Tea Chun Hia @ Teoh Chun Hia v Lim Peng Khoon (A-01(NCvC)(W)-193-04/2023)

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: A-01(NCvC)(W)-193-04/2023 ANTARA

1. TEA CHUN HIA @ TEOH CHUN HIA (NO. K/P: 481001-07-5278)

2. LEE CHEE KHOON (NO. K/P: 820613-08-5339)

3. LEE HUI KHOON (NO. K/P: 790921-07-5234)

4. LEE WOOI KHONG (NO. K/P: 780122-08-6771) …PERAYU-PERAYU DAN LIM PENG KHOON (NO. K/P: 700420-07-5349) …RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya Di Ipoh (Bahagian Sivil) Guaman Sivil No.: AA-22NCvC-105-08/2018 Antara Lim Peng Khoon (No. K/P: 700420-07-5349) …Plaintif Dan

1. Tea Chun Hia @ Teoh Chun Hia (No. K/P: 481001-07-5278)

2. Lee Chee Khoon (No. K/P: 820613-08-5339)

3. Lee Hui Khoon (No. K/P: 790921-07-5234)

4. Lee Wooi Khong (No. K/P: 780122-08-6771)

5. Pengarah Tanah dan Galian Negeri Perak

6. Pentadbir Tanah, Daerah Kerian, Perak

7. Pendaftar Hakmilik Tanah Perak …Defendan-Defendan] 18/05/2026 14:26:51 A-01(NCvC)(W)-193-04/2023 Kand. 65 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 CORAM: AZMAN BIN ABDULLAH, JCA. AHMAD KAMAL BIN MD. SHAHID, JCA. ONG CHEE KWAN, JCA. JUDGMENT OF THE COURT Introduction

1. This appeal arises from a decision of the High Court delivered after a full trial where the learned Judicial Commissioner (as he then was) found that the Appellants had fraudulently transferred lands belonging to the Respondent to themselves by relying on a forged settlement agreement and a forged power of attorney. Dissatisfied with the judgment, the Appellants have appealed to this Court, challenging both the procedural propriety of the proceedings leading to the delivery of the judgment as well as several aspects of the learned Judicial Commissioner’s (as he then was) findings on the law and evidence.

2. Broadly stated, the issues raised in this appeal concern: first, the legal effect of the learned Judicial Commissioner (as he then was) delivering judgment after one of the Appellants had been adjudged bankrupt, in circumstances where no leave had been obtained under the Insolvency Act 1967; second, the proper approach to the burden of proof in relation to the presumption **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 of due execution of a power of attorney under section 85 of the Evidence Act 1950 read together with section 3(2) of the Powers of Attorney Act 1949; third, whether the Commissioner for Oaths who authenticated the impugned power of attorney ought to have been called as a witness; fourth, the evidential effect arising from the placement of the power of attorney in Part B of the Bundle of Documents; fifth, whether the learned Judicial Commissioner (as he then was) was entitled to consider the terms of the power of attorney in determining its authenticity; and finally, whether the Appellants were entitled to rely on matters that had been pleaded in a previous suit filed by them against the Respondent which had earlier been struck out with no liberty to file afresh.

3. During the trial, the Appellants had filed an application to disqualify the solicitors of the Respondent pursuant to Rule 28(a) Legal Profession (Practice and Etiquette) Rules 1978. The application was dismissed, and the Appellants have filed a separate appeal against the decision.

4. Both the appeals against the judgment delivered after the full trial and the decision dismissing the application for disqualifying the Respondent’s solicitors are considered together in this judgment.

5. For completeness, the Respondent at the trial below had also sued and obtained judgment against the Pengarah Tanah and Galian, Negeri Perak, Pentadbir Tanah, Daerah Kerian, Perak **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 and Pendaftar Hakmilik Tanah Perak for negligence and breach of statutory duties. They did not file any appeal against the judgment and are therefore not involved in the two appeals before us. Background Facts

6. There are five (5) plots of land located at Mukim Tanjung Piandang, Perak. These five (5) plots of land will be referred to as Lot 2241, 2242, 2243, 2244 and 2245 (“the Lands”).

7. The Lands previously belonged to the late Mr Lee Siew Khee (“the Deceased”), who was the 1st Appellant’s husband and the 2nd to 4th Appellants’ biological father.

8. Upon his passing, the Deceased’s daughter, Lee Tiew Yee (“SP-6”), who was named as the sole executrix and beneficiary of the Deceased’s Will dated 12.3.2006 (“the Will”), had extracted a grant of probate at the Penang High Court (“Grant of Probate”)

9. Not long after the Grant of Probate was extracted, SP-6 caused the transfer of the Lands to the Respondent pursuant to a sale and purchase agreement (“the SPA”).

10. After the transfer of the Lands to the Respondent pursuant to the SPA, the Appellants and another son, Lee Yee Khoon, had filed a Civil Suit No. 22NCVC-156-11/2014 (“Suit 156”) at the **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Penang High Court against the Respondent and 4 others, challenging the validity of the Grant of Probate and the Will.

11. On the day fixed for the trial of Suit 156 on 13.6.2016, the Appellants and Lee Yee Khoon indicated their desire to withdraw the Suit 156, and upon the objection of the Respondent, the learned trial judge struck out the Suit 156 with no liberty to file afresh and with costs of RM40,000.00 to be paid to the defendants thereto.

12. It is the Appellants’ stance that Suit 156 was withdrawn as parties had achieved a settlement whereby the Respondent had agreed to return the Lands to the Deceased’s family. However, it is not in dispute that this was not disclosed to the High Court when Suit 156 was withdrawn.

13. On the contrary, before Suit 156 was withdrawn, the Lands had already been transferred by the 4th Appellant to the 1st Appellant in May 2016 (“the May 2016 Transfer”). A month later, the 1st Appellant transferred the Lot 2241 and Lot 2244 to the 2nd Appellant, Lot 2243 and Lot 2245 to the 4th Appellant, and Lot 2242 to the 2nd, 3rd, and 4th Appellants in equal shares (“the Subsequent Transfers”).

14. The May 2016 Transfer was performed pursuant to a power of attorney dated 1.3.2016 (“the PA”) said to have been given by the Respondent to the 4th Appellant based on a purported settlement agreement dated 1.3.2016 between the Appellants **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 and the Respondent (“the SA”). There was also an undated payment voucher for RM10,000.00 purportedly evidencing the Respondent’s receipt of the same (“the Payment Voucher”).

15. Significantly, the registration of the May 2016 Transfer of the Lands was effected by the Pentadbir Tanah, Daerah Kerian Perak, without the original Issue Documents of Title accompanying the transfer. Further, the Pentadbir Tanah had thereafter issued a document of title for each of the said 5 Lots in the 1st Appellant’s name. However, the original title documents for these Lots were never given to the 1st Appellant. This means that the Pentadbir Tanah had also accepted the 1st Appellant’s presentation of the Subsequent Transfers without the accompaniment of the aforesaid original titles.

16. In July 2016, upon discovering the May 2016 Transfer and the Subsequent Transfers, the Respondent lodged a police report on 3.8.2016 and lodged a caveat to prevent any dealings with the Lands.

17. Thereafter, the Respondent commenced Civil Suit No. PA- 22NCVC-165-08/2016 (“Suit 165”) at the Penang High Court against the Appellants. Suit 165 was subsequently withdrawn with liberty to file afresh, and the Respondent then filed Civil Suit AA-22NCVC-105-08/2018 (“Suit 105”). Suit 105 was transferred to Ipoh High Court by consent of the parties. **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

18. In Suit 105, the Respondent sought a declaration that the SA and the PA, the Payment Voucher, and a letter dated 16.5.2016 which showed that he had acknowledged the 1st Appellant’s rights over the Lands (“the Letter dated 16.5.2016”), be declared as null and void. The Respondent further sought a declaration that the Lands had been fraudulently transferred from him and for an order that the Appellants deliver vacant possession of the Lands to him with damages to be assessed, interest, and costs.

19. As alluded to above, the Respondent also sued the Pengarah Tanah dan Galian Negeri Perak, the Pentadbir Tanah, Daerah Kerian Perak, and the Pendaftar Hakmilik Tanah Perak as the 5th, 6th, and 7th Defendants respectively for breach of statutory duties and negligence.

20. The Respondent denied that he had entered into the SA and or that he had granted the PA to the 4th Appellant. The Respondent further claimed that his signatures in the SA, PA, and the Payment Voucher are all forgeries. He also denied that he had written the Letter dated 16.5.2016.

21. Before the learned Judicial Commissioner (as he then was), the High Court found merits in the Respondent’s claims and gave judgment against all the defendants in Suit 105. The Appellants have appealed against the judgment (“the Main Appeal”). The 5th to 7th Defendants did not appeal. **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

22. During the course of the trial of Suit 105, the Appellants had unsuccessfully applied to disqualify the Respondent’s solicitors. The Appellants have also appealed against that decision. Issues Raised by Appellants in the Main Appeal

23. In the Main Appeal, the Appellants raised the following issues: a) whether the learned Judicial Commissioner (as he then was) in delivering the judgment after the 3rd Appellant was adjudged a bankrupt without leave being obtained under section 8(1)(a) of the Insolvency Act 1967 had proceeded in contravention of the said section, rendering the judgment null and void; b) whether the learned Judicial Commissioner (as he then was) erred in his determination of the effect of section 85 of the Evidence Act 1950 read with section 3(2) of the Powers of Attorney Act 1967 and whether the Commissioner for Oaths ought to be called to testify; c) whether the learned Judicial Commissioner (as he then was) had exercised due judicial appreciation of the testimonies of the witnesses; d) whether the Settlement Agreement, PA, and the Payment Voucher were properly treated as IDs only when these documents were placed as Part B documents; **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 e) whether the learned Judicial Commissioner (as he then was) erred in barring the Appellants from raising as their defence, matters pleaded in Suit 156 that had been struck out without liberty to file afresh.

24. In respect of the appeal against the disqualification application, the only issue is whether the Respondent’s solicitors would be a material witness to the issues raised in Suit 105, in particular, relating to the authenticity of the PA. Court’s Considerations A. Judgment delivered after 3rd Appellant’s Bankruptcy (“the Bankruptcy Issue”)

25. Section 8(1)(a) of the Insolvency Act 1967 provides: “8(1) On the making of a bankruptcy order -

26. The 3rd Appellant was not a bankrupt at the commencement of Suit 105. However, she was adjudged a bankrupt on 16.1.2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 after the trial had come to an end, and all written submissions filed, but before the learned Judicial Commissioner (as he then was) delivered his judgment on 3.4.2023.

27. The Appellants contend that because the 3rd Appellant was adjudged a bankrupt, leave was required under Section 8(1)(a) of the Insolvency Act 1967 before judgment could be delivered. The failure to obtain leave is said to be fatal, and this rendered the entire trial irregular. If the Judgment is allowed to subsist, it would be unfair for the rest of the Appellants to shoulder the 3rd Appellant’s liability, since the judgment was made on a joint and several basis against all the Appellants.

28. With respect, we disagree.

29. In this case, the Respondent in Suit 105 had sought for, inter alia:

30. At the conclusion of the trial, and after parties had filed their written submissions, but before delivery of the judgment, the 3rd Appellant was adjudged a bankrupt by an order of the bankruptcy court.

31. The Appellants submitt that by reason of section 8(1)(a) of the Insolvency Act 1967, the learned High Court Judicial Commissioner (as he then was) was precluded from delivering his judgment in the Suit 105 action unless leave of the bankruptcy court was first obtained. The issue that therefore arises is whether leave of the bankruptcy court was required before the Court delivered its judgment.

32. Section 8(1)(a) of the Insolvency Act 1967 imposes a statutory restraint upon creditors from proceeding with or commencing an action or pursuing any remedy against a bankrupt in respect of debts provable in bankruptcy, unless leave of the bankruptcy court is first obtained. From the language of the provision, it is plain that two elements must be satisfied before the statutory prohibition applies:

33. In the instant case, the principal reliefs sought by the Respondent were declaratory and proprietary in nature. The Respondent challenged the validity of the PA and the SA and sought restoration of the Lands on the basis that the May 2016 Transfer was unlawful and void.

34. Thus, the Respondent’s claims were not founded upon any assertion that the 3rd Appellant owed him a debt. Rather, the Respondent asserted a proprietary interest in the Lands and sought judicial determination that the impugned instruments were void and of no legal effect. In such circumstances, the Respondent did not seek to participate in the distribution of the 3rd Appellant’s bankrupt estate as an unsecured creditor. Instead, the Respondent was asserting that the Lands did not beneficially belong to the bankrupt in the first place.

35. Proceedings of this nature are distinguishable in substance and in law from proceedings to recover a debt. They are concerned with the determination of proprietary rights and the identification of property which properly forms part of the bankrupt’s estate. This means that such proceedings are not proceedings “in respect of any debt provable in bankruptcy” within the meaning of section 8(1)(a) of the Insolvency Act 1967, and accordingly, no leave is required for the Respondent to proceed with Suit 105 notwithstanding the 3rd Appellant being adjudged a bankrupt. **Note : Serial number will be used to verify the originality of this document via eFILING portal 13

36. Our views are supported by the Federal Court in Tengku Dato’ Ismail Ibni Sir Sultan Abu Bakar & Ors v Bursa Malaysia Securities Bhd [2022] 4 CLJ 854 where it was held that section 8(1)(a) has no application when there is no creditor-debtor relationship: “(1) … This was not a typical debt between the plaintiff and the defendants per se, where the court directed the defendants to make payments to the plaintiff.

(2) The plaintiff was not in a debtor and creditor relationship with the defendants.

(3) …

(4) At the time when the filing of the proceedings to obtain the s.360 order was instituted by the plaintiff, D1 was already a bankrupt.

(5) Section 8(1) of the BA applies to a creditor. The plaintiff was not a creditor where the defendant owed a debt, whether provable in bankruptcy or otherwise. The s.360 CMSA order does not create a creditor-debtor relationship … Hence, s. 8(1) of the BA has no application whatsoever to our present case as there is no debt owing by the defendant to the plaintiff. The prohibition in s.8(1) of the BA applies to a creditor which the plaintiff is not, nor is s.360CMSA order a “debt provable in bankruptcy”.

37. While we note that the Respondent has also prayed for damages to be assessed against the 3rd Appellant, **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 nevertheless, we are of the view that this claim for damages arose and in fact was anchored on the Appellants’ wrongful dealings with the Respondent’s Lands. In other words, the claim for damages was merely incidental to the proprietary relief. Such damages serve to compensate for loss of use, account for profits, or compensate for wrongful deprivation of the Lands and are dependent upon the Court first determining the Respondent’s proprietary entitlement.

38. In our view, where damages are merely ancillary to the determination of proprietary rights, the proceedings as a whole are not properly characterised as proceedings “in respect of a provable debt”. A proprietary claim is not a claim to participate in the bankrupt’s estate as a creditor. Rather, it is a claim that the property in question never formed part of the bankrupt’s estate. Accordingly, the learned Judicial Commissioner (as he then was) was entitled to determine that the transfer of the Lands was void, order the Lands to be restored to the Respondent, and also to order damages to be assessed as consequential reliefs without leave under section 8(1)(a) of the Insolvency Act 1967.

39. However, the actual enforcement of a monetary liability against the bankrupt is another matter. Damages once assessed, or reduced into a monetary judgment, constitute a debt provable in bankruptcy. At that point, the Respondent is effectively seeking to recover money from the bankrupt estate, and enforcement mechanisms would interfere with the collective **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 insolvency regime. Accordingly, leave of the bankruptcy court is required before the Respondent can enforce the judgment for damages against the 3rd Appellant.

40. In the present case, the Respondent had, quite rightly, after the Judgment and before enforcing the same in respect of the order for damages, obtained leave from the Bankruptcy Court to proceed with the assessment of damages.

41. Further and in any event, on the facts of this case, the trial had been fully concluded by the time the judgment was delivered. All evidence had been adduced, witnesses examined and cross-examined, and written submissions filed. The Court’s task at this stage was confined to the delivery of its judgment based on the evidence and submissions already received.

42. At this stage, the Court was not being asked to permit the creditor to initiate or continue proceedings. The Court was merely discharging its adjudicative function. The delivery of judgment in such circumstances does not constitute a step taken “by the creditor” to “proceed with” the action. Properly construed, the statutory prohibition is directed at restraining creditor-driven action. Its object is to prevent individual creditors from invoking or continuing coercive processes to enforce or advance their claims against the bankrupt outside the collective insolvency regime. The provision is therefore concerned with the conduct of creditors. It operates as a disability imposed upon creditors, not as a limitation upon the inherent jurisdiction **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 of the Court to deliver judgment in proceedings which have already been fully heard.

43. To construe section 8(1)(a) of the Insolvency Act 1967 as precluding the delivery of judgment would lead to the untenable consequence that the Court’s adjudicative function could be brought to a standstill by the supervening bankruptcy of a litigant, even after the trial has concluded. Such an interpretation would extend the statutory prohibition beyond its intended purpose, which is to regulate enforcement and creditor-initiated proceedings, and not to prevent the judicial determination of legal rights.

44. However, as alluded to above and to avoid any doubt, while section 8(1)(a) of the Insolvency Act 1967 does not prevent the Court from adjudicating upon and determining the parties’ claims after conclusion of the trial, it does operate to prohibit the enforcement of any judgment obtained against the bankrupt in respect of a provable debt, except with leave of the Bankruptcy Court. This reflects the fundamental principle that upon bankruptcy, the administration and distribution of the bankrupt’s estate falls within the supervisory control of the Bankruptcy Court, and individual creditors may not enforce judgments against the bankrupt’s person or property outside that regime.

45. Accordingly, whilst the High Court retained full jurisdiction to determine Suit 105 and to deliver judgment notwithstanding that the 3rd Appellant was adjudged a bankrupt, the Respondent **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 would be required to obtain leave of the Bankruptcy Court before taking any steps to enforce any monetary judgment against the 3rd Appellant personally, or against property vested in the Director General of Insolvency.

46. Accordingly, we do not see any merit to the Bankruptcy Issue raised by the Appellants and would reject the same without any hesitation. B. Statutory Presumption and Burden of Proof

47. The Appellants contend that the learned Judicial Commissioner (as he then was) did not give sufficient judicial appreciation towards the statutory presumption to the PA as provided under Section 85 of the Evidence Act 1950, read with section 3(2) of the Powers of Attorney Act 1949 and the law on burden of proof when he found that the Appellants would fail if they cannot prove the existence of the SA, the PA, the acknowledgment of receipt of the cash ‘ang pow’ of RM10,000.00 under the Payment Voucher and the Letter dated 16.5.2016.

48. In this regard, at paras [24] and [25] of the learned Judicial Commissioner’s Grounds of Judgment, he held as follows: [24] … as it is D1 and D4 who seek to establish their titles flow from the impugned SA which led to the purported making of the PA, the acknowledgment of receipt of the cash “Ang Pow” of RM10,000.00 and the letter by the Plaintiff **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 acknowledging D1’s interest (“alleged letter to D1”) over the said Lands, they will fail if they cannot prove evidence to that effect. [25] In their submissions, D1 to D4 asserted that if no evidence is produced by either side, it is the plaintiff who would fail in his claim against the Defendants by virtue of section 102 of the Evidence Act 1950. This is true only to a limited extent that the primary legal burden is on the plaintiff to first prove his right to the said Lands and once sufficient evidence is established, the evidential burden shifts to D1 to D4 to establish affirmatively the existence of the SA, the PA, the acknowledgment of receipt of the case ”Ang Pow” of RM 10,000.00 and the alleged letter to D1.” [emphasis added]

49. Now, section 85 of the Evidence Act 1950 provides: “85. The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a Notary Public or Commissioner for Oaths, or any court, Judge, Magistrate, or consular officer of Malaysia was so executed and authenticated.”

50. The effect of section 85 is that the court shall presume that a power of attorney purporting to have been executed before and authenticated by specified officers was duly executed and authenticated. This creates a mandatory rebuttable presumption, not a discretionary one. **Note : Serial number will be used to verify the originality of this document via eFILING portal 19

51. In fact, section 3(2) of the Power of Attorney Act 1949 also stipulates: “(2) Notwithstanding anything to the contrary contained in any written law in force at the commencement of this Act, an instrument purporting to create a power of attorney duly executed and authenticated in accordance with this section shall be deemed to be properly and validly executed and attested for all or any of the purposes for which a power of attorney may be used under any such written law.”

52. Section 3(2) of the Power of Attorney Act 1949 and section 85 of the Evidence Act 1950 operate in tandem to confer both substantive validity and evidential presumptions upon powers of attorney duly authenticated before authorised officers. Section 3(2) creates a statutory deeming provision that such an instrument shall be regarded as properly and validly executed and attested for all legal purposes. Complementing this, section 85 of the Evidence Act 1950 imposes a mandatory presumption that a power of attorney purporting to have been so executed and authenticated was duly executed and authenticated. The combined effect is to relieve the party relying on the instrument from proving execution in the first instance, and to confer prima facie legal validity upon the instrument, subject only to rebuttal by cogent evidence establishing forgery, fraud, or absence of proper authentication. Indeed, this Court in Sabaruddin Othman & Anor v Malayan Banking Berhad & other Appeals [2018] 1 LNS 357 had held that the statutory presumption under section 85 is a rebuttable presumption, relying on the Federal Court **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 case of Letchumanan Chettiar Alagappan @ L Alagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ

697.

53. This means that once the document on its face appears to be a power of attorney, and authenticated by a Commissioner for Oaths, Notary Public, Judge, Magistrate, or consular officer, the Court must presume due execution and authentication. This relieves the party relying on the power of attorney from having to call the attesting officer or prove execution in the first instance. The effect of the provision is to shift the evidential burden to the party challenging the power of attorney to adduce evidence rebutting the presumption.

54. Based on the aforesaid, the Appellants contend that the learned Judicial Commissioner (as he then was) erred when he failed to give sufficient judicial appreciation to the presumption. More specifically, the Appellants contend that the burden to call the Commissioner for Oaths, Puan Mahni Omar, rests with the Respondent, who failed to call her.

55. On this point, we must start by pointing out that the learned Judicial Commissioner (as he then was) had rightly held that section 85 of the Evidence Act 1950 raised a presumption in favour of the PA having been executed and authenticated properly and that the burden of proving that the PA was not in fact executed by the Respondent shifted to the Respondent. **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 Accordingly, we do not share the view that the learned Judicial Commissioner (as he then was) had failed to give sufficient judicial appreciation to the statutory presumption as contended by the Appellants.

56. We also find that the learned Judicial Commissioner (as he then was) had relied on the following in arriving at his conclusion that the Respondent had rebutted the presumption that the PA was in fact executed by the Respondent: a) The unchallenged forensic expert Wong Kong Yong (PW- 4)’s testimony that the signature of the Respondent in the impugned PA was not handwritten but was a printed signature consistent with being printed using an electrophotography printing process, and his conclusion that the signature may not have been written by the Respondent; b) The little weight accorded to the testimony of the Appellants’ expert, Siow Kwen Sia (DW-2) given that the copy of the PA that he had examined was not the copy registered with the Ipoh High Court and DW-2’s lack of objectivity as he was reluctant to acknowledge the limitations in examining photocopied documents as his Report carried no qualifications on the limitations of working with a photocopied document when the article which he relied on itself stated that such a qualification should be made; **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 c) The fact that the impugned PA was a photocopy and not the original. This gives rise to caution expressed by the 2 expert witnesses of the Plaintiff that the value of the findings in examining a photocopied document is inherently fraught with limitations; d) The fact that the Appellants failed to make available for examination the original impugned PA, and the excuse that the Appellants were robbed of the original documents, was not believable; e) The fact that Puan Mahni Omar had given contradictory evidence in Suit 165 in that she had testified that her log book or register for the date 1.3.2016, which was the date the Respondent was said to have attended before her, in fact carried the notation that the document attested was a “Surat Akuan Bukan Seorang Bankrap” instead of a PA. In fact, Puan Mahni Omar had testified that she could not be certain whether she signed the impugned PA.

57. Quite apart from the aforesaid direct evidence pertaining to the execution and authentication of the PA, the learned Judicial Commissioner (as he then was) had also before him the following circumstantial evidence: a) The fact that when the Appellants withdrew Suit 156 in June 2016, they did not allude to the existence of the SA and the PA. Indeed, if the parties had entered into the SA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 and the PA, there would be no need for the Appellants to have amended their Statement of Claim in May 2016 and to continue with the trial of Suit 156. It is also illogical that the Appellants did not proffer the SA as the reason for their withdrawal to avert an order of costs to be imposed against them; b) The fact that both the Respondent and PW-6 had lodged their respective police reports when they found out about the existence of the SA and the PA bearing their signatures; c) The fact that the original documents of titles of the Lands were still in the Respondent’s possession notwithstanding the SA and the PA, and the fact that the Appellants never requested the same when effecting the May 2016 Transfer; d) The fact that the 1st and 4th Appellants, who were directly involved with the SA and PA and who played a pivotal role in the May 2016 Transfer, did not even attend Court to testify; e) The fact that the SA, Payment Voucher, and the Letter dated 16.5.2016 were inadmissible documents.

58. We find that the learned Judicial Commissioner (as he then was) did not err at all when he held, based on both the direct **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 and circumstantial evidence, that the evidential burden had shifted back to the Appellants to call Puan Mahni Omar to prove that the Respondent had, in fact, attended before her to execute the PA.

59. We also find that the learned Judicial Commissioner (as he then was) was right to draw an adverse inference against the Appellants for their non-calling of the 1st and 4th Appellants. The 4th Appellant had played a pivotal role in the May 2016 Transfer to the 1st Appellant in reliance on the PA. They were also material witness to the execution of the SA, yet neither was called to testify.

60. Accordingly, we see no appealable error at all in the learned Judicial Commissioner’s (as he then was) findings and determination of the burden of proof when he concluded that the Respondent had successfully proven on the balance of probabilities that he is the lawful registered proprietor of the Lands, that the Appellants had failed to discharge their burden of proving the existence of a SA and that the impugned PA was a forgery. C. Judicial Appreciation of SP-5’s and SD-1’s testimonies

61. The Appellants contend that the learned Judicial Commissioner (as he then was) had failed to give due judicial appreciation to the testimony of SP-5 and SD-1. **Note : Serial number will be used to verify the originality of this document via eFILING portal 25

62. SP-5, Puan Siti Musliha of the Chemistry Department had analysed the logbook of the Commissioner for Oaths, the SA, the Payment Voucher and the Letter dated 16.5.2016. It is true that the learned Judicial Commissioner (as he then was) did not evaluate or discuss her testimony in his grounds of judgment. However, in our view, SP-5’s testimony is at best equivocal. She acknowledged that her findings had limitations as they were based on photocopied signatures. The originals were never produced for her examination. In fact, SP-5 confirmed that based on her Report, her conclusion is qualified and non-conclusive because the original documents were not available.

63. Accordingly, SP-5’s testimony does not at all in any way lend credence to the Appellants’ case that the SA, Payment Voucher and Letter dated 16.5.2016 are authentic documents. The fact that the Appellants had failed to provide the original documents despite repeated requests for the same, including a court order, further casts doubt on the authenticity of the documents. This was what led the learned Judicial Commissioner (as he then was) to remark that the Appellants’ claim that they were robbed of the documents was “in the circumstances, most suspicious” and “cannot be mere coincidental”.

64. Critically, the mere failure of the learned Judicial Commissioner (as he then was) to refer expressly to the evidence of SP-5 does not necessarily mean that the evidence was disregarded. A trial judge is not required to set out every piece of evidence in the judgment. Appellate intervention is warranted only where the **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 omission demonstrates that material evidence capable of affecting the outcome of the case had not been considered.

65. In this case, SP-5 herself acknowledged that her opinion was necessarily limited as the original impugned document was not available for inspection and examination. In those circumstances, her evidence was of limited probative value and could not have materially affected the findings reached by the learned Judicial Commissioner (as he then was). We are therefore unable to conclude that the omission to refer expressly to SP-5’s testimony occasioned any miscarriage of justice.

66. As regards SD-1’s testimony, the learned Judicial Commissioner (as he then was) had analysed his evidence and concluded that he is not a credible witness. More specifically, the learned Judicial Commissioner (as he then was) had disbelieved SD-1’s evidence that the Appellants had requested the original title deeds and that the Respondent had stated that the same were kept by Loh Soo Chun (SP-6’s husband) and that he had purportedly refused to return them to the Respondent. This was because the original title deeds were all along kept by the Respondent.

67. Accordingly, we also disagree that there was insufficient appreciation of the testimonies of SP-5 and SD-1 as contended. **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 D. Admissibility of Part B Documents

68. The Appellants contend that the SA, PA, Payment Vouchers, and Letter dated 16.5.2016 were all placed as Part B documents and accordingly, the learned Judicial Commissioner erred in not admitting the documents.

69. With respect, the crux of the Respondent’s case against the Appellants is that he did not sign the SA, PA, Payment Voucher, and the Letter dated 16.6.2016. Whilst the Respondent did not dispute the existence of the SA, PA, Payment Voucher and Letter dated 16.5.2016, he is disputing the authenticity of his signatures in those documents. The mere inclusion of these documents as Part B documents in the Agreed Bundle of Documents in these circumstances does not automatically render them admissible or proved in evidence. Where a party expressly disputes the authenticity of his signature in a document, section 67 of the Evidence Act 1950 requires the party relying on the document to prove that the signature is genuine. The agreed bundle is primarily a procedural convenience, and documents in Part B do not dispense with the need for formal proof where the authenticity of the signature is challenged.

70. Accordingly, in this case, the Appellants bear the legal burden of proving that the Respondent signed the documents, for example, by calling the attesting witness, the solicitor who witnessed execution, or other admissible evidence. Until such **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 proof is adduced and accepted by the court, the documents cannot be treated as validly executed or relied upon as evidence of their contents. The court is therefore not bound to admit or act upon the documents merely because they were included as Part B.

71. The Appellants complain that the learned Judicial Commissioner (as he then was) erred when he relied on the contents of the SA in his analysis to conclude that the SA was inadmissible. In particular, Clause 7 of the SA provides that in the event of a breach by the Respondent, the Appellants are entitled to claim a sum of RM 1 million from the Respondent. Yet, the Appellants did not invoke this when the Respondent filed Suit 165, suggesting that the SA was not an authentic document. It was contended that the learned Judicial Commissioner (as he then was) cannot, on the one hand, find the document inadmissible as evidence and yet, on the other hand, rely on the contents of the inadmissible document in support of the Respondent's case. This had caused prejudice to the Appellants.

72. With respect, we do not agree. The Court is entitled to refer to the contents of the impugned SA for the limited purpose of determining the authenticity or genuineness of the signature, even though the document has not yet been admitted as proved evidence of its contents. There is a critical distinction between using a document as evidence of the truth of its contents and **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 using the document as an object of examination to determine whether it was genuinely executed.

73. Where the authenticity of a signature is directly in issue, the document itself becomes the subject matter of the inquiry. The Court may examine its internal features, structure, language, and terms to assess whether they are consistent with the alleged signatory’s conduct, intention, or surrounding circumstances. Such examination does not amount to admitting the document as proof of the truth of its contents, but rather as part of the fact-finding exercise on the issue of execution.

74. Accordingly, we find no inconsistency in the learned Judicial Commissioner (as he then was) declining to treat the SA as proved or admissible evidence, while nevertheless referring to its terms as part of the evidential analysis to determine that the Respondent’s signature is not genuine. The learned Judicial Commissioner (as he then was) was not relying on the agreement to enforce its terms, but to evaluate whether it was authentically executed. E. Appellants barred from raising issues of culpability of the Respondent, and PW-6 pleaded in Suit 156

75. At the trial, the Appellants had sought to defend the Respondent’s claims by raising issues relating to the Respondent’s acquisition of the Lands from SP-6 that were the **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 subject matter of the Appellants’ claims against the Respondent in Suit 156.

76. In Suit 156, the Appellants had, inter alia, disputed the Will, the Grant of Probate given to SP-6, and the transfer of the Lands by SP-6 to the Respondent. The Appellants contended that, given the timeline of the transfer, coupled with no evidence to prove the payment for the Lands and the inconsistency of the sum in the sale and purchase agreement when compared to the memorandum of transfer, these raised the suspicion of a concerted effort between the Respondent and SP-6 to deny the Appellants their rightful inheritance from the Deceased.

77. The learned Judicial Commissioner (as he then was), however, held that the Appellants were estopped based on the principle of res judicata enunciated in Asia Commercial Finance (M) Sdn Bhd v. Kawal Telity Sdn Bhd [1995] 3 MLJ 189 (SC), from challenging the Respondent’s ownership of the Lands based on the same issues raised in Suit 156, as the Suit had been struck out with no liberty to file afresh and with costs. The Appellants contend that the learned Judicial Commissioner (as he then was) was wrong in law in so holding, as the Appellants were merely defending the action brought by the Respondent in Suit

105. Since the Appellants had not filed a positive action against the Respondent for any relief to be granted, the Appellants must be allowed to raise in their defence of the Respondent’s action, issues in relation to the Respondent's suspicious acquisition of the Lands from SP-6. **Note : Serial number will be used to verify the originality of this document via eFILING portal 31

78. It is trite that for estoppel to apply, particularly cause of action estoppel and issue estoppel, there must first be a final judicial determination on the merits. Where the action is struck out without liberty to file afresh, there is no adjudication of the issues in the action at all. The striking out order merely terminated the action procedurally. Accordingly, and with respect to the learned Judicial Commissioner (as he then was), there was in this case no room for the application of cause of action or issue estoppel as the merits of the issues raised in Suit 156 were never adjudicated upon.

79. However, we are of the view that the learned Judicial Commissioner (as he then was) was not wrong in disallowing the Appellants from raising the same issues in Suit 156 in defence of the claims in Suit 105, as it would be an abuse of process. The Appellants had already invoked the jurisdiction of the Court to challenge the Grant of Probate, the Will, and the validity of the sale of the Lands in Suit 156. When this action was struck out without liberty to file afresh, this means that the Court had expressly prohibited re-litigation of these challenges to be raised again.

80. The Appellants’ action to raise these same issues as a defence to the Respondent’s claim in Suit 105 constitutes an attempt to circumvent the earlier court order and to seek indirectly to do what they were prohibited from doing directly. As such, the learned Judicial Commissioner (as he then was) was fully entitled to prevent the Appellants from raising defences that **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 would effectively undermine the previous court order and which amount to re-litigation of matters previously abandoned or struck out without liberty. The fact that the Judicial Commissioner (as he then was) had found that the Appellants had secretly and fraudulently transferred the Lands further justifies his decision to bar the reintroduction of the issues raised in Suit 156, as it shows a lack of good faith and the manipulation of the Court process.

81. Accordingly, we reject the Appellants’ contention that the learned Judicial Commissioner (as he then was) was wrong in barring the Appellants from raising in their defence the same allegations of fraud and invalidity of the Grant of Probate, the Will, and the sale of the Lands which formed the subject of Suit 156 in the Suit 105.

82. In the premises, we find the Appellant’s Main Appeal to be without merit and is hereby dismissed with costs. Appeal Against Disqualification of Respondent’s Solicitors

83. During the trial below, after the Respondent had closed his case, the Appellants filed an application under Enclosure 183 to have the Respondent’s solicitors, Messrs Presgrave & Mathew disqualified from representing the Respondent (“the Disqualification Application”). The Disqualification Application was filed pursuant to Rule 28(a) of the Legal **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 Profession (Practice and Etiquette) Rules 1978 and under Order 92, Rule 4 of the Rules of Court 2012, which stipulates: “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 case.”

84. The basis for the Disqualification Application was the claim that the Respondent’s solicitors had purportedly registered a PA on 20.8.2018. This was premised on a receipt issued by the Court which bears the following notation: “1. PA793/2016 Pendafteran Salinan diakui sah H7263 10.00 Surat Kuasa Wakil”

85. The Appellants contended below that the aforesaid raises the question as to whether Messrs Presgrave & Mathew had filed a PA in Court, and this would require the solicitors from the firm to testify in Court at the trial.

86. The learned Judicial Commissioner (as he then was) dismissed the Disqualification Application, and the Appellants have appealed against the decision as well.

87. We find that the learned Judicial Commissioner (as he then was) did not err when he dismissed the Disqualification **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 Application. This is because the material witness on the issue of the registration of the PA was PW3, the Court clerk in charge of the PAs. He was called as a witness, and the Appellants were accorded full opportunity to cross-examine him on the issues relating to the PA, particularly, when and who had registered the PA in Court.

88. The copy of the PA, which was tendered in Court as exhibit P13(b) and (c) had been in existence prior to 20.8.2018. This was testified by PW3. More significantly, the learned Judicial Commissioner (as he then was) had, quite rightly, accepted that the receipt issued by the Court on 20.8.2018 does not at all suggest that a PA was registered. On the contrary, the word “Pendaftaran” with the corresponding RM10 fee merely means that a search was conducted by the Respondent’s solicitors and a copy of the PA that was already registered with the Court was procured.

89. Indeed, if the Respondent’s solicitors had registered a PA on 20.8.2018 as claimed, the PA number would contain the year 2018, for example, 793/2018 and not 793/2016. PW3 testified that the PA marked as P13(b) and (c) is the only copy kept in the Court, and this has been the case since its registration on 22.3.2016.

90. Accordingly, we agree with the Respondent that the notice to call the Respondent’s solicitors as a witness was wholly without any proper basis and would have been a futile exercise. The **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 Appellants also never pleaded that the Respondent had registered a fresh PA on 20.8.2018. In fact, the Appellants’ solicitors did not even cross-examine PW3 on the receipt. Instead, the Appellants had only filed the Disqualification Application after the Respondent had closed his case. We therefore do not see any merit in the appeal, and for the foregoing reasons, we also dismiss the appeal in respect of the Disqualification Application with costs Conclusion

91. In the premises, we are unanimous that both the Main Appeal and the Disqualification Application Appeal have no merits and we order the two appeals be dismissed with costs fixed at RM80,000.00 for the Main Appeal and RM8,000.00 for the Disqualification Application Appeal, both subject to payment of allocator. Date: 5th May 2026 -sgd-ONG CHEE KWAN JUDGE COURT OF APPEAL **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 For the Appellants :

1. Dato' Nicholas Kow Eng Chuan;

2. Mr. Emile Ezra bin Md Hussain; and

3. Ms. Nur Amelia Izlyn binti Azhari. (Messrs Kow, Lau & Ezra) For the Respondent :

1. Ms. Karin Lim Ai Ching;

2. Mr. A. Suppiah; and

3. Mr. Nicholas Lim Wei Jian. (Messrs Presgrave & Matthews) **Note : Serial number will be used to verify the originality of this document via eFILING portal