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) (WA-22NCvC-66-01/2020)

CHAI KING CHONG (DIDAKWA SEBAGAI WAKIL DIRI HARTA PUSAKA CHAI KING CHONG, SI MATI MENURUT PERINTAH MAHKAMAH BERTARIKH 30.9.2020)

CHAI FOOK CHONG

CHAI JEN CHIEW (NO. K/P: 690215-10-5987) …DEFENDAN-DEFENDAN 14/11/2024 16:04:33 WA-22NCvC-66-01/2020 Kand. 101

This is a family dispute between members of the Chai family with regards to 2 properties, one situated in Australia bearing the address No. 24, Carsedeline Road, Bridgemen Downs Queensland 4035, Australia (“Nutting Property”) and Lot 36109, Geran Mukim 2236, Mukim Petaling (“the Puchong Land”).

The Plaintiff is the administrator of the estate of Chai Yen Chong (‘the deceased”) whereas the 1st and 2nd Defendants are the younger brothers to the deceased and the 3rd Defendant is the son of the 1st Defendant.

The crux of the Plaintiff’s claim is that the deceased had a share in the Nutting Property as well as the Puchong Land (“the properties”). The claim by the Plaintiff is denied by the 1st Defendant (now deceased) and the 3rd Defendant who is now the representative of the 1st Defendant.

This dispute proceeded for full trial in which the parties relied on the agreed facts, issues to be tried, Bundle of Documents as well as the oral testimony of witnesses. Brief facts

The main basis for the Plaintiff’s claim for the Nutting Property is that the deceased had invested money through the 1st Defendant who was settled in Australia in the purchase of this property and therefore upon a sale of this property the deceased was entitled to his agreed share of the proceeds.

The Puchong land was an inheritance from the father of the deceased and therefore he had a share over the land together with the 1st Defendant.

The 2nd Defendant who acted as the middle man in the purchase of the Nutting property acknowledged that the deceased had a share of the property. However, his knowledge stemmed from information given by the deceased and the 1st Defendant and he had no personal knowledge of the source of funds for the purchase of this property.

The 3rd Defendant denied that the deceased had invested by part financing the purchase of the Nutting property and he contended that the entire financing was done by the 1st Defendant. The 1st Defendant however as a gratitude for his upbringing by the deceased had agreed to give a share in the Nutting property. However, the 3rd Defendant contended, later the deceased had relinquished his share over the property.

On the Puchong land the 3rd Defendant contends that it wholly belonged to the 1st Defendant and again as a gratitude to the deceased had shared some of the returns in the form of rentals with the deceased and on his death with the Plaintiff. The Nutting property

For the purchase of the Nutting property the Plaintiff has relied on a handwritten notes by the deceased which shows of his investment for the purpose of the purchase of the Nutting property.

The Plaintiff also relies on the conduct of the 1st Defendant when he was alive and the 3rd Defendant in not denying his rights to the property when he had requested for his share from them.

Further the Plaintiff relies on the oral testimony of the 2nd Defendant who is the only surviving sibling who had knowledge of the purchase of the property.

Finally, the Plaintiff relies on the deceased will which lists the Nutting property as part of the assets of the deceased.

It is clear that the burden to prove his claim rests with the Plaintiff as is stipulated under the various provisions of the Evidence Act 1950 which for ease of reference are produced here. Section 101 1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. 2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Section 104 The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact, is on the person who wishes to give the evidence.

Being guided by the above provisions the Court proceeded to analyze the evidence led by the Plaintiff: The handwritten notes

The Court allowed the handwritten notes to be admitted under section 73A (1) of the Evidence Act 1950 which stipulates as follows:

Notwithstanding anything contained in this Chapter, in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

if the maker of the statement either-

had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have had, personal knowledge of those matters; and

if the maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.

In this case if the deceased was alive, he would have been able to give oral testimony and based on the above provision any statement made by the deceased in a document which he had personal knowledge and as he is the maker but has since died, the document is admissible under the above provision.

The relevant excerpts from the hand written notes is reproduced here:

The Plaintiff testified that he had retrieved this handmade note from his father’s belonging after his death, The Defendant challenged the authenticity of the handwritten notes but led no evidence to prove it otherwise. The Court therefore rules that the handwritten notes are authentic.

The 3rd Defendant further questioned the authenticity of the contents of the notes by raising doubt as to the financial capabilities of the deceased. The Court noted that the deceased had retired as the Deputy Director General of the Malaysian Highway Authority of Malaysia and had previously worked as a civil engineer with Works Department.

The Court also noted that the deceased was a shareholder of company called Pacific Engineering Sdn Bhd and had received substantial returns from this shareholding. This fact shows that the deceased had financial capabilities as well as an interest in investing.

In the Court’s view the 3rd Defendants contention that the deceased had no financial means is unsubstantiated and a mere assumption unsupported by any concrete facts.

The Court believes the testimony of the Plaintiff that the handwritten notes tendered in Court are the deceased handwritten notes. The authenticity of the notes are also supported by the deceased’s Will which mentions Nutting property as part of the asset of the deceased and the testimony of the 2nd Defendant.

The handwritten notes indicates that the deceased had made an investment in the Nutting property. This is a reasonable inference that can be made from the hand written note. There is no other explanation besides this inference. The Court therefore finds as a fact that the deceased had invested in the Nutting property The testimony of the 2nd Defendant

The 2nd Defendant although being annoyed at being named as a Defendant as his testimony favored the Plaintiff, stated that his annoyance would not cloud his testimony, and he would testify the truth to the best of his personal knowledge. The Court regarded the 2nd Defendant as a reliable witness.

The 2nd Defendant’s testimony taken as a whole show that all instructions for the purchase and sale of the Nutting property as well as monies were given by the 1st Defendant, whereby the 2nd Defendant was informed in no uncertain terms that the deceased had a share in the property.

When the property was bought the 1st Defendant had told his the property was to be held in trust for the deceased with a 2/3 share and the 1st Defendant 1/3. On the sale of the property the 1st Defendant in the presence of the 3rd Defendant had informed that the proceeds of sale after deducting the expenditures will be shared with the deceased.

The logical inference that can be made from what the instructions and information from the 1st Defendant given to the 2nd Defendant is that the deceased had a share in the Nutting property both at the time of purchase and at the time of sale. This supports the notes written by the deceased and his Will.

The 2nd Defendant’s evidence in Court is supported by his earlier affirmation in a Statutory Declaration. The making of the Statutory Declaration by the 2nd Defendant is not a relevant fact as it is now superseded by the 2nd Defendant oral testimony in Court. However, the Statutory Declaration becomes relevant to show consistency of the 2nd Defendant’s evidence.

This is explained in section 11 of the Evidence Act 1950 as follows: Facts not otherwise relevant are relevant-

if they are inconsistent with any fact in issue or relevant fact;

if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. The deceased’s Will

The deceased’s will executed on 25/3/2005 refers to the Nutting property in the following manner “My estate in Australia consisting of A. 2 (two) pieces of land totaling about 20(twenty) acres in Bald Hill Brisbane of which 2/3 (two thirds) belong to me nad 1/3 (one third) belongs to my brother Chai King Chong which are presently registered in the names of my brother Chai Fook Chong and my sister in law Carol Chai, wife of my brother Dr. Chai Keng Chong”.

Ironically this will was prepared by the 3rd Defendant who would have been immediately aware of the deceased’s share in the Nutting property. He could have raised the matter with the 1st Defendant which he did not do, augmenting the fact that he was aware of the deceased’s share in the property.

The Will is consistent with the testimony of the 2nd Defendant and supports the fact that the deceased had a major share in the Nutting property. Conduct of the 1st and 3rd Defendants

Being aware from the very beginning about the deceased’s will the 3rd Defendant did not raise any objection to the deceased’s claim over the Nutting Property. In fact, via e mail the 3rd Defendant acknowledged the deceased’s investment in the Nutting property.

Besides that, the Plaintiff had met the 3rd Defendant on 4 occasions to claim for the deceased’s share of the proceeds of sale of the Nutting property and in none of the discussion the 3rd Defendant had denied the deceased’s share of the Nutting property or deny the Plaintiff’s right over the proceeds of sale. The conduct of the 1st Defendant in refusing to meet the Plaintiff is also telling fact.

Conduct of a person is a relevant fact to be taken into account in determining the veracity of the testimony of the person. This is clearly spelled out in section 8 of the Evidence Act 1950 as follows:

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 - The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 - When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant.

On the 4th occasion although still not denying the deceased’s share had indicated to the Plaintiff that the matter of the proceeds of sale had been settled between the deceased and the 1st Defendant.

To the Court this assertion that the deceased had relinquished his share in the Nutting property by the 3rd Defendant is just an after though and not supported by any evidence of such a settlement. As both the deceased and the 1st Defendant are dead this assertion seems to be a convenient effort by the 3rd Defendant to escape liability.

The Plaintiff had also written to both the 1st and 3rd Defendant with regards the proceeds of sale of Nutting Property but was met with silence. In the case of Wong Hong Leong V Mooraman bin Adnan [1953] 3 MLJ 283 the Court of Appeal regarded no response to correspondence as an indication of acceptance as any denial should be prompt and vigorous.

In this case the Court similarly regards the conduct of the 1st and 3rd Defendant as an acknowledgement of the rights of the Plaintiff over the share of the Nutting property. If it was otherwise both the 1st and 3rd Defendants being lawyers would have promptly and vigorously denied the Plaintiff’s claim. Court’s findings

Based on the above factors the Court finds the 3rd Defendant’s testimony that the full purchase price for the purchase of the Nutting Property was paid by the 1st Defendant is baseless. The Court finds that the deceased had paid partly as stated in the handwritten notes for the purchase of the property.

The deceased and by extension his estate is entitled to part of the proceeds of sale of the Nutting Property. The sale of the Nutting Property subsequently is not a disputed fact and neither is the sale price disputed.

The Defendant’s contends that on the sale of the Nutting Property sometime in November 2014 in a meeting between the deceased, the 1st, 2nd and 3rd Defendants the deceased had agreed to relinquish his right over the sale and agreed the proceeds of sales be divided by giving as a gift a sum of AUD 330,000 each to the 2nd and 3rd Defendant and the remainder to be transferred to the 1st Defendant.

This contention that the deceased had relinquished his interest over the Nutting Property runs counter to the 1st and 3rd Defendant’s assertion that the deceased had no interest on the Nutting property.

In the Court’s view this whole evidence of a meeting is a concoction to deny the Plaintiff’s claim especially since the 2nd Defendant himself has denied such a meeting took place. The 2nd Defendant testified that the sum of money was agreed by only the 1st Defendant and the deceased was never a part of this discussion.

In this case the Plaintiff is claiming 2/3/share of the sale price of the Nutting Property the Court however after taking into account the testimony of the 2nd Defendant who had been informed by the 1st Defendant that the deceased was entitled to ½ a share, the Court rules that the deceased is entitled to only ½ a share and not 2/3.

Further the Court also rules that the 1st Defendant as a person managing the sale was entitled to deduct the expenses associated with the sale. On a similar ground the 1st Defendant was entitled to gift the sum of AUD 330,000 to the 2nd and 3rd Defendant. The Court rules that the balance left after the deductions is to be shared equally between the deceased and the 1st Defendant.

The Court also rules that the doctrine of laches does not apply in this case as contended by the 3rd Defendant. The Plaintiff’s right of claim is from the death of the deceased and not from the purchase of the properties.

The deceased had not claimed earlier because he trusted his siblings as testified by the 2nd Defendant and had no intimation that any of his siblings would do him wrong. The Puchong land

The Puchong land being claimed by the Plaintiff is held under Lot 36109, Geran Mukim 2236, Mukim Petaling, Daerah Kuala Lumpur with the address at Lot 1031, Jalan Puchong Batu 7, Kuala Lumpur. The Plaintiff testified that this land was gifted by his grandfather to his father as a reward for the deceased taking care of his younger siblings.

The Plaintiff contends that the 1st Defendant held the land in trust for the deceased and this evidenced by the fact that rentals that were collected from the land were given to the deceased and after his death to the Plaintiff.

The Plaintiff also alleges that the land was held under a Declaration of Trust dated 27/5/1982 and the 1st Defendant as a Trustee had transferred the land to himself on 18/11/2013. Further searches at the land office showed that that the 1st Defendant transferred the land to the 3rd Defendant for natural love and affection.

The 2 issues to be determined for the Puchong land is whether the land had been correctly identified in the Will and whether the payment of rentals to the deceased and later to the Plaintiff showed their rights and interest over the land.

The 1st and 3rd Defendants in their defence deny that the Puchong land belonged to the deceased. The 3rd Defendant testified that the 1st Defendant had purchased the land with the view to gift it to the deceased but had not perfected the gift. The Court’s finding on the Puchong land

In the Court’s view the Plaintiff’s evidence that the land was a gift from his grandfather to the deceased is a mere hearsay as he heard this from the deceased and had no personal knowledge of this matter.

Further in the Court’s view the Puchong land has not been sufficiently identified in the Will where the deceased described it in paragraph 2 as “My estate in Malaysia consisting of…D. My factory and land in Puchong”.

The Plaintiff also did not adduce any evidence to proof that the transfer of the land to the 1st Defendant and subsequently to the 3rd Defendant was fraudulent. The 3rd Defendant as the registered owner therefore had indefeasible rights over the land.

This indefeasible right over the land by the 3rd Defendant can only be defeated in the manner stated in section 340 of the National Land

The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.

The title or interest of any such person or body shall not be indefeasible—

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.

The Plaintiff has failed to prove any of the circumstances in the above provision to defeat the indefeasible title of the 3rd Defendant over the Puchong land. The mere receiving of rental from the land does not confer upon the Plaintiff or the deceased any rights or even an interest over the land.

Based on the factors above the Court allowed the Plaintiff’s claim against the 1st and 3rd Defendant over the Nutting property but disallowed the claim on the Puchong land and awarded a cost of RM150, 000 to the Plaintiff against the 1st and 3rd Defendant.

On the same premise the Court disallowed the counter claim of the 1st and 3rd Defendant against the Plaintiff as there was no basis for the counter claim and merely filed just as an afterthought to counter the Plaintiff’s claim. The Court also dismissed the 2nd Defendant’s counterclaim against the 1st and 3rd Defendants

The Court also disallowed the Plaintiff’s claim against the 2nd Defendant as there was no evidence of breach of trust or any breach of fiduciary duties by the 2nd Defendant, with a cost of RM50,000 awarded to the 2nd Defendant. Dated: 14.11.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Krishna S/O V Dallumah / Y H Yong Tetuan Krishna Dallumah & Indran G-2-12, Block G, Plaza Damas, Jalan Sri Hartamas, Taman Sri Hartamas, 50480 Kuala Lumpur. For the Defendant: Nama Peguamcara: Sharmini Natalie Durai / Yi Qing Pang Tetuan Zain & Co. 6th and 7th Floors, Akademi Etiqa, 23 Jalan Melaka, 50100 Kuala Lumpur.

Wong Hong Leong V Mooraman bin Adnan [1953] 3 MLJ 283;