LOW PECK LIM v 1. ) LOW PECK SANG 2. ) LOW PECK CHUAN 3. ) LOW PECK GUAN 4. ) LOW SAY WAH 5. ) LOW SOH BENG

Case Significance

Illustrates the exercise of the section 145(2)(c) National Land Code power to order a sale of jointly-owned family land in place of partition, without any precondition of a prior partition application.

This High Court decision at Shah Alam concerns an application to terminate the co-proprietorship of a piece of family land and order its sale. What made the case distinctive is that the six siblings who inherited the land were not fighting over their respective shares, which were undisputed; the real disagreement was whether the land should be sold or retained and held by them together as co-proprietors. The plaintiff, one of the siblings, commenced an originating summons under section 145(2)(c) of the National Land Code and Order 31 of the Rules of Court 2012 seeking an order for sale, and three of the five defendant siblings resisted. The central issue was whether this was a proper case to exercise the discretion to terminate the co-proprietorship by directing a sale. The Court set out the statutory options, under which co-proprietors may be ordered to have their shares partitioned, or transferred to other co-proprietors, or the land sold. Applying the Court of Appeal’s decision in Ong Chin Hai v Ong Hoo See, it held that a co-proprietor wishing to end co-proprietorship need not first apply for and be refused partition before coming to court, and that the court has power to direct a sale rather than partition, drawing also on section 25 and the Schedule to the Courts of Judicature Act 1964. Weighing the viability of partition and the effect it would have on the land’s value, the Court allowed the sale sought by the plaintiff, together with the consequential reliefs, and gave any party the right to buy the land provided the price was not less than that offered by any prospective purchaser. Per Choong Yeow Choy JC, the contesting defendants were ordered to pay costs of RM10,000, with valuation costs shared. The judgment illustrates the exercise of the statutory power to order a sale in place of partition of jointly-owned land.