INSIGHTS
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Reinforcing Trust in the Torrens System: Federal Court’s Clarification on Bona Fide Purchaser Doctrine
Introduction In Malayan Banking Bhd v Mohd Affandi bin Ahmad & Anor [2024] MLJU 2624, the Federal Court of Malaysia reinforced key principles underpinning the Torrens system, particularly in the context of indefeasibility of title and the doctrine of bona fide purchaser. The case addressed the obligations of financial institutions under proviso to Section 340(3) […]
Does Receipt of the Proceeds of an Auction Sale Constitute a Fresh Accrual of Action Under Section 26 Act
Does Receipt of the Proceeds of an Auction Sale Constitute a Fresh Accrual of Action Under Section 26 of the Limitation Act 1953? The question of whether the receipt of proceeds from an auction sale constitutes a fresh accrual of action under Section 26 of the Limitation Act 1953 (Act 254) in Malaysia has been […]
Indefeasibility & Duty of Purchasers after Setiakon Engineering Sdn Bhd
Indefeasibility of Title is a legal principle that ensures a registered title or interest is protected from prior unregistered claims or encumbrances. Defined by Abdul Malik Ishak J in Muthammah A/P Govindan v Masri Bin Mohamed & Anor [2000] 5 MLJ 518, it means a registered title or interest is typically immune to adverse claims […]
THE QUINCECARE DUTY OF CARE
The Banks’ duties are generally limited to those provided under the terms of their contract which includes the Bank’s obligation to repay and disburse the customer’s money in accordance with the customer’s instruction without undue delay. Nonetheless, due to increasing incidents of bank payment fraud such as the ‘Macau Scam’, the common law has developed […]
LIMITATION PERIOD FOR FORECLOSURE CHARGE ACTION
The Federal Court in a very recent case of Thameez Nisha Hasseem v Maybank Allied Bank Berhad [Civil Appeal No.02(f)-73-09/2019(P)] decided, inter alia, that:- (a) The 12 year limitation period applies to charges under the NLC; (b) The period of limitation in Section 21(1) of the Limitation Act begins from the date of the failure […]
DOCTRINE OF SUBROGATION
Connecting the Dots in Financial and Legal Subrogation Subrogation literally means ‘substitution’. In English law, the term subrogation denotes a process by which one party is deemed to have been substituted for another, so that he can acquire and enforce the other’s rights against a third party for his own benefit. In as far […]
DOES A JUDICIAL SALE PURSUANT TO THE NATIONAL LAND CODE GIVE RISE TO A CONTRACT BETWEEN THE CHARGEE BANK AND THE SUCCESSFUL BIDDER TO CONSTITUTE A CAUSE OF ACTION?
Such a question would arise where there is a contractual dispute between a chargee bank and the successful bidder regarding a judicial sale under the National Land Code (“NLC”). Essentially, the answer to that is in the negative as decided by the Federal Court (“FC”) in AmBank (M) Bhd v AIM Edition Sdn Bhd [2022] […]
DISTRIBUTION OF PROCEEDS OF SALE (FORECLOSURE CHARGE ACTION)
The following scenario may not be common but it occurs occasionally and it presents a potential problem to the rights of a prior chargee bank:- Borrower has two accounts (account #1 & account #2) with the Bank secured by two separate charges (charge #1 & charge #2) on one property. Account #2 secured by […]
CONTRIBUTORY NEGLIGENCE IN A STRICT CONTRACTUAL CLAIM
Contributory negligence was defined by Lord Justice Denning in the case of Jones v. Livox Quarries Ltd (1952) 2 QB 608.615, which was relied on in the case of Santhanaletchumy A/P Subramaniam v. Zainal Bin Saad & Anor [1994] MLJU 422, as follows:-