is barred by the Limitation Act 1953. [5] On the question of identifying the Plaintiff’s pleaded cause of action by reference to the relief sought, reference was made to the authorities below: [6] In Hock Hua Bank Bhd. v Leong Yew Chin [1987] 1 MLJ 230 at p 233, Syed Agil Barakhbah SCJ in identifying the difference between the true nature of relief and a cause of action said: “Relief means a remedy sought by a plaintiff in an action. A cause of action is simply a factual situation the existence of which entitles a plaintiff to obtain from the Court a remedy against the defendant. Page 16 of 32 (See Diplock L.J. in Letang v Cooper [1965] 1 QB 232 242-3. There must be a cause of action before a plaintiff can claim a relief in an action. (See Order 15 rule 1 RHC 1980).” [7] In Nasri v Mesah [1971] 1 MLJ 32 at p 34, the Federal Court held: A “cause of action” is the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment (per Lord Esher M.R. in Read v Brown (1888) 22 QBD 128 131). In Reeves v Butcher (1891) 2 QB 590 511 Lindley L.J. said: “This expression, ‘cause of action’, has been repeatedly the subject of decision, and it has been held, particularly in Hemp v Garland LR 4 QB 509 511, decided in 1843, that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring an action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought.” Page 17 of 32 In Board of Trade v Cayzer, Irvine & Co [1927] AC 610 617. Viscount Dunedin described “cause of action” as that which makes action possible. [8] It cannot be disputed that the Plaintiff’s cause of action is premised primarily on the fact that the Plaintiff and the Defendant had entered into the Settlement Agreement wherein it was, inter alia, agreed that 34 Properties were to be in part settlement of the debt and that, the 24 Properties were intended to be consideration for the Redemption Sum payable to the Chargee Bank. [9] In respect of constructive trust, the law is that it would only be imposed by the Court to satisfy the demands of justice. The Defendant relied on the Court of Appeal case of Tay Choo Foo @ Tay Chiew Foo v Tengku Mod Saad Tengku Arifaad bin Tengku Mansur & Ors (all acting as administrators of the estate of Tunku Mansur bin Tunku Yaacob, deceased) and another appeal [2009] 1 MLJ 289 CA where Mohd Ghazali, JCA said, inter alia, this of a constructive trust: “In Hussey v Palmer [1972] 3 All ER 744, as to the meaning of constructive trusts, Lord Denning MR said (at p 747): Page 18 of 32 “Although the plaintiff alleged that there was a resulting trust, I should have thought that the trust in this case, if there was one, was more in the nature of a constructive trust; but this is more a matter of words than anything else. The two run together. By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded on large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution. It is comparable to the legal remedy of money had and received which, as Lord Mansfield said, is very beneficial and, therefore, much encouraged. Thus we have repeatedly held that, when one person contributes towards the purchase price of a house, the owner holds it on a constructive trust for him, proportionate to his contribution, even though there is no agreement between them, and no Page 19 of 32 declaration of trust to be found, and no evidence of any intention to create a trust.” [10] Applying the principle to the instant facts, it is plain that the facts of this case do not fall within the scope of a constructive trust as described above. In particular, the Plaintiff has not demonstrated that justice and good conscience require that an inference be made of the existence of such a trust in favour of the Plaintiff. Conclusion [11] To sum up, the Court finds as follows on the Plaintiff’s claim and the Defendant’s counter-claim. [12] Upon having considered the evidence adduced in its entirety, the pleadings and the submissions advanced on behalf of both parties, the Court’s conclusion on the core issues are as below. [13] The dispute between the 2 contracting parties in this case under the Settlement Agreement entered into (‘S/A’) dated concerns primarily whether the said 24 apartment units (‘the 24 units’) assigned by the Plaintiff (‘P’) to the Defendant (‘D’) under the S/A are held by D in trust for P. Page 20 of 32 [14] It is P who are alleging the existence of a trust, a resulting or any other form of trust, in respect of the said 24 units and therefore is the party that bears the onus of proving the existence of the purported trust. From an evaluation of all the material evidence on this issue, it is the Court’s finding that P has failed to prove satisfactorily that the 24 units were assigned to D to be held in trust for P for the properties to be reverted to P should D fail to settle the redemption sum to the Chargee Bank. There is no provision or agreement to this effect in the S/A whose terms are clear and unambiguous. The Court in construing the S/A has to read the words used literally to give effect to the same in the determination of the true intention of the parties and not to impute non-existent terms. Having construed the S/A as such, the Court holds that the remedy for the failure of D to pay the redemption sum is not reversion or reassignment of the units to D. [15] As to the circumstances under which a resulting trust and a constructive trust may be inferred, it would be useful to refer to the judgment of the Federal Court in Takako Sakao v Ng Pek Yuen & Anor [2010] 1 CLJ 381 where it was held inter alia: “The device of a resulting trust was invented by the Court of Chancery to give effect to the implied intention of the parties in Page 21 of 32 relation to the acquisition and disposal of moveable or immoveable property. The primary function of the court in a case where a resulting trust is asserted or a gift is alleged arising from a disposition of property is to determine whether the initial disponor intended to make a gift of the property, movable or immovable, or whether he or she intended the property to be held by the disponee in trust for some other person or persons, including the disponor or the disponee or both. A court when called upon to decide whether a resulting trust or a gift was intended in given circumstances should not begin by resorting to presumptions. It must meticulously examine the facts to objectively ascertain the true intention of the parties. It is only when there is absent any indication of what was intended by the parties that the court should resort to presumptions. Westdeutsche Landesbank Girozentrale v. Islington LBC (foll); Heng Gek Kiau v. Goh Koon Suan (foll); Kyriakides v. Pippas (foll); Berry v. British Transport Commission (foll). (paras 17, 18 & 19) A constructive trust is imposed by law irrespective of the intention of the parties. It is imposed only in certain circumstances, such as where: (i) there is a specifically enforceable contract for the sale of Page 22 of 32 property (moveable of immovable), the vendor holds the property on a constructive trust for the purchaser; and (ii) a gift made as a donatio mortis causa fails, the intended beneficiary of the gift holds it in trust for the donor. What equity does in those circumstances is to fasten upon the conscience of the holder of the property a trust in favour of another in respect of the whole or a part thereof. Paragon Finance plc v. DB Thakerar & Co (foll). Wong Siew Choong v. Anvest Corporation Sdn Bhd (refd). (para 20)” [16] In proposing that the transfer of the 24 apartment units by the Plaintiff cannot be construed as a gift the Plaintiff contended that it is clear from the construction of Clause 4 of the Settlement Agreement that the Plaintiff is required to pay the difference in the event there is an increase in the redemption sum by Affin Bank. [17] Further reference was made to Takako Sakao (Supra) where it was pronounced: “In our judgment, the primary function of the court in a case where a resulting trust is asserted or a gift is alleged arising from a disposition of property is clear. It is to determine whether the initial disponor intended to make a gift of the property be it movable or Page 23 of 32 immovable, or whether he or she intended it to be held by the disponee in trust for some other person or persons, including the disponor or the disponee or both. A court when called upon to decide whether a resulting trust or a gift was intended in given circumstances should not begin by resorting to presumptions. It must meticulously examine the facts to objectively ascertain the true intention of the parties. If the intention of the parties when objectively determined was that the particular property was to be held on a resulting trust then that is the conclusion the court should declare. However, if the intention was that the disponee of the property was to have it as a gift, there can then be no question of a resulting trust being implied. It is only when there is absent any indication of what was intended by the parties that the court should resort to presumptions. Were it otherwise, the court may be arriving at an incorrect conclusion based on a presumption when the evidence points in quite the opposite direction. As Devlin LJ (later Lord Devlin) said in Berry v. British Transport Commission [1961] 3 All ER 65, 75: ... presumptions of law ought to be used only where their use is strictly necessary for the ends of justice. They are Page 24 of 32 inherently undesirable... because they prevent the court from ascertaining the truth, which should be the prime object of a judicial investigation, and because, if they are allowed to multiply to excess, the law will become divorced from reality and will live among fantasies of its own.” [18] On the contrary, the Defendant took the position that they effected payment in the form of transfer of shares by a third party which was opposed to the contention of a gift. The Plaintiff pointed out that there was no contemporary document from the Receiver and Manager (‘R and M’), under whom the Plaintiff was placed, indicating agreement to such an arrangement. Upon the appointment of the R and M no other party had control over the affairs of the Plaintiff. Furthermore, that there was no contemporary documentation between parties to suggest that the Plaintiff had assigned 24 apartment units as a gift to the Defendant and also that the act of retaining the keys and the refusal to give vacant possession is also a clear indication that the transfer of 24 apartment units at no material time was a gift on the part of the Plaintiff. Page 25 of 32 [19] Reference was also made to an authoritative text on this subject, Equity and Trust in Malaysia by Mohsin Hinguin and Wan Azlan Ahmad states that: “[5.001] A resulting does not come into existence based on the actual intention of the parties, but is, on the other hand, founded on the existence of a state of affairs giving rise to perused intention. There are numerous classifications of resulting trust: perhaps the most authoritative recent judicial reference, and the one adopted for the purposes of the present work, is that of Lord Browne-Wilkinson in Westdeusche Landesbank Girozentrale v Islington LBC…” [See also Heng Grek Kian v Goh Koon Suan [2007] 6 CLJ 626] [20] Similarly, as to whether a constructive trust arose in favour of the Plaintiff, reliance was placed heavily on Takako Sakao (supra), specifically to this passage from the judgment: “A constructive trust is imposed by law irrespective of the intention of the parties. And it is imposed only in certain circumstances. Two examples readily available (apart from the facts of this case and those illustrations provided by Millet LJ in Paragon Finance plc v. Page 26 of 32 DB Thakerar & Co ) are (i) where there is a specifically enforceable contract for the sale of property (moveable of immovable), the vendor holds the property on a constructive trust for the purchaser: see, Wong Siew Choong Sdn Bhd v. Anvest Corporation Sdn Bhd [2002] 3 CLJ 409; and (ii) where a gift made as a donatio mortis causa fails, the intended beneficiary of the gift holds it in trust for the donor. As may be seen, the vendor in the first illustration and the purportedly dying donor or the beneficiary in the second did not create any trust. Nor did they intend to do so. What equity does in those circumstances is to fasten upon the conscience of the holder of the property a trust in favour of another in respect of the whole or a part thereof.” [21] In regard to this issue, the Plaintiff contended that on the current facts when the Plaintiff had settled with Affin Bank there was no longer a requirement for the Defendant to redeem. As such the Defendant is holding the 24 apartment units in trust for the Plaintiff. [22] Further, that the Defendant’s main witness (DW1) had admitted that the redemption sum was no longer required if the loan had been settled. Page 27 of 32 [23] However, as contended by the Defendant, from an objective construction of the Settlement Agreement, the intention of the parties as manifested by the language they have employed points to an intention to transfer and convey the 58 Properties to the Defendant without the creation of a trust, whether express or a purpose trust. [24] Likewise, from an evaluation of all the facts and evidence, undoubtedly no evidence has been led or adduced by the Plaintiff to show from the surrounding circumstances that the Plaintiff intended that the 24 Properties were to be transferred to the Defendant as the price for effecting the payment of the Redemption Sum and in default, that the 24 Properties were to be returned to the Plaintiff in specie. [25] As there clearly are insufficient facts and evidence from which an inference of such an intention can be made, a resulting trust, which was the premise of the Plaintiff’s pleaded case cannot be said to have come to existence. [26] For these reasons, inter-alia, based on the totality of the evidence, the relevant documents and undisputed facts, it is found that P has failed to prove its pleaded claim, premised on trust on a balance of probabilities, particularly as to the issue reassignment of the properties to P upon non-Page 28 of 32 fulfillment of an essential condition by D under the S/A and that reassignment is a proper remedy under the S/A for the alleged beach by D. [27] Proceeding to D’s counter-claim (‘C/C’), the onus to adduce evidence in support is on the Defendant to prove its entitlement to the particulars pleaded and reliefs claimed. [28] In respect of the C/C in paragraph 19.5 of the Defence and the C/C for prayers (a), (i), (iii) & (b), the Plaintiff has raised the defence of limitation. [29] On the claim for the 3 trust properties, the Plaintiff contended that the claim if any is barred by limitation pursuant to the Limitation Act, 1953 (‘LA’). It is on the basis that, as admitted by DW1 himself, the Defendant had received payment on 13.02.2007 being full and final payment but it was not agreeable. Hence, that the cause of action accrued on 13.02.2007 after which the limitation period started to run. As such, this claim, being premised on contract, was statute-barred as it was commenced only in 2017 which was well after the limitation period had lapsed. [30] S. 6 of the LA provides that: “Limitation of actions of contract and tort and certain other actions