WONG KEH YEN (Mendakwa Sebagai Wasi Harta Pusaka Lai Kui Yin, Si Mati) v WONG TZY JIAN (WA-24NCvC-5246-10/2025)

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORIES OF KUALA LUMPUR, MALAYSIA ORIGINATING SUMMONS NO: WA-24NCvC-5246-10/2025 In the matter of Geran 73318, Lot 58483, Mukim and District of Kuala Lumpur, Federal Territory; And In the matter of section 25(2) and paragraph 1 of the Schedule of Courts of Judicature Act 1964; And In the matter of Article 13 of the Federal Constitution; And In the matter of Order 7 and/or Order 28 of the Rules of Court 2016; And In the matter of the inherent jurisdiction of the court. 26/06/2026 09:43:14 WA-24NCvC-5246-10/2025 Kand. 108 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 BETWEEN WONG KEH YEN (Suing as the Executrix of the Estate of Lai Kui Yin, Deceased) (NRIC No: 740829-10-5618) ... PLAINTIFF AND

1. WONG TZY JIAN (NRIC No: 670228-10-5689)

2. WONG JENQ YANN (NRIC No. 931210-10-5923)

3. WONG JENQ THORNG (NRIC No: 951119-10-6173) ... DEFENDANTS GROUNDS OF JUDGMENT Introduction

1. The law is frequently required to adjudicate disputes arising within the private sphere of family life. Where the dispute concerns the former family home, the Court’s task assumes a particular sensitivity. It must reconcile the strict incidents of legal ownership with equitable considerations rooted in conscience, fairness, and familial dealing. **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

2. The present matter concerns a property known as No. 8, Jalan Desa Maju, Taman Desa (“TD8”). It is more than a parcel of land known as TD8, it is the erstwhile family home of the parties. It has now become the subject of a bitter dispute between the plaintiff, in her capacity as executrix of the estate of the late Madam Lai Kui Yin, and her brother, the first defendant, and his sons.

3. The plaintiff seeks vacant possession of TD8 as a necessary step toward the sale of the property for the purpose of discharging substantial liabilities owed by the estate. The defendants resist the application. They contend that their occupation is justified by their financial contributions toward the reconstruction of the house many years earlier, coupled with their longstanding residence there as a family home. What therefore confronts the Court is the difficult intersection between the legal duties of an executrix administering an insolvent estate and the defendants’ asserted equitable and familial expectations arising from occupation and contribution. Background Facts

4. The plaintiff, the first defendant, and one Wong Keh Shin are the children of late Madam Lai Kui Yin (“Madam Lai”), who passed away on 1 January 2020. By a grant of probate dated 11 September 2020, the plaintiff was appointed the sole executrix of Madam Lai’s estate. Among the principal assets of the estate is TD8, which remains registered in Madam Lai’s name. **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

5. The genesis of the present conflict lies in events that transpired some years prior to Madam Lai’s death. For many years, TD8 was occupied by the first defendant and his family. Around 2010, the original structure standing on the property was demolished and replaced with a newly constructed residence. The reconstruction project was undertaken by the first defendant. According to him, the rebuilding works were carried out with Madam Lai’s approval, encouragement, and financial assistance, upon an understanding, whether express or inferred, that the property would thereafter serve as his family home. Following completion of the reconstruction, Madam Lai and her husband, the late Wong Hon Chong resided at TD8 together with the first defendant and his family until their respective deaths in 2020 and 2022.

6. The tranquillity of the family’s financial standing was shattered not by death, but by the insolvency of corporate entities closely intertwined with the family’s fortunes. The estate is burdened with the severe financial difficulties of two companies, namely Reap Synergy Sdn Bhd (“Reap Synergy”) and Leadmont Development Sdn Bhd (“Leadmont”). The first defendant was both a director and the majority shareholder of Leadmont. In the course of its business operations, Leadmont obtained substantial banking facilities from Public Bank Berhad (“Public Bank”), for which TD8 was charged as security. Madam Lai further exposed herself, and ultimately her estate, by acting as guarantor for the indebtedness. Thus, the very roof over the defendants’ heads was the collateral for their corporate ambitions. **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

7. When Reap Synergy and Leadmont succumbed to financial distress, ultimately entering liquidation and judicial management, the creditor banks turned to enforce their rights against the guarantor. Upon Madam Lai’s death, those obligations fell upon her estate. The plaintiff, as executrix, was thrust into the eye of this financial storm. Her role was no longer confined to administering and distributing assets, she was a firefighter tasked with preventing the estate from being consumed by the flames of debt amounting to approximately RM5.6 million, owed to Malayan Banking Berhad (“Maybank”) and Public Bank. The consequence is stark. The very property in which the defendants continue to reside stands as security for liabilities arising from the corporate ventures in which the first defendant himself played a substantial role.

8. The plaintiff, as executrix, was thereby confronted with the immediate and continuing obligation of preserving the estate while addressing mounting creditor claims. In an attempt to avert immediate enforcement proceedings, she utilised distributions received by Real Harvest Pte Ltd (“Real Harvest”), a Singapore entity associated with the family and itself a creditor in the judicial management proceedings involving Leadmont, toward servicing the estate’s liabilities. That arrangement, however, came to an end following an order dated 5 August 2025 in Suit No. WA-22NCVC- 357-06/2025 (“Suit 357”), by which the plaintiff was restrained from further utilising those funds.

9. With the cessation of that source of liquidity, the financial position of the estate became acute. TD8 remains the estate’s only substantial asset capable of realising sufficient proceeds to address the **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 outstanding liabilities. The urgency of the situation is further accentuated by a consent judgment entered with Maybank on 30 October 2023, requiring repayment of approximately RM1.3 million by instalments, a commitment which the estate is now at risk of defaulting upon. The indebtedness owed to Public Bank, exceeding RM4.3 million, remains equally pressing. Absent a sale of TD8, the estate faces the real prospect of insolvency, the assets will be liquidated piecemeal, likely at fire-sale prices, diminishing to dust the inheritance of all three siblings.

10. It was against this financial backdrop that the plaintiff, by a letter dated 9 September 2025, terminated the defendant’s licence to occupy TD8 and demanded vacant possession. The plaintiff maintains that the step was taken not out of personal animosity, but pursuant to her duty as executrix to preserve the estate and satisfy its creditors. The defendants, however, refused to vacate. They rely upon their longstanding occupation of the property and assert that they expended approximately RM1 million, if not more, toward the reconstruction of the house. In their view, TD8 is not merely an estate asset available for realization, but the family home to which they possess an entitlement arising from contribution, expectation, and longstanding occupation.

11. It is this fundamental divergence in perspective that has culminated in the present originating summons proceedings and the consequent striking-out applications by the defendants. The plaintiff seeks vacant possession as a necessary precursor to the sale of TD8 for the benefit of the estate and its creditors. The defendants resist the application on the basis of alleged assurances, financial **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 contributions, and equitable expectations said to arise therefrom. The matter therefore falls to this Court to determine at the difficult intersection between strict legal entitlement and equitable conscience, as to whether the defendants may lawfully remain in occupation, or whether the imperatives of estate administration require that possession be yielded to the executrix. Plaintiff’s Contentions

12. The plaintiff’s case is anchored upon two interlocking propositions. First, the conclusiveness of registered title under the Torrens system, and secondly, the fiduciary obligations incumbent upon a personal representative administering an indebted estate. She submits that, as the duly appointed executrix of Madam Lai’s estate, she holds the legal title to TD8 not for her personal benefit, but in a representative capacity for the purposes of administration.

13. In that regard, reliance is placed upon section 89 of the National Land Code, which provides that the register document of title constitutes conclusive evidence that title to the land is vested in the person named therein. The plaintiff contends that the registered title remains vested in the estate of the deceased, of which she is the lawful personal representative. Accordingly, unless and until the title is displaced by some recognised legal or equitable claim, she is entitled to exercise all proprietary rights incidental to such title, including the right to recover possession. **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

14. From that starting point, the plaintiff submits that the defendants’ continued occupation of TD8 is unsupported by any proprietary interest recognised in law. She contends their status as no more than licensees, whose occupation was originally permitted by the deceased as a matter of familial indulgence rather than legal entitlement. Such permission was personal, amounting at most to a bare licence.

15. The plaintiff further submits that a licence of this nature is inherently revocable, and through her letter dated 9 September 2025, any permission previously extended to the defendants was unequivocally withdrawn. Reliance is placed upon the decision in MHM Trend Station Sdn Bhd & Ors v Petronas Dagangan Bhd [2011] 4 MLJ 95; [2009] CLJU 437; [2009] 1 LNS 437, where the court affirmed that a licence, being revocable at will, ceases upon withdrawal and any continued occupation thereafter renders the licensee a trespasser. On that footing, the plaintiff contends that the defendant’s continued occupation following the revocation of the licence constitutes a continuing trespass. Such continued occupation, she submits, prejudices the administration of the estate by impairing the marketability of TD8 and preventing its realization for the benefit of creditors.

16. The plaintiff next addresses the defendant’s assertion that the first defendant’s financial contribution toward the demolition and reconstruction of TD8 gives rise to a beneficial interest in the property. The plaintiff does not dispute that substantial sums were expended on the reconstruction works. Her contention, however, is that expenditure alone does not, without more, confer a proprietary **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 interest in land. At its highest, the plaintiff submits, such expenditure may found a personal claim for reimbursement or compensation against the estate. It does not, however, create any right in rem capable of displacing the rights of the registered proprietor. In support of that distinction, reliance is placed upon the decision of the Court of Appeal in Wong Yew Kwan v Wong Yu Ke & Anor [2009] 2 MLJ 672; [2010] 2 CLJ 703; [2008] 1 LNS 857.

17. The plaintiff further contends that the defendant’s reliance upon their status as beneficiaries proceeds upon a misconception of the nature of a beneficiary’s interest during the course of administration. Reliance is placed upon section 68 of the Probate and Administration Act 1959, under which the entitlement of residuary beneficiaries arises only upon the completion of administration and the ascertainment of the net residue remaining after payment of all debts and liabilities. Until that stage is reached, the plaintiff submits that no beneficiary possesses an enforceable entitlement to any specific asset comprised within the estate. The first defendant therefore stands in no different position from any other beneficiary and cannot assert an exclusive right to TD8 merely by virtue of his status as a child of the deceased.

18. The plaintiff further submits that her paramount duty as executrix is to preserve the estate and discharge its liabilities. In that regard, she argues that she is not legally constrained to obtain the consent of beneficiaries before disposing of estate assets where such disposal is necessary for administration. **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

19. Finally, the plaintiff rejects the defendants’ contention that the estate ought instead to realise the six CentreStage units in satisfaction of the estate’s liabilities. She submits that such a proposal is neither commercially viable nor practically sufficient. Those units, she submits, are leasehold properties burdened with unresolved strata title issues and enmeshed in the judicial management of the developer. Their marketability is, at best, uncertain, and their realization would fall far short of meeting the estate’s indebtedness. By contrast, the plaintiff contends that TD8 represents the only substantial asset capable of generating proceeds sufficient to address the estate’s indebtedness, which presently stands at approximately RM5.6 million. In those circumstances, the defendant’s refusal to vacate, she contends, is not merely an insistence on continued occupation, but conduct that imperils the solvency of the estate itself. Defendant’s Contentions

20. The defendants advance a markedly different narrative of the dispute. While the plaintiff places primary reliance upon legal title and the incidents of estate administration, the defendants contend that the Court must instead have regard to the equitable circumstances surrounding the reconstruction and occupation of TD8. In substance, their case is founded upon principles of proprietary estoppel, constructive trust, and unconscionability.

21. The defendants accept that, under the will executed by Madam Lai in 2003, TD8 was devised equally among the three children. They contend, however, that the subsequent events surrounding the **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 demolition and reconstruction of the property materially altered the equitable position between the parties. According to the defendants, Madam Lai actively encouraged the first defendant around 2010 to demolish the existing structure and rebuild the house at substantial expense. In doing so, she is said to have represented, whether expressly or by clear implication, that the reconstructed property would serve as the first defendant’s family home for the duration of his life. The defendants submit that the first defendant acted upon those assurances to his detriment. They contend that approximately RM1 million was expended toward the reconstruction works, the funds having been channelled through Leadmont, a company under the first defendant’s control.

22. In those circumstances, the defendants contend that equity intervenes to prevent the estate from insisting upon its strict legal rights in a manner said to be unconscionable. Reliance is placed upon the principle articulated in Inwards v Baker [1965] 2 QB 29, in that, where a landowner permits another to expend money on land upon the understanding that he may remain there, an equity may arise restraining the owner from revoking that permission arbitrarily. The defendants therefore argue that their occupation cannot properly be described as that of bare licensees or trespassers. Rather, they contend that the first defendant possesses an equitable interest arising from his expenditure, reliance, and longstanding occupation of the property pursuant to the assurances allegedly given by Madam Lai. **Note : Serial number will be used to verify the originality of this document via eFILING portal 12

23. The defendants further submit that it would be inequitable for the estate to retain the benefit of the first defendant’s substantial financial contributions toward the reconstruction of TD8 while simultaneously denying him continued occupation of the very property said to have been rebuilt in reliance upon those assurances. They contend that, in these circumstances, a constructive trust arises in favour of the first defendant, such that the estate holds the property subject to his equitable entitlement, at least to the extent of his contributions and expectation of continued residence.

24. The defendants next contend that the plaintiff, in seeking vacant possession and the sale of TD8, has acted in breach of her fiduciary obligations as executrix. They argue that TD8 is not merely a general estate asset available for disposal at the executrix’s discretion, but a property specifically devised under the will. In that regard, reliance is placed Lai Siew Kien v Solid Invention Sdn Bhd & Ors [2020] 1 LNS 1092; [2020] MLJU 909; [2020] CLJU 1092, which the defendants submit establishes that an executrix dealing with specifically bequeathed property ought either to obtain the consent of the beneficiaries or seek the sanction of the court before proceeding with any sale.

25. The defendants further describe the plaintiff’s conduct as oppressive and commercially motivated by considerations extraneous to proper estate administration. They point in particular to the fact that the plaintiff moved to terminate their occupation shortly after she was restrained from utilising funds belonging to Real Harvest toward servicing the estate’s liabilities. In the **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 defendants’ submission, the present proceedings are motivated less by necessity than by personal hostility arising from the deeper disputes within the family.

26. The defendants also dispute the plaintiff’s assertion that the sale of TD8 is the only viable means of addressing the estate’s indebtedness. While accepting that TD8 stands charged to Public Bank in connection with Leadmont’s banking facilities, they contend that alternative estate assets, particularly the six CentreStage units, ought first to be realized before resorting to the sale of the family home. According to the defendants, the plaintiff has deliberately overstated the practical difficulties associated with the sale of those units in order to justify the disposal of TD8. They maintain that the plaintiff’s proposed course disproportionately prejudices the first defendant, notwithstanding the estate’s acknowledgment of the substantial expenditure incurred by him toward the reconstruction of the property.

27. The defendants therefore submit that the Court ought not to approach the matter solely through the lens of registered title and estate administration. Rather, they contend that the equities arising from the first defendant’s expenditure, reliance, and occupation are of sufficient weight to restrain the plaintiff from recovering vacant possession or proceeding with the sale of TD8 in the manner presently proposed. **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Court’s Analysis and Findings

28. The issues arising for determination traverse both procedural and substantive terrain. They concern, first, the propriety of the procedure adopted by the plaintiff and the admissibility of certain affidavit evidence, and secondly, the competing legal and equitable claims asserted in respect of TD8. I shall address those issues sequentially. The Preliminary Objections: Procedure and Evidence

29. Before wading into the murky waters of equitable estoppel, I must first clear the weeds of procedural objections raised by the defendants. It was contended that the plaintiff’s application was fundamentally defective because it was not commenced pursuant either to section 7 of the Specific Relief Act 1950 or under Order 89 of the Rules of Court 2012. In my judgment, that objection is unsustainable.

30. Section 7 of the Specific Relief Act 1950 concerns the recovery of immovable property in circumstances ordinarily associated with tenancy or possessory disputes arising from landlord and tenant relationships. No such relationship exists on the facts of the present case. Equally inapplicable is Order 89 of the Rules of Court 2012, which provides a summary procedure intended for cases involving trespassers simpliciter. The scope and limitation of Order 89 were authoritatively explained in Chiu Wing Wa & Ors v Ong Beng Cheng [1994] 1 MLJ 89; [1994] 1 CLJ 313, where Mohamed Azmi SCJ observed: **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 “The words in the parentheses are crucial. If the appellants are tenants holding over after termination of the monthly tenancy by the notice to quit, then O 89 is inapplicable. It should be noted that O 89 has its origin in O 113 of the English Rules, and the principle behind McPhail a Persons, Names Unknown; Bristol Corp v Ross is clearly to limit the operation of the summary procedure of O 89 to trespassers pure and simple, whether known or unknown. In our view, the summary procedure should not be allowed to apply where the entry to the land in the first instance is lawful, for in such a situation, there must necessarily be the facts and the law for determination by evidence viva voce. In this connection, we approve the judgment of Wan Adnan J in Hotel Ambassador

31. In the present case, it is undisputed that the defendants originally entered and occupied TD8 with the permission of the registered proprietor during her lifetime. Their entry was therefore lawful in origin. Whether that permission has since been revoked and with what legal consequence are matters requiring substantive adjudication. The case is consequently ill-suited for the summary procedure contemplated under Order 89. In those circumstances, I am satisfied that the plaintiff’s recourse to section 25(2) and paragraph 1 of the Schedule to the Courts of Judicature Act 1964 read together with Order 7 of the Rules of Court 2012 is entirely appropriate. The procedural objection therefore fails. **Note : Serial number will be used to verify the originality of this document via eFILING portal 16

32. I turn next to the issue concerning the affidavits filed by the third defendant. The plaintiff correctly points out that enclosures 32, 50, and 56 were filed in unaffirmed form. Order 41 rule 1(7) of the Rules of Court 2012 requires that an affidavit be duly signed by the deponent and properly affirmed before a commissioner for oaths. The legal effect of non-compliance is well established. In Iris Koto

33. A similar approach was adopted in Mohamad bin Hassan & Ors v Dewan Bandaraya Kuala Lumpur & Anor [2001] 4 MLJ 423; [2002] 1 CLJ 290, where the court affirmed that non-compliance with the prescribed formal requirements renders the affidavit invalid.

34. In light of those authorities, the third defendant’s unaffirmed affidavits cannot be accorded any evidential value and must accordingly be expunged from the record. Once those affidavits are disregarded, the striking-out application advanced by the third defendant is left unsupported by any admissible evidence and cannot be sustained. **Note : Serial number will be used to verify the originality of this document via eFILING portal 17

35. That, however, does not conclude the question whether the third defendant ought properly to remain a party to these proceedings. During the hearing, learned counsel appearing on his behalf expressly acknowledged that the third defendant no longer resides at TD8 and asserts no possessory or proprietary claim in relation to the property. Once the third defendant has expressly disclaimed any right of occupation or interest in TD8, no live controversy remains between him and the plaintiff. There is therefore no substantive issue requiring adjudication as against him, nor any practical utility in retaining him as a party to the action.

36. In those circumstances, I am satisfied that the third defendant ought properly to be struck out from these proceedings. The Indefeasibility of Title and the Licence Coupled with Equity

37. The central issue in this aspect of the case concerns the interaction between the plaintiff’s rights as holder of the registered title in her representative capacity as executrix and the defendants’ assertion of equitable interests arising from contribution, reliance, and longstanding occupation.

38. The plaintiff’s claim is premised in the indefeasibility of title under the National Land Code. Sections 89 and 340 of the Code establish the register document of title as the conclusive evidence of proprietorship. In Teh Bee v K Maruthamuthu [1977] 2 MLJ 7; [1977] CLJU 135; [1977] 1 LNS 135, the Federal Court stated: **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 “At the trial when the Registrar of Titles, PW1, was giving evidence, appellant's counsel asked that the register document of title be put in as evidence but coinsel for the respondent did not think it necessary saying that it was sufficient if a certified copy of the extract was put in. The importance of the register document of title in terms of section 178(3) of the Code read with section 89 is that it is conclusive evidence that title to the land in question is vested in the appellant. As the register document of title in this case was produced in court the learned magistrate was justified in holding that the appellant was prima facie the owner of the land.” [Emphasis is mine]

39. The defendants do not dispute that TD8 was registered in the name of the late Madam Lai nor that the plaintiff now holds the title in her representative capacity as executrix. Their case instead rests upon equitable doctrines, namely constructive trust and proprietary estoppel, coupled with the argument that the first defendant possesses a licence fortified by equity arising from his expenditure on the reconstruction of the property.

40. The defendants contend that Madam Lai encouraged the first defendant to demolish the original structure on TD8 and reconstruct the property as a family residence. It is further said that she permitted him and his family to reside there upon the understanding that the property would remain their home. Reliance is placed upon the well-known observations of Lord Denning MR in Inwards v Baker [1965] 1 All ER 446: **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 “It is quite plain from these authorities that, if the owner of land requests another or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with equity…” [Emphasis is mine]

41. The principle articulated in Inwards v Baker (supra) has been recognised locally, including in Mok Deng Chee v Yap See Hoi & Ors [1981] 2 MLJ 321; [1981] CLJ (Rep) 69 FC; [1981] 1 MLRA 83, namely that where a licensee expends money upon land in reliance upon an expectation encouraged by the owner, equity may intervene to prevent unconscionable conduct.

42. Nevertheless, the existence of expenditure alone does not inexorably give rise to a proprietary interest capable of defeating the rights of the registered proprietor. The Court must examine whether the facts establish the requisite element of unconscionability sufficient to attract equitable intervention. In Datuk M Kayveas v See Hong Chen & Sons Sdn Bhd & Ors [2014] 4 MLJ 64; [2013] 5 CLJ 949, the Federal Court explained the juridical basis of a constructive trust in the following terms: "[37] Due to the fine line drawn between express trust and a constructive trust, perhaps a comparison of these two classes of trusts may help give a clearer picture. An obvious difference is that an express trust comes into existence the moment the trusts is expressed while for a constructive trust the unconscionable behaviour of the trustee ignites **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 it into existence. Geraint Thomas Alastair Hudson in The Law of Trusts (2nd Ed) wrote... [38] From the various opinions above it may be construed that a constructive trust arises by operation of law irrespective of the intention of the parties, in circumstances where the trustee acquires property for the benefit of the beneficiary, and making it unconscionable for him to assert his own beneficial interest in the property and deny the beneficial interest of another. Being bereft of any beneficial interest, and with equity fastened upon his conscience, he cannot transfer any interest to himself let alone a third party. If he does, then a constructive trust comes into existence. An aggrieved party, by equitable remedy, may demand restitution of the property if he has been deprived of his beneficial interest.” [Emphasis is mine]

43. The critical question, therefore, is whether it would be unconscionable for the executrix, acting on behalf of the estate, to assert her legal title and recover possession of TD8 for the purposes of administration. The Distinction Between a Right In Rem and a Right In Personam

44. The defendants contend that the first defendant expended approximately RM1 million toward the demolition and reconstruction of TD8 with the encouragement and acquiescence of Madam Lai, and upon the understanding that the property would remain the family home of the first defendant and his family. They argue that it would now be unconscionable for the estate to insist upon its strict legal rights while retaining the benefit of those contributions. **Note : Serial number will be used to verify the originality of this document via eFILING portal 21

45. I readily accept that substantial expenditure was incurred by the first defendant toward the reconstruction works. However, I am unable to conclude that the evidence establishes the existence of a constructive trust of the nature contended for by the defendants.

46. In my judgment, the authority most closely applicable is Wong Yew Kwan v Wong Yu Ke & Anor [2009] 2 MLJ 672; [2010] 2 CLJ 703; [2008] 1 LNS 857. There, the Court of Appeal emphasised that expenditure on renovation or improvement, without more, does not automatically confer a proprietary interest sufficient to defeat the rights of the registered proprietor. Gopal Sri Ram JCA observed: “[6] So too here. The plaintiffs (respondents before us) are the registered proprietors of the land in question. There is no frontal attack upon their title. They are therefore entitled to vacant possession of the land. [7] Giving the appellant's case a most generous interpretation, what he apparently seeks to do is to fasten upon the respondents' conscience a promise made by their mother. If this is an attempt to seek to attack the respondents' title by an in personam claim, the matters relied upon by the appellant fall far short of what is required for a Court of Equity to act. For equity to act in personam, it is necessary that the opposite party must be acting unconscionably. In other words, the charge of unconscionabiliry must be directed at something the respondents had done or promised to do. That is not the appellant's case. Taking his case at its highest, there are simply no facts pleaded that bring the case within the in personam jurisdiction of a Court of Conscience. As Lord Tomlin said in Maine and New Brunswich Electical Power Co v Hart AIR 1929 PC 185: **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 In order to invoke a rule of equiry it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non-performance of a contract of which equity can give specific performance.” [Emphasis is mine]

47. The present case suffers from the same difficulty. There is no evidence of any express representation by Madam Lai that ownership of TD8 would vest exclusively in the first defendant to the exclusion of the other beneficiaries. Throughout the material period, title to TD8 remained vested solely in Madam Lai. There was no transfer, declaration of trust, or testamentary disposition conferring exclusive ownership upon the first defendant. On the contrary, the will executed by Madam Lai on 3 October 2003 expressly bequeathed TD8 equally among her three children.

48. Nor was there any subsequent testamentary instrument or formal declaration varying the disposition contained in the will.

49. At its highest, the evidence establishes that the first defendant contributed substantial sums toward the reconstruction of the family residence with the encouragement and acquiescence of Madam Lai. That circumstance may arguably found a personal claim for reimbursement or equitable compensation against the estate. It does not, however, suffice to create a proprietary interest in the land itself capable of defeating the plaintiff’s right, as executrix. **Note : Serial number will be used to verify the originality of this document via eFILING portal 23

50. Furthermore, the defendant’s occupation of TD8 was always permissive in nature. They were never tenants possessing any leasehold or contractual right of exclusive possession. Their occupation arose by familial consent and continued pursuant to the tolerance and acquiescence of Madam Lai during her lifetime. In this regard, I accept the plaintiff’s submission that the estate’s own acknowledgement of the RM1 million construction expenditure materially undermines the defendant’s claim to a proprietary interest. The estate’s list of assets and liabilities expressly record a debt of RM1 million owing to the first defendant in respect of the reconstruction costs.

51. That acknowledgement is significant. It demonstrates that the plaintiff does not deny the existence of the expenditure, nor seek to appropriate its benefit without recognition. Rather, the estate treats the first defendant’s contribution as a financial liability capable of repayment. In substance, the claim asserted by the first defendant is therefore one of debt or equitable compensation, that is to say, a right in personam, rather than a proprietary entitlement attaching to the land itself.

52. It cannot, in my judgment, be regarded as unconscionable for an executrix to realise estate assets for the purpose of satisfying creditors and recognised liabilities merely because one beneficiary contributed toward improvements made to the property. The first defendant’s equity, insofar as it exists, lies in the recovery of the acknowledged debt or compensation from the proceeds of sale, not in preventing the sale altogether. **Note : Serial number will be used to verify the originality of this document via eFILING portal 24

53. This conclusion is reinforced by the terms of Madam Lai’s will itself. The will expressly devised TD8 equally among the plaintiff, the first defendant, and Wong Keh Shin. The first defendant was therefore fully aware that any beneficial entitlement he possessed under the will extended only to a one-third share in the property. In those circumstances, the contention that Madam Lai intended TD8 to become the first defendant’s exclusive family home indefinitely is difficult to reconcile with the express testamentary disposition she chose to maintain throughout her lifetime. Any expectation of exclusive occupation asserted by the first defendant sits uneasily with the clear terms of the will, which were never revoked or altered. The Fiduciary Imperative: Power of Sale and the Position of Beneficiaries

54. The plaintiff, in her capacity as executrix, does not enjoy the liberty of indefinitely postponing payment of the estate’s liabilities pending the resolution of familial disagreements. Her obligations are prescribed by statute and arise independently of the wishes or preferences of individual beneficiaries.

55. Section 67 of the Probate and Administration Act 1959 expressly provides that the property of the deceased constitutes assets available for the payment of debts and liabilities. Section 68(2) further requires that, out of the monies realised from the estate, the personal representatives shall satisfy all funeral, testamentary, administration, and other lawful debts and liabilities. **Note : Serial number will be used to verify the originality of this document via eFILING portal 25

56. The estate before this Court is plainly burdened by substantial indebtedness owed to Maybank and Public Bank. Those liabilities are neither speculative nor contingent. They are existing obligations which the executrix is legally bound to address. In those circumstances, the plaintiff is not acting out of caprice or hostility toward the defendants, but in discharge of her fiduciary and statutory duties.

57. The defendants, relying on Lai Siew Kien v Solid Invention Sdn Bhd & Ors [2020] 1 LNS 1092; [2020] MLJU 909; [2020] CLJU 1092, contend that the plaintiff requires either the consent of the beneficiaries or an order of court before disposing of TD8 because the property was specifically devised under the will. In my judgment, that authority is distinguishable on its facts and context. Lai Siew Kien (supra) concerned a solvent estate in circumstances where there was no pressing necessity requiring the sale of the particular asset in question for the purpose of satisfying urgent liabilities. The present case is materially different.

58. Here, the estate faces substantial secured indebtedness and the real prospect of enforcement proceedings in the event of continued default. The evidence further establishes that TD8 represents the estate’s only substantial and readily marketable asset capable of generating proceeds sufficient to address those liabilities in any meaningful manner.

59. By contrast, the alternative assets identified by the defendants, namely the six CentreStage units, are leasehold properties entangled in unresolved strata and judicial management issues, **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 rendering their commercial realisation uncertain both in timing and value. To require the executrix to realise those assets first, or to obtain the consent of a beneficiary whose personal interest lies in resisting the sale altogether, would improperly fetter the executrix in the discharge of her duties to creditors.

60. The law is clear that the primary obligation of a personal representative is the payment of debts before distribution to beneficiaries. In Lau Yoke Hee & Anor v Ting Liang Teng & Anor [2005] 3 CLJ 770; [2005] 1 MLRA 629 (CA), the Court of Appeal held: “With respect, we are unable to agree with learned counsel's interpretation of this section. It is not, and it has never been the law that the sale of the property belonging to the deceased cannot be transacted without the consent of the beneficiaries of that estate. There are a number of authorities on that point but we only need to refer to two of them. The first is ltam bte Saqd v. Chik bte Abdullah U9741 2 MLJ 53. In that case, Syed Agil Barakbah J (later SCJ) whose learning on this area of the law is to be regarded with deep respect had this to say…” [Emphasis is mine]

61. The same principle was reaffirmed in Tan Hock Khoon v Phua Siew Lang (P) & Ors [2006] 6 MLJ 645; [2006] 6 AMR 33; [2006] 4 CLJ 423, where the Court observed: “[9] There is one further point that we think ought to be made clear in view of the way in which the case was argued here and in the court below. Whilst the court may have regard to the interests of the beneficiaries there is **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 no requirement in law that a sale of the property of a deceasedt estate must have the consent of all or even a majority of the beneficiaries. In Chee Hock Lai v Tan Swee Thai [1990] 3 MLJ 477, Abdul Malek Ahmad J (now President of this court) said: Based on the said authorities, I had referred to ss 60 and 7l of the Probate and Administration Act 1959 where the provisions clearly state that where an administrator of an estate takes action without getting the approval of the court, the said action or any agreement made does not become null and void on the application of any party who has an interest in the matter. In this case, no one has taken any steps to vitiate the said agreement and moreover following the case of ltam bte Saad v Chih bte Abdullah (1974) 2 MLJ 53 which was upheld by the Federal Court in Chik bte Abdullah v ltam bte Saad [1974) 1 MLJ 221, the consent of the beneficiaries is not necessary to make the said agreement.” [Emphasis is mine]

62. The defendants placed considerable emphasis upon the dispute concerning the funds associated with Real Harvest. It was argued that the plaintiff only moved to sell TD8 after being restrained, pursuant to the interlocutory injunction granted in Suit 357, from utilising those funds toward servicing the estate’s liabilities. From this, the defendants invited the Court to infer bad faith or collateral motive on the part of the plaintiff.

63. I am unable to accept that submission. The injunction granted in Suit 357 concerned the interim preservation and disputed beneficial ownership of particular funds. It did not extinguish, suspend, or diminish the liabilities owed by the estate to its creditors. Those **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 liabilities remain extant irrespective of the outcome of the Real Harvest dispute. Once the plaintiff was restrained from utilising that source of funds, it became incumbent upon her, as executrix, to identify alternative means by which the estate’s liabilities might be met. She could not lawfully decline to address the estate’s indebtedness merely because one potential source of liquidity had become unavailable pending litigation.

64. In the circumstances, the decision to realise TD8 cannot properly be said as capricious, malicious, or actuated by collateral purpose. On the contrary, it was a commercially rational step taken in furtherance of the executrix’s legal duty to preserve the estate, satisfy creditors, and prevent further deterioration of the estate’s financial position.

65. In those circumstances, the balance of equities does not favour permitting the defendants to remain indefinitely in occupation of TD8 to the detriment of creditors and the administration of the estate. To do so would effectively prevent the executrix from realizing the estate’s principal asset and thereby frustrate the lawful discharge of her fiduciary obligations.

66. Accordingly, even assuming that some equitable entitlement arose in favour of the first defendant by reason of his expenditure and reliance, I am unable to conclude that such equity extends so far as to defeat the executrix’s duty and authority to realise TD8 for the purpose of satisfying the estate’s liabilities. **Note : Serial number will be used to verify the originality of this document via eFILING portal 29

67. In my judgment, the more proportionate and equitable outcome lies in recognising the first defendant’s contributions as giving rise to a compensatory or reimbursement claim capable of satisfaction from the proceeds of sale, rather than permitting an asserted equity of occupation to override the interests of creditors and the proper administration of the estate as a whole. The Application to Strike Out

68. The defendants further seek to strike out the originating summons on the grounds that it is scandalous, frivolous, vexatious, and otherwise an abuse of process. That application cannot succeed.

69. The principles governing the striking out of pleadings are well settled and require little elaboration. The jurisdiction is draconian in nature and must therefore be exercised sparingly and only in plain and obvious cases. The governing authority remains the decision of the Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36; [1993] 4 CLJ 7. The oft-quoted passage from that decision bears repetition: “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (see AG of Duchy of Lancaster v L & NW Rly Co 8). It cannot be exercised by a minute examination of **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors 9). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [Emphasis is mine]

70. Measured against those principles, the present case plainly falls outside the narrow category of cases suitable for summary termination. The plaintiff’s claim is founded upon her legal and statutory obligations as executrix of an estate burdened by substantial indebtedness. The fact that the defendants have advanced arguable equitable contentions concerning contribution, occupation, and proprietary estoppel does not render the originating summons frivolous or abusive. On the contrary, those competing claims underscore why the dispute properly requires judicial determination.

71. Nor am I persuaded that the originating summons was commenced for any collateral or improper purpose. The evidence establishes that the plaintiff seeks vacant possession as a necessary precursor to the realisation of TD8 for the purpose of satisfying the estate’s liabilities. Whether the defendants possess any equitable entitlement capable of qualifying that right was the very issue requiring adjudication before this Court. **Note : Serial number will be used to verify the originality of this document via eFILING portal 31

72. In the circumstances, the defendant’s striking-out applications are devoid of merit and must be dismissed. Conclusion

73. In the final analysis, the law must steer a course between the heartstrings of family history and the hard lines of statutory duty. The defendants have undoubtedly built a life and a home within TD8. The contributions of the first defendant are substantial and acknowledged. However, equity cannot be used as a sword to defeat the rights of creditors and other beneficiaries. The indefeasibility of the title held by the estate remains the guiding star. The first defendant’s equitable interest is limited to a monetary claim for his proven contributions, not a right to retain possession to the detriment of the estate’s solvency.

74. The plaintiff, as executrix, must be allowed to perform her statutory duty. The application for vacant possession is justified. The licence to occupy was validly terminated. The defendants’ continued occupation constitutes trespass. Their striking-out applications are devoid of merit.

75. Accordingly, I hereby order:

(ii) The defendants’ applications vide enclosures 41, 43 and 45, to strike out, are dismissed; and

(iii) Costs of this application and the defendant’s applications to strike out are fixed at RM20,000, to be paid by the first and second defendants to the plaintiff, subject to allocatur. Dated the 16th day of June 2026 -SGN- ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 Counsel for the Plaintiff : Lau Kee Sern, Vynny Wong Poh Yee and Chung Jay Shin Messrs Kee Sern, Siu & Huey Counsel for the Defendants : Kriishand a/l Gopala Krishnan and Maria Faustina Messrs Kriishand G Krishnan **Note : Serial number will be used to verify the originality of this document via eFILING portal