NELLY ONG KEOW LIN sebagai Pentadbir dan Benefisiari bagi Harta Pusaka Pusaka Khor Kim Joo, si mati v 1. ) LOW BEE PENG sebagai Pentadbir Harta Pusaka Khor Kiok Seng (290208085305), si mati (AB-22NCvC-16-08/2023)

LOW BEE PENG

KHOR KIM HIANG (NO.KP.: 530502025012) (Kedua-duanya sebagai Pentadbir bagi Harta Pusaka Khor Kiok Seng (290208085305), si mati)

KHOR KIEM TEOH

KHOR KIM HONG (NO. KP.: 550215085969) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT INTRODUCTION [1] The parties will be referred to as they were in the High Court. The Defendants on 25.10.2023 filed an application in Encl. 9 under Order 14A and/or Order 33 r.5 of the Rules of Court 2012 (ROC 2012). This Court 18/07/2024 04:01:40 AB-22NCvC-16-08/2023 Kand. 28 S/N 5aUysyjwEuUNQ9HjWzVjg allowed the application on 29.4.2024 with costs. Dissatisfied with the decision, the Plaintiff filed a Notice of Appeal to the Court of Appeal on 24.5.2024. The Court now gives its reasons for allowing the application in this Grounds of Judgment. BACKGROUND [2] On 25.9.2020, the Plaintiff had filed a civil suit No. AB-22NCvC-15- 09/2020 against the 1st and 2nd Defendants in this suit (hereinafter referred to as Suit No. 1). However, on 14.3.2023, the Plaintiff withdrew the action against them and the Court struck out Suit No. 1 with liberty to refile. The Plaintiff made the decision because there were objections to the Plaintiff’s application to amend the Writ and Statement of Claim in Suit No. 1 to include the names of the 3rd and 4th Defendants in this suit. The Defendants in Suit No. 1 objected to the application on the grounds that the amendments were substantive and would change the character of the suit into another and that the Plaintiff attempted to introduce new causes of action which were not pleaded in its pleadings. [3] Then, on 8.8.2023, the Plaintiff filed the present action against the 4 Defendants named above. Needless to say, the reliefs prayed for in both actions were almost similar. In Suit No. 1, the Court had dismissed the Defendants’ application to strike out the case, amongst others, on the reason that the mere fact that the pleading was “weak and not likely to succeed” was not a ground to strike out a pleading. [4] The Defendants in the application in Encl. 9 made under Order 14A in the present suit had posed the following question of a legal nature to the Court for its determination: S/N 5aUysyjwEuUNQ9HjWzVjg

Bahawa kebenaran diberikan kepada Defendan-Defendan untuk memfailkan permohonan ini;

Bahawa Defendan-Defendan memohon supaya Mahkamah Yang Mulia ini mendengar dan memutuskan persoalan undang-undang berikut tanpa satu perbicaraan penuh ke atas tuntutan yang difailkan oleh Plaintif terhadap Defendan-Defendan ini:-

Sama ada Plaintif mempunyai hak di bawah undang-undang dan/atau locus standi ke atas Harta Pusaka Khor Kiok Seng (Si Mati) untuk memulakan tindakan Plaintif di bawah Writ Saman dan Pernyataan Tuntutan Plaintif yang kedua-duanya bertarikh 08-08-2023 ini terhadap Defendan-Defendan;

Bahawa sekiranya persoalan undang-undang yang tersebut di atas diputuskan oleh Mahkamah memihak kepada pihak Defendan-Defendan maka Defendan-Defendan memohon supaya tuntutan Plaintif di bawah Writ Saman dan Pernyataan Tuntutan Plaintif yang kedua-duanya bertarikh 08- 08-2023 ditolak dengan kos;

Kos adalah diberikan atas dasar kos indemniti; dan

Relif-relif dan/atau perintah-perintah lain yang difikirkan suaimanfaat oleh Mahkamah Yang Mulia ini. [5] The basis for the Defendants’ application in Encl. 9, amongst others, were stated as follows:

Bahawa Plaintif memulakan tindakan ini terhadap Defendan-Defendan mendakwa sebagai Pentadbir dan benefisiari bagi Harta Pusaka Khor Kim Joo (Si Mati).

Bahawa Plaintif memulakan tindakan ini terhadap Defendan-Defendan bagi pihak Khor Kim Joo (Si Mati) yang kononnya merupakan suami kepada Plaintif dan juga menuntut bagi pihak zuriat (“issues”) Khor Kim Joo (Si Mati) tersebut ke atas Harta Pusaka Khor Kiok Seng (Si Mati).

Bahawa melalui satu Perintah Mahkamah Tinggi Taiping yang bertarikh 21-02- 2019, Khor Kim Joo (Si Mati) telah dibatalkan daripada Senarai S/N 5aUysyjwEuUNQ9HjWzVjg Benefisiari-Benefisiari di bawah Surat Kuasa Mentadbir yang bertarikh 12-12-2014 bagi Harta Pusaka Khor Kiok Seng (Si Mati), maka Khor Kim Joo (Si Mati) bukanlah seorang benefisiari di bawah Harta Pusaka Khor Kiok Seng (Si Mati) dan justeru locus standi ke atas Harta Pusaka Khor Kiok Seng (Si Mati) untuk memulakan tindakan ini terhadap Defendan-Defendan dan juga untuk membuat sebarang tuntutan ke atas Harta Pusaka Khor Kiok Seng (Si Mati) sebagai Pentadbir dan benefisiari bagi Harta Pusaka Khor Kim Joo (Si Mati) kerana Khor Kim Joo (Si Mati) bukannya benefisiari dan juga tidak ada sebarang hak di bawah undang-undang ke atas Harta Pusaka Khor Kiok Seng (Si Mati).

Bahawa Plaintif sendiri bukannya seorang benefisiari ke atas Harta Pusaka Khor Kiok Seng (Si Mati).

Bahawa Plaintif juga menuntut hak ke atas Harta Pusaka Khor Kiok Seng (Si Mati) bagi pihak zuriat (“issues”) Khor Kim Joo (Si Mati) dan Defendan-Defendan menegaskan di sini bahawa melalui satu Perintah Mahkamah Tinggi Taiping yang bertarikh 07-11-2019, permohonan zuriat (“issues”) Khor Kim Joo (Si Mati) untuk mencelah sebagai benefisiari ke atas Harta Pusaka Khor Kiok Seng (Si Mati) juga telah dibatalkan dan justeru itu, zuriat (“issues”) Khor Kim Joo (Si Mati) juga bukannya benefisiari di bawah Harta Pusaka Khor Kiok Seng (Si Mati) dan justeru itu, Plaintif tidak mempunyai hak di bawah undang-undang dan/atau locus standi ke atas Harta Pusaka Khor Kiok Seng (Si Mati) untuk bertindak bagi pihak zuriat (“issues”) Khor Kim Joo (Si Mati) dalam memulakan tindakan ini terhadap Defendan-Defendan.

Bahawa tanpa prejudis kepada isu-isu yang telah dibangkitkan di dalam perenggan-perenggan 1 – 5 di atas ini, secara alternatif, Defendan-Defendan menegaskan bahawa Plaintif juga gagal membuktikan bahawa Plaintif adalah isteri yang sah kepada Khor Kim Joo (Si Mati), Plaintif sama sekali gagal memplidkan di dalam Pernyataan Tuntutan Plaintif dan/atau membuat rujukan khusus kepada dokumen-dokumen tertentu untuk membuktikan bahawa Plaintif adalah isteri yang sah kepada Khor Kim Joo (Si Mati) dan kini Plaintif adalah dihalang daripada mengemukakan sebarang bukti kerana pada setiap masa material, S/N 5aUysyjwEuUNQ9HjWzVjg Plaintif adalah tertakluk kepada empat penjuru Pernyataan Tuntutan Plaintif. CAUSE PAPERS [6] The cause papers for this application were as follows: a. the Plaintiff's Writ of Summons and Statement of Claim dated 8.8.2023 (Encl. 1 and Encl. 2); b. the Defendants' Defence dated 11.9.2023 (Encl. 5); c. the Plaintiff’s Reply to Defence dated 26.9.2023 (Encl. 6); d. the Defendants’ Reply to the Plaintiff’s Reply to Defence dated 11.10.2023 (Encl. 7); e. the Plaintiff’s Reply to the Defendants’ Reply to the Plaintiff’s Reply to Defence dated 25.10.2023 (Encl. 8); f. the Defendants’ Notice of Application dated 25.10.2023 (Encl. 9); g. the Defendants' Affidavit in Support affirmed by Low Bee Peng on 6.11.2023 (Encl. 10); h. the Plaintiff’s Affidavit in Reply affirmed by Nelly Ong Keow Lin on 22.11.2023 (Encl. 11); i. the Defendants’ Affidavit in Opposition affirmed by Low Bee Peng on 6.12.2023 (Encl. 12); and j. the corrective Affidavit to Encl. 11 duly affirmed by Nur Zammira Idliyana Binti Zamzurin on 12.12.2023 (Encl. 13). [7] Encl. 13 was an Afidavit Pembetulan affirmed by a clerk of the Plaintiff’s solicitors’ firm who attached the “Exhibit NOKL-1” to Encl. which should have been “Exhibit A” in Encl. 13. S/N 5aUysyjwEuUNQ9HjWzVjg FACTUAL MATRIX [8] The Plaintiff’s pleaded case was that she was the legitimate wife as well as Administrator and Beneficiary of the late Khor Kim Joo, who passed away on 13.9.2011 intestate. The couple had two children (“the Issues”), namely Khor Chea Liang and Khor Chea Wei. Her late husband was the son and allegedly beneficiary of Khor Kiok Seng, deceased. The Plaintiff’s “father-in-law” will be referred to as “the Deceased”. [9] The Deceased passed away on 30.7.2013, also intestate. The Deceased was survived by his lawful wife, the 1st Defendant, and his other 3 children, namely the 2nd, 3rd and 4th Defendants. [10] On 6.2.2014, the Plaintiff obtained the Letter of Administration in respect of her late husband’s estate and which was issued on 5.3.2014 by the High Court in Penang. Subsequently, on 12.12.2014, the Deceased’s wife and her eldest son, the 2nd Defendant, obtained the Letter of Administration from the High Court in Taiping in respect of the Deceased’s estate and which was issued on 27.1.2015 (“the Deceased’s Letter of Administration”). [11] Part of the Deceased’s estate was 40/100 of the property formerly known as “Grant for Land (Surat Putus Besar) 62667, Portion No. 2173, Mukim of Gurun, District Kuala Muda” (“the Property”) in Kedah Darul Aman. The Property was estimated at RM2,000,000.00 when the Deceased’s Letter of Administration was granted to the 1st and 2nd Defendants. After a land acquisition by the Government for construction of a highway, the Property was split into 2 separate lots known as:- S/N 5aUysyjwEuUNQ9HjWzVjg i. Lot No. 70411, Mukim Gurun, Daerah Kuala Muda, Negeri Kedah under Hakmilik No. GRN 218819 (“Lot 70411”) registered to and apportioned as follows (Exhibit NOKL-5”):

Khor Kiem Teoh (3/20 bahagian);

Khor Kiem Teoh (1/2 bahagian);

Khor Kim Hiang (2/20 bahagian);

Khor Kim Hong (2/20 bahagian);

Low Bee Peng (3/20 bahagian). ii. Lot No. 70412, Mukim Gurun, Daerah Kuala Muda, Negeri Kedah under Hakmilik No. GRN 218820 (“Lot 70412”) registered to and apportioned as follows (Exhibit NOKL-4”):

Khor Kiem Teoh (3/20 bahagian);

Khor Kiem Teoh (2/20 bahagian);

Khor Kiem Teoh (3/20 bahagian);

Khor Kim Hiang (2/20 bahagian);

Khor Kim Hong (2/20 bahagian);

Low Bee Peng (3/20 bahagian). [12] The Plaintiff claimed that she and the Issues were entitled to the Deceased’s estate i.e. the Property by virtue of the fact that they were beneficiaries of her late husband’s estate. However, her late husband’s name was left out of the list of beneficiaries in the Deceased’s Letter of Administration dated 12.12.2014. Therefore, she sought the following reliefs from the Court: i. a declaration that the Deceased’s Letter of Administration obtained from the High Court in Taiping via Petition No. S/N 5aUysyjwEuUNQ9HjWzVjg 31NCVC-52-09/2014 was null and void in accordance with the law and ought to be revoked; ii. the names of the Defendants as registered proprietor on the Property (Lots. 70411 and 70412) be struck off and for the reinstatement of the Deceased’s name as the registered proprietor of the Property; iii. a declaration that her late husband’s Issues were entitled to a portion of the Deceased’s estate in which the late Khor Kim Joo had a share by virtue of the fact that he was the lawful son of the Deceased; iv. the Deceased’s other assets to be distributed in accordance with the Distribution Act 1958 in order to give effect to the rights of the late Khor Kim Joo; v. if there were other assets of the Deceased that had been distributed, those assets must revert to the estate and the status quo maintained pending distribution as per prayer (iv); vi. the parties’ rights were to be restored; vii. consequential orders; viii. costs of this action to be borne by the Deceased’s estate; and ix. other reliefs deemed fit by the Court. [13] The Defendants’ position had always been consistent since Suit No. 1 that the Plaintiff had no locus standi to bring the action because her late husband’s name was removed from the list of beneficiaries vide Order dated 21.2.2019. The Plaintiff commenced the action not in her personal capacity since she was not a beneficiary under the estate of the Deceased; she commenced the suit in her capacity as administrator and beneficiary of her husband's estate. Again, the same situation recurred because the late Khor Kim Joo’s name had been removed from the list of S/N 5aUysyjwEuUNQ9HjWzVjg beneficiaries of the Deceased’s estate. Hence, it was a fit and proper case for an application under Order 14A. The Defendants exhibited all submissions filed by the parties in Petition No. 31NCVC-52-09/2014 to show that the matter had been fully ventilated by the parties when the application was made by the Issues to intervene in the earlier proceedings. Hence, the doctrine of res judicata applied. Paragraph 11 of the Schedule under Section 25(2) of the Courts of Judicature Act 1964 provides for the power conferred to High Courts as follows:

Res judicata Power to dismiss or stay proceedings where the matter in question is res judicata between the parties, or where by reason of multiplicity of proceedings in any court or courts the proceedings ought not to be continued. [14] These material facts had been established and with the 2 Court Orders still standing, the only way to set them aside was by appealing to the Court of Appeal, which the Plaintiff failed to do. In their reply, the Plaintiff claimed that the case laws cited by the Defendants were not in regard to the question of issues and that the question of “issues” (zuriat) was not decided in the 2 earlier applications. It was submitted that even though the name of the late Khor Kim Joo had been removed, it did not mean that he had no more rights after he pre-deceased his father because had he been alive he would claim as siblings with the other Defendants (2, 3 and 4). The Plaintiff argued that the law provided that his children will be entitled to take his share since the fact he had been removed as a beneficiary did not affect the status and interests of the Issues. The Plaintiff submitted on 2 conflicting decisions (in respect of an issue’s application to intervene) of the Court of Appeal in the case of Pulogasingam A/L K Veerasingam v Paralogavathy A/P Veerasingam (Civil Appeal No. A-02(NCVC)(W)-536-03/2018 decided on 12.9.2018 which upheld the Ipoh High Court decision (but there was no written S/N 5aUysyjwEuUNQ9HjWzVjg grounds of judgment) and in the later case of Gan Cheng Khuan v Gan Cheng Khuan & Ors [2018] MLRAU 1. Following the decision in the case of Dalip Bhagwan Singh v PP [1997] 4 CLJ 645, this Court is more inclined to follow the decision in Gan Cheng Khuan’s Case (supra). EVALUATION AND FINDINGS BY THE COURT [15] The provision of Order 14A reads: “Determination of question of law or construction (O14A r1)

The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that-

such question is suitable for determination without the full trial of the action; and

such determination will finally determine the entire cause or matter or any claim or issue therein.

On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.”. [16] In the Malaysian Civil Procedure 2021, Volume 1 at page 152, it laid out that an application under Order 14A must meet the following requirements:

the defendant has entered appearance (r 1(3));

the question of law or construction is suitable for determination without a full trial of the action (r 1(1)(a));

such determination will be final to the entire cause or matter or any claim or issue therein (r 1(1)(b)); and

the parties had an opportunity of being heard on the question of law (r 1(3)). S/N 5aUysyjwEuUNQ9HjWzVjg [17] What is a suitable question of law? A suitable question of law was considered in the case of Petroleum Nasional Bhd v Kerajaan Negeri Terengganu (and Another Appeal) [2003] 5 AMR 696; [2004] 1 MLJ 8; [2003] 4 CLJ 337, CA. The Court of Appeal referred to an English case in Korso Establishment Anstalt v John Wedge (unreported; February 15, 1994; Transcript No. 14/387, CA) which laid down the following principles on an application made under Order 14A as follows:

an issue is “a disputed point of fact or law relied on by way of claim or defence”;

a question of construction is well capable of constituting an issue;

if a question of construction will finally determine whether an important issue is suitable for determination under Order 14A and whether it is a dominant feature of the case a court ought to proceed to so determine such issue; and

respondents to an application under Order 14A are not entitled to contend they should be allowed to hunt around for evidence or something that might turn up on discovery which could be relied upon to explain or modify the meaning of the relevant document. If there were material circumstances of which the court should take account in construing the document, they must be taken to have been known, and could only be such as were known, to the parties when the agreement was made. In the absence of such evidence the court should not refrain from dealing with the application. [18] When the Court is faced with an Order 14A application, it will peruse the pleadings and affidavits to determine the point of law that has been S/N 5aUysyjwEuUNQ9HjWzVjg raised by the applicant. The facts disclosed by the pleadings and affidavit evidence must be sufficient for the court to make such determination; Yuda Water Sdn Bhd v State Government of Sabah [2020] AMEJ 0654; [2020] 1 LNS 832. It is trite law that the outcome of an application under Order 14A does not need to dispose of the entire case. It is sufficient if substantial matters in the case can be disposed of: Petroleum Nasional Case (supra). It is also established law that an application under Order 14A is inappropriate if (refer to Malaysian Civil Procedure 2021, Volume 1 at pages 152-153):

there are conflicting allegations of fact: Dayapi Holdings Sdn. Bhd.& Anor v. Arab Malaysian Finance Bhd & Anor [2009] 7 MLJ 627

the issues of fact are interwoven with legal issues raised. The court will not split the legal and factual determination for to do so would in effect be to give rulings in vacuo or on a hypothetical ruling: Thein Hong Teck & 4 Ors v Mohd Afrizan bin Husain and another appeal [2012] 1 AMR 489; [2012] 2 MLJ 299, FC

based on hypothetical facts: Kerajaan Negeri Kelantan v Petroliam Nasional Bhd and other appeals [2014] 5 AMR 285; [2014] 6 MLJ 31; [2014] 7 CLJ 597, FC; Thein Hong Teck’s Case (supra). [19] Where there are disputed facts, the court has the discretion to determine the preliminary issues and questions on materials that appear from the pleadings or from documents referred to in the pleadings. The court should alternatively consider whether based on undisputed facts available before it, the court might decide the core or primary issues If the court is able to do so, then the court should frame additional questions or S/N 5aUysyjwEuUNQ9HjWzVjg omit or amend the questions that have already been framed. If not, the court should then consider whether any question or issue of fact should be tried first, even such a procedure would result in a split trial: Petroleum Nasional Case (supra) (refer to Malaysian Civil Procedure 2021 page 154). [20] In Dayapi Holdings’s Case (supra), the Court held that an Order 14A application may only be invoked at an early stage of the proceeding. The procedure cannot be invoked at a very late stage of the proceedings. In the present case, the case was ready to proceed to trial. PTCM directions have been given and complied with. [21] In resisting the application, the Plaintiff must argue that the application do not fulfill the test in Order 14A r.(1)(a) and (b). The test is as follows:

such question is suitable for determination without the full trial of the action; and

such determination will finally determine the entire cause or matter or any claim or issue therein. [22] Upon scrutinizing the pleadings and affidavits filed, the Court concluded that the material facts were not in dispute as laid out in the Factual Matrix above (refer to Dream Property Sdn.Bhd. v. Atlas Housing Sdn. Bhd [2007] 6 CLJ 741) and Savant-Asia Sdn.Bhd . v. Sunway PMI-Pile Construction Sdn.Bhd. [2007] 7MLJ 706). It was noted that the Plaintiff did not object to the application by stating in the affidavits that there were too many factual issues in dispute and that a trial was necessary. The Plaintiff did not exhibit any proof of her marriage to S/N 5aUysyjwEuUNQ9HjWzVjg the late Khor Kim Joo and neither did she plead in the Statement of Claim about how they were married (registered or ceremonial marriage). [23] To answer these 2 questions, I refer to the Exhibit LBP-2 in Encl. where upon cross-referring to the Exhibit NOKL-1 in Encl. 11, the list of beneficiaries names in the Letter of Administration were the names of the Plaintiff and her issues following the Deceased’s Letter of Administration. This was a bit confusing which the Affidavit in Encl. 13 was aimed to correct the mistake. There were 2 different case numbers i.e. one in the High Court in Penang bearing Originating Summons No. 31NCVC-347- 11/2013 (“the late Khor Kim Joo’s Letter of Adminsitration”) and in the High Court in Taiping Petition No. 31NCVC-52-09/2014 (“the Deceased’s Letter of Administration”). I noted that the List of Assets in the late Khor Kim Joo’s Letter of Administration did not list their own house in Taman Sg Nibong Tebal but only the disputed Property and another property in Sg. Petani, Kedah. [24] The Court found that the Plaintiff did not deny that there existed a Court Order dated 21.2.2019 (refer to Exhibit LBP-1 in Encl. 10) where the name of the late Khor Kim Joo had been struck off the list of names of beneficiaries of the Deceased’s estate. The order had been in existence since 2019 and had never been applied to be set aside by the Plaintiff until the Suit No. 1. This was admitted by the Plaintiff. The Court found that the Plaintiff’s name was not a beneficiary listed in the Deceased’s Letter of Administration 12.12.2014, and this was not a disputed fact. [25] The Court Order dated 7.11.2019 as per Exhibit LBP-3 in Encl. was an Order of the High Court in Taiping which dismisssed with costs, the said issues of the Plaintifff’s application dated 19.11.2018 to be S/N 5aUysyjwEuUNQ9HjWzVjg allowed to intervene in the proceedings in Petition No.31NCVC-52- 09/2014. It is noted that this Order had not been set aside by the Court. [26] Later, an Order of the High Court of Taiping dated 23.10.2020 (Exhibit LBP-6 of Encl. 12) had allowed the distribution of the Deceased’s estate to the Defendants named in the list of beneficiaries (pursuant to amendment of the list after Khor Kim Joo’s name was removed via Court Order 21.2.2019) and this Order too still existed and had never been set aside. [27] The Plaintiff alleged that the Court Orders dated 7.11.2019 and 21.2.2019 were null and void because the Defendants had deceived the Court by presenting it with untrue facts whereas the relevant s.7 under the Distribution Act 1958 was clear proof that the late Khor Kim Joo’s heirs had inherited his share in the Deceased’s estate. Nevertheless, the Plaintiff then had been represented by a senior counsel and extensive submissions had been made in support of her case with regard to the Issues as beneficiaries of their late father’s estate (refer to Tabs A – J of Encl. 18). [28] The relevant provision of the law is s.6(1) of the Distribution Act 1958 as follows:

“Succession to intestate estates

After the commencement of this Act, if any person shall die intestate as to any property to which he is beneficially entitled for an interest which does not cease on his death, such property or the proceeds thereof after payment thereout of the expenses of due administration shall, subject to the provisions of section 4, be distributed in the manner or be held on the trusts mentioned in this section, namely— … S/N 5aUysyjwEuUNQ9HjWzVjg

if an intestate dies leaving a spouse and issue but no parent or parents, the surviving spouse shall be entitled to one-third of the estate and the issue the remaining twothirds; …

subject to the rights of a surviving spouse or a parent or parents, as the case may be, the estate of an intestate who leaves issue shall be held on the trusts set out in section 7 for the issue; …” [29] The Plaintiff submitted that s. 7 of the Distribution Act applied in this case and rejected the Defendants’ contention that the application could be disposed of upon the determination of the issue of law under s.6(1)(e) of the Act. The provisions of s. 7 are in relation to trusts which arise from the application of s.6(1)(h) as follows:

“Trusts in favour of issue and other classes of relatives of intestate

Where under the provisions of section 6, the estate of an intestate or any part thereof is directed to be held on the trusts set out in this section for the issue of the intestate, the same shall be held in trust in equal shares if more than one for all or any of the children or child of the intestate living at the death of the intestate, who attain the age of majority or marry under that age, and for all or any of the issue living at the death of the intestate, who attain the age of majority or marry under that age, of any child of the intestate who predeceases the intestate, such issue to take through all degrees according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that no issue shall take whose parent is still living at the death of the intestate and so capable of taking.

Where under section 6 the estate of an intestate or any part thereof is directed to be held on the trusts set out in this section for any class of relatives of the deceased other than issue of the intestate, the same shall be held on trusts corresponding to the trusts set out in subsection (1) of this section for the issue of the intestate as if such trusts were repeated with the substitution of references to the members or member of that class for references to the children or child of the intestate. ...”. [30] Having considered the parties’ submissions, I am of the view that the relevant section is as submitted by the Defendants i.e. s. 6(1)(e) of the Distribution Act. It was very clear that there was no dispute the Plaintiff’s S/N 5aUysyjwEuUNQ9HjWzVjg husband (apparently they were married in a ceremonial marriage) had pre-deceased his father. I had distinguished the cases referred to by the Plaintiff in Pulogasingam A/L K Veerasingam’s Case (supra) and Kamalah Devi A/P Mukan v Amakumar A/L G. Sumarian & 2 Ors [2020] 1 LNS 1449. In the second case above, s.6(1)(c) is relied on which states that if an intestate dies leaving issue but no spouse and no parent or parents, the surviving issue shall be entitled to the whole of the estate. This is obviously different from the present case which relied on s.6(1)(e) as there are the Issues, a spouse and a parent of the late Khor Kim Joo who survived him. Therefore, I agreed with the Defendants that the Plaintiff did not have locus standi to bring this action against the estate of the Deceased since the late Khor Kim Joo’s mother had survived him and s.6(1)(e) applied. [31] The Court, upon perusal of the pleadings of the parties, did not find that there were issues to be ventilated in a full trial. Additionally, a perusal of the SOCs in Suit No. 1 and the present suit showed that there were many similarities wherein the facts of the case had actually been ventilated during the Issues’ application to intervene in the Petition No.31NCVC-52-09/2014. The Defendants submitted this action was an abuse of the court process, hence the Plaintiff’s claim must be dismissed. [32] On the issue of res judicata, I refer to the case of Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 2 CLJ 321 where the Court of Appeal discussed the doctrine of constructive res judicata as follows: “The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. S/N 5aUysyjwEuUNQ9HjWzVjg The doctrine may thus be seen to encompass several categories. In its narrowest sense, res judicata, I think, refers to estoppel by record. It refers to the actual decision the earlier action or proceeding. In its wider sense, it encompasses issues, and causes of action that could justly and fairly have been equally adjudicated in the earlier suit or proceeding. This wider operation of the doctrine is sometimes referred to "constructive res judicata". It houses the twin concepts of issue estoppel and cause of action estoppel. Like the tree of which they form the branches, they are designed to ensure that there is finality in litigation. [Emphasis added] [33] In the case of Ng Boon Teik v Chang Tong Lee & Anor [2022] MLJU 1763, the learned Judicial Commissioner discussed the doctrine of res judicata. The Court stated: “[28] This court agrees with the Learned Counsel for the D1 that the Plaintiff is precluded from proceeding with the trial of the matter herein under the doctrines of abuse of process and estoppel. In the case of KERAJAAN MALAYSIA V MAT SHUHAIMI SHAFIEI [2018] 3 CLJ 1, The Federal Court held that the said doctrines are founded on the consideration of public policy that is in the public interest to have finality in litigation as no one should be vexed twice for the same subject matter or complaint. The Court held that: [19] The Latin term “res judicata “literally translated means ‘matter adjudged’. The full maxim is res judicata pro veritate accipitur which means ‘a matter adjudged is taken as truth’. In explaining what is res judicata, in Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189, the Supreme Court said: What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. Since a res judicata S/N 5aUysyjwEuUNQ9HjWzVjg creates an estoppel per rem judicatum, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic way as estoppel by record. Since the two doctrine are the same, it is no longer of any practical importance to say the res judicata is a rule of procedure and that an estoppel per rem judicatum is that of evidence. Such dichotomy is apt to give rise to confusion….” [Emphasis added] [34] Coming back to the test in Order 14A, I had answered the question posed by the Defendants in Encl. 9 that the Plaintiff did not have locus standi to bring the Writ action against the Defendants. This Court opines that such question is suitable for determination without the full trial of the action and such determination will finally determine the entire cause or matter or any claim or issue therein. Unfortunately, I could not agree with the Plaintiff’s submissions, and the effect of the question posed to the Court under Order 14A which was answered in the negative, was that the Plaintiff’s claim was disposed without a full trial. CONCLUSION [35] Premised upon the above considerations, the Court allowed the application in Enclosure 9 with costs. Dated 17 July 2024 Sgd. Noor Ruwena Binti Md. Nurdin Judicial Commissioner High Court of Malaya, Taiping S/N 5aUysyjwEuUNQ9HjWzVjg For the Plaintiff: Mr. Yeap Chin Pho Messrs. Geh Cheng Lok, C.P.Yeap & Co., Georgetown For the Defendants: Mr. Sridharan Krishnan & Ms. Chee Chin Yen Messrs. Dharan & Co., Penang S/N 5aUysyjwEuUNQ9HjWzVjg