Ng Sin Chai v 1. Ng Ah Bee (24-163-02/2015)

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ENG DIAN @ NG CHIN POI ... DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 1) A. BACKGROUND FACTS [1] The issue for determination in the present Originating Summons is a simple one. Ng Sing Chai (“Plaintiff”) together with Ng Ah Bee and Ng Chin Poi (“Defendants”) are siblings. The Plaintiff and the Defendant are also joint-holders of savings accounts in Standard Chartered Bank Malaysia Berhad consisting of accounts number (collectively referred to as “Bank Accounts”): 2 i. 708-3-5677136-3 ii. 708-3-5677142-8 iii. 708-3-5677146-0 iv. 708-3-5677150-9 v. 708-3-5677154-1 vi. 708-3-5677206-8 vii. 708-3-5677210-6 viii. 708-3-5677214-9 [2] Notwithstanding that the Plaintiff and the Defendants are the joint-holders of the Bank Accounts, it remains undisputed that the monies in the Bank Accounts were solely contributed by the Plaintiff and the Defendants’ late mother, Ong Siew Gem (“OSG”). It was averred by the Defendants and was never refuted by the Plaintiff that the Bank Accounts were maintained solely for the convenience of caretaking and upkeep of OSG after she suffered a stroke. [3] The Plaintiff’s case is that the Plaintiff remains as the beneficial owner of 1/3 shares of the monies in the Bank Account while the Defendants are the beneficial owners of 2/3 of the monies in the Bank Account. Simply put, the Plaintiff’s case largely is that the 3 monies in the Bank Account are inter-vivos gifts by the late mother for the benefit of the Plaintiff and Defendants after her demise. Hence, the Plaintiff seeks a declaration that he is entitled to 1/3 shares of the monies in the Bank Account and orders that 1/3 shares of the monies in the Bank Accounts be liquidated and be paid to the Plaintiff while the 2/3 balance be maintained in the name of the Defendants of which the Plaintiff no longer has claim over. B. WHETHER THE BANK ACCOUNTS ARE INTER-VIVOS GIFTS [4] This Court must highlight that the Plaintiff in his case had made blank suppositions without any reference to any law or precedents. The entirety of the Plaintiff’s submission is a baseless supposition of the Plaintiff’s own sentiments with no reference to any law or precedents. The Plaintiff had not exhibited any evidence to support the supposition that the late OSG had intended the Bank Accounts to be inter-vivos gifts. In fact, it was admitted that the Plaintiff and the Defendants had never contributed monies of any amount to the Bank Accounts. 4 [5] This Court finds that the Bank Accounts were not inter-vivos gifts in consideration of the plain and simple facts that: i. It remains undisputed that the monies in the Bank Accounts were maintained under the names of the Plaintiff and the Defendants for the convenience, benefit of caretaking and upkeep of the late OSG who had suffered a stroke; and ii. It remains undisputed that the monies in the Bank Accounts were solely contributed by the late OSG herself without any contributions by the Plaintiff and the Defendants. [6] It is legally impossible for this Court to deem the Bank Accounts to be gifts when the parties are in agreement that the Bank Accounts were maintained only for the sole purpose of caretaking OSG who is of ill-health and was unable to care for herself on her own. This fact was never disputed and was never averred against in the Plaintiff’s own Affidavits. Furthermore, the Plaintiff had not exhibited any evidence to proof the late OSG’s intent that the Bank Accounts be given as gifts. 5 [7] This Court finds valuable guidance in the English case of Marshall v Crutwell [1870] 20 LR Eq. 328 at pages 330 to 331. Sir G. Jessel, M.R, had dealt with a case verily similar to the present Originating Summons. There, a widow claims that monies held in joint-account with her late husband were gifts for her benefit upon her husband’s death. Nonetheless, in disagreeing with the contention, the Court had held that the existence of a trust or a gift would by and large depend on the circumstances of a case. If the surrounding circumstances indicate that the accounts were not gifts, then the Court cannot deem the accounts to be gifts: “As I understand, the law is this: The mere circumstance that the name of a child or a wife is inserted on the occasion of a purchase of stock is not sufficient to rebut a resulting trust in favour of the purchaser if the surrounding circumstances lead to the conclusion that a trust was intended. Although a purchase in the name of a wife or a child, if altogether unexplained, will be deemed a gift, yet you may take surrounding circumstances into consideration, so as to say that it is a trust, not a gift. … 6 But here we have the actual fact, that the man was in such a state of health that he could not draw cheques, and the wife drew them. Looking at the fact that subsequent sums are paid in from time to time, and taking into view all the circumstances (as I understand I am bound to do), as a juryman, I think circumstances shew that this was a mere arrangement for convenience, and that it was not intended to be a provision for the wife in the event which might happen, that at the husband’s death there might be a fund standing to the credit of the banking account. I take into account the circumstance that the wife could draw upon the fund in the husband’s lifetime, so that it would not necessarily be a provision for her after his death… having regard to the rule which is now binding on me, that I must infer from the surrounding circumstances what the nature of the transaction was, I come to the conclusion that it was not intended to be a provision for the wife, but simply a mode of conveniently managing the testator’s affairs, and that it leaves the money therefore still his property.” 7 [8] The principle above falls squarely on the present Originating Summons. It remains undisputed and admitted that the Bank Accounts were maintained for the sake of caretaking the sickly late OSG as she was unable to care for herself on her own. Thus, it is resoundingly clear that the monies in the Bank Accounts were never intended to be gifts to the Plaintiff or the Defendants and had always been intended to remain as the late OSG’s property (now her estate) C. WHETHER THE MONIES IN THE BANK ACCOUNTS IS HELD ON TRUST FOR THE LATE OSG’S ESTATE AND SHOULD BE DISTRIBUTED UNDER HER ESTATE [9] Naturally entailing the finding above, this Court finds that the Bank Account is held on trust for the benefit of late OSG’s estate. Accordingly, the monies in the Bank Account should be included in the late OSG’s estate to be properly distributed vide a probate action according to the law. [10] Thus, the Plaintiff would have sufficient remedy in the probate action to ensure that he would receive the appropriate shares under the estate. Clearly then, this Court should not allow the 8 declaratory reliefs sought by the Plaintiff as an adequate alternative remedy is readily available for the Plaintiff. (See: i. Sakapp Commodities (M) Sdn Bhd v Cecil Abraham (Executor of the Estate of Loo Cheng Ghee) [1998] 4 MLJ 651: “It is beyond dispute that the remedy of declaration is discretionary in nature. Section 41 of the Specific Relief Act 1950 reads as follows: Any person entitled to any legal character, to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so. Explanation — A trustee of property is a 'person interested to deny' a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.' (Emphasis added.) 9 Although s 41 is not a complete code upon the subject of declaratory decrees (Attorney General of Hong Kong v Zauyah Wan Chik & Ors and another appeal [1995] 2 MLJ 620) and the power to make a declaration is almost unlimited (Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at p 507 per Lord Sterndale MR), yet, the remedy of declaration may be refused upon settled principles. Thus, generally speaking, the court will not grant a declaratory judgment where an adequate alternative remedy is available (Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41).” ii. Lokmanal Hakim Ramli & Ors v. Hj. Ismail Ishak & Ors [1992] 2 CLJ (Rep) 795, “In this case the matters complained of relate to a small estate which under the Act are within the exclusive original jurisdiction of the Collector; the plaintiffs should under s.29(1) of the Act have appealed against both orders of the Collector made on 22 February 1987, the order made under s.13 relating to the distribution of the property and the other order made under s. 14 relating to the colleteral dispute. I am not unmindful of the Supreme Court case of Development and Commercial Bank Bhd. v. Land Administrator, Wilayah Persekutuan [1991] 2 MLJ 181 on the availability of the remedy available to him to redress a grievance he has against a decision or order of an authority constituted under a statute. The Plaintiffs in this case are indeed applying, inter alia, for a declaration that the defendants had renounced their beneficial share in the property of deceased Ishak and for a consequential order to set aside the Collector’s order of distribution. 10

However, all the plaintiffs being aggrieved parties within the meaning of 29(1) of the Act they had a right of appeal and they should have appeal and they should have appealed under s. 29(1) and the remedy of declaration is not open to them.” iii. Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41, “It is well settled law that the court will not make a declaratory judgment where an adequate alternative remedy is available (see Halsbury's Laws of England, 3rd edition, volume 22, page 749, paragraph 1611). To quote but a few authorities in support of that proposition, Lord Herschell said in Barraclough v Brown: "It was argued for the appellant that, even if not entitled to recover the expenses by action in the High Court, he was, at all events, entitled to come to that court for a declaration that on the true interpretation of the statute he had a right to recover them. It might be enough to say that no such case was made by the appellant's claim. But, apart from this, I think it would be very mischievous to hold that when a party is compelled by statute to resort to an inferior court he can come first to the High Court to have his right to recover – the very matter relegated to the inferior court – determined. Such a proposition was not supported by authority, and is, I think, unsound in principle." In Pasmore v The Oswaldtwistle Urban District Council Earl of Halsbury L.C. said: 11 "… The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law." In the more recent case of Wilkinson v Barking Corporation Asquith L.J. said: "… It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not to others." [11] The notion that the Defendants are clinging onto the “Survivorship Clause” to gain a bigger share (in anticipation of the Plaintiff’s death) is plainly misconceived. The Defendants never stood in any position to claim 2/3 shares of the Bank Accounts to begin with. Even should the Plaintiff meet his demise, the Defendants cannot simply split the Bank Accounts to 1/2 shares each. The monies in the Bank Accounts would inevitably be sourced back on trust to the late OSG’s estate and accordingly be distributed by a probate Court to all of the late OSG’s successors. 12

[12] In view of all of the findings, it is this Court’s decision that the Plaintiff has ultimately failed to prove his case. [13] This Court accordingly dismisses the Plaintiff’s Originating Summons. This Court hereby orders that the Plaintiff to pay both the Defendants a global costs of RM5000.00. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 15th December 2016 For the Plaintiff - Messrs Abu Hassan & Associates Loo Chay Meng For the Defendants - Messrs Lovelace & Hastings Steven Pung