1. ) Abdul Rahman bin Usof v RHB TRUSTEES BERHAD (WA-24NCvC-2583-07/2024)

ANTARA Abdul Rahman bin Usof (No. K/P: 700328-01-6151)

Raman bin Jantan (No. K/P: 750502-01-6911)

Kamariah binti Jantan (No. K/P: 750421-01-6872)

Anrian bin Andi Lala (No. K/P: 941030-01-5727)

Kamsiah binti Amat (No. K/P: 750115-01-7068)

Jasni bin Amat (No. K/P: 771231-01-5679)

Azamain bin Amat (No. K/P: 801027-01-6281)

Zanizah binti Amat (No. K/P: 841105-01-7244)

Suranti @ Lili binti Amat (No. K/P: 860312-23-6234)

Suranti a/p Amat (No. K/P: 880213-01-5432)

Norsuliana a/p Amat (No. K/P: 920812-01-5366)

Mohsin bin Lekok (No. K/P: 600613-01-6179)

Marsenah binti Mohsin (No. K/P: 841006-01-6764)

Suhaili binti Mohsin (No. K/P: 890327-01-5608)

Azizan binti Mohsin (No. K/P: 910113-01-5579)

Suzan bin Mohsin (No. K/P: 931119-01-6903)

Shamsudin bin Mah Gee KoKoh (No. K/P: 640613-01-6095)

Rohani binti Agang (No. K/P: 630613-01-6184)

Nolie Asniera Shmila binti Shamsudin (No. K/P: 900917-01-6164)

Nor Aliyah binti Shamsudin (No. K/P: 981224-01-7364)

Azman bin Inam (No. K/P: 77004-01-5221)

Nur Azie Amira binti Inam (No. K/P: 950710-01-7202)

Aris bin Adong (No. K/P: 750501-01-6661)

Sarimah binti Edin (No. K/P: 870323-23-5816)

Azila binti Edin (No. K/P: 920121-01-5586)

Saridah binti Edin (No. K/P: 930223-01-5500)

Basir @ Kelana bin Adong (No. K/P: 760608-01-6521)

Sira binti Agang (No. K/P: 541014-01-5812)

Nunai binti Agan (No. K/P: 750501-01-7082)

Nurazrin binti Mail (No. K/P: 901116-01-6118)

Mardiana binti Mail (No. K/P: 931008-01-7110)

Sekechik bin Aching (No. K/P: 670529-01-6567)

Remiah binti Manga (No. K/P: 750110-01-6956)

Sima binti Sekechik (No. K/P: 900720-01-5184)

Norasikin binti Sekechik (No. K/P: 920608-01-5158)

Sharifah binti Bopeng (No. K/P: 670411-01-6342)

Salina binti Aziz (No. K/P: 861122-23-6172)

Shidee bin Aziz (No. K/P: 941107-01-6479)

Zaabidi bin Sekechik (No. K/P: 950330-01-5459)

Zaili bin Shamsudin (No. K/P: 910916-01-5003)

Suhaimi bin Mohsin (No. K/P: 871229-23-5873)

Suhaizan bin Mohsin (No. K/P: 921113-01-5409)

Suzimie bin Mohsin (No. K/P: 981030-01-6953)

Samsir bin Adong (No. K/P: 771231-01-5601)

Telani binti Adong (No. K/P: 790127-01-5322)

Azlan bin Adong (No. K/P: 880511-01-5887)

Mazlan bin Adong (No. K/P: 890604-01-5527)

Isma Shah Reza bin Adong (No. K/P: 941011-01-5641)

Saha a/l Ngah (No. K/P: 920302-06-5873)

Saripa a/p Ngah (No. K/P: 940302-06-5978)

Sarimah a/p Ngah (No. K/P: 960920-06-5244)

Melati a/p Ngah (No. K/P: 020615-06-0682)

Julia a/p Ngah (No. K/P: 030830-06-0094)

Juita a/p Ngah (No. K/P: 030830-06-0158)

Hadi a/l Ngah (No. K/P: 050930-06-0495)

Sakinah bt Abdullah / Tina a/p Ngah (No. K/P: 881209-06-5714)

Faridah bt Abdullah / Faridah a/p Limah (No. K/P: 810915-06-5596)

Nur Azura bt Abdullah / Lina a/p Leman (No. K/P: 871211-06-5140)

Nora a/p Liman (No. K/P: 891231-06-6958)

Kamariah bt Malut (No. K/P: 691129-06-5250)

Jamilah bt Ngah (No. K/P: 810915-06-5668)

Wing a/l Ngah (No. K/P: 821215-06-5791)

Mahayuni a/p Ngah (No. K/P: 901221-06-5974)

Mariah a/p Leman (No. K/P: 761231-06-5730)

Miah a/p Malut (No. K/P: 741128-06-5582) -PEMOHON DAN RHB TRUSTEES BERHAD (No Syarikat: 200201005356 (573019-U)) (sebagai Pemegang Amanah kepada GROUNDS OF JUDGMENT Introduction 1. In Malaysia, we call our , which is an apt There is a long and chequered history behind this case which was filed by 65 Orang Asli who are beneficiaries of a trust. Their tribe, which is part of the Jakun , as are necessary for the determination of this action, shall be elucidated below.

Those 65 Orang Asli commenced this action to protect their interest upon discovering that the trustee of the trust has agreed to highly abnormal terms and conditions for the sale of trust properties. The trustee is RHB Trustees Berhad, whom they have rightly named as the Respondent herein. SAMAN PEMULA NO: WA-24NCvC-2583-07/2024 3. Various allegations are supporting affidavit affirmed by the 6th Plaintiff Jasni bin Amat on behalf of the Applicants; the most glaring one being a proposed sale of 57 condominiums held by the trust with an absurd condition that a property agent appointed by the Respondent shall be receiving about RM7.6million out of the sale proceeds, purportedly as .

After reading the cause papers and hearing submissions by both counsel, I decided that this Court ought to rule in favour of the Applicants/Orang application are as explained below. Background Facts 5. The 65 Applicants in this action are Orang Asli of the Jakun tribe who are beneficiaries of a trust known as the Linggiu Valley Orang

There were earlier trustees appointed for the Trust but for the purpose of this case, only the conduct of the Respondent RHB Trustees Berhad is relevant. The Respondent was appointed vide a court order dated 10th March 2019 to be the trustee of the Trust.

was acquired by the State Government of Johor and an award of RM26 million was made by the Court then.

By the time the land acquisition award was affirmed after appeals, the sum received in year 2000 was more than RM38million, including interest on the principal sum. After payment of legal fees and some initial distribution to the Orang Asli, the Trust was set up with a balance sum of RM22million.

There has been litigation over the past years involving past trustees and solicitors, creating a chequered history for the Trust. The factual matrix as to how the Trust ended up having 57 condominiums in Kuala Lumpur is irrelevant in this case. Here, it is sufficient just to mention that 53 units of those condominiums are in the development known as Lanai Gurney Corporate Suites and 4 units are within Gurney Heights, both of which are located in Mukim Setapak, Kuala

The Respondent had failed to render statements of accounts regularly to the Applicants, ignoring numerous letters sent by the which led to the Applicants filing an action against the Respondent in September 2022. In that civil suit, Roz Mawar Rozain JC (as Her Ladyship then was) ordered the Respondent to furnish accounts and make payments. It is unnecessary here to delve into the details of the previous civil suit, save to note that the Applicants had encountered difficulties earlier in obtaining information from the Respondent about the Trust accounts, etcetera.

On 7th January 2025, this Court issued a discovery order upon the application of the Applicants to require the Respondent to provide a copy each of the Sale and Purchase Agreements that the Respondent had entered into for the sale of some of the 57 Condos. The Respondent has complied with the discovery order.

The Applicants aver that the Respondent had acted dishonestly tidak berkelakuan jujur kepada kami that the Respondent was attempting to sell all the 57 Condos without informing them. According to the Applicants, their solicitors Messrs Rabia, Farihan & Sures did a file search in court and discovered that the Respondent had obtained an ex-parte Order for Sale on 20th June 2023 vide an ex-parte Originating Summons at the High Court at Kuala Lumpur OS No. WA-24NCvC-1904-

It was further highlighted by the Applicants that they also discovered that the Respondent had adduced a valuation report which shows the market price of the 57 Condos to be RM17,120,000.00 and the Force Sale Price to be RM11,984,000.00.

Learned counsel for the Applicants contends that the market valuation of RM17million and Force Sale Price of RM12million were gross undervaluation of the 57 Condos which are located within the city of Kuala Lumpur. They also averred that based on sale transactions in the two developments where the 57 Condos are located, as shown in a Brickz Report, the market value of the 57 Condos are higher than RM19million.

It was also highlighted in the submissions of learned counsel for the Applicants that the Respondent had appointed only one property the Property Agent be the sole agent to sell all the 57 Condos at the market price but with dubious terms and conditions, including the payment of a large percentage of the selling price to the Property Agent. The payment th Letter .

On 26th January 2024, two senior employees of the Respondent appointment of the Property Agent (Jeffrey Brandon Property) and accepted the terms and conditions stated in the said letter.

The monies to be paid to the Property Agent, as stated in the 15th added up to a whopping RM7,624,347.45.

In the ex-parte Order for Sale dated 20th June 2023 in OS No.1904 the impugned Order-kerja Pembaikan which English translation should be Repair and Maintenance works) to be done in the 57 Condos.

The Applicants strongly objected to the scheme which would result in the payment of more than RM7.6million to the Property Agent. They alleged, inter alia, breach of fiduciary duties by the Respondent in failing consent to sell all the 57 Condos, agreeing to pay more than RM7.6million to the Property Agent, concealing the proposed sale, being negligent in its conduct and for refusing (earlier) to respond to repeated queries raised by the Applicants who are beneficiaries of the Trust.

Learned counsel for the Defendant submitted that the Deed of Trust dated 5th June 2000 gives the Respondent a free hand to sell the assets comprising the whole or any part of the trust fund. Reference was made to Clause 7.3 which reads:

It was further submitted that the Respondent wanted to liquidate the 57 Condos in order to raise money to make distribution to the beneficiaries but was unable to sell the 57 Condos.

As for the appointment of the Property Agent to sell the 57 Condos, it was submitted that the Respondent had subsequently revoked the appointment and had on 11th November 2024 obtained an ex-parte order, inter alia, to amend the impugned Order and deleted the

ht to be allowed to proceed based on the amended impugned Order, and the Applicants may sue the Respondent for breach of trust thereafter. Analysis of the Facts and Law 24. After poring through the affidavits and submissions of learned counsel on both sides, I find evidence of serious lack of probity on the part of the Respondent which is the sole trustee of the Trust.

th December 2023, and two senior employees of the Respondent signed at the bottom of it to confirm the appointment of the Property Agent in January 2024. Screenshots of relevant portions of the SAMAN PEMULA NO: WA-24NCvC-2583-07/2024 26. However, I note that the impugned Order dated 20th June 2023 had already stated the name of the Property Agent i.e. Jeffrey Brandon Property, in para (e) therein, and to be authorised to receive money for - . This is evidence that the Respondent had in fact planned the scheme much earlier for the Property Agent to be receiving a large percentage of the future sale proceeds. It was not a case of the Respondent seeking prior approval from the court to sell the 57 Condos at market price and thereafter to choose and appoint property agents to seek purchasers to buy at the market price.

stated in the to be paid to the Property Agent added up to a whopping RM7,624,347.45 is shocking.

RM7,624,347.45 which the Respondent had agreed to be paid to the Property Agent, the Respondent also agreed that the Property Agent would be paid a commission as high as three percent (3%) of the total sale price of all the 57 Condos. This may seen from the follows:

With respect, this Court takes judicial notice that a rate of three percent (3%) of the sale price is higher than the market rate. 3% is in fact the maximum commission that property agents in Malaysia are allowed to charge. In fact, property agents in Malaysia are allowed to charge a flat rate of only RM1,000 per property. This information is the official portal of the Board of Valuers, Appraisers, Estate Agents and Property Managers of Malaysia, i.e. in the public domain (see https://lpeph.gov.my/fees). Here, the Respondent had agreed to pay the maximum rate of commission to a single property agent who is being given exclusive rights to sell as many as 57 condominiums and who is also promised to receive more than he Respondent was acting to the detriment of the beneficiaries of the Trust.

RM7,624,347.45 which the Respondent had agreed to be paid to the Property Agent, the following facts further proved the lack of probity on the part of the Respondent as trustee.

First, the property valuation report prepared by Messrs Jordan Lee & Jaafar, which shows the 57 Condos to be worth more than RM17million, was based on their existing condition, meaning no renovation was required. The valuer clearly in its existing condition screenshot of the relevant part of the valuation report that shows the valuation of over RM17million is pasted below: SAMAN PEMULA NO: WA-24NCvC-2583-07/2024 32. Assuming that there is a real need to sell the 57 Condos, there is no evidence of the Respondent having made any efforts to sell the 57 Condos, at least at the market price of RM17,120,000.00 as valued by Messrs Jordan Lee & Jaafar. The Respondent appeared to have hurried along with its scheme to sell the 57 Condos which included a dubious term to RM7.6million to the Property Agent without requiring the Property are to be performed!

The absurdity of the agreeing to pay "Upgrade and to the Property Agent is best illustrated by the figures shown in the computation marked as Annexure A of the I shall refer to two examples out of the 57 Condos to highlight the figures. A screenshot of the unit E-20-2 in Item No. 21 of Annexure A is pasted below:

The above screenshot for unit E-20-2 in Item No. 21 of Annexure A shows that the purchaser shall pay the market price of RM404,993.39 (as valued by the valuer) but the Trust shall only be receiving RM263,328.92 because RM141,664.46 is the so-called Agent. The Trust will actually receive less than RM263,328.92 for this unit because as highlighted in para 28 above, the Respondent has also agreed to allow the Property Agent to take 3% of the full purchase price of RM404,993.39, and there would be legal fees payable as well for the sale of this unit E-20-2.

There is no doubt that the actual sale price is RM404,993.39 (as valued by the valuer) because there is evidence from the sale document signed between the Respondent (as vendor) and the purchaser for this unit E-20-2. A screenshot of it is pasted below:

Similarly, for the sale of a unit known as E-20-3, the Respondent had agreed to enrich the Property Agent at the expense of the Trust. A screenshot pasted below of the relevant part of Annexure A (part of the ) shows actual sale price of RM480,000.00 but with the Trust to be receiving only RM280,018.79 because the Respondent has agreed for the Property Agent to be paid as much as RM199,981.21 as "Upgrade and Re SAMAN PEMULA NO: WA-24NCvC-2583-07/2024 37. Evidence that the sale price agreed to be paid by the purchaser is RM480,000 can be seen from the following screenshot of the sale document signed by the purchaser of unit E-20-3. Yet, the Respondent had agreed for the Trust to be receiving only RM280,018.79 and for the Property Agent to be paid RM199,981.21 as

Even though the Respondent had subsequently filed an ex-parte application to amend the impugned Order and to remove the e after this action was filed by the Applicants (who are the beneficiaries), the credibility as professional trustee for the Trust has been irreversibly damaged. This is due to the act of the two senior employees of the Respondent who knowingly signed to signify t which added to RM7,624,347.45.

The said term to agree to pay the Property Agent such a massive sum was wholly unjustifiable and pointed to a clear intention to deplete the assets of the Trust. It was a breach of fiduciary duty to protect the Trust. There is no room for the Respondent to deny because the signatures and rubber stamp of the Respondent are imprinted at the bottom of , as shown in the screenshot below:

From a reading of the impugned Order dated 20th June 2023 and Annexure A of the Property Agent reiterate my finding that the Respondent had planned it from the outset to appoint the Property Agent and to pay him a large percentage of the actual sale screenshot of the relevant part of the impugned Order states:

Since the impugned Order was obtained by way of an ex-parte application, it may be set aside pursuant to Order 32 rule 6 Rules of Court 2012. Th power to set aside ex-parte orders is necessary because often times, applicants abuse the court process by filing ex-parte applications and mislead the court into granting orders that would not have been made if the other parties had been heard. Order 32 rule 6 simply states: ex parte

I find that Order 42 rule 13 Rules of Court 2012 is inapplicable here to limit the time for the Applicants to apply to set aside the impugned Order because it was never served on the Applicants. time in seeing to the Applicants filing this action to protect their interest. For convenient reference, I set out the wording of Order 42 rule 13, as follows: Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days

Suriyadi FCJ (as he then was) writing for the Federal Court in Malaysian International Trading Corp Sdn Bhd v RHB Bank Bhd [2016] 2 MLJ 457 made it abundantly clear that an ex-parte Order may be set aside pursuant to Order 32 rule 6 or under the inherent jurisdiction of the court. His Lordship (as he then was) opined as follows: Jurisdictionally, a court under O 32 r 6 of the RHC or under O 92 of the RHC, may set aside any ex parte order. In Loo Chay Meng v Ong Cheng Hoe (Gamuda Sdn Bhd, garnishee) [1990] 1 MLJ 445 at pp 446 447, VC George J held that the court could even set aside an ex parte final order pursuant to O 32 r 6 of the RHC. This provision has general application to general applications and proceedings in chambers, and unless there were specific rules elsewhere that do away with the said rules of general application, it was applicable in an ex parte garnishment proceedings. In fact VC George J had no hesitation in holding that even if O 32 r 6 were inapplicable the court still was equipped with inherent jurisdiction to prevent injustice SAMAN PEMULA NO: WA-24NCvC-2583-07/2024 44. In PECD Bhd & Anor v AmTrustee Bhd and other appeals [2010] 5 MLJ 357, the Court of Appeal decided that failure to make full and frank disclosure in an ex-parte application is sufficient grounds for the ex-parte Order to be set aside. It was held as follows: I am in agreement with decision of the learned judge on this issue. What transpired in the first OS at the High Court, and the decision of the Court of Appeal in respect of the appeal therefrom, were certainly material facts which should have been disclosed by the appellants in applying for the ex parte order in the second OS. The failure to make such full and frank disclosure renders the ex parte order obtained liable, and rightly, set aside

Applying the ratio of Malaysian International Trading Corp Sdn Bhd (supra) and PECD Bhd (supra) to th finding that the Respondent, through its employees, was acting in breach of its fiduciary duties in its conduct of the 57 Condos which are trust properties and attempting to use the impugned Order to ratify its breaches, it is clear that the impugned Order (and its amended version too) ought to be set aside.

The above authorities are sufficient to justify setting aside the impugned Order as it is an ex-parte order. For completeness, I am of the view that had it been an order obtained after an inter-parte hearing without full disclosure of the scheme of paying a large it would also be legally justified to set it aside. There are two authorities relevant to this additional point. SAMAN PEMULA NO: WA-24NCvC-2583-07/2024 47. Eighty years ago, in Cheah Lean Guan (A bankrupt) v Kalrm Palaniappa [1935]1 MLJ 31, Whitley J had occasion to consider and decided that the court has the jurisdiction to set aside a judgment obtained by fraud. The learned judge held that the proper remedy is to bring a fresh action and not to seek a rehearing. His Lordship found in favour of the beneficiaries who applied to set aside the impugned judgment. The relevant parts of his judgment are as follows: on to set aside a judgment obtained by fraud in a subsequent action brought for that purpose, the proper remedy being an original action and not a rehearing. One of the earliest pronouncements of this principle was made by Lord Coke in the Duchess of Kingston's Case (1776) 2 Sm LC 12th Edition at page 762 where he observed that acts of the highest judicial authority though not to be impeached from within yet are impeachable from without for although it is not permitted to show that the court was mistaken it may be shown that they were misled. proceedings of courts of justice. It avoids all judicial acts, was obtained by collusion between the parties, by a fraud on the Court in concealing the true position of affairs and by secrecy in obtaining the judgment behind the backs of those whom the

The now 80 years old judgment of Whitley J in Cheah Lean Guan (A bankrupt) v Kalrm Palaniappa (supra) was affirmed 71 years later by the Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur [2016] 3 MLJ 1 where it was reiterated that a judgment obtained by fraud may be impeached and set aside in a fresh action. It was held as follows: present case is to impeach or set aside the earlier judgment which was obtained by the appellant against the respondents at the Kuantan High Court on 25 July 2007 witness during that earlier trial. The claim is by way of a fresh action based on fresh evidence which could not have been obtained at the earlier trial. The law recognises this type of cause of action. Section 44 of the ay show that any judgment, order or decree which is relevant under ss 40, 41 or 42, and which has been proved by the adverse party, was delivered by a court not competent to deliver it or was obtained by fraud This provision is an exception to the doctrine of res judicata as provided for under s 40 of the same Act. The impeachment action must be by way a fresh action, not in the same action where the impugned earlier judgment was made. As early as 1935, Whitley J in the Penang High Court case of Cheah Wong Nyan and Cheah Sin Kee v KALRM Palaniappa; Cheah Lean Guan; official assignee of the property of Cheah Lean Guan a bankrupt [1935] 1 MLJ 31, relying on English authorities of Cole v Langford [1898] 2 QB 36; Priestman v Thomas [1884] 9 PD 270 Case 2 Smith LC (13th Ed) 644 and Patch v Ward (1867) LR 3 Ch App 203 ruled obtained by fraud in a subsequent action brought for that purpose, the proper remedy being an original action and not a re-

Based on th finding of facts that the Respondent had planned from the outset to appoint the Property Agent as the sole agent and to pay him more than RM7.6million out of the sale , I find that the Applicants have also satisfied the legal requirements for the setting aside of an inter-parte Order on the ground of intention to defraud and deplete the Trust assets as evidenced by the contents of the impugned Order (see para 40 above) and the contents of Annexure 36 above) which was unequivocally agreed by the Respondent. The renovation costs

Lastly, whilst it is true that Clause 7.3 of the Deed of Trust does mention that the trustee is empowered to sell trust properties, it is not an unfettered power. Clause 7.3 must be read with trite law that a trustee is a fiduciary who must always act in the best interest of the beneficiaries. As the finding of facts made above have shown that the Respondent had acted with serious lack of probity, it is not open to the Respondent which is a trust company appointed by the court to be trustee of the Trust to callously point its finger at Clause 7.3 and claim to have unfettered power to sell trust properties at a great loss to the beneficiaries of the Trust. Conclusion 51. Based on the finding of facts stated above, there are in fact sufficient grounds for the Applicants to seek an order to remove the Respondent as trustee of the Trust. However, since it is not specifically prayed for, this Court would not resort to the omnibus prayer to issue such an order. T aside of the impugned Order dated 20th June 2023 in OS No.1904 is allowed. Logically, it follows that its amended version is set aside too.

Lastly, consequential orders are necessary since the sham Respondent could not be trusted to sell the 57 Condos by way of private treaty or through any property agent. The way forward is for this Court to order that any sale of the 57 Condos must be conducted by way of public auction or open tender at market price, under the supervision of solicitors and a property valuer with the assistance of licensed estate agents to market those properties; to ensure transparency and the best sale price is obtained for the benefit of the beneficiaries. A final note: the Originating Summons the slip rule in Order 20 rule 11 Rules of Court 2012. Date of Decision: 28th April 2025. Gan Techiong Judicial Commissioner High Court of Malaya at Kuala Lumpur (NCvC9) Counsel for the Applicants: Rabia binti Abd Halim (Siti Zabedah Kasim with her) SOLICITORS FOR THE APPLICANTS: MESSRS RABIA, FARIHAN & SURES Advocates & Solicitors Suite 33-01, 33rd Floor, Menara Keck Seng, 203, Jalan Bukit Bintang, 55100 KUALA LUMPUR. Counsel for the Respondent: Kenneth Koh (Afiq Iskandar & Moo Jie Ying (PDK) with him) SOLICITORS FOR THE RESPONDENT: MESSRS XAVIER & KOH PARTNERSHIP Advocates & Solicitors J-2-13, Solaris Mont Kiara, Jalan Solaris, 50480 KUALA LUMPUR.

Malaysian International Trading Corp Sdn Bhd v RHB Bank Bhd [2016] 2 MLJ 457.

PECD Bhd & Anor v AmTrustee Bhd and other appeals [2010] 5 MLJ 357.

Cheah Lean Guan (A bankrupt) v Kalrm Palaniappa [1935]1 MLJ

31.

Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1.

Order 32 rule 6 Rules of Court 2012.

Order 42 rule 13 Rules of Court 2012.

Order 20 rule 11 Rules of Court 2012