Her Ladyship, on the other hand, found the wife to be a credible witness and her reasons for finding the case for her appears at paragraphs 21 to 22 of the grounds of judgment as follows: [21] I find the evidence of PW to be consistent throughout and she was very clear in that she paid the monthly instalment for the housing loan for the said property and she said the money transferred from RH to her account is actually for the advances RH took from her. I am also of the opinion that if it is true that RH had been paying the loan for the said 11 property, there is not necessity for him to transfer money to the PW’s account when he can pay direct to the account as he did in 2016 (partly). Consequently, in my mind RH has not been paying for the said property and even if it is true that the transaction from page 372-373 is direct payment via the CDM to the said property account, that alone do not support RH’s evidence because as admitted by the DW1, the OCBC bank wouldn’t know who deposited the said money. I also take note that the RH has a house in Johor Bahru at No 8, Jalan Kemajuan 1, Taman Universiti, Skudai, Johor for which PW is not making any claim on this landed property. In the circumstances and on balance of probability, I am inclined to hold that RH didn’t pay for the said property as claimed by him and therefore there was no contribution made by him towards the upkeep or maintenance of said property. [22] In the circumstances of the case, it is my considered view that the said property which was irrefutably acquired by PW under her personal name before she was even married to RH, cannot be held out as being a property held on trust for the benefit of RH in the absence of materials of probative value to substantiate such a claim by RH. The evidence adduced by PW in that regard is sufficient in my mind to rebut such an unbelievable claim. If it be true that PW was holding the property on trust for RH then there 12 should be some trust instrument executed between the parties as a security measure to attest to the same and/or indorsement on the issue document of title to prove the existence of the alleged trust. The argument by RH that at the time of purchase he was not entitle to any loan since he is not working is not a factor to stop the parties from naming him as the owner thereof or holding half of the undivided share in the said property if the issue of trust is to be their intention from the outset. Though two names may appear on the issue document of title, but one person procures the loan from the bank is a known practice in the industry. Claiming a trust is one thing but legally proving it is quite another. These facts taken in totality would support an inference that it was never PW’s intention to make it a matrimonial property and/or a trust property. Consequently therefore, I am of the considered view that the said property is not caught as matrimonial asset whereby I am not obligated to divide the said property pursuant to the Act and which would be in line with the principles set out by the Court of Appeal in Yap Yen Piow’s case (supra). From the evidence presented by PW, she is solely responsible and liable to the financing bank for the purchase of the said property for which she is currently servicing the loan. Evidence would also show that RH had been staying there for free since 2010 and refuses to hand over possession to PW. Such a conduct and 13 the manner in which it was displayed would adversely reflect upon the character and credibility of RH in the circumstances of the case. In other words, the learned Judicial Commissioner was of the view that the acquisition of the house was by the sole effort of the wife before the marriage and there was no substantial improvement to it by the husband after the marriage based on the evidence and considerations made above. These two factors are the express requirements of section 76(5) of the LRA and as was cautioned by Abdul Hamid Mohamed JCA (as His Lordship then was) in Sivanes Rajaratnam v Usha Rani A/P Subramaniam (2002) 3 MLJ 273, The function of the court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into consideration the factors laid down in section 76 of the Act. It must be remembered that the court is dividing matrimonial assets and not assessing damages. In dividing matrimonial assets pursuant to a divorce, the courts in Malaysia should pay special attention to the provisions of the Act and not rely uncritically on decided cases from other jurisdictions except perhaps those from Singapore where the relevant law is similar. It is not advisable to rely ingenuously on English cases. 14 We raise this quotation because learned counsel for the husband has cited a number of English cases in support of his client’s entitlement to the property and which with respect, given the clear wordings of the said section 76(5), the court’s consideration of the claim for the matrimonial home must be based, from the facts of this case on the evidence pertaining to the monetary contribution to its acquisition and improvement. In respect of Yap Yen Piow’s case cited by the learned Judicial Commissioner in the quotation above, our attention was drawn to paragraph 11(c) of the said judgment which is reproduced below together with the earlier paragraphs: JURISPRUDENCE RELATING TO MATRIMONIAL PROPERTY AND NON-MATRIMONIAL ASSETS AND PROVISION FOR MAINTENANCE Division of assets [11] Section 76 of the LRA 1976 is the key statutory provisions to deal with the division of the property. In principle, it differentiates assets acquired during the subsistence of marriage into three types. They are as follows: 15 (c ) assets which were acquired before the marriage, but has been substantially improved by the other party or by their joint efforts. In this category, if there is no substantial improvement, the property is not subjected to division at all. In addition, if the property has been acquired before the marriage and subjected to a loan, the said property may not fall in that category (see section 76(5) of the LRA 1976). (see Lim Bee Cheng v Christopher Lee Joo Peng [1997] 4 MLJ 35; Phua Beng Hong v Ho Shik Ho [2002] 2 MLJ 289 (CA)). It must be noted that the 2 cases cited in the said paragraph (c) are distinguishable from the facts in the case before us because in Lim Bee Cheng’s case (supra), although the property was purchased by the respondent prior to the marriage but the name of the petitioner was also registered as its joint owner before the marriage was solemnised. In Phua Beng Hong’s case (supra), according to the judgment the asset which was acquired by and registered in the respondent’s name was disposed a few years after the registration of the marriage in 1972 and that the order 16 for division of property between the parties at the hearing of the petition was in respect of 2 other assets acquired after the marriage which was a landed property in Johor Bahru and a Toyota car. Coming back to facts in this appeal before us, on the evidence adduced, we have to agree with the learned Judicial Commissioner that the husband has failed to prove that he had a hand in the acquisition of and had made improvements to the matrimonial home. Issue of resulting trust Lordship then was) said at page 10 of the report said: 17 “The plaintiff having paid the entire purchase price for the land, the act of registering the land in the defendant’s name merely vested the nominal legal ownership in the later. The beneficial ownership results to the plaintiff. This is because the relationship between the parties here does not come within one of the special categories recognised by equity as creating a presumption of advancement in favour of the holder of the legal title. The very limited and well-established circumstances in which a resulting trust may arise were dealt with by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1996] AC 669, Under existing law a resulting trust arises in two sets of circumstances: (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A’s intention to make an outright transfer: see Underhill and Hayton pp. 317ff, Vandervell v. IRC [1967] 1 All ER 1 at 8, [1967] 2 AC 291 at 312ff and Re Vandervell’s Trusts (No 2), White v. Vandervell Trustees Ltd [1974] 1 All ER 47 at 63ff, [1974] Ch 269 at 288ff. (B) Where A transfers property to B on express trusts, 18 but the trusts declared do not exhaust the whole beneficial interest: ibid and Barclays Banks Ltd v. Quistclose Investments Ltd [1968] 3 All ER 651, [1970] AC 567. Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention. Megarry J in Re Vandervell’s Trusts (No 2) suggests that a resulting trust of type (B) does not depend on intention but operates automatically. I am not convinced that this is right. If the settlor has expressly, or by necessary implication, abandoned any beneficial interest in the trust property, there is in my view no resulting trust: the undisposed-of equitable interest vests in the Crown as bona vacantia: see Re West Sussex Constabulary’s Widows, Children and Benevolent (1930) Fund Trusts [1970] 1 All ER 544, [1971] Ch 1.” We pause to emphasise – if emphasis is required – that the categories of cases in which a resulting trust may arise are closed and no new category may now be admitted. In particular we would reject – as did the House of Lords in Westdeutsche Landesbank – the suggestion by Professor Peter Birks (“Restitution and Resulting Trusts” in Equity and Contemporary Legal Developments page 335 and 360) that a resulting trust should arise wherever money is paid under a mistake or when money is paid on a condition which subsequently fails.” In order to resort to the aid of a resulting trust, the husband bore the burden of proving, as in the cited case above that he paid fully for the purchase of the matrimonial home or partly as enunciated in the principle 19 just quoted above. The evidence as assessed by the learned Judicial Commissioner which we had reproduced earlier does not support that this was so at all. Thus the issue of the creation of such a trust on the facts of this case does not arise. Primarily, however, we are of the view that given the clear and explicit provision which caters for acquisition of property prior to the marriage under section 76(5), the issue of a resulting trust does not arise at all. Such a trust is only an issue for parties not in matrimony for those who are, their rights to matrimonial assets acquired before and after marriage have been adequately provided for under the LRA. In this regard, it is pertinent to refer firstly, to the preamble of LRA which states: