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    Conveyancing Case 3

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    Marvin Goshan
    1) The plaintiff was the original registered proprietor of the land. A forger used a fake power of attorney to fraudulently transfer the land to the third defendant. The plaintiff sued multiple parties involved in the fraudulent transfer. 2) The Court of Appeal found that the second defendant, the solicitor who initially represented the forger, was not negligent as she conducted proper searches and had no reason to doubt the authenticity of the power of attorney. 3) However, the court noted some precautions solicitors should take, such as confirming powers of attorney directly with the donor and obtaining necessary documents like quit rent receipts.

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    Conveyancing Case 3

    Uploaded by

    Marvin Goshan
    11 views7 pages
    1) The plaintiff was the original registered proprietor of the land. A forger used a fake power of attorney to fraudulently transfer the land to the third defendant. The plaintiff sued multiple parties involved in the fraudulent transfer. 2) The Court of Appeal found that the second defendant, the solicitor who initially represented the forger, was not negligent as she conducted proper searches and had no reason to doubt the authenticity of the power of attorney. 3) However, the court noted some precautions solicitors should take, such as confirming powers of attorney directly with the donor and obtaining necessary documents like quit rent receipts.

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    1) The plaintiff was the original registered proprietor of the land. A forger used a fake power of attorney to fraudulently transfer the land to the third defendant. The plaintiff sued multiple parties involved in the fraudulent transfer. 2) The Court of Appeal found that the second defendant, the solicitor who initially represented the forger, was not negligent as she conducted proper searches and had no reason to doubt the authenticity of the power of attorney. 3) However, the court noted some precautions solicitors should take, such as confirming powers of attorney directly with the donor and obtaining necessary documents like quit rent receipts.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
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    Download as pptx, pdf, or txt
    11 views7 pages

    Conveyancing Case 3

    Uploaded by

    Marvin Goshan
    1) The plaintiff was the original registered proprietor of the land. A forger used a fake power of attorney to fraudulently transfer the land to the third defendant. The plaintiff sued multiple parties involved in the fraudulent transfer. 2) The Court of Appeal found that the second defendant, the solicitor who initially represented the forger, was not negligent as she conducted proper searches and had no reason to doubt the authenticity of the power of attorney. 3) However, the court noted some precautions solicitors should take, such as confirming powers of attorney directly with the donor and obtaining necessary documents like quit rent receipts.

    Copyright:

    © All Rights Reserved
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    of 7

    YAP HAM SEOW V FATIMAWATI

    BT ISMAIL & ORS AND


    ANOTHER APPEAL [2014] 1 MLJ
    645
    TUTORIAL 1 QUESTION 2 (III)
    Facts
     PARTIES OF THE CASE

    PLAINTIFF: MS. YAP HAM SEOW


     The original registered proprietor of the land.

    1ST DEFENDANT: FATIMAWATI BINTI ISMAIL


     The solicitor that allegedly attested the fake Power of Attorney (PA) given by Forger (Ong Choon Teng).

    2ND DEFENDANT: TETUAN ISA LING & MOK & MS. MOK SHIAN PING (DW 5)
     The solicitor that initially represented the forger in the Sale and Purchase Agreement between Forger & 3rd
    Defendant (The immediate purchaser).

    3RD DEFENDANT: DEBARATH METAL SDN BHD


     The immediate purchaser of the land.

    4TH DEFENDANT: KASI A/L K L PAALANIAPPAN


     The subsequent purchaser of the land & the current registered proprietor of the land.

    5TH DEFENDANT: PENDAFTAR HAKMILIK NEGERI SELANGOR


     Land office that issued RDT in the name of 3rd defendant and issued new IDT to 3rd Defendant
    Facts
     It was unknown to the Plaintiff, the Forger, ONG CHOON TENG had entered
    into a SPA with the 3rd Defendant by virtue of the PA allegedly given by the
    Plaintiff and being attested by the 1st Defendant.
     The Forger was initially represented by the 2nd Defendant. However, being
    unable to convince her client, the Forger to sign a supplementary agreement
    (because application for a new title would take at least a year and would cause
    breach of SPA), she discharged herself even before 14A was presented in the Land
    Office.
     Forger appointed 3rd Defendant’s solicitor(s) to jointly act on his behalf – RDT
    was issued by 5th Defendant in name of 3rd Defendant – New IDT was issued to 3rd
    Defendant
     3rd Defendant entered into SPA with 4th Defendant – 4th Defendant was registered
    proprietor of the land
    Laws & Judgements
     High Court
     The 1st Defendant has not attested the fake PA given by the Forger. The signature and rubber stamp of the 1st
    Defendant was forged.

     The 2nd Defendant was negligence in failing to inspect the authenticity of PA provided by the Forger and inform the
    prospective solicitor of the 2 different versions pertaining to the whereabouts of title and the unavailability of the quit
    rent receipts before discharged.

     The 3rd Defendant & the solicitor should investigated the actual value of land before concluding the SPA and 3rd
    Defendant was not the bona fide purchaser. (No physical possession)

     The 4th Defendant was not the bona fide purchaser (No physical possession & no steps taken to recover the land) and
    hence the plaintiff’s name as the registered proprietor of the land be restored.

     The 5th Defendant was negligence in their failure to adhere NLC (S. 166, 168, 431 & 433) and caused new title to be
    issued & facilitate the transfer to 4th Defendant.
    Laws & Judgements
     Cross Appeal by 2nd Defendant and Judgement
     It was held that in discussing the Duty of Care owed by a solicitor, the main focus will be whether
    DW5 had used reasonable care and skill in dealing with the PA in question.
     The 2nd Defendant had:-
     Conducted a search at the High Court to ascertain the PA had been duly registered;
     Ascertained the solicitor who had attested the signature of the donor was indeed a solicitor actively in
    practice; and
     Conducted a search at relevant Land Office to ensure the PA had been registered with the Land Office at
    which the land was registered.
     There was nothing irregular about the Power of Attorney which could have triggered any
    suspicion on the DW5’s part to investigate further
    Laws & Judgements
     Court of Appeal
     Even there was suspicion on DW’s part, the duty of care owed by DW as a solicitor is only confined to
    Forger, the client. It does not include the Plaintiff as well as the prospective solicitor who may take over any
    irregularities or discrepancies in the file.

     DW5 had performed her duties as a solicitor in the preparation and execution of the legal documents (14A
    and SPA) and when she was unable to get her client’s cooperation, she decided to discharge herself.

     Hence, the 2nd Defendant was not held liable for negligence.

     However, in humble opinion, the 2nd Defendant shall examine the PA as it contained 2 Donee(s) (which is
    wrong) & communicate with the 1st Defendant who ‘allegedly’ attested it. Shall take further steps to confirm
    with the donor regarding the validity of PA & request the Quit Rent Receipt. Shall not help the Forger to
    apply the replacement of title without the Quit Rent Receipt.
    Precaution Measures
     Obtain the necessary documents required for a transfer for the company. Eg: the BOD & Member’s resolutions that
    authorizing the purchase.

     Does not act for both Vendor and Purchaser in a single transaction & should determine the actual purchase price of
    the SPA; [Checklist – 1.1]

     Conducts a search at the High Court to ascertain the PA had been duly registered;

     Ascertains the solicitor who had attested the signature of the donor was indeed a solicitor actively in practice;

     Conducted a search at relevant Land Office to ensure the PA had been registered with the Land Office at which the
    land was registered;

     Take further steps to confirm with the donor regarding the validity of PA & request the quit rent receipt.

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