Ee Chong Pang v 1. ) Ee Joo Guat (MA-22NCvC-43-10/2022)

EE JOO GUAT [NRIC NO.:310520-10-5126] (Sued as a partner of Ladang Getah Heng Lee)

SOUTHERN SIERRA SDN. BHD. [COMPANY NO.:199701010330(425826-V)]

PENTADBIR TANAH DAERAH ALOR GAJAH ... DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 65 First Defendant's Application under Order 33 Rules 2 and 5 of the Rules of Court 2012) PRELIMINARY OBSERVATION [i] Before turning to the issues arising for determination on this application, the Court considers it appropriate to record its appreciation to learned counsel and their respective legal teams for the very considerable assistance rendered to the Court throughout these proceedings. [ii] Although Enclosure 65 was determined entirely upon written materials and without oral advocacy, the Court was assisted by written submissions of exceptional depth, industry, and analytical quality. The parties, through counsel and their litigation teams, undertook extensive research traversing a broad range of procedural, equitable, partnership, evidential, and land law principles arising under Malaysian law. The authorities marshalled before the Court were comprehensive and carefully selected, spanning decisions of the Federal Court, the Court of Appeal, the High Court, the former Supreme Court, the Privy Council, and persuasive Commonwealth authorities bearing upon the issues arising under Order 33 of the Rules of Court 2012. [iii] The written submissions reflected sustained attention not merely to the citation of authority, but to the underlying doctrinal architecture governing preliminary issue determinations: the distinction between disputed primary facts and the interpretation of facts admitted or otherwise indisputable; the legal incidents of partnership property under the Partnership Act 1961; the interaction between registered title and equitable interests under the National Land Code 1965; and the principles governing express trusts, waiver, acquiescence, estoppel, and the discretionary remedy of specific performance. The Court further notes that the parties addressed, with considerable thoroughness, the procedural architecture of Order 33 itself including the jurisprudential limits of separate determination proceedings, and the relationship between procedural economy and the requirements of a fair trial. [iv] The Court was further assisted by extensive documentary compilations, carefully prepared bundles of authorities, chronologies, tabulations, and supplementary references filed over the course of the proceedings. That preparation reflected substantial diligence and commitment on the part of both solicitors' teams. The Court records, in particular, the considerable effort undertaken in organising historical land records, company records, partnership materials, pleadings, affidavits, and supporting authorities spanning several decades of factual history. [v] This was not a routine interlocutory application. The issues raised traversed complex intersections between procedural law, partnership law, equity, trusts, land law, and evidential principles, set against the backdrop of a long-standing familial and commercial relationship extending over many years. The Court therefore considers it appropriate to acknowledge that the quality and depth of the written submissions materially assisted the Court in identifying the true controversies in dispute, isolating the dispositive legal questions, and arriving at a reasoned determination on the application. [vi] The Court accordingly records its appreciation to all counsel and their respective legal teams for the professionalism, diligence, and intellectual effort reflected in the conduct of these proceedings. A. INTRODUCTION [1] Before the Court is the First Defendant's notice of application dated 20 March 2023, filed as Enclosure 65, by which the First Defendant seeks the determination of nine questions framed as preliminary issues under Order 33 Rules 2 and 5 of the Rules of Court 2012, together with Order 92 Rule 4 thereof, and prays that, upon their determination, the cause of action be dismissed and judgment be entered on the terms of her counterclaim. [2] The substantive proceedings concern the ownership and disposition of undivided shares in twenty-two (22) parcels of land registered in the names of the Plaintiff and the First Defendant in the proportions of one-sixth and five-sixths respectively, and arise from the sale and transfer in January 2021 by the First Defendant of her five-sixths undivided share in four of those parcels to the Second Defendant. The Plaintiff alleges that the said twenty-two lands are partnership property of Ladang Getah Heng Lee, of which both he and the First Defendant remain partners, and that the impugned transfer was effected without his consent and is accordingly liable to be set aside. The First Defendant denies that the lands are partnership property, and counterclaims, inter alia, upon a Memorandum of Agreement and Declaration of Trust both dated 14 May 1992, by which she contends the Plaintiff agreed to transfer his one-sixth undivided share to her and declared himself a trustee of that share in her favour pending such transfer. [3] The application before the Court does not call for any determination of the merits of the action. It calls for an anterior judgment: whether the nine questions advanced by the First Defendant are appropriate for separate trial as preliminary issues and, on the wider procedural challenge raised in opposition, whether the application as framed engages Order 33 at all. [4] Two procedural matters of an ancillary character require disposition along the way. First, the First Defendant, by her reply submission dated 21 June 2023 (Enclosure 104), objects to the Plaintiff's notice of intention to use affidavit in Form 58 (Enclosure 91) by which the Plaintiff seeks to rely, in opposition to Enclosure 65, on affidavits filed earlier in the same suit in the caveat-extension and interim injunction proceedings. Secondly, the Plaintiff, by his reply submission dated 22 June 2023 (Enclosure 107) and his outline submission dated 16 September 2024 (Enclosure 125), advances a procedural challenge of a different order: that Enclosure 65 misapprehends Order 33 itself, in that the rule contemplates that the preliminary issues, once identified, are to be tried not determined on affidavit alone and that the prayers in Enclosure 65 do not seek any such trial. [5] The real legal controversy is therefore narrow but consequential: whether the application meets the threshold conditions for the exercise of the Court's discretion under Order 33 Rule 2; whether, even if it does, the material facts upon which the proposed preliminary issues depend are sufficiently undisputed to be resolved without oral evidence and cross-examination; and whether the determination invited would substantially dispose of the action so as to yield any saving of judicial time and expense. [6] These are the grounds upon which the application is decided. B. MATERIAL FACTS AND PROCEDURAL HISTORY [7] The Plaintiff and the First Defendant are siblings. The matters not in dispute, as ascertained from the pleadings and the affidavit material before the Court — namely the First Defendant's Affidavit in Support affirmed on 20 March 2023 (Enclosure 66), the Plaintiff's Affidavit in Reply affirmed on 17 April 2023 (Enclosure 74), and the First Defendant's Affidavit in Reply affirmed on 8 May 2023 (Enclosure 77) are as follows. [8] A partnership known as Ladang Getah Heng Lee was established on 17 January 1973 and registered with the Registrar of Businesses (now the Companies Commission of Malaysia) on 5 March 1973 for the conduct of a rubber estate business. The Plaintiff and the First Defendant are amongst the founding partners. They remain partners to date. Throughout the material period from 3 February 1983 onwards, the Plaintiff has held a one-sixth share in the equity of the partnership, while the First Defendant has held the remaining five-sixths. [9] In or about January and February 1973, twenty-nine parcels of land in Mukim Sungei Petai, Daerah Alor Gajah, Negeri Melaka, were acquired and registered in the names of the five founding partners (including the Plaintiff and the First Defendant) in proportions corresponding to their respective shares in the partnership. The transfers in respect of the said parcels were registered on 21 March 1973. On the same day, a charge was created in favour of Malayan Banking Berhad as security for credit facilities granted to the partnership. Seven of those parcels were transferred away in 1982 to one Lim Kim Bee, leaving a balance of twenty-two parcels (referred to in the pleadings as "the said 22 Lands"). [10] In a series of transactions in 1982 and 1983, the undivided shares of the original partners other than the Plaintiff and the First Defendant in the said 22 Lands were transferred to the Plaintiff and the First Defendant. The First Defendant contends that those transfers were effected to her in her personal capacity and for valuable consideration paid by her personally, and exhibits to her Affidavit in Support certified copies of the relevant Forms 14A under the National Land Code 1965. The Plaintiff contends that those transfers were effected to the Plaintiff and the First Defendant in their capacities as partners of the partnership, that the consideration was paid out of partnership funds, and that the Forms 14A are evidence of the registered transfer of the legal interest only and do not establish either the source of the consideration or the capacity in which the named transferees acted. The result of the transfers, as registered on the title documents kept by the Third and Fourth Defendants, is that the Plaintiff is the registered proprietor of an undivided one-sixth share, and the First Defendant the registered proprietor of an undivided five-sixths share, in each of the said 22 Lands. [11] On 14 May 1992, two documents were executed: a Memorandum of Agreement and a Declaration of Trust. The Memorandum of Agreement records, in summary, that the Plaintiff agreed to transfer his one-sixth co-proprietary interest in the said 22 Lands to the First Defendant in consideration of the First Defendant transferring 13,470 shares in Good Deal Holdings Sdn Bhd and 29,850 shares in Art Printing Works Sdn Bhd to the Plaintiff. The Declaration of Trust, executed simultaneously, contains a recital that the said 22 Lands were then encumbered by charges and that immediate transfer of the Plaintiff's share free of encumbrances was not possible, together with a declaration that the Plaintiff held his one-sixth interest on trust for the First Defendant pending such transfer. The Plaintiff, in his Reply and Defence to Counterclaim (Enclosure 52, paragraph 25), admits the execution of those two documents. [12] The First Defendant, in her Affidavit in Reply (Enclosure 77, paragraph 10) and exhibits "EJG-46" to "EJG-50" (annual returns of Art Printing Works Sdn Bhd and Good Deal Holdings Sdn Bhd for the years ended 1991, 1992, and 1993), deposes that the share transfers stipulated by the Memorandum of Agreement were duly effected from her to the Plaintiff in performance of her obligations. The Plaintiff, in his Affidavit in Reply (Enclosure 74) and his subsequent reply submission (Enclosure 107), takes issue with that proposition: he points out that the annual returns disclose changes in the shareholding of multiple shareholders of those companies, and not merely a transfer from the First Defendant to the Plaintiff, and contends that no firm inference can be drawn from those documents as to performance of the Memorandum. [13] On dates in 1983 and 1988, the said 22 Lands were charged to Maybank as security for facilities. The discharges of those charges were registered on 19 January 2021. Shortly thereafter, on 27 and 28 January 2021, transfers of the First Defendant's five-sixths undivided share in four of the said 22 Lands — namely Lot 913, Lot 914, Lot 915 and Lot 378 (referred to in the pleadings as "the said 4 Disputed Lands") were registered in favour of the Second Defendant pursuant to a Sale and Purchase Agreement dated 15 September 2020 for a total consideration of RM6,747,081.00. [14] The Plaintiff became aware of those transfers in March 2022. After exchanges of correspondence in which the First Defendant maintained her absolute personal entitlement to deal with her five-sixths share, and the Plaintiff asserted that the said 22 Lands were partnership property, the Plaintiff filed his writ on 4 October 2022. He seeks, inter alia, a declaration that the said 22 Lands are partnership property, an order setting aside the transfer of the said 4 Disputed Lands to the Second Defendant, and consequential relief. [15] The First Defendant, by her Defence and Counterclaim, denies that the said 22 Lands are partnership property; pleads that the Plaintiff is, by virtue of the Memorandum of Agreement and the Declaration of Trust of 14 May 1992, an express trustee of his one-sixth share in her favour; and counterclaims for specific performance of those instruments and for damages, including exemplary and aggravated damages. In her Affidavit in Reply (Enclosure 77, paragraph 14.1), she further deposes that the Plaintiff took into his custody, in or about 2017 or 2018, certain documents, books, and accounts of the partnership. The Plaintiff, while admitting the execution of the 1992 instruments, pleads that he had no recollection of them at the material time. The First Defendant, in her own Reply and Defence pleads that she likewise had forgotten about the existence of those instruments by reason of her advanced age. [16] On 23 December 2022, the Plaintiff filed two interlocutory applications: Enclosure 21, to extend the validity of private caveats lodged on three of the said 4 Disputed Lands; and Enclosure 22, for an interim injunction to restrain the Second Defendant from dealing with those lands. By order dated 24 May 2023, those applications were allowed pending the disposal of Enclosure 65, on the express footing that the Plaintiff had established serious questions to be tried as to whether the said 22 Lands are partnership property and as to whether the Plaintiff has relinquished his one-sixth share to the First Defendant in the manner contended for under the 1992 instruments. There has been no appeal against that order. [17] Enclosure 65 was filed on 20 March 2023. It seeks the determination of nine questions, framed as preliminary issues, which, in summary, ask:

first, whether the said 22 Lands are property of the partnership;

secondly, if the answer to the first question is negative, whether the Plaintiff and the First Defendant are at all material times the registered and absolute beneficial owners of their respective undivided shares;

thirdly, whether, on the assumption that the said 22 Lands are partnership property, the Plaintiff has any right or interest exceeding his registered one-sixth share;

fourthly, whether, by virtue of the Memorandum of Agreement and the Declaration of Trust of 14 May 1992, the Plaintiff is a trustee of his one-sixth share for the First Defendant;

fifthly, whether the Plaintiff has any caveatable interest in the said 22 Lands;

sixthly, whether the entry of caveats on the balance eighteen lands is an abuse of the caveat process;

seventhly, whether injunctive relief sought by the First Defendant by way of counterclaim ought to be granted;

eighthly, whether the sale and transfer of the said 4 Disputed Lands to the Second Defendant is valid and enforceable; and

ninthly, whether the Plaintiff ought to be ordered to pay damages, including exemplary and aggravated damages, as pleaded in the counterclaim. [18] The prayers in Enclosure 65, beyond seeking the determination of those nine questions, replicate the substantive relief sought by the First Defendant in her Counterclaim, including declarations of title, removal of caveats, mandatory orders, monetary remedies, and damages. [19] The First Defendant filed her written submission in support of Enclosure 65 on 30 May 2023 (Enclosure 82). The Plaintiff filed his written submission in opposition on 7 June 2023 (Enclosure 89), and on the same day filed in Form 58 a notice of intention to use three earlier affidavits Enclosures 23, 38, and 56 affirmed in the context of his applications in Enclosures 21 and 22 (the said notice being filed as Enclosure 91). The First Defendant filed a reply submission on 21 June 2023 (Enclosure 104), in which she objects to the Plaintiff's reliance on those earlier affidavits and develops her case on partnership property, the parol evidence rule under Sections 91 and 92 of the Evidence Act 1950, and waiver. The Plaintiff filed a reply submission on 22 June 2023 (Enclosure 107), in which he sets out, in tabular form, seven categories of material fact alleged by the First Defendant in support of her case which the Plaintiff identifies as unsupported by documentary proof and disputed. [20] On 16 September 2024, in advance of the substantive hearing, the Plaintiff filed an outline submission (Enclosure 125), accompanied by supplementary bundles of authorities. By that submission the Plaintiff for the first time advances the argument that Enclosure 65 misapprehends Order 33 of the Rules of Court 2012 itself, in that the rule contemplates that preliminary issues, once identified, are to be tried and not summarily determined on affidavit; that the prayers in Enclosure 65 do not seek any such trial but instead seek judgment on the relief in the Counterclaim; and that the application is, on that footing alone, defective. On 17 September 2024, at 19:10 hours — that is, on the eve of the hearing — the First Defendant filed a 146-page document styled "First Defendant's Clarification" (Enclosure 129). On 20 September 2024, two days after the hearing had concluded, she filed a further 170-page document, similarly styled (Enclosure 131), being a re-filing of Enclosure 129 with appendices comprising copies of pleadings and certain partnership accounts. Despite their nomenclature, Enclosures 129 and 131 are not brief clarifications of any specific point arising at the hearing; they are comprehensive restatements of the First Defendant's case in twenty-five parts. They reorganise and develop the case made in her Written Submission (Enclosure 82) and her Reply Submission (Enclosure 104), and develop in particular a new line of argument — that the partnership accounts exhibited by the Plaintiff himself record no receipt of consideration referable to any of the 1979-1983 transfers, which (the First Defendant says) is dispositive of the partnership-property issue. They also rely upon a number of further authorities, including Jemix Co Ltd v Jemix Heat Treatment (M) Sdn Bhd & Ors [2019] MLJU 74 (High Court) on express trust, Agromate (M) Sdn Bhd v Felcra Niaga Sdn Bhd [2022] 5 MLJ 501 on the requirements of waiver, MD Biomedical Engineering (M) Sdn Bhd v Goh Yong Khai [2021] 5 MLJ 408 (Court of Appeal) on the recovery of legal costs of caveat-removal as damages, and the Specific Relief Act 1950, sections 11 and 12. The Court has had regard to those further matters in the analysis which follows. [21] After the conclusion of the hearing on 18 September 2024, further procedural steps were taken in this matter. The solicitors on record for the First Defendant ceased to act, and Mr Alan Ong was substituted as counsel. Leave was thereafter sought, and granted, for the First Defendant to file a further affidavit directed specifically to the question of performance of the share-transfer obligations under the Memorandum of Agreement. That further affidavit was duly filed as Enclosure 181, and exhibits, inter alia, the relevant directors' resolutions, the Forms 32A under the Companies Act 1965, the cancelled share certificates, and extracts from the registers of members of Art Printing Works Sdn Bhd and Good Deal Holdings Sdn Bhd. The Plaintiff filed reply affidavits as Enclosures 183 and 184, in which he takes issue with the documents exhibited in Enclosure 181 on several grounds including that certain of the records are unpleaded, unsigned, or of doubtful provenance, that the documents do not address the agreed numbers of shares stipulated in the Memorandum, and that, in any event, the question of performance is intertwined with subsequent conduct said to have rendered the trust unenforceable. The First Defendant filed a further affidavit in reply as Enclosure 186. The matter was thereafter brought back for further submissions confined to the new evidence; those submissions have been considered in the relevant section of the analysis below. [22] The Second, Third, and Fourth Defendants did not make any submissions on Enclosure 65. C. ISSUES FOR DETERMINATION [23] Five issues fall for determination on Enclosure 65, in the following sequence. [24] First, whether the application as framed in Enclosure 65 properly engages Order 33 Rules 2 and 5 of the Rules of Court 2012, having regard to the procedural architecture of the rule and the relief actually sought by the application. [25] Secondly, whether, and to what extent, the Plaintiff is entitled to rely, in opposition to Enclosure 65, on the affidavits identified in his notice of intention to use affidavit (Enclosure 91); and what consequences, if any, follow from any procedural irregularity in their introduction. [26] Thirdly, whether the proposed preliminary issues, taken individually and collectively, are appropriate for separate trial under Order 33 Rule 2, having regard to the established conditions for the exercise of that power. [27] Fourthly, whether the material facts on which the answers to those questions depend are admitted, undisputed, or otherwise indisputable, such that the questions may properly be determined as preliminary issues without trespassing upon matters that ought properly to be tried. [28] Fifthly, whether the determination of the proposed preliminary issues, if undertaken, would substantially dispose of the action or render its trial unnecessary, so as to result in a substantial saving of time and expenditure within the meaning of Order 33 Rule 5 having regard, in particular, to the position of the Second Defendant, against whom relief is also sought in the action. D. STATUTORY AND LEGAL FRAMEWORK [29] Order 33 of the Rules of Court 2012, so far as material, provides as follows. [30] Rule 2 confers upon the Court a discretion in these terms: "The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated." [31] Rule 3(2) provides: "In any such action, different questions or issues may be ordered to be tried by different modes of trial and one or more questions or issues may be ordered to be tried before the others." [32] Rule 5 supplies the consequential power: "If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just." [33] The discretion conferred by Rule 2 is wide. It is not, however, unfettered. The principles which guide its exercise are now well settled and must be considered in turn. [34] First, the touchstone is whether the separate trial of the proposed question or issue will result in a substantial saving of time and expenditure in respect of the trial of the action as a whole. The Court of Appeal in Petroleum Nasional Bhd v Kerajaan Negeri Terengganu & Another Appeal [2004] 1 MLJ 8 (Court of Appeal) held that the orders under Order 14A and Order 33 are alternative procedural avenues by which a litigant may seek the early disposal of an action without resort to a full trial; the underlying objective in either case is the avoidance of unnecessary expense and delay. [35] Secondly, the Court is to make a real and serious attempt to identify the material facts pleaded which are obviously undisputed or which should not have been disputed, and to apply the relevant rule to the facts as found. As Abdul Hamid Mohamad JCA (as His Lordship then was) observed in Petroleum Nasional Bhd (supra), no party has any liberty to disagree merely for the sake of disagreement to a fact obviously undisputed. [36] Thirdly, the proposed question must be one which can fairly be determined upon undisputed or indisputable facts. An application under Order 33 Rule 2 is not appropriate where the material facts are in dispute, or where extrinsic evidence is required to be adduced for their resolution. As Vincent Ng J (as His Lordship then was) held in Krishnan Rajan a/l N Krishnan v Bank Negara Malaysia & Ors [2003] 1 MLJ 149 (High Court), Order 33 Rule 2 confers a wide discretion to order any question, whether of fact or law or partly of fact and partly of law, to be tried separately, but the application is not appropriate where the facts are in dispute or where extrinsic evidence is required, the overriding consideration being whether the application would result in a substantial saving of time and expenditure. [37] Fourthly, the agreed or undisputed facts must deal completely with the issues that are intended to be raised for disposal. In Hiap Soon Hong Sdn Bhd v Leopad Assets Sdn Bhd [2018] 1 LNS 664 (Court of Appeal), the Court of Appeal said: [26] In this respect, we are obliged to note that O.33 r.2 and also O.33 r.5 ROC 2012 are intended to save time and unnecessary costs by avoiding the substantial expense of a trial. However, in order for Order 33 to have any efficacy, it is necessary for the judge to ensure, at the outset, that the relevant facts are not disputed... [27] Additionally, such agreed facts must deal completely with the issues or questions that are intended to be raised for disposal under Order 33... [28] In the event that the parties are unable to agree to the facts that are necessary for the disposal of the issues or questions, the judge must decline to proceed further and set the matter down for trial." [38] The same orientation is reflected in the principle, recognised by the Federal Court in Koh Jui Hiong @ Koa Jui Heong & Ors v Ki Tak Sang @ Kee Tak Sang and another appeal [2014] 3 MLJ 10 (Federal Court), that ordinarily facts must be settled before the law applicable to them is decided. [39] Fifthly, the rule is concerned with the resolution of issues by interpretation of facts, and not with the finding of facts which must properly be left to a trial. Where the resolution of an issue depends upon assessing the credibility of competing accounts, the conduct and intention of the parties, or the weighing of competing inferences from disputed primary records, the rule has no proper application. The principle is reflected in Mat Shah bin Safuan v Amber Memory Sdn Bhd [2019] 1 LNS 2356 (High Court): the use of Order 33 Rule 2 is only in matters that require interpretation of facts rather than findings of fact which must be left to a full trial; even a minor point of dispute on facts which must be resolved by making a finding of fact takes the matter outside the rule. To the same effect is the observation of the Supreme Court in Ting Ling Kiew & Anor v Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217 (Supreme Court), that conflicts in the evidence can only be properly resolved by oral evidence and cross-examination, and that it is most inappropriate to decide disputed facts summarily by relying simply on affidavit evidence. [40] Sixthly, the discretion is to be exercised with caution, the more so where the questions posed, although superficially crisp, are intricately bound up with the merits of the substantive dispute. As Roche J observed in Isaacs & Sons Ltd v Cook [1925] 2 KB 391, and as adopted in this jurisdiction in Heah Theare Haw v Chin Kim Gan & Anor [2016] 1 LNS 442 (High Court): "A preliminary trial should not be ordered on matters where there is obscurity of facts or law or both, or where the application of the principles of law are wholly dependent on facts which have yet to be determined. It should only be ordered in respect of matters on which no further light would be thrown at the trial." [41] Seventhly, and as a related point, an application of this kind ought not to be ordered where the resolution of the proposed preliminary issue would require resolution of conflicting evidence on motive, intention, or contemporaneous conduct. The Federal Court in Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George Fernandez & Anor [1989] 1 MLJ 35 (Supreme Court) stated where there is a conflict of evidence, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities is of great assistance to a judge in ascertaining the truth an exercise that, in the nature of things, presupposes a trial. [42] Eighthly, the discretion may be exercised even where the question is one of mixed fact and law, and the Court is not precluded from taking advantage of the rule merely because the case is, on its surface, complicated. As the Court of Appeal observed in Anne Lim Keng See v The New Straits Times Press (M) Bhd & Anor [2008] 3 MLJ 492 (Court of Appeal), where the determination of a preliminary question would substantially dispose of the whole action, the rule provides a useful procedural facility of which advantage should not be denied. But that is so only where the preconditions just enumerated are satisfied. The general rule, derived from the Singapore Court of Appeal in Federal Insurance Co v Nakano Singapore (Pte) Ltd [1992] 1 SLR 390 and adopted by this Court in Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2007] 7 MLJ 706, is that the Court will not order a preliminary point to be tried unless the trial of that issue will result in a substantial saving of time and expenditure. [43] Ninthly, it is to be acknowledged and the First Defendant rightly emphasises this that Order 33 is not confined to pure questions of law. It may extend to issues of fact or of mixed fact and law. The authorities cited by the First Defendant in support of that proposition, including Tan Poo Yot and Ong Siang Pheng, do not stand for any wider proposition. They confirm what the text of Rule 2 itself contemplates: a broader subject-matter than that of Order 14A. But that broader subject-matter does not relax the conditions for invoking the rule. Every factual controversy may not be resolved under Order 33. The governing inquiry remains one of suitability, utility, fairness, and procedural economy. Order 33 is broader than Order 14A; it is not looser. Where the determination of a proposed preliminary issue would require viva voce evidence, cross-examination, or findings on intention, knowledge, timing, conduct, or credibility, the matter must proceed to trial. The procedural architecture of Order 33 also bears emphasis. The text of the rule speaks of questions or issues being ordered to be tried; Rule 3(2) speaks of different modes of trial; Rule 5 speaks of issues that have been tried separately. The rule is one for the determination of preliminary issues by way of a trial; it is not a parallel route to summary judgment, nor a vehicle by which the substantive relief sought in pleadings may be obtained on affidavit. The point is reflected in the practice notes (see, e.g., Atkin's Court Forms, Vol 31(1)) and in the High Court's observation in Gold Coin Feedmills (Malaysia) Sdn Bhd v Teoh Choon Leng & Anor [2024] MLJU 700 (High Court), where the Court spoke of a two-step approach: first, the identification of suitable questions of law or fact for determination; and secondly, the trial of those questions. Where, as in Lexi Holdings Plc v Pannone & Partners [2009] EWHC 3507, the absence of any agreement on the underlying facts is itself a factor against ordering a preliminary issue, the same logic obtains here: an application that proceeds upon contested affidavit material, with no statement of agreed facts, is not the species of application Order 33 was designed to accommodate. [45] These principles, taken together, define the territory within which the discretion must be exercised. They must now be applied to the application before the Court, beginning with the threshold question of procedural architecture. E. ANALYSIS AND DETERMINATION E.1 The Nature and Scope of the Proposed Preliminary Issues [46] It is convenient to begin with an examination of the nine questions which the First Defendant invites the Court to determine in advance of trial. The exercise is not one of mere counting; it is an examination of substance. A question may be styled "preliminary" without being so in any meaningful sense. Although the First Defendant has formulated the questions in conditional propositions, their cumulative effect is to seek the determination, in advance of trial, of every contested issue arising upon the pleadings. Question 1 asks the Court to decide the central issue of partnership property. Question 4 asks the Court to decide the central issue of the express trust. Questions 5 to 7 ask the Court to decide questions of caveatable interest, abuse of process, and injunctive relief, all of which are predicated upon the answers to Questions 1 and 4. Question 8 asks the Court to decide the validity and enforceability of the sale and transfer of the said 4 Disputed Lands to the Second Defendant. Question 9 asks the Court to decide the Plaintiff's liability in damages, including exemplary and aggravated damages. [48] When stripped of the conditional formulae which connect them, the nine questions are not preliminary issues. They are, in their cumulative effect, the action itself. They embrace all the disputed matters between the Plaintiff and the First Defendant on the principal claim, the entirety of the First Defendant's counterclaim, and the totality of the relief which she seeks therein, including damages. [49] It does not follow that an application under Order 33 Rule 2 is for that reason alone impermissible. The rule contemplates that, in an appropriate case, the entire dispute between the parties may be disposed of in advance of a full trial. The Court of Appeal made this clear in Petroleum Nasional Bhd (supra), where it was held that, in a fit case, even an entire cause or matter may be determined under the rule. But to invoke that course, the conditions to which reference has been made must be satisfied. The wider the scope of the questions sought to be determined, the more rigorously must those conditions be insisted upon. [50] The principle cuts both ways. Where the proposed "preliminary" issues are co-extensive with the action itself, the route through Order 33 Rule 2 may, if injudiciously permitted, become a substitute for the trial that would otherwise be required. The Court must scrutinise with particular care whether the material facts underlying them are truly undisputed; for it is precisely in such a case that the dangers of summary disposition are most acute. E.2 The Procedural Architecture of Order 33 and the Form of Enclosure 65 [51] A threshold point, advanced by the Plaintiff in his outline submission of 16 September 2024 (Enclosure 125), goes to the form of the application itself. The argument is that Enclosure 65 misapprehends the rule under which it is brought. Order 33 Rule 2 contemplates that questions or issues identified by the Court are to be tried. Rule 3(2) contemplates that different modes of trial may be ordered for different questions. Rule 5 contemplates that, after a question has been tried separately, the cause or matter may then be disposed of. The rule is one for the trial of preliminary issues; it is not a generalised summary disposition mechanism. [52] On a fair reading of Enclosure 65, the application does not seek a trial of any preliminary issue. The prayers are extensive. They reproduce, in their substance, the relief which the First Defendant seeks under her Counterclaim — declarations of title, removal of caveats, mandatory orders for transfer of the Plaintiff's one-sixth share, an order setting aside the caveats, an injunction restraining further entries, and damages on three separate footings. There is no prayer for the nine questions to be set down for separate trial, no prayer for directions as to the manner in which they shall be stated under Order 33 Rule 2, and no prayer as to mode of trial under Rule 3(2). The application proceeds on the assumption that the questions can be determined on the affidavit material already filed. [53] The textual indications in Order 33 are not without weight. The repeated references in Rules 2, 3(2), and 5 to the trial of preliminary issues are not surplusage. They reflect the design of the rule: that preliminary issues are not a substitute for the substantive process, but rather a means by which a discrete part of that process is brought forward in time. The Courts in this jurisdiction have applied the rule in that way. In SI Rajah & Anor v Dato' Mak Hon Kam & Ors (No 1) [1994] 1 CLJ 207 (High Court), the Court spoke expressly of the question or issue being "tried". In Gold Coin Feedmills (Malaysia) Sdn Bhd v Teoh Choon Leng & Anor [2024] MLJU 700 (High Court), the Court described a two-step process: first, the identification of suitable questions of law or fact for determination; secondly, the trial of those questions. The Singapore High Court adopted a similar approach in Dai Yi Ting v Chuang Fu Yuan [2022] SGHC 253. It must nevertheless be recognised that Malaysian procedural practice has not treated viva voce evidence or a formally constituted evidential hearing as an indispensable feature of every application under Order 33 Rule 2. In appropriate cases, where the underlying facts are admitted or otherwise indisputable, the Courts have determined preliminary issues on affidavit evidence and submissions alone. The Court therefore does not accept the Plaintiff's wider submission that Enclosure 65 is procedurally incompetent merely because it seeks determination on affidavit material without a separately convened evidential trial. The question is not one of procedural competency in the abstract, but whether the present dispute is suitable for determination in that manner having regard to the nature and extent of the factual controversies involved. [55] The difficulty confronting Enclosure 65 is therefore not jurisdictional or structural, but substantive and procedural in a narrower sense. The conditions for the proper invocation of Order 33 Rule 2 are not satisfied on the facts of the present case. As the Court of Appeal emphasised in Hiap Soon Hong (supra), and as reflected in Ting Ling Kiew (supra), the rule cannot properly be invoked where the material facts necessary for determination remain genuinely disputed and their resolution depends upon findings properly made only after trial. That difficulty is particularly acute here, where there is no statement of agreed facts, no discovery directed specifically to the proposed preliminary issues, no exchange of witness statements, and substantial disputes concerning intention, source of funds, performance, conduct, and equitable consequences. [56] The Court therefore proceeds on the footing that Enclosure 65 is procedurally competent in form as an application under Order 33 Rule 2. The dispositive question is instead whether the issues identified by the First Defendant are suitable for separate determination on the present evidential record. For the reasons which follow, the Court concludes that they are not. [57] The dismissal of Enclosure 65 accordingly rests not upon any broad procedural prohibition against affidavit-based determination under Order 33, but upon the Court's conclusion that the present dispute involves substantial contested factual and equitable matters requiring determination at a full trial. E.3 The Objection to the Plaintiff's Notice of Intention to Use Affidavit [58] Before turning to the substantive analysis, it is convenient to dispose of the discrete procedural objection raised by the First Defendant in Enclosure 104 in respect of the Plaintiff's notice in Form 58 (Enclosure 91). The First Defendant contends that Order 32 Rule 13(1) of the Rules of Court 2012, read together with the prescribed Form 58, permits the use of an affidavit filed in previous proceedings only in support of an application, not in opposition to one; that Order 32 Rule 13(2) imposes mandatory time limits which the Plaintiff has not observed; and that the timing of the notice concurrent with the Plaintiff's written submission and after the close of affidavit exchange constitutes an abuse of process by way of stealing a march, contrary to the principle stated in Mokhtar bin Amin v Mohd Mokhtar bin Omar [2004] 4 MLJ 329 (Court of Appeal) and inconsistent with the overriding objective recognised by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2016] 1 MLJ 301 (Federal Court). [59] There is, on a literal reading of Form 58, some force in the first contention. There is also force in the second: a notice filed only at the stage of written submission, after the close of affidavit exchange, would, if condoned, deprive the opposite party of any opportunity to file a further affidavit in reply addressing the matters in those previous affidavits in their Order 33 setting. It is, however, unnecessary for the determination of Enclosure 65 to make a definitive ruling on the procedural validity of Enclosure 91. The Court takes the more conservative course. Even if the affidavits in Enclosures 23, 38, and 56 were entirely set aside, and the Plaintiff confined to the affidavit material proper to Enclosure 65 namely his Affidavit in Reply affirmed on 17 April 2023 (Enclosure 74) the conclusion which the Court reaches on the substantive question would not differ. The Plaintiff's Affidavit in Reply, when read together with the pleadings and with the documents already exhibited by the First Defendant herself, raises the disputed primary facts identified in the analysis which follows. On the merits of the objection, the Court finds that even assuming the Plaintiff's notice was procedurally compliant, the substantive analysis below remains unchanged. Conversely, even if procedurally irregular, no prejudice arose. [61] The procedural objection therefore does not, on the present facts, alter the outcome. To the extent that this approach disposes of the matter, no concluded view is expressed on the proper construction of Order 32 Rule 13 or Form 58 in the unusual circumstance of a respondent seeking to rely upon affidavits filed earlier in cognate interlocutory proceedings within the same suit. That question is left open and may be raised, if so advised, at the trial of the action. E.4 Question 1: Whether the Said 22 Lands are Partnership Property [62] Question 1 invites the Court to decide whether the said 22 Lands are the assets, chattels, or property of the partnership known as Ladang Getah Heng Lee. The question is one of mixed fact and law. The governing statutory provision is Section 22(1) of the Partnership Act 1961, which is in these terms: "All property and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm or for the purposes and in the course of the partnership business, are called in this Act partnership property and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement: Provided that the legal estate or interest in any land which belongs to the partnership shall devolve according to the nature and tenure thereof and the general rules of law applicable thereto but in trust, so far as necessary, for the persons beneficially interested in the land under this section." [63] The provision identifies three categories of partnership property: that originally brought into the partnership stock; that acquired on account of the firm; and that acquired for the purposes and in the course of the partnership business. The proviso preserves the rule that legal title to land may, by reason of registration in the names of individuals, be held in trust for the persons beneficially interested. [64] Where there is no express agreement, the inquiry is the classical one stated in the Federal Court in NB Menon v Abdullah Kutty [1974] 2 MLJ 159 (Federal Court), drawing upon Lindley on Partnership: it is for the partners to determine by agreement what is partnership property and what is the separate property of one or more of them; in the absence of such an agreement, attention must be paid to the source whence the property was obtained, the purpose for which it was acquired, and the mode in which it has been dealt with. The First Defendant draws additional emphasis from two related authorities: the Privy Council in Gian Singh & Co Ltd v Devraj Nahar & Anor [1965] 2 MLJ 12 (Privy Council), in which Lord Donovan observed that property used by all the partners for partnership purposes does not necessarily become partnership property; and the Federal Court in Ponnukon v Jabaratnam [1980] 1 MLJ 283 (Federal Court), in which it was held that, in the absence of express agreement, the question must be resolved by inquiring whether there is an intention of the partners to treat the property as partnership property. [65] These authorities, properly understood, do not advance the First Defendant's case in the way for which she contends. They emphasise that the inquiry is one of intention to be inferred from all the circumstances. They direct the Court's attention to those very matters of conduct, dealing, source of funds, and partnership treatment which, on the facts of this suit, are squarely in issue between the parties. The point made in Ponnukon (supra) is, in substance, an injunction to look at the totality of the evidence; it is not a charter for the resolution of the inquiry on a documentary record alone where that record is itself contested. [66] On each of the three matters identified in NB Menon (supra) source, purpose, and mode of dealing the affidavit material before the Court discloses material disputes between the parties. In Enclosure 107 the Plaintiff has, in the form of a tabular summary, identified seven categories of factual matter relied upon by the First Defendant for which, on the Plaintiff's case, no documentary proof has been produced; he disputes each of them. The seven categories may be summarised as follows:

whether the late mother of the parties, Lim Kim Bee, and one Wee Kim Siak signed a Sale and Purchase Agreement dated 17 January 1973 to purchase the 29 original parcels the alleged Sale and Purchase Agreement not having been produced in the affidavit material;

whether, in the 1982 sales of seven parcels to Lim Kim Bee, the consideration was paid by Lim Kim Bee in her personal capacity (the Plaintiff deposing in Enclosure 74, paragraph 18, that he received no payment personally or directly from her);

whether, in the 1982 transfer by Hee Ngee @ Ee Min Yen of her six-twenty-fourths undivided share to the First Defendant, the consideration was personally received by the transferor from the First Defendant;

whether, in the 1982 transfer by Eh Ay @ Ee Min Bee of her six-twenty-fourths undivided share to the First Defendant, the same;

whether, in the 1982 transfer by Ee Beng Guan, the same;

whether, in the 1983 transfer by Ee Beng Wat, the same and noting that one twenty-fourth of Ee Beng Wat's share was registered in the Plaintiff's own name notwithstanding that the Plaintiff (on his own evidence in Enclosure 74, paragraph 22) made no payment to Ee Beng Wat personally; and

whether, in 2020, the First Defendant used her own money to settle the arrears with Maybank prior to the discharges of the 1983 and 1988 charges. [67] These are not, in the Court's view, disputes raised merely for the sake of disagreement. The Plaintiff's position is that the Forms 14A under the National Land Code 1965, on which the First Defendant principally relies, are evidence of registered transfer for the consideration recited therein, and confirm receipt by the named transferor; they do not, however, identify the source from whom that consideration emanated. That observation is not without merit. The certified Forms establish what they record. Whether the monies paid to the named transferors came, in fact, from the personal resources of the First Defendant, or whether they came from the funds of the partnership applied on her account or with her consent, is a question that the Forms cannot answer. It is a question of evidence to be tested at trial. [68] The Plaintiff also has a positive case on the source-and-intention strand of NB Menon. He places reliance, inter alia, on the chronology that the partnership was registered with the Companies Commission of Malaysia on 5 March 1973; that a current account in the name of the partnership was opened with Malayan Banking Berhad in or about January or February 1973; that the transfers of the 29 original parcels were registered on 21 March 1973, after the formal registration of the partnership with the Commission; and that on the same day a charge was created over the parcels in favour of Maybank as security for credit facilities granted to the partnership. He further places reliance on the proposition (which the First Defendant denies) that the proportions of the undivided shares as registered have, throughout, been pegged to the corresponding shares in the profits and losses of the partnership. The First Defendant joins issue with that account. Whether or not the Plaintiff's account is ultimately accepted is not a matter that this Court can or should decide on Enclosure 65; the point is that the inquiry which NB Menon (supra) and Ponnukon (supra) require to be made cannot be made on the present record without trial. [69] On the third strand of the NB Menon inquiry the mode in which the lands have been dealt with the Plaintiff relies on the partnership's annual accounts, which (on his case) treat the said 22 Lands as fixed assets of the partnership, show partnership funds applied to the quit rent of those lands, and show partnership funds applied to their upkeep. The First Defendant denies that the lands are so treated and deposes (in Enclosure 77, paragraph 14.1) that the Plaintiff took into his custody, in or about 2017 or 2018, certain documents, books, and accounts of the partnership. The proper assessment of these competing accounts including, in particular, the inferences to be drawn from the alleged removal of the partnership's books, and the explanation (if any) for the treatment of the lands in such accounts as may be produced depends upon the testing of evidence which only a trial can provide. [70] Two further matters, advanced by the Plaintiff in opposition, complete the picture on the third strand of the inquiry. The first is that the Forms 14A relied upon by the First Defendant, although they record the receipt of the recited consideration by the named transferors, are not by their terms conclusive as to the source from which that consideration was provided. There is no deeming provision under the National Land Code 1965 that gives the Forms 14A any such status. They prove what they record the registered transfer of legal title for the recited consideration and no more. Whether the consideration was, in fact, provided by the First Defendant from her personal resources or out of partnership funds applied on her account is a question which the Forms cannot answer and which the Court cannot, on the present record, resolve. The second is that the said 22 Lands were pledged as security for two facilities granted by Malayan Banking Berhad the first in 1983 and the second in 1988 and that the facility documentation for the 1988 facility, as exhibited in Enclosure 66 ("EJG-24"), is on its face referable to the affairs of the partnership and not to the personal affairs of either the Plaintiff or the First Defendant. The First Defendant joins issue with the inference that the Plaintiff invites the Court to draw from that documentation. Whether the inference is or is not warranted is again a matter that turns on the testing of evidence at trial. [71] The First Defendant develops, in Enclosures 129 and 131, a related but distinct strand of argument. She invites attention to the partnership account for the year 1982—exhibited as "ECP-16" to the Plaintiff's own affidavit (Enclosure 38)—and observes that the very substantial sums recorded as the consideration for the 1982 transfers (the seven transactions tabulated at pages 14-17 of Enclosure 129) are nowhere reflected as receipts of the partnership. From that silence she invites the inference that no consideration referable to those transfers was paid into or out of the partnership; from which (the argument goes) it must follow that the lands were never partnership property. She points additionally to the 1979 transfer by Wee Kim Siak of his shares to his children for natural love and affection, and contends that an inter vivos gift of that kind would have been impossible if the underlying parcels had been partnership assets requiring the partners' collective consent. These are not, on a proper view, contentions that admit of resolution upon affidavit. Each rests upon an inference drawn from the absence of an entry in a particular set of accounts. Whether the inference is sound depends upon a number of further matters which can only be ascertained by evidence. What was the contemporaneous accounting practice of the partnership? Were transactions in respect of partnership lands routinely entered through the partnership's current account, or were they entered through the partners' individual capital accounts? Was the 1979 inter vivos gift, in fact, treated by the partners and their accountants as a transaction in respect of partnership property, or as a transaction in respect of separate property — and was that treatment consistent or inconsistent over time? The very point made in Ponnukon (supra) is that mere debiting (or, by the same token, the absence of debiting) of partnership accounts is not, of itself, dispositive: it is only one strand in the larger inquiry. The argument advanced in Enclosures 129 and 131 is therefore properly understood not as a knock-out point that takes the issue out of the field of dispute, but as one of several strands of inferential reasoning that must, in the end, be assessed in the round by the trial Court — by reference, as Eastern & Oriental Hotel (supra) reminds the Court, to objective facts, witness motives, and overall probabilities. That assessment cannot be made on the present record. [73] The Plaintiff has, in opposition to the First Defendant's reliance on Section 89 of the National Land Code 1965, drawn attention to the fact that Section 89 is itself expressly subject to the provisions of the Code, and falls to be read with Section 340(4)(b), which preserves the determination of any title or interest by operation of law. That reading of the Code is supported by Yap Joyce v Tee Molly & Anor [2000] 6 CLJ 220 (High Court) and by the Federal Court in Krishnadas a/l Achutan Nair & Ors v Maniyam a/l Samykano [1997] 1 MLJ 94 (Federal Court). The Court of Appeal in Lembaga Pengelola Sekolah Sekolah Jenis Kebangsaan (C) Chiao Ching & Ors v Jemaah Pengurusan Tadika Chiao Ching & Ors [2018] 1 LNS 2110 (Court of Appeal) held that the creation of a trust and the validity of its existence are not dependent on registration or endorsement on the title. The Privy Council's observations in Registrar of Titles, Johore v Temenggong Securities Ltd [1976] 2 MLJ 44 are to the same effect: the restriction in the Torrens system on the kinds of interest capable of being registered does not prevent the creation of beneficial interests in land, whether under express trusts or under constructive or resulting trusts arising by operation of law. [74] It is unnecessary, on Enclosure 65, to express any concluded view on those propositions. They are flagged here only because they bear directly on the question whether Question 1 and the conditional questions which depend upon it can be answered without resort to trial. The First Defendant's reliance on Section 89 of the Code as a complete answer is, on the basis of those authorities, at least open to argument. That argument, properly assessed, requires a properly constituted trial. [75] Question 1 is, accordingly, a question of mixed fact and law in which the law (Section 22(1) of the Partnership Act 1961, as elucidated by NB Menon, Gian Singh, and Ponnukon) is settled, but the application of that law depends upon the resolution of disputed primary facts as to source, purpose, and conduct. The principle in Krishnan Rajan (supra) and Mat Shah (supra) is squarely engaged: the rule has no application where the facts are in dispute or where extrinsic evidence is required, and is reserved for matters that require interpretation of facts rather than findings of fact. The reaffirmation by the Federal Court in Koh Jui Hiong (supra), that ordinarily facts must be settled before the law applicable to them is decided, is a particularly apposite touchstone and one cited, it may be observed, by the First Defendant herself in support of her own application. [76] It must follow that Question 1 is not appropriate for separate determination as a preliminary issue. E.5 Question 4: The 1992 Instruments and the Plaintiff's Status as Trustee [77] Question 4 invites the Court to determine whether, by virtue of the Memorandum of Agreement and the Declaration of Trust both dated 14 May 1992, the Plaintiff is a trustee of his one-sixth undivided share in the said 22 Lands for the benefit of the First Defendant. It is contended on behalf of the First Defendant that the existence and content of those instruments are admitted on the pleadings and proven on the affidavit evidence; that the three certainties for the creation of an express trust are satisfied on the face of the Declaration of Trust; that the consideration provided for in the Memorandum of Agreement (the share transfers) has been duly performed by the First Defendant, with proof exhibited as "EJG-46" to "EJG-50" in Enclosure 77; and that, that being so, the Plaintiff's status as trustee follows as a matter of law. It is further submitted that, by reason of Sections 91 and 92 of the Evidence Act 1950, no oral evidence is admissible to vary or contradict the terms of those instruments, citing the Federal Court in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (Federal Court). [78] Each of those propositions has merit, considered in isolation. The Court accepts, as it must, that an admission in pleading stands on a higher footing than an evidentiary admission, and that facts admitted by way of pleading need no longer be proved: Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 AMR 395 (Federal Court). The Court further accepts that the principles governing the constitution of an express trust are settled, and that the three certainties of intention, of subject-matter, and of object must be established. Those certainties may be inferred from a written instrument, oral evidence, the conduct of the parties, the relationship between them, or the surrounding circumstances; the absence of the word "trust" is not fatal so long as the requisite intention can be discerned: see, inter alia, ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2004] 4 CLJ 674 (Court of Appeal). [79] But the matter does not end with the existence of the 1992 instruments and an admission of execution. The question whether the Plaintiff is, today, a subsisting trustee of his one-sixth undivided share in the First Defendant's favour requires more than a reading of those instruments. It requires consideration of whether the trust thereby declared has been performed, varied, abandoned, or rendered unenforceable in equity by reason of the conduct of the parties in the more than thirty years that have elapsed since their execution. Each of those inquiries depends upon disputed primary facts which are properly the subject of evidence at trial. The submission grounded on the parol evidence rule, although correct in its own terms, does not, on a proper view, foreclose those inquiries. [80] First, as to the share transfers said to have been effected by the First Defendant in performance of the Memorandum of Agreement. The First Defendant deposes (Enclosure 77, paragraph 10) that those transfers were duly effected, and exhibits the annual returns of Art Printing Works Sdn Bhd and Good Deal Holdings Sdn Bhd for the years ended 1991, 1992, and 1993 ("EJG-46" to "EJG-50"). The Plaintiff, in his Affidavit in Reply (Enclosure 74) and his reply submission (Enclosure 107), points out that the annual returns disclose changes in the shareholding of multiple shareholders of those companies and not merely a transfer from the First Defendant to the Plaintiff. He submits that no firm inference can be drawn from those documents as to performance of the Memorandum vis-à-vis the agreed numbers of shares. Whether the consideration recited in the Memorandum of Agreement passed in fact, in the agreed quantum and in the agreed direction, is a question that the documents do not, of themselves, conclusively answer. It is a question of fact; it is properly tested at trial; and Sections 91 and 92 of the Evidence Act 1950 do not bar such an inquiry, which goes to the question of performance, not to the variation of the terms of the written instrument. [81] Secondly, and connected to the first, both the Memorandum of Agreement and the Declaration of Trust expressly contemplate that the Plaintiff's undivided share would be transferred to the First Defendant once the existing charges over the said 22 Lands were discharged. The discharges took place on 19 January 2021. No transfer was sought from the Plaintiff at that time; instead, the First Defendant proceeded to sell and transfer to the Second Defendant her own five-sixths share, leaving the Plaintiff's one-sixth share intact. The Plaintiff places reliance on the absence of any reference to the Memorandum of Agreement or to the Declaration of Trust in any correspondence exchanged in the period leading up to the institution of these proceedings, and upon documentary indications (in particular, the Sale and Purchase Agreement of 15 September 2020 entered into between the First Defendant and the Second Defendant, exhibited as "EJG-31" to Enclosure 66) which on his case treat him as "co-proprietor" of the 4 Disputed Lands rather than as a trustee for the First Defendant. These matters bear on the question whether, on the facts as ultimately found, the First Defendant has so conducted herself as to be precluded by laches, acquiescence, or estoppel from asserting her rights under the 1992 instruments — distinct equitable doctrines which are not displaced by the parol evidence rule and which the First Defendant's answer does not engage. Thirdly, as to the question of waiver. The First Defendant submits, citing the principle that waiver requires an intentional act with knowledge of the right being waived, that, since both parties pleaded to having forgotten the 1992 instruments at the material time, no waiver can be made out as a matter of law. That argument addresses only one of the equitable doctrines that may be in play. The Plaintiff's case engages, inter alia, the doctrines of laches, acquiescence, and estoppel by representation, and the broader discretion governing the equitable remedy of specific performance, of which delay, conduct, and the conduct of the party seeking the remedy are well-recognised features. None of those doctrines is foreclosed by either party's pleaded forgetfulness; and indeed, the question whether a party can rely upon her own forgetfulness to revive an otherwise unenforced equitable interest, after the lapse of three decades and a course of conduct treating the property as something other than the subject-matter of the trust, is itself a matter not amenable to summary determination on affidavit. [83] Fourthly, the equitable remedy of specific performance, upon which the First Defendant relies in her counterclaim, is discretionary. The discretion is exercised by reference to all the circumstances, including delay, conduct, and the conduct of the party seeking the remedy. Where, as here, an instrument of 1992 is sought to be enforced for the first time in proceedings instituted in 2022, the conduct of the parties over the intervening years cannot be a matter of indifference. Whether that delay is properly explained, whether the First Defendant has done equity in the meantime, whether her conduct has, on the facts as found, amounted to acquiescence in a contrary state of affairs these are all matters bearing upon the exercise of the equitable discretion, and all of them depend upon disputed primary facts. [84] The Court accepts the First Defendant's submission that Sections 91 and 92 of the Evidence Act 1950 preclude the use of oral evidence to vary or contradict the terms of the 1992 instruments themselves. That principle, articulated by the Federal Court in Tindok Besar Estate (supra) and reflected in Tan Chong & Sons Motor Co Sdn Bhd v Alan McKnight [1983] 1 MLJ 220 (Federal Court), is settled. But the principle does not bear the weight which is here sought to be placed upon it. It does not preclude evidence directed to whether the contract has been performed. It does not preclude evidence directed to subsequent conduct giving rise to estoppel, laches, or acquiescence. It does not preclude evidence relevant to the exercise of the equitable discretion to grant or to withhold specific performance. And it does not preclude evidence necessary to determine whether a trust, declared in terms in 1992, remains a subsisting and enforceable trust today. The boundaries of the rule are well marked in the authorities; they do not foreclose the disputed inquiries identified above. It is, on the materials presently before the Court, also relevant that the First Defendant has, in her own Defence and Counterclaim, levelled allegations of concealment and fraud against the Plaintiff in relation to the 1992 instruments. Those are serious allegations, going to credit and motive. They cannot, by their nature, be summarily resolved upon affidavit. The principle in Eastern & Oriental Hotel (supra) has direct bearing: where there is a conflict of evidence, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities is essential and that exercise presupposes a trial. It is therefore not enough to say that the existence of the 1992 instruments is admitted, that the three certainties appear on their face, and that the parol evidence rule shuts out further inquiry. The legal question whether the Plaintiff is, today, a trustee under those instruments depends upon the resolution of factual disputes which cannot be resolved on affidavit. The principle in Hiap Soon Hong (supra) is engaged: the agreed facts must deal completely with the issues sought to be determined; where they do not, the matter must be set down for trial. [87] It is right to acknowledge that the further affidavit filed by the First Defendant pursuant to leave (Enclosure 181) does strengthen her evidential position on the question of performance of the Memorandum of Agreement. It identifies, with greater particularity than was previously before the Court, the directors' resolutions, the Forms 32A under the Companies Act 1965, the cancelled share certificates, and the relevant extracts from the registers of members of Art Printing Works Sdn Bhd and Good Deal Holdings Sdn Bhd. The Plaintiff's replies (Enclosures 183 and 184) join issue with that evidence on multiple footings including the authenticity, pleadedness, and relevance of certain of the records and the First Defendant has filed a further affidavit in reply (Enclosure 186). The question before the Court, however, is not whether the First Defendant has a strong case at trial. The question is whether the issue is suitable for determination under Order 33 without trial. The further affidavit does not remove the factual and equitable controversies concerning performance, subsequent conduct, waiver, laches, acquiescence, estoppel, and the discretionary remedy of specific performance. If anything, the further round of affidavits has enlarged the factual record without resolving the controversies that lie at the heart of Question 4. It has confirmed, rather than displaced, the conclusion that this is a question for trial. [88] A particular feature of the further evidential exchange warrants closer examination. The First Defendant's pleaded case, as set out in her Reply to the Defence to Counterclaim (Enclosure 61, paragraph 13.4(1)), is that the late First Defendant "transferred part of the First Defendant's share in Art Printing Works Sdn Bhd and Good Deal Holdings Sdn Bhd to the Plaintiff according to the said Memorandum of Agreement". To the same effect is paragraph 10.2 of Enclosure 77, in which she deposed that she had transferred her shares in Good Deal Holdings Sdn Bhd to the Plaintiff "according to the said Memorandum of Agreement". So too the averment in Enclosure 181 at paragraph 5 that the transfers were effected "menurut terma-terma Memorandum Perjanjian bertarikh 14-5 1992 dan Surat Ikatan Amanah bertarikh 14.5.1992". The documents now exhibited, however, disclose that the relevant transfers of 29,850 shares in Art Printing Works Sdn Bhd and 13,470 shares in Good Deal Holdings Sdn Bhd were effected on 5 May 1992 that is, nine days before the execution of the Memorandum of Agreement and Declaration of Trust on 14 May 1992. The recitals of the Memorandum of Agreement, by contrast, are cast in prospective terms: the First Defendant shall transfer her shares to the Plaintiff, and the Plaintiff shall in consideration transfer his one-sixth co-proprietary interest to her. Faced with that chronological difficulty, the case advanced on behalf of the First Defendant in submission has shifted: it is now said that the 5 May 1992 transfers were effected in anticipation of the Memorandum of Agreement, and constitute performance albeit advance performance of the consideration thereby stipulated. [89] That recharacterisation is not without its difficulties. It does not appear in the pleadings, in which the First Defendant's position is consistently that the transfers were effected "according to" or "pursuant to" the Memorandum of Agreement. It does not appear in Enclosure 77, the First Defendant's principal affidavit in support, in which she deposed in similar terms. It is, on its face, in tension with the prospective wording of the recitals themselves. Whether the recharacterisation can be sustained — whether, in particular, transfers effected before the execution of the Memorandum can properly be treated as performance of the obligations thereby created, or whether some other characterisation (such as part of an antecedent and separate arrangement) is to be preferred is itself a matter on which evidence may need to be heard. The Plaintiff, for his part, advances a positive case that the 5 May 1992 transfers were effected in connection with a proposed listing of Art Printing Works Sdn Bhd on the Bursa Malaysia Berhad. He places reliance on a Bumiputra-Commerce Bank Berhad listing proposal exhibited as "ECP-1" to Enclosure 183, and on the undisputed fact that on the same date the late First Defendant also transferred shares in both companies to a further sibling, Ee Chong Kok a transferee who is not a party to the 1992 instruments. The First Defendant denies that explanation, but does so without offering any positive contemporaneous record of his own; and it is on the present record common ground that he was abroad and aged 23 at the material time. Whether the transfers were effected in performance of, in anticipation of, or for purposes wholly unconnected with the Memorandum of Agreement is a question of fact on which the documents do not, of themselves, conclusively speak. The Court of Appeal's observation in Superintendent of Lands and Surveys Kuching Division & Anor v Mohamad Rambli Kawi [2014] 1 LNS 851 that denials unsupported by evidence carry no probative weight is, on the present record, a reminder of the limits of summary inquiry into matters of contemporaneous intention. [90] A second matter introduced by the further round of affidavits also points firmly away from summary determination. The Plaintiff exhibits to Enclosure 183 a body of documentary material said to have been prepared by Messrs Lim Chong Phang & Amy ("LCPA"), the late First Defendant's former solicitors, and handed by the late First Defendant to the Plaintiff's son, Ee Soon Wei, on 27 January 2018. That material comprises a Deed of Gift, seven Forms 14A, and a draft Sale and Purchase Agreement between Midas Bonus Sdn Bhd (as purchaser) and the late First Defendant and the Plaintiff (as vendors) in respect of the said 22 Lands. The Forms 14A bear the name of one Timothy Soon of LCPA as the proposed attesting solicitor; the file reference on the Deed of Gift and the Sale and Purchase Agreement (LCPA/TS/SPA/1564/2015/c) indicates, on its face, that LCPA's file was opened in 2015. The Plaintiff further exhibits a WhatsApp message dated 18 May 2018 said to have been sent by one Mr Loh, an acquaintance of the late First Defendant, to the Plaintiff's other son, Ee Soon Seng, conveying an offer by the late First Defendant to "give up the Royal Press Company" in consideration of the Plaintiff's signature on the Jan 2018 documents. [91] The First Defendant's response (Enclosure 186) is, in substance, that this material is unpleaded, that the Jan 2018 documents are unsigned drafts, and that the WhatsApp message is hearsay of doubtful provenance. Those are objections that may, in due course, be tested. They cannot, however, be resolved on affidavit alone. If the documents are genuine, they are difficult to reconcile with the proposition that, by 27 January 2018, the late First Defendant regarded herself as already the beneficial owner of the Plaintiff's one-sixth share; the very act of preparing a Deed of Gift for the Plaintiff to execute, and an offer to part with shares in another family enterprise in consideration of the Plaintiff's signature, presupposes the contrary. They are also of a piece with the position taken in LCPA's letters of 7 June 2018 and 11 August 2022, in which the Plaintiff is repeatedly described as the registered proprietor of an undivided one-sixth share without any reference to the 1992 instruments. The First Defendant, who is the late First Defendant's executor, does not appear to have made any inquiry of LCPA or of Mr Timothy Soon, named on the Forms 14A to verify or to displace the Plaintiff's account of the 2018 dealings. Whether any adverse inference should ultimately be drawn from that absence is a matter for the trial Court. The point is simply that the materials introduced in answer to Enclosure 181 raise further triable issues touching on subsequent conduct, acknowledgment, and the equitable consequences of three decades of dealing matters which are, by their nature, ill-suited to determination on affidavit. [92] A related matter must also be noted. The Plaintiff has, in Enclosure 183, sought to explain the three-decade hiatus between the execution of the 1992 instruments and their first invocation in these proceedings by reference to a history of familial dealings between himself and the late First Defendant including the provision of financial support to her prior to the death of their mother on 8 February 1999, and his subsequent intervention to assist her in resisting litigation by their sisters in relation to the administration of their mother's estate. The First Defendant denies the relevance of those matters, again on the footing that they are unpleaded. Whether, on a full hearing, the Plaintiff is able to make good that account, and whether, if made good, it answers or qualifies the inferences that the First Defendant invites the Court to draw from the long period of inaction, is not a matter on which this Court can or should express any view. The point, again, is the narrower one. The proper characterisation of the relationship between the parties over the intervening years, and the proper inferences to be drawn from the conduct on either side, are not amenable to resolution on the present record. They will require evidence, examination, and the kind of measured factual assessment that is the function of the trial Court. [93] It must follow that Question 4 is also not appropriate for separate determination as a preliminary issue. E.6 Questions 2,3,5-9,the Position of the Second Defendant and Bifurcation [94] Questions 2 and 3, as framed, arise only upon the determination of Question 1 the former in the negative and the latter in the positive. Question 5 arises upon the determination of Question 4 in the positive. Question 6 arises upon Question 5 being answered in the negative. Question 7 arises upon Question 6 being answered in the positive. Question 8 stands on its own footing but turns substantially upon the answers to Questions 1 and 4. Question 9, as to damages, depends upon the establishment of the underlying liability addressed in the preceding questions. [95] Once it is concluded as the Court has concluded that Questions 1 and 4 are not appropriate for separate determination, the conditional questions which depend upon them cannot themselves proceed. The structure collapses with the foundation. It is, additionally, of some weight that, on 24 May 2023, this Court allowed the Plaintiff's applications in Enclosures 21 and 22 to extend the validity of his private caveats and to restrain the Second Defendant from dealing with the said 4 Disputed Lands pending the disposal of Enclosure 65, on the express footing that there are serious questions to be tried as to whether the said 22 Lands are partnership property and as to whether the Plaintiff has relinquished his one-sixth share to the First Defendant under the 1992 instruments. That order was not appealed. While that interlocutory determination is not, of course, res judicata on the merits, it is not without significance for the present purposes. To accept the First Defendant's invitation to determine, as preliminary issues, that the Plaintiff has no caveatable interest, that the entry of caveats was an abuse of process, and that injunctive relief should be granted against him, would require this Court, on substantially the same affidavit material, to reach conclusions inconsistent with those upon which the orders of 24 May 2023 were premised. [97] A further consideration, raised by the Plaintiff in his outline submission (Enclosure 125), bears upon the third condition of substantial saving. The action is not confined to the dispute between the Plaintiff and the First Defendant. The Plaintiff also seeks substantive relief against the Second Defendant including, in particular, an order that the registration of the transfers of the 4 Disputed Lands to the Second Defendant be set aside. The Plaintiff's case against the Second Defendant turns, inter alia, upon whether the Second Defendant acquired its registered interest in good faith and for valuable consideration, free of any trust or other equitable claim, having taken such steps as a reasonable purchaser would in the circumstances. That issue, although it ultimately turns upon the facts as found between the Plaintiff and the First Defendant, also requires consideration of what disclosures were made by the First Defendant to the Second Defendant in the course of negotiating the Sale and Purchase Agreement of 15 September 2020 and what inquiries the Second Defendant made or ought to have made. [98] Enclosure 65 is silent on the position of the Second Defendant. The Second Defendant did not make any submissions on the application. The relief which the First Defendant seeks under Enclosure 65 the reproductive prayers from her Counterclaim does not include relief that resolves the dispute between the Plaintiff and the Second Defendant. To dispose of the Plaintiff's claim against the First Defendant by way of preliminary determination, while leaving his claim against the Second Defendant for trial, would create the very bifurcation that the Court of Appeal was at pains to avoid in Hiap Soon Hong (supra). The matter would still require trial; and the witnesses required for that trial would substantially overlap with those whose evidence would have been required for any properly constituted determination under Order 33 Rule 2. As the Court observed in Tal Property Sdn Bhd v Ng Kiat Kong @ Karim & Anor [2022] 1 LNS 2817, a bifurcation of the trial in such circumstances does not save the time and costs of the action. [99] A final point may be made on damages. The First Defendant's Question 9 invites the Court to enter judgment on damages, including exemplary and aggravated damages, on the present record. The principles governing those heads of damage are settled see, on aggravated damages, Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 (Court of Appeal); and on exemplary damages on the second category, Tradewinds Properties Sdn Bhd v Zulhkiple bin A Bakar & Ors [2019] 1 MLJ 421 (Court of Appeal). Statutory compensation under Section 329 of the National Land Code 1965 requires proof of actual damage on a balance of probabilities, as the Court of Appeal made clear in Antonina Marleen Yarendra v Chai Wei Chunz [2017] 4 MLJ 359 (Court of Appeal). The First Defendant's reliance, in Enclosure 129, upon MD Biomedical Engineering (M) Sdn Bhd v Goh Yong Khai [2021] 5 MLJ 408 (Court of Appeal) for the proposition that legal costs incurred in removing a wrongful caveat may be recovered as damages adds nothing to the threshold question presently before the Court: it goes to quantum upon proof of liability, but it does not bear upon whether liability is itself susceptible of summary determination. Whether the Plaintiff's conduct meets the relevant tests is, by their nature, a question for trial. [100] It must follow that Questions 2,3,5,6,7,8,and 9 are likewise not appropriate for separate determination as preliminary issues. E.7 Substantial Saving of Time and Expenditure [101] The third condition for the exercise of the discretion under Order 33 Rule 2 that the determination would result in a substantial saving of time and expenditure has, in substance, already been answered. It remains only to draw the threads together. [102] A preliminary issue under Order 33 Rule 2 is, by its very nature, a procedural shortcut. The shortcut is justifiable only when, taken, it leads to the destination more quickly and more cheaply than the conventional route. Where the shortcut is itself a long and difficult journey, requiring a full hearing on extensive affidavits, lengthy submissions, and an examination of voluminous documentary exhibits and where, at the end of it, the Court finds that the matters cannot fairly be resolved without a trial after all the shortcut becomes the long way round. As Lord Wilberforce observed in Tilling v Whiteman [1980] AC 1, preliminary points of law are too often treacherous short cuts, and their price can be delay, anxiety, and expense. [103] In a case such as the present, where the proposed preliminary issues are co-extensive with the matters to be tried, where the underlying facts are heavily disputed, where allegations of concealment and fraud are levelled against one of the parties, where the resolution of those facts depends upon assessing the credibility of the parties and weighing competing inferences from contemporaneous documents, and where the relief sought in the action extends to a Defendant whose position has not been addressed in the application at all, the route via Order 33 Rule 2 cannot deliver any substantial saving of time and expense. The full panoply of trial pleadings, discovery, witness statements, oral evidence, and cross-examination would be required either way. To embark upon a separate determination on affidavit would only add a stratum of expense, not subtract one. [104] For these reasons, the third condition for the exercise of the discretion under Order 33 Rule 2 is, on the facts of this case, not satisfied. E.8 The Argument from Burden of Proof and Admission [105] There remains one further matter to be addressed. It is contended on behalf of the First Defendant that, the First Defendant having produced documentary evidence in support of her case (the certified copies of the Forms 14A under the National Land Code 1965, the SSM records, the 1992 instruments, the share-transfer exhibits "EJG-46" to "EJG-50", and the partnership's registration particulars), and the Plaintiff having admitted on the pleadings the execution of the 1992 instruments and produced (so it is said) no responsive contemporaneous evidence in his Affidavit in Reply, the legal and evidential burden has shifted to the Plaintiff to rebut that evidence. It is said that the Plaintiff has produced none, that an adverse inference must follow, and that the First Defendant is, on that ground alone, entitled to judgment. [106] The argument conflates two distinct matters. The first is the question of who, at trial, bears the legal and evidential burden of proof on each of the issues. The second is the question of whether, for the purposes of an application under Order 33 Rule 2, the material facts are sufficiently undisputed that the issues can be determined without a trial. [107] Sections 101 and 102 of the Evidence Act 1950 govern the first question. They allocate, between the parties, the burden of establishing facts at the trial of the cause. They do not, however, dispense with the trial. They presuppose it. The principle, as expressed by the Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 (Federal Court), is that the burden of proof under Section 101 rests throughout on the party who asserts the affirmative of the issue, while the onus of proof under Section 102 may shift back and forth as the evidence develops. Whether and at what point the onus has shifted, and whether either party has discharged it, are matters for the trial Court to determine after evidence has been led not for a Court hearing an application under Order 33 to determine on the documents alone. [108] For the present purposes, the question is the second one. It is not the case that the Plaintiff's Affidavit in Reply (Enclosure 74) is devoid of substance. He raises, on its face and on the pleadings, the disputed matters identified in the analysis above. The First Defendant has met those matters, but not in a manner that admits of resolution without trial. Likewise the doctrine of admission by pleading. The Plaintiff's admission of his execution of the 1992 instruments is not the matter in issue. What is in issue is the legal effect of those instruments more than thirty years on, in the light of the parties' subsequent conduct. The Yam Kong Seng principle, properly understood, attaches to the fact admitted; it does not attach to the legal consequences which the admitting party (or her opponent) seeks to draw from that fact. [109] The argument from burden of proof and admission does not therefore alter the conclusion which the Court has otherwise reached. F. CONCLUSION [110] The cumulative effect of the analysis above may be stated shortly. The discretion under Order 33 Rule 2 of the Rules of Court 2012 is broad but disciplined. It is reserved for questions which can fairly be determined upon facts that are admitted or otherwise undisputed, which engage no live contest as to credibility or to the inferences to be drawn from contested primary records, and which, if so determined, will substantially dispose of the action and yield a real economy of judicial time and resources. [111] The application before the Court does not meet that standard. The procedural form of Enclosure 65 is itself a matter of legitimate concern: it asks the Court for substantive judgment on the relief sought in the Counterclaim, in advance of any properly constituted trial of the questions framed as preliminary issues. Even if the Court were to put that concern to one side and to consider the application on its merits, the substance of the dispute lies in matters that the present record cannot resolve. The source of acquisition of the said 22 Lands, the intention of the founding partners, the treatment of the lands over five decades in records of which the parties give competing accounts, the performance vel non of the consideration provided for in the 1992 instruments, the conduct of the parties between 1992 and 2021 and the equitable consequences of that conduct, the discretionary considerations bearing on specific performance, the allegations of concealment and fraud, and the position of the Second Defendant these are not matters of interpretation of agreed facts. They are matters that must be ascertained, in the first instance, by way of evidence at trial. [112] Where, as here, the route through Order 33 would not shorten the journey but lengthen it, where it would require the Court to make findings of primary fact that are properly the province of trial, and where any determination would still leave the dispute between the Plaintiff and the Second Defendant unresolved, the proper course is the one indicated by the Court of Appeal in Hiap Soon Hong (supra): to decline to proceed under Order 33 and to set the matter down for trial. That course gives effect, rather than disservice, to the overriding objective of the Rules of Court 2012, recognised by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2016] 1 MLJ 301 (Federal Court), of securing the just, expeditious, and economical disposal of civil proceedings. G. ORDERS [113] For the foregoing reasons, the Court makes the following orders:

Enclosure 65 being the First Defendant's Notice of Application dated 20 March 2023 under Order 33 Rules 2 and 5 of the Rules of Court 2012 is dismissed.

The First Defendant shall pay the Plaintiff's costs of and occasioned by Enclosure 65 in the sum of RM20,000.00 subject to the allocatur fee.

For the avoidance of doubt, the dismissal of Enclosure 65 is grounded solely upon the Court's conclusion that the proposed questions are, on the particular facts, evidential disputes, and procedural posture of this case, unsuitable for separate determination under Order 33 Rule 2. The dismissal is not based on any finding that an application under Order 33 Rule 2 cannot, as a matter of law or procedure, be determined on affidavit evidence in an appropriate case where the material facts are admitted, undisputed, or otherwise capable of fair determination without a full trial. Further, the Court found it unnecessary to make any concluded determination on the procedural objection raised by the First Defendant to the Plaintiff's notice of intention to use affidavit (Enclosure 91), as the disposition of Enclosure 65 would have remained unchanged irrespective of whether the affidavits identified therein were admitted or excluded. No procedural consequence adverse to either party follows from the filing of Enclosure 91.

The matter shall proceed to trial in the ordinary way. Directions as to the further conduct of the action shall be given at the next case management. e) Upon the oral application of counsel for the Plaintiff made immediately following the delivery of this decision, and the Court being satisfied that the said application is properly made having regard to the matters traversed in this judgment and the need to preserve the status quo pending the disposal of this action, it is ordered that the private caveats entered by the Plaintiff against the said Balance 18 Lands shall be, and are hereby, extended until the final disposal of this action or until further order of the Court, whichever shall first occur. [114] Liberty to apply. Dated 20th May 2026 (MELAKA) Lawyer For Plaintiff Encik Andrew Chiew Ean Vooi bersama Cik Ho Ai Ting dan Encik Man Weng Keat Tetuan Lee Hishamuddin Allen & Gledhill Peguambela dan Peguamcara Level 6, Menara 1 Dutamas Solaris Dutamas, No. 1 Jalan Dutamas 1 50480, Kuala Lumpur. Lawyer For 1 $ ^{st} $ Defendant: Encik Bell Yap bersama Encik Joshua Vijayan Tetuan Bell & Lee Peguambela dan Peguamcara No.183A, Jalan Merdeka Taman Melaka Raya 75000, Melaka. Lawyer For $2^{\mathrm{nd}}$ Defendant: Encik Andre Wee Tetuan Yap Koon Roy & Associates Peguambela dan Peguamcara No. 47-B, First Floor Jalan Ong Kim Wee 75300, Melaka. Lawyer For 3rd & 4th Defendant : Puan Anis Wahida binti Mohamad Pejabat Penasihat Undang-Undang Negeri Melaka, Aras 1, Blok Laksamana Seri Negeri, Ayer Keroh 75450, Melaka.