Law Hok Key @ Low Hock Kan (Nric No.: 4011-10-5107/2909182) v Amanah Raya Berhad (Company No.: 344986-V) (22NCVC-255-05/2015)

On 20.05.2015, the plaintiff filed this suit through the firm of Messrs. Syarikat K. L. Rekhraj (“the plaintiff’s solicitors”) vide a writ of summons dated 20.05.2015 (“the writ”), enclosure (1), which carried an endorsement of his claim and a statement of claim dated 20.05.2015 (“the statement of claim”), enclosure (2), for an injunction 25 to restrain the defendant and/or the defendant’s agents and/or employees from withdrawing a sum of RM 4,971,951.28 or any part 2 of it from the Estate of Low Moh @ Low Hooi (“Low Moh’s Estate”) in favour of any of the beneficiaries of Low Moh’s Estate; an order for the payment to the plaintiff of the sum of RM 4,971,951.28 by the defendant, as the Administrator of Low Moh’s Estate; together with interest thereon at the rate of 5% per annum from the date of the 5 filing of the writ until the date of full settlement; an order for the sale by the defendant of the properties of Low Moh’s Estate, if there is insufficient moneys in Low Moh’s Estate to pay the plaintiff the sum of RM 4,971,951.28, which Low Moh’s Estate is indebted to the plaintiff; costs and other reliefs deemed fit and just by this Court.

Law Hok Key @ Low Hock Kan, the plaintiff, is a beneficiary of Low Moh’s Estate and one of the 2 (two) former co-Administrators of Low Moh’s Estate.

Amanah Raya Berhad, the defendant, is the current sole Administrator of Low Moh’s Estate. 15 Plaintiff’s claim 4. The plaintiff’s pleaded case in the statement of claim is as follows:

Low Moh had 1 (one) wife and 10 (ten) legitimate children, including Law Hock Tuk @ Low Hock Tay (“LHT”), Bon Tong @ 20 Low Boon Siew (“BT”) and the plaintiff;

On 22.09.1966, BT passed away without leaving a will. BT’s 5 (five) children, namely, Yap Meng Kan, Yap Ming Huat, Yap Beng Aik, Yap Beng Siang and Yap Bee Lan (“BT’s children”) were appointed as the co-Administrators of the Estate of BT 25 (“BT’s Estate”); 3

On 11.01.1977, Low Moh passed away without leaving a will. The plaintiff and LHT were appointed the co-Administrators of Low Moh’s Estate (“the 2 (two) co-Administrators of Low Moh’s Estate”);

On 23.02.1999, LHT passed away without leaving a will and the 5 plaintiff became the sole Administrator of Low Moh’s estate;

One Low Khen Meng (“KM”) and one Low Khen Khoo (“KK”) were appointed the co-Administrators of the Estate of LHT (“LHT’s Estate”) (the 2 (two) co-Administrators of LHT’s Estate).

Hence, there are 3 (three) deceased persons, viz BT, Low Moh 10 and LHT and 3 (three), respective, Estates, viz, BT’s Estate, Low Moh’s Estate and LHT’s Estate;

On 17.02.2005, BT’s children commenced a suit, viz Kuala Lumpur High Court Suit No.: S7-22-148-2005 (“the 2005 Suit”), against the plaintiff and the 2 (two) co-Administrators of LHT’s 15 Estate, viz KM and KK. In the 2005 Suit, BT’s children prayed for, inter alia, the following reliefs:

A declaration that BT’s children are entitled to a share of the assets of Loh Moh's Estate, which were distributed by the plaintiff and LHT;

A declaration that if the plaintiff and LHT should fail to distribute to BT’s children their lawful share of the assets of Low Moh’s Estate, then they would have committed breach of trust and breach of duty as the co-Administrators of Low Moh’s Estate; and 25

For an order that the plaintiff, as the Administrator of Low Moh’s Estate, and KM and KK, as the co-Administrators 4 of LHT’s Estate, pay a sum of RM 26,017.49 to BT’s children.

The plaintiff and the co-Administrators of LHT’s Estate then discussed the 2005 Suit with all the beneficiaries of Low Moh’s 5 Estate and obtained their consent to enter into a consent judgment with BT’s children without any admission of liability whereby a sum of RM 4,100,000.00 was agreed to be paid to BT’s children by the plaintiff from the sale of a property of Low Moh’s Estate (“the property”) in full and final settlement of their 10 claim to Loh Moh's Estate (“the agreed sum”);

Hence, on 29.03.2011, the plaintiff and the co-Administrators of LHT’s Estate entered into a consent judgment with BT’s children without any admission of liability whereby a sum of RM 4,100,000.00 was agreed to be paid to BT’s children by the 15 plaintiff (“the judgment sum”) from the sale of the property in full and final settlement of their claim to Loh Moh's Estate (“the consent judgment”); 20 other beneficiaries of Low Moh’s Estate (“the applicants”), filed an originating summons, viz Kuala Lumpur Originating Summons No. 24NCVC-1118-2011 (“the 2011 OS”), to appoint Low Hock Seng and one Low Beng Chee to replace the plaintiff and LHT as the 2 (two) new co-administrators of Low Moh’s 25 Estate (“the 2 (two) new proposed co-administrators of Low Moh’s Estate”); 5 bond of administration, the Court appointed the defendant as the new sole Administrator of Low Moh’s Estate; co-Administrators of Loh Moh's Estate and, hence, would not 10 be able to perform and complete the consent judgment, BT’s children commenced a bankruptcy proceeding, viz Kuala Lumpur High Court Creditor’s Petition No. 29-5023-09/2012 (“the 2012 Creditor’s Petition”), against the plaintiff to declare him a bankrupt for breach of the consent judgment; 15 to sell his own property in order to comply with the consent judgment; and the plaintiff was declared a bankrupt; 25 4,777,221.00 as stated in the bankruptcy notice (“BN”), being 6 the aggregate of the judgment sum of RM 4,100,000.00 together with interest thereon amounting to RM 677,221.00 calculated at the rate of 8% per annum, in full settlement of the claim of BT’s children (“the settlement sum”); BT’s children withdrawing the BN and the 2012 Creditor’s Petition against the plaintiff at the Kuala Lumpur High Court; Court Civil Suit No. 22NCVC-483-10/2014 (“the 2014 Suit”) against the 2 (two) co-Administrators of LHT’s Estate to claim 10 for contribution of the settlement sum; (two) co-Administrators of LHT’s Estate to pay half of the settlement sum, viz a sum of RM 2,485,975.64, to the plaintiff (“the sum of RM 2,485,975.64”); 15 Moh’s Estate including the plaintiff that one of the properties of Low Moh’s Estate has been acquired by the Government and 20 compensation of a sum of about RM 4,400,000.00 (“the compensation sum”) would be paid to the defendant and that, thereafter, the defendant would distribute the compensation sum to the beneficiaries of Low Moh’s Estate; settlement sum to be paid from the compensation sum but the defendant took the stand that before it could pay to the plaintiff 7 the settlement sum from the compensation sum, all the beneficiaries of Low Moh’s Estate have to consent to the payment as the compensation sum forms part of Low Moh’s Estate; settlement sum is set out in paragraphs 36 to 40 of the statement of claim, which state as follows in Malay: “36. Plaintif menegaskan bahawa sekiranya Defendan tidak dilantik sebagai pentadbir harta pusaka baru kepada estet Low Moh pada 1-6-2012, maka Plaintif akan 10 dapat menjualkan hartanah pusaka Low Moh dan membayar sejumlah RM 4,100,000.00 daripada hasil jualannya kepada Anak Bon Ton seperti yang diperuntukkan di bawah Penghakiman Persetujuan bertarikh 29-3-2011. 15 Low Moh, Plaintif tidak dapat melaksanakan perintah-perintah Penghakiman Persetujuan bertarikh 29-3-2011 iaitu menjualkan hartanah pusaka Low Moh dan 20 membayar sejumlah RM 4,100,000.00 daripada hasil jualannya kepada Anak Bon Tong. peguam (yang membawa jumlah kepada 4,971,951.28), di mana harta pusaka Low Moh yang sepatutnya membayar Anak Bon Tong sejumlah RM 4,100,000.00 tersebut daripada hasil jualan hartanahnya. 30 8 berpengetahuan dan telahpun bersetuju untuk membayar Anak Bon Tong sejumlah RM 4,100,000.00 daripada hasil jualah hartanah harta pusaka Low Moh, seperti yang diperuntukkan di dalam Penghakiman Persetujuan bertarikh 29-3-2011. 10 Low Moh sekiranya Defendan sudah mengagihkan harta pusaka Low Mohd an membayar 15 hasilnya kepada setiap benefisiari estet Low Moh sebelum Defendan menyelesaikan bayaran sebanyak RM 4,971,951.28 ini kepada Plaintif terlebih dahulu.” settlement sum, in English, can be summarized as follows:

Had the defendant not been appointed the new sole Administrator of Loh Moh's Estate on 01.06.2012, the plaintiff would have been able to implement the terms of the consent judgment by selling the property belonging to 25 Low Moh’s Estate and paying the agreed sum to BT’s children;

Had the defendant not been appointed the new sole Administrator of Loh Moh's Estate on 01.06.2012, the plaintiff would also not have to sell his own property to 30 9 pay the settlement sum to BT’s children in order to fulfil the terms of the consent judgment;

The plaintiff has a right in the interest of justice to recover the settlement sum from the defendant as the plaintiff had entered into the consent judgment with BT’s children to 5 pay BT’s children the agreed sum after having obtained the consent of all the beneficiaries of Loh Moh's Estate; and

The plaintiff will suffer considerable loss and may not be able to recover the settlement sum from Loh Moh's 10 Estate after the defendant has distributed Loh Moh's Estate to all the beneficiaries; against the defendant, in Malay: “(a) Suatu injunksi menghalang Defendan dan/atau ejen-ejen Defendan dan/atau penghkidmat-pengkhidmat Defendan daripada mengeluarkan sejumlah 4,971.951.28 atau mana-mana bahagian daripadanya, 20 daripada harta pusaka Low Moh kepada mana-mana benefisiari estes Low Moh; Defendan (selaku pentadbir harta pusaka Low Moh) kepada Plaintif;

Faedah pada kadar 5% setahun di atas jumlah wang RM 4,971,951.28 dari tarikh pemfailan Writ Saman sehingga tarikh penyelesaian penuh; 10 Low Moh sekiranya wang di dalam harta pusaka Low Moh pada masa kini tidak mencukupi untuk menyelesaikan hutang 4,971,951.28 kepada

Lain-lain relief sebagaimana yang didapat adil dan patut dan sebagaimana yang diarahkan oleh Mahkamah Yang Mulia ini.” 10 Defendant’s appearance 5. On 04.06.2015, the defendant entered appearance by filing a memorandum of appearance dated 04.06.2015, enclosure (12). Interim injunction dated 30.06.2015 15 6. On 30.06.2015, upon the application of the plaintiff, the High Court granted an interim injunction against the defendant to restrain the defendant and/or the defendant’s agents and/or employees from withdrawing a sum of RM 4,971,951.28 or any part of it from Low Mow’s Estate pending the disposal of the instant suit. 20 Defendant’s defence 7. On 02.07.2015, the defendant filed its statement of defence dated 02.07.2015 (“the defence”), enclosure (13).

Subsequently, the defendant amended the defence through the firm 25 of solicitors of Messrs. Zaid Ibrahim & Co (“the defendant’s solicitors”).

On 08.11.2016, the defendant filed the amended defence redated 01.11.2016 (“the amended defence”), enclosure (79).

The defendant’s pleaded case in the amended defence is as follows: 30 11

The amended defence is filed without prejudice to the defendant’s right to apply to strike out the statement of claim dated 20.05.2015 on the ground that it is scandalous, frivolous or vexatious and is an abuse of the process of the Court;

The defendant was appointed the Administrator of Loh Moh's 5 Estate vide the Order of the High Court dated 01.06.2012 (“the Court Order of appointment”) to replace the plaintiff and LHT, the 2 (two) previous co-Administrators of Loh Moh's Estate;

The defendant only commenced the administration of Loh Moh's Estate in March 2013 after the Court Order of 10 appointment was served on the defendant;

Loh Moh's Estate has 12 beneficiaries, who are as follows: No. Nama Hubungan 1 TEH GEOK BALU 2 LOW HOCK HIN @ LOW GOON 3 LOW BOON OI 4 LOW BOON TIN 5 LAW HOCK CHOY @ LOW HOCK SAN 6 LAW HOK KEY @ LOW HOCK KAN 7 LAW HOCK TUK @ LOW HOCK TAY 8 LAW HOW @ LOW YOKE CHUN 9 LOW MOH WAN 10 LOW HOCK SENG 11 LOW BOON HUA 12 BON TONG @ LOW BOON SIEW 12

In the 2005 Suit, the plaintiff was sued by BT’s children in his personal capacity whilst KM and KK were also sued in their personal capacities as the 2 (two) co-Administrators of LHT’s Estate;

On 05.01.2006, the High Court allowed the claim of BT’s 5 children in the 2005 Suit and the plaintiff, KM and KK appealed to the Court of Appeal against the decision of the High Court;

The Court of Appeal, allowed their appeal. In allowing their appeal, the Court of Appeal made 2 (two) rulings. The 2 (two) rulings are as follows:

BT’s children did not have the locus standi to sue the plaintiff and the 2 (two) Administrators of LHT’s Estate, viz KM and KK, as they have not obtained the letters of administration for BT’s Estate (“the first ruling”); and

The action brought by BT’S children was a personal 15 action against the plaintiff, KM and KK and not an action against Low Moh’s Estate (“the second ruling”);

BT’s children then successfully applied for leave to appeal to the Federal Court only against the first ruling, viz the issue of 20 their locus standi to bring the action against the plaintiff, KM and KK;

On 21.08.2008, the Federal Court allowed the appeal of BT’s children and the Federal Court remitted the case back to the High Court for trial only on the issue of BT’s children’s locus 25 standi to bring the action against the plaintiff, KM and KK; 13 5 Moh’s Estate (“the variation application”) but their variation 10 application was dismissed; consent judgment, the plaintiff is estopped from relitigating the issue in the 2nd ruling, viz that the 2005 Suit was an action brought by BT’s children against the plaintiff, KM and KK, in their personal capacities and not an action against Loh Moh's Estate; 20 LHT’s Estate do not have any legal right to claim for any damages, compensation or any other payment in the form of an indemnity from Loh Moh's Estate for the settlement sum. 25 14 Plaintiff’s reply to defendant’s defence 11. On 14.07.2015, the plaintiff filed his reply dated 13.07.2015 (“reply”), enclosure (16), to the defendant’s defence.

In his reply, the plaintiff avers, inter alia, as follows in Malay in 5 paragraphs 5 to 13: “5. Ianya harus ditegaskan bahawa Plaintif dan Law Hock Tuk @ Low Hock Tay tidak dapat menjalankan pentabdiran ested Low Moh sejak Mei 2011 akibat Permohonan Perlantikan Pentadbir Baru oleh Low Hock Seng dan 9 orang yang lain 10 tersebut.

Perenggan 3 Pernyataan Pembelaan adalah dirujuk. Kecuali Teh Geok, Low Hock Seng, Low Boon Hua, dan Bon Tong @ Low Boon Siew, benefisiari-benefisiari lain yang disenaraikan oleh Defendan dalam perenggan 3 adalah diakui sebagai 15 waris penuh kepada estet Low Moh.

Plaintif menegaskan bahawa Teh Geok, Low Hock Seng, dan Low Boon Hua bukan lagi merupakan waris-waris kepada ested Low Moh kerana mereka telahpun dibayar sejumlah RM 2,600,000.00 daripada hasil jualan suatu hartanah pusaka 20 Low Moh di Bukit Bintang dalam tahun 1978. Teh Geok, Low Hock Seng, dan Low Boon Hua telah memohon untuk RM 2,600,000.00 pada masa itu kerana mengalami kesukaran kewangan dan telah bersetuju untuk tidak mempunyai apa-apa tuntutan lagi terhadap estet Low Moh.

Selain itu, Plaintif juga menegaskan bahawa Bon Tong @ Low Boon Siew bukan lagi merupakan waris penuh kepada estet Low Moh kerana Bon Tong (melalui anak-anaknya) sudahpun dibayar sejumlah RM 4,777,221.00 melalui Penghakiman persetujuan bertarikh 29.03.2011 yang mana ianya 30 15 dipersetujui bahawa Bon Tong tidak akan mempunyai apa-apa tuntutan lagi terhadap estet Low Moh.

Perenggan 6 Pernyataan Pembelaan adalah dinafikan. Plaintif menegaskan bahawa pada semua masa yang material, benefisiari-benefisiari lain estet Low Moh adalah sedar dan 5 telah bersetuju dengan terma-terma penyelesaian dengan Anak Bon Tong kerana telah dibincangkan secara terperinci dalam suatu mesyuarat yang mana Plaintif akan buktikan pada masa perbicaraan kelak. telah memberikan kesemua dokumen yang dipunyai olehnya berkenaan pentadbiran estet Low Moh kepada Defendan melalui peguamcara terdahulunya. Waris-waris estet Low Moh tidak perlu mencelah di dalam 15 prosiding kes ini tetapi boleh dipanggil sebagai saksi untuk memberikan keterangan pada masa perbicaraan kelak. Plaintif dengan ini menafikan setiap dan tiap-tiap pernyataan Defendan-Defendan secara traverse seriatim. Plaintif mengulangi dan 20 menggunapakai kesemua perenggan di dalam Pernyataan Tuntutan.

In English, paragraphs 5 to 12 of the reply can be summarized as follows:

The plaintiff and LHT could not carry out the distribution of Loh Moh's Estate since 2011 due to the application by the 30 applicants vide the 2011 OS; 16

Apart from Teh Geok, Low Hock Seng, Low Boon Hua and BT, the other beneficiaries are entitled to their, respective, shares in Loh Moh's Estate;

This is because in 1978 the plaintiff has paid them a sum of RM 2,600,000.00 from the sale of a piece of property belonging to 5 Loh Moh in full and final settlement of their claim against Loh Moh's Estate;

As for BT’s children, the plaintiff has paid them the settlement sum and they have no more claim against Loh Moh's Estate;

The consent judgment was entered into with BT’s children with 10 the consent of all the beneficiaries of Loh Moh's Estate, who had given their consent at a meeting and the plaintiff will prove this fact in the trial;

There is no necessity for all the beneficiaries of Loh Moh's Estate to intervene in the plaintiff’s suit against the defendant 15 as the plaintiff will be calling them as witnesses in the trial;

The plaintiff has given all the documents, which were in his possession in regard to Loh Moh's Estate, to the defendant; and

Except as admitted herein, the plaintiff denies all the averments 20 of the defendant in the defence and the plaintiff reiterates all the averments of the plaintiff in the statement of claim.

Hence, in paragraph 13, the plaintiff prays that this Court allows the plaintiff’s claim against the defendant with costs. 25 17 Chronology of events after filing of plaintiff’s suit 15. The chronology of events after the filing of the plaintiff’s suit is as follows:

On 26.05.2015, Siti Khadijah binti S. Hassan Badjenid JC (“Her Ladyship”) granted an ex parte injunction to restrain the 5 defendant from withdrawing a sum of RM 4,972,951.28 from Low Moh’s Estate;

On 09.06.2015, Her Ladyship granted an ad interim injunction to restrain the defendant from withdrawing a sum of RM 4,972,951.28 from Low Moh’s Estate to take effect from the 10 date of the Order until 30.6.2015;

On 30.06.2015, Her Ladyship granted an inter partes injunction to restrain the defendant from withdrawing a sum of RM 4,972,951.28 from Low Moh’s Estate;

On 11.03.2016, Her Ladyship allowed the application of 3 15 (three) persons, viz Low Ah Choon, Low Meng Chai and Low Hock Seng, to intervene in this suit as the 2nd to the 4th defendants;

On 17.03.2016, Her Ladyship allowed the application of the 2 (two) Administrators of LHT’s Estate, viz KM and KK, to 20 intervene in this suit as the 2nd and 3rd plaintiffs;

On 20.05.2016, Her Ladyship allowed the 1st plaintiff’s application for a stay of the proceeding in the instant case pending the outcome of the 1st plaintiff’s appeal against the decision dated 11.03.2016 of Her Ladyship allowing the 25 application of Low Ah Choon, Low Meng Chai and Low Hock Seng to intervene in this suit as the 2nd to the 4th defendants; 18

On 06.09.2016, the Court of Appeal allowed the defendant’s appeal against the decision dated 17.03.2016 of Her Ladyship in allowing the application of the 2 (two) Administrators of LHT’s Estate, viz KM and KK, to intervene in this suit as the 2nd and 3rd plaintiffs;

On 15.09.2016, the Court of Appeal allowed the plaintiff’s appeal against the decision dated 11.03.2016 of Her Ladyship allowing the application of Low Ah Choon, Low Meng Chai and Low Hock Seng to intervene in this suit as the 2nd to the 4th defendants;

On 29.10.2015, the defendant applied vide enclosure (32) to amend the statement of defence through the defendant’s solicitors (“the amendment application”); 15 Kuala Lumpur High Court; and PTCM directions to the parties and she also fixed the date for 20 the first PTCM before the Judge on 22.08.2017 and the dates for the full trial of the writ, enclosure (1), on 05-08.09.2017. Defendant’s striking out application, enclosure (82).

On 28.12.2016, the defendant filed this application, enclosure (82), to 25 seek the following orders: 19

To strike out the statement of claim of the plaintiff under O. 18, r. 19(1) (b) and / or (d) of the Rules of Court 2012 (“RC 2012”) and / or the inherent jurisdiction of this Court;

To dismiss the plaintiff’s suit;

To stay the proceeding of the plaintiff’s suit pending the 5 disposal of this application;

Costs of this application; and

Further reliefs and other orders deemed fit, just and appropriate by this Court. 10 Cause papers filed for enclosure (82)

The parties filed the following cause papers for enclosure (82):

Defendant’s notice of application dated 28.12.2016, enclosure

(82);

Defendant’s affidavit-in-support affirmed on 28.12.2016 by 15 Mohd Nazli bin Mandor, the Assistant Manager of the defendant, who is authorized to affirm it on behalf of the defendant, enclosure (83);

Plaintiff’s affidavit-in-reply affirmed on 24.01.2017 by Law Hok Key @ Low Hock Kan, the plaintiff himself, enclosure (84);

Defendant’s notice of intention dated 10.02.2017, to use previous affidavits enclosure (85);

Defendant’s affidavit-in-reply affirmed on 10.02.2017 by Roslina binti Md Derus, the Senior Manager of the defendant, who is authorized to affirm it on behalf of the defendant, enclosure 25

(86); 20

Plaintiff’s affidavit-in-reply affirmed on 21.02.2017 by Law Hok Key @ @ Low Hock Kan, the plaintiff himself, enclosure (87;

Plaintiff’s supplemental affidavit affirmed on 01.03.2017 by Dinesh Nandrajog, the advocate and solicitor of the plaintiff’s solicitors, who is conducting the plaintiff’s suit on behalf of the 5 plaintiff, enclosure (88);

Defendant’s affidavit-in-reply affirmed on 10.03.2017 by Roslina binti Md Derus, the Senior Manager of the defendant, who is authorized to affirm it on behalf of the defendant, enclosure

(89);

Defendant’s written submissions with bundle of authorities, enclosure (97); 15 enclosure (105);

On 08.06.2017, the plaintiff withdrew enclosure (91), viz the plaintiff’s 20 application dated 16.03.2017 for leave and extension of time to file a supplemental affidavit affirmed on 01.03.2017 by Dinesh Nandrajog, enclosure (88); with no order as to costs after the defendant withdrew the preliminary objection to enclosure (88), viz the plaintiff’s supplemental affidavit affirmed on 01.03.2017 by Dinesh Nandrajog. 25 21 Decision of the Court dated 21.07.2017 19. On 21.07.2017, I heard enclosure (82). After having considered the submissions of both parties, I dismissed enclosure (82) with costs.

Mr. Dinesh Nandrajog, the learned counsel for the respondent/plaintiff, then proposed a sum of RM 15,000.00 as costs 5 based on the number of affidavits filed, viz 3 (three) by the plaintiff and the lengthy submissions filed by him.

Mr. Effendy Othman, the learned counsel for the applicant/defendant, counter proposed a sum of RM 5,000.00 based on the reason that the applicant’s submissions were even more lengthy than the 10 respondent’s/plaintiff’s submissions.

Having considered the proposal and counter proposal of the 2 (two) learned counsels I ordered the applicant/defendant to pay a sum of RM 5,000.00 as costs to the respondent/plaintiff as I was of the view that it was a reasonable amount of costs to be ordered against the 15 applicant/defendant. I further ordered the Senior Assistant Registrar to issue the allocatur certificate in accordance with O. 59, r. 7(4) of the RC 2012. I, finally ordered that the allocatur fee must be paid before the fair copy of the Order made that day could be filed in the Court.

Upon the request of Mr. Dinesh Nandrajog, the learned counsel for the respondent/plaintiff, for costs to be paid forthwith, and despite the objection of Mr. Effendy Othman, the learned counsel for the applicant/defendant, on the ground that he would be advising his client to file a notice of appeal against my decision, I ordered the 25 applicant/defendant to pay the costs of RM 5,000.00 forthwith to the respondent/plaintiff. 22 Reasons for the decision of the Court dated 21.07.2017 24. Below are the reasons why I dismissed enclosure (82) with costs of RM 5,000.00 to be paid forthwith.

I agreed with the respondent’s/plaintiff's submissions that enclosure 5 Issues for the determination of the Court 26. There are 2 (two) issues for the determination of the Court, which are as follows:

Whether the plaintiff’s statement of claim ought to be summarily 10 struck out under O. 18, r. 19(1) (b) and / or (d) of the RC 2012 and / or the inherent jurisdiction of the Court?

Whether in claiming for compensation from Loh Moh's Estate for the settlement sum paid by the plaintiff to BT’s children pursuant to the consent judgment in the instant suit, the plaintiff 15 is estopped by the doctrine of res judicata from relitigating the issue in the second ruling of the Court of Appeal, viz that the 2005 Suit was an action brought by BT’s children against the plaintiff, KM and KK, in their personal capacities and not an action against Loh Moh's Estate? 20 Issue (1): Whether the plaintiff’s statement of claim ought to be summarily struck out under O. 18, r. 19(1) (b) and / or (d) of the RC 2012 and / or under the inherent jurisdiction of the Court?

On issue (1), the defendant submitted that the plaintiff’s claim ought 25 to be summarily struck out and the plaintiff’s suit dismissed with costs as the plaintiff’s cause of action as pleaded in his statement of claim 23 is obviously unsustainable due to the doctrine of res judicata and also based on the following reasons:

Even if the beneficiaries of Low Moh’s Estate had consented to the plaintiff entering into the consent judgment, it does not create a valid cause of action against Low Moh’s Estate 5 because the Federal Court in Chor Phaik Har v Farlim Properties Sdn Bdn [1994] 3 MLJ 345 held that beneficiaries do not have any interest or right over the administration of a deceased’s estate until the administration of the estate is completed and distribution is made;

Hence, the plaintiff should file a separate action against the beneficiaries of Low Moh’s Estate, personally, based on their purported consent as the consent judgment does not bind Low Moh’s Estate;

The 2 (two) co-Administrators of LHT’s Estate were never 15 appointed together with the plaintiff as the co-Administrators of Low Moh’s Estate. They had applied to intervene in this suit as the co-plaintiffs as they wish to deny personal liability under the consent judgment on the ground that they had entered into the consent judgment as the representatives of Low Moh’s Estate;

The High Court allowed the intervention application and the defendant appealed to the Court of Appeal on the ground that the plaintiff and the 2 (two) co-Administrators of LHT’s Estate had entered into the consent judgment in their personal capacities;

The Court of Appeal allowed the defendant’s appeal and, hence, this means that the Court of Appeal recognized the 24 personal liability of the 2 (two) co-Administrators of LHT’s Estate under the consent judgment; and

The plaintiff’s averment in the statement of claim that the High Court granted an interim injunction in favour of the plaintiff against the defendant on 30.06.2015, shows that there are 5 serious issues to be tried was not raised in the plaintiff’s 3 (three) affidavits, which were filed for enclosure (82).

On the other hand, the plaintiff submitted that he has a reasonable cause of action against the defendant for an indemnity against Loh 10 Moh's Estate and that there are serious issues to be tried, which merit a full trial of his claim against the defendant.

I accepted the plaintiff’s submission and I rejected the defendant’s submission.

Consequently, I answered issue (1) in the negative. Below are my 15 reasons.

Since the defendant is relying on O. 18, r. 19 (1) (b) and / or (d) of the RC 2012 and / or the inherent jurisdiction of the Court in O. 92, r. 4 of the RC 2012, the burden is on the defendant to demonstrate that the claim of the plaintiff is scandalous, frivolous or vexatious or it is 20 otherwise an abuse of the process of the Court or that the claim of the plaintiff ought to be struck out to prevent injustice or to prevent an abuse of the process of the Court.

O. 18, r. 19 of the RC 2012 states as follows: “Striking out pleadings and endorsements (O. 18, r. 19) 25 25 in the action, or anything in any pleading or in the endorsement, on the ground that— 5 be entered accordingly, as the case may be.” (Emphasis added).

It is clear that O. 18, r. 19(1) (b) and (d) of the RC 2012 confers discretion on the Court to strike out any pleading if it is scandalous, 15 frivolous or vexatious.

The law on the striking out of pleadings is trite. The power of the Courts, under the four grounds of the rule in O. 18, r. 19 of the RC 2012, for striking out pleadings is exercised when it can clearly be seen that a claim or answer is prima facie obviously unsustainable 20 (see Bandar Builder Sdn Bhd v United Malayan Banking Corp Bhd, [1993] 3 MLJ 36).

In delivering the judgment of the Supreme Court in Bandar Builder Sdn Bhd v United Malayan Banking Corp Bhd, supra, Mohamed Dzaiddin Hj Abdullah SCJ stated as follows at pgs. 43 and 44: 25 “The principles upon which the court acts in exercising its power under any of the four limbs of O. 18, r. 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd), and this 30 26 summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (see AG of Duchy of Lancaster v L & NW Rly Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of 5 action or a defence (see Wenlock v Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33, r. 3 (which is in part material with our O. 33, r. 2 of the RHC) (see Hubbuck & Sons 10 Ltd v Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. After considering the counterclaim and the defence to counterclaim, we are satisfied that both pleadings have raised some issues which 15 require serious discussion. The appellants alleged that the respondent owed them a legal duty of care which arose from an agreement to sell the public-quoted shares belonging to the appellants and, that as a result of unreasonable delay in granting the approval to sell, they have suffered loss and damage. The 20 respondent, on the other hand, denied that a duty of care existed between them. Furthermore, there is also a dispute on fact concerning the alleged agreement on 27.03.1990. The respondent maintained that there was no concluded agreement reached between the parties on 27.03.1990. Here, the parties relied on the 25 correspondence in the respective affidavits filed in the action. This court as well as the court below are not concerned at this stage with the respective merits of the claims. But what we have to consider is whether the counterclaim discloses some cause of action and, likewise, whether the defence to counterclaim raises 30 a reasonable defence. It has been said that so long as pleadings disclose some cause of action or raise some question fit to be 27 decided by the judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out (see Moore v Lawson and Wenlock v Moloney & Ors). Bearing in mind the established principles stated above, we say this is not a plain and obvious case for striking out the 5 pleadings as disclosing no reasonable cause of action and defence. Nor can we say that they are frivolous, vexatious or may prejudice, embarrass or delay the fair trial of the action or that these pleadings are otherwise an abuse of the process of the court. Accordingly, we dismiss both appeals with costs”. 10 (Emphasis added).

The Court’s power under this rule applies to, conspicuously, unsustainable cases and is exercised, sparingly, by the Courts (see MK Associates Sdn Bhd v Tetuan Ganesan K & Muhammad 15 Ashri (sued as a firm) [2012] 7 MLJ 583).

In The Attorney-General, Malaysia v Chiow Thiam Guan [1983] 1 MLJ 51, at p. 51, the Court said as follows: “The principle which seems to have been established is that the statement of claim should be struck out only in plain and obvious 20 cases where the judge can say at once that the statement of claim as it stands is insufficient even if proved to entitle the plaintiff to the relief.”

In Ong Boon Hua @ Chin Peng suing (in his own capacity as a 25 representative of all members of Parti Komunis Malaya and other related parties) & Anor v Kerajaan Malaysia [2010] 2 MLJ 794, at p. 803, the Court said as follows: “the principles enunciated in these cases point out to one unmistakable direction to be considered in an application of this 30 28 nature ie whether the claim by the plaintiff is groundless by any reason of law or fault in law or whether it is untenable because the allegations contained in the statement of claim are so implausible and illogical as to disclose no cause of action.”

The power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power and it should be exercised with the utmost caution. A Court is entitled to go into the law and available evidence in detail to determine whether a case has been made for a striking out (see Tractors Malaysia Bhd v Tio 10 Chee Hing [1975] 2 MLJ 1). In Tractors Malaysia Bhd v Tio Chee Hing, supra, at p. 1, Lord Diplock stated as follows: “The power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power. It should be exercised with the utmost caution. Had the matter depended 15 upon the contents of the Statement of Claim alone, their Lordships would have been loth to differ from the opinion of the Federal Court that, despite imperfections in drafting (which however might have been capable of cure by amendment) the Statement of Claim, at any rate as respects some of the claims to alternative relief, did 20 raise questions of law that were sufficiently arguable to justify proceeding to trial. In refusing to submit the evidence to cirtical examination, however, the Federal Court erred in law. This makes it necessary for their Lordships to state briefly the facts disclosed by the evidence which, in their view, lead to the 25 conclusion that the New Action could not possibly succeed”. (Emphasis added).

In Pengiran Othman Shah Bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (Formerly Known As Lipkland 30 29 (Sabah) Sdn Bhd) & Ors [1996] 1 MLJ 309, Siti Norma Yaakob JCA (as she then was) in delivering the judgment of the Court of Appeal held that the length of time it takes to argue the case, is not important and what is important is for the Court to examine the available affidavit evidence in order to decide whether it is plain and obvious to 5 the Court that the case has no chance of success. At pgs. 320 to 321, Her Ladyship said as follows: “…Whether a case is plain or obvious does not depend upon the length of time it takes to argue the case, but that when the case is argued on the affidavit evidence available, it becomes plain and 10 obvious that the case has no chance of success (see Mckay & Anor v Essex Area Health Authority & Anor [1982] 2 QB 1166; [1982] 2 All ER 771; [1982] 2 WLR 890.) When a question of law becomes an issue, this in itself will not prevent the court from granting the application, for as long as 15 the court is satisfied that the issue of law is unarguable and unsustainable, it may proceed to determine that question (see Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400.)” (Emphasis added).

An application for striking out may not be appropriate when there is conflicting evidence in the affidavits (see See Thong & Anor v Saw Beng Chong [2013] 3 AMR 385; [2013] 3 MLJ 235). In delivering the judgment of the Court of Appeal in See Thong & Anor v Saw Beng Chong, supra, at paragraphs 9-10, 12-13, 21, 27-28, Ramly Ali JCA 25 (now FCJ) stated as follows: “[9] An applicant for striking out under O. 18 r 19 can rely on any one or more than one sub-paras (a) - (d). So far, there is no authority to say otherwise. Halsbury’s Laws of Malaysia clearly 30 confirms that an applicant under this rule is entitled to rely on any or all of the grounds specified in the rule. An application under this rule is not void and ineffective merely because sub-para (a) had been pleaded together with sub-paras (b) - (d). The only limitation imposed under sub-r. (2) is that for an application under sub- 5 para (a), no evidence is admissible. However, where the court proceeds to decide an application under any other sub-paragraph, affidavit evidence should be admissible. Even though sub-paras (b) - (d) are to be read disjunctively, it does not mean that an applicant cannot rely on more than one sub- 10 paragraph in his application. (see Malayan United Finance Bhd lwn. Cheung Kong Plantation Sdn Bhd dan Lain-Lain [2000] 2 MLJ 38; [2000] 2 CLJ 601; Pegasus Engineers Sdn Bhd v Sambu (M) Sdn Bhd [1998] 4 MLJ 129 and Malaysian Court Practice 2007 Desk Edition (High Court) p 239). 15 [10] In the present case since the application by the respondent is also based on sub-para (1)(a), the learned judge should have dealt with the said sub-para notwithstanding the fact that both parties had filed their respective affidavits. Those affidavits are actually to be used for the other two sub- 20 paras (b) and (d). What the learned judge should have done is to deal with the issue under sub-para (a) first and to ignore completely the two affidavits filed by the parties; before proceeding to deal with sub-paras (b) and (d). [12] We have scrutinised the statement of claim filed by the 25 appellants against the respondent in the present case. We are of the view that the statement of claim assuming the factual allegations are true or proven and without looking at the affidavit evidence, clearly discloses some cause of action under the law of contract or has raised some questions fit to be decided. The 30 statement of claim is not hopeless, baseless or without any foundation in law. The statement of claim may not be perfect and ‘not-so strong’ in supporting the appellants’ claim; but the mere fact 31 that the case is weak and is unlikely to succeed at trial is not a ground for the claim to be struck out (see Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (Supreme Court); Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd & Anor [1984] 2 MLJ 105). 5 [13] We are therefore of the view that the appellants’ statement of claim in the present case is not appropriate to be struck out under sub-para (1)(a) of r. 19. [21] In the present case before us, there is clearly conflict of evidence in the affidavits filed by both parties. The status of the 10 transaction which led to the ownership of the two properties being transferred to the respondent’s name is really and genuinely in dispute. The appellants are saying that they had no intention to sell the properties to the respondent, and the transaction involved between them and the respondent was a loan 15 transaction where the properties were meant to be security for the loan; and once the loan had been repaid or when the appellants are ready and willing to repay the loan in full, they are entitled for the return of the titles of the two properties. The respondent on the other hand contended in his affidavit in 20 support of the application for striking out, that there was an outright sale of the two properties by the appellants to the respondent, where price had been paid to the appellants and the titles were duly transferred to him. The respondent claimed to be a bona fide purchaser for the two properties. 25 [27] Based on the above considerations we are satisfied that the learned judge in the present case had erred in striking out the appellants’ claim against the respondent under O. 18, r. 19 of the RHC. We are of the considered view that the appellants’ claim against the respondent as laid down in the statement of claim 30 is not obviously unsustainable. It discloses a reasonable cause of action; it is not scandalous, frivolous or vexatious; and also not an abuse of the process of the court. 32 [28] We therefore allow the appeal and make an order that the case be remitted to the High Court for trial. We also make an order that the costs be in the cause and the deposit be refunded to the appellants.” (Emphasis added).

O. 92, r. 4 of the RC 2012 states as follows: “4. Inherent powers of the Court (O. 92, r. 4) For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent 10 powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.” (Emphasis added).

It is clear that O. 92, r. 4 of the RC 2012 confers discretion on the Court to make any order, which will include an order to strike out a pleading, if the Court is of the opinion that such an order is necessary to prevent injustice or to prevent an abuse of the process of the Court.

Hence, the defendant must satisfy the Court that the plaintiff’s cause of action is obviously unsustainable or that if the plaintiff’s statement of claim is not struck out the defendant will suffer an injustice or the process of the Court will be abused.

Firstly, I noted that in the instant suit, the plaintiff does not, expressly, 25 claim for an indemnity against Loh Moh's Estate as the word indemnity is not stated anywhere in the statement of claim. This is so even though in the plaintiff’s submissions for enclosure (82), the plaintiff has relied on the observations of the Court of Appeal that the 33 plaintiff can claim for an indemnity from Loh Moh's Estate on the ground that he, KM and KK, had entered into the consent judgment after having obtained the consent of all the beneficiaries of Loh Moh's Estate.

Be that as it may, it is not essential for the plaintiff to use the word 5 “indemnity” in the statement of claim if the pleaded facts give rise to a cause of action for an indemnity against Loh Moh's Estate.

Secondly, from my understanding of the plaintiff’s pleaded case in the statement of claim as set out earlier in this Judgment, the plaintiff’s cause of action against the defendant, who is the current 10 Administrator of Loh Moh's Estate, which is, expressly, stated to be for the recovery of the settlement sum as a debt due and payable to him from the compensation sum, and if the compensation sum is insufficient to pay the settlement sum then the plaintiff seeks an order of the Court for the sale of the assets of Loh Moh's Estate and for the 15 proceeds from the sale to be used to meet the shortfall, is in essence a claim from Loh Moh's Estate for restitution / reimbursement of an unjust enrichment of Loh Moh's Estate.

Thirdly, from my understanding of the plaintiff’s pleaded case in the statement of claim and reply as set out earlier in this Judgment, the 20 basis of the plaintiff’s cause of action against the defendant is that the defendant, as the new Administrator of Loh Moh's Estate, must pay him the settlement sum first before the defendant distributes the compensation sum to the beneficiaries of Loh Moh's Estate otherwise Loh Moh's Estate and some of the beneficiaries, viz BT’s children, 25 Teh Geok, Low Hock Seng and Low Boon Hua, will be unjustly enriched, if the plaintiff and the 2 (two) Administrators of LHT’s 34 Estate, are summarily shut out from proceeding to trial of the plaintiff’s statement of claim as these beneficiaries have already received their lawful share of Loh Moh's Estate in full and final settlement of their claims against Loh Moh's Estate.

Fourthly, this is my understanding of the plaintiff’s pleaded case even 5 though the plaintiff does not, expressly, use the words “restitution”, “reimbursement”, “unjust enrichment” and / or “unjustly enriched” in the statement of claim or cite s. 70, s. 71 and 73 of Part VI of the Contracts Act 1950.

Fifthly, I have come to this understanding because the plaintiff uses 10 the words “change of situation” and “in the interest of justice” in the statement of claim in order to justify his claim against the defendant for the recovery of the settlement sum.

Sixthly, the plaintiff can apply to amend his statement of claim to insert those words, viz “restitution / reimbursement of an unjust 15 enrichment of Low Moh’s Estate” and / or the word “indemnity” if the plaintiff wishes to make his cause and / or causes of action clear to the defendant.

Seventhly, based on my understanding of the plaintiff’s pleaded case, irrespective of whether he, KM and KK, were sued in their personal 20 capacities in the 2005 Suit by BT’s children, whether the 3 (three) of them had entered into the consent judgment with BT’s children in their personal capacities, and whether he had made payment of the settlement sum to BT’s children in his personal capacity after having sold his personal property, which were raised by the defendant in the 25 amended defence, the fact is that BT’s children agreed to receive and did receive the judgment sum as their lawful share of Loh Moh's 35 Estate on 29.08.2014 in full and final settlement of their claim against Loh Moh's Estate.

Ninthly, the plaintiff also avers in the statement of claim that the same is true of Teh Geok, Low Hock Seng and Low Boon Hua, who received a sum of RM 2,600,000.00 as their lawful share of Loh 5 Moh's Estate in 1978 in full and final settlement of their claims against Loh Moh's Estate.

Tenthly, in the instant case, the change of situation relied upon by the plaintiff in his claim against the defendant is that had the applicants not moved the Court in the 2011 OS for the appointment of the 2 10 (two) proposed new Administrators and had the defendant not been, subsequently, appointed the new Administrator of Loh Moh's Estate on 01.06.2012 vide the Court Order of appointment, the plaintiff would have been able to perform and complete the consent judgment as the then surviving Administrator of Loh Moh's Estate.

Eleventhly, from my understanding of the statement of claim, the plaintiff’s pleaded case is that Loh Moh's Estate has been unjustly enriched at his expense in that he had to sell off his own property to pay BT’s children their lawful share of Loh Moh's Estate, which by right should have been paid from the sale of the property, which is 20 part of Loh Moh's Estate.

The House of Lords confirmed in Banque Financiere de la Cite v Parc (Battersea) Ltd & Ors [1999] 2 AC 221, HL that, in order to determine whether a claim for restitution of an unjust enrichment has been made out, the following four questions need to be answered. 25 They are as follows: “(a) whether the defendant has benefited or been enriched; 36

whether the benefit or enrichment was at the expense of the plaintiff;

whether the enrichment was unjust; and

whether there are any defences which would defeat or reduce the claim.” 5 (See Civil Remedies, Second Edition, Cheong May Fong and Lee Yin Harn, Sweet & Maxwell at pgs. 420-421).

At pgs. 426-429 of the same book, the learned authors wrote as follows on when it is unjust for the defendant to retain the benefit: 10 “7.2.3.3 It is unjust for the defendant to retain the benefit [7.031] In order to determine whether an enrichment which has been obtained by the defendant at the plaintiff’s expense was “unjust” so as to justify restitution, English common law has traditionally required the plaintiff to demonstrate the existence of 15 one or more “unjust factors” underlying the transfer of the benefit to the defendant. The same position applies in Australia. In Farah Construction Pty Ltd v Say Dee Pty Ltd, the High Court stated: … whether enrichment is unjust is not determined by reference to a subjective evaluation of what is unfair or unconscionable: 20 recovery rather depends on the existence of a qualifying or vitiating factor falling into some particular category … instances of a qualifying or vitiating factor mistake, duress or illegality …” [7.032] The main unjust factors include mistake (whether of fact or 25 of law), duress, undue influence, exploitation of weakness, failure of consideration, legal compulsion, necessity, ultra vires exaction by a public authority, and (potentially) fee acceptance. These unjust factors can be grouped broadly into three categories: first, those that are concerned with the absence, vitiation and qualification of 30 the plaintiff’s intention to transfer the benefit to the defendant, thus rendering the defendant’s retention of the benefit unjust (such as 37 mistake, duress, incapacity and failure of consideration); secondly, those that are concerned with the unconscientious behavior of the defendant in receiving and retaining the benefit (such as undue influence, exploitation of weakness and – possibly – free acceptance); and thirdly, those that are predicated upon 5 considerations of public policy that call for restitution in certain circumstances even though there has been no vitiation or qualification of the plaintiff’s intention to confer the benefit or unconscientious conduct on the part of the defendant (such as necessity and recovery of ultra vires payments from public 10 authorities). [7.033] This orthodox “unjust factors” analysis was famously rejected by Birks in his book Unjust Enrichment, in which he put forward the view that the sole ground for restitution in unjust 15 enrichment was the “absence of a basis” for the receipt of the benefit by the defendant. The “absence of basis” approach is the prevailing approach to unjust enrichment in civil law jurisdictions, most notably Germany. The main difference between the two approaches was explained by Lord Hope in Kleinwort Benson Ltd. v 20 Lincoln City Council, a case involving payments made under a mistake of law, as follows: … in simple terms, the [civil] law looks for the absence of a legal justification for the enrichment ... If the payer paid in the mistaken belief that he was under a duty to pay, it is prima facie 25 unjust that the payee should be allowed to retain what he received. But the burden of proving that the payer knew that there was no duty, and was not mistaken, is on the recipient … The approach of the common law is to look for an unjust factor, something which makes it unjust to allow the payee to retain the 30 benefit ... It is the mistake by the payer which … renders the enrichment of the payee unjust. The common law accepts that the payee is enriched where the sum was not due to be paid to him, but it requires the payer to show that this was unjust. 38

In Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 AMR 601; [2015] 2 MLJ 441, FC, the Federal Court took cognizance of the concept of unjust enrichment. At p. 118, Azahar Mohamed FCJ stated as follows: 15 “… there is now no longer any question that unjust enrichment law is a new developing area of law which is recognised by our courts … the time has come for this court to recognize the law of unjust enrichment by which justice is done in a range factual circumstances, and that the restitutionary remedy is at all times so 20 applied to attain justice.” And at p. 117, the Federal Court referred to passages from Goff & Jones The Law of Unjust Enrichment and two decisions of the House of Lords and stated as follows: 25 “The principle underlying the cases of Banque Financiere de la Cite v Parc (Battersea) Ltd & Ors (supra) and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners & Anor (supra) is that, in the context of the present case, a cause of 39 action in unjust enrichment can give rise to a right to restitution where it can be established that:

the plaintiff must have been enriched;

the enrichment must be gained at the defendant's expense;

that the retention of the benefit by the plaintiff was unjust; and 5

there must be no defence available to extinguish or reduce the plaintiff's liability to make restitution.”

Twelvethly, on issue (1), I was also of the respectful view that the plaintiff is not estopped by the doctrine of res judicata from bringing 10 this claim against Loh Moh's Estate. This is because in this suit the plaintiff is claiming against the defendant for the monies paid to and received by the beneficiaries of BT’s Estate as their lawful share of Loh Moh's Estate. This is a separate cause of action from the cause of action of BT’s children in the 2005 Suit.

There are also serious issues to be tried. The serious issues are as follows:

Whether the plaintiff can claim for an indemnity from Loh Moh's Estate in light of the meeting of the beneficiaries and the consent of the beneficiaries before the plaintiff, KM and KK, 20 entered into the consent judgment with BT’s children?

Whether there was, in fact, a discussion and meeting, as alleged by the plaintiff in the statement of claim, between the plaintiff, KM and KK and all the beneficiaries of Loh Moh's Estate, in which the latter gave their consent to the former to 25 enter into the consent judgment with BT’s children to settle their claim for their lawful share of Loh Moh's Estate against the former by the sale of the property? 40

Whether the plaintiff can claim for restitution / reimbursement of an unjust enrichment of Loh Moh's Estate in the interest of justice based on the change of circumstances during the 2005 Suit occasioned by the applicants in filing the 2011 OS, which led to the following events:

Appointment of the defendant as the new sole

Which in turn frustrated the performance and the completion of the consent judgment by the plaintiff, KM and KK; and 10

Which change of circumstances in turn forced the plaintiff to sell his own property and to pay off the settlement sum from the proceeds of the sale of his own property in order to discharge himself as a bankrupt. 15 62. Furthermore, on 30.06.2015, the Court granted an interim injunction in favour of the plaintiff against the defendant and this shows that there are serious issues to be tried. Hence, the defendant is estopped from arguing that the plaintiff’s claim is unsustainable.

Therefore, based on the reasons stated above for issue (1), I was 20 satisfied that this is not a fit and proper case for me to exercise my discretion to summarily strike out the plaintiff’s writ and statement of claim pursuant to O. 18, r. 19(1) (b) and / or (defendant) of the RC 2012 and / or the inherent jurisdiction of the Court as the plaintiff’s cause of action against the defendant is not scandalous, frivolous or 25 vexatious; and also not an abuse of the process of the court as it is not baseless, hopeless or doomed to fail. 41 Issue (2): Whether in claiming for compensation from Loh Moh's Estate for the settlement sum paid by the plaintiff to BT’s children pursuant to the consent judgment in the instant suit, the plaintiff is estopped by the doctrine of res judicata from relitigating the issue in the second ruling of the Court of Appeal, viz that the 2005 Suit was an 5 action brought by BT’s children against the plaintiff, KM and KK, in their personal capacities and not an action against Loh Moh's Estate?

On issue (1), it is the defendant’s contention that the plaintiff is estopped by the doctrine of res judicata from relitigating the issue in the second ruling of the Court of Appeal, viz that the 2005 Suit was 10 an action brought by BT’s children against the plaintiff, KM and KK, in their personal capacities and not an action against Loh Moh's Estate.

The defendant relies on the following reasons:

In the plaintiff’s application to vary the consent judgment in the 2005 Suit by converting his personal capacity to that of his 15 capacity as one of the 2 (two) co-Administrators of Low Moh’s Estate, Hue Siew Kheng J (“Her Ladyship”) ruled that the plaintiff and the 2 (two) co-Administrators of LHT’s Estate, viz KM and KK, had entered into the consent judgment in their personal capacities;

The plaintiff filed a notice of appeal against the decision of Her Ladyship but later withdrew his appeal. Hence, the plaintiff has admitted to the finality of Her Ladyship’s decision. Nevertheless, the plaintiff now relies on the Court of Appeal’s general observation on the appeal procedure as if the Court of 25 Appeal was advising the plaintiff’s counsel to withdraw the appeal and sue Low Moh’s Estate for indemnity. In fact, the 42 Court of Appeal was only explaining to the plaintiff’s solicitor the basic rules of procedure. The duty to advise the plaintiff lies on the shoulders of the plaintiff’s solicitors;

The Court of Appeal in Law Hock Key & Anor v Yap Meng Kan & Ors [2008] MLJU 1093 (an appeal emanating from the 5 2005 Suit by BT’s children before the parties entered into the consent judgment) also confirmed that the suit by BT’s children is a claim against the plaintiff and the 2 (two) co-Administrators of LHT’s Estate in their personal capacities and not against Low Moh’s Estate;

The plaintiff claims in the reply that there was a meeting whereby the beneficiaries of Low Moh’s Estate had consented to him entering into the consent judgment. The defendant denies that the beneficiaries did, in fact, consent to the plaintiff entering into the consent judgment. However, the identities of 15 the beneficiaries, who attended the meeting are not stated in the transcript of the meeting. Furthermore, the plaintiff did not raise this issue during the hearing of the application to vary the consent judgment and it is too late to raise it in the instant suit;

In Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn 20 Bhd [1995] 3 CLJ 783, FC, Peh Swee Chin FCJ ruled that issues, which might have been but which were not brought forward, are still covered by the doctrine of res judicata even though the issues have not, actually, been decided by the Court; and 25

Therefore, the issue whether in the 2005 Suit the plaintiff was sued in his personal capacity or in his capacity as one of the 43 co-Administrators of Loh Moh's Estate is res judicata and the plaintiff can no longer raise the issue about the, alleged, meeting in which all the beneficiaries of Low Moh’s Estate had consented to him entering into the consent judgment with BT’s children to make payment of the judgment sum to BT’s children 5 from the proceeds from the sale of the property.

On the other hand, the plaintiff submitted that the issue in the second ruling of the Court of Appeal, viz that the 2005 Suit was an action brought by BT’s children against the plaintiff, KM and KK, in their 10 personal capacities and not an action against Loh Moh's Estate is not res judicata based on the following reasons:

BT’s children commenced the 2005 Suit because they were aggrieved as BT, being a legitimate child of Low Moh, was not apportioned any part of the proceeds from the distribution of the 15 assets of Low Moh’s Estate;

BT’s children then filed the 2005 Suit against the plaintiff and the 2 (two) co-Administrators of LHT’S Estate for breach of duty as the co-Administrators of Low Moh’s Estate;

The consent judgment was entered into with BT’s children in 20 the 2005 Suit after the discussion between all the beneficiaries and the plaintiff, KM and KK, as the co-Administrators of Low Moh’s Estate, and only upon obtaining the consensus of all the beneficiaries of Low Moh’s Estate;

The plaintiff never admitted liability for breaching his duty as 25 one of the 2 (two) co-Administrators of Loh Moh's Estate in the consent judgment; 44

The identities of the beneficiaries who attended the meeting are not reflected in the transcript of the meeting because the transcript was prepared by an interpreter of the Court, who does not know the identities of the beneficiaries. Hence, all the beneficiaries have to be called as witnesses in the trial of the 5 instant suit;

However, before the plaintiff and the 2 (two) co-Administrators of LHT’s Estate could proceed with the sale of the property belonging to Loh Moh's Estate to pay for the judgment sum, the other beneficiaries of Low Moh’s Estate filed the 2011 OS to 10 appoint Low Hock Seng and Low Beng Chee as the 2 (two) new co-administrators of Loh Moh’s Estate;

However, due to their failure to furnish the administration bond, the High Court appointed the defendant instead as the new Administrator of Loh Moh's Estate;

The plaintiff then paid the judgment sum to BT’s children due to the default clause in the consent judgment, which states that in the event Low Moh’s Estate does not pay the agreed sum in the consent judgment to BT’s children within 16 (sixteen) months from the date of the consent judgment, the Administrators will 20 be, personally, liable to pay the agreed sum;

This finding was made by Her Ladyship in dismissing the plaintiff’s application to vary the consent judgment;

Hence, Her Ladyship held that the plaintiff was personally liable to pay the agreed sum to BT’s children by virtue of the default 25 clause in the consent judgment; 45

Her Ladyship did not make any finding as to the right of the plaintiff to seek for an indemnity from the defendant against Loh Moh's Estate;

On appeal, the Court of Appeal stated that the plaintiff’s recourse is to seek for an indemnity against the defendant;

Hence, the plaintiff withdrew his appeal against Her Ladyship’s decision in order to file this claim against the defendant to seek for an indemnity against Loh Moh's Estate;

The plaintiff also filed the 2014 Suit to claim for contribution of half the judgment sum from the 2 (two) co-Administrators of 10 LHT’s Estate;

The beneficiaries only raised the objection in regard to the consent that they had given to the plaintiff in the meeting after the defendant filed its amended statement of defence stating that the beneficiaries never attended any meeting in regard to 15 the sale of the property belonging to Low Moh’s Estate; and

Hence, the plaintiff only raised the issue about the meeting at this very late stage.

Having considered the 2 (two) opposing submissions, I was of the 20 respectful view that issue (2) is an issue, which ought to be determined after the full trial of the plaintiff’s instant suit as the plaintiff has a reasonable cause of action against the defendant either based on an indemnity against Loh Moh's Estate as observed by the Court of Appeal or on restitution / reimbursement of an unjust enrichment of 25 Loh Moh's Estate as observed by me in the earlier part of this Judgment. 46

Therefore, the plaintiff is entitled to raise the issue concerning the, alleged, discussion and meeting with all the beneficiaries of Low Moh’s Estate and their having consented to him entering into the consent judgment with BT’s children to settle their claim for their lawful share of Loh Moh's Estate.

In Ong Thye Peng v Loo Choo Teng & Ors [2009] 4 MLJ 472, the Federal Court held that the administrators of the estate must act in the interest of all the beneficiaries. In Ong Ah Tang @ Tan Ah Soo

& Anor v Soh Bee Yong (suing as the executor of the estate of Soh Kim Siah @ Soh Kee Lin, deceased) [2012] 5 MLJ 484, the 10 Court of Appeal set aside an order for sale applied for by the administrator as the beneficiaries’ wishes were not taken into account.

Reverting back to the instant case, if the beneficiaries did, in fact, give their consent in the meeting, which did, in fact, take place, to the 15 sale of the property for the settlement of the 2005 Suit by BT’s children, the plaintiff and LHT, as the 2 (two) co-Administrators of Loh Moh's Estate, must comply with their wishes and cannot go against the will of the beneficiaries. 20 Conclusion 71. Therefore, based on the foregoing reasons, I was satisfied that enclosure (82) has no merit as the plaintiff has succeeded in demonstrating that the plaintiff’s statement of claim discloses a reasonable cause of action against the defendant and that there are 25 serious issues to be tried, which merit a full trial of the plaintiff’s claim against the defendant. 47

In the premises, the Court dismissed enclosure (82) with costs of RM 5,000.00. Dated: 30 November 2017 5 (DATUK SU GEOK YIAM) Judge High Court Civil NCvC 11 10 Kuala Lumpur COUNSELS 15

Mr. Dinesh Nandrajog, together with Mr. Pradeep Nandrajog, the learned counsels for the plaintiff at: Messrs. Syarikat K. L. Rekhraj 20 Advocates & Solicitors Tingkat 7, Wisma Gurcharan No. 71-75 Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur 25

Mr. Effendy Othman, together with Mr. Neo Chi Chyn, the learned counsels for the defendant at: Messrs. Zaid Ibrahim & Co. Advocates & Solicitors 30 Aras 19, Menara Milenium Jalan Damanlela Pusat Bandar Damansara 50490 Kuala Lumpur 35 48

Chor Phaik Har v Farlim Properties Sdn Bdn [1994] 3 MLJ 345.

Bandar Builder Sdn Bhd v United Malayan Banking Corp Bhd, [1993] 3

MK Associates Sdn Bhd v Tetuan Ganesan K & Muhammad Ashri 5 (sued as a firm) [2012] 7 MLJ 583).

In The Attorney-General, Malaysia v Chiow Thiam Guan [1983] 1 MLJ

51.

Ong Boon Hua @ Chin Peng suing (in his own capacity as a representative of all members of Parti Komunis Malaya and other 10 related parties) & Anor v Kerajaan Malaysia [2010] 2 MLJ 794.

Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1.

Pengiran Othman Shah Bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (Formerly Known As Lipkland (Sabah) Sdn Bhd) & Ors [1996] 1 MLJ 309.

See Thong & Anor v Saw Beng Chong [2013] 3 AMR 385; [2013] 3

Banque Financiere de la Cite v Parc (Battersea) Ltd & Ors [1999] 2 AC

221.

Sediperak Sdn. Bhd. v Baboo Chowdhury [1999] 5 MLJ 229.

Wong Lee Sing v Mansor [1972] 2 MLJ 154.

Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 AMR 601; [2015] 2 MLJ 441.

Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3

Ong Thye Peng v Loo Choo Teng & Ors [2009] 4 MLJ 472.

Ong Ah Tang @ Tan Ah Soo (f) & Anor v Soh Bee Yong (suing as the executor of the estate of Soh Kim Siah @ Soh Kee Lin, deceased) [2012] 5 MLJ 484. 30 49

Civil Remedies, Second Edition, Cheong May Fong and Lee Yin Harn, Sweet & Maxwell.

Goff & Jones The Law of Unjust Enrichment. 5

Ss. 70, 71 and 73 of Part VI of the Contracts Act 1950.

O. 18, r. 19(1) (b) and / or (d); O. 59, r. 7(4); and O. 92, r. 4 of the 10 Rules of Court 2012. 15 20 25