On 28 October 2025, the Court of Appeal began a judgment wearily. “These appeals concern yet another of the many land scam cases.”¹Pendaftar Hak Milik Negeri Selangor & Ors v Ooh Tong Hai & Anor and Another Appeal [2025] 11 CLJ 211 (CA), at [1].

Then it did something that deserves to be better known. It made the Land Registry pay.

The ordinary furniture of a fraud

Mr Hee owned land in Selangor. He held the issue document of title in his own hands throughout. An imposter calling himself Hee sold that land — and then sold it again.

Mr Ooh and Mr Goh paid the imposter RM1.5 million. Being careful men, they lodged a private caveat. A second buyer, Lee, paid RM500,000 for the same land. Lee’s solicitors procured the removal of the caveat, and Lee was registered as proprietor.

Two innocent buyers. One owner who knew nothing about any of it. One forger with RM2 million and a head start.

The court restored the land to Hee, as Malaysian law requires. It also ordered Lee and the Land Registry to compensate Ooh and Goh — general damages and exemplary damages both.²Ooh Tong Hai (n 1), at [33]–[35], [43]–[44].

Where Parts One and Two left off

Part 1 explained the great divide in the Torrens world. Australia and New Zealand let the innocent buyer keep the land, and pay the dispossessed owner out of a State assurance fund. Malaysia took the other road. Under Tan Ying Hong, the person first registered under a forged instrument holds a title that can be undone, however blameless he is.³Tan Ying Hong v Tan Sian San & Ors [2010] 2 CLJ 269 (FC), overruling Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 2 CLJ 133 (FC). Part 2 sets out the six tells that betray a scam before the register is ever touched.

The Malaysian rule sounds kinder, and in one respect it is: the owner usually keeps his land. But usually is carrying a great deal of weight in that sentence. The loss does not disappear. It merely moves. Somebody has handed a forger real money, and that somebody is now looking about the room for a defendant.

The cliff at the edge of the rule

There is a point past which even the true owner cannot get his land back.

In Low Huat Cheng v Rozdenil Toni, a man’s brother forged a power of attorney and sold the family land. The buyers sold on. The next buyer charged the land to a bank. The bank sold it at auction. By the time the owner sued, the land had come to rest with a subsequent purchaser in good faith — and under the proviso to section 340(3) of the National Land Code, that purchaser is safe — the proviso saves any title acquired by a purchaser in good faith and for valuable consideration.⁴National Land Code (Act 828, Revised 2020), s 340(3), proviso. The owner’s right of recovery was, in a phrase the Federal Court borrowed from David S Y Wong, “gone beyond recall”.⁵Low Huat Cheng & Anor v Rozdenil Toni & Another Appeal [2017] 3 CLJ 257 (FC), at [47].

Then came the sting. The owner asked for damages instead of the land. The Federal Court refused. Section 340 creates an action in rem — a claim against a thing, not against a wrongdoer. Its only remedy is to set the title aside. It says nothing of damages, and a court may not write damages into it. The owner was left holding a default judgment against the brother who had forged the document and spent the proceeds.⁶Low Huat Cheng (n 4), at [48]–[49], [56]–[57], [61]–[62].

So the Malaysian owner’s position comes to this. Move quickly, and he keeps his land. Move slowly, and he keeps nothing whatever — no land, no statutory compensation, and a judgment worth rather less than the paper it is printed on.

The fund that never came

The Federal Court has noticed. It has said so plainly.

In See Leong Chye v United Overseas Bank, in April 2021, the court observed that these cases “keep cropping up over the years”, and urged Parliament to consider “the setting up of an assurance fund” for owners “deprived of their title and/or interest through no fault of their own”. It pointed to Ontario, to British Columbia, and to almost every Australian State. Such a fund, it said, “is an integral feature of the Torrens system”.⁷See Leong Chye & Anor v United Overseas Bank (Malaysia) Bhd & Another Appeal [2021] 6 CLJ 650 (FC), at [76].

That was the apex court asking the legislature, in terms, for the missing half of the machinery. So far as the reports show, the request is still waiting for a reply.

The fund the courts are building instead

Where the legislature will not act, litigants go looking for a defendant with money. There is one obvious candidate. It is the office that keeps the register.

The Federal Court opened that door in 2016. In Poh Yang Hong it held that “a common law duty of care can arise in the performance of a statutory function”, the Registrar having “a statutory function to ensure that the records entered in the Register of Titles … contained particulars which are accurate”.⁸Pendaftar Hakmilik, Pejabat Pendaftaran Wilayah Persekutuan Kuala Lumpur & Anor v Poh Yang Hong [2016] 9 CLJ 297 (FC), at [37].

The Registry’s answer in the 2025 appeal was that it owed these buyers no duty of care at all. That argument failed. And on the Land Office’s failure to investigate how one of its own security papers came to print a fake title, the judgment records an assessment blunter than appellate courts usually allow themselves — an unconcerned attitude, “quite appalling in the circumstances”.⁹Ooh Tong Hai (n 1), at [73].

The Registry also relied on section 22 of the National Land Code, which protects an officer from being sued in any civil court for anything done “in good faith and in the intended exercise of any power, or performance of any duty” under the Act.¹⁰National Land Code (Act 828, Revised 2020), s 22. That shield is narrower than it looks. The court found the officers’ conduct neither undertaken in good faith nor performed with reasonable care. Section 22, therefore, gave them nothing.¹¹Ooh Tong Hai (n 1), at [33]. The Federal Court had already said as much in Poh Yang Hong: two sets of title for the same land, without reasonable explanation, “definitely will not qualify to be an act done in good faith”.¹²Poh Yang Hong (n 7), at [30].

This matters far beyond the individual clerk. Under section 6(1) of the Government Proceedings Act 1956, no claim lies against the Government for a public officer’s default unless the claim would have lain against the officer himself. The officer’s immunity is the State’s immunity. Take section 22 away from him, and the State is left standing behind him with nothing on.

What carelessness looked like

Part 2 listed the tells that ought to stop a conveyancer. The 2025 judgment supplies the companion list — the tells that ought to have stopped a registry clerk, and did not.

a.  Multiple issue documents of title for the same land, issued without any cogent explanation. This alone established negligence, the court held, because without it the fraud could not have happened at all.¹³Ooh Tong Hai (n 1), at [33]–[34].

b.  An attesting solicitor’s name that did not match the firm’s stamp on the application to remove the caveat.

c.  The word “DITOLAK” on the face of the instrument, recording an earlier rejection of that very application.

d.  A caveat removed on an imposter’s application, without notice to the caveators who had paid RM1.5 million precisely so that this could not happen.

The judgment records “a total lackadaisical and careless attitude of the Selangor Land Office in dealing with matters of serious natures”.¹⁴Ooh Tong Hai (n 1), at [73]. It approved a warning given by Lee Swee Seng J in 2014: “No system can be better than the people that man it. The human interface is still the weakest link.”¹⁵Yew Foo Chun v Wong Nye Keong & Ors [2014] 1 LNS 189 (HC), at [291], cited in Ooh Tong Hai (n 1), at [31].

Why this is not a substitute

This line of cases is a valuable development and a poor replacement for legislation. Three reasons.

First, an assurance fund pays on proof of loss. A negligence action pays on proof of fault. Fault inside a registry is the hardest thing in the world to prove from outside it, because the evidence sits in the registry’s own files.

Second, the claimant must survive the procedure — limitation, interlocutory skirmishing, and years of attrition. The fraud on Ooh and Goh took place in 2015. The Court of Appeal ruled in 2025. A decade is a long time to fund a lawsuit on the strength of a hope.

Third, the Registry was held liable only as a secondary wrongdoer, entitled to an indemnity from the solicitors who lodged the forged instruments.¹⁶Ooh Tong Hai (n 1), at [45]–[46]. The State’s exposure is real but contingent, and recovery may travel back round to defendants who cannot pay.

There is a loose thread as well. The Registry relied on two Court of Appeal decisions in its favour, Bank Pertanian and Supreme Tribute.¹⁷Pendaftar Hakmilik, Pejabat Tanah dan Galian Negeri Selangor v Bank Pertanian Malaysia Bhd [2016] 3 CLJ 851 (CA); Supreme Tribute Sdn Bhd v Dato’ Mohd Amin Ahmad Yahya & Ors [2018] 1 LNS 1006 (CA), both relied on by the Registry and recorded at Ooh Tong Hai (n 1), at [28]. The judgment records the argument and never answers it. A ruling that imposes liability without distinguishing the authority ranged against it is a ruling that invites an appeal.

And there is an irony worth naming. Malaysia already pays for an assurance fund. It pays in damages, in exemplary damages, and in ten years of public legal costs. It simply declines to build one and take the benefit.

What to do about it

If you own land you do not live on, or you are about to buy:

1.  Caveat early — then watch the caveat. A private caveat is not self-executing. Ooh and Goh lodged one, and it came off behind their backs. Search the title at intervals. The day a caveat disappears is the day to move.

2.   Preserve the registry’s paper trail. The case against the Registry lives in presentation books, application instruments, and issue-document records. Ask for them early, while they are still findable.

3.   Sue all the right defendants. The forger, the solicitors who lodged the instruments, and the Registry are three causes of action with three sets of assets behind them. In the 2025 case, all three were held liable.

The register is a promise the State makes to strangers: rely on this, and you may buy in safety. When the promise fails, the State’s first instinct — as the Court of Appeal found out — is to say it owed nobody anything.

That answer will no longer do. Parliament could settle the whole question tomorrow with a fund. Until it does, the courts will go on settling it one lawsuit at a time.

 You can see Part 1, Part 2, and Part 4 here.

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This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Red Dot of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. The argument, the views, and the errors remain the author’s.

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