Gan Lei Chew v Gan Ah Hock (JB-22NCvC-19-04/2024)

02.2024 yang dikeluarkan pada 27-2-2024] ... DEFENDANT GROUNDS OF JUDGMENT Introduction [1] This application came before me pursuant to the Plaintiff's Notice of Application dated 25.9.2025 (Enclosure No.38) under Order 14A Rule 1 and/or Order 33 Rule 5 of the Rules of Court 2012 ("ROC 2012"), seeking the Court's determination of specific questions of law without the need for a full trial. [2] The Plaintiff sought orders that this Honourable Court determine certain legal questions which, if answered in the affirmative, would finally dispose of the entire cause or matter, thereby rendering a full factual trial unnecessary. Background Facts [3] The late Gan Chong Guan passed away on 12.1.2022, leaving behind a complex web of competing claims to his estate. Two pivotal documents are at the centre of this dispute: a Deed of Trust dated 1.6.2017 and an alleged Last Will and Testament dated 21.9.2017. [4] Under the Deed of Trust dated 1.6.2017, the late Gan Chong Guan, as settlor and trustee, declared that he held various immovable properties, company shares, and other assets on trust for his daughter, the Plaintiff (Gan Lei Chew), as the sole beneficiary. [5] The Plaintiff initially sought to enforce this Deed of Trust through Originating Summons No. BA-24-14-02/2020 ("OS-14") in the High Court of Shah Alam. Her mother, Tee Choon Hwa (the widow of the late Gan Chong Guan), intervened to oppose the application, primarily on grounds that the properties were matrimonial assets and that the trust was a sham to defeat her matrimonial rights. [6] On 20.6.2022, the High Court of Shah Alam (per Dato' Julie Lack J) allowed the Plaintiff's application in its entirety, making clear findings that: a) The Deed of Trust was "a valid document" and "enforceable if all its conditions are met". b) The late Gan Chong Guan, as registered proprietor, was "entitled to transfer and/or sell and/or assign the lands to whosoever he pleases". c) "It is well settled that the duty of the Court is to give effect to the contents of the Deed of Trust executed by the Donor and not deprive him of the right to select to whom the properties are to be vested in". d) Significantly, "the Intervener did not at any time challenge the validity of the Deed of Trust." [7] Tee Choon Hwa appealed to the Court of Appeal via Appeal No. B-02(A)-1179-06/2022 ("Appeal No. 1179"). On 11.1.2024, the Court of Appeal dismissed her appeal and affirmed the High Court's decision in full. [8] Following these final determinations, the present Defendant, Gan Ah Hock (brother of the late Gan Chong Guan), applied for and obtained a Grant of Probate on 25.2.2024, purportedly based on a Last Will and Testament dated 21.9.2017. Under this Will, the bulk of the estate assets are bequeathed to a company (Sin Tiong Heng Properties Sdn Bhd) rather than to the Plaintiff. [9] The Plaintiff then commenced the present action on 30.4.2024, seeking to revoke the Grant of Probate and to enforce the Deed of Trust, contending that the earlier final decisions in OS-14 and Appeal No. 1179 had conclusively determined her rights. [10] The Defendant filed a Defence and Counterclaim on 17.5.2024, challenging the validity of the Deed of Trust and asserting that it is void and unenforceable, allegedly on grounds of forgery and fraud. [11] Both the Defendant and the Intervener (Gan Chin Teck, son of the late Gan Chong Guan) had previously attempted to intervene in OS-14 and Appeal No. 1179 after those proceedings had concluded, but their applications were dismissed by the respective courts on 22.8.2024 and 24.3.2025, with costs awarded against the Defendant. [12] The central questions before this Court concern matters of law and legal principle rather than disputed facts. The primary issues are: a) Whether the Defendant and Intervener are bound by the doctrines of res judicata and issue estoppel arising from the final decisions in OS-14 and Appeal No. 1179. b) Whether the Defendant's Defence and Counterclaim constitute an impermissible collateral attack on those final decisions and an abuse of the Court's process. c) Whether allowing the Defence and Counterclaim to proceed would create a risk of conflicting judicial outcomes that would undermine the integrity of the judicial system. d) Whether these questions of law are suitable for determination under Order 14A and/or Order 33 Rule 5 of the ROC 2012 without the need for a full trial. Applicable Legal Principles Order 14A and Order 33 Rule 5 of the Rules of Court 2012 - Powers of the Court [13] Order 14A Rule 1 of the ROC 2012 provides that :-

The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that—

the determination of the question will finally determine the entire cause or matter or any claim, issue or question therein; and

the determination will save further costs, time or expense.

The application shall be made by way of summons. [14] It empowers the Court to determine questions of law or construction at any stage of the proceedings. [14] Order 33 Rule 5 of the ROC 2012 stipulates that :-

Dismissal of action after decision of preliminary issue (O.33 r. 5) 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. [15] It allows the Court to dismiss a cause or matter where the decision of any preliminary issue substantially disposes of the cause or renders a trial unnecessary. [16] As held in Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8, these provisions enable expeditious disposal of actions without unnecessary cost and delay where legal issues are clear and determinative. The Doctrine of Res Judicata and Issue Estoppel [17] The Supreme Court in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 definitively established that res judicata creates an estoppel per rem judicatam, preventing parties and their privies from relitigating matters previously adjudicated by a court of competent jurisdiction. This can be seen as follows :- What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation - interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic way as estoppel by record. Since the two doctrines are the same, it is no longer of any practical importance to say the res judicata is a rule of procedure and that an estoppel per rem judicatum is that of evidence. Such dichotomy is apt to give rise to confusion. [18] The doctrine extends beyond the immediate parties to include their "privies in blood, title, or interest" as confirmed in Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 MLJ 193 as follows :- For requirement (iii), the judgment should have been between the same parties or their privies. According to Lord Guest, before a personcan be a privy to a party, there must be community or privity of interest between them. His Lordship added that it was essential that he who is later to be held estopped must have had some kind of interest in the previous litigation or its subject matter. Spencer-Bower and Turner on Res Judicata (2nd Ed) at p 209 states that estoppel per rem judicatam operates for, or against, not only the parties, but also those who are privy to them in blood, title, or interest (see also 16 Halsbury's Laws of England (4th Ed) at p 874 paras 990-991). Collateral Attack and Abuse of Process [19] The Federal Court in Development & Commercial Bank Bhd v Aspatra Corp Sdn Bhd & Anor And Another Appeal [1995] 3 MLJ 472 held that final orders of superior courts must be obeyed and can only be challenged "by proceedings instituted for the very purpose" of setting them aside, not "collaterally in any proceedings." For our part, with great respect we were unable to agree with the learned judge for deciding in this manner by brushing aside the order of substituted service, for the learned judge was obviously considering the validity of the order of substituted service of the High Court dated 5 January 1986 when the same order was not a subject matter of an application before the learned judge or for that matter, before the learned registrar earlier for its discharge. The order of substituted service of the High Court, a superior court of competent jurisdiction, must be obeyed by everyone save in a few and rare exceptions and it can only be challenged as regards its validity by the only way of having it set aside by proceedings instituted for the very purpose. It cannot be challenged thus collaterally in any proceedings as regards its validity save in a very few rare exceptions, (such as a Bankruptcy Court going behind a judgment of any court on credibly raised issues of collusion, fraud, etc, only on hearing a bankruptcy petition), which all do not apply here. Please see Pembinaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1991] 1 MLJ 100; Puah Bee Hong & Anor v Pentadbiran Tanah Daerah Wilayah Persekutuan Kuala Lumpur & Anor (Teo Keng Tuan Robert, intervener) and another appeal [1994] 2 MLJ 601 and Hadkinson v Hadkinson [1952] 2 All ER 567. In this connection, it is immaterial that the said order of the High Court was actually made by the learned registrar and not a High Court judge. The learned registrar should be considered notionally to be making the order as if he were a deputy High Court judge. leave in Jurisdiction Over Non-Parties [20]The general principle is that a court has no jurisdiction over persons who are not properly made parties to the proceedings, and accordingly, no order can be made in their favour or against them, nor can they be bound by such order. This principle is well established in Kheng Chwee Lian v Wong Tak Thong [1983] 2 MLJ 320, where it was held: "In our judgment, the court below has no jurisdiction inherent or otherwise, over any person other than those properly brought before it, as parties or as persons treated as if they were parties under statutory provisions" (Brydges v Brydges & Wood [1909] P 187; Re Shephard [1920] P 71; Coleman v Coleman (1933-34) 61 IA 115). [21] This principle has been consistently reaffirmed in subsequent authorities, including Lim Choon Seng v Lim Poh Kwee [2020] 5 MLJ 587 and Tenaga Nasional Bhd v Majlis Daerah Segamat [2022] 2 MLJ 119, which confirm that the court cannot exercise jurisdiction over persons who have not been properly joined or brought before it as parties to the proceedings. [22] However, this principle must be balanced against the doctrine of privity, which binds persons whose interests are so closely aligned. [23] "The Deed of Trust executed by the Trustee in this case is a valid document." [24] "The Deed of Trust is valid and enforceable if all its conditions are met." [25] The Court's duty is "to give effect to the contents of the Deed of Trust executed by the Donor." [26] These were not obiter statements but formed part of the ratio decidendi necessary to dispose of the application. The validity and enforceability of the Deed of Trust were essential to granting the relief sought. [27] On the question of privy, I find that both the Defendant and Intervener fall within the category of persons bound by the earlier decisions. The Defendant (Gan Ah Hock) is the brother of the late Gan Chong Guan and now claims to represent his estate as executor. The Intervener (Gan Chin Teck) is the son of the deceased and has a direct derivative interest in the estate. [28] Both shared a common interest with Tee Choon Hwa in challenging the disposition of the estate assets through the Deed of Trust. They were fully aware of the OS-14 proceedings from their inception in 2020 and chose not to intervene until after final determinations had been rendered. [29] I am unable to accept the Defendant's argument that they were unaware of the proceedings. The evidence shows that the Defendant applied for the Grant of Probate on 1.2.2024, mere weeks after the Court of Appeal's decision on 11.1.2024, suggesting full awareness of the litigation and its outcome. [30] Having failed to participate when they could and should have done so, and having failed in their subsequent attempts to intervene, the Defendant and Intervener are now estopped from relitigating the validity and effect of the Deed of Trust. Issue 2: Collateral Attack and Abuse of Process [31] I find that the Defendant's Defence and Counterclaim constitute a clear collateral attack on the final decisions in OS-14 and Appeal No. 1179. The Defendant seeks a declaration that the Deed of Trust is "tidak sah dan terbatal" (invalid and void) without first seeking to set aside or impeach the earlier judgments that upheld its validity. [32] This approach is impermissible under established authority. As the Court of Appeal noted on 24.3.2025 when dismissing the Defendant's intervention application, "the proper remedy is for the proposed intervener to continue litigate the matter at the Muar High Court and or to file a fresh action to challenge the decision of the Shah Alam High Court." [33] The Defendant has chosen the wrong procedural route. Rather than filing a fresh originating action to impeach the earlier judgments on grounds of fraud (if such grounds exist), he attempts to achieve the same result indirectly through his Counterclaim. This constitutes an abuse of process as defined in Kerajaan Malaysia vs Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133. Issue 3: Risk of Inconsistent Decisions [34] Allowing the Defendant's Counterclaim to proceed would create an unacceptable risk of conflicting judicial determinations. The Court would be asked to declare invalid a Deed of Trust that has already been upheld and enforced by two superior courts. [35] In this matter, this Court refers to and agrees with the case of Orange Business Services (Network) Sdn Bhd v Dealtel (Malaysia) Sdn Bhd and Another Appeal [2019] CLJU 771, where the Court of Appeal stated as follows: [17] The objection to multiplicity of proceedings is well-grounded and underscored by the public interest to avoid conflicting decisions by two different courts on the same issue between parties (see Lesco Development Corp Sdn Bhd v Malaysia Building Society Bhd [1987] CLJ (Rep) 160 and Taunton Collins v Cromie and Anor [1964] 2 All ER 332). Conflicting decisions on the same issue not only bring embarrassment to the court or tribunal but may also undermine public confidence in the administration of justice. [18] Authorities on the point also suggest that having multiple actions on the same issues is an abuse of process giving power to the court to act accordingly by striking out any such action or actions (see Jasa Keramat Sdn Bhd & Anor v Monatec (M) Sdn Bhd [1999] 4 CLJ 533; [1999] 4 MLJ 637; Damayanti Kantilal Doshi & Ors v Jigarlal Kantilal Doshi & Ors [2002] 8 CLJ 218; [2001] 6 MLJ 417; Penang Port Commission v Kanawagi s/o Seperumaniam [2009] 1 CLJ 169; [2008] 6 MLJ 686; and Lai Kim Loi v Dato' Lai Fook Kim & Anor [1989] 1 CLJ Rep 61; [1989] 2 MLJ 290). [36] I am of the view that if the present proceedings are allowed to proceed to trial, there is a real possibility that inconsistent or conflicting decisions may arise in respect of the same issues. Such a scenario would not only compromise the consistency and coherence of judicial determinations, but would also create legal uncertainty and erode public confidence in the finality and integrity of the administration of justice. Issue 4: Suitability for Summary Determination [37] I find that these questions are eminently suitable for determination under Order 14A and Order 33 Rule 5. The issues are questions of law and legal principle that do not require the resolution of disputed facts through oral evidence. [38] The Defendant's allegations of fraud and forgery, while serious, are not supported by any credible evidence and appear to have been raised as an afterthought. More importantly, if such allegations were genuine, the proper course would be a fresh action to impeach the earlier judgments, not a collateral challenge through counterclaim. Issue 5: Timing of the Application [39] While the Defendant contends that this application was filed late as a delaying tactic, I find this argument without merit. Order 14A expressly permits determination of legal questions "at any stage of the proceedings." The Plaintiff's explanation regarding change of solicitors and subsequent review is reasonable and accepted. [40] Moreover, the application serves judicial efficiency by potentially disposing of the entire matter without a protracted trial, thereby conserving both parties' resources and judicial time. Decision of the Court Res Judicata and Issue Estoppel [41] Having regard to all the evidence and authorities cited, I find that the doctrines of res judicata and issue estoppel apply to bar the Defendant and Intervener from relitigating the validity and enforceability of the Deed of Trust dated 1.6.2017. [42] The decisions in OS-14 and Appeal No. 1179 were final adjudications on the merits following full argument. They conclusively determined that the Deed of Trust is valid, enforceable, and gives the Plaintiff beneficial ownership of the trust assets. [43] The Defendant and Intervener, as privies in blood and interest to the parties in those earlier proceedings, are bound by those determinations. They cannot now seek to relitigate the same issues through different proceedings, particularly when they had full opportunity to participate in the earlier matters. Collateral Attack [44] I further find that the Defendant's Defence and Counterclaim constitute an impermissible collateral attack on the final and binding judgments of the High Court (20.6.2022) and Court of Appeal (11.1.2024). [45] The proper avenue to challenge those decisions, if grounds exist, would be through a fresh originating action seeking to set aside or impeach the earlier judgments. The Defendant has not pursued this route, instead attempting to achieve the same result indirectly through his Counterclaim. [46] This approach is contrary to established authority and constitutes an abuse of the Court's process. It seeks to undermine final judicial determinations through unauthorized means, thereby threatening the integrity and finality of judicial decisions. Grant of Probate and Will dated 21.9.2017 [47] In light of the final and binding nature of the decisions upholding the Deed of Trust, I find that the Grant of Probate dated 25.2.2024 cannot validly affect the trust assets that have already been judicially determined to belong beneficially to the Plaintiff. [48] The Will dated 21.9.2017, to the extent it purports to dispose of assets already subject to the enforced Deed of Trust, is of no legal effect as against the trust assets. The Deed of Trust, having been judicially upheld and enforced, takes precedence. Multiplicity of Proceedings [49] I am satisfied that allowing the Defence and Counterclaim to proceed would risk creating conflicting judicial outcomes on the same subject matter. This would not only waste judicial resources but also undermine public confidence in the consistency and finality of court decisions. Suitability for Summary Determination [50] These questions are pure questions of law concerning the effect and finality of prior judicial determinations. They require no factual inquiry or oral evidence and are therefore eminently suitable for determination under Order 14A and Order 33 Rule 5. [51] The determination of these questions finally disposes of the Defence and Counterclaim, as they are founded on premises that are legally untenable considering the earlier final decisions. Conclusion [52] Upon careful consideration of all materials before this Court, including affidavits, written submissions, and authorities cited by all parties, I am satisfied that: b) The Defence and Counterclaim constitute an impermissible collateral attack on those final decisions and an abuse of process. a) The Defendant and Intervener are bound by res judicata and issue estoppel arising from the final decisions in OS-14 and Appeal No. 1179. c) The Grant of Probate dated 25.2.2024 and reliance on the Will dated 21.9.2017 cannot validly affect trust assets already subject to binding judicial determination. d) Allowing the Defence and Counterclaim to proceed would create unacceptable risks of conflicting judicial outcomes. [53] Accordingly, I answer the questions posed in the Plaintiff's Notice of Application (Enclosure No.38) in the affirmative.

[54] I therefore make the following orders: a) The Plaintiff's application under Order 14A and/or Order 33 Rule 5 (Enclosure No.38) is allowed in full. b) The Defendant's Defence and Counterclaim filed on 17.5.2024 are struck out in their entirety as being barred by res judicata and issue estoppel, and as constituting an abuse of process. c) Any claim by the Intervener is similarly struck out. i. The Deed of Trust dated 1.6.2017 is valid, enforceable, and binding. d) Judgment is entered for the Plaintiff with the following declarations and orders: ii. The trust assets specified in the said Deed of Trust are held beneficially for the Plaintiff absolutely. iii. The Grant of Probate dated 25.2.2024 is of no legal effect insofar as it relates to the trust assets. iv. The Defendant is restrained from acting as executor or administrator in respect of the trust assets. v. Costs of this application and the entire action are awarded to the Plaintiff against the Defendant and Intervener, to be taxed if not agreed. [54] This matter serves as a reminder that final judicial determinations must be respected and upheld. Parties cannot be permitted to relitigate concluded matters through collateral means, as this would undermine the very foundations of judicial finality and the rule of law. DATED ON 13th MARCH 2026 YA DATUK ZAMRI BIN BAKAR JUDICIAL COMMISIONER HIGH COURT (1) MUAR Counsel For the Plaintiff: Barry Boey (MESSRS. BARRY BOEY CHAMBERS) For the Defendant and Intervener: Tan Koon Hoe & Amy Chia Mei Yan (MESSRS. K.H. TAN & CO.)