Rockwills Trustee Berhad v Cimb Bank Berhad (WA-24NCvC-5464-11/2025)

The Plaintiff is a trust company registered under the Trust Companies Act 1949 ("TCA 1949") while the Defendant is a bank registered under the Financial Services Act 2013 ("FSA 2013").

By way of this Originating Summons ("OS'"), the Plaintiff seeks against the Defendant for, inter alia:

(a) a declaration that the Powers of Attorney ("PAs") executed by the respective settlors/donors in favour of the Plaintiff are valid and irrevocable, notwithstanding the deaths of the settlors/donors;

(b) an order that the Defendant transmit all monies held in the settlors'/donors' banking accounts to the Plaintiff as trustee and attorney; and

(c) an order that the Defendant provide statements of accounts from the dates of demise of the donors until the date all monies are transferred, and confirmation of closure of the accounts upon full transfer.

Having heard all the evidence and the arguments by both parties, I have decided to allow the OS based on the following reasons.

The Plaintiff was appointed as substitute trustee by four sets of settlors pursuant to their respective deeds of trust ("Trust Deeds") as follows: No.SettlorsTrust Deed1Ee Ah Eng @ Ee Meng Siong and Chan Hung Hoo @ Chan HowEe Family Declaration of Trust2Ee Yew ChuanEe Yew Chuan Family Trust3Lee Soo Hoon and Tan Phaik KinLee Soo Hoon Family Trust4Lim Keng WahLim Keng Wah Family Trust

To enable the Plaintiff to carry out its duties as substitute trustee, the settlors executed Pas appointing the Plaintiff as their attorney. Each PA was duly registered at the High Court.

Under each Trust Deed, the settlors first appointed themselves as the main trustees, with the Plaintiff designated as the substitute trustee who would take over administration of the respective trusts upon the occurrence of a triggering event, which includes the demise of the settlors.

All settlors are now deceased, save for Tan Phaik Kin (one of the joint settlors of the Lee Soo Hoon Family Trust), who remains alive. The dates of their demise are as follows: No.SettlorDate of Death1Ee Ah Eng @ Ee Meng Siong11.06.20232Chan Hung Hoo @ Chan How09.03.20233Ee Yew Chuan20.07.20244Lee Soo Hoon23.04.20245Lim Keng Wah02.07.2023

In the Trust Deeds under Schedule 1, the settlors identified their monies in banking accounts kept with the Defendant as trust assets. Following the triggering events, the Plaintiff wrote to the Defendant on separate occasions, requesting the release of all monies in the settlors' bank accounts, together with statements and confirmation of the account closures.

The Defendant refused to comply, insisting that the Plaintiff produce grants of representation for the respective estates. The Defendant further contended that the PAs ceased to be valid upon the settlors' deaths, as the Plaintiff is not a "purchaser" within the meaning of the Powers of Attorney Act 1949 (PAA 1949). This impasse led to the commencement of the present proceedings.

The following issues arise for determination:

(a) Preliminary objection: Whether the Plaintiff ought to have commenced this proceeding as a representative action under Order 15 Rule 12 of the Rules of Court 2012 ("ROC 2012"), or whether separate proceedings were required for each Trust Deed and PA.

(b) Validity of PAs: Whether the PAs remain valid and irrevocable after the death of the settlors/donors, having regard to ss 5, 6, and 7 PAA 1949 and common law principles.

(c) Joint accounts: Whether the Plaintiff is entitled to the monies held in joint accounts, specifically (i) the account of Ee Ah Eng (deceased) and Chan Hung Hoo (deceased), and (ii) the account of Lee Soo Hoon (deceased) and Tan Phaik Kin (alive).

(d) Grants of representation: Whether the Defendant is entitled to insist on the production of grants of representation before releasing the monies.

(e) Banking secrecy: Whether the Defendant is entitled to rely on s 133 FSA 2013 to refuse disclosure of the settlors' account information to the Plaintiff. D. PRELIMINARY OBJECTION

The Defendant raised two limbs of preliminary objection. First, it contended that the Plaintiff ought to have commenced this proceeding as a representative action under Order 15 rule 12 ROC 2012, given that the outcome may have implications beyond the immediate parties. Second, it argued that if this is not a representative action, the Plaintiff should have commenced separate proceedings for each Trust Deed and PA.

I find no merit in either limb.

On the first limb, Order 15 rule 12 ROC 2012 requires that "numerous persons have the same interest" before a representative action may be brought. Here, the Plaintiff is the sole aggrieved party affected by the Defendant's refusal. There is no identified class of persons sharing the same interest that the Plaintiff could represent. The Plaintiff is suing in its own capacity as the donee of the PAs and as substitute trustee under the Trust Deeds. The fact that the decision in this case may have persuasive value for future disputes does not transform it into a representative action, as every judicial decision forms part of the broader corpus of precedent.

On the second limb, it is well established that cases involving the same parties and the same factual and legal issues ought to be heard together to avoid multiplicity of proceedings, increased costs, and the risk of inconsistent judgments. I am reminded by the judgment of the Court of Appeal in Jaya Sudhir Jayaram v. Nautical Supreme Sdn Bhd [2019] 6 CLJ 292 CA, that courts strive to avoid the possibility of conflicting decisions arising from separate suits involving the same parties and issues. The same sentiment was echoed in Export-Import Bank of Malaysia Berhad v. Chan Toh Pew & Ors. [2025] CLJU 1520 HC, where the court emphasised that related proceedings involving common issues and parties should be heard by the same court. Requiring the Plaintiff to file four separate suits, when the parties are the same and the central legal issue being the validity of the PAs after the donors' deaths is identical, would amount to conducting litigation by instalments.

The preliminary objection is accordingly dismissed.

(i) The Statutory Framework

S 5 PAA 1949 sets out the general rule that a registered power of attorney continues in force until, inter alia, either the donor or donee has died. This is the default position and reflects the general law of agency, whereby the principal's death terminates the agent's authority.

However, this general rule is subject to important statutory exceptions found in ss 6 and 7 PAA 1949.

S 6(1) PAA 1949 provides: "If a power of attorney, given for valuable consideration, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser—

(a) the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power ..."

I have examined each of the four PAs. Clause 2.1 of each PA is identically worded and provides, in material part, that in consideration of the payment of RM1.00, the donors "hereby irrevocably and unconditionally appoint" the Plaintiff as their attorney. The PAs are therefore (a) expressed to be irrevocable, and (b) supported by valuable consideration.

The question which divides the parties is the meaning of the phrase "in favour of a purchaser" in s 6(1) PAA 1949.

The Defendant contends that the Plaintiff is not a "purchaser" within s 6 PAA 1949, relying principally on Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corp & Anor [2010] 9 CLJ 637 CA and Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corp & Anor [2013] 5 CLJ 425 FC. The Defendant reads those decisions as confining s 6 PAA 1949 to protecting purchasers of property who transact with the donee of a power of attorney, and as requiring that the PA be coupled with a proprietary or security interest in the donee.

I have carefully considered Lim Eng Chuan. In my view, the Defendant has taken passages from those judgments out of their proper context.

In Lim Eng Chuan, the factual matrix involved a borrower who charged land to a bank and granted an irrevocable PA as part of the security arrangement. Upon default, the bank exercised the PA to sell the land. The court found the PA satisfied the requirements of s 6 PAA 1949 and was also irrevocable at common law because it was coupled with a security interest. The passages relied upon by the Defendant that concern the PA being "coupled with an interest" and the two criteria for common law irrevocability were the court's analysis of an additional basis for irrevocability at common law, not a gloss on the statutory requirements of s 6 PAA 1949.

Critically, Low Hop Bing JCA in Lim Eng Chuan, expressly construed the word "purchaser" in s 6(1) PAA 1949 by applying the maxim noscitur a sociis, holding that the "purchaser" in the context of s 6(1) PAA 1949 necessarily means the purchaser of the PA with which the PAA 1949 is concerned. The "purchaser" is the party who has paid the consideration for the PA and not a purchaser of property from the donee.

In the present case, the Plaintiff paid RM1.00 as stated in Clause 2.1 of each PA. It is therefore the "purchaser" of the PAs. This is consistent with the line of authorities holding that RM1.00 constitutes sufficiently valuable consideration for the purposes of s 6 PAA 1949. In Pinsia Development Sdn Bhd v. Haji Abdul Hadi Ahmad & Ors. [2010] CLJU 1363 HC, See Mee Chun JC (as she then was) held that RM1.00 amounted to valuable consideration as between the donee and donors, as the parties themselves declared the PA irrevocable for that sum. The same principle was applied in Mohamed Moidu Mohamed & Anor v. Hassan Kadir & Ors (No 2) [2001] 6 CLJ 533 HC and Malaysia Building Society Bhd v. Johore Mining and Stevedoring Company Sdn Bhd & Anor [2004] 5 CLJ 82 HC.

In Liew Mok Poh & Anor. v. Balakrishnan Muthuthamby [1990] 2 CLJ (Rep) 365 HC, the court made clear that once an irrevocable power for valuable consideration has been given, the donor cannot thereafter exercise any of the powers already given to the donee without the concurrence of the donee. This underscores that the sole criteria under s 6 PAA 1949 are the expression of irrevocability and the payment of valuable consideration.

In Ghantimathy Kannapiran v. Annammah Ponnusamy [2025] CLJU 2099 HC, Elaine Yap Chin Gaik JC succinctly restated the proposition that a power of attorney given for valuable consideration and expressed to be irrevocable survives the death of the donor. I concur with the aforesaid judgment reasonings.

The Defendant further argued, relying on Sidambaram Torosamy v. Lok Bee Yeong [2018] 3 CLJ 599 CA, that ss 6 and 7 PAA 1949 do not displace the common law position, and that a PA is only truly irrevocable when coupled with a proprietary or security interest in the donee. While I accept that ss 6 and 7 PAA 1949 do not displace common law principles of irrevocability, I do not accept that the common law requirement of a security interest is an additional condition that must be read into the statutory provision. S 6 PAA 1949 is a self-contained statutory provision with its own requirements. A Power of Attorney may be irrevocable under s 6 PAA 1949 (by satisfying the statutory requirements of consideration and express irrevocability) or irrevocable at common law (by being coupled with a proprietary interest), or both. These are alternative and independent bases for irrevocability, not cumulative requirements.

I am fortified in this view by the Plaintiff's submission that the PAs here satisfy even the common law test. The Plaintiff, as trustee, has an interest in the administration of the trusts since the PAs were granted specifically to enable it to carry out its duties as substitute trustee. If the PAs were revoked by the donors' deaths, the entire trust administration would be halted, defeating the very purpose for which both the Trust Deeds and the PAs were executed. Clause 4 of each PA further provides that the Plaintiff may exercise the powers therein for its own benefit. In these circumstances, I am satisfied that the PAs are powers coupled with an interest sufficient to meet even the common-law requirement.

I therefore find that the PAs satisfy the requirements of s 6 PAA 1949 and remain valid and irrevocable notwithstanding the deaths of the donors.

Even if I am wrong on s 6 PAA 1949, I find that the PAs are separately protected by s 7 PAA 1949, which provides: "If a power of attorney, whether given for valuable consideration or not, is in the instrument creating the power expressed to be irrevocable for a fixed time therein specified, then, in favour of a purchaser—

(a) the power shall not be revoked, for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power ..."

Clause 7.1 of each PA provides that the power shall be irrevocable for a period of eighty (80) years from the date of the PA. S 7 PAA 1949 does not, notably, require valuable consideration. It applies "whether given for valuable consideration or not." The only requirement is that the PA be expressly stated to be irrevocable for a fixed period.

In Chung Kow @ Chan Mah Sau v. Chew Kon Yen [1994] MLJU 525 HC, James Foong J (as he then was) held that a PA is irrevocable even after death of the donor if it is given for a fixed time under s 7 PAA 1949, even without valuable consideration.

The PAs in the present case are expressed to be irrevocable for a fixed period of 80 years and therefore fall squarely within s 7 PAA 1949. The Defendant has not offered any meaningful answer to this point.

I therefore find, on this alternative basis, that the PAs remain valid and irrevocable under s 7 PAA 1949.

The Defendant submitted extensive arguments regarding the common law position on revocation of powers of attorney upon death, the distinction between general and irrevocable PAs, and comparative legislative reforms in the United Kingdom and Singapore. The Defendant also cited Bowstead and Reynolds on Agency and Aldridge: Powers of Attorney.

While these are informative references, they do not assist the Defendant. The common law position that a PA terminates upon death is the default, subject to statutory and common law exceptions to irrevocability. The whole purpose of ss 6 and 7 PAA 1949 is to carve out exceptions to this default rule. The fact that other jurisdictions have enacted further reforms (such as Lasting Powers of Attorney) does not negate or restrict the scope of ss 6 and 7 PAA 1949 as they stand in our laws.

As for the Defendant's argument that title to the trust assets was never transferred to the Plaintiff and that Clause 2.1(a) of each PA contemplates a future transfer, this argument conflates two distinct matters. The PA is an instrument of authority that authorises the Plaintiff to act on behalf of the donors. It is not itself a conveyance. The fact that the PA authorises the Plaintiff to effect transfers does not mean the PA is invalid because transfers have not yet occurred. On the contrary, the PA is the very mechanism by which such transfers are to be effected.

(v) The Effect of s 6(c) PAA 1949 and Notice of Death

The Defendant raised s 6(1)(c) PAA 1949, contending that because the Plaintiff presented the donors' death certificates to the Defendant, the Defendant had notice of the deaths and therefore could not comply. This argument fundamentally misreads the provision. S 6(1)(c) PAA 1949 provides that neither the donee nor the purchaser shall be prejudicially affected by notice of the donor's death. The provision protects the donee (here, the Plaintiff) and the purchaser, not the third party dealing with them (here, the Defendant). The Defendant cannot rely on this provision to refuse compliance.

Similarly, s 8 PAA 1949, which protects persons who act in good faith in pursuance of a PA without notice of death, is inapplicable. S 8 PAA 1949 protects persons who make payments or do acts under a PA, but it does not provide a basis for refusing to honour a PA that is, by operation of ss 6 and 7 PAA 1949, irrevocable and valid notwithstanding death.

(i) Ee Ah Eng @ Ee Meng Siong and Chan Hung Hoo @ Chan How

Both account holders are deceased. The PA executed by them jointly (see Exhibit LSM-8) is, for the reasons set out above, irrevocable and valid notwithstanding their deaths. The Defendant's contention that the PA was revoked upon death fails. The Plaintiff is entitled to the monies in this joint account.

The Defendant argued that:-

(a) the PA was jointly executed and was revoked upon the death of Lee Soo Hoon;

(b) Clauses 5.2 and 7.2 of the Trust Deed are inconsistent as to who should act as trustee, and

(c) the Plaintiff cannot act without the concurrence of Tan Phaik Kin.

The Defendant cited Bowstead and Reynolds on Agency, para 2-045, for the proposition that where two or more persons give authority to an agent, it is presumed that the authority is to act for their joint account only, and is thus revoked upon the death of one.

I am not persuaded by this argument for the following reasons:

(i) the PA in question (see Exhibit LSM-10) is, like the others, expressed to be irrevocable and supported by valuable consideration. It therefore falls within ss 6 and 7 PAA 1949, which expressly provide that such PAs are not revoked upon the donor's death. The commonlaw presumption cited in Bowstead is displaced by the statutory provisions.