Loong Kean Seng v Loong Kean Voon (WA-22NCvC-187-03/2021)

The plaintiff (youngest brother of the defendant) is the registered 15 owner of a piece of land, bearing the address Geran 35683, Lot 123, Seksyen 99, Kuala Lumpur (Lot 123), with a bungalow built on it.

The present case is centred on the parties' competing claims for the said Lot 123. 20 1.1 In the present suit against the defendant, the plaintiff claims that:

The parties are registered proprietors (equal undivided share) of another property (family asset), a semi-detached house located at No.18, Lorong Jugra, Jalan Klang Lama, 58100 Kuala Lumpur (the semi-detached house: Lot 88) that at all material times were 25 under the care, control, maintenance, and possession of the defendant.

As the sole registered proprietor of Lot 123, the plaintiff authorises the defendant to deal with Lot 123 and to let it out with the rental collected to be applied as follows: 30 03/06/2025 13:59:10 WA-22NCvC-187-03/2021 Kand. 78

RM 2,000.00 to the plaintiff.

RM 2,000.00 to the defendant.

The balance to be paid to their mother, who died on 25.01.2020.

Lot 123 was let out to a company in December 2018 for RM10,000.00 per month with rental and utility deposits of RM30,000.00 40

The defendant defaulted in remitting the financial arrangement to the plaintiff as agreed from May 2020:

Leading to the issuance of a written notice to the defendant that the plaintiff would assume all control of Lot 123.

The defendant was instructed to cease collecting any rentals 45 from the tenant and to surrender all documents, including the issue document of title, to the plaintiff, but the defendant refused.

He was also asked to pay the accumulated rental payments on Lot 123 due to the plaintiff, amounting to RM58,000.00 but 50 was refused by the defendant.

The defendant refuses to surrender the accumulated rental payments and the RM30,000.00 deposits on the rental as demanded. 55 1.2 In the circumstances, the plaintiff sued the defendant for: The payment of the RM88,000.00 with interest.

An order for specific performance to compel the defendant to 60 return all documentation, including the issue document of title (IDT) for Lot 123, and for the surrender of the impugned tenancy agreement.

A declaration that the plaintiff is entitled to receive the entire rental of the impugned property and an order prohibiting the defendant 65 from having any dealings with it from September 2020. [2] The defendant denies the plaintiff’s claim:

2.1 In his defence and counterclaim, the defendant argued that the plaintiff allegedly holds ½ undivided shares in Lot 123 on trust for him, and the plaintiff needed to transfer that ½ share to him:

His version of the financial arrangement for the rental of Lot 123:

RM 2,000.00 to the plaintiff.

RM 2,000.00 to the defendant.

RM 2,000.00 to their mother.

The balance rental to be used for the upkeep of the semi- 75 detached house occupied by the family, including the plaintiff.

He claimed that RM34,485.85 of the collected rental was used for hospital expenses of their late mother and her funeral expenses, with a balance of RM7,242.93 that still needed to be collected from 80 the plaintiff.

2.2 The defendant counterclaimed against the plaintiff, as follows:

An order for specific performance to compel the plaintiff to transfer and register the defendant’s ½ undivided share in the impugned 85 Lot 123, with the parties to share the expenses incurred jointly.

The defendant is allowed to retain the deposits for the tenancy and is responsible for returning them to the tenant of Lot 123 once the tenancy expires.

He is allowed to retain in his possession all documents, including 90 issue documents of title for all properties, and to care for and manage the upkeep of the properties. [3] On 19.03.2025:

After considering the cause papers, evidence, and the parties' 95 arguments, on a balance of probabilities, I find for the plaintiff and enter a final judgment against the defendant with costs.

At the same time, I find the defendant failed to establish his counterclaim and it was dismissed with costs. 100 [4] Aggrieved, the defendant filed this appeal, and my reasons are as follows:

4.1 The witnesses at the trial are as follows:

For the plaintiff: PW1: Leong Yoke Choo (sister) 105 PW2: Loong Kean Seng (plaintiff) PW3: Loong Keng Lan (sister) PW4: Loong Keng Hua (sister)

For the defendant: 110 DW1: Loong Kean Voon (defendant) DW2: Yip Lai Foon (DW1’s wife) DW3: Leong Lai Peng (cousin to the parties) [5] THE PARTIES' RESPECTIVE ARGUMENTS 115 I have duly examined the parties' arguments, briefly as follows:

THE PLAINTIFF 1 Preliminary Objections (PO) The learned counsel first proceeded with their PO under O.18 r.7 Rules of Court 2012 (RC 2012) and objected to the unpleaded matters by the 120 defendant in the specific paragraphs of the witness statements in:

DW1(a): L45, Q&A 6 & 7: That the defendant was away working in Kelantan at the time Lot 123 was purchased by the late father. Going to the solicitor’s office of Messrs Balwant Singh & Sons where the late father was alleged to have uttered 125 certain statement.

DW2: L46, Q&A 4 & 5: Because the defendant was away working in Kelantan, the late father had no choice but to register Lot 123 solely in the name of the plaintiff. Also, on the supposed trip to the solicitor’s office, Messrs Balwant Sing 130 & Sons.

DW3: L47, Q&A 7: Also, on what allegedly happened at the solicitor’s office. The plaintiff asked for it to be struck out from the proceedings. 135 Citing in support Bank Kerjasama Rakyat Malaysia Berhad v Instyle Furniture Industries Sdn Bhd & Ors [2020] MLJU 871, HC; Syarikat Letrik Chen Guan Sdn Bhd v Imej Tenggara Sdn Bhd [2022] MLJU 1912, HC. 140 5.2 Plaintiff’s Submissions, briefly: The plaintiff submitted that he does not dispute that Lot 123, purchased in 1992 by their late father, who bought and paid for it, including the cost of building a bungalow on it. However, Lot 123 was registered solely in his name. According to the testimony of PW3 and PW4 (NOP, 145 L62, pg.294; pg.395), the plaintiff, as the youngest child, was the favourite child of the late father:

In 2011, the late father allowed Lot 123 to be let out, with the rental proceeds to be used for the family’s living expenses and the upkeep of the semi-detached house: Lot 88.

When the father passed away on 23.06.2011, a month after Lot 123 was rented out, their late mother suggested that the defendant handle all matters concerning Lot 123, which the plaintiff agreed to.

It was also claimed that before the passing of the late mother 155 (January 2020), the parties agreed to the following arrangement on the rental collected:

RM 2,000.00 to the plaintiff.

(ii) RM 2,000.00 to the defendant.

(iii) RM 6,000.00 to their mother to be used to pay for the family 160 expenses for the semi-detached house: Lot 88.

(iv) Any extra to be kept by their mother as her savings.

After the death of the mother, the plaintiff claimed that he was supposed to receive from the impugned rental of Lot 123:

RM 8000.00

(ii) RM 2000.00 to the defendant. The defendant failed to remit the proceeds from January 2020 to May 2020 and had ignored and refused to do so, even after 170 the plaintiff’s solicitors issued a letter of demand.

5.3 It was further argued that:

The plaintiff:

Is the sole registered proprietor of Lot 123.

There is no alleged trust as claimed by the defendant in any 175 manner whatsoever, nor is it registered on the issue document of title on Lot 123.

Section 89 NLC, the IDT is conclusive proof of ownership, with deferred indefeasibility under section 340(1) NLC, save under subsections (2) and (3).

There is no plea of fraud by the defendant in his defence and counterclaim.

Save for a sweeping general statement, there is no particularisation of a trust (express, constructive, or resulting trust) as claimed by the defendant in his defence and 185 counterclaim.

The defendant failed to satisfy the three (3) legal elements of a valid trust, i.e., (i) certainty of intention, (ii) certainty of subject matter, and (iii) certainty of the object of the alleged trust.

Apart from conjecture and bare assertions (that were not pleaded):

The defendant failed to adduce any cogent evidence on which his allegation could be substantiated.

His attempt to argue that the semi-detached house (Lot 88), 195 which is jointly registered in the parties' names by their late father as a supposed positive inference and support for his claimed 50% interest in the undivided share in Lot 123, is unsustainable.

None of the siblings is aware of the unsupported allegation of 200 trust, except for the defendant and his wife (who is disliked and distrusted by the late parents), in Lots 88 and 123.

The defendant purports to use an alleged statement in March 2011, supposedly uttered by their late father to a solicitor, Mr Balwant Singh, at the office of Messrs Balwant Singh & Son 205 that Lots 88, 123, and 142 (Gombak) were intended for the plaintiff and the defendant as they are the male heir of the family:

This piece of oral evidence was never put to the plaintiff during cross-examination: Aik Ming (M) Sdn Bhd & 8 Ors v Chang 210 Ching Chuen & 3 Ors & Another Case [1995] 3 CLJ 639, CA, which ruled that it is essential that a party’s case be expressly put to his opponent’s material witnesses when they are under cross examination. A failure in this respect may be treated as abandonment of the pleaded case, and if a party, in the absence 215 of valid reasons, refrains from doing so, then he may be barred from raising it in argument.

(ii) The solicitor concerned was never called to verify the same, nor any evidence from the said legal firm to establish the supposed creation of the speculated and unsupported trust. A letter (dated 220 24.9.2013) issued by the said solicitor, addressed to the tenant of Lot 123, contradicts the unsupported evidence of the defendant: Bundle B1, page 131, which clarifies that the defendant is the executor of the late father’s estate and would collect rental in his capacity as the executor. Nothing is mentioned that he owns a ½ 225 undivided share in the said letter that the plaintiff holds on trust.

(iii) Other than speculation, there is no independent and cogent evidence tendered to establish if at all the impugned statement was issued (which is denied) that could show with certainty and clarity that the late father had expressly instructed the plaintiff to 230 hold the undivided ½ share in Lot 123 on trust for the defendant: Perman Sdn Bhd & Ors v European Commodities Sdn Bhd & Anor [2005] 4 CLJ 750, CA that observed that the standard of establishing an express trust is high, that no property should be burdened with the interest of another over the registered owner 235 without clear evidence.

(iv) The plaintiff cited Tan Keng Yong @ Tang Keng Hong & Anor v Tan Hwa Ling @ Tan Siew Leng & Ors [2022] MLJU 93, CA, where it was observed that grounded on the pleaded facts and the evidence adduced by the plaintiffs, the plaintiffs failed to establish 240 the burden of proving a prima facie case in establishing relevant facts to show that the disputed properties are trust properties, and the defendants are their trustees.

The defendant in his argument tried to argue on the purported admissions by PW1, PW3, and PW4 on a supposed resulting 245 trust on Lots 215, 207, and 42. These allegations were never put to the witnesses during the trial. It is untenable.

Further in his argument, the defendant:

At this juncture, claims that the plaintiff holds the ½ undivided share in Lot 123 on a resulting or constructive 250 trust (by operation of the law) for the defendant. These are strictly afterthoughts on the part of the defendant.

In his defence and counterclaim, no such pleading was made with no particularisation of the alleged trust but merely a general sweeping statement. The pleadings 255 bind parties. He can’t possibly argue on matters not pleaded: RHB Bank v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188, FC it was observed by the Federal Court that it is not the duty of the court to invent or create a cause of action or a defence under the guise of doing 260 justice for the parties lest it be accused of being biased towards one against the other. In the Federal Court observation in Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697, FC, it was said that it is a cardinal rule that parties are bound 265 by their pleadings and are not allowed to adduce facts and submissions on matters which they had not pleaded. Cases must be decided based on the issues presented on the record. If it is desired to raise other issues, they must be placed on the record by amendment. The Court 270 of Appeal in Tan Keng Yong @ Tang Keng Hong & Anor v Tan Hwa Ling @ Tan Siew Leng & Ors [2022] MLJU 93, CA, observed that the plaintiff had failed to plead the issue of constructive trusts, failed in the circumstances to lay down a clear and precise matters of 275 constructive trust to give the defendants a fair and a proper notice of the case that they have to meet to enable them to frame and prepare their case for trial, and more so, to inform the Court of the precise matters in issue between the plaintiffs and defendants which the Court 280 has to determine.

Throughout the trial, the burden lies on the defendant to prove his counterclaim with compelling evidence. It does not lie on the plaintiff to disprove it if the defendant does not discharge the burden.

5.4 The late father had safely stored all documentation on the landed properties in a safe in his room at the detached house, Lot 88. Upon his passing, the defendant occupied the said room and took possession of all the documentation, holding on to it to demonstrate 290 the supposed trust in Lot 123 that is untenable. It does not give rise to any interest in land. He has no legal basis to hold onto the IDT of Lot 123, as he is not the registered proprietor of the property. He is not legally entitled to hold onto the rental and utility deposits of RM30,000.00 paid by the tenant for the rental of Lot 123. 295 5.5 The defendant is not entitled to a ½ share of the monthly rental on Lot 123, as he is neither the registered owner of the said land, a beneficiary of a non-existent trust, nor a party to any other express or implied financial arrangement between the parties.

5.6 In upkeeping the properties for their late father, the cost of living for 300 him and his family was paid by the late father. It was never a gratuitous act on the defendant’s part in assisting the late father.

5.7 The defendant’s self-serving accounts concerning the condolences money collected on the death of their mother are inconsistent and cannot be taken as the truth of the matter:

All witnesses for the plaintiff testified that the defendant had collected all the money.

The plaintiff tendered the Memorial Record (Bundle B1 part C, pp.140-156), to show that the total amount collected was RM11,690.00 310

The defendant unsupportively claims that he collected the monies and used them for prayer expenses for seven days for the late mother. He argued that the rental collection could not cover the medical costs and the funeral expenses, with no mention of the expenses of the seven-day prayers.

Their late mother’s funds were used to settle all the medical costs. The defendant had the late mother’s debit card and access to her bank account, as confirmed by PW1, PW2, PW3, and PW4. This was also admitted by the defendant in his evidence in SD1 (L.62, p. 546), although he claimed that he used his own money to pay 320 the bills.

5.8 Due to the dishonest and abusive treatment of the rental collected, the plaintiff no longer authorises the defendant to have any access to the said fund. In Fernrite Sdn Bhd v Perbadanan Nasional Bhd [2011] 6 CLJ 1, CA observed that the principle of unjust enrichment requires 325 the recipient of money to repay it when the circumstances are such that it is contrary to ‘the ties of natural justice and equity’ to retain it. In the foregoing circumstances, the plaintiff prays that L.1 be allowed with costs against the defendant. 330 [6] Defendant’s Submissions, briefly:

6.1 The late father:

Uses rental from the property to upkeep the property and maintain the family. The defendant and the plaintiff do not contribute monetarily to the acquisition of these properties by the late father.

During his lifetime, in 1988, the late father instructed that the semi-detached house, Lot 88, be registered 1/3 undivided share in the name of the plaintiff and the father. At the same time, the land in Gombak was registered in equal shares between the defendant and the plaintiff.

In his last will, he willed that his 1/3 undivided share in the semi-detached house, Lot 88, be distributed equally between the defendant and the plaintiff.

6.2 The defendant in his argument tried to use the purported admissions by PW1, PW3, and PW4 on a supposed resulting trust on Lots 215, 345 207, and 42 when the late father gifted all the daughters a house each. The allegation by the defendants was never put to the witnesses during the trial, which renders it untenable. The defendant said that, if his late mother were still alive, she would confirm his claims on his alleged father’s intent (I find that there is no support to this statement). 350 6.3 In considering the above evidence, I attach no weight to it as being purely self-serving and speculative. The defendant went at length to dwell on the nature of the relationship with his siblings, which I find irrelevant and does not at all support his claim on the creation of the trust that he failed to particularise as required by the Federal Court, 355 which is central to his defence and counterclaim in the present proceeding. The defendant failed to appropriately address the three legal requirements for the creation of a trust (3Cs) in the present case. From a general, sweeping, and speculative statement in the pleading that an alleged trust exists, the defendant now goes beyond his 360 pleading to address express trusts, resulting trusts, or constructive trusts that were never pleaded to begin with.

6.4 It is trite law that parties are bound by their pleadings. As rightly alluded to by the plaintiff, the Federal Court’s observation in Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 365 697, FC, that it is a cardinal rule that parties are bound by their pleadings and are not allowed to adduce facts and submissions on matters which they had not pleaded. Cases must be decided based on the issues presented on the record. In the circumstances, I would not accept or admit the defendant’s arguments outside the parameters of 370 his pleadings.

6.5 The burden lies on the defendant to establish the central thrust in his defence and counterclaim on the existence of a trust to defeat the plaintiff’s claim. But at this juncture, there is no compelling evidence that it exists save for conjecture. Other than speculation on the facts 375 by the defendant, there is no single cogent evidence to establish:

Certainty of Intention of the late father to create a trust on Lot 123

(ii) Certainty of the Subject Matter of the trust by the late father.

(iii) Certainty of the Object must be certain and defined clearly. It cannot be grounded on what the defendant is doing. In failing to 380 meet the legal requirements, the defendant’s claim and arguments become unsustainable and cannot succeed in the present proceedings.

6.6 Arguing that the IDT of Lot 123 was kept by the late father, being indicative of an intention to create the trust the defendant desperately 385 claimed, is too far-fetched and misplaced or misdirected:

If the late father had intended for Lot 123 to be shared by the parties herein, he had ample time to do so during his lifetime.

To say otherwise now would be too far-fetched.

This argument by the defendant is insufficient to defeat section 390 340 of the NLC. Registered ownership of Lot 123, which resides with the plaintiff, is not to be defeated by the late father having possession or control over the land and the IDT. That is not a vitiating factor to defeat indefeasibility of title, nor does it indicate an intention to create a trust.

I find the defendant based his argument on speculations on the facts and circumstances. Other than that, there is no compelling evidence of the late father’s intention that Lot 123 is to be shared equally by the parties.

6.7 The defendant argued that a subsisting agreement exists between the 400 plaintiff and the defendant regarding the sharing of rental proceeds. He gave his version of the financial arrangement for the rental of Lot 123, which differs from that of the plaintiff:

RM 2,000.00 to the plaintiff.

RM 2,000.00 to the defendant.

RM 2,000.00 to their mother.

The balance of RM4,000.00 rental is to be used for the upkeep of the semi-detached house occupied by the family, including the plaintiff. 410 He asserts that this arrangement remains in effect even after the passing of the late mother and continues to bind the parties. In the foregoing premise, the defendant prays that the plaintiff’s claim be dismissed, and his counterclaim be allowed with costs. 415 [7] THE LAW ON TRUST

7.1 In a nutshell: Apart from the capacity requirements, three fundamental certainties must be established to constitute a valid trust:

A certainty of intention to create a trust: 420 The settlor must intend to impose legally enforceable duties of trusteeship on the new owner of the property. The intention to create this trust must be clear, even if the settlor does not use the term' trust'. There must be: (i) an intention to create a trust, and,

(ii) not intended as a gift or any other relationship leading to the 425 transfer of the property to the trustee: Snell’s Equity, paragraphs 22- 013; Hayton & Marshall: A Commentary & Cases on the Law of Trusts. The Federal Court observed that explicit language is required to make a trust, though it may not be in writing: Wan Naimah v Wan Mohamad Nawawi [1974] 1 MLJ 41, FC; ESPL (M) Sdn Bhd v 430 Radio General Engineering Sdn Bhd [2004] 4 CLJ 674 CA; Hameeda Bee v Seenivasagam [1950] MLJ 267, CA. Since equity looks into the intent rather than the form, technical expressions are not needed to establish a trust: Re Kayford Ltd [1975] 1 All ER 604.

A certainty of the subject matter of the trust: Every settlor must be reasonably clear and certain of the identifiable and ascertainable movable and immovable property that forms the trust. Certainty of subject matter requires the trust 440 property to be duly identified and the beneficial interest to be ascertained. In default thereof, the trust fails. The Supreme Court in Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor [1994] 2 MLJ 614, SC held, on the three legal requirements,

Certainty of words/Intention, (ii) Certainty of subject, and 445

(iii) Certainty of object.

A certainty of the beneficiary and the beneficiary’s entitlement to the trust property: The beneficiary has a right in personam against the trustee and a 450 right in rem against the trust property and its proceeds: Victor Glamour Sdn Bhd v Tan Kim Cheng [2010] MLJU 1740, CA. A beneficiary’s proprietary rights are necessary because, as against the trustee, he can hold the trustee accountable for his management of the trust fund. The beneficiary can compel the 455 trustee to distribute the economic benefits derived from the trust assets under the trust's terms. [8] Effect of non-compliance with the foregoing:

Without an intention to create a trust, the trustee can take the property as an absolute gift.

Without certainty in the subject matter of the trust, it cannot be effected, there is no trust, and the title remains with the settlor.

Without a beneficiary, the beneficial entitlement cannot vest, and consequently, the trustee will hold the property on a resulting trust for the benefit of the settlor.

If there is uncertainty concerning the portions of the property to be given to the beneficiary, the property is held on a resulting trust for the settlor. Other options include the use of the Inheritance Provision for Property Act 1971, or the provisions of maintenance and advancement under sections 36 and 37 of the Trustees Act 470 1949.

If there is a purported declaration only (where the testator tries to make a declaration of trust) which falls short of an intention to create a trust, the receiver may take the property as if he were the beneficiary, depending on the facts and circumstances of the 475 case.

Where there is a declaration of trust, but no transfer of the title of the property has been effected, it gives rise to an incompletely constituted trust as in Milroy v Lord (1862) 4 De GF & J 264. 480 [9]

FINDINGS 1 On the PO, I have examined the cause papers, and I am allowing it. The impugned paragraphs will be struck off the record. It is trite law that parties to a legal proceeding are bound by their pleadings.

9.2 I have examined all-cause papers, the evidence at the trial, and the 485 parties' submissions. Considering my observations in the totality of the evidence and my observations in the parties' respective arguments in paragraphs [5]-[6], it is my considered finding that on a balance of probabilities, I find that the plaintiff has proven his claim against the defendant. The defendant has failed to produce compelling or 490 persuasive evidence to tip the evidential scale in his favour. From the bundles of documents and their respective arguments, it is clear that the defendant has no legal basis for denying the plaintiff’s claim.

3 The COA in Guan Teik Sdn Bhd v Hj Mohd Noor bin Hj Yakob & Ors [2000] 4 MLJ 433, CA held that the Court must not only weigh 495 such evidence on a balance of probabilities but must also consider the surrounding circumstances and evaluate contemporary documents that may tend to establish the truth or otherwise of a given fact. [10] By and large:

1 I find the defendant’s version of facts as not probable and he has failed to convince me with compelling evidence to establish merit in his proffered defence and counterclaim. The Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC, held that the court must examine the factual matrix that forms the 505 background of the transaction. This factual matrix gives a clear view of the scheme of things between the parties:

From the facts gathered at the trial, the defendant is attempting to secure an interest in Lot 123 that he has no right to. The law, as per Section 340(1) NLC, confers indefeasibility on the plaintiff’s 510 registered ownership, subject to the vitiating factors under subsections (2) and (3), which the defendant failed to establish with compelling evidence.

Even though the late father made it a practise using the monthly rent collectively to upkeep the family's living expenses, and a 515 portion of it is also shared between plaintiff and the defendant, it cannot be taken ipso facto as a contributing factor in the creation of the alleged trust on Lot 123 for the benefit of the defendant. .

In the circumstances, the position taken by the defendant to hold on to the IDT of Lot 123 when he has no proprietary interest in Lot 520 123 that is duly registered solely in the name of the plaintiff, is not sustainable. In his evidence, he relied on mere conjectures that could not support the legal requirements in the certainty of intention, the certainty of subject matter, and the certainty of the object for a valid express trust. Resulting and constructive trust 525 are unpleaded issues that would not be considered. There is no deed of trust to refer to in the present case. For an express trust to be recognised under section 344 of the NLC, it must be recorded in the memorial of registration.

10.2 The law is trite that he who alleges must prove the allegation and when 530 the burden is not discharged, the claim must fail.

10.3 Other than bare assertions at the trial, the defendant failed to call appropriate witnesses to corroborate his misconstruction of the facts. Bare assertions and speculations are not worth their weight in evidence. It is a well-established principle that the Court does not act 535 on speculation or suspicion. All cases are decided on the legal burden of proof being discharged. It is the acid test applied in any particular case: Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, FC. In the circumstances, anchored on the preceding principles by the Federal Court, I find with no 540 hesitation that the defendant failed to discharge his legal burden to sustain his defence and counterclaim. CONCLUSION [11] In light of the foregoing and after closely examining the cause papers, 545 the evidence adduced by the parties, and their submissions, on a balance of probabilities, it is my considered judgment that the plaintiff succeeded in proving his claim. Accordingly, I am entering the final orders as follows:

Paragraph 13 of the SoC:

Prayers (i), (ii), (iii), and (iv) are allowed.

Prayer (v) is allowed for damages to be assessed.

Prayer (vi) for a declaration is allowed.

Prayer (vii) for costs is allowed. 555

The defendant failed to establish his counterclaim, and it is dismissed with costs.

A global cost (main trial and counterclaim) of RM20,000.00 to be paid within 60 days from today. A penal notice is to be endorsed in the order. 560 Dated 29.05.2025. (HAYATUL AKMAL ABDUL AZIZ) 565 JUDGE HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR Counsels: Kau Hui Ni together with Franklin Goonting, 570 Messrs Lim Soh & Goonting for the plaintiff Tee Kuo Ying Messrs Hisyam Yoong – KC Lim for the defendant 575