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598 SINGAPORE LAW REPORTS (REISSUE) [1993] 1 SLR(R)

Alrich Development Pte Ltd

v
Rafiq Jumabhoy

[1993] SGCA 27

Court of Appeal — Civil Appeal No 169 of 1991

Lai Kew Chai J, Warren L H Khoo J and F A Chua J
16 April 1993
Land — Caveats — Form of caveat — Caveat lodged by party claiming interest as
purchaser — Vendor applied for removal of caveat on basis that it was vague as to
interest or estate claimed and gave incorrect particulars — Considerations for
determining whether descriptions in caveat accurate and sufficient for purposes of
compliance with statute and prescribed form — Purpose and function of caveats —
Section 104 Land Titles Act (Cap 157, 1985 Rev Ed)

Facts
The appellant (“Alrich”) claimed an interest in a property as purchaser by virtue
of an option given by the respondent (“Jumabhoy”) as registered proprietor,
which option was exercised. Alrich lodged a caveat against the property, and
Jumabhoy took out an originating summons under s 111(1) of the Land Titles
Act (Cap 157, 1985 Rev Ed) (“the Act”) to remove the caveat. On the basis that
the date of the exercise of the option and hence the contract date was wrongly
stated in the statement of grounds for the caveat, the High Court held that the
caveat was not in strict compliance with the requirements of s 104 of the Act and
the form prescribed under it, and granted Jumabhoy’s application. Alrich
appealed.

Held, allowing the appeal:

(1) When a caveat was challenged, it was primarily the right to lodge it that
was challenged. The contest in regard to the validity of the caveat should not be
so much on the form of it as the underlying transaction alleged to give rise to a
caveatable interest. A caveat was merely a notification that the caveator claimed
to have an unregistrable interest, a claim which he would be prepared to make
good if challenged. Section 104 of the Act did not contemplate that the caveator
should give elaborate details of his claim within the rather narrow confines of
the form of caveat: at [42] and [43].
(2) It was not necessary to state in a caveat in exhaustive detail either the
estate and interest claimed or the ground of claim. All that was required was that
the terms of the caveat gave a fair indication of what estate or interest the
caveator claimed and the ground of his claim. While the requirement of the Act
of an accurate description should always be followed, the court should not be
astute to find fault with the terms of a caveat so long as they were not positively
misleading and the interests of others were not prejudiced: at [45].
[Observation: Where a caveator at the time of lodging the caveat had only an
equitable interest in the land by virtue of having contracted for the purchase of
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[1993] 1 SLR(R) Alrich Development Pte Ltd v Rafiq Jumabhoy 599

it, he had not yet got the legal estate and it would be misleading to state “fee
simple” as the estate or interest claimed in the caveat: at [50].]

Case(s) referred to
Abigail v Lapin [1934] AC 491; [1934] All ER Rep 720 (folld)
Butler v Fairclough (1917) 23 CLR 78 (folld)
Fairlie, Re (1959) 76 WN (NSW) 475 (not folld)
Gasiunas v Meinhold (1964) 6 FLR 182; (1965) ALR 121 (folld)
Hitchcock, In re (1900) 17 WN (NSW) 62 (folld)
J & H Just (Holdings) Pty Limited v The Bank of New South Wales (1971)
125 CLR 546 (folld)
Jones, Re (1935) 35 SR (NSW) 560 (not folld)
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 (folld)
Palmer v Wiley (1906) 23 WN (NSW) 90 (not folld)
Vandyke v Vandyke (1976) 12 ALR 621 (refd)

Legislation referred to
Land Titles Act (Cap 157, 1985 Rev Ed) s 104 (consd);
ss 105, 111, 112
Real Property Act 1900 (NSW) s 72

Cheong Yuen Hee and Tan Kay Khai (Chua, Hay & Wee) for the appellant;
Gan Hiang Chye and Chew Kherk Ying (Allen & Gledhill) for the respondent.

[Editorial Note: The decision from which this appeal arose is reported at [1991]
SGHC 185.]

16 April 1993
Warren L H Khoo J (delivering the grounds of decision of Lai Kew Chai J
and himself, F A Chua J having retired since the full court pronounced
judgment):
1 This was an appeal from the decision of the High Court on an
application by originating summons under s 111(1) of the Land Titles Act
(Cap 157) (“the Act”) to remove two caveats lodged by the appellants.
2 At the conclusion of the hearing of the appeal, we allowed the appeal
with costs here and below. Two members of the Court of Appeal are now
setting out the grounds of the full court. F A Chua J, having retired as a
judge since the full Court of Appeal pronounced judgment, is therefore not
a party to these grounds.
3 The facts are as follows. On 8 June 1990, Mr Jumabhoy, through his
attorney, granted an option to one Ms Ho Poh Lin to purchase his property
at 36 Ewe Boon Road, Singapore at the price of $2.025m. An option fee of
$40,500 was paid. The offer contained in the option remained open for
acceptance until 4.00pm on 8 August 1990. It was provided in the option
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that to exercise the option Ms Ho must sign the “acceptance copy” of the
option in the place indicated and deliver it duly signed together with a
deposit of a sum equivalent to 10% of the purchase price (less the option
money of $40,500 already paid) made in favour of Mr Jumabhoy’s solicitors
(identified). It was also provided that Ms Ho had the right to nominate
another party who was either a Singapore citizen or a Singapore company
as defined in the Residential Property Act (Cap 274) to “execute this option
provided that you sign and return the nomination form attached to this
option”.
4 For reasons which we need not go into, Mr Jumabhoy decided to
revoke the option. His solicitors wrote to Ms Ho’s solicitors on 6 August
1990 revoking the option. Ms Ho’s solicitors replied by a letter dated
6 August (which it is common ground was not received until the next day,
7 August) that she did not accept the purported revocation of the option.
They also forwarded the duly signed “acceptance copy” of the option
together with a cheque for the sum of $162,000, which, together with the
$40,500 already paid would amount to 10% of the purchase price as
stipulated in the option, together also with the completed nomination form
nominating Alrich as the nominees.
5 On 7 August 1990, Alrich lodged a caveat (“the first caveat”) against
the property. There followed correspondence between the respective
solicitors. Mr Jumabhoy took the position that the purported acceptance of
the option was invalid as the option had been revoked. His solicitors
returned the cheque for $162,000 and also the option money of $40,500
earlier received. Alrich took the position that the option was open for
acceptance until 8 August and the purported revocation was invalid and of
no effect.
6 On 14 August, Alrich commenced action in Suit No 1452 of 1990
against Mr Jumabhoy in which they sought specific performance and other
remedies. Mr Jumabhoy resists Alrich’s claims on the ground of
misrepresentation among others.
7 On 16 July 1991, Mr Jumabhoy granted another option to one Lee
Kang Li to purchase the land. Mr Lee exercised the option on 7 August. The
sale was subject to Mr Jumabhoy removing the first caveat. Mr Lee lodged
his own caveat on 7 August 1991, but Alrich had on 6 August 1991 lodged
their second caveat.
8 On 4 September 1991, Mr Jumabhoy took out the originating
summons under s 111(1) of the Act whereby he sought the removal of both
caveats lodged by Alrich.
9 The summons was heard by Chao Hick Tin J. The learned judge held
that both caveats were not in compliance with the requirements of s 104 of
the Act and the form prescribed under it. By order dated 28 November 1991
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[1993] 1 SLR(R) Alrich Development Pte Ltd v Rafiq Jumabhoy 601

he ordered the cancellation and removal of both caveats, with a stay

pending appeal to this court.
10 It is the decision of the learned judge holding that the second caveat,
lodged on 6 August 1991, was invalid that Alrich question in this appeal
before us.
11 This caveat was in the standard form prescribed by s 104 of the Act.
The form provides for the identification of the land against which the
caveat is lodged, as well as the particulars of the caveator and what is sought
to be prohibited. There is also provision for the description of (a) the estate
or interest claimed; and (b) the grounds of claim. Against the heading
“Estate or interest claimed,” the guidance notes say:
Specify estate or interest claimed, eg fee simple; for a leasehold estate,
to specify particulars of the term if it is shorter than the whole of the
unexpired term.

12 Against the heading “Grounds of claim”, the guidance notes simply

say “Specify the grounds of claim.”
13 In the caveat filed, against the “Estate or interest claimed” heading,
there were inserted the words “Claims interest as purchaser,” and against
the “Ground of claim” heading, there were inserted the words:
By virtue of an option dated 8 June 1990 given by the registered
proprietor and duly exercised by the caveator on 6 August 1990.

14 Thus, omitting portions of the form which are not applicable and
words not essential to the case, the caveat as lodged reads as follows: “The
caveator Alrich Development Pte Ltd claims interest as purchaser by virtue
of an option dated 8 June 1990 given by the registered proprietor and duly
exercised by the caveator on 6 August 1990 as to the estate or interest of the
registered proprietor in the land above described, and hereby prohibits the
registration of any instrument affecting the abovementioned land unless
the caveator has consented in writing to such registration.”

Grounds of challenge
15 Mr Jumabhoy challenged the validity of the caveat on the following
grounds. Firstly, the estate or interest claimed by Alrich was not stated;
merely stating that Alrich claim interest as purchaser is not good enough.
16 Secondly, the statement of the grounds of claim was wrong in that it
gave the impression that the option was granted to and exercised by Alrich
when the option in fact was granted to Ho.
17 Thirdly, the statement of grounds was also wrong in that contrary to
what was stated the option was not exercised on 6 August, but on 7 August
1990, and a binding contract did not come into being until 7 August.
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18 As to the first ground, the learned judge held that the interest claimed
was sufficiently clearly stated. He said that the statement in the caveat
clearly stated that the caveator claimed as purchaser as to the estate or
interest of the registered proprietor.
19 As to the second ground, the learned judge held that it was not
necessary for the caveat to state that the option was granted to Ho and that
Alrich had exercised it as Ho’s nominees. The learned judge said that
Alrich’s claim as purchasers was by virtue of the option which they claim
had been properly exercised.
20 As to the third ground, the learned judge upheld Mr Jumabhoy’s
objections. He accepted that the acceptance form was signed by Alrich on
6 August. However, as the acceptance form was not delivered to
Mr Jumabhoy’s solicitors until 7 August 1990, the contract did not come
into being until then. The learned judge held that the caveat was invalid on
this ground. He accepted Mr Jumabhoy’s counsel’s argument, based on a
string of Australian authorities, that a strict compliance with the formalities
of a caveat is required.
21 Before us, substantially the same grounds were canvassed.

The New South Wales tradition

22 The authorities in favour of a strict and meticulous description of the
estate or interest claimed are all from New South Wales. They were all
decided under s 72(2) of the New South Wales Real Property Act 1900,
which at the time provided that every caveat prohibiting dealings “shall
state the name and address of the caveator, and shall contain a sufficient
description to identify the land and the estate or interest therein claimed by
the caveator”. The relevant form apparently also required the caveator to
state the nature of the estate or interest claimed, and the facts on which the
claim was founded.
23 In Palmer v Wiley (1906) 23 WN (NSW) 90, a caveat “claiming estate
or interest by reason of and under and by virtue of a memorandum of
agreement made 30 September 1903 between (three named persons)” was
held to be invalid by Pring J on the ground that “it does not show what is
the estate or interest that the caveator claims in it. It may be an estate tail, or
an estate for years, or some other estate”. The decision in Palmer v Wiley
was followed in Re Jones (1935) 35 SR (NSW) 560, and in Re Fairlie (1959)
76 WN (NSW) 475.
24 In Re Jones, it was held that a caveat claiming “an estate or interest in
terms of agreement dated 17 December 1923 to grant and secure to me an
extension of memorandum of lease dated 29 November 1923 from William
John Jones” was defective because it did not contain a description sufficient
to identify the estate or interest claimed by the caveator.
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25 In Re Fairlie, it was held that a caveat claiming “an equitable estate or

interest in fee simple with the registered proprietor as tenants in common
under an agreement for joint venture in respect of the said land subject to
the rights of one John McIvor under deed dated 4 September 1957” was
struck down because the share which the caveator claimed as a tenant in
common was not specified and therefore the quantum of the estate had not
been specified.

26 In all these cases, the courts in New South Wales laid down a rather
strict rule that the quantum of the estate must be stated. The underlying
reason for such a strict approach was not examined or discussed in any of
these cases. In essence, the respective courts, all at first instance, proceeded
on the basis that an omission to state the quantum of the estate or interest
claimed was per se bad.

27 An examination of the question by reference to the purpose and effect

of caveats had to await the decision of the Court of Appeal of New South
Wales in Vandyke v Vandyke (1976) 12 ALR 621. In this case, the caveat
claimed estate or interest “pursuant to divorce settlement”.

28 Reynolds JA and Huntley JA did not find it necessary to consider the

validity of the caveat as a matter of form. They were of the view that the
caveat would have to be removed in any event because the underlying
transaction did not support it as the wife had never had any equitable
interest in the property.

29 Mahoney JA had no difficulty in holding that a caveat so drawn was

ineffective because it did not state the estate or interest claimed by the
caveator. He was of the view that the provisions of s 72(2) were mandatory,
as opposed to merely directory. Citing authorities, he said that where a
privilege or a power to do something which would otherwise not be lawful,
or to interfere with the rights of others, prima facie, it is to be expected that
the statutory provisions relating to its exercise were intended to be
mandatory. He said:
In the present case, s 72 grants to a caveator the power to prevent the
Registrar-General from recording in the register any dealing
prohibited by the caveat. The effect of this upon a registered proprietor
is immediate, and, in a particular case, may be drastic. The power may
be exercised at the will of the caveator and without the necessity for the
caveator to establish, before it is exercised, even a prima facie case for
the existence of the estate or interest upon which the exercise of it is
based. The only significant statutory sanction upon the proper exercise
of it is the liability to ‘such compensation as may be just’, recoverable
subsequently in an action at law if the power is not properly used: s 98.
It is, in my opinion, properly to be inferred that the legislative
intention was that such a power should be exercisable only subject to
precise compliance with the requirements of s 72(2).
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The dissenting voice in Canberra

30 A conscious decision to depart from the Palmer v Wiley line of
authorities was taken by Joske J in the Supreme Court of the Australian
Capital Territory in the case of Gasiunas v Meinhold (1964) 6 FLR 182;
(1965) ALR 121. The statutory provisions were in similar terms to those in
New South Wales when the three first instance cases were decided. The
caveat in question claimed “an estate or interest as purchaser under a
contract of sale made on or about 26 June 1962” between the applicant and
the respondent in the land described. It was submitted that the caveat was
defective as it did not state that the claim was as a purchaser of the balance
of the term of the Crown lease, and the three New South Wales first
instance cases were relied upon.
31 Joske J refused adamantly to follow the New South Wales precedents,
clearly of the view that they had all been wrongly decided. He said:
The caveat … lodged by the respondent claims an estate or interest as
purchaser in the land comprised in the Crown lease. This appears to
me clearly to show the nature of the estate or interest claimed. The
caveat also sets out that the claim as purchaser is under a contract of
sale made on or about 26 June 1962 between the applicant (the Crown
lessee) and the respondent. This clearly shows the facts on which the
claim is founded.

Our views
32 Section 104(4) of our Land Titles Act requires that a caveat shall
contain an accurate description of the interest claimed and such description
as may be sufficient to identify the land intended to be affected.
33 The words used are not exactly those used in s 72(2) of the New South
Wales Act, either before or after the latter was amended in 1970. The
respondent’s counsel laid stress on the “accurate description” in our Act
and “sufficient description” in the New South Wales Act.
34 We do not think, however, that for the purpose of resolving the issues
at hand, much assistance could be had from drawing such distinctions. A
consideration of the workings of the Torrens system of the land title
registration and the purpose and function of caveats is more likely to be
helpful.
35 In Abigail v Lapin [1934] All ER Rep 720, a case on appeal from the
High Court of Australia originating from the Supreme Court of New South
Wales, Lord Wright said (at 725):
It is a system for the registration of title, not of deeds; the statutory
form of transfer gives a title in equity until registration, but when
registered it has the effect of a deed and is effective to pass the legal
title; upon the registration of a transfer, the estate or interest of the
transferor as set forth in such instrument, with all rights, powers, and
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[1993] 1 SLR(R) Alrich Development Pte Ltd v Rafiq Jumabhoy 605

privileges thereto belonging or appertaining, is to pass to the

transferee. No notice of trusts may be entered in the register book, but
it has long been held that equitable claims and interests in land are
recognized under the Real Property Acts.

Purpose and function of caveats

36 As to the purpose and function of a caveat, Lord Wright (continuing

from the above) said:
For the protection of such equitable interests or estates, the Act
provides that a caveat may be lodged with the registrar by any person
claiming as cestui que trust, or under any unregistered instrument or
any other estate or interest; the effect of the caveat is that no
instrument will be registered while the caveat is in force affecting the
land, estate or interest until after a certain notice to the person lodging
the caveat. Thus, though the legal interest is in general determined by
the registered transfer, and is in law subject only to registered
mortgages or other charges, the register may bear on its face a notice of
equitable claims, so as to warn persons dealing in respect of the land
and to enable the equitable claimant to protect his claim by enabling
him to bring an action if his claim be disputed.

37 A caveat has been described as nothing more than statutory

injunction to keep the property in status quo until the court has had an
opportunity of discovering what are the rights of the parties: per Owen J in
In re Hitchcock (1900) 17 WN (NSW) 62. It is not for the purpose of giving
notice to the world of a claim by the caveator to an estate or interest in the
land, but for the purpose of prohibiting the caveator’s interest from being
defeated by the registration of a dealing without the caveator having had an
opportunity to invoke the assistance of the court to give effect to his
interest: Butler v Fairclough (1917) 23 CLR 78; J & H Just (Holdings) Pty
Limited v The Bank of New South Wales (1971) 125 CLR 546 at 552 and 556;
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 at 228.

38 As Mahoney JA in Vandyke v Vandyke ([27] supra) pointed out, a

person need not show that he in fact has a caveatable interest before he is
allowed to lodge a caveat. The opening words of s 104 (corresponding to the
New South Wales s 72) make it clear that any person claiming an interest in
registered land may do so. Where there is any dispute in regard to the right
of the caveator to file the caveat, the Act provides a mechanism for a
reasonably speedy resolution of the dispute. Section 105 provides that upon
the registration of the caveat, the Registrar shall give immediate notice to
the caveatee of the lodgment of the caveat. Section 111 provides that at any
time after the lodgment of a caveat, the caveatee may summon the caveator
to attend before the court to show cause why the caveat should not be
withdrawn or otherwise removed, and the court may make such order,
either ex parte or otherwise, as seems just.
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39 In addition to these remedies, where the caveatee considers that a

caveat has been lodged vexatiously or frivolously or not in good faith, he
may lodge a statutory declaration to that effect. Upon the lodgment of such
a statutory declaration, the Registrar shall give the caveator notice that he
intends to cancel the notification of the caveat, and the Registrar shall
cancel it unless within 21 days from the date of the notice an order by the
court to the contrary is served on the Registrar, or the caveator furnishes to
the Registrar satisfactory evidence to show that the cancellation should be
withheld or deferred.
40 Section 112 further provides for the award of compensation at the suit
of anyone who has sustained damage by reason of a caveat having been
wrongfully lodged.
41 The scheme of the Act is thus designed to strike a balance between the
interests of the caveator and those of the caveatee. On the one hand, it
enables a person who claims to have an equitable interest in land on the
register to notify his claim by the simple and inexpensive process of lodging
an instrument in the prescribed form without having to prove his claim. On
the other hand, it allows the caveatee, if he disputes the right of the caveator
to lodge a caveat, to take steps to have the caveat removed. It provides a
mechanism for the resolution of any such disputes. If the caveatee has
suffered any damage as a result of a wrongful lodgment of a caveat, he has a
statutory right of compensation.
42 So far as the form of the caveat is concerned, it is important to bear in
mind that it is merely a notification that the caveator claims to have an
unregistrable interest, a claim which he will be prepared to make good if
challenged. We do not think that s 104 of the Act contemplates that the
caveator should give elaborate details of his claim within the rather narrow
confines of the form of caveat. If it was otherwise, one would expect to see
provisions requiring the lodgment of supporting documents or at least a
much more elaborate form for the caveat.
43 Where a caveat is challenged, it is primarily the right to lodge it that is
challenged. The contest in regard to the validity of the caveat should not be
so much on the form of it as the underlying transaction giving rise or
alleged to give rise to a caveatable interest. When a right to caveat is
challenged, the full facts giving rise to the right or the alleged right must
necessarily be gone into by the court. It is highly unlikely that such cases
could ever be decided without reference to facts external to the four corners
of the caveat form.
44 All these considerations lead us to the view that it is not necessary to
state in a caveat in exhaustive detail either the estate and interest claimed or
the ground of claim. So long as the terms of the caveat gives a fair indication
of what estate or interest the caveator claims and the ground of his claim,
that is all that is required for the purpose of notifying it.
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[1993] 1 SLR(R) Alrich Development Pte Ltd v Rafiq Jumabhoy 607

45 While the requirement of the Act of an accurate description should

always be followed, the court should not be astute to find fault with the
terms of a caveat so long as they are not positively misleading and the
interests of others are not prejudiced. The court should guard against the
harm of striking out a caveat for some minor defect of form where the
underlying basis for the claim is unimpeachable.
46 The New South Wales cases which we have referred to earlier show
only too well the ease with which a caveat might be criticised not only for
what is included but also for what is omitted.

The instant case

47 Turning to the instant cases, and in the light of our general
observations above, we think that there is no substance in the criticism that
the caveat in question does not state the quantum of the estate or interest
claimed. It seems to us that when it is stated, without qualification, that the
caveator “claims interest as purchaser” the claim must be understood as
extending to the whole of the estate or interest which the registered
proprietor has in the land in question.
48 The land register kept by the Registrar shows the extent of the estate
or interest of registered proprietors. See s 22 ff. The extent of the estate or
interest of the registered proprietor could always be ascertained by an
inspection of the land register. In this case, the certificate of title, a copy of
which was produced by Mr Jumabhoy in his affidavit, shows that he is the
registered proprietor of an estate in fee simple in the land in question.
49 We are therefore of the view that the words “claims interest as
purchaser” followed by a description of an option duly exercised are apt to
show that the caveator claims to have contracted to purchase the whole of
the estate or interest of the registered proprietor. We thus reach a
conclusion similar to that of Joske J in Gasiunas v Meinhold ([30] supra)
above in relation to the caveat before him containing a similar form of
wording.
50 Counsel for Mr Jumabhoy suggested that, following the example in
the guidance notes, the proper words to have been inserted should have
been “fee simple”. We respectfully disagree. What the caveator could
properly claim to have at the time of lodging the caveat was only an
equitable interest in the land by virtue of having concluded, as he claimed, a
contract for the purchase of it. He had not yet got the legal estate. The
words “fee simple” would have been quite misleading in these
circumstances.
51 As to the criticisms of the stated ground of claim, it has not been
demonstrated why it is essential to state to whom the option had in the first
instance been given. It has not been demonstrated why it should matter that
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608 SINGAPORE LAW REPORTS (REISSUE) [1993] 1 SLR(R)

the option was in the first instance given to Mdm Ho and that the party
who purported to exercise it was Alrich.
52 As to the criticism that the caveat wrongly stated that the option was
exercised on the 6 August 1990 when the purported acceptance of the
option was on 7 August, we think that if this is an error it is one without
much consequence. The registered proprietor has not been misled. He had
received the purported acceptance of the option and he knew that Alrich
had purported to accept it. There is no evidence of any other transactions
between him and Alrich or with other parties that would result in any
confusion as to the identity of the claimant or the date the claimed interest
arose. No harm has been shown to have resulted; neither has Mr Jumabhoy
claimed that any has resulted. Indeed, the date of the exercise of the option
could well have been omitted without any harm. It may be that if there had
been another purchaser who had been given an option and had exercised it
on or about the date stated in Alrich’s caveat, a confusion and possibly
misrepresentation could have resulted. But this was not the case.

Conclusion
53 We therefore agree with the learned judge on his views as to the first
two grounds stated earlier on which Mr Jumabhoy sought to challenge the
validity of the caveat. However, we respectfully differ from the views of the
learned judge as to the third ground, ie that the caveat wrongly stated the
date on which the option could properly be said to have been exercised. The
appeal had been brought solely on these grounds. The position regarding
the underlying transaction is the subject matter of Suit No 1452 of 1990. It
was not before us. On the views we took of the grounds canvassed before us,
we therefore allowed the appeal, with costs here and below. We ordered
that the amount deposited by the appellants as security for costs be returned
to them.

Headnoted by Arvin Lee.