Chapter 7.1 - Restraints of Dealings: Registrar's Caveats

Question 1

REGISTRAR’S CAVEAT

Overview

Answer 1

1) Nature of RC
2) Effect of RC
3) Procedures for entering RC
4) Grounds to enter RC
5) Duty of Registrar
6) Lifespan of RC
7) Removal of RC
8) Grounds for removal of RC
9) Powers of court
10) Ways to remove RC
11) Procedures post-removal

Question 2

REGISTRAR’S CAVEAT

Nature of RC

Answer 2

S.319(1)(a)

• Registrar - entered at discretion of Registrar;
• Apply - person who wishes to have RC may apply to Registrar.

Question 3

REGISTRAR’S CAVEAT

Effect of RC

Answer 3

1) S.319(b)
2) MUI Finance Bhd v Pendaftar Hak Milik Shah Alam:

• NO order for forced sale;
• NO order of removal by court to allow registration for memorandum of discharge;
• NO order for re-entry to take priority over the charge which has yet to be registered.

Question 4

REGISTRAR’S CAVEAT

Procedures for entering RC

Answer 4

S.321

• Form: Form 19F
• Service to: land proprietor / anyone having interest in the land
• Service in Form: 19A

Question 5

REGISTRAR’S CAVEAT

Grounds to enter RC - the law

Answer 5

S.320(1)

Question 6

REGISTRAR’S CAVEAT

Grounds to enter RC - protection of State Interest

Answer 6

Registrar of Titles, Johor v Temenggong Securities:

• interests are confined to registrable interests under S.292 & S.206(2)(a) + (b);
• RC may not be entered on the land which the vendor holds as a bare trustee on behalf of the purchaser.

Question 7

REGISTRAR’S CAVEAT

Grounds to enter RC - secure the land for debt due

Answer 7

D&C Bank Bhd v Land Administrator WP:

• RC entered cannot take priority over the earlier registered charge which is protected by indefeasibility.

Question 8

REGISTRAR’S CAVEAT

Duty of Registrar

Answer 8

OCBC Ltd v Pendaftar Hak Milik Kedah:

• Registrar must have considered all material information pertaining to the matter;
• Entry of RC w/o considering the debt due on the charge exceeding the market value will be ultra vires.
• Court can order RC to be removed.

Question 9

REGISTRAR’S CAVEAT

Lifespan of RC

Answer 9

S.321(3):

• continue in force unless cancelled by Registrar.

Question 10

REGISTRAR’S CAVEAT

Removal of RC

Answer 10

S.320(3)

Question 11

REGISTRAR’S CAVEAT

Grounds for removal of RC - overview

Answer 11

1) Genuine mistake

2) Subsequent information & no necessity

Question 12

GROUNDS FOR REMOVAL OF RC

Genuine mistake

Answer 12

Agrimal Project Sdn Bhd v Pendaftar Hak Milik Pejabat Tanah & Galian Johor:

• genuine mistake in recording purpose of RC DOES NOT afford the ground for removal of RC.

Question 13

GROUNDS FOR REMOVAL OF RC

Subsequent information & no necessity

Answer 13

Lim Ah Hun v Pendaftar Hak Milik Tanah Pulau Pinang:

• Court may cancel the entry of the RC upon subsequent information;
• i.e. when the court is of the view that there is no necessity for the RC.

Question 14

POWERS OF COURT

Powers under S.417

Answer 14

• Court may NOT direct entry RC under this provision;

- Court may only direct Registrar upon an order or judgment.

Question 15

POWERS OF COURT

Appeal under S.418

Answer 15

• Court may hear appeal under this provision.

Question 16

POWERS OF COURT

Cancel entry under S.418

Answer 16

Lim AH Hun v Pendaftar Hak Milik Tanah Pulau Pinang:

• • Court may cancel the entry of the RC upon subsequent information under S.418;
• i.e. when the court is of the view that there is no necessity for the RC.

Question 17

POWERS OF COURT

Powers under S.44 CJA

Answer 17

• court may NOT direct entry of a caveat under this provision.

Question 18

WAYS OF REMOVAL OF RC

Overview

Answer 18

1) Own motion
2) Application by registered proprietor
3) Order of court
4) Application by aggrieved chargee

Question 19

WAYS OF REMOVAL OF RC

Own motion

Answer 19

S.321(3)(a)

• if he finds that the circumstances specified have been circumvented for.

Question 20

WAYS OF REMOVAL OF RC

Application by registered proprietor

Answer 20

S.321(3)(b)

• in the event of refusal to remove, RP may appeal under S.418.

Question 21

WAYS OF REMOVAL OF RC

Order of court

Answer 21

S.321(3)(c)

1) Can only be made upon appeal under S.418 - Lim Ah Hun v Pendaftar Hak Milik Tanah Pulau Pinang
2) Appeal must be made within 3 months - Malayan Banking Bhd v Pendaftar Hak Milik Pahang

Question 22

WAYS OF REMOVAL OF RC

Application by aggrieved chargee

Answer 22

D&C Bank v Land Administrator WP:

1) If he knows nothing about the entry of RC at first instance - S.417:
- Aggrieved chargee may apply for declaration & consequential order to set aside RC.
2) If Registrar communicated to him on the entry of RC - S.418:

• aggrieved chargee may appeal against the entry of RC;
• appeal must be made within 3 months from the date of communication.

Question 23

POST-REMOVAL OF RC

Procedures

Answer 23

S.321(4):

• own motion - notify the proprietor;
• all cases - make note under his hand & seal of the date of cancellation.