Consequentially, there will also be an order to assess damages by
the Registrar of the High Court, Melaka, to be paid by the
respondent to the appellant under s. 329(1) of the National Land
Code 1965. The private caveat Jilid 75 Folio 99 entered by the
respondent against Lot 1915 is to be removed forthwith and
ex
parte
order for extension of the caveat is set aside.
In
Pembangunan Wang Kita Sdn Bhd v. Fry-Fry Marketing Services
Sdn Bhd
[1998] 2 CLJ Supp 96 Low Hop Bing J (as he then
was) ordered removal of the caveat and damages to be paid by
the wrongful caveator. The learned judge said at p. 106:
By reason of above, I hold that the defendant’s entry of the
private caveat is wrongful as the defendant had not disclosed a
caveatable interest in its application (Form 19B) under s. 323(1)
of the National Land Code. Hence the defendant is unable to
cross the first hurdle. I order that the private caveat be hereby
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Current Law Journal
removed forthwith, without the necessity of going further. I also
make a consequential order that damages be awarded to the
plaintiff, to be assessed by the Registrar of this Court. Costs to
be taxed and paid by the defendant to the plaintiff.
Burden To Prove Damages
To recover damages, the burden of proving loss or damage rests
on the caveatee, ie, the person or body whose land or interest is
bound by the private caveat. In practice, the task of proving loss
or damage suffered is not always easy. For example, in
Mawar
Biru Sdn Bhd v. Lim Kai Chew
[1992] 1 LNS 22, the defendant
land proprietor did not recover any damages as he had failed to
prove any loss for the wrongful entry of the private caveat by the
plaintiff purchaser. In
Plenitude Holdings Sdn Bhd v. Tan Sri Khoo
Teck Puat & Anor
[1994] 2 CLJ 796, a case concerning wrongful
termination of contract for purchase of land, the High Court had
awarded a total sum of about RM16 million in damages. On
appeal, in
Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn
Bhd
[1995] 1 CLJ 15, the Federal Court set aside the judgment
of PS Gill J (as he then was) and reduced the huge damages of
some RM16 million to a mere RM10 as nominal damages mainly
because the land had appreciated in value. In the course of his
judgment Edgar Joseph Jr. FCJ said at p. 31:
At the end of the day, the purchaser got the land worth
approximately RM120,000,000, for which they had paid only
RM47,939,958.
No Extension If Caveat Cancelled
In
Manian Kandasamy v. Pentadbir Tanah Daerah Raub & Anor
[2011] 7 CLJ 583, the Court of Appeal refused to extend the
caveat which had been cancelled by the Land Administrator.
Zaleha Zahari JCA, in delivering the judgment of the Court of
Appeal, said at p. 591:
[15] The popular meaning attributed to the word “extend” in
s. 326(2) of the Code is that it enlarges or gives further duration
to any existing right rather than re-vests an expired right. We are
in agreement with the judicial commissioner that the court’s power
to extend a caveat under s. 326(2) of the Code was only
exercisable where a caveat is still “alive” and was no longer
exercisable after a caveat had been cancelled.
