Naleen Nair A/P Sekaran Nair v 1. Jasim Sura Puthucheary (WA-33-277-05/ 2017)

MAVIS COLLEEN PUTHUCHEARY … RESPONDENTS GROUNDS OF JUDGMENT Introduction [1] This is an application filed by the Petitioner on 19.5.2017 (Enclosure 6) pursuant to section 102 of the Law Reform (Marriage and Divorce) Act 1976 [Act 164] (‘LRA 1976’) for an interlocutory injunction to restrain the 2nd Respondent by herself, her servants or agents from disposing of and/or transferring, whether by way of sale, gift, charge, lease or otherwise, the land held under title GM 828, Lot 2709, Mukim Setapak, Federal Territory of Kuala Lumpur (‘the said Land’) pending 2 the disposal of the Petitioner’s Divorce Petition which was filed on 3.5.2017 (‘the Petition’). [2] The relevant affidavits for purposes of Enclosure 6 are as follows:

the Petitioner’s Affidavit In Support (‘AIS’) affirmed on 3.5.2017 (Enclosure 8);

the 1st Respondent’s Affidavit In Reply (‘1st Respondent’s AIR’) affirmed on 7.6.2017 (Enclosure 10); and

the 2nd Respondent’s Affidavit In Reply (‘2nd Respondent’s AIR’) affirmed on 7.6.2017 (Enclosure 11);

the Petitioner’s AIR to the 1st Respondent’s AIR affirmed on 21.6.2017 (Enclosure 12); and

the Petitioner’s AIR to the 2nd Respondent’s AIR affirmed on 21.6.2017 (Enclosure 13). 3 [3] On the hearing date of Enclosure 6 on 15.8.2018, learned counsels for the Petitioner, Mr. Siew Choon Jern and with him, Ms. Lim Pit Feng, and for the Respondents, Mr. Porres Royan informed the Court that they will be relying on the above mentioned affidavits and the written submissions filed. Having considered the same, I had, on 7.9.2018 allowed the Petitioner’s application with costs in the cause and ordered the Petitioner to provide an undertaking to pay damages to the Respondents. [4] For the purposes of the appeal by the Respondents, the reasons for my decision are set out herein below. Brief Facts [5] The Petitioner and the 1st Respondent became engaged on 1.1.1994. The 1st Respondent’s parents, namely the 2nd Respondent and the 1st Respondent’s late father, Mr. James Joseph Puthucheary then decided to give the said Land to the Petitioner and the 1st Respondent as a wedding gift. The said Land had been transferred from 1st Respondent’s late father to the 2nd Respondent in 1992. 4 [6] The 2nd Respondent did not, at any time, transfer the said Land to the Petitioner and the 1st Respondent. [7] The Petitioner and the 1st Respondent registered their marriage on 15.7.1994 at the National Registration Department, Petaling Jaya. The Petitioner was a businesswoman and the 1st Respondent, a company director. There are two children of the marriage, a boy and a girl born in 1997 and 2001, respectively. [8] The marriage hit troubled waters and the Marriage Conciliatory Body had issued a certificate dated 3.6.2013 certifying that the Body has failed to reconcile the parties. [9] Prior to that, which was on or around 13.3.2013, the Petitioner had lodged a private caveat on the said Land to protect what she claims to be her beneficial interest in the said Land (‘First Caveat’). [10] In or around February 2017, the 2nd Respondent applied to the Land Registrar to have the First Caveat removed. The Notice of Intended Removal of the First caveat was served on the Petitioner on 3.3.2017. The First Caveat expired on 3.5.2017. 5 [11] Two days after the Petitioner filed the Petition, she lodged another private caveat on the said Land (‘Second Caveat’) to prevent the disposition of the said Land pending the disposal of the Petition. [12] The Second Caveat was withdrawn by the Petitioner on 7.6.2017 after she was informed by her solicitors that Enclosure 6 will be heard on 8.6.2017. The Petitioner’s Contention [13] In her AIS, the Petitioner averred that although the said Land is still registered in the 2nd Respondent’s name (a copy of the land search dated 8.7.2011 is exhibited as exhibit “NNSN-9”), she verily believes that the said Land forms part of the matrimonial assets. This is because the Petitioner claims that she and the 1st Respondent had acted in reliance of the 2nd Respondent’s promise that the said Land is their wedding gift by expending time and money on the said Land in the following manner:

working to clear and maintain the said Land with the hope of constructing their family home or a fee town houses for sale; 6

taking out and paying to service a mortgage on the said Land whereby an overdraft facility of RM270,000.00 was taken by the 1st Respondent from Bank of Commerce (M) Sdn Bhd (‘the Bank’) and secured by a mortgage on the said Land with the consent of the 2nd Respondent on 4.8.1994. This loan was mainly serviced by the 1st Respondent but around September 1997, the Petitioner alleged that the 1st Respondent had defaulted on his payments and thus an arrears of RM12,175.57 had been accumulated as at 6.9.1997 to which the Petitioner had assisted to settle this amount. Apart from that, the Petitioner averred that she had helped to prevent foreclosure of the said Land when the 1st Respondent continuously fell into arrears with the loan payments during the period between 1998 and 2000. The Petitioner produced receipts and payment vouchers issued by her company, Sarisqa International Sdn Bhd (‘Sarisqa’) (see exhibit “NNSN-4”) in support of her contention that she had contributed over RM100,000.00 towards servicing of the loan;

paying quit rent in respect of the said Land. In this regard, the Petitioner alleged that the quit rent was usually paid by the 1st 7 Respondent and herself either personally or through Sarisqa. The assessment and quit rent receipts issued by Dewan Bandaraya Kuala Lumpur (‘DBKL’) and Jabatan Tanah Dan Galian Wilayah Persekutuan were shown as exhibit “NNSN-7”; and

taking action to remove illegal squatters from the said Land by way of a letter written by the 1st Respondent to DBKL dated 14.9.2011 (exhibit “NNSN-8”) wherein the 1st Respondent stated that he was the owner of the said Land. These squatters had erected buildings on the road reserve which the Petitioner and the 1st Respondent wanted to use to access the said Land. [14] Furthermore, the Petitioner averred that in the draft Joint Divorce Petition (‘draft JDP’) (exhibit “NNSN-10”) which was given by the 1st Respondent to her around 2005, the 1st Respondent had acknowledged that the said Land is matrimonial property by virtue of paragraph 6.8(b) as follows: “The property at Taman Melawati (particulars) currently in the name of the Petitioner’s Husband mother ________ shall be transferred to the Petitioner Husband to be held on trust 8 for the children of the marriage and shall be transferred to the children of the marriage in equal shares upon the younger child ________ (name) reaching the age of majority;”. [15] In addition, it was averred that the 1st Respondent had sent an e-mail dated 13.9.2012 to the Petitioner (exhibit “NNSN-11”) proposing settlement of their divorce without going through lawyers whereby the said Land was included as one of the properties with an asset value of RM3 million. In the e-mail, the 1st Respondent had proposed that the net assets be shared equally between the Petitioner and the 1st Respondent. [16] Based on the above premises, the Petitioner submitted that the Respondents should be estopped from denying that the Petitioner and the 1st Respondent are beneficial owners of the said Land. The Petitioner believes that the application by the 2nd Respondent to remove the First Caveat is evidence of her intention, acting in concert with the 1st Respondent, to dispose of the said Land so as to deprive the Petitioner of her rights to the said Land. Hence, the application for 9 an interlocutory injunction was filed with a Certificate of Urgency (Enclosure 7). [17] In her reply to both of the Respondents’ AIR, the Petitioner had exhibited proof that she had withdrawn the Second Caveat on 7.6.2017 (see exhibit “NNSN-8”). The 1st Respondent’s Contention [18] The 1st Respondent, by way of his AIR, has alleged that Enclosure 6 is frivolous, vexatious and an abuse of process because the Second Caveat is akin to an interlocutory injunction. [19] It was also averred by the 1st Respondent that his parents had changed their minds about presenting the said Land as a gift to him and the Petitioner. The 1st Respondent denied that he had sought his parents’ permission to charge the said Land in order to prevent his parents from reneging on their promise to transfer the said Land to him and the Petitioner. Under the circumstances, it was submitted that the Court should not intervene and perfect an imperfect gift. 10 [20] In response to the Petitioner’s averments as set out in paragraph 10 above, the following are the 1st Respondent’s response:

neither he nor the Petitioner spent any money to improve, clear or maintain the said Land. The photographers produced as exhibit “NNSN-8” in the Petitioner’s AIS themselves show that the said Land is completely covered by overgrowth and vegetation and any plans to develop the said Land were never translated into positive action;

that nothing turns on the fact that the Petitioner had assisted the 1st Respondent in settling the arrears in his loan repayments since it was quite normal for them to assist each other financially. Furthermore, the overdraft facility was obtained with a view of building the family’s assets in the form of investments in family owned companies, of which Sarisqa was one of them;

all quit rent payments were made personally by the 2nd Respondent; and 11

that he had represented himself as owner of the said Land in the letter to DBKL on the basis that DBKL would only act upon a complaint of an interested party and the 2nd Respondent did not wish to deal with DBKL on the issue of the illegal squatters. [21] The 1st Respondent firmly maintains that the 2nd Respondent remains as the legal and beneficial owner of the said Land. It was averred that the contents of the draft JDP and e-mail were written on the mistaken assumption that the 2nd Respondent was still keen in gifting the said Land to the Petitioner and the 1st Respondent. The 2nd Respondent’s Contention [22] Basically the 2nd Respondent’s averments in her AIR are similar to the 1st Respondent’s. The 2nd Respondent explained that she and her late husband decided not to gift the said Land to the Petitioner and the 1st Respondent because they appeared to be financially capable and not in need of any assistance. 12 [23] The 2nd Respondent denied that she had asked –

the 1st Respondent to have the said Land transferred into his name and/or the Petitioner’s name; and

the 1st Respondent or the Petitioner to pay the quit rent on the said Land. Is the application in Enclosure 6 frivolous, vexatious and an abuse of process? [24] The Petitioner’s application is made pursuant to section 102 LRA 1976 which provides as follows: “102. Power for court to set aside and prevent dispositions intended to defeat claims to maintenance

Where –

any matrimonial proceeding is pending; or … 13 the court shall have power on application –

if it is satisfied that any disposition of property has been made by the spouse or former spouse or parent of the person by or on whose behalf the application is made, within the preceding three years, with the object on the part of the person making the disposition of reducing his or her means to pay maintenance or of depriving his or her spouse of any rights in relation to that property, to set aside the disposition; and

(ii) if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing that disposition.

For the purpose of this section ─ “disposition” includes a sale, gift, lease, mortgage or any other transaction whereby ownership or 14 possession of the property is transaction or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition in made; “property” means property of any nature, movable or immovable, and includes money.”. [25] Learned counsels for the Petitioner cited the judgment of Vazeer Alam J in Ng Li Lin (P) v. Ting Tian Hwa [2017] 10 MLJ 626 for the proposition that the more appropriate remedy to protect matrimonial assets from bring disposed or dissipated would be an injunction under section 102 LRA 1976 as opposed to a private caveat. The first issue that was discussed in His Lordship’s judgment in that case was whether a spouse has a caveatable interest in matrimonial property that is registered in the name of the other spouse. Following an analysis of the relevant Malaysian and Australian cases, His Lordship concluded, inter alia, that – 15 “[41] Additionally, in respect of assets acquired during a marriage, ie, matrimonial assets, the exclusive jurisdiction to decide on the rights of the parties to a share of such assets lies with the High Court exercising its matrimonial jurisdiction. That jurisdiction can only be exercised ‘when granting a decree of divorce or judicial separation’, under s 76 of the Law Reform (Marriage and Divorce) Act 1976, as decided by the Federal Court in the case of Manokaram a/l Subramaniam v. Ranjid Kaur a/p Nata Singh [2009] 1 MLJ 21; [2008] 6 CLJ 209. Thus, considering that the assets in these cases came under the purview of s 76 of the Law Reform (Marriage and Divorce) Act 1976, until the High Court in its matrimonial jurisdiction decides the apportionment of these assets between the husband and wife, the interest of both spouses in any particular asset remains indeterminate and inchoate, and thus the interest of the spouse cannot be a caveatable one. If the purpose of the lodgment of a private caveat were to merely protect matrimonial assets from being disposed or dissipated, as it seems to be in Francis Karel Rene Joseph Himpe, and in this case too, then the more appropriate remedy would be an 16 injunction under s 102 of the Law Reform (Marriage and Divorce) Act 1976. In this regard I am also inclined to follow the persuasive Australia authorities referred to above and in particular Hayes v. O’Sullivan (2001) 27 Fam LR 462 where the court held that a claim for distribution of matrimonial assets in matrimonial proceedings is not an interest in land and therefore is not a ceveatable interest, and that a spouse cannot rely on a constructive trust as giving rise to a caveatable interest. The same applies in our case, as the defendant is claiming a prima facie equity in an asset acquired during his marriage to the plaintiff. It is therefore clear that there is no basis in law to enter a caveat for an inchoate, indeterminate interest, when an alternative and more suitable remedy is available, between parties who are husband and wife. On the basis of it being a matrimonial asset, the defendant has not shown any basis for his claim that the has a caveatable interest in the property.”. [emphasis added] [26] The Petitioner in the case before me has affirmed in her AIR to both Respondents’ AIR that she has withdrawn the Second Caveat on 17

7.6.2017 and the Notice of Removal of Caveat was produced as exhibit “NNSN-13”. Therefore, in filing Enclosure 6, the Petitioner is simply doing what is allowed under LRA 1976 namely, to safeguard her beneficial interest in matrimonial property pending the disposal of the Petition. In paragraph 30 of her Petition, the Petitioner has pleaded that the matrimonial assets include the said Land and in paragraph 31, that the 1st Respondent is required to divide and give the Petitioner at least half share of all matrimonial assets. [27] Now, the issue then arises as to whether the said Land, which allegedly was intended to be given by the 1st Respondent’s parents as a gift to the Petitioner and the 1st Respondent can be said to be “matrimonial property”? [28] The Petitioner’s counsels submitted that, on the authority of the Court of Appeal decision in Tay Chong Yew & Anor v. Onn Kim Muah [2016] 2 CLJ 579, the answer to the above mentioned question is in the affirmative. Umi Kalthum Abdul Majid JCA, in delivering the judgment of the Court, held as follows: 18 “[27] The first appellant claimed that the said property was a gift to him by his father and as such it does not form part of the matrimonial property. On the issue of whether a gift to a spouse forms part of the matrimonial assets, the learned trial judge inclined to be bound by the views expressed by the learned judge in Chaw Anui v. Tan Kim Chai [2004] 1 LNS 260; [2004] 5 AMR 671 and held that even if the above said property was a gift to the first appellant, it does not escape from being a matrimonial asset. It is subject to distribution. It is trite that the respondent as a housewife contributed to the welfare of the family by looking after the home or caring for the family within the meaning of s. 76(4)(a) of the Act. She is entitled to a share of the property even though the asset was acquired by the sole effort of the first appellant or was a gift to the first appellant. Accordingly, the respondent is entitled to half share of the same based on the equation as agreed to between the parties in respect of the other immovable assets.”. [29] It was further submitted on behalf of the Petitioner that notwithstanding the fact that the said Land remains registered in the 2nd Respondent’s name, the gift of the said Land is enforceable by 19 virtue of the doctrine of proprietary estoppel as laid down in the English case of Dillwyn v. Llewelyn [1862] 4 De G.F. & J. 517 in the following words: “About the rules of the Court there can be no controversy. A voluntary agreement will not be completed of assisted by a Court of Equity, in cases of mere gift. If anything be wanting to complete the title of the donee, a Court of Equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift. Thus, if A. gives a house to B., but makes no formal conveyance, and the house is afterwards, on the marriage of B., included, with the knowledge of A., in the marriage settlement of B., A. would be bound to complete the titles of the parties claiming under that settlement. So if A. puts B. in possession of a piece of land, and tells him, “I give it to you that you may build a house on it,” and B. on the strength of that promise, with the knowledge of A., expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on 20 the donor to perform that contract and complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement not binding originally for the want of the memorandum in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance. The early case of Foxcroft v. Lester (2 Vern. 456), decided by the House of Lords, is an example nearly approaching to the terms of the present case.”. [30] Learned counsels for the Petitioner went on to address the requirements to establish an equity for proprietary estoppel as decided in Taylor Fashions Ltd v. Liverpool Victoria Trustees Co Ltd [1982] Q.B. 133 and Lim Teng Huan v. Ag Swee Chuan [1992] 1 WLR 1306 which was summarised as follows:

an assurance giving rise to an expectation that the donee would have an interest in land;

the donee must show reliance on the said assurance; and 21

the donee must have acted to his detriment as a result of the said assurance. [31] At this stage, I must emphasise that in arriving at a decision on Enclosure 6, this Court is not making any pronouncement as to whether the Petitioner has indeed fulfilled the requirements in establishing a case of proprietary estoppel or lending aid to perfect an imperfect gift. On the part of the Petitioner, it suffices for her to show that there are serious issue to be tried in the Petition such that Enclosure 6 should be heard on its merits and not be dismissed on the grounds that the application is frivolous, vexatious and an abuse of process. To my mind, this, the Petitioner has succeeded to do. The averments in the Affidavits of the parties as set out earlier in this judgment indicate that there is a clear dispute of facts on matters touching on the applicability of the doctrine of proprietary estoppel in this case. It is trite that it is not the function of the Court at this stage of the litigation to attempt to resolve conflicts of evidence on affidavit as to facts which the claims of either party may ultimately depend. Neither is it the role of this Court to decide difficult questions of law which call for detailed argument and mature considerations best suited to be dealt with at a full trial: see American Cyanamid Co v. 22 Ethicon Ltd [1975] A.C. 396; Eng Mee Yong & Ors v. Letchumanan [1979] 1 LNS 18 and Tan Wei Hong & Ors v. Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425. [32] Based on the foregoing reasons, I conclude that the Respondents’ contention that Enclosure 6 is frivolous, vexatious and an abuse of process is absolutely baseless. The Law on Interlocutory Injunction [33] It is well accepted that the principles on which interlocutory injunction is to be granted are as propounded by the House of Lords in American Cyanamid Co (supra). In the course of delivering His Lordship’s judgment, Gopal Sri Ram JCA in Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 had provided the following guidelines to the courts in determining whether an interlocutory injunction is to be granted or otherwise in any given case: 23 “To summarize, a judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines:

he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried. He must, when considering this question, bear in mind that the pleadings and evidence are incomplete at that stage. Above all, he must refrain from making any determination on the merits of the claim or any defence to it. It is sufficient if he identifies with precision on the issues raised on the joinder and decides whether these are serious enough to merit a trial. If he finds, upon a consideration of all the relevant material before him, including submissions of counsel, that no serious question is disclosed, that is an end of the matter and the relief is refused. On the other hand if he does find that there are serious questions to be tried, he should move on to the next step of his inquiry; 24

having found that an issue has been disclosed that further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case before him. He must weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal. He is entitled to take into account, inter alia, the relative financial standing of the litigants before him. If after weighing all matters, he comes to the conclusion that the plaintiff would suffer greater injustice if relief is withheld, then he would be entitled to grant the injunction especially if he is satisfied that the plaintiff is in a financial position to meet his undertaking in damages. Similarly, if he concludes that the defendant would suffer the greater injustice by the grant of an injunction, he would be entitled to refuse relief. …

the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the 25 period between the date of the application and the trial proper and intended to maintain the status quo, … Accordingly, the judge would be entitled to take into account all discretionary considerations, such as delay in the making of the application or any adequate alternative remedy that would satisfy the plaintiff’s equity, such as an award of monetary compensation in the event that he succeeds in establishing his claim at the trial. Any question going to the public interest may, and in appropriate cases should, be taken into account. …”. [34] Countless Malaysian cases have applied the American Cyanamid Co principles and guidelines and I need only mention a few such as Datuk Syed Kechik Bin Syed Mohamed v. Datuk Yeh Pao Tzu & Ors [1975] 1 LNS 24; Sivaperuman v. Heah Seok Yeong Realty Sdn Bhd [1978] 1 LNS 184; and AV Asia Sdn Bhd v. Measat Broadcast Network Systems Sdn Bhd [2014] 1 CLJ 821. [35] The Petitioner’s counsels had also referred to an earlier judgment of the Federal Court in Lian Keow Sdn. Bhd. & Anor. v. Overseas Credit 26 Finance (M) Bhd. & Ors. [1982] 2 M.L.J. 162 whereby Salleh Abas F.J. had this to say: “An interlocutory injunction is a temporary and discretionary remedy. To consider whether to grant it or to refuse it the court is not concerned with the chances of success of failure of the appellants in proving their civil suit at the forthcoming trial, neither is the court’s function to evaluate the evidence and materials before it for that purpose. The court is simply concerned with what it has to do in the meantime in order to protect the right of the parties so that no irreparable injury would be caused to either of them. Further whilst the court is not concerned with such questions the court must however, be satisfied that there are serious question to be gone into in that suit, lest an application for an injunction should be made on frivolous and vexatious grounds. (American Cyanamid v. Ethicon Ltd.) …”. [emphasis added] [36] In addition, this being an application under section 102 LRA 1976, the Petitioner has to demonstrate that the Respondents are disposing the 27 said Land with the intention of depriving the Petitioner of her rights in relation to the matrimonial assets (see Ng Li Lin’s case, supra). [37] The Respondents in their submissions have placed reliance on these authorities: Omega Securities Sdn. Bhd. v. Yeo Lee Hoe [2003] 1 CLJ 276; Ngan & Ngan Holdings & Anor v. Central Mercantile Corp

(M) Sdn. Bhd. [2010] 1 MLJ 822; Luggage Distributors (M) Sdn. Bhd. v. Tan Hor Teng & Anor [1995] 1 MLJ 719; Eng Mee Yong v. Letchumanan [1979] 2 MLJ 212; Aramin Sdn. Bhd. v. Juta Rasmi (M) Sdn. Bhd. (Adam bin Mat Sam, Intervenor) [2005] 4 MLJ 536; Teow Guan & Ors v. Liquidators of Kian Joo Holdings Sdn. Bhd. (in liquidation) & Ors [2008] 1 MLJ 305 and para 267 (“Court will not complete incomplete gift”), Halsbury’s Laws of England, Volume 52, 2014 at page 253. Analysis and Findings - Bona fide serious issues to be tried [38] With reference to paragraphs 13 until 23 of this judgment, I have no doubts whatsoever that the affidavit evidence discloses serious questions to be tried in respect of the said Land. Among the issues are – 28

whether the said Land was intended to be given as a wedding gift to the Petitioner and the 1st Respondent and is to be perfected;

if not, whether the promised gift is enforceable by virtue of proprietary estoppel;

whether the said Land forms part of the matrimonial assets; and

whether the Petitioner is entitled to the relief in relation to the said Land as prayed in the Petition. [39] Therefore, I find that the first requirement as per the American Cyanamid test is fulfilled. - Balance of convenience [40] Learned counsels for the Petitioner had again lucidly submitted that based on the factors that this Court may consider in determining where the balance of convenience lies as explained in National Commercial Bank Jamaica Ltd v. Olint Corpn Ltd [2009] 1 WLR 1405 [referred to in Dayatera Roof Systems Sdn Bhd v. Seni Teliti Sdn Bhd 29 [2015] 3 CLJ 940 and Chin Wai Hong & Anor v. Lim Guan Hoe & Anor [2014] 1 LNS 1438, both being the judgments of Wong Kian Kheong JC (as His Lordship then was)], the balance of convenience in this case favors the Petitioner for the following reasons:

the 2nd Respondent had applied to remove the First Caveat. With the withdrawal of the Second Caveat by the Petitioner, the 2nd Respondent would be at liberty to deal with the said Land as she deems fit including taking measures that may jeopardise the Petitioner’s claim as pleaded in the Petition;

any disposition of the said Land before a decision is rendered on the Petition will lead to significant loss and hardship to the Petitioner since the said Land is claimed as a matrimonial asset and the Petitioner’s pleadings in the Petition had raised issues of contribution in kind (by creating a loving and stable home and providing good care of the children) and in monetary terms to the family. Apart from the Petition, the Petitioner in her AIS and AIR in respect of this application had specifically averred that she had expended monies on the said Land; and 30

the granting of the interlocutory injunction will preserve the status quo until the Petition is disposed of by the Court. [41] At page 1409 of the report of the judgment in National Commercial Bank Jamaica Ltd v. Olint Corpn Ltd (supra), the Privy Council held that – “17 In practice, however, it is often hard to tell whether either damages or the cross-undertaking will be an adequate remedy and the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other. This is an assessment in which, as Lord Diplock said in the American Cyanamid case [1975] AC 396, 408: “It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let 31 alone to suggest the relative weight to be attached to them.” 18 Among the matters which the court may take into account are the prejudice which the plaintiff may suffer if no injunction is granted or the defendant may suffer if it is; the likelihood of such prejudice actually occurring; the extent to which it may be compensated by an award of damages or enforcement of the cross-undertaking; the likelihood of either party being able to satisfy such an award; and the likelihood that the injunction will turn out to have been wrongly granted or withheld, that is to say, the court’s opinion of the relative strength of the parties’ cases.”. [emphasis added] [42] I have, in the present case, given consideration to the prejudice that the Petitioner will suffer if this application is dismissed and the said Land is disposed by the 2nd Respondent to a third party. This would effectively extinguish the Petitioner’s claim to a beneficial interest in the said Land as prayed in the Petition. On the other hand, the inconvenience to the 2nd Respondent would be that her rights as a 32 registered proprietor of the said Land is put on hold for the time being. Weighing the averments in the Affidavits filed herein, I find that the factor of maintaining the status quo in the circumstances of this case leans towards the Petitioner. [43] Even taking into account, the probable upshot of the Petition, it is my considered decision that the balance of convenience is in favour of granting the interlocutory injunction. - Whether damages will be an adequate remedy [44] Yet another English case is cited by the Petitioner’s counsels as authority on the governing principles in assessing the adequacy of damages as a remedy is Fellowes & Son v. Fisher [1976] 1 Q.B. [referred to in the judgments in Datuk Syed Kechik and Sivaperuman (supra)]. In their usual approach in the written submissions, counsels have summarised the said principles as follows:

the Court should consider whether, if the applicant succeeds at the trial, he would be adequately compensated by damages for any loss caused by the refusal to grant an interlocutory injunction; 33

if damages would be adequate remedy and the respondent would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the applicant’s claim appeared to be at that stage; and

if, on the other hand, damages would not be an adequate remedy, the Court should then consider whether, if the injunction were granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages. [45] Applying the aforesaid principles to the facts in this case, I agree with the Petitioner’s submission that damages will not be an adequate remedy to compensate the Petitioner’s loss and hardship in the event that the said Land is disposed by the 2nd Respondent to a bona fide third party as this would lead to an extinguishment of the Petitioner’s purported beneficial interest in the said Land. The Petitioner had affirmed in her Affidavits that she had contributed towards the maintenance and upkeep of the said Land and had ensured that all expenses related thereto were met including repayments of the loan taken by the 1st Respondent to prevent foreclosure proceedings from being taken by the Bank. 34 [46] Finally, in relation to section 102 LRA 1976, I am satisfied that the 2nd Respondent’s application to remove the First First Caveat on the said Land is a clear indication that she is exerting her rights as the registered proprietor of the said Land and that there is an intention to dispose the said Land so as to defeat the Petitioner’s claims towards the same. Conclusion [47] In summary, it is my finding that all principles in American Cyanamid and section 102(1)(a)(i) LRA 1976 have been fulfilled and for the above reasons, I ordered that the Petitioner’s application in Enclosure 6 be allowed with costs in the cause. (ALIZA SULAIMAN) JUDICIAL COMMISSIONER HIGH COURT NCvC 1 KUALA LUMPUR Dated: 28 November 2018 35 Counsels: For the Petitioner : Siew Choon Jern (Lim Pit Feng with him) (Douglas Yee Advocates & Solicitors) For the Respondents: Porres P Royan (Kumar Partnership)