Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 5 MLJ 136

Au Meng Nam & Anor v Ung Yak Chew & Ors
[2007] 5 MLJ 136
CIVIL APPEAL NO J–01–82 OF 2005
COURT OF APPEAL (PUTRAJAYA)
DECIDED-DATE-1: 12 JULY 2007
GOPAL SRI RAM, RAUS SHARIF AND HASAN LAH JJCA

Facts of the Case

The plaintiffs were previously the registered proprietors of the land. On 17 September 1997, they came to know that the land had been transferred to the first defendant vide the registration of the memorandum of transfer in Form 14A on 9 October 1996. The plaintiffs contended that they had never entered into any agreement or signed any document to transfer the land to the first defendant. Two cheats claiming to be the proprietors of the land entered into a sale and purchase agreement of the land with the first defendant. This took place on 9 May 1996. Hence, on 18 September 1997 the plaintiffs lodged a police report stating that the transfer of the land to the first defendant was fraudulent. They subsequently brought this action against the first defendant. The first defendant in his defence contended that he was a bona fide purchaser of the land for valuable consideration within the proviso to s 340(3) of the National Land Code 1965 (‘Code’) and thus had obtained an indefeasible title to the land. The first defendant, as a fall back position, filed a third party notice against the second and third defendants for compensation or indemnity. He alleged that the second and third defendants were negligent. The second and third defendants were at the material time the partners in the firm of solicitors acting for the first defendant for the purchase and subsequent transfer of the land. The second and third defendants denied any negligence on their part. They too, as a fall back position, brought in the Pentadbir Tanah Daerah Johor Bahru (‘the fourth defendant’) as the fourth party to this action, claiming for contribution or indemnity. They in turn alleged that the fourth defendant was negligent. On 26 August 2005, the learned trial judge after a full trial, dismissed the plaintiffs’ claim. He found it as a fact that the instrument of transfer of the land to the first defendant was a forged document. Nevertheless, applying the Federal Court case of Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ 241 (‘Adorna Properties Sdn Bhd’) he held that the first defendant was a bona fide purchaser for value within the proviso to s 340(3) of the Code and thus had acquired an  indefeasible title to the land. One of the main issues raised by the plaintiffs in this appeal was that the learned trial judge was wrong to rely on the case of Adorna Properties Sdn Bhd. Learned counsel for the plaintiffs submitted that Adorna Properties Sdn Bhd was decided per incuriam and should not be followed. Thus, what had to be decided was whether the learned trial judge was right in holding that the first defendant was a bona fide purchaser of the land for valuable consideration so as to fall within the exception to defeasibility under s 340(3) of the Code. Learned counsel for the first defendant, submitted that the findings of the learned trial judge were findings of fact and this court, as an appellate court, should be slow in interfering with such findings.

Meanings of the underlined words.

 

 

previously sebelum ini
transferred dipindahmilik
vide the registration of melalui pendaftaran
 memorandum of transfer memorandum pindahan
contended telah menegaskan bahawa
had never entered into any agreement mereka tidak pernah memeterai apa-apa perjanjian
Two cheats Dua penyangak
proprietors of the land tuan punya tanah tersebut
lodged a police report membuat laporan polis
   
fraudulent palsu
a bona fide purchaser of the land for valuable consideration pembeli bona fide tanah tersebut untuk balasan bernilai
The first defendant, as a fall back position Defendan pertama, sebagai satu tindakan untuk melindungi kedudukan mereka
compensation ganti rugi
indemnity indemniti
alleged mengatakan
negligent cuai
   
denied telah menafikan
They in turn Mereka juga
claiming for contribution menuntut sumbangan
dismissed menolak tuntutan
a forged document satu dokumen palsu
applying dengan menggunapakai
had acquired telah memperoleh
an  indefeasible title to the land hak milik yang tidak boleh disangkal ke atas tanah tersebut.
was wrong telah terkhilaf
to rely on bergantung kepada
   
to fall within the exception terangkum di bawah pengecualian
defeasibility yang boleh disangkal
should be slow in interfering tidak sepatutnya campur tangan (patut masuk campur pada kadar yang lambat:maksud yang tersirat ialah selagi boleh jangan campur tangan) 
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