5.

Discuss and analyze the facts and principles in the following cases
Margaret Chua v Ho Swee Kiew
the appellant, the proprietor of two adjoining vacant shop lots in Alor Star ,borrowed from the
respondents $30,000 intending to build two shophouses thereon and agreed to grant them a lease for a
period of 25 years on completion of the buildings (except the first floor of the premises erected on one
lot) upon certain terms and conditions. The appellant also agreed "not to sell or otherwise dispose of the
demised premises or any part thereof, without first offered to the defendant." The agreement which
purported to be an actual demise to take effect in future wasexecuted in English, not in Jawi, as required
by the Kedah Land Enactment. On March 11, 1952, theappellant charged the land to the Oversea-Chinese
Banking Corporation for $40,000. On June 10, 1959, theappellant offered to sell the premises to the
respondents for $90,000, which offer was refused as beingextremely high but they agreed to purchase the
premises at a price to be mutually agreed upon and not at the price quoted by her.To prevent the lands
being sold by the appellant the respondents lodged a caveat, which was discharged bythe Court on the
ground that the chargee's consent in writing to the lease not having been obtained they hadno registrable
and, therefore, caveatable interest in the land by reason of section 92 of the Kedah LandEnactment. The
appellant then sold the land to a third party and had the charge discharged. The purchasergave the
respondents notice to quit. Further proceedings taken by the respondents for an injunctionrestraining the
appellant from selling the land were of no avail since the land had been sold.In the event this action was
brought by the respondents against the appellant claiming damages. On appealagainst the judgment of
Barakbah J. declaring the appellant liable in damages for breach of contract
Held : although the agreement was void as a lease for lack of registration, it was valid as anagreement for
a lease enforceable in equity;(2) the agreement for lease was a binding contract, failure to comply with
which was clearly abreach of contract.

Siew Soon Wah v Yong Tong Hong

Respondent was a tenant of the entire ground floor of premises No.61 Jalan Pasar Bharu, Kuala Lumpur,
since1958 (the said land).The predecessor of the appellant (Siew Kim Chong The father of the A) asked
the R to pay$8000 Malayan Currency on his behalf to a building contractor upon the completion of
renovation of the building.Yong later let into occupation of the ground floor at therent of $150 per month.
Later, the rent was increased by Siew Soon Wah (appellant) to $ 200 on April 9, 1964.On October 4,
1966, the landlord gave notice of termination on Yongs tenancy on November 30, 1966 unless he
accepted a new tenancy from December 1 at $300 per month. The dispute arose when Yong rejected the
offer.
Issue: 1. Whether the agreement was valid and enforceable?
2. Whether tenant can live as long as he wished according to the contract?
Tenancy shall be permanent

In their Lordships opinion, the agreement was not vague and uncertain as to be void for uncertainty.
Intention was clear that the landlord should let the premises to the respondent for as long a period as it
was within his power to do so and he cannot eject the respondent so long as he paid the rent. The
respondent should be entitled to occupy the property so long as he wished and so long as he paid rent.
However, tenancy only valid not more than 30 years by virtue of Section 47 of the Land Code 1928 and
Section 221(3) of NLC Act No. 56 of 1965
Whether respondent entitled to specific performance?
Yes-Tenants right to possession would be enforced in equity. This is because respondent occupied the
ground floor since February 1958and paid rent therefor. Then he paid the sum of $8000 to his landlord.
He cannot have done that for a tenancy for a short duration. Therefore, there is a equitable estoppel
protecting the respondent

Woo Yew Chee v Yong Yong Hoo

There was a written agreement allowing the respondent to occupy the premises for 10 years with a
monthly rent of $170. R was to share with the appellant landlord the kitchen, bathroom, toilet. The
landlord held the key. The respondent alleged that he was entitled under the terms of the agreement to a
set of keys, but that was denied by the appellant. He had on several occasions asked for it but was turned
down. Trouble started in April 1972 when the appellant installed a cupboard right across the common
passage-way causing a partition of the ground floor, and thus obstructing the said passage-way.
Held: The agreement was in nature of a lease and not a license. The ultimate test is the nature and
quality of the occupancy, whether it was intended that the occupier should have a stake in the premises
sublet, or whether he should have only a personal priviledge. In other word, ythe court would look at the
intention of the parties as evidenced in the lease agreement.

6.Discuss and distinguish the following cases

Wee Tiang Yap v Chan Chan Brothers
In this case one Wee Phor Tin, the father of the appellant, claimed vacant possession of
premises in Kota Bahru from the respondents alleging that they were trespassers. The
respondents were previously the tenants of the premises but the said Wee Phor Tin had
issued a notice to quit to the respondents, the notice expiring on March 1, 1976. It
subsequently appeared that Wee Phor Tin was no longer the registered owner of the
premises at the date of the filing of the writ as he had transferred it to his son, the
appellant. It was also agreed that the respondents had been paying rent to Wee Phor Tin
right up to August 1979. Before judgment Wee Phor Tin died and the appellant continued

the action as representative of his estate. The learned trial judge held that on the death of a
temporary occupation landowner his estate had no right of any kind to the land. He also
held that section 116 of the Evidence Ordinance cannot prevent a tenant from contending
that neither the deceased nor the widow had any title to the land. The learned judge
therefore dismissed the claim and ordered that the sum of $16,800/- be paid to the
respondents under the counterclaim. The appellant appealed.

Held.
(1) the respondents are estopped from challenging the appellant's title;
(2) as the respondents had wilfully remained on the premises after the expiry of the period of notice, the
appellant was entitled to obtain damages for trespass in the form of double rent.

Singma Sawmill
In this case the appellants had obtained warrants of distress against the respondents for arrears of rent.
The respondents applied to discharge the warrants on the grounds (a) that the use of the land was illegal
and therefore the contract of tenancy was void or voidable; and (b) that the machines are fixtures and
therefore cannot be distrained. The land was agricultural land and the applicants had been unsuccessful in
their application to change the category of land use from agriculture to industry. The learned Judicial
Commissioner allowed the respondent's applications. He held that the appellants were guilty of giving an
illegal consideration to the said agreement and as such the contract was void under section 24 of the
Contracts Act, 1950. He further held that the machines which were attached to the land by bolts and
screws were fixtures. The appellants appealed.
HELD:
the tenancy agreement in this case was void and unenforceable. The appellants were aware of the
illegality when they entered into the agreement and therefore section 66 of the Contracts Act, 1950, could
not assist them. One is that because the use of the land is illegal therefore the contract of tenancy is void
or voidable. Secondly that the machines are fixtures and therefore cannot be distrained. The condition is
that the land is to be planted with rubber and pineapples only. The use of the land for other purposes
would, to my mind, be a breach of the said conditions. A breach of conditions arises under section 125 of
the National Land Code as soon, and continues so long, as the condition is not complied with and the land
would be liable to a forfeiture under section 127

7. In what circumstances a tenancy coupled with equity may arise? Discuss also the remedies available as
well as how the equity may have been satisfied.
A tenant may rely on the encouragement of the landlord, spends his money to improve the land, in the
expectation of being remain on the land. When the landlord serves tenant a notice to quit, the tenant may
rely on the doctrine of tenancy coupled with equity and seek to set aside such notice. The remedy

granted by the court would be the landlord would be estopped from terminating the tenancy until he has
satidfied the tenants equity or pay an amout to the tenant as compensation.
Mok Deng Chee v Yap See Hoi
Landlord and Tenant House built on land belonging to another person Ground rent paid to owner of
land Tenancy coupled with equity Whether notice to quit valid Whether tenancy coupled with
equity can be determined by bare notice to quit
In this case the respondents were the owners of a piece of land on which a house had been built by one
Hong Kong who was a ground tenant at the ground rent of $1 a month. The house was sold to the
appellant's father and after the death of his father the appellant became the owner of the land. He
continued to pay the ground rent of $1 which was later raised to $2.50 per month. In 1975 the appellant
without the respondent's consent demolished the old house and started to build a completely new house.
Differences arose between the parties and a meeting was held to resolve the differences. It was agreed that
the appellant should pay tea money of $1,500 and that a written agreement relating to the tenancy be
signed. The appellant did not agree to the agreement drawn up by the respondents and the respondents
thereupon served a notice to quit to the appellant "to quit and deliver up possession of the premises". The
respondents then sued the appellant for possession. The learned Magistrate who heard the case give
judgment in favour of the appellant
but on appeal Anuar J. reversed the finding of the learned Magistrate. He held that the notice to quit was a
perfectly good notice and rejected the Magistrate's finding that the appellant had a tenancy coupled with
an equity. The appellant appealed.
Held:
(1) the notice to quit in this case was clear enough and could not be held to be bad in law on account of
ambiguity or uncertainty,
(2)
in this case it must be presumed that the house had been built with the approval or at least without the
objection of the previous owner and the expenditure involved in its construction raised an equity making
the tenant a tenant with an equitable estoppel;
(3) the equity was not lost by the changes made to the house nor by the changes in its ownership. The fact
that the old house was demolished and that a new one was built without the consent of the respondents,
did not in any way affect the equitable estoppel of the appellant, the house was built no mean for other
purpose but for the habitation, thus it made no difference, the equity does not lost;
(4) as the appellant's tenancy was coupled with an equity it could not be defeated by a bare notice to quit
and therefore there ought to be judgment for the appellant.

Holee Holdings
One Lim Low Tiew ('LLT') was the registered proprietor of certain lands ('the lands'). LLT created two
charges over the lands in return for a loan from the Hongkong and Shanghai Banking Corp ('the bank') in
1978 which were duly registered. As LLT defaulted in the repayment of the loan, the bank commenced
foreclosure proceedings and obtained an order for sale to sell the lands by public auction, which was held
on 21 June 1989. The plaintiff was the successful bidder of the lands. The plaintiff was then registered as
the proprietor of the lands. However, the plaintiff was confronted with several claims to rights over the
lands. By notices to quit dated 7 December 1994, the plaintiff asked the first and second defendants to
deliver vacant possession of the portion of the lands occupied by them on or before 1 March 1995. Both
the defendants refused to comply with the notice. The plaintiff then filed this originating summons against
them. The third to sixth defendants were added as parties on their intervention. The first defendant alleged
that he had been allowed by LLT and her husband to occupy a portion of the lands and to build a house on
it in 1957. The second defendant was a temple of which the third, fourth and fifth defendants were
trustees. The third defendant alleged that LLT and her husband had encouraged him to put up the temple
and had given him permission to do so. The sixth defendant was a worshipper at the temple. The
substantial question raised in this case was the liability of a purchaser of land at a public auction by an
order of court to persons claiming to be in occupation of the land with an equity. The following were the
issues to be determined by the court, namely: (i) whether the plaintiff, as the successful bidder at the
public auction of the lands, was bound by the equity of the third, fourth and fifth defendants, the
occupiers of the lands, alleged to have been created subsequent to the registration of the charge under
which the property was foreclosed, but before the lands were registered in the name of the plaintiff ie
whether s 267 of the NLC 1965 was applicable to the claim by the plaintiff against the defendants; (ii)
whether the first and the second defendants had any equity in the lands or portion thereof. If so, whether
the plaintiff was bound by the equity; (iii) whether the sixth defendant had a legal right of access to the
temple and a legal right to remain there for religious purposes; (iv) whether the notices dated 7 December
1994 issued by the plaintiff's solicitors had validly and effectively terminated the equity of the defendants;
and (v) if the plaintiff was bound by the equity of the defendants, how the equity was to be satisfied. The
defendants also relied on condition 7 of the 'Conditions of Sale' with regard to the sale of the lands which
stated that the property was sold subject to 'existing tenancies'.

Cheng Hang Guan v Perumahan Farlim

The plaintiff claimed that they were and are lawful and protected tenants were entitled in law and equity
to possession of portion of land on which were situated their two dwelling houses and their vegetable
farm. The registered proprietors of the land are the trustees of Khoo Kongsi. Pf had concerted what was a
swampy jungle land into a productive land. The visiting trustee told Pf that it was not necessary to change
the tenancy of the vegetable plot to her name and that she could continue planting the vegetable as long as
she wished provided she paid rent. This is an assurance given by Khoo Kongsi.For this assurance, the pf
had invested RM12,000 for the sprinkler system. After 50 years, there were no interference from anyone.
Only afer Khoo Kongsi had entered a joint-venture agreement was there an interference with the pf
possession of the plot concerned. The court observed that the doctrine of promissory estoppel provides a
defence to an action on the original contract for the defendant relying on a voluntary variation. It does not

provide a cause of action for a plaintiff relying on a gratuitous promise. Yet, its effect may be to enable a
party enforce a cause of action which, without the estoppel, would not exist.
Here the pf and their forbears have been in possession of the plot concerned for decades and they have
commenced these proceedings to protect their right to remain in possession relying on equity or equitable
estoppel. In the circumstances, the pf claim to be alleged equity does not depend on the availability of the
remedy of specific performance.

8. Is a tenancy exempt from registration binding on subsequent purchaser of the land? Discuss.
A Tenancy exempt from registration is a tenancy for a term not exceed three years under section 223 and
213 (1) of the NLC. Section 213(2)(b) indicates that such tenancy may not be registered as it is not a
dealing under NLC. Section 213(2)(a) provides tenancies can be created by word of mouth or in writing.
Since tenancy exempt from registration need not to be registered, the tenants right may not bound the
subsequent landlord. However, in order to make the tenancies binding on the subsequent purchaser, the
NLC has provided section 316 for the application for endorsement. If the tenant failed to endorse the
tenancy on the register document of title, such tenancy would not bind the subsequent purchaser.
Endorsement is the only way where the tenantsright would be protected against subsequent purchaser.
In Than Kok Leong v Low Kim Hai, the plaintiff purchased a premise where the defendant was a tenant
of the previous proprietor. After one and a half year, the plaintiff gave the defendant a notice to quit. The
defendant refused and he argued that his tenancy was a lease pursuant to an oral agreement made between
him and the former landlord for the period of three years from 1974 with an action to renew for another to
be exercised by the tenant. The court held that it was a tenancy exempt from registration under section
213(3). The tenancy was not endorsed under section 213(3) did not bound the subsequent purchaser of the
land.

9.Examine the legal position of the right to renew a lease with reference to the cases below:
Wisma Sime Darby Sdn Bhd v Wilson Parking (M) Sdn Bhd [1996] 2 MLJ 81

Cayman Development (Kedah) Sdn Bhd v Puah Kiew & Ors [1990] 3 MLJ 110
Voo Min En & Ors v Leong Chung Fatt [1982] 2 MLJ

1. Explain the characteristics of an English mortgage at common law and discuss its position in
Malaysia with reference to the following cases:
Characteristics of mortgage in English Law
1. Formation: Formed under the principles of the common law
2. The title to the land is transferred to the mortgagee with the mortgagor having a right in equity
for redemption (get the land to be retransferred to him)
3. Mortgagee is entitle to foreclose the land (sell it to third party)
Mortgage is not recognized in section 205(1)
Bank Bumiputra Berhad v Doris Development Sdn. Bhd. (1988) 1 MLJ 462
The plaintiff granted the defendant an overdraft facility that was secured by a charge over a piece
of land belongs to a company. The plaintiff sued the defendant for the sum of money. The counsel
for the company submitted that the charge executed by the company was an English mortgage at
common law or a transaction exactly like such an English mortgage.
Held: The court made a distinction between a Charge and a Mortgage. Justice Peh Swee Chin at
page 463
"A charge is governed by detailed statutory provisions of the National Land Code while an English
mortgage at common law, the premise that a charge under the National Land Code is the same
as an English mortgage at common law is patently erroneous. In an English mortgage at common
law, the mortgaged property was transferred to the name of the mortgagee on the creation of the
mortgage with a proviso for redemption. Under the said provision, the mortgagee agreed to retransfer the mortgage property by a certain date beyond which it was stated to be irredeemable.
Equity stepped in and provided the equity of redemption, by which the right to redeem was
extended beyond the said date and would be lost only on foreclosure or sale."
Malayan United Finance Bhd v Tan Lay Soon [1991] 1 MLJ 505
In this case the registered proprietor of certain lands in Penang had charged them to the
appellant to secure the repayment of the loan of $1,500,000 and interest. The registered
proprietor having defaulted in the repayment of the said loan, the appellant took the
preliminary steps with a view to commencing foreclosure proceedings to enforce the charge.
It was found that two private caveats had been lodged against the land by the respondent
after the registration of the charge. The caveats were based on a purported agreement by
the registered proprietor to sell the lands to the respondent. There was a dispute between
them and the respondent had brought an action for specific performance of the agreement.
The appellants applied to have the caveats removed under s 327 of the National Land Code
1965. It was argued for the appellants that the charge on registration was indefeasible and
ranked in priority over the caveats. The learned trial judge basing himself on the principles
enunciated in Eng Ah Mooi & Ors v Oversea Chinese Banking Corp Ltd [1983] 1 MLJ 209
(not-folld) held that the caveator had succeeded in showing a triable issue as between
himself and the chargee and he dismissed the application. The appellants appealed.
Held, allowing the appeal:

(1)In this case the chargee had an indefeasible right by virtue of the registration of the
charge and this right had priority over the caveats which were lodged five years after the
registration of the charge.
(2)The respondent's proposition that he has a statutory or equitable right of discharge or
redemption of a charge under the provisions of the National Land Code must be rejected. It
is the chargor or the borrower who has the right to discharge the charge and the right to
tender payment before the judicial sale is specifically and exclusively granted to the chargor.
Since the right or interests in the charged land remains with the registered owner he has
nothing to redeem. To speak of the equity of redemption or the like of it in the situation
under the National Land Code is clearly technically and legally incorrect.

Mahadevan s/o Mahalingam v Manilal & Sons (M) Sdn Bhd [1984] 1 MLJ 266
In this case the respondents alleged that they had advanced to one Ratnavale (since deceased) the sums
of (a) $29,500.00 paid on December 20, 1966 by a United Commercial Bank Cheque and (b) $250,000.00
paid on March 21, 1967 by Algemene Bank Nederland Cheque. The deceased repaid the sum of
$50,000.00 leaving a balance of $229,500.00. The deceased died on April 19, 1973 and the appellants
were the administrators of his estate. The respondents brought an action to recover the sum owing and
the learned Judicial Commissioner who tried the case found in favour of the respondents. The appellant
appealed and two issues were raised on the appeal
(i) whether the deceased received the sums;
(ii)even if he did, whether the respondents' suit was not statute-barred, as the suit was commenced on
July 30, 1974 that is, more than seven years after the money was received.
Held:
Our land law does not recognised a mortgage if it means a mortgage in the sense of English land law
whereby the legal estate, i.e. ownership of the land is transferred to the mortgagee and what is left with
the mortgagor is only an equitable right to redeem, known as equity of redemption. But our land law
certainly recognises a mortgage in the sense of Torren system, referred to by text written as Torren
mortgage in which the mortgagor retains the legal ownership whilst the mortgagee acquires statutory right
to enforce his security."
Perwira Habib Bank Malaysia Bhd v Lum Choon Realty Sdn Bhd [2006] 5 MLJ 21
The appellant chargee sought to enforce two charges over the respondent chargor's land. On 15 October
1987, the chargee obtained an order for sale in the absence of the respondent or its solicitors the
respondent having filed appearance to the appellant's action. 3 months later, the appellant's summons for
directions was heard and an order given again in the absence of the respondent or its solicitors. On 25
June 1992, the appellant's application for a new auction date was heard and this time the respondent's
new solicitor appeared. The respondent thereafter applied to set aside the order for sale dated 15
October 1987. This application was filed on 26 August 1992 some five years' after the order for sale
was made. At first instance the respondent's application was dismissed. It was subsequently allowed on

appeal to the Court of Appeal. The appellant thus obtained leave to appeal to the Federal Court. The gist
of the appeal was whether the failure of a chargee to comply with the provisions of O 83 r 3(3)(c) and O
83 r 3(7) of the Rules of the High Court 1980 by not stating: (i) the amount of interest in arrears as at the
date of the originating summons; and (ii) the amount of daily interest, rendered an order for sale defective
and liable to be set aside.
Held, dismissing the appeal (by a majority):
(1)
(per PS Gill FCJ, Steve Shim CJ (Sabah & Sarawak) concurring) It would be absurd for the requirements
of O 83 r 3(3) of the RHC to be complied with only in situations when it is for payment of moneys secured
by a charge or for delivery of possession but not for the foreclosure or sale of the charged property. There
is no reason in reason and in law for the distinction. Order 83 r 1(a), (b), (c) and (d) of the RHC read with
O 83 r 3(1) of the RHC has the same impact. It concerns and protects the rights of a chargor who is on
the brink of having his property sold at an auction, to know exactly where he stands in terms of inter alia,
the amount of advance, amount of repayment and
5 MLJ 21 at 22
the amount of interest or instalments in arrears at the date of the issue of the originating summons, in
order to have the opportunity for repayment, before the fall of the hammer. This is as provided for in s 266
of the NLC(see para 133).
(2)
(per PS Gill FCJ, Steve Shim CJ (Sabah & Sarawak) concurring) From a legal and moral standpoint it is
incumbent for the chargee to provide particulars in consonance with O 83 r 3(3) of the RHC when the
chargor is facing the prospect of losing his property pursuant to O 83 r 1(1) (b) or (c) of the RHC. This is
the legislative intent in enacting O 83 r 3(3) to r 3(7) of the RHC (see para 134).
(3)
(per PS Gill FCJ, Steve Shim CJ (Sabah & Sarawak) concurring) Order 83 r 3(1) and (3) of the RHC is
not drafted well enough to reflect the true intention of Parliament. The courts should therefore give effect
to the true intention of the legislature, even if a provision of a statute is far from being happily enacted
(see para 135); Rugly Joint Water Board v Foothit [1972] 1 All ER 1057 (refd) referred.
(4)
(per PS Gill FCJ, Steve Shim CJ (Sabah & Sarawak) concurring)The procedural requirements of O 83 r
3(1), (3), (6) and (7) of the RHC must be complied with strictly for the purpose of seeking an enforcement
of a charge registered under the NLC by way of an order for sale, regardless of the reliefs sought (see
para 142).
(5)
(per PS Gill FCJ, Steve Shim CJ (Sabah & Sarawak) concurring) Lapse of time is not a bar to an
application to set aside an order for sale that is so fundamentally flawed. In the instant case, the said

charged property had yet to be sold by public auction. Thus no third party had suffered prejudice by
reason of the respondent's delay in applying to set aside the order for sale(see paras 143144).
(6)
(per PS Gill FCJ, Steve Shim CJ (Sabah & Sarawak) concurring) Non-compliance with the provisions of O
83 r 3(3), and r 3(6) and r 3(7) of the RHC would render an order for sale defective and liable to be set
aside(see para 145).
(7)
(per Abdul Hamid FCJ dissenting) In England, the land law is not based on the Torrens System. The
concept of the English mortgage is not consistent with the Torrens System. This is because in a mortgage
the title passes from the mortgagor to the mortgagee whereas a duly registered charge under the NLC
only creates a legal interest in the land (see para 30). English land law terms are being used
interchangeably but erroneously with the terms used in the NLC: To avoid confusion, it is better to stick
with the terms used in the NLC and ignore those English land law terms even though they are used in O
83.Order 83 is not land law and it cannot override or add to the provisions of the NLC regarding
substantive land law (see para 43).
(8)
(per Abdul Hamid FCJ dissenting) There are two categories of remedies available to a mortgagee, one is
a personal action against the mortgagor for the recovery of the debt and the other is by enforcement of
the security that includes possession, sale and foreclosure. However, the NLC provides only two
remedies to a chargee, ie sale and possession. The NLC does not talk about an
5 MLJ 21 at 23
action for recovery of debt because the NLC only refers to the remedies of a chargee to enforce the
charge. It does not refer to a personal action, which is a separate matter based on the covenant to pay
under the agreement, which is properly provided for in O 83 of the RHC (see paras 4546).
(9)
(per Abdul Hamid FCJ dissenting) The order for sale applied for is specifically provided for by the NLC.
The NLC only requires three things to be stated in the notice: specify the breach, require the breach to be
remedied; and warn of the danger of non-compliance with the notice s 254. When the order is made,
the order should specify the total amount due as on the date the order is made s 257(1)(e). Under the
NLC, that is all that is required to be disclosed to court regarding the amount due to enable the court
to specify the amount in the order (see para 47).
(10)
(per Abdul Hamid FCJ dissenting) Order 83 r 3(3) applies where the plaintiff claims for delivery of
possession and O 83 r 3(6) where the plaintiff claims for payment of moneys secured by the charge. If in
such claims ie, for delivery of possession and/or for payment of moneys, interest is claimed, then para (7)
also applies (see para 54).
(11)

(per Abdul Hamid FCJ dissenting) The court would agree with Abdul Aziz Mohamad J's analysis of the
provisions in Perwira Affin Bank Berhad v Tan Tian Ser that r 3 of O 83 of the RHC is not applicable to an
application for an order for sale pursuant to s 257 of the NLC. It applies to a claim for vacant possession
and a claim for payment of moneys secured by the charge, or both, as the rule clearly says (see para 80).
(12)
(per Abdul Hamid FCJ dissenting) Section 257(1)(c) of the NLC requires that the order for sale 'shall
specify the total amount due to the chargee at the date on which the order is made.' The 'total amount
due' clearly includes interest. The inclusion of the interest in the 'total amount due' in the order for sale is
a requirement of the section. It has to be included (see para 106).
(13)
(per Abdul Hamid FCJ dissenting) Order 83 r 3(3)(c) and (7) of the RHC do not apply to an application for
an order for sale under s 256 of the NLC. The failure to comply with the said rules does not render the
order for sale defective and should be set aside. Even if the said rule applies, the circumstances of this
case did not warrant the order for sale to be set aside (see para 108).
2. With reference to statutory provisions and case law, explain the scope of the power of charging
by a registered proprietor of alienated land.

3. Does a chargee acquire an interest in the land by virtue of the charge? Discuss

22/4/2015

4. Discuss the legal position of loan agreements cum assignments, and any problems which may
arise in relation thereto, with reference to the relevant case law.
Title is not available so the parties enter into a LACA whereby assigning all the rightd, interests
and benefits of the borrower in the property to the lender. The LACA executed by the parties can
be enforced pursuant to s206(3), order 45 of Rules of High court is also applicable.
5. Examine the legal position of jual janji transactions under the Malaysian Torrens system. Your
discussion should take into consideration section 4(2)(a) of the National Land Code 1965.
A jual janji is a type of security transaction and classified as a type of personal law transaction
practiced commonly amongst the Malay Muslim community. This transaction was devised by the
Malay Muslim community principally for the purposes of avoiding the payment of riba or interest
that is strictyly prohibited by Syariah. The borrower transfers, to use the word in a loose sense,
his land to the lender who thereby takes possession of it. The borrower is entitled to resume the
possession of the land upon discharging the debt except where he failed to pay the debt within
the period agreed upon and it turned to jual putus, an absolute sale.
In Haji Abdul Rahman v Mohamed Hassan, the transaction was registered pursuant to
the Selangor Registration of Titles Regulation 1891. The borrower failed to repay the loan and
redeem the land within the agreed duration, he only repaid the debt nearly 18 years after the
expiry of the agreed duration. He commenced action to recover the land. The lower court applied
the principle of equity once a mortgage always a mortgage and decided that the borrower has a
right to redeem the land. On appeal to privy council, the court held that, the collateral agreement
to retransfer is only effective in contract. As such the repayment after expiry of contractual period
cannot be allowed. not a security transaction or mortgage as the only form in Malaysia is charge
or lien, since it was a contract, the claim was statute barred.
In Wong See Leng v Saraswathy Ammal , borrower failed to repay the loan within agreed
duration, borrower argued there is a right to redeem. Court held, transaction is jual janji, as such
right to redeem remains irrespective of whether the period to repay has expired. the court was
held to have no power to extend the contractual period for the exercise of the option to
repurchase cpntained in the collateral agreement once it expires.
In A Kanapathi Pillay v Joseph Chong, the court held that the option to repurchase
contained in the collateral agreement in a jual janji transaction does not create any equitable
interest in the land for the borrower. The option only creates a contractual right which can be
defeated by the effluxion of time or the Statute of Limitation.
In Abdul Hamid bin Saad v Aliyasak Ismail, ctheld that the conduct of parties in entering
into a second agreement meant that time is no longer of essence and the transfer of the land to
defendant was merely a conditional transfer and not an outright sale. The court also held that the
defendant title is defeasible under S340(4)(b) of NLC as there was an obligation on the defendant
to retransfer the land to the plaintiff as agreed in the two agreements.
Jual Janji can be recognised as a customary security transaction pursuant to s 4 (2) & s
295(1) in the suggestion by Salleh Abbas in A Kanapathi Pillay, This view was agreed by salleh
buang.
One case in which this situation arised was the case of Ismail Haji Embong v Lau Kong
Han (1970) 2 MLJ 213 where the period for repaying had expired, but the lender extended the
period subject to a $40 charge. The court held that the borrower was entitled to his land back.

Yaacob bin Lebai Jusoh v Hamisah Bte Saad (1950) 1 MLJ 255 (CoA) the plaintiff sold
land to the defendant and later the parties entered into an agreement whereby the defendant
would resell the said land back to the plaintiff within 3 years, and that such an agreement would
be null and void had this period lapse, and so it did. The judges, Jobling J and Briggs J held that
time did not matter, as it was a mortgage ie a jual janji. It should be pointed out at this point
though, that this is a pre-National Land Code case. However, cases closer to the present such as
Abdul Hamid bin Saad v Aliyasak Ismail (1999) 1 AMR 105 and Hatijah bte Rejab v Abdullah bin
Saad (2004) 2 AMR 665 point to a resergence of respect for the Malay custom, notably by the
ruling of Aluddin Sheriff J in the former. This development is to be welcomed, for surely such a
unique, bureaucracy-free way of affecting transactions should be allowed to continue and make
its mark as a unique feature of the land law of our proud nation, Malaysia
6. With reference to the following cases, discuss the circumstances in which an equitable charge
may be recognized.
Haji Abdul Rahman & Anor v Mohamed Hassan, the agreement was not in Schedule E,
its not registered. The agreement coner no real right in the land, remained unburdened property
of the df, section 4 has no application, the agreement was an executory agreement, it only has
conditional promise to transfer, it is valueless as a transfer but good as a contract. Agreement
was executory, any action should be brought within period of limitation . Chuah eng khong case,
does not follow the decision.
Standard Chartered Bank v Yap Sin Yoke [1989] 2 MLJ 49 where charge instrument has
been executed but not presented for registration. Where the unregistered charge has custody of
the issue document of title, he has a right to claim to a lien over the land. The court observed that
by virtue of the unregistered charge in favour of the plaintiff, The court held that the plaintiff had
acquired a title in equity over the said land. The claim does not represent a transaction capable of
registration then the claim is not caveatable, debtor has no caveatable interest.
In Malayan Banking Berhad v Zahari Bin Ahmad, D owed P certain amount of money
based on a loan agreement cum assignment. D defaulted in repayment and P applied for an
order for possession of the property and order that they are at liberty to sell. hIgh court held that
the code does not prohibit the creation of equitable charges and based on a body of authorities,
our land laws recognised equitable charges. Looking at the LACA in the application, these
documents created an equitable charge both in form and substance. To sum up, since no title to
land issued yet, so security created over land under a loan agreement and deed of assignment.
7. Discuss the issues relating to validity of a notice in either Form 16D or Form 16E. Support your
answer with any relevant case law. Pg 261
8. The court is obliged to grant an order for sale in the absence of cause to the contrary. With
reference to relevant case law, discuss the circumstances in which a cause to the contrary may
be established.
Pg 287