13.2 the Court of appeal had made an order that the Defendant deposit the sum of RM6,559,440.37 (Final Award Sum) into the Plaintiff’s solicitors account, which at that point in time the Defendant was not yet wound up and the Defendant had failed to do so 7 13.3 this was subsequently appealed all the way to the Federal Court when in 2022 the Award became enforceable against the Defendant. [14] The facts also show that the Defendant was wound up on 18.7.2019 and that during the termination of the Contract and before the matter was brought to Arbitration, the Defendant had made a call on the Performance Bond had had taken possession of the monies. The Liquidator of the Defendant then refused to return the Performance Bond Sum despite a request by the Plaintiff’s solicitors to do so. [15] The Defendant via the liquidator’s representative had informed this Court in Civil Suit No. WA-22C-87-08/2017 (CS 87) that the Defendant had a sum of RM8,000,000.00 in its account and had repeated the same information in the Appeal on CS 87. [16] The Defendant has in response to the above contentions raised 3 main submissions being a. The Plaintiff is caught by res judicata and issue estoppel and had 15 opportunities to raise allegations that the Performance Bond were trust monies before various tribunal and the Courts but it had never once done so b. The Plaintiff’s claim is already the subject matter of the Liquidation and the Plaintiff has filed its Proof of Debt (POD) c. Limitation has set in Alleged Opportunities To Raise Allegations [17] I will address each of the Defendants contentions and will begin with the alleged 15 opportunities to raise the allegations that the Performance Bond were trust monies before various tribunal and the Courts but that the Plaintiff had never once done so. In this respect I hold that as the Performance Bond Sum was held by the Arbitration Tribunal to be refunded back to the Plaintiff, the Plaintiff is entitled at any point in time to seek a declaration as to the same. I will deal with the law on declaratory orders later. [18] In my view a constructive trust would have occurred when the Arbitration Tribunal had made the Award, which included the return or refund of the Performance Bond Sum, and in particular when the Tribunal had made a determination and concluded that the EPCC contract was wrongfully terminated and the call on the Performance Bond by the Defendant as being wrongful. I rely on Takako Sakao v Ng Pek Yuen & Anor [2010] 1 CLJ 381 where the Federal Court speaking through the judgment of Gopal Sri Ram FCJ had held “[14] The authorities make it clear that if a trustee or other fiduciary acquires property in breach of trust or by means of other unconscionable conduct, he or she holds it on a constructive trust for the true beneficiary. Traditionally, courts have declined to provide a definition of a constructive trust. As Edmund Davies LJ said in Carl Zeiss Stiftung v. Herbert Smith & Co[1969] 2 Ch 276, 300: English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague, so as not to restrict the court by technicalities in deciding what the justice of a particular case may demand. But it appears that in this country unjust enrichment or other personal advantage is not a sine qua non. Thus in Nelson v. Larholt [1948] 1 KB 339, it was not suggested that the defendant was himself one penny better off by changing an executor's cheques; yet, as he ought to have known of the executor's want of authority to draw them, he was held liable to refund the estate, both on the basis that he was a constructive trustee for the beneficiaries and on a claim for money had and received to their use. Nevertheless, the concept of unjust enrichment has its value as providing one example among many of what, for lack of a better phrase, I would call 'want of probity,' a feature which recurs through and seems to connect all those cases drawn to the court's attention where a constructive trust has been held to exist. [15] In Paragon Finance plc v. DB Thakerar & Co [1999] 1 All ER 400, Millett LJ (later Lord Millett) explained the concept of a constructive trust in terms that is difficult to improve: A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case (and this is the class with which we are presently concerned), however, the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. Well known examples of such a constructive trust are McCormick v. Grogan [1869] 4 App. Cas. 82 (a case of a secret trust) and Rochefoucald v. Boustead [1897] 1 Ch. 196 (where the defendant agreed to buy property for the plaintiff but the trust was imperfectly recorded). Pallant v. Morgan [1953] Ch. 43 (where the defendant sought to keep for himself property which the plaintiff trusted him to buy for both parties) is another. In these cases the plaintiff does not impugn the transaction by which the defendant obtained control of the property. He alleges that the circumstances in which the defendant obtained control make it unconscionable for him thereafter to assert a beneficial interest in the property ….. [20] 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. 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 (emphasis mine). 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.” [19] I also hold that since the Defendant only became a wound up company on 18.7.2019, there was no necessity and indeed there was no need for the Plaintiff to raise the issue of trust over the Performance Bond Sum in the circumstances as the Performance Bond Sum was an amount due by way of the Award to be paid to the Plaintiff. There is thus no issue of any res judicata or issue estoppel as contended by the Defendant [20] The fact that the intention of the monies to be categorized as held on trust is also thus irrelevant based on Takako Sakao (supra) and I do hold that the filing of the OS before me now was due in chief to the refusal of the Defendant to make payment of the Award which includes the Performance Bond Sum despite demands from the Plaintiff to do so. [21] I further find that the Defendant is wrong in retaining the said Performance Bond Sum as it should not have continued to retain the Performance Bond Sum when the Tribunal had made its Award. So long as it is unconscionable for the Defendant to assert its own interest in the property and deny the beneficial interest of another, a constructive trust would by operation of law be created. In Sabah Development Bank Bhd v Petron Oil (M) Sdn Bhd [2020] 4 CLJ 811, Nallini Patmanathan FCJ in the Federal Court had held " How Does A Constructive Trust Arise? [89] The leading case authorities of Takako Sakao (which adopted the test in the Paragon Finance) and Carl Zeiss Stiftung v. Herbert Smith & Co[1969] 2 Ch 276, 300) and Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal [2009] 2 CLJ 363 (which relied on, among others, the cases of Hussey v. Palmer [1972] 3 All ER 744 and Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1996] AC 669) have established that a constructive trust arises by operation of law when the circumstances are such that it would be unconscionable for the owner of the property in dispute to assert his own beneficial interest in the property and deny the beneficial interest of another (emphasis mine). As comprehensively expressed in these cases, constructive trust is a remedial device that is imposed by equity to satisfy the demands of justice and good conscience without reference to any express or presumed intention of the parties. [90] And in Malaysian International Trading Corporation Sdn Bhd v. RHB Bank Bhd [2016] 2 CLJ 7171 this court reiterated the statements above before going on to adopt the approach in Twinsectra Ltd v. Yardley And Others [2002] 2 All ER 377. This saw the imposition of a two-fold test comprising both an objective and a subjective test. This test which requires compliance with the additional subjective honesty ingredient, was approved by this court in CIMB Bank Bhd v. Maybank Trustees Bhd & Other Appeals [2014] 3 CLJ 1. [91] Applied in the context of the present case, the imposition of a constructive trust could only arise by operation of law where the circumstances are such that it would be unconscionable for the bank to continue to assert a right to the contract proceeds under the SESB Contract so as to deny a subsisting interest of Petron. ….” [22] The issue of a constructive trust would thus arise so as to carve out the same from the general assets of the Defendant as the Defendant is now a wound up company and to prevent the same from being disbursed to the other general pool of creditors of the Defendant. The Filing of the Proof of Debt (POD) [23] As to the POD filed by the Plaintiff which the Defendant alleges is already the subject matter of the Liquidation, I accept that the said POD was filed by the Plaintiff out of an abundance of caution as the Defendant had refused to refund the Performance Bond Sum despite demands from the Plaintiff to do so and the numerous litigation proceedings between them. [24] On this issue, I accept and apply the case of Qimonda Malaysia Sdn Bhd (In Liquidation) v Sediabena Sdn Bhd & Anor [2012] 3 MLJ 422; [2011] MLJU 1204; [2011] 8 CLJ 269; [2011] 2 AMCR 784 where the Court of Appeal held “The court agrees with the respondents’ counsel that the argument on estoppel is an afterthought, and was only raised after the defence was filed on 16 July 2010. The appellant did not at any material time, after the filing of the proof of debt raise at the issue of estoppel in any of its letters in reply to the respondents’ letters stating that the retention monies are trust monies. In any event, whether or not estoppel applies would depend on the facts and circumstances of each particular case. Different facts may lead to different conclusion. In the present case, it is clear from the sequence of events before, at the time and after the filing of the proof of debt that the first respondent has clearly maintained its stand that the retention monies are trust monies. ….” Limitation Issues [25] I now turn to the Defendant’s final submission that imitation has set in with regards the Plaintiff’s application herein. [26] From the chronology of events before me, the High Court Order made in 2018 was set aside by the Court of Appeal and only reaffirmed by the Federal Court in 2022 and thus in my view only a period of 3 years has since elapsed since the said Federal Court Order. I therefore find the Defendant’s contention on this point as being wholly misconceived and untenable. The law on declarations [27] In accordance with section 41 of the Specific Relief Act 1950 it is stated that Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so. Explanation - A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.