Can a Private Caveat Be Removed?
As per s325, s326 and s327 of the National Land Code (“NLC”) a private caveat may be removed.
Who can apply for removal?
1. Caveator himself may withdraw the private caveat as per s325 NLC.
2. The caveatee may apply to the Registrar to remove the private caveat under s326 NLC.
For context, s326(1) NLC states that “Any person or body whose land or interest is bound by a private caveat may at any time apply in Form 19h to the Registrar for its removal, and such application shall be accompanied by the prescribed fee.”
This means that a caveatee may be a registered proprietor, registered charge or a registered lessee or sub-lessee. It should be noted that under s329(2) NLC, if the caveator has removed their caveat under s326 they will not be allowed to enter another private caveat on the same grounds.
3. Anyone aggrieved by the existence of the private caveat under s327 NLC.
For context, s327(1) NLC states that “Any person or body aggrieved by the existence of a private caveat may at any time apply to the Court for an order for its removal, and the Court (acting, if the circumstances so require, ex parte) may make such order on the application as it may think just.”
However, the term “aggrieved party” is not defined under the NLC. As such, we may refer to the case of Punca Klasik S/B v Abd. Aziz b Abd Hamid & Ors where the word was taken by the court to mean “something wrongful in law which has been done to a person or body that affects their title to the property”.
Besides, in RAP Nathan v Hj Abd Rahman, the court was of the view that whether a person is aggrieved by the existence of a caveat will depend on whether he will suffer loss if the caveat is not removed.
Moreover, in UMBC v D& C Bank, a registered chargee was held to be an aggrieved party as the subsequent entry of a caveat by the appellants made it difficult for them to effect a sale of the land.
In order to reach a decision regarding an application under s327, two approaches have been taken by the courts:
Traditional approach
In Macon Engineers S/B v Goh Hooi Yin, in an application under s327, the court is to ask “Whether the caveator has a ‘caveatable interest’.”
If the answer is no, the caveat is removed. However, if the answer is yes, the caveator must show that his claim is not frivolous or vexatious. As such, in this case, the courts have therefore equated ‘caveatable interest’ with ‘serious question to be tried’.
Approach in Eng Mee Yong
If the applicant has no registered interest in the land, it must first be satisfied that they are a person aggrieved by the existence of the caveat.
The application to remove the caveat will be dismissed if they are not an aggrieved person. Should it be proven that they are an aggrieved person, then the onus falls on the caveator to satisfy the court that on the evidence presented, their claim to an interest in the land does raise a serious question to be tried (i.e. the claim is neither frivolous or vexatious) and show that on a balance of convenience, it would be better to maintain the status quo until the trial of the action.
It should be noted that the current approach of courts can be seen in the case of Murugappa Chettiar v Lee Teck Mook whereby the Supreme Court followed the approach in Eng Mee Yong. The high Court in Soon Seng Co. v Toko Palayakat Jamal (M) S/B also followed the approach in Eng Mee Yong.
