EQUITY ISSUE

Non-abrogation theory of Australia on equity and the appropriateness of its acceptance in the local context

Basically, according to the section 6 of the Civil Law Act 1956, it was clearly stated that nothing in this part shall be taken to introduce into Malaysia or any of the states comprised therein any part of the law of England relating to the tenure or conveyance or assurance of or succession to any immoveable property or any estate, right or interest therein. Therefore, it can be said that under this section, it was prohibit the application of English common law as well as the rules of equity into Malaysia. However, through the cases that have been decided by the courts no matter in Malaysia or even Australia, it seems to us that the English common law and rules of equity are applicable towards the land matters.

According to the case of Abigail v Lapin and Another [1934] A.C. 491, an appeal from the High court of Australia to the privy council whereby the judgment of Griffith C.J., speaking for the high court of Australia, in Butler v Fairclough (1917) 23C.L.R 78,91 stated that it is well settled that under the Australian system of registration of tittles to land the courts will recognize equitable estates and right except so far as they are precluded from doing so by the statues. This recognition is indeed the foundation of the scheme of caveat which enable such rights to be temporarily protected in anticipation of legal proceedings. In dealing with such equitable rights the court in general act upon the principles which are applicable to equitable interest in land which is not subject to the acts. Moreover, in the case of Crabb v Arun District Council [1976] 1 Ch 170, whereby in this case afford a prime example of how a landowner, though entitled as of strict right to exclude anyone from passing over its land was, nonetheless, and because of an equity raised against it, obliged to acknowledge that Crabb had a right of way. Therefore, Scarman L.J understanding of the legal position of the oral agreement and subsequently grant an easement to Crabb. Its undeniable that through the two Australian cases as mentioned, it was clearly to us that the English Common Law an rules of equity are applicable to the land matters. These two cases have been refer by the Malaysian case in the Bhagwan Singh & Co Sdn Bhd v Hock Hin Bros Sdn Bhd [1987] 1 MLJ 324. In this case, the judge said that the National Land Code is based on the Torrens system of Australia and therefore Australian cases would naturally be of considerable assistance.

Other than that, according to the one of the article by Yong Chiu Mei, Lecturer in faculty of Law, University Malaya “ The role of English equity in the peninsular Malaysian Torrens system of Land Law : A review of salient statutory provisions ( Part 11)”, the case of Bhagwan Singh & Co Sdn Bhd v Hock Hin Bros Sdn Bhd [1987] 1 MLJ 324 had cited as most recently case that stated the National Land Code is based on the Torrens system in Australia and therefore Australian cases would naturally be of considerable assistance. Under this circumstances, it seem to us that the mentioned case is not the most recent case in Malaysia posses that same opinion. Therefore, we may have a look toward the case of Rabiah Lip & Ors v Bukit Lenang Development Sdn Bhd & Other Appeals [2008] 3 CLJ 692 whereby in this case one of issue that before the court is whether section 206(3) of the National Land Code applicable to the case. Section 206(3) of the National Land Code denote the meaning whereby the parties have acquired an equitable interest over the dispute land. Despite, it was held by the court of appeal that the appellants had not succeeded in asserting an in personam equity to create the formation of a binding obligation coupled with a right to equitable relief in their attempt to elevate the equity into an equitable interest culminating in a proprietary relief against the land but Heliliah Mohd Yusof JCA in this case also agree that the National Land Code 1965 is based on the Torrens Acts in Australia and hence certain decisions in Australia are worthy of mention where it is observed that there is really no difference between proprietary or promissory estoppel. This aspect had been dealt with in Waltons Stores (Interstate) Ltd v Maher & Anor [1987-1988] 76 ALR 513. This Australian decision has made references to the English decision of Crabb v Arun District Council [1976] 1 Ch 170 where Lord Denning MR observed “ Equity comes in true form, to mitigate the rigours of strict law. Subsequently, the decision in Crabb case had been refer by the Malaysian case in Bhagwan Singh & Co Sdn Bhd v Hock Hin Bros Sdn Bhd [1987] 1 MLJ 324. Therefore, it can be said that the relationship between the Australian Torrens systems is very close with the Malaysia National Land Code and maybe we can said that these two countries Torrens system is, indeed, the same.