1] Yap Lan (P)(No. Kp: 291021-10-5016) v 1] Kong See Kuan (P) (No. KP:571231-10-5942) (BA-22NCVC-501-08/2017)

This is an application by the Defendant under Order 18 Rule 19 (1)(a) and / or (b) and/ or (d) of the Rules of Court 2012 (“ROC 2012”) dated 27 October 2017 (enclosure 8) to strike out the Plaintiff’s Writ of Summon dated 29 August 2017 and Statement of Claim dated 28 August 2017. 2

The Defendant’s claimed that the Plaintiffs’ claim is frivolous and vexatious that amounts to an abuse of Court’s process;

The cause papers for this application are as follows:

The Writ Summon dated 29 August 2017 and the Statement of Claim dated 28 August 2017 against the Defendant;

the Notis Permohonan filed by the Defendant pursuant to Order 18 rule 19 on 27 October 2017;

the Afidavit Sokongan Defendan affirmed by Kong See Kuan (p) on 26 October 2017;

the Afidavit Jawapan Plaintiff-plaintiff affirmed by

the Affidavit Jawaban Fourth Plaintiff affirmed by

the Affidavit Balasan Defendant affirmed by Kong

the Afidavit Jawaban (2) Plaintiff-plaintiff affirmed by Wong Kok Foong (L) on 28 November 2017.

To simplify the above affidavits, the claim concerns a part of the Estate. The Plaintiffs contend that they are entitled to a share of the Estate. The Plaintiffs avers that the Defendant was appointed only as Executrix and the will is silent on the distribution of the Estate. Therefore, the Defendant is supposed to distribute the testator’s estate according to the provision of the Distribution Act which the Defendant failed to do so. In the contrary, the Defendant disputes this 3 on the basis that the Wills speaks for itself and the prior conduct of the Plaintiffs. The Defendant avers that the Testator has bequeathed all his property to the Defendant as a sole beneficiary and consequently has converted the entire estate to herself either by transferring the property herself or her proxy or to some unknown third parties and/ or disposing some of the property.

Having gone through the pleadings and affidavits filed by the respective parties, I have concluded the facts below:

The Deceased, Wong Thiam Loy, passed away on 2 September 2003.

The Defendant is the lawful widow of the Deceased. The Deceased and the Defendant had two children.

The Plaintiffs are, respectively:

the mother of the Deceased (the First

(ii) the children of the Deceased (the Second to Fifth Plaintiffs”).

As at the date of the death of the Deceased, the Second to Fifth Plaintiffs were 26, 33, 29, and 22, respectively, in age; and

As at that date, the children of the Deceased with the Defendant were 16 and 19 in age.

The Deceased left a Will dated 8 May 2003 (“Will”). 4

The authenticity and contents of the Will are not in dispute.

On 9 April 2004, the Defendant applied for a grant of probate for the Deceased’s estate by way of Probate Petition No. 32-60-2004 (“Probate Petition”).

The Grant of Probate was subsequently issued to the Defendant on 19 July 2004 (“Probate”). 5 2005 Suit (Civil Suit No. MT1-22-285-2005)

Prior to the action herein, the Plaintiffs had previously filed 3 suits against the Defendant, the first being in 2005 (“2005 Suit”).

In the 2005 Suit, the Plaintiffs and the former wife of the Deceased (divorced in 8 November 1991) disputed the authenticity of the Will and, on the basis that the Deceased had died without leaving a Will, alleged that they were the beneficiaries of the Deceased’s estate by virtue of the Distribution Act 1958. - The Plaintiffs alleged that the Defendant was the mistress of the Deceased. The former wife asserted that she was the lawful widow of the Deceased. - The Plaintiffs further alleged that the Will as a forgery and that in relying on it to apply for probate, the Defendant had perpetrated a fraud. - On that basis, the Plaintiffs had prayed for, inter alia, an order that the Grant of Probate be set aside (dibatalkan) and sought the appointment of third parties nominated by them as the administrators of the Deceased’s estate.

Pertinently, the Plaintiffs did not seek any interim preservation orders in the 2005 Suit. 6

Subsequent to the filing of the 2005 Suit, the 4th Plaintiff lodged a police report dated 29 December 2005 (the “Police Report”) against the Defendant. - The Police Report is of critical significance. In it, the Fourth Plaintiff reiterated the contention that the Defendant was the mistress of the Deceased, and that she had sought to rely on a forgery of a purported will to seek probate. - Pertinently, the Fourth Plaintiff conceded that if the Will was valid, it would have the effect of leaving the whole of the Deceased’s estate to the Defendant and the Plaintiffs would not get any share of the same. The relevant parts of the Police Report were as follows : “Di dalam surat wasiat palsu tersebut, kesemua harta bapa saya telah diberikan kepada Kong See Kuan seorang sahaja dan saya serta adik beradik saya tidak diberikan apa-apa bahagian harta pusaka bapa saya."

The 2005 Suit was struck out by the Court on 8 Mac 2007 as the Plaintiffs had failed to comply with Court directions. 7 2007 Suit (Suit No. S6-22-383-2007)

On 13 April 2007, one month after the 2005 Suit was struck out, the Plaintiffs and the former wife of the Deceased filed another action against the Defendant (“2007 Suit”) . - As the Defendant had disputed that the former wife was the lawful Widow of the Deceased in the 2005 Suit, the former wife now stated that the Deceased had not divorced her and that she was the lawful widow. It was conceded that the Deceased had been living with the Defendant prior to his death. - The Plaintiffs and the former wife once again alleged that the Will was a forgery and that the Defendant had perpetrated a fraud as they had in the 2005 Suit. - They sought relief to the effect that the Will was a forgery and that the probate proceedings were an abuse of process with consequential orders.

The Plaintiffs also applied ex-parte for and obtained both the appointment of a receiver over the Deceased’s estate and a Mareva injunction against the Defendant.

The Police Report was exhibited in the Affidavit in Support affirmed by the Second Plaintiff on 12 April 8 2007 on behalf of all the Plaintiffs for the purposes of the applications for a Receiver and the Mareva injunction.

The Writ for the 2007 Suit was however served on the Defendant on 24 January 2008 - about 3 months after it had expired and the Defendant had applied to have the same set aside.

The Defendant also applied to set aside the ex-parte Mareva injunction Order and 2 Ad-Interim Orders granted by the Court.

The Plaintiffs belatedly applied to renew the 2007 Writ on 27 March 2008.

On the day of the hearing for all the applications, the Plaintiffs withdrew the 2007 suit, and were ordered to pay the Defendant costs in the sum of RM27,494.80 and allocator fees of RM2,216.00. Both remain unpaid to-date. 2015 OS (Originating Summons No. 24NCVC-119- 4/2015)

Subsequent to the withdrawal of the 2007 Suit, the Plaintiffs did not take any further steps in relation to the Defendant’s administration of the Deceased’s Estate. In particular, the Plaintiffs were content to allow the Defendant to administer the estate of the Deceased pursuant to the Grant of Probate.

In early 2015, the Defendant applied to the State 9 Government of Negeri Sembilan to have the body of the Deceased exhumed and relocated to another memorial park.

The Plaintiffs filed Originating Summons No. 24NCVC-119-4/2015 (the “Exhumation OS”) on 27 April 2015 to stop the Defendant from doing so. This was some 8 years later.

Pertinently, in these proceedings the Plaintiffs accepted that the Defendant was the executrix of the estate of the Deceased.

Though the Plaintiffs obtained an ex-parte interlocutory injunction to restrain the exhumation and relocation of the body of the Deceased, this injunction was set aside by the Court on the application by the Defendant on 13 May 2015.

Subsequent thereto, on 7 August 2015, the Plaintiffs withdrew the OS Suit with no liberty to file afresh.

On or about 28 February 2017, 13 years after the Grant of Probate was taken out, the Plaintiffs filed another suit against the Defendant. In this suit, the Plaintiffs: - accepted that the Will was valid; - accepted the validity of the Grant of Probate (no remedy was sought to set aside the Grant of Probate); 10 - disputed the correctness of the list of assets and liabilities, stating that the details provided “adalah tidak benar dan diada-adakan’’; - disputed the Defendant being entitled as a beneficiary under the Will and disputed the validity of her having distributed assets on that basis; - complained about the Defendant qua Executrix not having distributed their entitlements as beneficiaries; and, on that basis - sought that Amanah Raya Berhad be appointed as the executor the estate in place of the Defendant. (aa) The Defendant applied to strike out the First 2017 Suit on the basis that it disclosed no reasonable cause of action or was frivolous, vexatious, or an abuse of the process of the Court. The Plaintiffs opposed this application and affirmed affidavits for that purpose. (bb) On the day of the day of the hearing of the striking out application, the Plaintiffs withdrew their claim yet again, and were ordered to pay costs of RM5,000.00 to the Defendant (which remains unpaid to-date). 11

(cc) The present action is the next installment in the chequered history of this litigation.

(dd) Despite the stance taken in the 2005 Suit and the 2007 Suit, and the Police Report, the Plaintiffs now accept that the Will is valid. They contend, as they did in the First 2017 Suit that they are the true beneficiaries under the Will and that, on a true construction of the Will, the Defendant was merely appointed as Executrix. (ee) Thus, in the present action, the authenticity of the Will is not in dispute. However, the Plaintiffs are seeking to:

Set aside the Grant of Probate. The Plaintiffs now say that the Grant of Probate was made on the basis of fraudulent particulars;

(ii) The removal of the Defendant as Executrix and the appointment of Amanah Raya Berhad as executor in her place; and

(iii) The distribution of the Deceased’s estate pursuant to the Distribution Act 1958. (ff) On 27 October 2017, Enclosure 8 was filed by the Defendant to strike out the present action. 12 THE LAW OF STRIKING OUT

This application is made pursuant to Order 18 Rule 19 (1) (a)(b) and/or (d) ROC 2012 which reads as follows:-

Striking out pleadings and endorsements (O. 18, r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

The principles governing a striking out application are automatically set out in Bandar Builder Sdn. Bhd. & 2 Ors. v. United Malayan

1 MLRA 611 (FC). It is only in plain and obvious cases where it is clear that the claim is unsustainable is the power to summarily 13 strike out a case exercised. Mohamed Dzaiddin SCJ delivering the judgment of the Federal Court as follows: “….the principles upon which the Court acts in exercising its power under any of the four limbs of O.18 r.19….are well settled. It is only in plan and obvious cases that recourse should be had to the summary process under this rule………and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” …….The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defence raised are not arguable……..”

The above case and principles was also followed in the Court of Appeal judgment in Enersafe Sdn. Bhd. v. Megarina Sdn. Bhd.

2 CLJ 1021 (CA), Zulkefli Makinuddin JCA (as he then was) had said this: “….(12) We find it is most appropriate here to state the well established principle in that the power of striking out pleadings under O.18 r.19…..as invoked by the appellant in this case is too well known that it can only be exercised when the respondent’s claim on the face of it is obviously bound to fail……”

Similarly, in another Court of Appeal decision of Sivakumar a/l Varatharaju Naidu v. Ganesan a/l Retanam (2011) 6 MLJ 70, Abdul Malik Ishak JCA held that: 14 “…….the summary procedure under Order 18 Rule 19 should only be resorted to when it is conspicuously clear that the Plaintiff’s claim, on the face of it, is obviously unsustainable. The court will always strike out a claim in plain and obvious cases and where the claim in obviously unsustainable. The power to strike out must be exercised by the court sparingly. It is a rule of thumb that if it can be shown that the pleadings do disclose some cause of action or that it has raised some question fit to be decided, then the case should be set down for argument notwithstanding that the chances of success are minimal. The pleadings must be entirely hopeless, baseless or without foundation in law or in equity before they can be struck out…….”

This court is always reminded by plethora of cases that the power to strike out summarily without a trial is a drastic power which should be exercised with utmost caution and should only be exercised in plain and obvious cases (see Tractors Malaysia Berhad v. Too Chee Hing (1975) 2 MLJ 1, Bandar Builders Sdn. Bhd. v. United Malayan Banking Corporation Bhd. (1993) 3 MLJ 36).

Having scrutinized the above, I shall now consider the rival contentions of the parties. FIRST ISSUE Has the Plaintiffs admitted that the Defendant is a sole and lawful beneficiary of the Testator? 15 The Defendant’s counsel argument that the Plaintiffs are estopped from denying that the Defendant is the sole and lawful beneficiaries of the testator as they had admitted in their affidavit. The Plaintiffs had sought to rely on the Police Report for the purposes of the 2005 Suit and had in fact expressly relied on the said report in the 2007 Suit. Tellingly, in the present action, the Plaintiffs seek to distance themselves from the Police Report. The Fourth Plaintiff had, in her affidavit affirmed on 9 November 2017 and filed herein, sought to explain the context of the Police Report. The explanation given does not in any way address the fact that she had accepted in making the Police Report that the estate would devolve to the Defendant in its entirety in the event the Will was valid. The other Plaintiffs relied on the Police Report. The Plaintiffs are clearly approbating and reprobating. In Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Bhd (1995) 3 MLJ 331(CA), Gopal Sri Ram JCA (as he then was) said, at page 349 : “………..In the present case, there are contemporaneous documents to suggest that the appellant, Chemitrade and the respondent proceeded upon the assumption - an erroneous assumption of law - that the factoring agreement was indeed a good and valid assignment. The respondent's letter to the appellant of 14 February 1990, which we have earlier reproduced, is a document in point. The letter says that there has been an assignment under the factoring agreement. It was open at that stage for the appellant to dispute the construction which the respondent placed upon that agreement. But it did not do so. Instead it chose to go say otherwise? We do not think it can. It 16 would be unjust and unconscionable to permit the appellant to now challenge the meaning which the parties gave to the document………..” Similarly , the Court of Appeal in Cheah Theam Kheng v City Centre Sdn Bhd (In Liquidation) & Other Appeals (2012) 2 CLJ 16 reiterated the dicta of Sir Nicholas Browne-Wilkinson VC in Express Newspapers Pic v. News (UK) Ltd And Others [1990] 3 All ER 376 as follows : “……………There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance………... ”

With respect to the Defendant argument, to my mind the Fourth Plaintiff had, in her affidavit dated 9 November 2017 sought to explained the context of the Police Report made on 29 December

The Report described as below : “…….Di dalam surat wasiat palsu tersebut, kesemua harta bapa saya telah diberikan kepada Kong See Kuan seorang sahaja dan saya serta adik beradik saya tidak diberikan apa-apa bahagian harta pusaka bapa saya…………..” 17 In her affidavit also described the following : “……..hubungan Plaintiff-plaintiff dengan Mendiang adalah sangat baik dan adalah tidak mungkin Mendiang menyerahkan segala hartanya kepada Defendan dengan mengabaikan Plaintiff-plaintiff………” (Paragraph 30 Statement of Claim) Having read the whole content of the Statement of Claim, it has come to my mind that the Plaintiffs’ were disputing the authencity of the said will and believe that the signature of the Testator in the said Will was forged. The Testator had passed away on 2 September 2013. Nevertheless, the Defendant had never informed the Plaintiffs the existence of the said Will. Suddenly thereafter, the Defendant declared to the Plaintiffs that the Testator has given a Will to bequeath the entire estate to her. Hence all the Plaintiffs became suspicious on the authenticity of the said Will and accordingly lodged several police report against the Defendant and disputing the said Will. The Plaintiffs through their Affidavit suspicious against the authenticity of the Will as the deceased signature in the Will is different from his signature in other documents. When the Plaintiffs made a search in the National Registration Department, the Plaintiffs did not find a marriage record between the Defendant and the Deceased. It is to be noted that the Fourth Plaintiff in the previous suit even before lodging the police report, has always maintained that the appointment of the Defendant is only as the administrator. Having considered this issue, to my mind the statement in the police report was not an admission. It is clearly a denial on the 18 authenticity of the said Will. It would not make sense to allege that the Plaintiffs have confirmed the contents of the said Will according to the Defendant’s understanding when the Plaintiffs’ were disputing the authenticity of the Will itself. To say that the Plaintiffs’ had admitted that the Defendant is the sole and lawful beneficiaries at this instance is too premature. As such, it involved a triable issue that would be resolved during the trial. SECOND ISSUE Construction of the Will – is it clear and unambiguous? Has Plaintiffs any Locus Standi??

The learned counsel for the Defendant submitted that in any event, the foundation or premise of the claim is self-evidently unsustainable. The claim is grounded on a construction of the Will that is self-serving and not representative of the true meaning of the instrument. The words in the Will are clear and unambiguous and as such must be given its plain and obvious meaning. In Tan Sri Dr M Mahadevan v. Dr Jeyalakshmi Ratnavale & Ors (2017) 6 CLJ 49(CA), David Wong Dak Wah JCA delivering the judgment of the court : “……Where the court finds on the face of the will a clear, general or paramount intention to which effect can be given, and a particular or subordinate intention to which, by reason of some rule of law, the court cannot wholly or partially give effect, or which is inconsistent 19 with or does not carry out all the intentions which the testator has or is presumed to does not carry out all the intentions which the testator has or is presumed to have, then the particular intention must be rejected or modified, and the general intention of the testator be carried into effect. ………This appeal only required the Court to determine the intention of Ratnavale in his will and we did that by interpreting or construing the words used by the testator. And by applying the normal trite principles of construction of document, there was no problem in giving those words their plain and obvious meaning.”

In furtherance, the Defendant submitted that the Plaintiffs do not have the requisite locus standi as they are not beneficiaries of the Deceased on a true construction of the Will. The argument is based on Section 41 of the Probate and Administration Act 1959 provides that only an “interested” person may challenge a Will : “The Court may, on the application of any person interested, if it appears that there is reason to believe that any will or other testamentary document of a deceased person is in the possession or under the control of any person, or that any person has knowledge of the existence of such a will or document, order that the person do, within a time named, produce the will or document at the Registry, or attend at a time named before a Court, for the purpose of being examined in relation to that document.” The learned counsel would also relying on Lau Siang Kok, Lionel v. Lau Cho Kun @ Lau Yu Chak, Datuk Seri Panglima (2014) 11 20 MLJ 41119, Lee Heng Cheong JC (as he then was) : “………….In light of the authorities cited above, this court finds that the phrase 'any person interested' appearing in s 41 of the 1959 Act, is not to be interpreted to mean 'the world at large'. It should be restricted to an individual or group of individuals who have a 'recognised' interest in the estate of the deceased. The 1959 Act clearly refers to a beneficiary, a residual legatee, a creditor or a trustee and this court finds that the plaintiff does not fall into any of these categories. The plaintiff is a stranger for all intents and the purposes of the estate of the deceased as he is not a beneficiary under the will. ……..As such, since this court finds that the plaintiff is not an 'interested' person as he is not named or provided for in the will, the plaintiff does not possess the necessary locus standi to make this application for the production of the will under s 41 of the 1959 Act. Being an alleged natural or illegitimate son of the deceased, does not mean that the plaintiff falls within the meaning of the 'any person interested' as contemplated by s 41 ofthe1959 Act…………”

In regard to this issue, it is best to lay down the wording of the Will for easy reference and consideration. MY WILL I Wong Thiam Loy (NRIC No. 501023-10-6007) of No. 11, Jalan Madge, Taman U-Thant, 55000 Kuala Lumpur, of sound mind, do hereby revoke all former testamentary dispositions made by me. I hereby appoint my wife Madam Kong See Kuan (NRIC No. 571231-10-5942) to be the Sole Executrix to this my Will. By this 21 appointment, I give all my real and personal property(s) whatsoever and wheresoever, tangible and/or intangible assets, stocks, shares, cash (including any property over which I may have a general power of appointment or disposition by will) and all others not mentioned herein to my wife Madam Kong See Kuan of No. 11, Jalan Madge, Taman U-Thant, 55000 Kuala Lumpur IN WITNESS whereof I have hereunto set my hand this 8th day of May, 2003 and I hereby declare that this is my Last Will. Dated 8th May, 2003 Signed by T.T WONG THIAM LOY (NRIC No. 501023-10-6007) Witness by T.T T.T Linda Goh Lay Choon Lee Yoke Fun (NRIC No. 640909-10-7260) (NRIC NO.: 680907-01-5262) Having read and to understand the Testator’s intention, it has come to my attention of the words “By this appointment”. To my mind, it is clear that the intention of the Testator was merely to appoint the Defendant as the Sole Executrix and by that appointment the testator gave all his estate to be administered by the executrix. There is no indication in the Will to show that it was the testator's intention to deny all the other beneficiaries from benefiting from the said estate according to Distribution Act. As such, by virtue of Section 21 of Civil Law Act 1956, the estate would 22 be distributed according to Section 6 of the Distribution Act 1958 considering that the testator has died intestate. To say that the Plaintiffs’ are not the beneficiaries of the estate and are not an interested person is purely out of point. As such, this is the major issue which only can be resolved through a full trial. Section 21 Civil Law Act 1956 When any person dies or has died, having by his will, appointed any person to be his executor, the executor shall be deemed be a trustee for the person, if any, who would be entitled to the estate in case the person died intestate in respect of any residue not expressly disposed of, unless it appears by the will that the person so appointed executor was intended to take the residue beneficially. ” Section 6(1)(g) Distribution Act 1958

After the commencement of this Act, if any person shall die intestate as to any property to which he is beneficially entitled for an interest which does not cease on his death, such property or the proceeds thereof after payment there out of the expenses of due administration shall, subject to the provisions of section 4, be distributed in the manner or be held on the trusts mentioned in this section, namely: ….(g) if an intestate die leaving a spouse, issue and parent or parents, the surviving spouse shall be entitled to one-quarter of the estate, the issue shall be entitled to one-half of the estate and the parent or parents the remaining one quarter….. 23 THIRD ISSUE Has the Plaintiffs’ barred from taking action by their own laches and acquiescence ??

Before I could proceed further to consider this issue, it is best to know what is laches and acquiescence. In the case of: Alfred Templeton &Ors. v. Mount Pleasure Corp. Sdn. Bhd. (1989) 1 CLJ 693;

1 CLJ (REP) 219, Edgar Joseph Jr. J (as he then was) held that : “….Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A Court of Equity refuses its aid to a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be barred by laches. In determining whether there has been such delay as to amount to laches the Court considers whether there has been acquiescence on the plaintiff’s part and any change of position that has occurred on the part of the defendant. The doctrine of laches rests on the consideration that it is unjust to give a plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted (Halsbury's Laws of England 3rd Edn. Vol. 14 p. 641 paras. 1181, 1182). Laches has been succinctly described as "inaction with one's eyes open". …Now, can lapse of time, and delay, however gross in a suit seeking final, as opposed to interlocutory relief, of itself, amount to 24 the equitable defence of laches. It is clear that delay in some circumstances can amount to evidence from which the inference can be drawn that the plaintiff has released (or waived, there seems to be no difference) the claims which he asserts: lapse of time always gives rise to a presumption that a stale suit is ill-founded: for a reasonable man is not likely to sleep on his claims if they are well founded. Whether it does or does not is a question of fact in each case. …..It is possible to point to a number of cases in which plaintiffs have been successful in spite of spectacular delays. In England, in Burroughes v. Abbott [1922] 1 Ch 86, rectification of an instrument was granted after a delay of 12 years: in Weld v. Petrie [1929] 1 Ch 33 the Court of Appeal held that a mortgagor's redemption suit was not barred by a delay of 26 years and in Pickerring v. Lord Stamford [1795] 30 ER 787 was held that after a delay of 35 years, a portion of a testator’s residuary estate which had been devoted by ten trustees of the testator's will to charity was really held by them on trust for the testator's next of kin. In Australia, a decree of specific performance was granted by the High Court in Fitzgerald v. Masters [1956] 5 CIR 420, 26 years after the cause of action arose and in Bester v. Perpetual Trustee & Co, Ltd. [1970] 33 NSWR 30, Street J rejected a defence of laches where a plaintiff waited 20 years before commencing a suit to rescind a transaction on grounds of undue influence. There are many cases which indicate that mere delay is not a defence in Equity. In 1795, in Pickering v. Lord Stamford (ibid), Arden MR inclined to the view that delay in a situation where no statute of limitation applied, could have legal effect only if it amounted to a release implied from conduct or was coupled with detriment to the defendant or a third party. ….In Fitzgerald v. Masters (ibid) equitable relief was granted after an inordinate length of time had elapsed. On the point under 25 discussion, Dixon CJ and Fullager J at p. 433 held that there were no circumstances apart from delay for refusing relief, thereby (and in my opinion; correctly) holding that mere delay of itself cannot constitute laches. In Fullwood v. Fullwood [1878] Ch D 176, Fry J held that mere lapse of time affords no bar in Equity. My research into the authorities on the subject leads me to the conclusion that there are no fixed rules or principles on which the Court acts and each case is considered on its merits and particular facts. In the case of in Re Jarvis [1958] 2 All ER 336 Upjohn J said at p. 341: …I have been referred to a number of text books and authorities on this question of laches, acquiescence and delay, but I forbear from referring to them, for in this realm of law each case depends so much on its own facts that the citation of other cases having some points of similarity and some of difference does not really assist. In this context, the case of Lindsay Petroleum Co. v, Hurd & Ors. [1874] LR 5 PC App. Cas. 221 merits reading. The defence of laches is only allowed where there is no statutory bar (Halsbury ibid p. 641 para. 1181). Section 32 of the Limitation Act 1953 (Revised 1981), provides that "nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise…… …………… ………The term "acquiescence", like the term "laches”, is - confusingly - used in different senses. Three should be referred to: (a) It can refer to the type of estoppel of which Ramsden v. Dyson (ibid) is an example. It is this meaning which Lord Cottenham LC in Duke of Leeds v. Earl of Amherst [1846] 2 Ph 117 at 124, 41 ER 886 at 888 said was the primary meaning of 26 the term…. …Poole J in Glasson v. Fuller [1922] SASR 148 thought likewise,

It can refer to an element in one of the two kinds of laches, viz the action of a plaintiff over a long period of time, with full knowledge of his rights, refraining from exercising his rights in circumstances where it can properly infer that he has abandoned them. This is waiver, affirmation, release. This is the sense in which Hanbury uses the term when he says: …The chief element in laches is acquiescence" (c) Finally, as in evident from the question of Lord Wensleydale's speech in Archbold v. Scully [1861] 9 HCL 360 at 383; 11 ER 769 at 778 the term "acquiescence" can be used as referable only to the second type of laches considered in this chapter; i.e. the type of laches which involves prejudice to the defendant or to third parties. Sir Samuel Griffith alluded to these different senses in Cashman v. 7 North Golden Gate Mining Co. [1897] 7 QLJ 152, 153-4 where he said: ……The term acquiescence is not a term of art. It was used in Courts of equity as a term to characterize a defence which may be set up by a person against whom another makes a claim for equitable relief. It is a well-known doctrine of equity that when a person claiming equitable relief has lain for a long time and so conducted himself that it would be inequitable to permit him to complain of the defendant's actions, the Court will refuse to grant the relief. The term also bears another meaning. It may be fairly applied to a man who, seeing an act about to be done to his prejudice, stands by and does not object to it. He may be very properly said to be acquiescing in that act being done. But the difference in point of law in the legal consequences of the two kinds of acquiescence is quite clear. A man who stands by and 27 sees an act about to be done which will be injurious to himself, and makes no objection, cannot complain of that act as a wrong at all. He never has any right of action, because he stands by and allows the act to be done. Acquiescence in the other sense is a defence to an action for specific relief, on the ground that the plaintiff cannot be reinstated in his original position without doing injustice to the defendant, but it is not an answer to a cause of action already accrued. In Glasson v. Fuller (ibid), Poole J also alluded to the different meanings of the term when he said: …Acquiescence is used in two senses. If one stands by while he sees the violation of his right in progress, and takes no steps to intervene, he is said to acquiesce in the violation, and he may be thereby debarred from his remedy in respect of it. This is acquiescence in the true sense, but its effect has nothing to do with the lapse of time, and it has no relation to laches. In another sense, acquiescence is used to denote that some equitable right of A has been violated, as where he has been induced to make a gift by undue influence, or where, there is a cestui que trust, and his trustee has purchased the trust property, and that after the influence has ceased or the violation has been brought to his knowledge he assents to the continuance of the state of affairs resulting from the violation, to the retention of the gift by the donee, or of the property by the trustee. The lapse of time without proceedings being taken by A is evidence of such assent, and upon acquiescence of this latter kind the doctrine of laches is based. Acquiescence in the strict sense implies either that the party acquiescing has abandoned his right, or that he is estopped from asserting it. Acquiescence in this sense is no more than an instance of estoppel by words or conduct. Laches, acquiescence in the second sense, is no defence if there is a statute of limitation in 28 operation, unless it exceeds the period allowed by the statute…………. Similarly in the case of : Ho Min Hao & Anor v. Ho Yee Chin & Anor

4 CLJ 726, SM Komathy JC (as she then was) held that : “…..[42] The defence of laches essentially consist of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim. In this regard, Sir Barnes Peacock referred to this doctrine in these terms in Lindsay Petroleum Co v. Hurd (1874) LR 5 PC 221, 22 WR 492 (at p. 239): Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and 29 cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.... [44] In any event, mere delay by itself cannot constitute laches. I find support for my view in the decision in Alfred Templeton &Ors v. Mount Pleasure Corp Sdn Bhd [1989] 11 CLJ 693: f198911 CLJ (Rep) 219; [1989] 2 MLJ 202, where Edgar Joseph JR J (as he then was) expressed his judgment in the following terms: It is possible to point to a number of cases in which plaintiffs have been successful in spite of spectacular delays. In England, in Burroughes v. Abbott [1922] 1 Ch 86, rectification of an instrument was granted after a delay of 12 years; in Weld v. Petrie [1929] 1 Ch 33 the Court of Appeal held that a mortgagor's redemption suit was not barred by a delay of 26 years and in Pickerring v. Lord Stamford (1795) 30 ER 787, it was held that after a delay of 35 years, a portion of a testator's residuary estate which had been devoted by ten trustees of the testator's will to charity was really held by them on trust for the testator's next of kin. in Australia, a decree of specific performance was granted by the High Court in Fitzgerald v. Masters (1956) 95 CLR 420, 26 years after the cause of action arose and in Bester v. Perpetual Trustee & Co Ltd (1970) 33 NSWR 30. Street J rejected a defence of laches where a plaintiff waited 20 years before commencing a suit to rescind a transaction on grounds of undue influence. There are many cases which indicate that mere delay is not a defence in equity. In 1795, in Pickering v. Lord Stamford (1795) 30 ER 787 Arden MR inclined to the view that delay in a situation where no statute of limitation applied, could have legal effect only if it 30 amounted to a release implied from conduct or was coupled with detriment to the defendant or a third party. In Fitzgerald v. Masters (1956) 95 CLR 420 equitable relief was granted after an inordinate length of time had elapsed. On the point under discussion, Dixon CJ and Futlager J at p. 443 held that there were no circumstances apart from delay for refusing relief, thereby (and in my opinion, correctly) holding that mere delay of itself cannot constitute laches. In Fullwood v. Fullwood(1878) 9 Ch D 176 Fry J held that mere lapse of time affords no bar in equity. [45] The defendants' contention that the claim should be struck out by reason of laches fails………….”

The learned counsel for the Defendant submitted that the Plaintiffs have filed this claim more than 13 years since the Grant of Probate was taken out by the Defendant and almost 14 years after the Deceased had passed away. The Plaintiffs, having slept on their purported rights, and having not objected to the Defendant’s administration of the estate for more than 9 years since withdrawing the 2007 Suit, are barred by laches from pursuing their claim. The Defendant had in this period acted in the belief that she was the validly appointed Executrix of the estate of the Deceased, and that she was the sole beneficiary. She had conducted herself accordingly. Section 32 of the Limitation Act 1953 (“LA”) provides that : “Nothing is this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise.” The learned counsel is relying on the case of : Tan Poh Yee v. Tan 31 Boon Thien and Ors (2017) 3 CLJ 569 (CA), Idrus Harun JCA delivering the judgment of the court : “...Limitation therefore had set in after a slumber of nine years when the respondent commenced this action on 24 November 2015 which in the result effectively rendered the respondent's claim obviously unsustainable with no chance of success... ...The inaction by the fourth defendant, the late Madam and subsequently the estate of Madam from 2004 until the present day was obvious. They had been quiescent for an inordinately long time. Such long lapse of time would deny any rights that the respondent may have as the equitable doctrine of laches and acquiescence as provided under s. 32 of the Limitation Act 1953 would prevail over the remedies sought by the respondent. The respondent's claim against the appellants was clearly frivolous and vexatious rendering it obviously unsustainable. The respondent's action was indeed lacking bona fides and was an abuse of the process of the court. Such conduct attracted the application of O. 18 r. 19(1Hd) of the Rules of Court 2012 and the inherent jurisdiction to prevent abuse of the court's process... Similarly, in the case of : Cheah Kim Tong & Anor v. Taro Kaur

1 CLJ Rep 378, Peh Swee Chin J explained as follows : "…..The word 'laches' is one of the most over-worked words in legal arguments before the courts and it does not seem to have been fully appreciated for its nature. It means definitely something more than a mere delay; it means such delay amounting to acquiescence. Here the word acquiescence is not quite the same 32 acquiescence as used in equitable estoppel, where, generally a plaintiff stands by watching a violation of his right in progress and keeping silent, but here, there is a completed violation of a right and a plaintiff has become aware of it. He either assents to it, or his delay in asserting his right has been so long as to give rise to an inference of such assent. Regard must be had to the change in a defendant's position which has resulted from a plaintiff’s delay in bringing an action.” As such, the Defendant submitted that the Plaintiffs had for 13 years (since the taking out of the Grant of Probate in 2004) known and accepted that the Defendant was executing the Will accordingly and had not taken firm steps to legally challenge the Defendant. The inordinate delay of 13 years by the Plaintiffs in bringing this suit against the Defendant must be understood as demonstrating acquiescence on their part.

Having considered the argument, after reading through Section 32 of the Limitation Act, it is trite that doctrine of laches only applies to equitable claims, such as restitution, where no period of limitation is provided. To my mind, the present claim is not an equitable claim but a claim to recover trust property. Since the Plaintiffs’ action is a claim to recover trust property which is governed by Section 23 Limitation Act 1953, the doctrine of laches and acquiescence is not applicable. This is clearly reflected in the case of : Ho Min Hao & Anor v. Ho Yee Chin & Anor (2016) 4 CLJ 726, SM Komathy JC (as she then was) held that: “………..[43] It is trite that the doctrine of laches only applies to 33 equitable claims, such as restitution, where no period of limitation is provided, the present claim is not an equitable claim but a claim to recover trust property.’’ Similarly in the case of: Saad Marwi v. Chan Hwan Hua & Anor

3 CLJ 98 (CA), Gopal Sri Ram JCA delivering the judgment of the court : "Now, it is true that in some, if not all, of the cases, the court has dealt with laches as a defence to specific relief. Thus, for example, in M Ratnavale v. S Lourdenadin (supra), at p. 378, Hashim Yeop A. Sani SCJ, when delivering the judgment of the Supreme Court referred to denying the remedy of specific performance on the ground of laches. It is not difficult to appreciate the concept of an equitable defence being relied upon to meet an equitable remedy. But that is not the position here. The question that has been posed in the present appeal is whether the equitable defence of laches may be used to defeat the common law remedy of damages. I think that that question must receive an affirmative answer. …..In the first place, there is s. 32 of the Limitation Act 1953. It provides as follows: Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise. …It is important to notice that the section speaks of "any equitable jurisdiction to refuse relief" without specifying the kind of relief that may be refused, it must therefore follow that the section permits laches to be used as a 34 defence to the common law relief of damages.’’ As submitted by the learned Plaintiffs’ counsel, to invoke the defences of laches acquiescence, delay alone would not be sufficient but instead it would depend very much on the facts of the merit and each particulars of the case. Further the Plaintiffs’ counsel has given their explanation as in the submission as below :

(a)

However, this investigation progress took almost another 10 years to be completed when only on 10.09.2015 the police manage to conclude that there was no prima facie evidence to prove that the signature in the Will was forged.

All the while, the Plaintiffs and their solicitors have relentlessly pursued the development of the case with the police.

Very unfortunate for the Plaintiffs because they were waiting for the outcome of this investigation for almost 10 years. 35

The delay on the part of the police to conclude the investigation also was the reason the Plaintiffs were unable to comply to the Unless Order given by the Court for 2005 Suit which consequently cause the Plaintiffs suit to be dismissed. This also was the reason for the withdrawal of the 2007 suit. Therefore, the Plaintiffs have no choice but to wait for the outcome of the police investigation.

The Plaintiffs also was having dire financial situation crisis when the Defendant deny them from the Testator’s estate which they have been enjoying all the while. The Second Plaintiff in particular was working with his father, the Testator in one of the Testator’s company and was groomed to take over his father’s position in the company. This is proven in the Prospectus of Syarikat Major Team Holdings Berhad dated 28 August 2003 which was five days before the Testator passed away on 02 September

Later he was removed from the company.

The Plaintiffs therefore was left without job or permanent job and very unfortunate they also not very highly educated especially First Plaintiff who is the Testator’s mother and now is 88 years old.

Hence the Plaintiffs were unable to retain the solicitors and only on 2013 they could afford for a solicitor to pursue their rights.

Thereafter they have appointed an auditor pursuant to their solicitors advise to investigate and evaluate the 36 actual value of the Testator’s estate since they were denied from accessing the relevant documents from the account and auditors’ departments of the Testator’s companies and estate. However, the investigations were clearly an uphill task because most of the companies which are under the control of the Defendant did not submit their statutory reports to the Suruhanjaya Syarikat Malaysia.

All these facts clearly indicate that the Plaintiffs always taken initiative and proactive action to seek and protect their rights despite all their shortcomings. Having gone through the reasons as stated above, the Plaintiff had never at any time indicated that they are going to forsake their rights to their son’s or father’s estate. As such, to my mind, this triable issue should be explained and tried in open court. Furthermore, upon examining the Defendant’s Affidavit, nothing stated that the Defendant’s would be prejudiced by the delay. In the case of : Citi Bank Berhad v. Leong Wey Pyu & Anor (1998) 3 CLJ Supp 1, Mohd Noor Ahmad J held that : “…………..[3] It is not every delay that can constitute a valid equitable defence of laches. It depends on the facts of each case. A delay which is sufficient to amount to a waiver or which prejudiced the defendant is a good defence. Mere delay cannot constitute laches. On the facts, there was no evidence either to justify the presumption of waiver against the plaintiff or to conclude that the defendants had been prejudiced by such 37 delay. Therefore, the plaintiff need not explain the delay and furthermore, as the issue of delay was never raised in the defendant's affidavit the plaintiff could not be expected to reply to it………. ” In another case of: Abdul Razak Sheikh Mahmood & Anor v. Bhupinder Singh s/o Avtar Singh &Ors (2012) 3 MLJ 348 ,Nallini Pathmanathan J held that : “………….[67] Applying the foregoing to the current facts, the defendants submit that the plaintiffs have been far from diligent in exercising their rights, and in fact have 'slept' on the same. Enforcement of the agreements ought to have been sought soon after default became clear in 1998. Even after they reactivated matters in 2006 by writing to seek a transfer of the shop house and the subject shares, they took a further four years to initiate these proceedings in 2010. Accordingly the defendants maintain that this is a clear case of laches and that relief to the plaintiffs ought to be refused. [68] Learned counsel for the plaintiffs prevailed upon this court to give consideration to the subject of laches as admirably explained in 'The Principles of Equitable Remedies' by ICF Spry (2nd Ed): ...It is established by the course of authorities that proceedings for specific performance will not fail merely because the plaintiff has been guilty of unreasonable delay. In order that relief be refused it is necessary that it should further appear that, as a consequence of that delay, it would be unjust that the plaintiff should obtain an order of specific performance. Admittedly there have 38 been cases in which the lapse of time has been treated as itself a bar But for the greater party they are early cases which were decided at a time when the doctrine of laches had not been fully developed; ... [69] A reference to the foot note at this juncture discloses: ... Perhaps the best known of these cases is Milward v Earl Thanet (1801) 5 Ves 720n Where it was stated that relief would be refused a plaintiff who had not shown himself ‘ready, desirous, prompt, and eager1. See also Smith 1/ Clay (1767) 3 Bro CC 639 ... [70] The case of Smith v Clay (1767) 3 Bro CC 639n was relied upon in Lee Chee Omnibus (above). Spry goes on to state: ... and the few later cases which appear to follow the early decisions should be treated as either containing observations made per incuriam, or else turning upon different questions, such as the application of a limitation period by analogy, or else as depending in truth upon an inference in all the circumstances that the defendant had been prejudiced by the material delay or that there had been acquiescence. By the end of the nineteenth century it had become clear that a defendant must establish, in order to make out laches, that the delay of which he complains has caused him to be prejudiced or that for some other reason it would be unjust that specific performance be granted. Unreasonable delay alone is not enough. So in 1874 Lord Selbome (in the case of Lindsay Petroleum Co v Hurd (1874) LR PC 221 that'... the doctrine of laches applies where, through the material delay, it would be 'practically unjust to give a remedy', and he added, 39 ’Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as relates to the remedy', and in commenting upon this passage Lord Blackburn subsequently stated, I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry it must always be a question of more or less, depending on the degree of diligence which might reasonable be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it'. [71] While considerably more is said on this subject in the learned treatise, suffice to say that since the 19th century laches has been determined by applying the test put forward in the Lindsay Petroleum Co v Hurd (1874) LR PC 221 (above) case by Lord Selborne as enunciated above. Applied to this case while there is indeed considerable delay amounting to about 13 years, the crucial factor is to determine whether such delay has resulted in any acts which detrimentally affect particularly the defendant. This in turn will determine where the balance of justice lies. On the facts of this case, and based on the evidence before this court, particularly the audited annual reports of D7 where a clear notation is made that the subject property is held on trust, it appears that no steps have been taken by the defendant to deal with the property. There was no evidence of any disposition to a third party. In fact such evidence as there is discloses that the property to date is still held by D8 as the legal registered owner. All requisite taxes have 40 been paid and it would appear that the shop house has been utilised for by D7 and/or D8 throughout the years since the execution of the second agreement. To that extent it is the sums of monies paid out by D7 in respect of the property that disclose any such 'detriment' or pecuniary loss suffered by D7 and/or D8. [72] Given the foregoing this does not appear to be a case where laches would apply so as to defeat the plaintiffs' claim. While it is indeed true that no tenable explanation was forthcoming from the plaintiffs' who were unable to explain the 13 year delay, the net result of this evidence is that there was simply great delay by the plaintiffs' in seeking to recover their property. However nothing was done during that period of 13 years by D7 and/or D8 which resulted in a disposition of the subject property. As stated above the costs incurred in paying statutory taxes and annual outgoings are in any event claimed by D7 and/or D8 in the event that the court concludes there is a trust in existence in favour of the plaintiffs which defeats the limitation bar defence adopted by them. This indeed is the case. [73] In other words the plaintiffs may succeed in so far as they accept a restricted measure of relief. No prejudice is accorded to the defendants in that they are entitled to be indemnified for any expenditure undertaken in respect of the trust property, namely the shop house. In this context the plaintiffs have sought to recover damages or mesne profits for non-delivery of the vacant…………” FOURTH ISSUE Has Plaintiffs’ action statutorily barred ?? 41

The learned counsel for the Defendant had submitted as the action was commenced more than 12 years from the issuance of the Grant of Probate in 2004, the Plaintiffs’ action is statutorily barred by virtue of Section 23 Limitation Act 1952. However, upon reading the Act, I found that Section 22 of the Limitation Act is relevant to this issue.

No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action-

in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use. ” By virtue of section 22 (1) (a) of Limitation Act 1953, limitation of time would not be applicable in respect of any fraud which the Defendant as trustee was a party or privy to it. On the issue of fraud, I noticed that the Plaintiff had clearly stated in the Statement of Claim, para 10 as below: Para 10 : Butir-butir dan nilai harta simati yang disenaraikan oleh Defendan di dalam Senarai Aset dan Tanggungan simati adalah tidak benar dan diada-adakan.

Senarai Aset dan Tanggungan simati menunjukkan simati 42 Mempunyai asset bernilai RM21,450,679.90 dan liability sebanyak RM22,760,595.60

(ii) saham-saham simati di dalam beberapa buah syarikat telah Diberi nilai RM1.00 sahaja bertujuan untuk menunjukkan kepada Mahkamah dan waris-waris simati bahawa simati berhutang lebih daripada hartanya.

(iii) simati juga telah menjual harta syarikatnya, Econstates Sdn Bhd termasuk Holiday Villa Hotel di Subang Jaya dan melalui penjualan tersebut telah memperolehi hasil wang tunai sebanyak lebih kurang RM400 juta. Akan tetapi Defendan tidak memberikan maklumat di mana simati melaburkan hasil sebanyak RM400 juta itu di dalam Senarai Aset dan Tanggungan simati.

(iv) sebelum beliau meninggal dunia, simati tinggal di alamat kediaman Defendan di No. 11, Jalan Madge, Taman U-Thant, 55000 Kuala Lumpur di mana kediaman tersebut adalah kepunyaan simati ataupun adalah kepunyaan simati melalui sebuah syarikat yang dikuasai atau dimilik sepenuhnya oleh simati. Plaintif-Plaintif menyatakan bahawa nilai pasaran bangle ini adalah di dalam lingkungan RM20 juta hingga RM30 juta. Defendan tidak mendedahkan asset ini di dalam Senarai Aset dan Tanggungan simati.)

Harta Mendiang yang disenaraikan juga hanya diberikan nilai saham yang dipegang tanpa menyatakan nilai sebenar saham-saham memandangkan syarikat-syarikat yang dinyatakan tersebut mempunyai pegangan saham dalam syarikat-syarikat Iain di mana syarikat-syarikat itu juga kebiasanya adalah pemegang saham bagi syarikat syarikat lain.

(vi) Plaintif-Plaintif menganggarkan bahawa nilai sebenar harta Mendiang bernilai berates juta Ringgit Malaysia dan 43 bukannya sebagaimana yang didakwa oleh Defendan.

(vii) Oleh itu, Plaintif-Plaintif percaya bahawa adalah wajar dilantik wasi yang baru untuk harta pusaka mendiang dan harta pusaka tersebut ditaksirkan semula dan dibahagikan mengikut Akta Pembahagian Harta Pusaka (Distribution Act)”.

As the allegation of fraud by the Plaintiffs against the Defendant is also an issue, it is my considered view that the defence of limitation of time is not applicable to the Defendant by virtue of the said section. Furthermore, in paragraph 28 of the Statement of Claim, the Plaintiff have states unequivocally that the Defendant has transferred and/or disposed the Testator’s estate to herself or to her proxy or to any unknown third parties. Again this issue can only be resolved through a full trial. In the case of: Sanmaru Oversea Marketing Sdn. Bhd. & Anor v. PT Indo Food Interna Corp. &Ors. (2009) 2 MLJ 765 (CA), Zaleha Zahari JCA (as she then was) delivering the judgment of the court : “…..[27] Further, in the present case, the plaintiffs are claiming to recover trust property from the defendants. By virtue of section 22(1) of the Limitation Act 1953, an action by a beneficiary comes within the circumstances stated in para (a) or (b) of section 22, ie, there is no period of limitation…………” Similarly, in the case of: Koh Siew Keng & Anor. v. Koh Heng Jin

3 CLJ 450 (CA), Gopal Sri Ram JCA (as he then was) delivering the judgment of the court : 44 “…..[23] In my judgment s. 22(1 )(a) applies equally to the facts of this case. The appropriation by the respondent of monies he knew to belong to the testator amounts at the very least to equitable fraud or unconscionable conduct. It is settled law that that the word "fraud" wherever it appears in the Limitation Act is not limited to actual fraud at common law but Includes equitable fraud. In Sivapiran v. Lim Yoke Kong [1992] 2 MLJ 381, Eusoff Chin J said: What is the meaning of ’fraud’ in s. 29 of the Act? It may be helpful to look at the decisions of the English courts on the meaning of 'fraud', because s. 26 of the Limitation Act 1939 (UK) is in parimateria with s. 29 of the Act. The decisions of the English Court of Appeal in Beaman v. ARTS Ltd [1949] 1 AH ER 465; [1949] 1 KB 550 and Kitchen v. Royal Air Force Association &Ors [1958] 3 All ER 241; [1958] 1 WLR 563 evolved two principles. First, fraud under s. 26 of the Limitation Act (UK) does not necessarily mean deceit in the sense in which it is known in common law; and secondly, the type of conduct which amounts to fraud is the type of conduct which was known in the chancery court as equitable fraud. [24] I accept that in Sivapiran v. Lim Yoke Kong the court was concerned with s. 29 of the Limitation Act. But fraud in s. 29 cannot have a different meaning from fraud in s. 22. The respondent having committed a fraudulent breach of trust (having regard to the wider definition earlier adverted to), no period of limitation applies. [25] I must here add that if it is at any time accepted on what I most respectfully regard as the doubtful authority of Lord Browne-Wilkinson's speech in the Westdeutsche case relying on Metall und 45 Rohstoff A. G. v Donaldson Lufkin & Jenrette Inc that the respondent became a constructive trustee of the money belonging to the testator in the circumstances already recounted, then the appellant is of course entitled to rely on both limbs of a, 22 on the trust ground and thereby to defeat plea of limitation,……………..” FIFTH ISSUE Is it Res Judicata/ Estoppel??

In considering this issue, the question that comes to my mind is whether the 2005 suit and 2007 suit has been fully ventilated by the previous court? It has been agreed by both parties that the 2005 suit was struck out and 2007 suit was withdrawn. Neither of the suits was fully ventilated by the court. Having read the Plaintiff Affidavit in Reply, although the Suit 2005 was strike out but the Plaintiffs did not give up, on the contrary within a month Plaintiffs have filed a lawsuit again in year 2007. Although the Plaintiffs have obtained a Mareva Injunction at that time, however, Plaintiffs’ solicitors’ attempt to serve the Writ Summon to the Defendant had failed because the Defendant was not at home at that time. But the Plaintiffs have decided to withdraw the Suit 2007 because Plaintiffs wanted to wait for the outcome of the police’s investigation and to investigate further on the Deceased’s estate as the Plaintiffs knew that the Defendant will be using the same tactic if the said Suit 2007 goes on. In coming to my decision, I would want to refer to the case of: The Pacific Bank Berhad v. Chan Peng Leong (1998) 2 MLJ 613,which was an appeal to the Court of Appeal, the Appellant’s initial action against the 46 Respondent whom was one of the guarantors to a facilities provided by the Appellant was struck out because no proper demand was done against the guarantor. Therefore, the Appellant has filed another suit against the Respondent after proper demand was made to him. Unfortunately, High Court has again struck out the suit on the ground of res judicata. The Court of Appeal has reversed the decision of the High Court by a majority decision and Gopal Sri Ram JCA (as he then was) in delivering the judgment of the court held that : “……….The propositions formulated in these cases by the Courts of Appeal of both provinces of Canada have not only the merit of logic in their support but also truly represent the law upon the subject. In my judgment, it is of the essence, in cases of this nature, when the plea of res judicata is taken, to identify with precision the issue that was decided in the earlier proceedings, which it is contended operates as a bar to relitigation because: ...to constitute a res judicata, the earlier judgment must, in terms of the Privy Council decision in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] MLJ 49, 'necessarily and with precision' determine the point in issue (per Chang Min Tat FJ in Tong Lee Hwa & Anor v Lee Yoke San 119791 1 MLJ 24 (retd). affirmed on appeal to the Privy Council in [1981] 1 MLJ 54). In the present instance, the point in issue in the first action that was determined necessarily and with precision was that the demand upon which that action was based was invalid. There was, in other words, no demand. The first action had therefore been commenced prematurely. The bank was accordingly at liberty to issue a proper demand and to institute proceedings to enforce the guarantee 47 based upon that demand. In my judgment, neither res judicata, nor issue estoppel, nor cause of action estoppel operated to bar the second action. ” Y.A Fairuz (as he then was) also have agreed to the decision of Y. A Gopal Sri Ram has further elaborated : “…..Mengenai pemakaian doktrin res judicata, saya berpegang kepada kes yang sama yang dirujuk oleh Gopal Sri Ram HMR dalam penghakimannya — iaitu kes Tong Lee Hwa & Anor v Lee Yoke San [19791 1 MLJ 24. Kes ini dan kes Ruben v Royal Bank of Canada (1980) 110 DLR 501 (yang juga dirujuk oleh Gopal Sri Ram HMR dalam penghakimannya) menyebabkan saya bersetuju dengan Gopal Sri Ram HMR bahawa doktrin res judicata tidak boleh menghalang tindakan perayu dalam Guaman Sivil No 22- 80-94. Seperkara lagi yang dibangkitkan oleh perayu dalam affidavit jawapannya di dalam prosiding permohonan membatalkan penyata tuntutan dalam GS 22-80-94 itu ialah bahawa isu-isu substantial yang dikemukakan oleh perayu tidak pernah dibicarakan oleh Mahkamah Tinggi dalam GS 23-209-88. Perayu menegaskan bahawa tindakan itu (GS 23-209-88) telah dibatalkan hanya atas alasan bantahan prosedur. Dalam hal ini, saya teringat apa yang dikatakan oleh Gopal Sri Ram HMR semasa beliau member penghakiman Mahkamah Persekutuan dalam kes Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 13 MLJ 331 (foild} di ms 342, iaitu: ... After all, courts exist to do justice according to the law as applied to the substantial merits of a particular case……………. ” 48 In another case, the Federal Court in the case of : Syarikat Kemajuan Timbermine Sdn. Bhd. v. Kerajaan Negeri Kelantan Darul Naim (2015) 3 MLJ 609 (FC), Azhar Mohamed FCJ delivering the judgment of the court : “………[29] We agree with the above findings of the Court of Appeal. To which we will add that the decision of the registrar in the interlocutory application is not finally determinative of the limitation issue. It lacked the essential element of finality. The hearing and arguments during the interlocutory application stage were not exhaustive for the final determination of the limitation issue. It is open to the High Court at the full trial to review the limitation issue based on . the evidence, both oral and documentary, presented by the parties (see Selvaraju a/l Ponniah lwn Suruhanjaya Perkhidmatan Awam, Malaysia dan satu lagi [2006] 2 MLJ 585). The effect of the registrar's dismissal of the application for striking out was simply that at the interlocutory stage, based onthe limited material then available, the defendant was not entitled to have the plaintiffs pleadings struck out on the ground of limitation (see Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd &Ors [1988] 3 MLJ 90 and Florence Bailes v Dr Ng Jit Leong [1983] 2 MLJ 175). What is more, as we have said earlier, the application for striking out was dismissed by the registrar without providing any reasons. It is therefore not possible to ascertain with any exactness the point decided by the registrar. That is why res judicata cannot apply because to constitute a res judicata, the earlier judgment must necessarily and with precision determine the point in issue (see The Pacific Bank Bhd v Chan Peng Leong [1998] 2 MLJ 613). We agree with the submission of learned counsel for the defendant that in the circumstances of the present case the plea of 49 res judicata should not prevail. We therefore hold that the defendant is not precluded from raising the defence of limitation…………….” Finally, in the case of : Farlim Properties Sdn. Bhd. v. Goh Keat Poh & Ors and other appeal (2003) 4 MLJ 654 (CA), Mohd Noor Ahmad JCA (as he then was) delivering the judgment of the court : “……….When the plea of res judicata is raised, it is necessary to identity with precision the issue that was decided in the earlier proceedings. In Tong Lee Hwa & Anor v Lee Yoke San [1979] 11 MLJ 24. Chang Min Tat FC held that to constitute a res judicata, the earlier judgment must, in terms of the Privy Council decision in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] MLJ 49, 'necessarily and with precision' determine the point in issue. The decision was affirmed by the Privy Council in [1981 j 1 MLJ 54. ... It is trite law that for res judicata to apply the proceedings must have resulted in a final judgment or decree, that is to say, the one which adjudges the ultimate rights of the parties or finally puts the case out of court………..’’ To conclude on this issue, to my mind since the central crux of the issue concerning the Estate has not been finalized in any court, the principle of Res Judicata has no application in this matter.

In light of prematurity mentioned above, to my mind that the Defendant’s averments should be disregarded by this court and the 50 Defendants ought to have reserved their averments until after the trial in this matter.

In the light of the foregoing and in the upshot, after hearing the submission by both parties, I hold that the Plaintiff’s pleadings clearly contained issues that can only be resolved by evidences during the trial. Such determination requires further evidence which can only be adduced by examination of witnesses at a trial. I also found out that the Plaintiff’s case under the issue of Fraud is not hopeless, baseless or without any foundation in law or in equity which entitle the Defendants to strike out under Order 18 Rule 19(1)(a), (b) or (d) Rules of Court 2012. For the reasons stated above, these issues cannot in my view be used as a ground for striking out the Plaintiff’s action. In the circumstances, I dismiss the Defendant’s application herein with cost of RM 5000.00. Dated 4th June 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan 51 Counsel For the Plaintiff : Mohamed Ibrahim Mohamad (Messrs. Ibrahim & Fuaadah) For the Defendant : Balan Nair and Edwin Bak (Messrs. Thomas Philip)