Au Meng Nam & Anor v Ung Yak Chew & Ors Summary of Decision 7

Au Meng Nam & Anor v Ung Yak Chew & Ors Summary of Decision 7

(7)                  (per Gopal Sri Ram JCA)

The decision in Adorna Properties Sdn Bhd is not to be treated as binding precedent because it was decided per incuriam (see paragraph 13). It is central to the doctrine of indefeasibility housed in s 340 that the issue document of title must itself be genuine. In Adorna Properties Sdn Bhd, the instrument of transfer and other attendant documents were forged. But the title was genuine. In the present appeal there was cogent evidence going to show that the issue document of title used to effect the transaction here was itself a forgery. Hence Adorna Properties Sdn
Bhd
was clearly distinguishable from the facts of this case. The learned judge misdirected himself in not holding for the appellants on this ground. The appellant’s case must succeed because the vendors had no title to pass. And the only exception is in favour of a bona fide purchaser for value. In this case, the evidence conclusively pointed against the respondent on this issue. The burden of proving that he was a bona fide purchaser lay on the respondent and he plainly failed to discharge it (see paragraph 17); Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ 241 distinguished.

is not to be treated tidak boleh dianggap
binding precedent duluan yang mengikat
central tunjang
indefeasibility ketidakbolehsangkalan
issue document of title Surat ikatan dokumen hak milik
genuine asli
the instrument of
transfer
alat pindahmilik
other attendant documents dokumen-dokumen lain
were forged telah dipalsukan
title hak milk
cogent meyakinkan
used to effect the transaction digunakan untuk melakukan transaksi
A forgery satu pemalsuan
Hence Justeru
clearly distinguishable jelas berbeza
The learned judge misdirected himself Hakim bijaksana telah salah arah
The appellant’s case  Kes perayu
must succeed seharusnya berjaya
vendors penjual
burden of proving Beban pembuktian
discharge it (discharge the burden) Berjaya  melunasi beban pembuktian
distinguished dibeza
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