Consequentially, there will also be an order to assess damages bythe Registrar of the High Court, Melaka, to be paid by therespondent to the appellant under s. 329(1) of the National LandCode 1965. The private caveat Jilid 75 Folio 99 entered by therespondent against Lot 1915 is to be removed forthwith and exparteorder for extension of the caveat is set aside.In Pembangunan Wang Kita Sdn Bhd v. Fry-Fry Marketing ServicesSdn Bhd 2 CLJ Supp 96 Low Hop Bing J (as he thenwas) ordered removal of the caveat and damages to be paid bythe wrongful caveator. The learned judge said at p. 106:By reason of above, I hold that the defendant’s entry of theprivate caveat is wrongful as the defendant had not disclosed acaveatable interest in its application (Form 19B) under s. 323(1)of the National Land Code. Hence the defendant is unable tocross the first hurdle. I order that the private caveat be herebyL A W
xxxv 1 CLJCurrent Law Journalremoved forthwith, without the necessity of going further. I alsomake a consequential order that damages be awarded to theplaintiff, to be assessed by the Registrar of this Court. Costs tobe taxed and paid by the defendant to the plaintiff.Burden To Prove DamagesTo recover damages, the burden of proving loss or damage restson the caveatee, ie, the person or body whose land or interest isbound by the private caveat. In practice, the task of proving lossor damage suffered is not always easy. For example, in MawarBiru Sdn Bhd v. Lim Kai Chew 1 LNS 22, the defendantland proprietor did not recover any damages as he had failed toprove any loss for the wrongful entry of the private caveat by theplaintiff purchaser. In Plenitude Holdings Sdn Bhd v. Tan Sri KhooTeck Puat & Anor 2 CLJ 796, a case concerning wrongfultermination of contract for purchase of land, the High Court hadawarded a total sum of about RM16 million in damages. Onappeal, in Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings SdnBhd 1 CLJ 15, the Federal Court set aside the judgmentof PS Gill J (as he then was) and reduced the huge damages ofsome RM16 million to a mere RM10 as nominal damages mainlybecause the land had appreciated in value. In the course of hisjudgment Edgar Joseph Jr. FCJ said at p. 31:At the end of the day, the purchaser got the land worthapproximately RM120,000,000, for which they had paid onlyRM47,939,958.No Extension If Caveat CancelledIn Manian Kandasamy v. Pentadbir Tanah Daerah Raub & Anor 7 CLJ 583, the Court of Appeal refused to extend thecaveat which had been cancelled by the Land Administrator.Zaleha Zahari JCA, in delivering the judgment of the Court ofAppeal, said at p. 591: The popular meaning attributed to the word “extend” ins. 326(2) of the Code is that it enlarges or gives further durationto any existing right rather than re-vests an expired right. We arein agreement with the judicial commissioner that the court’s powerto extend a caveat under s. 326(2) of the Code was onlyexercisable where a caveat is still “alive” and was no longerexercisable after a caveat had been cancelled.