognises the contractual operation of any transaction relating to alienated land or any interest therein.
CLAIMS FOR DAMAGES
Relief
Inter-continental Sdn Bhd v Societe des Elains de bayas Tudjuh:
- remedy of SP or damages in lieu thereof may be obtained in respect of the agreement.
