HE CON SDN BHD v 1. BULYAH BINTI ISHAK 2. NORAINI BINTI ABDULLAH

02f-22-03-2019b Federal Court (Mahkamah Persekutuan) 24 June 2020 • 02(f)-22-03/2019(B)

Catchwords

Land Law - Property without title - purchaser/deceased bought a three-storey shop office from 1st Defendant - 1st Defendant appointed and named purchaser/deceased as the attorney of the property vide a registered power of attorney ('PA') - purchaser/deceased then appointed 1st Plaintiff as the substitute attorney of the property - when purchaser/deceased died, the 1st and 2nd Plaintiffs were appointed as administrators of the deceased's estate - title of the property was ready to be issued - but developer refused to give consent for direct transfer to 1st Plaintiff - transfer was postponed due to financial constraint - 1st Plaintiff still paid the quit rents and fees due to the property - no objection from 1st Defendant but 1st Defendant who was no longer the owner charged the property to the bank without 1st Plaintiff's consent - the bank then sought for an order for sale of the property as the 1st Defendant defaulted payment of financing facilities - whether a statement contained in a sale and purchase agreement or a PA stating that a certain purchase price has been paid can be accepted as final and conclusive proof when no positive evidence in support is adduced - whether a donor of a PA executed in relation to a landed property is subsequently prevented from dealing with the said property including to create a legal charge under provisions of the National Land Code ('NLC') - whether the interest of the bank is defeasible under s.340 of NLC - Equity and Trust - whether the concept of bare trustee/beneficial ownership can arise where the condition precedents of an agreement have yet to be fulfilled and the underlying transaction has yet completed Tort Law - Does the bank owe a duty of care to the beneficial owner of the land or an unknown/unnamed party?

Practice Areas

Land Law Contract Equity & Trusts Tort

Judges (5)

Abang Iskandar bin Abang Hashim Coram Abdul Rahman bin Sebli Coram Idrus bin Harun Coram Mohd Zawawi bin Salleh Coram Tengku Maimun binti Tuan Mat Delivered

Parties (3)

HE CON Sdn Bhd Appellant Bulyah binti Ishak Respondent Noraini binti Abdullah Respondent

Judgment

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Source: eJudgment (02f-22-03-2019b)