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High Court of Sabah and Sarawak |
] [Hide Context] [CSS21-23 OF 2009]
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARWAK AT SANDKAN
4
SUIT NO. S 21-23 OF 2009
8 RICHARD KOH KIN LIP (NRIC No. H0084745) ... PLAINTIFF AND
12 (Administrator of the estate of Hj Ahmad B Mahmood, deceased)
16 (Administrator of the estate of Hj Ahmad B Mahmood, deceased)
20 THE DIRECTOR OF LANDS AND SURVEYS
24
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GROUNDS OF DECISION
INTRODUCTION
4 1. At the outset of the trial, it was agreed between all the parties herein that the Plaintiff shall withdraw its claim against
the 1st,
2nd, 3rd and 6th Defendants without prejudice to his right to
pursue his claim against the 4th and 5th Defendants
8
STATEMENT OF AGREED FACTS
2. [1] The 1st Defendant was at all material times the purported
Administrator of the estate of Hj Ahmad B Mahmood, deceased
12 (hereinafter called “the said deceased”) allegedly appointed vide Permohonan No. 12100.064-01 Tahun 2003 filed at the Syariah
High Court, Kota Kinabalu. The deceased died on 19th April, 1988.
16
[2] The 2nd Defendant was at all material times the purported Administrator of the estate of the said deceased appointed vide Permohonan No. 12002.064-019/01 Tahun 2001 filed at the
20 Syariah Lower Court, Sandakan.
[3] The said deceased was the successful applicant of a piece of land comprised in Draft Title No. 085310416 (ref:
24 LS.801.1.105/48) (now known as Country Lease 085310416)
measuring an area of approximately 499.90 acres and situated
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at Mile 81, Labuk Road in the District of Beluran, Sabah (“the
said land”).
4 [4] The 2nd Defendant was adjudged a bankrupt on 27/06/2002.
[5] The title deed of the said land was registered on 24/11/2006.
8 [6] The Lands and Survey Department had allowed and accepted for registration a copy of the “Perintah Perlantikan Pentadbir
Harta/Tanah” issued by the Syariah High Court in favour of the 1st Defendant (hereinafter called “the said Second
12 Letters of Administration”). The said Second Letters of Administration was registered on 14th January 2008 under Memo No. 20293331 in the title deed of the said land.
16 [7] The Lands and Surveys Department also allowed and accepted the transfer of the said land from the said 1st Defendant to the 3rd Defendant. The said transfer was registered on 24th March 2008 under Memo No. 20294394 in
20 the title deed of the said land.
AGREED ISSUES TO BE TRIED
3. There are 2 main agreed issues to be tried between the Plaintiff
24 and the 4th and 5th Defendants which are as follows:
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[1] In addition to the Particulars of Negligence pleaded in paragraph 25(a) – (i) of the Amended Statement of Claim, as between the Plaintiff and the 4th and 5th Defendants,
4 whether there was negligence on the part of the 4th
Defendant in allowing:-
[i] The registration of the second Letters of
8 Administration on 14th January 2008 under Memo No. 20293331 in the document of title of the said land;
12 [ii] The registration of the transfer of the said land from the 1st Defendant to the 3rd Defendant; and
[iii] Failure to enter a collector’s caveat upon the
16 said land.
[2] Whether the Plaintiff’s claim on negligence against the
4th and 5th Defendants is statute barred.
20
Since the parties hereto have agreed on the agreed issues to be tried, I shall therefore not be considering any other issues.
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CONSIDERATION OF THE 2 AGREED ISSUES TO BE TRIED
4. [1] AGREED ISSUE NO. 1
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[i] The Plaintiff led evidence that he bought the land from one, Lesaya Bin Lopog Sorudim [“Lesaya”] through a Power of Attorney
dated 27/11/1986 [2nd Power of Attorney”] which
8 contained inter alia a clause that the said Power of Attorney is irrevocable whilst Lesaya had bought the land from one Hj
Ahmad B. Mahmood [“Hj Ahmad”], the original applicant of the land in 27/10/1986 through a Power of Attorney [1st Power of
12 Attorney”]. The Plaintiff paid the premium for the land amounting to the sum of RM21,539.00 and the Plaintiff further stated that after he bought the land in 1986, he had from time to time, inquired from the Land Office and at all material times, he
16 was informed by the Land Office that the title of the land in the process of being issued.
[ii] The Plaintiff also stated that since 18/1/1996, through his
20 former solicitors, Messrs Peter Lo & Co., he had given notice to the Land Office of his interest and right in the land and requested that the title deed of the land, be registered and given to the Plaintiff. When the Plaintiff heard that Lesaya
24 wanted to resell the land to others, the Plaintiff then on
27/8/1998 through his said former solicitors, Messrs Peter Lo &
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Co. wrote again to the 4th Defendant herein, informing him about this fact and requested the 4th Defendant to freeze all dealings concerning the land by any third parties which may
4 jeopardize the Plaintiff’s interest in the land. This is admitted by the 4th and 5th Defendants herein in paragraph 8 of the Defence of the 4th and 5th Defendants.
8 [iii] Sometime in September 1998, the Plaintiff said that he was informed that someone had made an application to the Syariah Lower
Court to claim the land, The Plaintiff’s former solicitors, Messrs Peter Lo & Co. then wrote to the 4th Defendant to
12 request for the Syariah Court Order and related documents and to inform about the Plaintiff’s rights to the land. After obtaining
the documents from the Syariah Lower Court, the Plaintiff discovered that one Shamsir Bin Gandiok, the 2nd Defendant
16 herein had inherited the land.
[iv] By way of defence and rebuttal, the 4th and 5th Defendants stated that the Plaintiff is the registered applicant but Hj Ahmad.
20 The Plaintiff’s interest as a purchaser and claims to have beneficial interest over the land by virtue of the sales and
purchase agreement and the 2nd Power of Attorney. Hj Ahmad had since died before the land was alienated by the issuance of
24 the title and the 1st and 2nd Defendants then came into the
picture as administrators and for the distribution of the estate of
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Hj Ahmad including the land and this is also before the titles of
the land was issued.
4 [v] The 4th and 5th Defendants further averred that they owed no duty to the world during the pendency of section 88 Sabah Land Code (Cap. 68) and the
Plaintiff ought to know or highly probable to have knowledge of the progress of the issuance of
8 the title at all material times and that the Plaintiff had been guilty of his own inequitable conduct in neglecting to challenge the
1st, 2nd and 3rd Defendants’ interest during the distribution of Hj Ahmad’s estate. The 4th and 5th Defendants also stated that
12 in registering the second Letters of Administration on 14th
January 2008 under Memo No. 20293331 in the document of title of the said land and in registering of the transfer of the said land
from the 1st Defendant to the 3rd Defendant, they were
16 complying with the Syariah Court. The 4th Defendant further
contended that they did issue a letter dated 10/11/2006 to the
Plaintiff’s lawyers, asking the Plaintiff to protect his interests.
20 [vi] I have considered both the Plaintiff’s and 4th and 5th
Defendants’ contentions and my findings are as follows.
[a] I agree with the contentions of the Plaintiff that the 4th
24 Defendant had a duty of care towards the Plaintiff who paid the premium which was accepted by the 4th
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Defendant, to ensure that the title deed of the land was issued in favour of the Plaintiff and that the 4th Defendant ought to have notices of the improper dealings or
4 documents and lodged a collector’s caveat pending a land enquiry to determine the rightful owner of the land. There was also
no evidence led by the 4th and 5th Defendants that they were threatened with contempt or
8 committal proceedings by the parties for refusing to register the Second Letters of Administration.
[b] As to the 4th and 5th Defendants’ contention that they
12 did sent a letter dated 10/11/2006 to the Plaintiff’s lawyers, asking the Plaintiff to protect his interest in the land, I find that there is no evidence at all to show that it was sent. DW1 merely said “As far as my office is
16 concerned we have issued the notice to the respective law firms who were acting for the parties who had made the claim to the said land”. DW1 merely said the said notice [letter] was issued and he never said that the said
20 letter was sent, if so, how was it sent, by post, hand or any other means. I also find that the fact that the 4th and
5th Defendants issued the said letter clearly showed that
the 4th and 5th Defendants admitted or knew of the
24 Plaintiff’s interests in the land and that they had a duty of care to the Plaintiff. If the 4th and 5th Defendants could
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proved that they did send such a letter to the Plaintiff and the Plaintiff did not take any steps to protect his interest after receiving
such a letter, then I would find that the 4th
4 and 5th Defendants have discharged their duty to the
Plaintiff.
[vii] Having considered all the relevant evidence, I find that
8 there was negligence on the part of the 4th Defendant inter alia in allowing:-
[i] The registration of the second Letters of
Administration on 14th January 2008 under Memo
12 No. 20293331 in the document of title of the said land;
[ii] The registration of the transfer of the said land
16 from the 1st Defendant to the 3rd Defendant; and
[iii] Failure to enter a collector’s caveat upon the
said land.
20
[viii] My reasons for such a finding are as follows:
[a] It is pertinent to note that the Plaintiff is claiming damages for negligence from the 4th and 5th Defendants
24 and in order to enable the Plaintiff to succeed, the Plaintiff
must prove inter alia that the 4th Defendant owed him, a
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duty of care, that there was a breach of that duty and if so, whether the Plaintiff had suffered damages in
consequences thereof.
4
[b] I am guided by the Federal Court case of Majlis
Perbandaran Ampang Jaya V Steven Phoa Cheng Loon
& Ors [2006] 2 MLJ 389 STEVE SHIM CJ (Sabah &
8 Sarawak) held at pg 406 :
“ In Australia, it is accepted that pure economic loss in the law of negligence is not restricted to particular categories or approaches. The High Court of
12 Australia in Perre & Ors v Apand Pty Ltd (1999) 164
ALR 606 seems to have adopted the ‘open-ended approach’ in assessing claims for pure economic loss in the law of negligence. Although the various
16 members of the High Court have expressed differing views, they all agree that claims for pure economic loss in the law of negligence are not precluded and will depend on the facts of individual
20 cases. The New Zealand courts have also adopted the ‘open-ended approach’ to claims for pure economic loss (see South Pacific Manufacturing Co Ltd v New Zealand Security Consultants &
24 Investigations Ltd [1992] 2 NZLR 282). In Singapore
too, the courts have recognized the ‘open-ended
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approach’. In RSP Architects Planners & Engineers (Reglan Squire & Partners FE) v Management Corporation Strata Title No 1075 [1999] 2 SLR 449,
4 the Court of Appeal has held that whether a defendant owes the plaintiff a duty of care not to cause the particular type of loss depends on the circumstances and facts of that case. This view has
8 been confirmed in the recent case of Man B & W Diesel SE Asia Pte Ltd & Anor v PT Bumi International Tankers and another appeal [2004] 2
SLR 300, at p 318 where the Court of Appeal also
12 expresses the view that the principle in Donoughue v Stevenson [1932] AC 562 was still evolving and could offer redress for loss suffered by the plaintiff as a result of defendant’s acts and omissions in
16 circumstances where a remedy for such losses would not otherwise exist.
Having had the benefit of reading the various authorities on this subject, I am more inclined to
20 accept the positions taken by the courts in Australia and Singapore. In adopting the sentiments and observations expressed by the Singapore Court of Appeal in PT Bumi International Tankers, I would
24 also endorse the view that caution should be
exercised in extending the principle in Donoghue v
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Stevenson to new situations. Much would depend on the facts and circumstances of each case in determining the existence or otherwise of a duty of
4 care.
The Court of Appeal in the instant case is correct in adopting the view expressed by Lord
8 Oliver in Murphy v Brentwood that the critical question is not the nature of the damage itself, whether physical or pecuniary, but whether the scope of the duty of care in the circumstances
12 of the case is such as to embrace damage of the kind which the plaintiff claims to have sustained. The decision in Murphy involves, as I have mentioned earlier, the application of the
16 Caparo test which takes into account the elements of foreseeability, proximity and the additional requirement of justice, fairness and
reasonableness.” [emphasis is mine]
20
[c] I am also guided by the Court of Appeal case of Pendaftar dan Pemeriksa Kereta-Kereta Motor, Melaka & Ors v KS South Motor Sdn Bhd [2000] 573
24 imposed inter alia a duty of care on the Pendaftar dan
Pemeriksa Kereta-Kereta Motor, Melaka to maintain
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accurate and reliable information so that the paying public, particularly owners of motor vehicles, would be purchasers of such vehicles and those involved in the
4 motor trade rely on such information to conduct private and commercial transactions.
At page 585 of the above case, Siti Norma Yaakab JCA [as she then was] said:
8 “It is this concept of general reliance that imposes a duty on the first and second appellant to take care that all information coming from them are accurate. See the privy Council case of Invercargill City
12 Council v. Hamlin [
1996] 2 WLR 367, and the Australian case Parramatta City Council v. Lutz [1988] 12 NSWLR 293. As was said by the High Court of Australia in the case of The Council of the
16 Shire of Sutherland v. Heyman And Another [1984-1985] CLR 424, reliance “has always been a important element in establishing a duty of care. It has been suggested that liability in negligence is
20 likely, if not exclusively, based on the plaintiff’s reliance on the defendant’s taking care in circumstances where the defendant is aware or
ought to be aware of that reliance.”
24
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[d] In a case somewhat similar to the Plaintiff’s case herein also involving land and negligence on the part of the Land Administrator, Kuala Lumpur, the High Court in
4 Chang Wing Kai & Satu lagi lwn Pentadbir Tanah Kuala Lumpur [2008] 9 CLJ 417 found for the plaintiff and held that the defendant was liable for negligence although it was contended by the defendant that it had
8 been cheated by an imposter into wrongfully releasing the compensation of the land to the fraudster. The High Court held as follows:
12 “Held (1) Tanggungjawab adalah terletak kepada pihak defendan untuk berhati-hati dalam urusan seharian dan menggunakan kepakaran dan pengalaman mereka untuk menjaga kepentingan
16 pelanggannya iaitu orang awam seperti plaintif.
Defendan mempunyai kewajipan berjaga-jaga dan tidak boleh memberi pembelaan bahawa mereka juga tertipu dengan penyamar itu. Pegawai-pegawai
20 dan kakitangan defendan dikehendaki bertanggungan atas kerugian yang dialami oleh plaintiff. Jika pihak defendan terlampau melindungi dan tidak mempunyai sebarang akauntibiliti atas
24 kerugian pelanggannya, maka pihak defendan
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seolah-olah dilihat diberi keistimewaan
perlindungan dari boleh disaman atas kecuaiannya”
4 [e] In the light of the aforesaid cases, I hold that the 4th Defendant owed a duty of care to the Plaintiff as the Plaintiff was clearly relying on the 4th and 5th Defendants’ position, action and conduct to protect his rights and
8 interest. I agree with the Plaintiff’s contention that by virtue of paragraph 12 of the Defence of the 4th and 5th Defendants, the 4th and 5th Defendants admitted that they gave the impression that the Plaintiff’s rights and interest
12 had been acknowledged by 4th Defendant and that the title deed would be issued to the Plaintiff. Arising from the
4th Defendant’s said representation, the Plaintiff can
legitimately rely and expect the 4th and 5th Defendants to
16 protect his rights and interest and transfer the title deed of the land to him eventually. The 4th and 5th Defendants are estopped from denying otherwise.
20 [f] I further find that the 4th and 5th Defendants have breached the duty of care owed to the Plaintiff when they permitted the registration of the second Letters of Administration
on 14th January 2008 under Memo No.
24 20293331 in the document of title of the said land, the
registration of the transfer of the said land from the 1st
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Defendant to the 3rd Defendant and failing to enter a
collector’s caveat upon the said land.
4 [g] I also find that as a result of the breach of the above duty of care, the Plaintiff had suffered loss and damages as the land which belonged to him was transferred to a
third party.
8
[2] AGREED ISSUE NO. 2
[1] The 4th and 5th Defendants contended that the Plaintiff’s
12 claim on negligence against the 4th and 5th Defendants is statute barred by section 2 of the Public Authorities Protection Act 1948 (Act 198) in that an action for negligence
must commence within 36 months from the date the alleged
16 negligence occurred. Time according to the 4th and 5th
Defendants, should run, according to paragraph 11 of the Plaintiff’s Reply to the Defence of the Defendants which stated that “…… the transactions leading to and including the transfer
20 of the said land to the 3rd Defendant are null and void and the
4th Defendant was negligent in facilitating the various transactions and transfers based on the particulars of negligence pleaded in the Plaintiff’s statement of claim.” And
24 this allegedly occurred in 1998 with the full knowledge of the
Plaintiff.
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[2] In response the Plaintiff contended that the 4th and 5th
Defendants admitted in paragraph 13 of their Defence that the
4 Plaintiff had no knowledge of the 4th Defendant registering the Second Letters of Administration and allowed the transfer from the 1st Defendant to the 3rd Defendant on 24th March 2008. It was further contended that the 4th and 5th Defendants in
8 paragraph 13 of their Defence admitted that the Plaintiff only discovered this fact on 16/2/2009 and as such the Plaintiff’s claim is statute barred by item 20 of the Sabah Limitation Ordinance or under section 2 of Public Authorities Protection
12 Act 1948.
[3] I hold that the Sabah Limitation Ordinance is not applicable herein as the 4th and 5th Defendant are governed only by the
16 Public Authorities Protection Act 1948 in so far the issue of limitation is concerned. Having perused the Defence of the 4th and 5th Defendants and the Plaintiff’s Reply to the 4th and 5th Defendants’ Defence, I find that the 4th and 5th Defendants have
20 indeed admitted in paragraph 13 of their Defence that the Plaintiff had no knowledge of the 4th Defendant registering the Second Letters of Administration and allowed the transfer from the 1st Defendant to the 3rd Defendant on 24th March 2008 and
24 the 4th and 5th Defendants in paragraph 13 of their Defence also
admitted that the Plaintiff only discovered this fact on
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16/2/2009. Since the Plaintiff filed their claim herein on
9/4/2009, I therefore hold that the Plaintiff’s claim is not statute barred.
4
OTHER ISSUES RAISED BY THE 4TH AND 5TH
DEFENDANTS
5. I noted that the 4th and 5th Defendants have raised other issues
8 which are not covered by the Agreed Issues to be tried such as the Plaintiff’s fatal failure to name the Registrar of Titles as a party to this action. As this issue is not part of the agreed issues to be tried, I should not and shall not deal with it.
12
6. In the light of the aforesaid, I find as follows:
[1] As regards the agreed issue [1] above, I find that there
16 was negligence of the part of the 4th Defendant inter alia in allowing:-
[i] The registration of the second Letters of
20 Administration on 14th January 2008 under Memo No. 20293331 in the document of title of the said land;
24 [ii] The registration of the transfer of the said land from the 1st Defendant to the 3rd Defendant; and
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[iii] Failure to enter a collector’ caveat upon the said
land.
4 [2] As regards the agreed issue [2] above, I find that the Plaintiff’s claim on negligence against the 4th and 5th Defendants is not statute barred.
8 7. I find that the 5th Defendant is vicariously liable for the actions of the
4th Defendant as it is conceded in the Defence of 4th and 5th Defendants that the 4th Defendant is an employee and/or servant and/or agent of the 5Th Defendant.
12
8. In the light of my aforesaid findings pertaining to the 2 agreed issues to be tried, I therefore enter judgment in favour of the Plaintiff against the 4th and 5th Defendants jointly and severally in terms as stated in
16 the Amended Statement of Claim
Dated this 9th June 2010.
20 ………………………………….
Y.A. Tuan Lee Heng Cheong Judicial Commissioner Sandakan Sabah
24
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For Plaintiff : Messrs Francis Chia & Jinu, Kota Kinabalu
For 4th and 5th Defendants : State Attorney General’s Chambers, Sabah
4
Notice: This copy of the Court’s Grounds of Decision is subject to
formal revision.
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