Wong Chee Wah v Wong Chee Seong (AA-22NCvC-65-08/2022)

High Court of Malaysia19 Jun 2024

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1 IN THE HIGH COURT IN MALAYA 5 IN THE STATE OF PERAK DARUL RIDZUAN CIVIL SUIT NO: AA-22NCVC-65-08/2022 BETWEEN 10 WONG CHEE WAH (NRIC NO.: 640205-08-6211) ...PLAINTIFF 15 AND WONG CHEE SEONG (NRIC NO.: 581211-08-5189) …DEFENDANT 20 GROUNDS OF JUDGMENT Background [1] This case involves a dispute over the validity of a Will dated 13 Sept 2005, purportedly made by the deceased, which named the 25 Defendant as the sole beneficiary and executor. The Plaintiff sought a declaration that the Will was invalid, the probate granted on 19 January 2007 be annulled, and all property transfers based on that probate be reversed. 30 [2] The Defendant failed to appear in court, leading to a default judgment on 31 July 2023. This Court delivered a written ground for the default judgment, for the benefit of all parties and the Court of Appeal, which will be hearing appeal of setting aside judgment. I append below the said grounds: 35 18/09/2024 14:44:34 AA-22NCvC-65-08/2022 Kand. 53 Grounds of judgment The defendant failed to enter appearance, despite the service of the amended Writ and Statement of Claim, which 40 was duly served on the defendant by way of substituted service. The affidavit of service was filed to the effect that service was made by substituted service. On 13 July 2023, this court ordered the plaintiff to submit 45 a bundle of documents for the hearing of the plaintiff's claim on 20 July 2023, in accordance with order 13 rule 6 of the Rules of Court 2012, and to notify the defendant in writing of the hearing date. Accordingly, on July 20, 2023, this court proceeded to hear 50 the case, with the plaintiff calling Mr. Wong Chee Wah to the witness stand. A written witness statement was prepared, and the court ordered a Chinese interpreter to read and explain the statement to the witness so that the witness could verify the information contained therein. 55 The Plaintiff and Defendant are siblings, and Mr Wong Weng was their deceased father. The gist of the plaintiff's case is that the defendant fabricated their father's alleged Last Will and Testament. Under the terms of the Will, the defendant inherited all of the deceased father's property, 60 including cash funds that were kept in the bank, i.e. in a fixed deposit at OCBC bank. It should be noted that the Defendant is named as the sole executor and sole beneficiary of the deceased father's estate in the Will. 65 The plaintiff was suspicious of the alleged father's will because the deceased father was bedridden and unable to walk or engage in any physical activity. In addition, at the time the alleged Will was executed, the condition of the deceased father had worsened due to stomach cancer. 70 This made the Plaintiff and the other sibling extremely suspicious of the aforementioned Will drafted by their deceased father. On January 24, 2007, the defendant obtained a grant of probate from the High Court of the people using a 75 fabricated will in which he named himself as the sole executor and beneficiary of their deceased father's estate. On January 17, 2008, the brother of the plaintiff filed a police report regarding the alleged Will executed by their deceased father. In the police report, the brother of the 80 plaintiff also reported that the defendant had withdrawn the deceased father's deposit from the OCBC bank on Jalan Yang Kalsom in Ipoh Perak. In 2011, the defendant was charged in sessions court on allegations that he had fabricated their deceased father's 85 Last Will and Testament. Although the defendant was acquitted not amounting to discharge by the criminal court on the charges of fabrication, the fact remains that their late father's Last Will and Testament was fabricated. This is evidenced from the 90 PDRM forensic department. This court also considered the power of attorney prepared by the defendant's late mother as well as the plaintiff and wife of the deceased Mr Wong Weng. The power of attorney expresses her concerns about the defendant 95 fabricating the will of her late husband. Given the evidence presented in this court and the defendant's refusal to appear despite service of the cause papers. And, in the absence of the plaintiff's evidence, not being challenged. This court, having heard the witness, i.e. 100 the Plaintiff, and reviewed the submitted documentary evidence, has no reason not to accept the evidence of the plaintiff, be it the evidence in the witness's courtroom testimony or those in the bundle of documents. For the reasons stated above, I am persuaded that the 105 Plaintiff has established his case and will therefore grant the Plaintiff's claim as stated in the statement of claim. a. A declaration that the deceased's last will and testament is invalid and ineffective; b) An order that the defendant's grant of probate dated 110 19.1.2007 be revoked and set aside; c) A declaration that the transfer of ownership of properties known as:- i. No Hakmilik PM 2109 Lot 56054 Mukim Hulu Kinta, Kinta District, State of Perak Darul Ridzuan; 115 ii. No Hakmilik PM 2147 Lot 57226 Mukim Hulu Kinta, Kinta District, Perak; and iii. No Hakmilik HS (M) 15061 Lot 57224 Mukim Hulu Kinta, Kinta District, Perak. made in the name of Wong Chee Seong dated 26 March 120 2009, are invalid and void; d) An order that the Registrar of Titles or the Land Administrator shall give effect to the above Orders by cancelling the name of Wong Chee Seong as the registered owner of the property and 125 return the land to its original status as if the transfer of ownership on 10.1.2020 had not occurred; and the lands owned by deceased, that is Wong Weng, to be divided and distributed according to law to the beneficiaries under the estate; 130 Further, I am also allowing costs of RM7000.00, to be paid to the Plaintiff, out of the Defendant’s entitlement from the estate of deceased Wong Weng. This court takes note of the fact that the plaintiff does not want to claim for the recovery of the fixed deposit funds of 135 the deceased father that the defendant withdrew from the OCBC bank. TT 140 ---------------------- Moses Susayan Dated: 31st July 2023” 145 [3] The Defendant subsequently filed a motion to set aside this default judgment, arguing irregularities in the service of the writ and claiming that the judgment was obtained through fraudulent means. Setting aside Merits 150 Service of Writ: [4] The Defendant argued that the writ was not served within the prescribed time as per Order 10 Rule 1(1) of the Rules of Court

2012

The writ dated 26 August 2022 was attempted to be served only on 06 December 2022, which is beyond the one-month 155 requirement. Further, the Defendant submits that the Plaintiff served the writ to an incorrect address at (Lot 346 Kg Baru Ampang Bharu, 31400 Ipoh Perak), whereas the Defendant's address was No. 344 Jalan Ampang Baru 6, Ampang Baru 31400 Ipoh Perak. Substituted Service: 160 [5] The Defendant submits that the substituted service via newspaper publication was not conducted in compliance with the court’s direction, which specified the use of Sin Chew Daily. Instead, the notice was published in Guang Ming Daily. Defendant's Non-receipt of Documents: 165 [6] The Defendant claimed no knowledge of the proceedings instituted by the Plaintiff due to the above irregularities and the fact that Lot 346 was rented out, it was not his place of residence. Validity of the Will: [7] The core issue of the case on merits of the case is the authenticity 170 of the Will. The Plaintiff alleges that the Will was forged and it is supported by forensic evidence indicating the signature was not that of the deceased. Court’s Findings 175 Service of Writ [8] Regarding the Defendant contention that the writ was served late, beyond the one-month requirement, and to an incorrect address (Lot 346 instead of the correct address, No. 344 Jalan Ampang Baru 6). The writ was initially filed on 26 August 2022, and the Amended 180 Writ and Statement of Claim were filed on 2 December 2022. According to Paragraph 7 of the Defendant's submission, the Defendant himself states that the Plaintiff attempted to serve the writ by post on 6 December 2022, which would be within the one-month time frame from the issuance of the amended Writ and Statement 185 of Claim. However, the writ was not successfully served on the Defendant, causing a delay. Consequently, the Plaintiff applied for substituted service, which included posting the writ at the Defendant's last known address and publishing a notice in a newspaper, as directed by the court. These actions demonstrate the 190 Plaintiff’s diligence and good faith in attempting to serve the writ despite procedural difficulties. I must state at this juncture the Defendant ought to have applied to set aside the order for substituted service if it was a service at the incorrect address Substituted Service 195 [9] Regarding the substituted service which allegedly did not comply with the court's direction to publish in Sin Chew Daily; instead of Guang Ming Daily. This court had examined the order for substituted service, the order states “dengan mengiklankan Writ Saman Terpinda … dalam akhbar tempatan” it does not state specifically 200 state “Sin Chew Daily” or “Guang Ming Daily”. Therefore, advertisement in an any local newspaper would suffice according advertisement in “Sin Chew Daily” is considered regular. Defence on Merit 205 [10] The Defendant must demonstrate a defence on merit to this court. According to cases of Yap Ke Huat & Ors v. Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175; [2008] 5 MLJ 112, the Court of Appeal through Justice James Foong, opined that a defence must raise serious, arguable issues 210 rather than be a sham defence. Affidavits must state facts showing a bona fide defence. His Lordship said: “When the judgment is a regular judgment, these defendants: must show to the court that he has a defence that has some merits of which the court should try. To use common and 215 plain language, the applicant must show that his defence is not a sham defence but one that is prima facie, raising serious issues as a bona fide reasonable defence that ought to be tried because obviously if the defence is a sham defence, there is no defence and the application must fail — 220 Jemuri Serjan CJ (Borneo) in Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking Corp Bhd.” [11] However, the Defendant failed to meet this threshold, as no merit- 225 based defence was shown in the affidavits filed. Therefore, the default judgment is regular and the Defendant lacks a meritorious defence. 230 Conclusion [12] Therefore, I find the default judgment is regular, and the Defendant lacks to show defence on merits. In the upshot, I dismiss the 235 application in Encl. 32 with no orders as to costs. Date : 13 September 2024 240 Moses Susayan MOSES SUSAYAN 245 Judicial Commissioner High Court in Malaya at Ipoh, Perak 250 Counsel : For the Plaintiff : Afina binti Abdul Hakim 255 Advocates and Solicitor [Messrs Amirfaliq & Syahidah] Ipoh, Perak For the Defendant : Tulasi Ayaoo 260 Advocates and Solicitors [Messrs Segaran & Associates] Ipoh, Perak 265 (Notice: This Grounds of Decision is subject to official editorial revision) Headnotes: Dispute over the validity of a Will—Default judgment was entered due to 270 Defendant’s non-appearance—Issues of whether irregular service of writ and substituted service— Court’s finding of due diligence in Plaintiff’s service attempts—Substituted service deemed compliant with court order — Allegations of Will forgery supported by forensic evidence — Defendant’s application to set aside default judgment lacked meritorious 275 defense—Default judgment upheld, application dismissed.

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Case metadata

Court: High Court of Malaysia
Decision date: 19 Jun 2024
Case number: AA-22NCvC-65-08/2022
Coram: YA Tuan Moses Susayan
Practice area: Dispute over the validity of a Will—Default judgment was entered due to Defendant’s non-appearance—Issues of whether irregular service of writ and substituted service— Court’s finding of due diligence in Plaintiff’s service attempts—Substituted service deemed compliant with court order — Allegations of Will forgery supported by forensic evidence — Defendant’s application to set aside default judgment lacked meritorious defense—Default judgment upheld, application dismissed
Version: Alasan Penghakiman 1
Published: 18 Sept 2024
Source ID: eb06b943-381e-4720-a28c-c044ae8be63f

Catchwords

Dispute over the validity of a Will—Default judgment was entered due to Defendant’s non-appearance—Issues of whether irregular service of writ and substituted service— Court’s finding of due diligence in Plaintiff’s service attempts—Substituted service deemed compliant with court order — Allegations of Will forgery supported by forensic evidence — Defendant’s application to set aside default judgment lacked meritorious defense—Default judgment upheld, application dismissed

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WONG CHEE WAH - plaintiff - ejudgment_parties
WONG CHEE SEONG - defendant - ejudgment_parties

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