Role of Equity and The Application of English Land Law in The Malaysian Torrens System
Role of Equity and The Application of English Land Law in The Malaysian Torrens System
Abstract
This paper looks at the applicability of English land law and general equitable
principles in the context of the Malaysian Torrens system. Notwithstanding section
6 of the Civil Law Act 1956 and some observations to the contrary in case law, it
is argued that relevant aspects of English land law may continue to apply. As for
general equitable principles, their application is supported by statutory provisions
and case law. This is subject to their application not being in conflict with the
principle of indefeasibility and the caveat system provided for in the Malaysian
Torrens statutes.
I. Introduction
The extent to which English land law and general equitable principles are
applicable in the Malaysian Torrens system is a vexed question. As a starting
point, s 3, which is found in “Part II (General)” of the Civil Law Act 1956,1
provides, inter alia, for the general reception of English common law, rules
of equity and statutes of general application in Malaysia in the circumstances
specified therein.2 However, s 6 of the same Act qualifies s 3 and categorically
prohibits the application of English land law and equitable principles relating
thereto. Section 6 reads as follows:
*
Professor, National University of Singapore.
1 Act 67 (Revised 1972).
2 Reception of the said common law, rules of equity and statutes of general application is
allowed so far only as the circumstances of the States of Malaysia and their respective
inhabitants permit and subject to such qualifications as local circumstances render necessary.
As provided in s (3)(1) of the Civil Law Act 1956, the cut-off date for reception in Peninsular
Malaysia is 7 April 1956. For Sabah and Sarawak, the cut-off dates are 1 December 1951
and 12 December 1949 respectively. English cases decided after the respective cut-off dates
will only be of persuasive authority and not binding as such on Malaysian courts. See also,
generally, Andrew Phang, Cheshire, Fifoot and Furmston’s Law of Contract – Singapore and
Malaysia Edition (2nd ed, Butterworths Asia, Singapore, 1998) at 37.
40
Role of Equity and the Application of English Land Law 41
in the Malaysian Torrens System
This view that rights arising out of common law or the rules of equity
which relate to land are no longer applicable in Malaysia was shared by the
High Court in the subsequent case of Oriental Bank v Chup Seng Restaurant
(Butterworth) Sdn Bhd.5
The question which arises, however, is whether the prohibition is absolute
and so applies even where there is a lacuna in a land matter and the application
of English land law and general equitable principles is not inconsistent with
the aims and objectives of the Malaysian Torrens system.
It is suggested below that the solution may be to evaluate whether the
application of English land law and general equitable principles in a particular
situation goes against the policy objectives of the Malaysian Torrens system.
If not, they should continue to apply.
appeal from Malaysia, Lord Diplock, in delivering the judgment of the Privy
Council, affirmed that:9
The Torrens system of land registration and conveyancing as
applied in Malaya by the National Land Code, has as one
of its principal objects to give certainty to title to land and
registrable interests in land.
On the prohibited application of English land law and equitable principles
related thereto, the Privy Council in United Malayan Banking Corporation
Bhd v Pemungut Hasil Tanah, Kota Tinggi10 exhorted as follows:11
The National Land Code is a complete and comprehensive
code of law governing the tenure of land in Malaysia and the
incidents of it, as well as other important matters affecting
land there, and there is no room for the importation of any
rules of English law in that field except in so far as the Code
itself may expressly provide for this.
Indeed, as early as 1917, in Haji Abdul Rahman v Mohamed Hassan,12 Lord
Dunedin, in delivering the judgment of the Privy Council, had this to say of
the then Selangor Registration of Titles Regulation 1891 which was modelled
on the Torrens system of land registration:13
It seems to their Lordships that the learned judges … have
been too much swayed by the doctrines of English equity,
and not paid sufficient attention to the fact that they were
here dealing with a totally different land law, namely a system
of registration of title contained in a codifying enactment …
The essence of Lord Dunedin’s speech would appear to be that the system
of registration of title and land dealings contained in a codifying enactment
does not permit the application of the doctrines of equity relating to English
land tenure to land matters in Malaysia.
In a similar vein, on the applicability of the bare trust concept to a vendor/
purchaser situation in the Malaysian Torrens system, the Privy Council in
Chin Choy v Collector of Stamp Duties,14 in view of s 6 of the Civil Law Act
1956, had, by way of obiter, expressed reservation that:15
9 At 214. And for that matter, the Sarawak Land Code (Cap 81) as well.
10 United Malayan Banking Corporation Bhd v Pemungut Hasil Tanah, Kota Tinggi [1984] 2
MLJ 87.
11 At 91.
12 Haji Abdul Rahman v Mohamed Hassan [1917] AC 209.
13 At 216.
14 Chin Choy v Collector of Stamp Duties [1981] 2 MLJ 47.
15 At 48 (emphasis added).
Role of Equity and the Application of English Land Law 43
in the Malaysian Torrens System
National Land Code 1965. The Privy Council found that the forfeiture was
properly brought pursuant to the provisions of the National Land Code 1965.
Their Lordships rejected the contention that the English equitable rules as to
relief against forfeiture were not part of the law of England relating to the
tenure of immovable property. In their opinion, laws relating to the tenure
of land must, applying the ordinary and natural meaning of these words,
embrace all rules of law which govern the incidents of the tenure of land.
Among these incidents was the right, in appropriate circumstances, to the
grant of relief against forfeiture,20 the application of which was prohibited by
s 6 of the Civil Law Act 1956. In addition, s 3(1) of the same Act could not be
relied upon, given that the matter of forfeiture for non-payment of rent was
exhaustively dealt with by the National Land Code 1965 which is a complete
and comprehensive code of law governing the tenure of land in the Malaysian
Torrens system in this respect.
In Haji Abdul Rahman, the Privy Council similarly cautioned against
applying doctrines of English equity indiscriminately. Their Lordships took
the view that the phrase “equity of redemption” was inappropriate under the
then Torrens-modelled Selangor Registration of Titles Regulation 1891.21 The
concept of a conveyance in security amounting to a common law mortgage
was inapplicable in the circumstances as the 1891 Regulation recognised only
a Torrens mortgage. This is because, under the latter, there is no transfer of
the title to the land to the mortgagee who acquires only a registered interest
therein. The legal title to the land remains vested in the mortgagor (registered
proprietor). Upon default by the mortgagor, the mortgagee has a statutory
right to enforce his security by way of a sale of the land or to take possession
thereof. By contrast, in a common law mortgage, legal ownership is conveyed
to the mortgagee with the mortgagor having only a right in equity to redeem
the land upon repayment of the loan to the mortgagee.22 Thus, to speak of
the equity of redemption for a mortgage under the 1891 Regulation (and now
the National Land Code 1965) was clearly technically and legally incorrect.
That the bare trust concept is a peculiarity of English land law, as observed
by the Privy Council in Chin Choy,23 and, hence, incompatible with the
Malaysian Torrens system, was explained by the Federal Court in Macon
Engineers Sdn Bhd v Goh Hooi Yin.24 What passes under a contract for sale
is only the beneficial ownership which the purchaser has and which entitles
the land to be transferred to him. The beneficial ownership does not carry
with it any interest in land, whereas the legal or registered ownership, which
the vendor has, does. Thus, it is clear that a vendor under a contract of sale
20 United Malayan Banking Corporation Bhd v Pemungut Hasil Tanah, Kota Tinggi, above n 10,
at 91.
21 Haji Abdul Rahman v Mohamed Hassan, above n 12, at 216. The current Torrens statute
applicable in Selangor is the National Land Code 1965.
22 See also Malayan United Finance Bhd v Tay Lay Soon [1991] 1 MLJ 504 at 507-508.
23 Chin Choy v Collector of Stamp Duties, above n 14, at 48.
24 Macon Engineers Sdn Bhd v Goh Hooi Yin [1976] 2 MLJ 53.
Role of Equity and the Application of English Land Law 45
in the Malaysian Torrens System
does not part with his interest in land25 so long as registration has not been
effected in favour of the purchaser. The vendor’s interest in the land is capable
of being caveated to prevent further dealings with the land so as to protect
the purchaser’s right therein. Notwithstanding this material difference which
exists in English land law and the Malaysian Torrens system, subsequent
Malaysian cases26 have continued to apply the bare trust concept with
impunity. The Federal Court has also declared in a subsequent case that “…
it is too late now to question the applicability of the concept of the bare trust
in a vendor/purchaser situation in Malaysia…”.27 This indiscriminate (and
inconsistent) application of the bare trust concept leads to confusion and
uncertainty in the Malaysian Torrens system.
The Privy Council in Registrar of Titles, Johore v Temenggong Securities
Ltd also advised against:29
28
25 At 57.
26 See, for example, Chua Hee Hung v QBE Supreme Insurance Bhd [1990] 1 MLJ 480; Hon Ho
Wah v United Malayan Banking Corp Bhd [1994] 2 MLJ 393; J Raju v Kwong Yik Bank Bhd
[1994] 2 MLJ 408; and M and J Frozen Food Sdn Bhd v Siland Sdn Bhd [1994] 1 MLJ 294.
27 Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd [1996] 2 MLJ 12 at 28.
28 Registrar of Titles, Johore v Temenggong Securities Ltd [1976] 2 MLJ 44.
29 At 45.
30 Lysaght v Edwards (1876) 2 Ch D 499 at 506. See also Harpum and others (eds) Megarry and
Wade: The Law of Real Property (8th ed, Sweet and Maxwell, London, 2012) at 15-052.
31 Bachan Singh v Mahinder Kaur [1956] 1 MLJ 97.
46 Canterbury Law Review [Vol 22, 2016]
From the cases discussed above, it would appear that there is no room for
the application of English land law concepts and equitable principles relating
thereto where such application would fly in the face of the policy objectives
of the Malaysian Torrens system as embodied in the statutory provisions of
the relevant Malaysian Torrens statutes and s 6 of the Civil Law Act 1956.
The question, however, is whether there is any room for such importation
and, if so, the circumstances under which it will be permitted? The answer to
this question is explored below in relation to: easements, leases, proprietary
estoppel and beneficial interests in land.
A. Elements of an Easement
In Alfred Templeton v Low Yat Holdings Sdn Bhd,32 the plaintiffs had
obtained a mandatory injunction requiring the defendants to execute and
register an easement of way over the latter’s land so as to provide access
from the plaintiffs’ land to a public highway. When the defendants failed to
comply with the order, the plaintiffs applied to the High Court for further
orders.33 The High Court stated that, in making the order for the grant of an
easement of way in the earlier proceedings, it was satisfied that the common
law prerequisites for a right to arise as an easement had been fulfilled. As the
learned judge explained:34
[A]ll the four requirements for the creation of an easement of
way are satisfied and these are:
(1) there must be dominant and servient lands;
(2) the easement must accommodate the dominant land;
(3) the dominant and servient land-owners must be different
persons; and
(4) the right granted must be capable of forming the subject
matter of a grant.
32 Alfred Templeton v Low Yat Holdings Sdn Bhd [1989] 2 MLJ 202.
33 Templeton v Low Yat Holdings Sdn Bhd [1993] 1 MLJ 443.
34 At 458.
35 Re Ellenborough Park [1956] 1 Ch 131 at 140.
Role of Equity and the Application of English Land Law 47
in the Malaysian Torrens System
Loo Ngan Keong,36 where the High Court held that the plaintiffs had proved
all the necessary elements and established their claim for an easement.
In contrast, the provisions37 in the National Land Code 1965 on easements
do not clearly and comprehensively set out the prerequisites for a right to arise
as an easement. While it is clear that a legal easement under the National Land
Code 1965 can arise only if it is registered,38 this has to do with the methods
of acquisition of a right as an easement which is different from having to
first establish that a right has the essential characteristics of an easement.
Thus, recourse to English land law for the essential elements of an easement
is necessary as the National Land Code 1965 lacks clarity in this respect.
B. Elements of a Lease
Similarly, the National Land Code 1965 does not spell out some of the
essential elements of a lease, such as exclusive possession. The definition of a
lease in s 5 of the Code39 is not particularly helpful for this purpose. Again,
recourse must be had to English land law for the essential characteristics
of a lease.40 To constitute a lease, the occupier must be granted exclusive
possession for a fixed or certain periodic term in return for a payment.41 This
is subject to special circumstances which may negative any intention to create
a lease or tenancy.42
The Federal Court, in Woo Yew Chee v Yong Yong Hoo,43 laid down the
principle that whether a particular transaction amounts to a lease depends on
the intention test. The nature and quality of the occupancy must be looked at
to determine whether it is intended that the occupant should have an interest
in the premises occupied or whether he should have only a personal privilege.44
Having regard to the facts and evidence before it (such as the terms of the
relevant agreement), the Federal Court found that the intention of the parties
was to create a relationship of landlord and tenant. The intention test was
36 Qiristar Bricks Contractor Sdn Bhd v Loo Ngan Keong [2013] 10 MLJ 363 at [46].
37 National Land Code 1965, ss 282 and 283.
38 Section 284. Accordingly, the common law method of acquiring an easement by long use
is not recognised under the National Land Code 1965 as decided in Datin Siti Hajjah v
Murugasu [1970] 2 MLJ 153 and Cottage Home Sdn Bhd v Wong Kau @ Wong Kon Lin [2014]
3 MLJ 580. Cf the different position under the Sabah Land Ordinance (Cap 68) which is not
based on the Torrens system (see Wangsa Timber Industries Sdn Bhd v Adulfast Anthony Robert
[2001] 4 MLJ 438 and Tam Kam Cheong v Stephen Leong Kon Sang [1980] 1 MLJ 36.)
39 That is, “lease” means a registered lease or sub-lease of alienated land.
40 In this regard, see Street v Mountford [1985] AC 809.
41 At 818.
42 See, for example, Facchini v Bryson [1952] 1 TLR 1386 at 1389 (such as a family arrangement,
an act of friendship or generosity).
43 Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131.
44 At 133.
48 Canterbury Law Review [Vol 22, 2016]
45 Mohamed Mustafa v Kandasami [1979] 2 MLJ 109 at 118. On appeal to the Privy Council, no
comments were made with regard to the test adopted (see Kandasami v Mustafa [1983] 2 MLJ
85).
46 See Street v Mountford above n 40.
47 See the Court of Appeal case of Lim Cheang Hock v Tneh Poay Lan [2007] 4 MLJ 228 and Tan
Chee Lan v Dr Tan Yee Beng [1997] 4 MLJ 170.
48 Siew Soon Wah v Yong Tong Hong [1973] 1 MLJ 133.
49 Sevenoaks, Maidstone & Tunbridge Ry Co v London, Chatham & Dover Ry Co (1879) 11 ChD
625 at 635.
50 Siew Soon Wah v Yong Tong Hong, above n 48, at 134.
Role of Equity and the Application of English Land Law 49
in the Malaysian Torrens System
Co.58 Thus, the current approach in England is the law in force in Malaysia.
Subsequent cases have consistently applied this equitable principle whenever
the circumstances called for it.59
In Tg Choong Yuan Sdn Bhd v Yeap Geok Kee Sdn Bhd,60 the plaintiff,
a developer/contractor, was encouraged to build on the defendant’s land
at its own expense. The understanding between the parties was that the
plaintiff could remain on the land until both parties had jointly developed
the land. The plaintiff subsequently had possession of the buildings upon
completion and paid the defendant monthly rental for use of the land. In the
circumstances, the High Court held that the doctrine of proprietary estoppel
applied to protect the plaintiff’s equitable interest in the buildings. The
defendant’s claims for vacant possession, trespass and damages, accordingly,
had no merit.
Similarly, in Guindarajoo a/l Vegadason v Satgunasingam a/l Balasingam,61
proprietary estoppel operated in favour of the plaintiff. The plaintiff was
promised the property by his mother as long as he kept certain promises to
her, which he did. The plaintiff’s mother subsequently died intestate and the
property in question was transferred to the defendant on the basis that he
was her lawful heir. The High Court found that the plaintiff had kept his
promises right up to the time of his mother’s death and that there was an inter
vivos gift of the property by the mother during her lifetime to the plaintiff.
In the circumstances, it would be unjust and unconscionable to deny the
plaintiff his interest in the property.62 English authorities63 on proprietary
estoppel were appropriately referred to and applied.
In light of the discussion above, there is little doubt that the doctrine
of proprietary estoppel is now firmly entrenched in the Malaysian Torrens
system. As observed by the High Court in Bhagwan Singh & Co Sdn Bhd v
Hock Hin Bros Sdn Bhd:64
… it is too late now, to question the proposition that the
English doctrine of equitable estoppel applies and, that as a
result, equitable rights or interests in land may arise outside
the statutory system of registration of title.
58 Taylors Fashions Ltd v Liverpool Victoria Trustee Co [1981] 1 All ER 897 at 915.
59 See, for example, Mok Deng Chee v Yap See Hoi [1981] 2 MLJ 321; Cheng Hang Guan v
Perumahan Farlim (Penang) Sdn Bhd [1993] 3 MLJ 352 and Amar Singh a/l Sundar Singh v
Jivanjit Kaur d/o Sohan Singh [2010] 6 MLJ 771.
60 Tg Choong Yuan Sdn Bhd v Yeap Geok Kee Sdn Bhd [2011] 9 MLJ 551.
61 Guindarajoo a/l Vegadason v Satgunasingam a/l Balasingam [2010] 4 MLJ 842.
62 At [23].
63 Such as Thorner v Major [2009] 3 All ER 94; Wayling v Jones (1993) 69 P and CR 170;
Greasley v Cooke [1980] 1 WLR 1306 and Taylors Fashions Ltd v Liverpool Victoria Trustee Co,
above n 58.
64 Bhagwan Singh & Co Sdn Bhd v Hock Hin Bros Sdn Bhd [1987] 1 MLJ 324 at 327.
Role of Equity and the Application of English Land Law 51
in the Malaysian Torrens System
In Oh Hiam, the vendor and purchaser had entered into a contract for
the sale of rubber lands. However, neither the vendor nor the purchaser
knew when the contract was signed that a lot which was not rubber land
was included in the sale. The purchaser was duly registered as proprietor of
the said lot. In proceedings brought by the vendor, the Privy Council, in
exercising its jurisdiction in the enforcement of a claim in personam, restored
the order of the trial judge to rectify the register on the ground that the
particular lot of land had been included by mistake in the contract of sale.
The Privy Council was of the view that the principle of indefeasibility of title
enshrined in the Malaysian Torrens system, while operating effectively and
indeed necessarily for its effectiveness as between independent rival claimants
to a property, “in no way interfered with the ability of the court, exercising
its jurisdiction in personam, to insist upon proper conduct in accordance with
the conscience which all men should obey.”74
The Privy Council also gave the following instances of equity acting in
personam which do not go against the principle of indefeasibility of title,
namely; the court is not precluded from granting an order for specific
performance of a contract entered into by the registered proprietor, or for the
enforcement of a trust created by the registered proprietor. The latter cannot,
on grounds of equity or conscience, set up the principle of indefeasibility of
title to defeat such claims.75
The Court of Appeal in the later case of Takako Sakao, noted above, had
similarly observed that:76
… [the Malaysian Torrens system] does not exclude the
court’s jurisdiction to grant judicial relief in a claim in
personam founded in law or in equity [and that] the court
will certainly be at hand to render assistance to the appellant,
as equity will not suffer a wrong to be without remedy.
In Takako Sakao, a resulting trust was found in favour of the appellant to
enable her to recover her contributions to the purchase price of a property in
respect of which she had acquired an interest in contravention of the National
Land Code 1965.77
As can be seen, the Malaysian Torrens system does not abrogate the
principles of equity but alters the application of particular rules of equity in
so far as is necessary to achieve its special objects.78 In this way, the court is
entitled to exercise jurisdiction in personam to insist upon proper conduct in
accordance with equitable principles and norms not incompatible with the
Malaysian Torrens system.
However, as a general rule, there is no room for the application of equity
where third party rights have intervened. In regard to a transaction involving
only the immediate parties thereto, the High Court in Bhagwan Singh & Co
Sdn Bhd v Hock Hin Bros Sdn Bhd79 correctly observed that:80
… the Torrens system does not prevent the Court from doing
equity where the rights of third parties have not intervened:
Loke Yew v Port Swettenham Rubber Co [1913] AC 491.
In Holee Holdings (M) Sdn Bhd v Chai Him,81 the High Court cautioned
that the application of equity to bind a successor in title must be qualified by,
inter alia, the indefeasibility of title provisions82 in the National Land Code
1965. In that case, the plaintiff, which was the successful bidder at a judicial
sale, was registered as the proprietor of the land. The plaintiff served notices
to quit on the defendants, some of whom claimed that they were tenants with
equitable interests in the premises and that the plaintiff was bound by their
equity. The High Court held that the plaintiff as registered proprietor had
indefeasible title unless the exceptions to indefeasibility could be proved. In
addition, as the defendants did not caveat their interests, the plaintiff had no
notice of their interests so as to be bound by them. Given the circumstances,
the position of the plaintiff was unassailable.
It would be different, however, if the successor in title was a mere volunteer.
In Siew Soon Wah v Yong Tong Hong,83 the person to whom the land was
transferred was the son of the original landlord and the judgment of the court
did not show that any consideration was paid for the transfer. In the result,
the equity of the tenant was held to be binding on the successor in title of the
original landlord given that equity would not assist a volunteer.84
This would also be the position even if consideration was paid for the
transfer by the successor in title, but the circumstances are such that it would
be inequitable for the interest of, say, the tenant, to be defeated.85 The successor
in title may have paid for the transfer at a discount on the undertaking that he
will recognise the interest of the tenant. It would then be inequitable for him
to subsequently have the tenant evicted on becoming the registered proprietor.
In the result, the undertaking will be made binding on the successor in title
as registered proprietor in the way equity sees fit. This will be an instance
of equity exercising its jurisdiction in personam on grounds of conscience as
propounded in Oh Hiam and which does not unduly offend the principle of
indefeasibility of title provided in the National Land Code 1965.
Section 206(3) of the National Land Code 1965 provides that non-
compliance with the provisions of the Code requiring dealings to be effected
in the statutorily prescribed manner shall not “affect the contractual operation
of any transaction relating to alienated land or any interest therein”.
In Templeton v Low Yat Holdings Sdn Bhd,86 noted above, the High Court
was of the view that “[section 206(3)] provides statutory authority for the
liberal application of equity whenever there is a basis for that …”87
Accordingly, this provision provided statutory authority for the High
Court to order the defendants to specifically perform their part of the
contract by executing and presenting the relevant form for the registration
of an easement.88
Thus, in appropriate circumstances, s 206(3) may be relied upon to hold
that an equitable interest has been created by the particular agreement in
question such that it confers a right in equity to have the agreement specifically
enforced by the grant of the appropriate legal interest in question. The High
Court had earlier opined, in Mercantile Bank Ltd v The Official Assignee of the
Property of How Han Teh that:89
… independent of our land legislation our courts have always
recognised equitable and contractual interests in land. See
Loke Yew v Port Swettenham Rubber Co [1913] AC 491; Innes
202 SC. See also s 206(3) of the National Land Code.
Similarly, the Federal Court in Inter-Continental Mining Co Sdn Bhd v
Societe Des Etains De Bayas Tudjuh90 held that, even though the agreement
between the parties was in substance a sublease of mining land though not
in statutory form, it was effective as an agreement to enter into a sublease to
which s 206(3) of the National Land Code 1965 applied, and equity would
specifically enforce it.91 In the latest Federal Court case of S & M Jewellery
Trading Sdn Bhd v Fui Lian-Kwong Hing Sdn Bhd,92 the respondent, as the
registered lessee, sublet certain floors of a building to the first appellant for a
term of 25 years. The latter subsequently discovered that the respondent had
not registered the sublease. One of the issues for consideration was whether the
unregistered sublease was an equitable sublease. Given that the first appellant
had expended substantial sums towards renovation of the demised premises
and sublet the demised premises, all with the consent of the respondent,
the Federal Court was of the view that the unregistered sublease could be
treated as a sublease in equity which was enforceable by a decree of specific
performance.93
The National Land Code 1965 only regulates the rights and obligations of
the parties concerned from the stage of registration onwards. In the absence
of any provisions therein, expressly or impliedly, prohibiting the application
of equitable principles, recourse may also be had to s 206(3) to govern
the relationship of the parties in respect of the dealings between them in
appropriate circumstances.
89 Mercantile Bank Ltd v The Official Assignee of the Property of How Han Teh [1969] 2 MLJ 196.
at 198. See also Margaret Chua v Ho Swee Kiew [1961] MLJ 173 at 175 and Yong Tong Hong v
Siew Soon Wah [1971] 2 MLJ 105 at 108.
90 Inter-Continental Mining Co Sdn Bhd v Societe Des Etains De Bayas Tudjuh [1974] 1 MLJ 145.
91 At 148.
92 S & M Jewellery Trading Sdn Bhd v Fui Lian-Kwong Hing Sdn Bhd [2015] 5 MLJ 717. See also
the Court of Appeal case of Pembinaan Eastern Aluminium Sdn Bhd v Narita Shipping and
Transport Sdn Bhd [2014] 4 MLJ 534.
93 At [31] and [51].
56 Canterbury Law Review [Vol 22, 2016]
VI. Conclusion
As a general rule, English land law and equitable principles relating thereto
have no application in the Malaysian Torrens system in light of s 6 of the Civil
Law Act 1956 and the relevant Torrens statutes in Malaysia. Examples of such
non-application include a common law mortgage, the equitable doctrine of
notice, and equitable relief against forfeiture, all of which are part of English
land law. As for the concept of a bare trust which was ruled a peculiarity of
English land law by the Privy Council in Chin Choy, its continued application
in the Malaysian Torrens system, although an anomaly, may be explained on
the basis that it was not definitively dealt with by the Privy Council which
merely expressed reservation as to its application by way of obiter. Accordingly,
it is plausible to argue that Chin Choy is not authority for the proposition that
the bare trust concept is not applicable under the Malaysian Torrens system.
However, it is clear that certain aspects of English land law do continue to
apply to fill the gaps where, for instance, the essential elements of an interest
in land recognised in the Malaysian Torrens system, such as an easement or a
lease, have not been comprehensively provided for under the relevant Torrens
statute. In these instances, recourse to English case law is necessary.
As for equitable principles of general application, s 3 of the Civil Law Act
1956 provides for their continued application in appropriate circumstances.
In addition, s 206(3) of the National Land Code 1965 provides statutory
authority for the liberal application of equity in appropriate circumstances.
However, their application must not offend the principle of indefeasibility of
title and the system of caveats provided for in the Malaysian Torrens system.
Notwithstanding that the Malaysian Torrens statutes are a complete and
comprehensive code of law governing the tenure of land in Malaysia and its
incidents, equitable principles of general application and relevant aspects of
English land law may continue to apply provided they are not in conflict with
and do not offend the policy objectives of the Malaysian Torrens system. To
contend otherwise is to take an extreme view.