NG ANNIE v Ng Joo Mok Sebagai Pentadbir Tunggal De Bonis Non Bagi Estet Ng Swee Long (Si Mati) (WA-22NCvC-476-08/2023)

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NG MEE THIAM ... PLAINTIFFS

NG JOO MOK AS THE SOLE ADMINISTRATOR DE BONIS NON

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PRESTASI JUTA SDN BHD

HOW LAI PENG ... DEFENDANTS 30/04/2025 08:12:26 WA-22NCvC-476-08/2023 Kand. 114 GROUNDS OF JUDGMENT Introduction [1] Four applications were disposed by the Court on 20.2.2025; two each by the Plaintiffs and the Defendants. Following the pursuit of two appeals by the Plaintiffs, these Grounds of Judgment pertain to the decision by this Court in –

allowing the Defendants’ application in encl. 10 whereby prayer

was allowed i.e. Messrs. Christina Chia Law Chambers (‘CCLC’) is not allowed to continue to represent the Plaintiffs in this action in its entirety; and

dismissing the Plaintiffs’ application in encl. 35 for the determination of a question of law or construction of documents, which if answered in the affirmative, would result in the declaratory order as prayed in subparagraph 29(b) of the Statement of Claim dated 24.8.2023 (‘SoC’) to be allowed. The Cause Papers [2] The cause papers for the applications in question are as follows: The Defendants’ application to disqualify CCLC

Notice of Application dated 24.11.2023 (encl. 10);

the Defendants’ Affidavit In Support (‘AIS’) affirmed by its Director, Ng Joo Mok on 7.12.2023 (encl. 12);

the Plaintiffs’ Affidavit In Reply (‘AIR’) affirmed by Ng Annie on 21.12.2023 (encl. 14); and

the Defendants’ AIR affirmed by the same deponent on 4.1.2024 (encl. 16). The Plaintiff’s application for the determination of a question of law

Notice of Application dated 29.5.2024 (encl. 35);

the Plaintiffs’ AIS affirmed by Ng Annie on 5.6.2024 (encl. 36);

the Defendants’ AIR affirmed by its Director, Ng Joo Mok on 20.6.2024 (encl. 41);

the Defendants’ Notice of Intention to Use Affidavit in encls. 12, 16 and 37 dated 20.6.2024 (encl. 42); and

the Plaintiffs’ AIR affirmed by the same deponent on 2.7.2024 (encl. 43);

the Defendant’s AIR No. 2 affirmed by the same deponent on 16.7.2024 (encl. 50);

the Plaintiff’s AIR No. 2 affirmed by the same deponent on 2.8.2024 (encl. 58);

the Defendant’s AIR No. 3 affirmed by the same deponent on 22.8.2024 (encl. 61); and

the Plaintiff’s AIR No. 3 affirmed by the same deponent on 5.9.2024 (encl. 64). Background Facts [3] The salient facts as gleaned from the SoC are as follows. [4] The Plaintiffs, Ng Sean and the 2nd Defendant (‘D2’) are the lawful daughters and son of the late Ng Swee Long (‘Deceased’) who died intestate on 22.3.1969. [5] Letters of Administration for the Estate of the Deceased (‘Estate’) was taken out by his two wives, the late Eng Yee Keng and the late Koh Ai Choo (‘Original Administratix’). However, they passed away without completing the administration of the Estate and upon their death, D2 and one Ng Joo Hwang were appointed as joint administrators de bonis non of the Estate (‘Joint Administrators’). [6] The sole asset of the Deceased is all that piece of land held under E.M.R 4235 Lot 928 Mukim Petaling, Daerah Kuala Lumpur and Wilayah Persekutuan (‘Land’). [7] By an Agreement dated 21.6.1974 and a Supplementary Agreement dated 1.11.1978 entered into between Kong Lee Development Sdn Berhad (now known as Golden City Properties Sdn Berhad; ‘Developer’) and the Original Administratrix, and a further agreement vide a letter dated 17.6.1986 from Messrs. PG Lim & Co. to Messrs. ST Lee & Partners (these three agreements shall hereinafter collectively be referred to as the ‘JV Agreement’), the Developer agreed to, among others, construct residential houses and deliver vacant possession of six units of residential houses to the Estate upon the terms and conditions as contained in the JV Agreement. [8] Without consent of the Original Administratrix, the Developer proceeded to subdivide the Land into 21 separate individual lots with 21 individual titles (‘21 Titles’) without complying with the terms of the JV Agreement and transferred 15 individual titles to the Developer’s name (‘15 Titles’) without giving any valuable consideration to the Estate. [9] The Joint Administrators then filed an action against the Developer for the recovery of the 21 Individual Titles vide Kuala Lumpur High Court Civil Suit No. 22NCvC-430-04/2012 (‘Suit 430’). CCLC acted for the Estate in Suit 430. A Consent Order was entered on 18.9.2012 (‘Consent Order’) whereby a sum of RM575,000.00 was ordered to be paid to the Developer for the return and transfer of the 21 Titles to the Estate or nominees and the release of all parties from all obligations in connection with the JV Agreement and others relating to the Land. [10] Not all the beneficiaries of the Estate were prepared to make contributions towards the fulfilment and compliance of the Consent Order. The Plaintiffs, D2 and Ng Sean were among the beneficiaries who agreed to make contributions to secure the return of the 21 Titles to the Estate in accordance with the terms of the Consent Order. [11] 10 beneficiaries of the Estate (‘Outgoing Beneficiaries’) decided to sell their entitlement shares to the Plaintiffs, D2 and Ng Sean (‘Remaining Beneficiaries’). CCLC prepared the agreements for the Remaining Beneficiaries to purchase the Outgoing Beneficiaries’ interest in the Estate. [12] D2, on behalf of the Plaintiffs, and Ng Sean executed the Sale of Shares Entitlement Agreements (‘SSEA’) with the Outgoing Beneficiaries between 22.4.2013 and 27.8.2013 as tabulated in paragraph 14 of the SoC (see too, exhibit “NJM-1” in the AIS). Upon execution of the SSEA, the Plaintiffs, D2 and Ng Sean proceeded to pay the agreed sum of RM575,000.00 to the Developer for the return of the 21 Titles to the Estate. [13] It was also agreed as part of the arrangement for the purchase of the Outgoing Beneficiaries’ share entitlements in the Estate that Ng Joo Hwang be removed as Joint Administrators leaving D2 to be the sole Administrator De Bonis Non of the Estate. By a court order dated 22.1.2016, D2 became the sole Administrator of the Estate of the Deceased and he was named as D1 in the instant suit in this capacity. [14] As regards the 15 Titles, the Plaintiffs, D2 and Ng Sean had agreed to use D3 to take the transfer and hold the 15 Titles on trust for the Estate. The particulars of the 15 Titles which were registered in D3’s name and of the remaining six individual titles in D1’s name are as set out in Appendix 1 and Appendix 2, respectively, in the SoC. [15] The Plaintiffs alleged, among others, that D1 has failed to administer the Estate in a fair and equitable manner for the benefit of the six beneficiaries of the Estate and had only considered the interests of D2 and D4 who are not lawful beneficiaries of the Estate. In addition, the Plaintiffs claimed that D1 failed to provide proper accounts to them. Basically, the Plaintiff’s cause of action is for breach of trust and unjust enrichment. [16] In paragraph 29 of the SoC, the relies prayed are, among others, as follows:

A declaration that D3 holds the 15 Titles upon trust absolutely for the Estate;

A declaration that each of the Plaintiffs is entitled to 1/6 shares in the 21 individual lots as set out in Appendix 1 and Appendix 2 of the SoC and an order that the proceeds from the sale deriving therefrom be distributed 1/6 each to each of the Plaintiffs, D2 and Ng Sean;

An injunction to restrain the Defendants from transferring any of the 21 individual lots or any monies or proceeds from sale therefrom without the consent of the Plaintiffs;

An order that the grant of the Letters of Administration De Bonis Non for the Estate dated 14.12.2007 (as amended vide the Court Order dated 21.1.2016) issued under Petition No. S3-31-655- 2007 be amended to include P1 as Joint Administrator De Bonis Non for the Estate or alternatively, an order that D1 be removed as the sole Administrator De Bonis Non for the Estate and the 1st Plaintiff (‘P1’) and 2nd Plaintiff (‘P2’) be replaced as the Joint

An order for account and inquiry as to all monies received by all the Defendants directly or indirectly from the 21 individual lots. [17] In respect of the prayer in subparagraph 16(a) above, this was allowed pursuant to the Plaintiffs’ application under O. 14A and O. 32, r. 16 of the Rules of Court 2012 (‘RC 2012’) in encl. 33 as the Defendants have admitted that D3 holds the 15 Titles as trustee for the Estate (see paragraph 7 of the Defence and Counterclaim; paragraphs 6 and 9 in the Defendants’ AIR (encl. 37); and paragraph 16 of the Defendants’ Written Submission). Consequently, judgment was entered for the Plaintiffs in respect of subparagraph 29(a) of the SoC on the basis of an admission of facts pursuant to O. 27, r. 3 RC 2012. [18] As regards the prayers in subparagraph 16(d) above, on 20.2.2025, the Plaintiffs’ counsel confirmed that, based on paragraph 34 of the Plaintiffs’ Written Submission, these prayers are withdrawn for failure to comply with the mandatory provision in O. 72 of the RC 2012. P1 and P2 had since proceeded to file the required citation against D1 and D2 and a separate suit against D2 in the Kuala Lumpur High Court, namely Civil suit No. WA-22NCvC-135-02/2024 (‘Suit 135’). [19] In so far as the prayer in subparagraph 16(b) above is concerned, D2 denies that the Plaintiffs are entitled to a 1/6 share in the Estate. D2 takes the position that as a result of the outright purchase of the entitlements of the Outgoing Beneficiaries, he is now entitled to a

67.26% share in the Estate, while the Plaintiffs are each entitled to 6.548% share in the same. I. The Defendants’ application to disqualify CCLC (encl. 10) [20] This application was made pursuant to Rules 3 to 5 and 28 of the Legal Profession (Practice and Etiquette) Rules 1978 (‘LPPE Rules 1978’) and/ or O. 92, r. 4 of the RC 2012. [21] Rules 3 to 5 and 28 of the LPPE Rules 1978 provide as follows: “3. Advocate and solicitor not to accept brief if embarrassed

An advocate and solicitor shall not accept a brief if he is or would be embarrassed.

An embarrassment arises -

where the advocate and solicitor finds he is in possession of confidential information as a result of having previously advised another person in regard to the same matter;

(ii) where there is some personal relationship between him and a party or a witness in the proceedings.

No advocate and solicitor to accept brief if professional conduct likely to be impugned No advocate and solicitor shall accept a brief in a case where he knows or has reason to believe that his own professional conduct is likely to be impugned.

No advocate and solicitor to accept brief if difficult to maintain professional independence

No advocate and solicitor shall accept a brief if such acceptance renders or would render it difficult for him to maintain his professional independence or is incompatible with the best interest of the administration of justice.

(i) An advocate and solicitor who has at any time advised or drawn pleading or acted for a party in connection with the institution or prosecution or defence of any suit, appeal or other proceedings shall not act, appear or plead for the opposite party in that suit, appeal or other proceedings.

(ii) An advocate and solicitor shall not act unless the consent of the first party for whom the advocate and solicitor acted is obtained in writing and the advocate and solicitor is not embarrassed by so acting. …

Advocate and solicitor not to appear in a case where he is a witness

An advocate and solicitor shall not appear in Court or in Chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardising his client's interests.

An advocate and solicitor shall not appear before an appellate tribunal if in the case under appeal he has been a witness on a material and disputed question of fact in the Court below.

These rule does not prevent an advocate and solicitor from swearing or affirming an affidavit as to formal or undisputed facts in matters in which he acts or appears.”. [22] The Defendants contended that, based on the particulars in the Bill dated 30.8.2013 issued by CLCC to D2, CCLC acted for D2 in advising and negotiating the SSEA and in preparing and attending to the execution of the same between D2 and the Outgoing Beneficiaries. Hence, CLCC has full knowledge of what D2 was buying from the Outgoing Beneficiaries and whether or not his share in the Estate was increased by the purchase of the Outgoing Beneficiaries' interests in the same. [23] D2’s affirmations on CCLC’s role, and in particular Ms. Christina Chia, at the material time are in paragraphs 12 - 14 of the AIS. In paragraph 16 of the AIS, D2 averred that upon being advised by his solicitors, Ms. Christina Chia may be called as a witness in this action. [24] Therefore, the Defendants argued that it is untenable for CLCC to continue acting for the Plaintiffs due to the conflict of interest that exists. To continue to do so after CLCC has acted for D2 in the very transaction that forms part of the subject matter in the present case is said to contravene Rules 3 and 5 of the LPPE Rules 1978. [25] The Defendants relied on the decisions in Kasturi Nambiar Krishnan v Steven Sebastian; Sivasankar Mohanadass (Party Cited) [2023] 7 CLJ 448, Ng Siew Lan v John Lee Tsun Vui & Anor [2017] 2 CLJ 245, Quah Poh Keat & Others v Ranjit Singh a/l Taram Singh & Others [2009] 4 MLJ 293 and Perak Hanjoong Simen Sdn Bhd v Perindustrian Tenaga Mix Sdn Bhd [2008] 6 CLJ 652 to support their application. [26] In opposing the application, the Plaintiffs argued that –

Rule 3 of the LPPE Rules 1978 is not applicable as there is no embarrassment or conflict for CCLC to act for the Plaintiffs. CCLC had previously acted for the Estate, and not D2 in his personal capacity in Suit 430. The preparation of the SSEA was completed long ago and none of the Outgoing Beneficiaries had any legal representations. Messrs. ST Lee had since been acting for the Estate and the Defendants on matters relating to the Estate. CCLC had been acting for the Plaintiffs since the beginning of 2023 and liaising with Messrs. ST Lee without any objection from D2 or his then solicitors;

there is no impugnment of CCLC’s professional conduct nor is it difficult for CCLC to maintain professional independence by acting for the Plaintiffs. CCLC ceased to act for the Estate after completion of the SSEA. CCLC is not in breach of Rules 4 and 5 of the LPPE Rules 1978;

there is no necessity to have witnesses from CCLC in this claim as it has no pecuniary interest that is relevant to the matter at hand. The Defendants have failed to produce any evidence of pecuniary interest that is relevant to the present suit. It is not in every case where the advocate and solicitor is a potential witness that he should be removed or recused causing the litigant to be denied the fundamental right of representation by counsel of his choice (see Perbadanan Pengurusan 3 Two Square v 3 Two Square Sdn Bhd [2018] 10 MLJ 648). All the terms of the settlement between the Outgoing Beneficiaries can be seen in the SSEA and no one from CCLC has to be a witness. Thus, Rule 28 of the LPPE Rules 1978 is not applicable to CCLC;

based on the case authority of Dato’ Azizan bin Abdul Rahman v Pinerains Sdn Bhd [2021] MLJU 1414 (CA), the onus is on the Defendants to prove that CCLC is in possession of confidential information which is relevant to the Plaintiffs’ present suit. However, the only evidence produced by the Defendants are copies of the SSEA, CCLC’s Note of Charges dated 30.8.2013 and 3.9.2013 and receipt dated 11.12.2015 in exhibits “NJM-1” and “NJM-2” of the AIS. Moreover, CCLC is not in possession of any confidential information such that an embarrassment will arise (see Mirza Mohamed Tariq Beg bin Mirza HH Beg v Margaret Low Saw Lui & Ors [2009] 4 MLJ 671 (CA) on what is confidential and embarrassment for disqualification of solicitors and Tan Eng Hong Holdings Sdn Bhd & Ors v Tan Keen Keong @ Tan Kean Keong & Ors [2022] MLJU 1211). All information relating to Suit 430 and the SSEA are made available to all remaining beneficiaries, including the Plaintiffs;

the Plaintiffs’ claim is for, among others, the declaration of their 1/6 entitlement in accordance with the provision of the Distribution Act 1958 (Revised 1983) [Act 300] (‘DA 1958’). The SSEA are of no relevance to the Plaintiffs’ claim;

D2 has no power in his personal capacity to dictate the share entitlement of the Remaining Beneficiaries and any such action would be illegal, null and void as it goes against the laws pertaining to intestacies; and

CCLC issued the bill in D2’s name because the estate was still under the joint administration of D2 and Ng Joo Hwang (see D2’s letter to CCLC dated 11.12.2015 in exhibit “AN-2”, encl. 14). [27] I have considered the parties’ submissions and, in my view, –

one of the central issues to be determined in this case is whether each of the Plaintiffs is entitled to 1/6 share in the 21 individual lots as set out in Appendix 1 and Appendix 2 of the SoC and that a distribution in that share is to be made to them. D2 averred that, as a result of the outright purchase of the entitlements of the Outgoing Beneficiaries, he is now entitled to a 67.26% share in the Estate while the Plaintiffs are each entitled to 6.548% share in the same (see paragraph 12, encl. 16 and paragraph 5.3 in Messrs. S.T. Lee & Partners’ letter to CCLC dated 27.6.2023 in exhibit “NJM-3”). On the other hand, the Plaintiffs allege that D2 acted for them and the other Remaining Beneficiaries when he entered into the SSEA. Hence, the fact as to whether D2 acted for himself or for the Remaining Beneficiaries in executing the SSEA is in dispute;

in item 2(d) of CCLC’s Note of Charges dated 30.8.2013 regarding “Advisory on the Estate of Ng Swee Long”, the sum of RM100,000.00 was billed to D2 for “Negotiating with Ng Joo Hwang on your behalf on the settlement sums and terms with the selling beneficiaries and attending meetings with Ng Joo Ngan, Ng Joo Pong on a number of occasions to negotiate on the terms. Attending to Ng Kian and her husband, Ms Ti, Ng Joo Ngan, Ng Joo Pong, Ng Joo Hwa and Ng Joo Hwang to convince them to accept our proposed terms to sign separate agreement and to execute renunciation or their rights before they received full consideration from you” and for drafting and attending to the signing of all SSEA. CCLC billed D2 in his personal capacity and not as Administrator of the Estate. There is no doubt that CCLC acted for D2 in the SSEA that were entered into with the Outgoing Beneficiaries. Hence, the solicitor from CCLC would be an important witness to assist the Court to come a determination on whether D2 bought out the Outgoing Beneficiaries’ interests in the Estate on his own behalf or, on behalf of himself and the other Remaining Beneficiaries when D2 executed the SSEA. The solicitor from CCLC is central to the disputed and material facts in the present case and would have reason to believe that she will be a witness in respect of an important question of fact. To continue acting for the Plaintiff in these circumstances is impermissible under Rule 28(a) of the LPPE Rules 1978 and

CCLC is in an embarrassing position as they appear to have given contradictory advice to D2. If it is true that the SSEA are ineffective to transfer the putative shares of the outgoing beneficiaries to D2, CCLC could be potentially liable to D2 for wrongful advice. The Plaintiffs’ solicitors should not be allowed to raise an argument which is contrary to their advice, or they must not act any further in this matter. To allow CCLC to continue to act for the Plaintiffs, after having acted for D2 in a transaction that forms part of the subject matter of the instant suit, would be in contravention of Rule 5(b)(i) of the LPPE Rules 1978. [28] Therefore, prayer (b) in encl. 10 was allowed i.e. CCLC is not allowed to continue to represent the Plaintiffs in this action in its entirety. It would be incompatible with the best interest of the administration of justice for CCLC to continue acting for the Plaintiffs when a solicitor from CCLC will be a witness in the trial. The Defendants have established its case for disqualification of CCLC under Rules 5 and 28 of the LPPE Rules 1978. II. The Plaintiff’s application for the determination of a question of law (encl. 35) [29] As the Deceased died intestate and the DA 1958 is applicable to an estate under intestacy, the Plaintiffs had filed the application in encl. 35 and posed the following single question for the determination of this Court: “Whether the remaining six (6) remaining beneficiaries of the Estate of the late Ng Swee Long, as listed in the Amended List of Beneficiaries attached together with the Grant of Probate De Bonis Non as Appendix 3 to the Statement of Claim and shown hereto as Annexure A, namely the Plaintiffs, Ng Annie, Ng Guat Keow, Lucy Ng and Ng Mee Thiam, Ng Sean and the 2nd Defendant, Ng Joo Mok are entitled to 1/6 shares each in the Estate of the late Ng Swee Long in accordance with Section 6(1) of the Distribution Act, 1958.” (‘Question of Law’). [30] By way of paragraph (b) in encl. 35, the Plaintiffs prayed that where the answer to the Question of Law above is in the affirmative, then a declaratory order in prayer 29(b) of the SoC is to be allowed with costs accordingly. [31] The provisions cited in encl. 35 are O. 14A, r. 1; O. 33, rr. 2 and 5; O. 34; and O. 92, r. 4 of the RC 2012 and sub-s 6(1) of the DA 1958 [Act 300] on the succession to intestate estates. [32] As submitted by the Plaintiffs, the law in relation to O. 14A of the RC 2012 is trite – a matter may be disposed of summarily by this Court if it only involves matters of construction of documents and/ or questions of law, and there are no disputes of facts between parties. O. 14A, r. of the RC 2012 is reproduced below: Determination of questions of law or construction (O. 14A, r. 1)

1.

The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that –

such question is suitable for determination without the full trial of the action; and

such determination will finally determine the entire cause or matter or any claim or issue therein.

On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. …”. [33] In Thein Hong Teck & Ors v Mohd Afrizan bin Hussain and Anor [2012] 2 MLJ 299, the Federal Court held that the procedure under O. 14A RC 2012 may only be resorted to if there is no dispute by the parties as to the relevant facts, or that the court, upon scrutinising the pleadings concludes that the material facts are not in dispute and where the issue of fact interwoven with legal issues raised, it will be undesirable for the court to split the legal and factual determination for to do so would in effect be to give rulings in vacuo or on a hypothetical ruling, which the court will not do (see too the case authorities which were relied upon by the parties, namely, Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2008] 2 MLJ 812, Low Chee & Sons Sdn Bhd & Anor v Extreme System Sdn Bhd & another Appeal [2011] CLJU 1944, MBF Holdings Berhad & Anor v Loy Teik Ngan & Anor [2015] 3 MLRA 42, Dato’ Sivanathan a/I Shanmugam v. Artisan Fokus Sdn Bhd [2016] 3 MLJ 122,and Director of Forests, Sarawak & Anor v. Racha ak Urud @ Peter Racha Urud & Ors and other appeals [2017] 4 MLJ 42). [34] The Plaintiffs submitted that the Question of Law is suitable to be determined under O. 14A RC 2012 as –

the only question of law which requires judicial determination by this Court is on the entitlement of the six remaining beneficiaries of the Estate as shown in the Amended List of Beneficiaries in Annexure A vide an Order of the court dated 13.6.2016, which is enclosed to the Notice of Application in accordance with sub-s 6(1) of the DA 1958;

there is no dispute of material facts upon which the Question of Law is based. The following are among the undisputed facts in the pleadings of the present suit:

that the Deceased died intestate on 22.3.1969;

(ii) that there are six remaining beneficiaries of the Estate of the Deceased as stated in the Amended List of Beneficiaries;

(iii) that the sole asset of the Deceased are the 21 subdivided lands, 15 individual lots which are registered in the name of D2 as shown in Appendix 1 of the SoC and the remaining six individual lots which are registered in the name of D2 in his capacity as sole Administrator of the Estate as shown in Appendix 2 of the SoC; and

(iv) that D2 is the sole Administrator De Bonis Non of the Estate and is named as D1 in this capacity in the present suit. The administration of the Estate has not been completed to date;

the alleged dispute of fact on whether D2 purchased the shares of the Outgoing Beneficiaries in his personal capacity is irrelevant because the Deceased died intestate and the provisions of the DA 1958 then become operative (see Pemungut Duti Setem v. Lee Koy Eng [2022] 3 CLJ 252). It is impossible for D2 to acquire the shares of the Outgoing Beneficiaries in his personal capacity as it is trite law that a beneficiary of an intestate estate has no interest in the estate to pass until the completion of the administration of the estate (see Chor Phaik Har v. Farlim

the interests of all the Outgoing Beneficiaries which had been relinquished vide the SSEA are passed by operation of law to the six remaining beneficiaries of the Estate as stated in the Amended List of Beneficiaries. [35] The Plaintiffs drew support from the decision of the Court of Appeal in Lim Sok Wah v Lim Boon Cheow & Anor (administrators for the estate of Lim Theng Hoe, deceased) and another appeal [2021] 6 MLJ in submitting that D1, as the sole Administrator De Bonis Non of the Estate had to administer the Estate in accordance with the “… terms of the grant of letters of administration … the administration oath that they will ‘administer the estate and effects of the deceased and distribute the residue of his estate and effects according to law’ (see O 71 r 33 of the Rules of Court 2012) and by the Administration Bond that they will ‘administer according to law the moveable and immoveable property of the deceased’ (see O 71 r 34 of the Rules of Court 2012 and s 35 of the Probate and Administration Act 1959 (Act 97)), the law being the law on intestacy under the Distribution Act.”. [36] After giving due consideration to the affidavit evidence and submissions by the parties, I was not persuaded by the Plaintiffs’ submission that the suit can be disposed without a trial and by merely answering the Question of Law for the following reasons:

This is not a case where there are absolutely no facts in dispute and hence, makes it suitable to be summarily determined on the Question of Law. The Plaintiffs alleged that D2 acted on their behalf when purchasing the shares, and as such, all the remaining beneficiaries have an equal share in the Estate. On the other hand, D2 claimed that he purchased the shares of the Outgoing Beneficiaries in his personal capacity. D2 relied on the SSEA which he alleged do not state that he acted on behalf of the Plaintiffs.

The Defendants contended that the Plaintiffs have not provided any evidence that they contributed any sum of money towards the purchase of the shares under the SSEA. In meetings attended by the beneficiaries on 18.9.2011 and 8.9.2012 the attendees agreed that the beneficiaries who did not contribute to the redemption of the 15 Titles would have a reduced share in the Estate. Further, during the negotiations for the sale of the shares of the Outgoing Beneficiaries, the daughter of Ng Kian, namely Ti Chu Ann who is a lawyer, wrote an email to CCLC and also forwarded the same to D2 and the other beneficiaries stating that the sale of shares was to D2 personally, without mentioning that he was acting on behalf of the Plaintiffs. CCLC themselves, vide their e-mail dated 19.5.2014 said that the sale of the shares was with D2, without mentioning that D2 represented the Plaintiffs.

One of the Outgoing Beneficiaries, Ng Joo Hwang, by an e-mail dated 10.9.2015 to CCLC stated that D2 is personally responsible for the payment of the balance price under the SSEA. Further he stated that in consideration of granting D2 an extension of time, he imposed penalties on D2 should D2 fail to settle by the extended date. D2 then wrote to CCLC on 16.12.2015 giving his personal undertakings to complete the SSEA and the penalties to be incurred by him should he fail to do so (see exhibit “NJM-6”, encl. 61).

It is the Defendants’ case that CCLC acted for D2 in his personal capacity in respect of the SSEA and billed him for those services rendered in his personal capacity and a receipt was issued to D3 for the balance purchase price paid under the SSEA. There is no evidence that D3 paid this money on behalf of the Plaintiffs. At all material times, D3 is a company owned and controlled by D2.

The SSEA were prepared by the Plaintiffs’ solicitors who was also acting for D2 in the said transaction. D2 averred that the Plaintiffs’ solicitors advised him that the agreements had the effect of transferring the putative shares to him, that he negotiated with the outgoing beneficiaries with regard to the Agreements and that they then prepared the same. It is incongruous for CCLC to now argue that the SSEA do not have the effect as per their advice when acting for D2. If the intention was for the Outgoing Beneficiaries to transfer their putative shares to the Estate and not to D2, the Agreements would have expressly stated as such.

The SSEA are all identical save for the identities of the respective Outgoing Beneficiaries and one of them dated 22.4.2013 is between D2 and Ng Joo Hwang, who were then the Joint Administrators while the rest of the Agreements reveal the following:

the parties are the two Administrators and the Outgoing Beneficiary but the purchase of the share is solely by D2 (see Clause 1.1);

(ii) the sale is of their entitlements in the Estate and not of any interest in the lands;

(iii) the entire consideration was paid by D2;

(iv) Clause 2.2.4 provides that, in the event the balance consideration is not paid, the deposit paid would be forfeited and the Outgoing Beneficiary would retain his putative interest in the Estate; and

Clause 4.1 and 4.3 stipulate that, in consideration of the payment, the Outgoing Beneficiary renounces his entire putative interest in the Estate.

The DA 1958 does not prevent putative beneficiaries of a deceased’s estate from renouncing their entitlements and passing it to another beneficiary in proportions they may agree to (see Ch'ng Cheng Siew (suing as administrator of estate of Wong See Yan, deceased) v Pemungut Duti Setem [2016] 7 MLJ 758). Hence, there is no legal impediment to the outgoing beneficiaries from renouncing their entitlements in the SSEA in favour of D2. The Plaintiffs’ allegations of being entitled to an equal share in the Estate cannot be decided summarily.

The case of Pemungut Duti Setem v. Lee Koy Eng [2022] 3 CLJ 252 upholds the right of the beneficiaries to disclaim their putative shares and transfer it to any of the remaining beneficiaries. If, as the Plaintiffs submit, the DA 1958 must be strictly complied with, it will follow that the beneficiaries cannot disclaim their putative shares in favour of any of the remaining beneficiaries as that particular share must be divided equally in favour of all remaining beneficiaries. The Defendants vehemently disagreed with this submission.

The Defendants have a counterclaim, the facts of which are intertwined with the Plaintiffs’ allegations.

In prayer 29(b) of the SoC, the Plaintiffs are claiming 1/6th share of the “proceeds of sale of the 21 titles”. This ignores the liabilities and expenses that have been, and will be, incurred by the Estate. Conclusion [37] Based on the aforesaid considerations, prayer (b) in the Defendants’ application in encl. 10 was allowed with costs of RM5,000.00, subject to allocator, and the Plaintiffs’ application in encl. 35 was dismissed with costs of RM6,500.00, subject to allocator. Dated: 25 April 2025 (ALIZA SULAIMAN) Judge High Court in Malaya (NCvC2) Kuala Lumpur Counsels/ Solicitors: For the Plaintiffs: Joshinae Wong Peism Ting (Wong Chee Ming with her) Messrs. Christina Chia Law Chambers Advocates & Solicitors Mezzanine Floor, Menara Goldstone (Holiday Inn Express) No. 84, Jalan Raja Chulan 50200 Kuala Lumpur For the Defendants: Mithran Poobalan (See Kwong Yan with him) Messrs. Dass, Jainab & Associates Advocates & Solicitors Wisma Mariamah, No. 14, Jalan 65C Off Jalan Pahang Barat Pekeliling Business Centre 53000 Kuala Lumpur