1. ) Lee Shuzhen v Lee Chew Lian (BA-24NCvC-807-07/2021)

LEE SHU ZHEN [No. K/P: 880706-56-6304]

LEE SENG YAO [No. K/P: 890831-14-6439]

LEE SHU YING [No. K/P: 900926-14-6876]

LEE SENG HIM [No. K/P: 920601-14-5523]

WONG LAI YEE [No. K/P: 590725-10-6252] (Bertindak Sebagai Waris-waris kepada Harta Pusaka LEE CHEW LAN, simati) …PLAINTIF-PLAINTIF DAN LEE CHEW LIAN [NO. K/P: 550522-10-6272] (Disaman dalam kapasiti sebagai Wasi dan Pemegang Amanah Harta Pusaka LEE CHEW LAN, Simati) …DEFENDAN GROUNDS OF JUDGEMENT

The Plaintiffs, in this case, have filed Originating Summons (enclosure 1) on 15.07.2021 for the following orders, inter alia, - “a. Perintah ex-parte bertarikh 06.01.2021 yang diperolehi oleh Defendan di bawah Saman Pemula No. WA-32Ncvc-2134-11/2019 (“Saman Pemula Tersebut”) diketepikan; b. Pindaan Aset Dan Liabiliti Lee Chew Lan, Simati yang difailkan oleh Defendan di Mahkamah Tinggi Kuala Lumpur di bawah Saman Pemula Tersebut pada tarikh 08.01.2021 diketepikan; c. Defendan menyerahkan Geran Hakmilik Tanah Asal iaitu Hakmilik Strata No. PN 92798/M3/9/295 No. Lot 62207 Seksyen 40 Bandar Petaling Jaya Daerah Petaling Negeri Selangor kepada Plaintif-Plaintif pertama, ke-2, ke-3, dan ke-4 dalam tempoh 7 hari daripada tarikh perintah ini; d. Defendan membayar balik kepada harta pusaka Lee Chew Lan, (Simati) jumlah RM40,000.00 dan SGD21,000.00 dalam tempoh 7 hari daripada tarikh perintah ini; e. Defendan membayar balik dan/atau menyerah balik kepada harta pusaka Simati apa-apa wang atau aset lain yang telah disalah-ambil atau disalah-gunakan oleh Defendan daripada harta pusaka Simati dalam tempoh 7 hari daripada tarikh perintah ini; f. Defendan mengikrarkan suatu Afidavit yang mengekshibitkan suatu inventori dan akaun sepenuhnya berkenaan dengan segala harta alih dan takalih serta hutang dan tanggungan harta pusaka Simati dan menyerahkannya kepada Mahkamah yang mulia ini dan Plaintif-Plaintif dalam tempoh 14 hari daripada tarikh perintah ini; g. Defendan membayar segala hutang dan tanggungan harta pusaka Simati yang masih tertangguh dalam tempoh 30 hari daripada tarikh perintah ini dan selepas itu, mengagihkan dan melepaskan segala aset-aset harta pusaka Simati kepada Plaintif-Plaintif selaku wasi-wasi di bawah Wasiat Simati bertarikh 9.4.2019 (Wasiat tersebut) mengikut terma-terma Wasiat tersebut sehingga selesainya penagihan tersebut dalam tempoh 60 hari daripada tarikh perintah ini.”

On 02.11.202, the Plaintiffs filed a Notice of Application (enclosure 12) under Order 3 rule 5 of the Rules of Court 2012, for the following orders, inter alia, - “a. suatu perintah bahawa masa dilanjutkan untuk pihak Plaintif-plaintif memfailkan dan menyerahkan Saman pemula bertarikh 15.07.2021 ke atas pihak Defendan sehingga tempoh empat-belas (14) hari daripada tarikh perintah ini; b. pemfailan Saman Pemula tersebut di Mahkamah dan penyerahan Saman Pemula tersebut ke atas pihak Defendan terdahulu sebelum ini dianggap sebagai teratur.”

Enclosure 12 was heard and decided on 21.04.2022. The Plaintiffs have now appealed against the said decision. Enclosure 1 is still pending the hearing on 18.08.2022.

At the hearing of enclosure 12, the Plaintiffs applied to amend orally prayer 1 of said enclosure. The Defendant had no objection and the amendment was allowed. Prayer 1 of enclosure 12 shall read as follows: “suatu perintah bahawa masa dilanjutkan untuk pihak Plaintif-plaintif memfailkan dan menyerahkan tuntutan di perenggan satu Saman Pemula bertarikh 15.07.2021 ke atas pihak Defendan sehingga tempoh 14 hari daripada tarikh perintah ini.”

The Defendant was the executor and trustee named in the Will of the deceased, Lee Chew Lan (unmarried and died on 19.08.2019). Grant of Probate was issued by the High Court at Kuala Lumpur (the Probate OS court) under Originating Summons WA-32NCVC-2134- 11/2019 (the said Probate OS) on 06.12.2019.

The beneficiaries under the said Will are the Plaintiffs, Lee Chew Nam (brother of the deceased), the Defendant (the sister of the deceased), Yeong Win-ni and Yeong Wei Loon. They are the deceased’s brother, sister, sister-in-law, nephews and nieces.

Subsequent to the issuance of the Grant of Probate to the Defendant, on 17.12.2020 the Defendant filed an ex-parte application in the said Probate OS in the High Court at Kuala Lumpur to amend the list of assets and liabilities to include three (3) outstanding assets and liabilities of the deceased estate which was omitted during the application for the Grant of Probate. On 06.01.2021, the High Court at Kuala Lumpur allowed the ex-parte application to include the said assets and liabilities (the ex-parte order).

The said ex-parte order was served on the Plaintiffs on 31.05.2021. Dissatisfied with the ex-parte order, the Plaintiffs filed this suit in the High Court at Shah Alam to set aside the ex-parte order and other reliefs pertaining to the estate of the deceased. Subsequently, enclosure 12 was filed for an application for an extension of time to file the application to set aside the ex-parte order in enclosure 1.

At the hearing of enclosure 12, the learned counsel for the Defendant raised the issue that the ex-parte order to amend the list of assets and liabilities was granted in the said Probate OS action Originating Summons WA-32NCVC-2134-11/2019 in the High Court at Kuala Lumpur and therefore the Plaintiffs if they have any grievance about the ex-parte order, should file the application in the same Probate OS action in the High Court at Kuala Lumpur. The learned counsel submitted that the ex-parte order was granted by another High Court of concurrent jurisdiction. Therefore, this Court is not ceased with jurisdiction to make an order with regard to the ex-parte order and submitted that for this reason alone enclosure 12 ought to be dismissed. The learned counsel added, for that matter, even enclosure 1- application to set aside the ex-parte order ought to be filed in the said Probate OS court.

The learned counsel for the Plaintiffs replied that the said Probate OS action in the High Court at Kuala Lumpur was a unilateral proceeding which does not involve two parties and it was only to apply for Probate. The ex-parte order was obtained based on the Defendant’s allegation in her affidavit that the first Plaintiff had purportedly informed her that the first Plaintiff owed the deceased a sum of RM35,000.00. It is a clear breach of natural justice because the first Plaintiff was not given an opportunity to be heard before the ex-parte order was granted. Therefore, this Court can set aside such order under the inherent jurisdiction of the Court as well as under Order 32 rule 6 of the Rules of Court 2012. The learned counsel submitted in cases of breach of natural justice, the Plaintiffs can file a suit to challenge such orders in collateral proceedings. The learned counsel referred to the case of Ng King Chong v Ooi Kim Geik [2019] 2 MLJ 398 in support of his contention.

The learned counsel for the Plaintiffs also submitted that the Plaintiffs filed the application in enclosure 12 because the Defendant had raised the issue that the Plaintiffs had failed to set aside the said ex-parte order within 30 days after receipt of the order under Order 42 rule 13 of the Rules of Court 2012.

Upon perusal of enclosure 12, the affidavits filed therein and the submissions by both parties, I took the position that the Plaintiffs ought to have filed all the applications that they have filed in this Court, in the said Probate OS action in the High Court at Kuala Lumpur. My reasons are explained below.

The application for extension of time in enclosure 12 was predicated upon the fact that the application to set aside the ex-parte order in enclosure 1 had lapsed. Though enclosure 1 is still pending and only enclosure 12 was heard and dismissed, nevertheless in giving my reasons as to why the application for extension of time was dismissed, it is inevitable for me to discuss the position of the law to set aside an ex-parte order.

It is to be noted that the ex-parte order dated 06.01.2021 was heard before the Senior Assistant Registrar upon the application by the executrix of the deceased estate. It is a supplemental and/or additional order specifically made in the said Probate OS proceedings to amend the list of assets and liabilities of the Grant of Probate. The ex-parte order was served on the Plaintiffs. The Plaintiffs dissatisfied with the ex-parte order, ought to have filed an application to set aside the said order in the same Probate OS action in the High Court at Kuala Lumpur. Thus, if the Plaintiffs are out of time to file the application to set aside the ex-parte order as stated in enclosure 12, the said application ought to and rightly so should be filed in the said Probate OS action in the High Court at Kuala Lumpur being the original court that gave the ex-parte order.

The Plaintiffs’ arguments that they are not a party to the said Probate OS, and therefore the Plaintiffs could not set aside the ex-parte order, shall not be a reason. In my view, the Plaintiffs being the beneficiaries of the estate, have the locus to intervene in the said Probate OS at any stage and to apply to set aside the ex-parte order. In such a situation, the Plaintiffs are not restricted by a specific time frame to intervene and to set aside the said order. Hence, an application for an extension of time, in that case, may not be necessary.

It is my considered view, that the Plaintiffs should raise their disputes on the amended list of assets and liabilities and all of their grievances as to the Grant of Probate in the said Probate OS and not vide a collateral proceeding in this Court. I am supported in this view by Order 32 rule 6 of the Rules of Court 2012 and the Federal Court decision in the case of Lai Cheng Ooi v Lim San Peen & Anor and other appeals [2018] 5 MLJ 195; [2018] 7 CLJ 145 which would be addressed below.

Order 32 rule 6 of the Rules of Court 2012 states that ‘The Court may set aside an order made ex-parte.’ It is not mandatory for a party who has been served with an ex-parte order to appeal or to file a separate proceeding to impeach the ex-parte order. This was decided by the Court of Appeal in the case of Lai Cheng Ooi (f) (the executrix of the estate of Lee Tain Tshung @ Lee Thien Chiung, deceased) v Lim San Peen (liquidator for Naslei Enterprise Sdn Bhd) & Anor and other appeals [2017] 6 MLJ 218. The court held: “In this connection, we hasten to observe that any ex parte order is liable to be set aside by the party who had been served with such an order or by any party which is affected by such order. In setting aside such an order, the court is certainly not functus officio as the right of the party affected to be heard remains subsisting. It is not mandatory, as the appellant appears to suggest, to appeal or to file separate proceedings to impeach the ex-parte order. In summary, orders obtained in breach of the rules of natural justice can be set aside in the same proceedings or in collateral proceedings ex debito justitiae (see Selvam Holdings (M) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd; (BSN Commercial Bank (M) Bhd & Ors, interveners) [2000] 3 MLJ 201; [2000] 3 CLJ 16 (‘Selvam Holdings’).”

And, on appeal, the Federal Court in Lai Cheng Ooi v Lim San Peen & Anor and other appeals (supra) affirmed the decision of the Court of Appeal and held as follows: “Leave question 1 proposed that it was ‘the time-honoured and established principle of law that a High Court judge has no power or jurisdiction to set aside an order of another High Court judge regularly granted in the exercise of concurrent jurisdiction as enunciated in the classic Federal Court case of Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 be overruled’. But with respect, the principle that a judge has no power or jurisdiction to set aside an order of another judge of concurrent jurisdiction does not apply to ex parte orders. Any ‘order made ex parte may be set aside (see O 32 r 6 of the Rules of Court 2012 ) by the same judge or court which granted the ex parte order, or by a different judge of the same court which granted the ex parte order. For that clear position in law, we need only to refer to the recent decision of Malaysian International Trading Corp Sdn Bhd v RHB Bank Bhd [2016] 2 MLJ 457, where it was held by the Federal Court per Suriyadi FCJ, delivering the judgment of the majority, that ‘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’. Under O 32 r 6 of the Rules of Court 2012 , any judge of the same court has jurisdiction to set aside any ex parte order. ‘This is necessary in the interest of justice as the party who was not heard may wish to object to the order’ (Singapore Court Practice 2017 by Jeffrey Pinsler Vol 1 at para 32/3/4).” [emphasis added]

Hence, based on the Federal Court decision above, in this case, jurisdictionally this Court may set aside an ex-parte order, however, under Order 32 rule 6, the Probate Court in the High Court at Kuala Lumpur which gave the ex-parte order has the jurisdiction to set aside its own ex-parte order. To my mind, the Probate OS court which was the original court that heard and dealt with the ex-parte application would be fully equipped and would be the most suitable or appropriate forum to also deal with the Plaintiffs grievance, the purported breach of natural justice and to decide whether the ex-parte order ought to be set aside and particularly the application in enclosure 12, whether an extension of time ought to be granted. Further, it is also in the interest of justice for all parties to be before the same court because the said ex-parte order was a supplemental and/or additional order in the main probate action and as the amended list of assets and liabilities forms part of the Grant of Probate, the right of the party affected to be heard remains subsisting. Especially so, in this case, the said Probate OS is still a live issue since the Plaintiffs are challenging the supplemental order given by way of an ex-parte application.

Therefore, for the reasons stated above, I took the position that the application in enclosure 12 ought to be filed in the said Probate OS in the High Court at Kuala Lumpur and I ordered enclosure 12 to be dismissed with costs of RM2,000.00. Dated: 28th June 2022 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : Chong Joo Tian (Messrs JT Chong Associates) For the 1st-5th Defendants : Vilasini Chandrasekaran & Sumathi (Messrs Sumathi & Associates)