NORAINI BINTI MOKHTAR v 1. ) ZAIDI BIN MD YUSOFF 2. ) YUAN TRADING & AGENCY SDN BHD 3. ) YEAP PEI LEE 4. ) MUHAMMAD SHAKIRRULLAH BIN LUKMAN 5. ) NG CHAN WANG 6. ) WONG TAI HAU 7. ) Pentadbir Tanah Daerah Kulim

ka-21ncvc-8-06-2021 High Court (Mahkamah Tinggi) 4 November 2025 • KA-21NCvC-8-06/2021 • 36 min read
13 cases cited (0 SG, 13 foreign)

Outcome

b) Suit 16: The Plaintiff’s claim is allowed. The court orders as follows: i An Order for Vacant Possession is granted. The Defendant, Noraini binti Mokhtar (the Plaintiff in Suit 8), is hereby ordered to deliver vacant possession of the Property to the Plaintiff within thirty (30) days from the date of this order; ii. The Defendant is ordered to pay damages to the Plaintiff calculated at the rate of 5% per annum on the purchase price of RM200,000.

Quoted verbatim from the judgment of High Court (Mahkamah Tinggi) (ka-21ncvc-8-06-2021). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

LAND LAW: Indefeasibility of title — Fraud — Allegation that transfer of land was a loan disguised as a sale — Burden of proof — Standard of proof — Whether plaintiff established actual fraud or conspiracy — Whether full purchase consideration sum has been paid — Protection under proviso to s 340(3) of National Land Code — Caveat — Private caveat — Lodged by registered proprietor on own land — Whether registered proprietor has caveatable interest — Validity of caveat — National Land Code ss 323(1), 340(2) & (3) CONTRACT: Validity — Sale and purchase agreement — Execution — Non est factum — Plaintiff alleged lack of understanding and illiteracy — Plaintiff affixed thumbprint to documents witnessed by solicitor — Whether plaintiff bound by documents executed — Whether plea of non est factum sustainable where documents were explained — Estoppel — Conduct — Plaintiff accepted part payment and negotiated cancellation — Whether plaintiff estopped from rescinding contract — Contracts Act 1950 TORT: Negligence — Professional negligence — Solicitor — Duty of care — Preparation and attestation of sale and purchase agreement — Allegation of failure to explain documents — Standard of care of reasonably competent solicitor — Solicitor halting registration upon notice of dispute — Whether duty of care breached — Statutory duty — Land Administrator — Registration of transfer — Whether Land Administrator negligent in registering transfer despite existence of private caveat — Administrative duty under National Land Code s 324 EVIDENCE: Burden of proof — Fraud — Standard of proof — Balance of probabilities — Necessity for clear and cogent evidence — Contemporaneous documentary evidence vs oral testimony — Whether documentary evidence of payment and execution outweighed oral assertion of loan — Evidence Act 1950 s 101

Practice Areas

Land Law Contract Evidence Tort

Judges (1)

John Lee Kien How @ Mohammad Johan Lee Delivered

Counsel (10)

C.P Ang & Company Firm Chambers of Zabidah Ahmad Firm Kedah State Legal Advisor's Office Firm T.H Wong & Co Firm Hanis Nabila Counsel Defendant KC Ang Counsel Defendant Nor Hayati Ibrahim Counsel Defendant Nor Syazana Counsel Plaintiff Wong Tai Hau Counsel Defendant Zabidah Ahmad Counsel Plaintiff

Parties (8)

Pentadbir Tanah Daerah Kulim Defendant YUAN TRADING & AGENCY Sdn Bhd Defendant Muhammad Shakirrullah bin Lukman Defendant Ng Chan Wang Defendant Noraini binti Mokhtar Plaintiff Wong Tai Hau Defendant Yeap Pei Lee Defendant Zaidi bin Md Yusoff Defendant

Case Significance

Illustrates the strength of indefeasibility of a registered title under the National Land Code against an unproven allegation that a sale was a disguised loan, the court rejecting non est factum where the documents were explained and executed before a solicitor and upholding the transfer with an order for vacant possession.

This High Court decision resolves two consolidated actions arising from the transfer of a piece of land in Bandar Kulim, Kedah, in which the original registered proprietor alleged that the transaction had been a loan disguised as a sale, while the current registered proprietor relied on the validity of a sale and purchase agreement, an irrevocable power of attorney and a registered memorandum of transfer. This record relates to the original proprietor's suit. The original proprietor, who had executed the sale and purchase agreement to sell the land, a power of attorney appointing a trading company as her attorney, the memorandum of transfer, and various statutory declarations before a commissioner for oaths in the presence of a solicitor, contended that she never intended to sell, that the documents should be set aside for fraud and on a plea of non est factum given her illiteracy and lack of understanding, and that the solicitor and the Land Administrator had been negligent. The court held that fraud must be established by clear and cogent evidence, though to the civil standard of the balance of probabilities, and found the allegation of a disguised loan and of actual fraud or conspiracy unproven, particularly against the strength of the registered title and the proviso to section 340(3) of the National Land Code protecting a purchaser who has given valuable consideration. It rejected the plea of non est factum, since the documents had been explained and the proprietor had affixed her thumbprint before the solicitor and had accepted part payment and negotiated over the transaction, giving rise to estoppel. It found no breach of the solicitor's duty of care in preparing and attesting the documents, nor negligence by the Land Administrator in registering the transfer. The court accordingly dismissed the original proprietor's claim and, in the companion suit, allowed the purchaser's claim, ordering vacant possession within thirty days and damages at 5% per annum on the purchase price. The judgment illustrates the strength of indefeasibility against unproven allegations of a disguised loan.

Did the plea of non est factum and disguised-loan allegation succeed?

No. The court held that fraud required clear and cogent evidence and found the disguised-loan and fraud allegations unproven; the plea of non est factum failed because the documents had been explained and the proprietor had affixed her thumbprint before a solicitor, accepted part payment and negotiated over the transaction, giving rise to estoppel, and the registered title was protected by the proviso to section 340(3) of the National Land Code.

What was the outcome of the two consolidated suits?

The court dismissed the original proprietor's claim to set aside the transfer and, in the companion suit, allowed the purchaser's claim, ordering the original proprietor to deliver vacant possession within thirty days and to pay damages at 5% per annum on the purchase price, with costs, having also rejected the negligence claims against the solicitor and the Land Administrator.

Statutes Cited

Evidence Act 1950 (Cap 56)
National Land Code (Cap 828)

Cases Cited (13)

UK (3)
[1905] AC 176 [1934] 2 KB 394 [1951] 1 All ER 631
MY (10)
[1949] MLJ 150 [1989] 1 MLJ 195 [1990] 2 MLJ 155 [1996] 2 MLJ 627 [1998] 5 MLJ 162 [2007] 6 CLJ 337 [2012] 6 MLJ 475 [2015] 6 MLJ 1 [2017] 4 MLJ 207 [2021] MLJU 2661

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (ka-21ncvc-8-06-2021)