Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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BETWEEN
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APPELLANT
RESPONDENTS
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PLAINTIFFS
AND
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DEFENDANTS
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THIRD PARTIES
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PLAINTIFF
AND
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DEFENDANTS
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CORAM
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[B-01-489-12/2014
Introduction
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1.
Which were heard together by the learned High Court Judge who
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2.
The factual matrix are these. The subject matter of this dispute
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relates to a piece of land held under EMR 2884, Lot 549, Mukim 02,
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Daerah Petaling (the Land). The original owners of the Land are See
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Brothers) who held the same in equal shares. They also had in their
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3.
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Sdn Bhd (Heveaplast) purchased the Land from the See Brothers.
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4.
5.
Land to one Kum Hoi Engineering Industries Sdn Bhd (Kum Hoi) for
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Hoi and Public Bank cannot effect the transfer and charge on the
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Land respectively.
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6.
Both the transfer and the charge of the Land could not be lodged
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with the Land Office as there was then a Registrars Caveat on the
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Land which was premised on See Brothers complaint that they had
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Suit 233
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2
7.
In this High Court Suit the See Brothers are the 1st and 2nd Plaintiffs
who took legal action against Heveaplast (1st Defendant), UOB (2nd
joined the Petaling and Shah Alam Land Offices as 1st and 2nd Third
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(i)
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(ii)
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(iii)
transferred
to
the
1st
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Defendant
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(iv)
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(v)
Land;
(vi)
be
restrained
and/or
abstained
from
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(ix)
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realization.
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8.
trial.
The 3rd and 4th Defendants did not file any defence nor appear at the
9.
The 1st Defendants defence was one of bona fide purchaser for
value without notice of the fraud relying on the fact that there was a
solicitors.
10.
The 2nd Defendants defence was that its charge on the Land was
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11.
The claim against the third parties was premised on the alleged
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IDT despite the fact that the See Brothers had in their possession
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12.
The learned Judge listed four issues for his consideration and they
were:
(a) Whether the memorandum of transfer dated 21-1-2009
was a forged document?
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a forgery?
(c) Whether the 1st, 3rd and 4th Defendants were parties to
the fraud?
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Code 1965?
(e) Whether the 2nd Defendants interest over the said land
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13.
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hence allowing the See Brothers claims. The effect thereof was that
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for the action against the respective land offices they were
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14.
Arising from this decision, two appeals were lodged and they are:
(a) B-01-489-12/2014 (Appeal 489) where the Appellant is
Heveaplast; and
(b) B-01-33-01/2015 (Appeal 33) where the Appellant is
UOB.
[B-01-489-12/2014
15.
this case), while the Respondents were See Leong Chye @ Sze
and Pentadbir & Pengarah Tanah Dan Galian Shah Alam (4th
Respondent).
16.
In Appeal 33, the Appellant was United Overseas Bank Berhad (the
2nd Defendant in this case), while the Respondents were See Leong
Chye @ Sze Leong Chye (1st Respondent), See Ewe Lin (2nd
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Suit 216
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17.
In Suit 216, Kum Hoi Engineering Industries Sdn Bhd is the Plaintiff
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while the 1st and 2nd Defendants are Heveaplast and United
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18.
Kum Hois claims, in essence, were for the refund of monies paid to
Heveaplast and UOB pursuant to the agreement for the purchase of
[B-01-489-12/2014
the Land between Kum Hoi and Heveaplast. The Suit was premised
19.
The defence of Heveaplast was simply that Kum Hoi had not
20.
As for UOB, their defence was that the obligation to refund must
have emanated from the fact that the inability to register the charge
was attributed to their fault and since there is no such fault, they
contended that there was no obligation to refund.
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21.
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ordered them to refund the monies to Kum Hoi. The essence of the
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Kum Hoi was not able to effect the transfer of the Land, both
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22.
From the aforesaid decision, two appeals were lodged and they are
as follows:
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23.
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24.
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Defendant
who
to 2nd Plaintiff.
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unrebutted.
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Defendant
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Heveaplast SPA.
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was
held
himself
wholly
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as
the
unanswered,
solicitor
it
was
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26.
The learned Judge in coming to his conclusion had also relied on the
evidence of SP1, the hand writing expert evidence called by the See
Brothers that the impugned signatures were not theirs. There was
also evidence that no monies from the sale of the Land were ever
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Leong Chye (1st Respondent) had forged the signature of See Ewe
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learned Judge but we think for good reason and that is, it was never
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27.
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fact by the trial Court, the Federal Court in a recent case of Dream
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the Federal Court in Gan Yook Chin & Anor (P) v. Lee
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[B-01-489-12/2014
Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309;
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28.
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are not shown there were plainly wrong findings of fact by the trial
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00.
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30.
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3rd Defendant.
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that
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RM8,500,000-00.
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1st
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time,
according
Defendant
and
to
valuation
maintains
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that
report,
the
was
transfer
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Land.
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31.
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been shown that the Judge was plainly wrong in his conclusion.
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32.
Further we are also of the view that the learned Judge was right to
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legal principle of Ex turpi causa non oritur actio (in plain English - no
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one should benefit from his or her wrongful conduct). Hence there is
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33.
To recapitulate, Kum Hoi had bought the Land from Heveaplast for
loan from Public Bank. Kum Hoi had also incurred a sum of
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34.
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a)
That
the
1st
Defendant
is
not
under
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b)
said
redemption
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sum
amounting
to
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fulfilling
its
obligation.
After
going
through
the
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35.
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this claim by Kum Hoi for the simple reason that the letter of
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letter of undertaking.
Appeal 33 UOB v See Brothers and 5 others (Suit 233)
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36.
In this appeal, the legal interest as chargee of the Land was also set
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title to the Land will also make the charge, which the
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37.
It appears from the above that the learned Judge had found that
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UOB was also immediate purchaser, hence cannot claim any shelter
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39.
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Eng [2001] 3 CLJ 97 in the Federal Court case of Tan Ying Hong v
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40.
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indefeasibility.
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[44] We agree with the court that the issue before the
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said at p. 342:
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by forgery.
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subsequently
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transferred
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under
the
forged
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set aside.
At p 343 it said:
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they
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document.
acquired
their
titles
under
forged
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voidable
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indefeasible
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purchaser.
instrument
title
does
under
s.
not
acquire
340(2)(b).
an
The
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out
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[1955] SC 765).
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an
exception
to
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the
provision
immediately
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added)
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rest.
the
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the NLC.
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42.
Federal
Court
in
Adorna
Properties
had
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Ors v. Yakub Husin & Ors [2014] 1 CLJ 987 His Lordship Jeffrey
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claiming
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purchaser, is indefeasible.
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43.
through
or
under
such
subsequent
The learned Judge, with respect, should have adhered to the advice
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Ors (supra) and asked the question whether UOB was a subsequent
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facts which were not considered by the learned Judge were these:
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[B-01-489-12/2014
(i)
(ii)
44.
Though the above dealings were on the same day and were done
ignore the fact that the lodgement of the UOBs Charge could not
have been created until the first step of transfer to Heveaplast had
been affected. And since there was no suggestion that UOB was
tainted by fraud or forgery, UOB was what you call a purchaser for
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45.
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supported
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Kamarulzaman Omar & Ors v. Yakub Husin & Ors [supra] and
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by
two
decisions
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of
the
apex
Court,
namely
[B-01-489-12/2014
46.
consideration.
47.
In Tan Ying Hong, the then Chief Judge of Malaya (now the Chief
Justice of the Federal Court) had remarked that the Court of Appeal
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was wrongly decided. The factual matrix in the OCBC case was
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similar to the present case, hence making those remarks, to say the
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Lordship said:
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48.
The learned Judge also sustained the claim for refund by Kum Hoi
against UOB for monies released by Public Bank, the financier for
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[73] The
defence
by
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summarized as follows:
2nd
Defendant
could
be
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documents;
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Defendant
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Defendant;
did
not
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issue
any
Letter
of
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(d)
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Plaintiff.
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49.
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2.
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2.1
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2.2
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reasons
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attributable
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to
us,
provided
that
the
[B-01-489-12/2014
whichever is applicable.
50.
Learned counsel submits that the inability to cancel the charge and
register the same was not attributable to UOB, hence the obligation
to refund did not arise. With respect, the letter of undertaking cannot
be interpreted in vacuum in that one cannot ignore the fact that the
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loan from Public Bank Bhd was to finance Kum Hois purchase of
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the Land and the amount released was to satisfy or redeem the loan
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Hoi till today could not be effected as there still is a live dispute as to
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transfer to Kum Hoi, Public Bank Bhd can never satisfy UOBs
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charge and become a chargee of the Land. The fault here, no doubt,
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Bhd v Datuk Yap Pak Leong [1998] 3 MLJ151 where the Federal
Court at page 169, per Pah Swee Chin FCJ, said as follows:
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such
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implied
terms
come
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from
decided
cases
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custom
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a written contract.
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or
usage
from
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the
market
or
trade.
[B-01-489-12/2014
course".'
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the agreement.
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too clear'.
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business
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efficacy,
the
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answer
to
the
officious
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52.
It is our view that the circumstances in this case pass the two tests,
What we have here is Kum Hoi, the purchaser, buying the Land and
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transfer the Land to Kum Hoi and that condition is what we call a
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does not come into effect until such time the condition precedent has
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been satisfied. Here of course the same has not been complied with.
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transaction involved: (1) the transfer of land to Kum Hoi; and (2) the
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53.
Such implied term gives business efficacy for the simple reason
premised solely on the ground that the borrower has good title to the
to a commercial contract.
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54.
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Public Bank Bhd and not the Plaintiff is, in our view, ignoring the
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55.
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of
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MBF
Property
Services
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Sdn
Bhd
&
Anor
[B-01-489-12/2014
...
The
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three
documents;
the
sale
and
purchase
principles of law.
Thus, in Manks v Whitely [1912] 1 Ch
735, Fletcher Moulton LJ said (at p 754):
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transaction
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must
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deed
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be
and
are
equities
representing
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contemporaneously
arising
out
of
separate
the
and
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10
56.
The
decision
in
Manks
Whitley
has
also
been
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nature
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whole. In
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and
ought
other
to
words,
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be considered
none
of
the
as
said
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10
as
the
payments
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were interlocked.
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(contemporaneously
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the
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v. Whitley [1912]
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23
2 MLJ 165 ).
intention
of
of
RM40
million.
executed),
the
1
parties.
Ch
735;
Such
reference
(See: Manks
[1914]
AC
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25
26
57.
Reverting to the case at hand, there is little doubt that if not for
the sale and purchase agreement of the Land between
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Heveaplast and Kum Hoi, the loan agreement would not have
released by Public Bank Bhd to UOB but one cannot ignore the
fact that the money paid originated from the loan account of Kum
Hoi. Hence Public Bank Bhd was nothing but a conduit for the
58.
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11
Conclusion
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59.
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For the reasons set out above, we made the following orders:
(i)
Appeal No 489:
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appellant.
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(ii)
Appeal No 33:
Appeal allowed with no order as to costs.
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(iii)
Appeal No 2129:
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(iv)
Appeal No 173:
Appeal dismissed with no order as to costs.
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COUNSEL (B-01-489-12/2014)
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Pramjit Kaur
Messrs. Mann & Associates
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Premshangar Venugopal
With him Muralidharan Balan Pillai
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COUNSEL (B-02-2129-12/2014)
Pramjit Kaur
Messrs. Mann & Associates
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Rewatty K. Kutty
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7
COUNSEL (B-02-173-01/2015)
Andrew Chiew
Kenneth Seet
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Gledhill
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Rewatty K. Kutty
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Pramjit Kaur
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COUNSEL (B-01-33-01/2015)
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Andrew Chiew
Kenneth Seet
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Anthony Chew
Su Tze Wei
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Premshangar Venugopal
Pramjit Kaur
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