Chia See Yin & Ors

8/21/2019 Chia See Yin & Ors

1/12

Chia See Yin & Ors

v

Yeoh Kooi Imm

Prepared by:

Shahira Aqilah binti ZulkifliLEB120084


2/12

Facts

The plaintiffs are the registered proprietors of a land.

6thJanuary 1995the plaintiffs agreed to sell a portion of the land to thedefendant.

The terms expressed in the agreement were, inter alia: That the deposit is construed as part payment to the purchase price

That the completion date shall be 3 months from the date of agreement

That time is of the essence. Thus, the completion date falls on the 5thApril 1995.

However, on 18thApril 1995, the defendant sought an extension of time on thegrounds that the property would be acquired by the Drainage and IrrigationDepartment (DID).

21stJune 1995the plaintiffs solicitors: Rejected the defendants request for an extension of the date of completion beyond 5thMay

1995,

Notified the defendant that the alleged intended acquisition by the DID was outside thepurview of the Land Acquisition Act 1960,

Gave notice that as a result of breach of essential term, the deposit was forfeited,

Refunded the sum of RM56,250 being the contribution made by the defendant in regard tothe premiums imposed by the land office.


3/12

Contd

3rd

July 1995defendant lodged a private caveat againstthe whole portion of the land and subsequently removed

it voluntarily.

21stSeptember 1995the defendant filed another

caveat on the same grounds as the first caveat. Defendant argued that her agent had personally met the

3rdplaintiff to discuss the issue of the intended

acquisition by the DID and to seek the consent of the 3rd

party who was allegedly presenting on behalf of himselfand the other plaintiffs to the time extension.

The plaintiffs denied the contentions and the 3rdplaintiff

denied that he had agreed to grant the extension of time.


4/12

Issues

Does the defendant have a caveatable

interest?

Was time of the essence waived by the

plaintiff?

Is proper notice required to terminate the

agreement and forfeit the deposit?

Was the second caveat valid and proper?


5/12

Does the defendant have a caveatable

interest?

Since the plaintiffs are the registered proprietors of theland, the burden of proof that the caveat shouldremain lies on the defendant caveator.

Wong Kuan Tan v Gambut Development Sdn Bhd

(Hashim Yeop Sani FCJ): If an applicant is the registered proprietor of the land he

needs to only show that he is the registered proprietor asthis givesprima facie evidence of his unfettered right todeal with the land as he pleases.

Thus it is on the caveator to prove that his claim to aninterest in the land raises a serious question to be tried.Only if he has such an interest can he qualify to lodge acaveat under s. 323 of the NLC.


6/12

Contd

Murugappa Chettiar Lakshamanan v Lee Teck

Mook:

Until and unless a purchaser has an enforceable

contract for the sale of land, he can lay no claim

to the title to registered land. A fortiori, he has no

interest that is capable of protection by the entry

of a caveat. As we have said, the application for

the entry of the caveat in the instant case contains

no assertion of a concluded contract.


7/12

Contd

In the current case, the defendant had no caveatableinterest because: The agreement which formed the basis of the defendants

claim of registrable interest in the land was not valid or

subsisting at the time of the lodgment of the 2

nd

caveatbecause the agreement was fully terminated by theplaintiffs when the balance of the purchase price had notbeen paid by the extended completion date

The defendant had not fulfilled her obligations by theextended completion date or any time thereafter. Sheseemed unwilling to perform her side of the contract anddesires to make a substantial modification so as to amountto a new contract.


8/12

Was time of the essence waived?

The defendant argued that the alleged consent given by the 3rd

plaintiff had waived the time as the essence of the agreement.

However, all the plaintiffs held the land as co-proprietors and

there was no evidence that the 3rdplaintiff is the spokesman of

the other two.

Besides that, even if the 3rdplaintiff did give his consent on his

and their behalf, the consent is not legally binding to the other

co-proprietor plaintiffs.

In addition, assuming that there was such discussion betweenthe 3rdplaintiff and the defendants agent on the extension of

time, at best it was made in the course of negotiating towards a

contract collateral to the agreement. In negotiating a contract,

no matter how advanced, it cannot amount to a contract.


9/12

Contd

3 situations where time can be said to be ofessence: Where it was expressly stated that time is of the

essence of the contract

Where time was not incorporated as the essence ofthe contract but in due course had been made as partand parcel of the contract by notice from one party tothe other. It can be given after the party has beenguilty of unreasonable delay and the time must be

reasonable Where from the nature of the contract, time may be

said to be the essence of the contract.


10/12

Contd

So was the conduct of the 3rd

plaintiff in meeting thedefendants agent amount, in law, as a waiver that time is no

longer of an essence?

Cf Wong Kup Sing v Jeram Rubber Estates Ltd: once time for

completion was allowed to pass and parties went on

negotiating, time was no longer of the essence..

However, distinguishing this with this case, the plaintiff had

rejected the defendants request for an extension of date of

completion.

They also gave a notice as a result of the breach of the essentialterm that the deposit is forfeited.

Thus, the conduct of the plaintiffs were in such a manner that

indicates to the world at large that they meant to make time of

the essence.


11/12

Whether proper notice is required to terminate

the agreement and forfeit the deposit

Clause 12 of the agreement provided that if the purchaserfails/refuses/neglects to pay the balance of the purchaseprice on the date of completion, a 10% of the purchaseprice shall be forfeited by the vendor and the balance ofmoney received will be refunded to the purchaser. Upon

this, the agreement shall be treated as null and void. When the defendant had failed to pay the balance of the

purchase price and thus having the plaintiffs forfeit the10%, the plaintiff had issued a notice. Though the notice isnot a requirement under clause 12, that notice is still

considered proper and valid. The plaintiffs had complied with that part of the

requirement of clause 12 and thus have the right to treatthe agreement as null and void.


12/12

Whether the 2ndcaveat is valid and proper

S 329(2) of NLCthe Registrar of Titles shall not entertain any application forr the entry of a

further caveat in respect of the same land in 3 circumstances:

Where the court has ordered the removal of an earlier caveat under s 327

Where the court has refused an application under s 326(2) for an extension of time to

such caveat

Where the Registrar of Title has removed the earlier private caveat pursuant to s 326(3)

of the NLC

There is no provision in the NLC for the caveator to obtain an extension of his private caveatbeyond the original statutory period of 6 years as provided in s 328 but he can enter into a

2ndcaveat to further protect his claim.

Hock Hin Bros Sdn Bhd v Low Yat Holdings Sdn Bhd

Appeal dismissed. The caveat ought to remain as the defendants had succeeded in

showing that their claim to the land raised a serious question to be tried. It was further

held that the fact that the defendants had entered an earlier caveat which they

subsequently withdrew voluntarily did not prevent them from entering a second caveat.

However in this case, thefirst caveat was removed voluntarily by the defendant barely 2

months after it was lodged and this was followed by the 2ndcaveat which was lodged on the

same grounds as the first.

At the time she lodged the 2ndcaveat, she had no caveatable interest as the contract was

already terminated. Thus, the 2ndcaveat is not valid.

Documents

Chia See Yin & Ors