QUESTION 1

Lis Pendens can be defined as a written notice that a lawsuit has been issued involving the
title to real estate or an interest in that real estate. It acts as a deterrent to dealings based on
English land law and was governed under the provisions of section 25(2) and paragraph 6 of
Schedule 1 to the Court of Judicature Act 1964. In reference with Bellamy v Sabine (1857),
the concept of Lis Pendens is founded on the premise that while the title to property was
being disputed in court, the parties to the action were unable to alienate the land because the
court's ruling would be defeated. However, it need to be noted that the lis pendens order is
not relevant to the Malaysian land law because of section 6 of Civil Law Act 1956 where it
was expressly restricts the application of English Law in terms of real property and equity.
Plus, Lis pendens registration is not allowed under the National Land Code 1965 which
provided under section 417 of National Land Code that stated the court cannot order the
Registrar to make entries on registers of a type of transaction that is not covered by the
National Land Code 1965. Besides, in Damodaran v Vesudevan, the court stated that the Lis
Pendens order is not operative as an encumbrance on land.

By applying this to the situation where is it possible for Azri to apply for Lis Pendens to
prevent Sunny’s action, it can be submitted that it is not a possible one. This is because the
Lis Pendens order is not applicable in our Malaysian Land Code and it will not help Azri to
challenge the transfer made to Sunny’s son as it will not prevent the son from obtaining the
indeafeasible title to the land.

QUESTION 2
A private caveat is when the Registrar entered upon the application made by a person or body
who has a ‘caveatable interest’ which means those who has unregistered interest. According
to section 323 (1) National Land Code, any person who claims to have the title or any
registrable interest in the land, they are eligible to enter into the private caveat. The effect of
private caveat when it was registered is that the Registered Proprietor will be restrained to
conduct any types of dealings with his land. By referring to the case of Goh Hee Sing v Will
Raja & Anor, the court held that when the sale of land is subject to a limitation in interest on
the title requiring the approval of the State Authority, the purchaser will not have any
"caveatable interest" until the State Authority's consent is acquired. Therefore it can be
summarized that a buyer cannot enter into a private caveat when the land is under a
restriction which needs the approval of the State Authority but, if the buyer succeed in
obtaining the consent, he/she may proceed with the action.

By applying this to the given situation, initially, the buyer has the caveatable interest which
made him/her eligible to apply for private caveat. However because of the proposed land has
been put a restriction in interest where it stipulates that the land cannot be sold, charged, or
transferred in any manners without the permission of the state authority and there is no
permission from the state, it means that the buyer no longer has the caveatable interest to
apply for private caveat. Hence, it was advised to buyer to not proceed with the intention to
enter the private caveat as the buyer no longer falls under the category of whom is eligible to
do so.

QUESTION 3
Section 320 (1) National Land Code provides the circumstances where the Registrars caveat
may be entered and one of them is to protect the interest of the federation. This means that a
Registrars caveat can be entered to restraint the land from being dealt with in order to ensure
that the land is available to satisfy the whole or any part of debt due to the federation.
Furthermore, it is submitted that a prior registered charge shall take precedence over a
subsequent Registrar caveat. In the case of Overseas Chinese Banking Corp. Ltd. v PHT
Negeri Kedah, is has been laid down three consideration that a registrar need to take into
account before entering the Registar caveat namely; i) The market value of the land in
question; ii) The amount of debt due on any registered charge or charge; iii) The value of the
debt owed to the government. By this, if the amount of the debt owing to the government is
exceeding the value of the land after subtracting the sum of debt due on any registered
charge, then the Registrars caveat will serve no purpose.

By applying this to the given situation, the land is estimated to worth RM 2 million and has
been charged as a security for a financial for RM1 million. After the subtraction of the sum of
debt due on any registered charge, there will still be RM1 million left. Thus, it was advised
for Lembaga Hasil Dalam Negeri (LHDN) to enter Registrar’s Caveat for land A, as the sum
left will be enough to pay the unpaid tax of RM 500,000.00
QUESTION 4
Para 3(b) of the statutory form 19D provides that the form must be accompanied by the issue
document of tittle in order to create lien holders caveat. When a registered proprietor deposit
the land title, it will be amounted to an evidence that shows that the registered proprietor has
the intention to that the deposited document would serve as a security for the loan. Hence,
when the lien has been created, it would legally give the lien-holder the right to enter a lien-
holder's caveat which definitely trigger a statutory interest.
By applying this to the given situation, when the registered proprietor deposits Individual
Document Title (IDT) of his land to Export Import Bank Berhad as a security of a loan of
RM 400,000, it can be said that the registered proprietor has the intention to create lien and
therefore the element of lien has been fulfilled. Hence, Export Import Bank Berhad has the
right to apply for order for sale of the land as Export Import Bank Berhad has the statutory
interest.