Chai Jook Kew (Menyaman sebagai Pentadbir Harta Pusaka Si Mati, Chai Yen Chong) v Chai Jen Chiew (Didakwa Sebagai Wakil Diri Harta Pusaka Chai King Chong, Si Mati Menurut Perintah Mahkamah Bertarikh 30.9.2020) (W-02(NCvC)(W)-1728-10/2024)

CHAI JEN CHIEW (DIDAKWA SEBAGAI WAKIL DIRI HARTA PUSAKA CHAI KING CHONG, SI MATI MENURUT PERINTAH

CHAI JEN CHIEW …RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Di Wilayah Persekutuan Malaysia (Bahagian Sivil) Guaman No.: WA-22NCvC-66-01/2020 Antara Chai Jook Kew (No. K/P: 630902-10-6039) (Menyaman sebagai Pentadbir Harta Pusaka Si Mati, Chai Yen Chong (No. K/P: 310505-10-5363 / 4180449)) …Plaintif

Chai Jen Chiew (didakwa sebagai wakil diri harta pusaka Chai King Chong, si mati menurut perintah Mahkamah Bertarikh 30.9.2020) 23/06/2026 09:10:58

Chai Fook Chong (No. K/P: 400721-10-5375)

Chai Jen Chiew (No. K/P: 690215-10-5987) …Defendan-Defendan] (DIDENGAR BERSAMA) DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: W-02(NCvC)(W)-1759-10/2024

CHAI JEN CHIEW (MENYAMAN SEBAGAI WASI SI MATI, CHAI KING CHONG

CHAI JEN CHIEW …PERAYU-PERAYU

CHAI JOOK KEW (NO. K/P: 630902-10-6039) (DIDAKWA SEBAGAI PENTADBIR HARTA PUSAKA SI MATI, CHAI YEN CHONG

CHAI FOOK CHONG (NO. K/P: 400721-10-5375) …RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan, Malaysia (Bahagian Sivil) Guaman Sivil No.: WA-22NCvC-66-01/2020 Antara Chai Jook Kew (No. K/P: 630902-10-6039) (Menyaman sebagai Pentadbir Harta Pusaka Si Mati, Chai Yen Chong (No. K/P: 310505-10-5363 / 4180449)) …Plaintif

Chai Jen Chiew (didakwa sebagai wakil diri harta pusaka Chai King Chong, si mati menurut perintah Mahkamah

Chai Fook Chong (No. K/P: 400721-10-5375)

Chai Jen Chiew (No. K/P: 690215-10-5987) …Defendan-Defendan] CORAM: CHE MOHD. RUZIMA BIN GHAZALI, FCJ. MOHD FIRUZ BIN JAFFRIL, JCA. ONG CHEE KWAN, JCA.

These two consolidated appeals arise from a family dispute over the beneficial ownership of two properties: (i) a factory and land in Puchong, Kuala Lumpur ("the Puchong Land"); and (ii) approximately 20 acres of land at 24 Carseldine Road, Bridgeman Downs, Queensland 4035, Australia ("the Nutting Property"). Both were listed as assets of the late Chai Yen Chong ("the Deceased") in his Will dated 24.3.2005. The Deceased passed away on 22.12.2017.

The Appellant, Chai Jook Kew, sues as Administrator of the Deceased's estate. The 1st Respondent is the estate of the late Chai King Chong, represented by Chai Jen Chiew as its personal representative. The 1st Respondent is registered as the legal owner and trustee of the Puchong Land. The 2nd Respondent, Chai Fook Chong, held the Nutting Property as registered trustee. The 3rd Respondent is Chai Jen Chiew, who is sued in his personal capacity. He received the Puchong Land by way of transfer from the 1st Respondent in 2013.

Appeal No. W-02(NCvC)(W)-1728-10/2024 ("Appeal 1728") is the Appellant's appeal against the High Court Judge's ("HCJ") dismissal of: (a) the claim to recover the Puchong Land (Prayers 48(h) to (r) of the Amended Statement of Claim ("ASC")); and

the claim for accounts and restitution of AUD $1,000,000.00 from the Nutting Property sale proceeds (Prayers 48(e) to (g) of the ASC).

Appeal No. W-02(NCvC)(W)-1759-10/2024 ("Appeal 1759") is the 1st and 3rd Respondents' appeal against the HCJ's ruling that the Deceased held a 2/3 beneficial interest in the Nutting Property and his order entitling the Appellant to recover 2/3 of the net sale proceeds thereof. The Appeal also deals with the 1st and 3rd Respondents’ Counterclaim against the Appellant and the 2nd Respondent for conspiracy.

We address Appeal 1728 (Puchong Land) first, followed by Appeal 1759 (Nutting Property), before turning to the ancillary AUD $1,000,000.00 claim and the Counterclaim for conspiracy.

The Puchong Land (Lot 36109, Geran Mukim 2236, Mukim Petaling, Daerah Kuala Lumpur, also known as Lot 1031, Jalan Puchong, Batu 7, Kuala Lumpur) was registered in the name of the 1st Respondent expressly as trustee until 18.11.2013. No evidence was placed before the Court as to the identity of the beneficiary or the founding terms of that trust.

On 1.10.2013, the 1st Respondent executed a Memorandum of Transfer in favour of the 3rd Respondent. The stated consideration was love and affection. The transfer was registered on 18.11.2013.

Throughout the 1st Respondent’s trusteeship, and even after the Puchong Land was transferred to the 3rd Respondent, all rental income from the Puchong Land was remitted to the Deceased. These remittances ceased only upon the commencement of the present proceedings.

The Deceased's Will, executed on 24.3.2005 (“the Will”), expressly listed "my factory and land in Puchong", described by the exact Lot number of the Puchong Land, as an asset of his estate. The 3rd Respondent, a qualified lawyer who assisted in preparing the Will at the Deceased’s request, had full sight of its contents and raised no objection to the inclusion of the Puchong Land.

There is further undisputed evidence that the Deceased paid RM41,526.86 as the premium for the sub-division of the Puchong Land.

The Nutting Property was purchased between 1984 and 1985. It was registered in the name of the 2nd Respondent as trustee. The Will recorded that he held a 2/3 share in the Nutting Property and that the late Chai King Chong held the remaining 1/3 share.

The Nutting Property was sold in 2014 for AUD $7,350,000.00. After deducting expenses, the net proceeds amounted to AUD $6,982,737.00. The Appellant claimed 2/3 share amounts to AUD $4,429,506.67 (approximately RM12,181,143.34).

On 28.9.2015, at the 1st Respondent's request, the 2nd Respondent issued a letter of authorisation directing that the bulk of the sale proceeds be paid into the 1st Respondent's account, with a further AUD $1,000,000.00 to be paid into the 3rd Respondent's account. The payment was made on 29.10.2015.

The HCJ made the following material findings:

He dismissed the Appellant's claim to recover the Puchong Land (Prayers 48(h) to (r));

He dismissed the Appellant's claim for accounts and restitution of the AUD $1,000,000.00 (Prayers 48(e) to

(g));

He allowed the Appellant's claim that the 2nd Respondent held the Nutting Property on trust for the Deceased, ordering that the Appellant was entitled to 2/3 of the net sale proceeds, though his written grounds stated 1/2; and

He dismissed the 1st and 3rd Respondents' counterclaim for conspiracy.

Both sides appeal against parts of that decision. We now address each issue in turn.

A trust is constituted where a legal owner holds property not for his own benefit but for the benefit of another. An express trust requires the three certainties of intention, subject matter, and objects [See: Knight v Knight (1840) 3 Beav 148]. Once constituted, the trustee holds the property subject to fiduciary obligations owed to the beneficiary and cannot deal with it for his own benefit [See: Keech v Sandford (1726) Sel Cas Ch 61].

It is equally settled that a sole trustee cannot be the sole beneficial owner of property he holds as trustee. Where one person holds both capacities entirely, legal and equitable title merges and ceases to exist, and the property is held outright. As the Federal Court confirmed in David Wee Eng Siew (administrator to the estate of Lim Eang Tee, deceased) v Lim Lean Seng & Anor [2018] Supp MLJ 50, FC, where trustees hold land for defined trust purposes, the equitable interest remains with the settlor or his estate. Once the trust ends, the beneficial interest reverts to the settlor's estate by way of resulting trust.

The duty of a trustee to account to the beneficiary for all profits and income derived from the trust property is well established [See: Philipps v Boardman (1966) 3 WLR 1009, cited with approval by our Federal Court in Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors [2015] 1 MLJ 773].

A resulting or constructive trust arises where a person contributes to the purchase price of property registered in another’s name: the registered owner is presumed to hold on trust for the contributor to the extent of that contribution [See: Takako Sakao v Ng Pek Yuen [2009] 6 MLJ 751, CA (affirmed [2010] 1 MLJ 1, FC)] Similarly, the English Court of Appeal in Hussey v Palmer [1972] 3 All ER 744 held that where one party provides money or money's worth for another's property, equity will impose a constructive or resulting trust to prevent unjust enrichment, even in the absence of a formal agreement.

This principle was affirmed in Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors [2015] 1 MLJ 773 where the Federal Court held that where sub-purchasers pay for plots of land, the registered owner holds those plots on trust for the respective sub-purchasers, the equitable interest being firmly vested in those who provided the purchase money.

Section 60 of the Evidence Act 1950 (“the EA”) requires that oral testimony must be of facts personally known to the witness. Hearsay evidence is generally inadmissible.

This was the issue in Mohd Shukri bin Mat (administrator to the estate of Wan Mek bt Wan Abdullah) v Wan Rahmah bt Wan Abdullah [2018] 3 MLJ 89, CA. The Court of Appeal held that testimonies of witnesses relating to an alleged oral agreement were based not on personal knowledge but on information received from third parties, and were thus inadmissible hearsay. Hearsay evidence, even if technically admitted, carries little probative weight. Similarly, in Small Medium Enterprise Development Bank Malaysia (formerly known as Bank Perusahaan Kecil dan Sederhana Malaysia Bhd) v Lim Woon Katt [2016] 5 MLJ 220, CA, the Court of Appeal held that a party’s failure to cross-examine on vital issues may be treated as acceptance of those issues — a principle of direct relevance to the Respondents’ failure here to meaningfully challenge the 2nd Respondent’s evidence on oath.

The general burden of proof lies on the party asserting a fact [See: section 101 of the EA]. However, where sufficient evidence is adduced to establish a prima facie case, the evidential burden shifts to the opposing party to disprove that prima facie case [See: Selvaduray v Chinniah [1939] MLJ 112].

Where a party, without reasonable excuse, withholds from Court a material document within its control, the Court is entitled to draw an adverse inference under section 114(g) EA that the document would have been adverse to the withholding party [See: Munusamy v PP [1987] 1 MLJ 492, FC].

In Ng Kim Wan v Yap Chee Eng (wakil diri kepada Yap Tong Leong) [2024] MLJU 1188, CA, this Court affirmed that in a trust or beneficial ownership dispute, the claimant must first establish a prima facie entitlement on the balance of probabilities, whereupon the burden shifts to the registered owner to rebut the inference of trust. In that case, the failure to produce documentary evidence of payment was held fatal where the case rested on bare assertions.

The relevant standard of proof remains that on the balance of probabilities: Seow Hoon Hin v Hartalega Holdings Bhd & Ors [2019] 5 MLJ 421, CA, which affirmed that in beneficial entitlement disputes, the court must weigh all material evidence and determine whether the claimant’s case is more probable than not.

Section 340(1) of the National Land Code 1965 ("NLC") confers indefeasibility of title on a registered proprietor. However, section 340(2) renders registration defeasible where obtained by fraud or misrepresentation. Section 340(3) shields only a subsequent bona fide purchaser for valuable consideration without notice. A volunteer, being one who takes title without providing valuable consideration, falls entirely outside section 340(3) and takes subject to all pre-existing equities.

This was explored in detail in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697, FC, which affirmed that the burden of proving bona fide purchaser status rests on the party asserting indefeasibility. The Federal Court also held that section 340(3) NLC does not protect a purchaser who had actual or constructive notice of a prior equity. The protection is strictly confined to a purchaser who is truly innocent of any infirmity in the transaction.

An appellate court will not ordinarily disturb findings of fact made by a trial judge who had the advantage of observing witnesses. However, it is entitled to intervene where the trial court has failed to give proper weight to the totality of the evidence.

In Abdul Ravuff bin Datuk AS Dawood & Ors v Dr Abdul Rahiman bin Datuk AS Dawood (in his personal capacity and as administrator for the estate of Patama @ Ammaji Bibi bt Daud Sah) and other appeals [2022] 4 MLJ 379, CA, this Court reversed the High Court’s finding on a trust claim, holding that where the totality of the evidence points overwhelmingly to one conclusion and the trial court failed to draw that inference, the appellate court not only may but should intervene to correct the error. Appeal 1728 — The Puchong Land Issue 1: Was There a Radical Departure from the Pleaded Case?

The 1st Respondent contended that the Appellant had fundamentally altered his case at trial, shifting from an allegation of joint purchase to an allegation of gift from the Deceased's father, and that this constituted a radical departure from his pleadings which is fatal to his claim.

It is a well-established principle that a party must succeed or fail on his pleaded case and may not, at trial, depart from it to take the opposing party by surprise or cause prejudice.

However, on a careful reading of the Amended Statement of Claim, the Appellant's pleaded case was always that the 1st Respondent held the Puchong Land in trust for the Deceased. He never pleaded joint purchase. That was the 1st Respondent's own case in his Defence. He equally never pleaded a gift from the Deceased's father. The gift allegation emerged only during cross-examination of the Appellant's son, a witness who had no personal knowledge of the relevant transaction.

We find that the HCJ correctly excluded that testimony as inadmissible hearsay pursuant to section 60 of the EA. As the Court of Appeal held in Mohd Shukri bin Mat v Wan Rahmah bt Wan Abdullah [2018] 3 MLJ 89, CA (supra), hearsay testimony by a witness relaying what he was told by another is inadmissible to prove the truth of its contents and carries no evidentiary weight. Since the impugned evidence was properly excluded and not acted upon, the Respondents suffered no prejudice, and the trial proceeded on the Appellant's pleaded trust claim. Issue 2: Did the 1st Respondent Hold the Puchong Land in Trust for the Deceased?

The central question in Appeal 1728 is whether the Appellant has established on the balance of probabilities that the 1st Respondent held the Puchong Land on trust for the Deceased, and if so, whether the Respondents have discharged the consequential evidential burden of disproving that trust.

We find that the following undisputed and proven facts, taken cumulatively, establish a compelling prima facie case sufficient to shift the evidential burden to the Respondents:

The 1st Respondent held the Puchong Land as trustee and not beneficially. This was conceded. A trustee cannot hold property on trust for himself as sole beneficiary.

The Declaration of Trust was withheld. The Respondents acknowledged a Declaration of Trust dated 27.5.1982 but withheld it from the Court. Under section 114(g) of the EA, this Court draws the adverse inference that it would have identified the Deceased as the beneficiary.

All rental income was remitted to the Deceased throughout the trusteeship and even after the 2013 transfer. All rental income was remitted to the Deceased without interruption, even after the 2013 transfer — ceasing only upon the commencement of litigation. This strongly corroborates the Deceased’s beneficial ownership.

The Deceased included the Puchong Land in his Will. The 2005 Will listed "my factory and land in Puchong" and identified it by its exact Lot number. In David Wee Eng Siew v Lim Lean Seng & Anor [2018] Supp MLJ 50, FC (supra), the Federal Court affirmed that a testator’s inclusion of a property in his Will as his own asset is cogent evidence of his retained equitable interest. Suriyadi Halim FCJ stated at para [14]: “In its simplest version, a will is a written declaration of a person’s intent to distribute his property after his death. It is also called the last will and testament and through it title to property may be transferred. As the purpose of the testator of a will is to distribute property the main element of a will therefore must be property but necessitating him being the owner. Without the existence of ownership rights over the property he would not be able to will it.” There is no suggestion of fraud or impropriety in the preparation of the Will in 2005.

The 3rd Respondent, a qualified lawyer, made no objection. The 3rd Respondent assisted in preparing the Deceased’s Will and had full sight of its contents. As a qualified lawyer, he was well aware of the significance of listing a specific property as a testamentary asset. His silence is telling.

The Deceased paid RM41,526.86 as the premium for the sub-division of the Puchong Land. A person with no beneficial interest does not bear the cost of sub-dividing land. This payment is consistent only with the Deceased treating the Puchong Land as his own.

The cumulative weight of these six factors is, in our judgment, overwhelming. The evidential burden has squarely shifted to the Respondents.

The Respondents advanced four contentions to discharge that burden; none withstands scrutiny:

The 1st Respondent contends that he had intended to gift the Puchong Land to the Deceased, but the gift was never completed. With respect, this is legally untenable. As confirmed in Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd [1996] 2 MLJ 12, FC (supra), a bare trustee holds no beneficial interest of his own and cannot gift trust property. The doctrine of imperfect gift operates only in respect of a donor’s own property (Milroy v Lord (1862) 4 De GF & J 264) and has no application where the putative donor holds no beneficial title.

Next, it was contended that the Rentals were gifts. The assertion that decades of rental remittances were voluntary gifts is wholly unsupported by contemporaneous evidence. Courts do not infer repeated voluntary dispositions without cogent proof, and should be especially slow to do so where the financial consequences are significant.

The Respondents say the Deceased at some point gave up his interest. Yet the 1st Respondent's primary case is that he always owned the property because he paid the purchase price in full. These two positions are irreconcilable: if the Deceased never had an interest, there was nothing to relinquish. A party may not approbate and reprobate. Any alleged renunciation of beneficial interest must be supported by clear and unequivocal evidence.

Lastly, it was contended that the 1st Respondent had paid the purchase price. Even accepting that the 1st Respondent funded the purchase price, this does not determine the question of beneficial ownership where the land was already held under a declared trust from the outset. Whether a trust exists turns on the true economic arrangement between the parties, not merely on who physically paid the price. An advance of funds on another's behalf does not of itself defeat a beneficial interest.

Accordingly, we hold that the Respondents have failed to discharge the evidential burden. We hold that the 1st Respondent held the Puchong Land throughout in trust for the Deceased. Issue 3: Can the 3rd Respondent Claim Indefeasibility?

The 2013 transfer to the 3rd Respondent was accordingly executed in breach of trust. A trustee has no authority to alienate trust property except in accordance with the terms of the trust.

The 3rd Respondent received the Puchong Land for love and affection — no valuable consideration was paid. He is a volunteer. Section 340(3) of the NLC shields only a bona fide purchaser for valuable consideration. The 3rd Respondent, as volunteer, takes subject to all pre-existing equities and cannot invoke indefeasibility.

Further, the 3rd Respondent had actual notice of the Deceased’s interest. He assisted in preparing the Will which listed the Puchong Land as the Deceased’s asset. A person who takes title with actual knowledge of a prior equity takes subject to it and cannot rely on the NLC’s registration provisions to defeat it. The 3rd Respondent's registered title is therefore defeasible on two independent grounds.

We are unanimous that the HCJ erred in dismissing the Appellant’s claim for the Puchong Land, having failed to give adequate weight to the cumulative and compelling body of evidence. As this Court held in Abdul Ravuff bin Datuk AS Dawood & Ors v Dr Abdul Rahiman bin Datuk AS Dawood & Ors [2022] 4 MLJ 379, CA (supra), where the totality of evidence points overwhelmingly to beneficial ownership in the claimant, this Court is not only entitled but obliged to correct the trial court's error.

Appeal 1728 is accordingly allowed in relation to the Puchong Land. We grant an order in terms of Prayers 48(h) to (r) of the Amended Statement of Claim. Appeal 1759 — The Nutting Property The Pivotal Evidence: The 2nd Respondent

The critical witness in Appeal 1759 is the 2nd Respondent, Chai Fook Chong, the only living member of the family with direct personal knowledge of how and on whose behalf the Nutting Property was acquired in 1984–1985. The HCJ found him to be a reliable and credible witness.

At the time of purchase, the 1st Respondent told him that the Nutting Property was to be held 2/3 on trust for the Deceased and 1/3 on trust for the 1st Respondent. After the sale, the 2nd Respondent remitted the proceeds to the 1st Respondent on the express understanding that the 1st Respondent would share them with the Deceased. Although the 1st Respondent later sought to revise the proportion downward to 1/2, the 2nd Respondent’s evidence remained consistent throughout: the Deceased had a substantial beneficial interest.

An appellate court will not lightly disturb a trial judge's assessment of witness credibility. Where a trial judge's credibility findings are thorough, detailed, and amply supported by the record, there is no cogent reason for an appellate court to interfere. We find no basis to do so here.

The 2nd Respondent's evidence is strongly corroborated by four independent sources:

First, the Deceased's Will. The Will expressly records the Deceased's 2/3 interest in the Nutting Property as an asset of his estate. Where a testator lists a property in his will as his own, his equitable interest in that property is prima facie evidenced thereby. A person does not honestly list property he does not believe he owns as his own asset.

Second, the Deceased's handwritten note. An undated note in the Deceased's own hand reads: "King invest for Yen … (2) Invest in Australia $M1,330,000.00." The phrase "invest for" means the 1st Respondent paid on behalf of the Deceased. Any question of reimbursement gives rise to a debt, not an extinguishment of beneficial interest.

Third, the 2006 Brisbane trip and joint bank account. When a prospective buyer emerged in 2006, the Deceased and the 3rd Respondent flew to Brisbane and opened a joint bank account in anticipation of the sale proceeds. No cogent explanation was offered for why the Deceased would do so if he held no interest.

Fourth, the post-sale meetings. Four post-sale meetings were held to discuss distribution of proceeds. The Appellant’s contemporaneous letter (Common Bundle Vol. 2, p. 26) confirms that those discussions concerned the Deceased’s share. Such meetings would be unnecessary had the Deceased held no interest.

The 1st and 3rd Respondents advanced five principal contentions. We address and reject each:

First, the Deceased had no money to invest. The Deceased relied on the 1st Respondent's advance. Any outstanding reimbursement is a debt, not an extinguishment of beneficial ownership. The financial contribution by another on behalf of the beneficial owner does not defeat the latter's equitable entitlement.

Second, payment of all outgoings. Payment of outgoings is consistent with a right of reimbursement from the beneficial share. It does not extinguish the trust.

Third, imperfect gift. The 2nd Respondent's unchallenged evidence is that the trust was created from the time of purchase. It was not a prospective gift.

Fourth, renunciation of the sale proceeds. This rests exclusively on the 3rd Respondent's bare assertion. A beneficial interest cannot be extinguished by an unwitnessed, undocumented oral statement. A renunciation or release of a beneficial interest must be proved by unequivocal evidence.

Fifth, no breach by the 2nd Respondent. The finding that the 2nd Respondent did not breach his duty when he paid proceeds to the 1st Respondent (on the understanding that they would be shared with the Deceased) is entirely consistent with the Deceased having an interest. That finding addresses the 2nd Respondent's conduct, not the extent of the beneficial interests. The 2/3 Share versus the Written Grounds

The HCJ’s formal Order entitled the Appellant to 2/3 of the net sale proceeds, though his written grounds expressed entitlement to only 1/2. Where a court’s formal Order and its written grounds conflict, the formal Order prevails. In any event, the Respondents filed no cross-appeal against the 2/3 Order and cannot challenge it collaterally.

We are unanimous that the HCJ was correct to find that the 2nd Respondent held the Nutting Property on trust for the Deceased as to a 2/3 share, and that the Appellant’s beneficial interest continues in the sale proceeds. There is no basis to interfere.

The Appeal 1759 is accordingly dismissed. The AUD $1,000,000.00 Claim (Prayers 48(e)–(g))

The Appellant claims that AUD $1,000,000.00, paid at the 1st Respondent’s direction from the Nutting Property sale proceeds to the 3rd Respondent (AUD $667,000.00) and the 2nd Respondent (AUD $333,000.00), should be accounted for in favour of the Appellant’s estate.

This claim is rejected. The 1st Respondent held an undisputed 1/3 beneficial share in the Nutting Property, representing approximately AUD $2,327,579.00 of the net proceeds. The AUD $1,000,000.00 fell comfortably within his own entitlement and did not encroach upon the Appellant’s 2/3 share. A beneficiary may freely dispose of his own beneficial interest.

For dishonest assistance to arise, there must be: (i) a trust; (ii) a breach of that trust by the trustee; (iii) assistance by the defendant in that breach; and (iv) dishonesty on the defendant's part. In Novoship (UK) Ltd and others v Nikitin and others [2014] EWCA Civ 908, the English Court of Appeal confirmed that dishonest assistance requires, at its threshold, a breach of trust affecting the claimant’s assets. Where the payment is made from the defendant’s own entitlement, no such breach arises. Since the AUD $1,000,000.00 came entirely from the 1st Respondent’s own 1/3 share, no breach of trust arose in respect of the Deceased’s 2/3 share, and dishonest assistance is not made out.

Accordingly, Appeal 1728 is dismissed in respect of Prayers 48(e) to (g).

The 1st and 3rd Respondents counterclaimed that the Appellant and the 2nd Respondent had conspired to injure them. The tort of conspiracy requires proof of a combination of two or more persons with the predominant purpose of causing damage, whether by lawful or unlawful means.

There is no evidence of any such combination or tortious purpose. Pursuing a legitimate claim to recover trust property cannot constitute conspiracy. The HCJ was right to dismiss the counterclaim, and we affirm that dismissal.

For the reasons set out above, this Court makes the following orders:

In respect of Appeal 1728 relating to the Puchong Land, the appeal is allowed. An order in terms of Prayers 48(h) to (r) of the Amended Statement of Claim is granted.

(ii) In respect of Appeal 1728 in relation to the AUD $1,000,000.00, the appeal is dismissed. The HCJ's dismissal of these claims is affirmed.

(iii) The 1st and 3rd Respondents are to pay the Appellant's costs of the Appeal 1728 jointly and severally, the sum of RM50,000.00 subject to allocatur.

(iv) In respect of Appeal 1759 in relation to the Nutting Property, the appeal is dismissed. The HCJ's Order entitling the Appellant to 2/3 of the net sale proceeds of the Nutting Property is affirmed.

In respect of Appeal 1759 in relation to the Counterclaim for Conspiracy, the appeal is dismissed, with no order as to costs.

(vi) The 1st and 3rd Respondents are to pay the Appellant the costs of RM50,000.00, subject to allocatur. DATE: 9th June 2026 -sgd-ONG CHEE KWAN JUDGE COURT OF APPEAL For Appeal No.: W-02(NCvC)(W)-1728-10/2024 For the Appellant :

Krisha A/L Dallumah; and

Yong Yoong Hui. (Messrs. Krishna Dallumah & Indran) For the Respondents :

Sharmini Natalie Durai; and

Pang Yi Qing. (Messrs. Zain & Co.) For Appeal No.: W-02(NCvC)(W)-1759-10/2024 For the Appellants :

Sharmini Natalie Durai; and

Pang Yi Qing. (Messrs. Zain & Co.) For the 1st Respondent :

Krisha A/L Dallumah; and

Yong Yoong Hui. (Messrs. Krishna Dallumah & Indran) For the 2nd Respondent :

Teh Hock Leng; and

Shaafzan binti Aminullah. (Messrs. HL Teh Associates)