Penang Han Chiang Associated Chinese Schools Association v LIM Boon Lin (PA-22NCvC-158-11/2022)

TAN SRI DATO' SERI TAN KOK PING (NRIC NO. 461117-71-5053) ... PLAINTIFFS AND LIM BOON LIN (NRIC NO. 540821-09-5017) ... DEFENDANT GROUNDS OF JUDGMENT

This writ action arises from a dispute regarding the construction of a building on trust land, where it is alleged that the Defendant's failure, refusal and/or omission to return the building plans increased construction costs.

Briefly, the material facts of this suit are as follows.

Sometime in 1940, a philanthropist by the name of Lim Lean Teng purchased, in the name of his son, Lim Thean Hin, a piece of land known as Lot 2756 Seksyen 6, Bandar Georgetown, Daerah Timor Laut, Negeri Pulau Pinang held under No. Hakmilik Geran (1st Grade) 5741 and measuring approximately 31 acres ("said land").

Both Lim Lean Teng and Lim Theng Hin were the Defendant's grandfather and uncle, respectively.

By an Indenture dated 29.07.1948 ("the Indenture"), the late Mr. Lim Theng Hin created a public charitable trust over the said land ("the Trust Land").

The Defendant is one of the three (3) registered trustees for the Trust Land.

However, the other two (2) trustees, namely Ooi Tiang Khoon and Phe Seak Kee, had resigned prior to the commencement of this suit, thus leaving the Defendant as the sole surviving registered trustee therein.

The Han Chiang Primary School, the Han Chiang High School and the Han Chiang University College of Communication are all erected on the Trust Land.

The $ 1^{\mathrm{st}} $ Plaintiff is an association incorporated in Malaysia on 09.08.1965 as a company limited by guarantee under the then Companies Ordinance 1940-1946.

The $ 2^{\mathrm{n d}} $ Plaintiff is the executive advisor of the $ 1^{\mathrm{s t}} $ Plaintiff.

According to the Plaintiffs, the $ 1^{\mathrm{st}} $ Plaintiff is the de facto administrator, manager, and operator of Han Chiang Primary School, Han Chiang High School, and Han Chiang University College of Communication. Conversely, the Defendant disputes this assertion, contending that the $ 1^{\mathrm{st}} $ Plaintiff is merely to manage the Han Chiang High School.

To resolve the classroom shortage at Han Chiang Primary School and facilitate a single-session school, plans were laid out to construct a 4-storey annex block to an existing 3-storey school. This project, comprising of 22 classrooms and a basketball court, is collectively referred to as "Block C".

The $ 1^{\mathrm{st}} $ Plaintiff subsequently engaged Messrs. aLM Architects to prepare the architectural drawings, project plans and related documentation for the construction and development of Block C (collectively referred to as "the Plans") to be submitted to the relevant authorities.

On 26.02.2020, the 1 $ ^{st} $ Plaintiff wrote to Mr. Pung Choon Song, the Chairman of Han Chiang High School Board of Trustees to inform the trustees of its intention to construct and develop Block C to enable a single session school staring from the 2021 academic year.

A briefing was then held on 10.03.2020 where the Defendant alongside the two (2) other registered trustees did not object in principle to the proposed construction of Block C. However, the Defendant raised some concerns, one of which was the requirement for an indemnity in favour of the trustees ("said Indemnity").

Thereafter, correspondence ensued between the solicitors for both the Plaintiffs and Defendant from June 2020 to December 2020 concerning the terms of the said Indemnity and the signing of the Plans for Block C.

As the Plaintiffs and the Defendant were unable to agree on the terms of the said Indemnity, the Defendant returned the Plans with his signature cancelled, while the signatures of the two (2) other registered trustees, namely Mr. Ooi Tiang Khoon and Mr. Phe Seak Kee, remained intact.

Given the urgency of Block C to facilitate a single-session school, and recognising that the submission, approval of the plans, and construction works would take time, the Plaintiffs had no other recourse but to submit the plans under the name of the Han Chiang Primary School in or about November 2020.

Sometime in February 2021, planning permission for Block C was granted by the local authority vide reference MBPP/ILCS-OSC/PM/83/2020. Consequently, construction works commenced shortly thereafter.

On 08.03.2022, the Certificate of Completion and Compliance for Block C was duly issued by the architect in charge of the project.

Nonetheless, the construction costs for Block C escalated from RM3,513,298-40 to RM5,471,395-90, resulting in an increase of RM1,958,097-50.

Following a Notice of Demand dated 01.12.2021 issued to the Defendant, the Plaintiffs filed a writ action on 11.11.2022, claiming, inter alia, for the increased construction costs of Block C.

A trial ensued and proceeded over six (6) days between 29.10.2025 and 04.02.2026, during which six (6) witnesses were called to testify: four (4) for the Plaintiffs and two (2) for the Defendant.

The Plaintiffs contend that, notwithstanding Block C is clearly a "school building" as envisaged under Clause 2 of the Indenture, and given that both Ooi Tiang Khoon and Phe Seak Kee had duly executed the Plans without any objections or attached conditions, the Defendant nonetheless demanded that the $ ^{1} \mathrm{st} $ Plaintiff provide the said Indemnity.

The Plaintiffs further contend that, despite having full knowledge that the proposed Block C is to facilitate a single-session school for Han Chiang Primary School, and despite numerous reminders from the Plaintiffs' solicitors, the Defendant only returned the plans on 04.12.2020 via his solicitors, following an inordinate delay of approximately nine (9) months.

The original estimated construction cost for Block C, which the $ 2^{\mathrm{nd}} $ Plaintiff had personally pledged to fully contribute, amounted to RM3,513,298-40.

The $ 2^{\mathrm{nd}} $ Plaintiff thus alleges that, as the principal and major financial contributor to the Block C project, he incurred this additional sum due to the abovesaid inordinate delay arising from the Defendant's wilful breach of fiduciary duties and/or duty of care.

In opposing the writ action, the Defendant contends that the Plaintiffs lack locus standi to file this suit due to their failure to obtain the written consent of the Attorney General pursuant to s.9(1) of the Government Proceedings Act 1956 ("GPA 1956") prior to the commencement of the suit against the Defendant in his capacity as the sole surviving / registered trustee of the Trust Land.

The Defendant further contends that, under the terms of the Indenture, the "management and control" of the Trust Land or the affairs of the Trust is vested exclusively with the trustees, who alone possess the authority to deal with any development on the Trust Land.

According to Article 3(a) of the Memorandum and Articles of Association of the $ 1^{\mathrm{st}} $ Plaintiff, the $ 1^{\mathrm{st}} $ Plaintiff is tasked with managing the Han Chiang High School, and not the Han Chiang Primary School or any other institution.

Thus, the Defendant contends that the $ 1^{\mathrm{st}} $ Plaintiff lacks legal authority either under the Indenture or its own Constitution to undertake development works on the Trust Land in respect of the Han Chiang Primary School without the prior consent of the trustees.

The Defendant also denies any breach of fiduciary duty / duty of care towards the Plaintiffs in cancelling his signature on the Plans as the $ ^{1} \mathrm{st} $ Plaintiff had refused to execute the said Indemnity prepared by his Solicitors.

The Defendant further denies liability for any delay or increased costs and puts the Plaintiffs (particularly the $ 2 ^{n d} $ Plaintiff) to strict proof thereof.

The Defendant also attributes to the $ 1^{\mathrm{st}} $ Plaintiff's refusal to execute the said Indemnity and, partly, to the disruptions caused by the Covid- 19 pandemic.

Notwithstanding numerous issues were raised by counsels for both the Plaintiffs and the Defendant, the dispute resolves into the following three (3) primary issues-

Whether the Plaintiffs are required to obtain the consent of the Attorney General to file this suit pursuant to s.9 of the Government Proceedings Act 1956 ("GPA 1956").

Whether the Plaintiffs (particularly the $ 2^{\mathrm{n d}} $ Plaintiff) had financially contributed to the construction costs Block C.

Whether the Defendant had breached his fiduciary duties and/or duty of care towards the Plaintiffs. ANALYSIS AND FINDINGS First issue: Whether the Plaintiffs are required to obtain the consent of the Attorney General to file this suit pursuant to s.9 of the Government Proceedings Act 1956 ("GPA 1956")

Counsel for the Defendant raised a preliminary objection based on this first issue.

It was submitted that since the present suit concerns a public charitable trust, namely the Trust Land, the consent of the Attorney General is required under s. 9 of the GPA 1956.

It was further submitted that as the Plaintiffs failed to obtain the requisite statutory consent, they lack the locus standi to bring this suit.

Consequently, their claim is unsustainable and ought to be dismissed in limine.

For the ease of reference, s.9 of the GPA 1956 states as follows-Public, religious, social or charitable trusts

In the case of any alleged breach of any express or constructive trust for public, religious, social or charitable purposes, or where the direction of the court is deemed necessary for the administration of any such trust, the Attorney General or two or more persons having an interest in the trust and having obtained the consent in writing of the Attorney General, may institute a suit or be joined as a party in any existing suit on behalf of the Government or the public for the purpose of-

asserting any interest or right in the trust property;

removing any trustee;

appointing a new trustee;

vesting any property in a trustee;

directing accounts and inquiries;

declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

authorising the whole or any part of the trust property to be let, sold, mortgaged, charged or exchanged;

setting a scheme; and

obtaining such further or other relief as the nature of the case may require. (emphasis added)

In the present suit, the Plaintiffs pray for a sum of RM1,958,097-50 representing the increased construction costs of Block C due to the Defendant's alleged breach of fiduciary duty as trustee, alongside general damages, interest, and costs.

Thus, the Plaintiffs reliefs for monetary claims, general damages, interest, and costs fall within the ambit of s.9(1)(i) which provides for "obtaining such further or other relief as the nature of the case may require".

However, the intitulement of the present suit clearly states that the Defendant is sued in his personal capacity, and not as a trustee of the Trust Land, as the claim is directed against the Defendant personally rather than the Trust Land itself.

This position is further fortified by the reliefs sought, which are against the Defendant in his personal capacity rather than in his capacity as a trustee, even though these reliefs arise from the Defendant's alleged breach of trust.

Under these circumstances, s.9(1) of the GPA 1956 is inapplicable herein.

Alternatively, even assuming that s. 9(1) applies, a reading of section 9(1)(i) alongside the facts of the present suit further establishes that, upon an alleged breach of trust by a defendant, two or more persons having an interest in the trust (such as the Plaintiffs)—having obtained the written consent of the Attorney General—may institute a suit, or be joined as a party to any existing suit, on behalf of the Government or the public for the purpose of obtaining such further or other relief as the nature of the case may require under paragraph (i).

Notwithstanding the allegation of breach of trust and the fact that the reliefs prayed for fall within the ambit of s.9(1)(i), the statute explicitly states that the suit must be instituted "on behalf of the Government or the public " for the specific purposes under paragraphs (a) to (i) of s.9 the GPA 1956.

Hence, the written consent of the Attorney General is only required if the Plaintiffs institute a suit on behalf of the Government or the public to claim any of the reliefs under the said paragraphs.

Conversely, no such consent is required if the suit is not instituted on behalf of the Government or the public.

In other words, s.9 of the GPA 1956 is explicitly designed to regulate public interest litigation, it does not apply to private claims brought against a trustee for breach of trust.

This is precisely the position in the present case, as the reliefs sought against the Defendant are for losses and damages incurred by the Plaintiffs (particularly the $ 2^{\mathrm{nd}} $ Plaintiff in his personal capacity) due to the Defendant's alleged breach of trust.

The present suit is brought by the Plaintiffs to claim personal losses and damages. It is a private action to vindicate their personal rights, not a public action brought to protect the interests of the community or the state.

The Defendants' cross-reference to two (2) other suits filed by the Plaintiffs (and Dato' Seri Ooi Soo Hing) against the Defendant, namely Originating Summons No. PA-24NCvC-98-01/2019 ("OS 98") and Civil Suit No. PA-22NCvC-185-11/2023 ("Suit 185") is distinguishable as the reliefs sought therein concerned the administration of the public charitable trust settled under the Indenture, which is not the case here.

In a similar vein, Civil Suit No. PA-22NCvC-139-08/2023 ["Suit 139"] and the latest Court of Appeal decision vide Civil Appeal No. P01(IM)(NCvC)-254-04/2024, P-01(IM)(NCvC)-255-04/2024, P-01(IM)(NCvC)-256-04/2024 and P-01(IM)(NCvC)-257-04/2024 referred to by the Defendant to support their contention regarding the statutory requirement under s.9(1) of the GPA 1956 are also distinguishable.

Based on the aforesaid findings, s. 9(1) is inapplicable in the present suit, thus the consent of the Attorney General is not required prior to the commencement of this writ action. $ 2^{n d} $ issue: Whether the Plaintiffs (particularly the $ 2^{n d} $ Plaintiff) had financially contributed towards the construction of Block C

It is undisputed that in or about 2019, an article in the Sin Chew Jit Poh newspaper reported an announcement by the $ 1^{\mathrm{st}} $ Plaintiff regarding the $ 2^{\mathrm{nd}} $ Plaintiff's intention to donate or contribute financially toward the construction costs of Block C.

The $ 2^{\mathrm{nd}} $ Plaintiff, testifying as PW1, confirmed this intention during examination-in-chief.

However, the evidence adduced during trial revealed that a sum of RM4.5 million was donated or contributed toward the construction costs of Block C by a company known as KP Holdings Sdn Bhd ("KPH"), rather than by the $ 2 ^{n d} $ Plaintiff.

Consequently, counsel for the Defendant submitted that this contradiction directly undermines the $ 2^{n d} $ Plaintiff's allegations.

In reply, counsel for the Plaintiffs argued that it was pleaded in the Amended Statement of Claim (at page 19 of Bundle A) that the $ 2 ^{n d} $ Plaintiff had personally pledged to contribute to the construction costs of Block C. However, the Plaintiffs did not plead that the $ 2 ^{n d} $ Plaintiff pledged to personally contribute to those costs.

By reference to the SSM search of KPH (at pages 256-257 of Bundle B5), it was further argued that at all material times, the $ 2^{\mathrm{nd}} $ Plaintiff is the director and majority shareholder of KPH.

This fact was fortified by the testimony of PW1 (the $ 2^{\mathrm{nd}} $ Plaintiff), who confirmed that KPH is his company, that he exercises full authority over it, and that he is its sole signatory.

Be that as it may, it is trite law that a company is a separate and distinct legal entity from its shareholders and directors. Thus, it can sue and be sued in its own name. Unlike a sole proprietorship or a partnership, where legal actions must be brought in the names of the individual sole proprietor or partners.

This fundamental principle which traces back to the landmark English case of Salomon v A Salomon & Co Ltd [1897] AC 22 is now codified under s. 20 of the Companies Act 2016.

Hence, even though the $ 2^{\mathrm{n d}} $ Plaintiff claims full authority over KPH as its sole signatory, KPH remains a separate and distinct legal entity from him.

In line with the established principles of company law, the monies paid toward the construction costs of Block C were derived from the corporate funds of KPH, rather than from the pockets / personal funds of the $ 2 ^{n d} $ Plaintiff.

Consequently, the RM4.5 million contribution made by KPH constitutes a distinct corporate expenditure that cannot be legally credited to the $ 2 ^{n d} $ Plaintiff personally, regardless of his shareholding or control over the company.

Besides, it was not pleaded that the $ 2^{\mathrm{nd}} $ Plaintiff had pledged to personally contribute to those costs. That being the case, the Plaintiffs have no locus standi to claim that they suffered a personal loss when those construction costs increased.

The only link between the $ 2 ^{n d} $ Plaintiff and the construction costs of Block C is the newspaper publication detailing his intention to donate or contribute towards the costs thereof. This constitutes evidence of a mere intention to act, as opposed to actual execution.

Given that the evidence adduced confirms RM4.5 million was paid by KPH and not the $ 2 ^{nd} $ Plaintiff, the List of Donors for Block C (at page 82 of Bundle B7)—which attributes a contribution of RM5 million to the $ 2 ^{nd} $ Plaintiff—stands as a bare, unsubstantiated assertion.

Notwithstanding that PW1 (2 $ ^{nd} $ Plaintiff) testified to having personally contributed the entire sum of RM5 million, this assertion remains completely unsubstantiated by any other documentary evidence save for the said List of Donors of Block C and his own oral testimony.

Furthermore, PW1 ( $ 2^{\mathrm{nd}} $ Plaintiff)'s testimony is a clear departure from the pleadings in the Amended Statement of Claim.

While both the pleaded case and Plaintiffs' counsel submissions repeatedly emphasized that the $ 2^{\mathrm{nd}} $ Plaintiff had personally pledged to contribute to the construction costs of Block C - and had NOT pledged to personally contribute to those costs - PW1 ( $ 2^{\mathrm{nd}} $ Plaintiff) explicitly testified that he, and not KPH, is the true donor / contributor to the entire construction cost.

It is a trite and fundamental principle of civil litigation that parties are strictly bound by their pleadings. A party cannot be allowed to adduce evidence of a fact which has not been pleaded, and any such unpleaded evidence must be completely disregarded by the court.

Hence, PW1 ( $ 2^{\mathrm{nd}} $ Plaintiff)'s testimony introduced a completely new, unpleaded fact, which directly denies a fact asserted in the Plaintiffs' own pleaded case.

Given the Plaintiffs' irreconcilable stance and fatal contradiction which constitutes a clear departure from their pleaded case, PW1 ( $ 2^{\mathrm{nd}} $ Plaintiff)'s testimony that he personally funded the construction costs of Block C is entirely devoid of merit, legally untenable and must be disregarded by this Court.

Consequently, there being no evidence to establish that the $ 2^{\mathrm{nd}} $ Plaintiff had contributed or donated the said sum of RM5 million toward the construction costs of Block C, the $ 2^{\mathrm{nd}} $ Plaintiff has no cause of action against the Defendant to claim for the sum of RM1,958,097-50, which he allegedly suffered due to the increase in the construction costs.

If at all, the rightful party clothed with a cause of action and entitled to bring this action would be KPH, as it was KPH and not the $ 2^{n d} $ Plaintiff, that donated or contributed RM5 million toward the construction costs of Block C.

As the $ 2^{\mathrm{nd}} $ Plaintiff failed to prove that he was the paymaster for the sum of RM5 million, his claim for the increased construction costs of Block C automatically collapses.

Consequently, the Plaintiffs lack the requisite standing and possesses no recognizable cause of action against the Defendant for the losses claimed.

On this ground alone, the Plaintiffs' claim is dismissed with costs of RM100,000-00, subject to payment of the allocator fee.

As aforementioned, the reliefs sought in the Amended Statement of Claim are limited to the sum of RM1,958,097-50, general damages, interest and costs. The Plaintiffs do not seek a declaratory order that the Defendant breached his fiduciary duty as a trustee.

Accordingly, with the dismissal of the monetary reliefs sought by the Plaintiffs, there is no necessity for this Court to consider or determine the third issue of whether the Defendant breached his fiduciary duty. Dated 6th July, 2026. (DR. WENDY OOI SU GHEE) Judge Penang High Court (4) Counsel(s): Mr. Phuah Wei Jian together with Mr. Loh Yeow Khoon from Messrs Wong & Loh for the Plaintiff. Mr. B. Jeyasingam together with Ms. Kiranjeet Kaur, Mr. Moses Mather George from Messrs. Ghazi & Lim for the Defendant. Case(s) referred to: Salomon v A Salomon & Co Ltd [1897] AC 22.