Yap Wang Kian v Yeow Kah Loo (JA-22NCvC-146-10/2020)

NGO BOON TONG

YEOW KAH LOO (NO. K/P: 650605-01-5999) …PIHAK KETIGA PERBICARAAN SIVIL NO: JA-22NCvC-146-10/2020 YAP WANG KIAN …PLAINTIF 23/07/2026 17:06:13 JA-22NCvC-146-10/2020 Kand. 25 S/N pcffqGlwUmRsrfSLXv6nQ YEOW KAH LOO …DEFENDAN PERBICARAAN SIVIL NO: JA-22NCvC-153-11/2020 YEOW KAH LOO …PLAINTIF YAP WANG KIAN …DEFENDAN GROUNDS OF JUDGMENT A. Introduction: Background facts

This is a suit by distinct parties of different entity claiming rights over the same subject-matter, a piece of land known as HSM 3246 Lot 8411 Mukim Serai (refers to “the said land”). The different parties S/N pcffqGlwUmRsrfSLXv6nQ can be seen from the heading above, in the 3 separate suits which was then ordered to be consolidated and heard together. For easy reference, the main claimant will be referred to with their respective initials as follows:

The Deed of Title of the said land shows the land declared as “Group Settlement land” that necessitates compliance with the provisions contained in the Land (Group Settlement Areas) Act (Act 530) (hereafter refers as “GSA”). With the Deed of Title, comes with it the restrictions in interest (“sekatan kepentingan”) that prohibits against the following (extracted from the Deed of Title in its original form in Bahasa Malaysia: see Common Bundles of Documents enclosure 107 at page 196 pdf.): a. Tanah yang dikurniakan ini tidak boleh dijual, digadai, dicagar, dipajak atau dipindahmilik dengan apa cara sekalipun termasuklah dengan cara menggunakan segala surat perjanjian yang bertujuan untuk melepaskan/menjual tanah ini tanpa kebenaran Penguasa Negeri. b. Jika kebenaran di atas diberikan maka penjualan, gadaian, cagaran, pajakan atau pindahmilik itu hanya boleh dibuat kepada tidak lebih dari seorang. c. Tanah ini tidak boleh dipecah sempadan. S/N pcffqGlwUmRsrfSLXv6nQ

The land was initially owned by Mariam Binti Muhammad. It was then transferred to NBT on a finalised Sale and Purchase Agreement (SPA) dated 15.12.2009, with purchase sum stated as RM1,050,000.00, acted and completed between them both (see: enclosure 163 at page 38 pdf.). NBT was a director with NYC. This can be seen from the search done with Companies Commission of Malaysia (SSM).

A portion of the purchase price was made by way of a loan with Public Bank Berhad (PBB), where Tetuan Asiah & Hisam (named as 2nd and 3rd 3rd party) acted for NYC. There were correspondences between the Bank addressed to either NYC or the firm Asiah & Hisam with headings stating some if not all, the following details (see: enclosure 107 at page 199 & 200 pdf. of the said letters dated 3.1.2011) “Release of-Facility(ies): Fixed loan of RM630,000.00 Borrower(s): NY Container Specialist Sdn Bhd Property: HS(M) 3246 Lot 8411 Mukim Serai Daerah Kulaijaya Negeri Johor”.

The company NYC resolution dated 14.12.2009 contained the company’s agreement to a facility agreement of RM630,000.00 from PBB for the purchase of the said land. NBT and another director of NYC SD6 Mr. Yong On Cheong had jointly and severally guaranteed S/N pcffqGlwUmRsrfSLXv6nQ the facility. The resolution also specified for the common seal/rubber stamp of the company be affixed onto the relevant documents (see: enclosure 163 at page 37 pdf. for the resolution and page 112 pdf for the facilities agreement). The facilities agreement dated 12.10.2010 came with the company’s seal and the 2 directors of NYC’s signatures. This is in line with the company’s resolution.

The SPA clause 6 stipulates the right of the purchaser to obtain loan to part finance the payment of the purchase price upon being notified of the State Authority’s approval was granted to the vendor. The State Authority’s consent for this sale was obtained on 27.7.2010 (see: CBOD enclosure 165 at page 72 pdf.) B. Points of dispute: NYC vs NBT and issue if NBT holding land on trust

NYC contended that NBT was holding the land on trust for NYC as the GSA provisions at that material time contained a different but wider permissible limitation on transfer. This, following an amendment in year 2002 that came into force on 26.12.2002 when it permits as follows:

Holdings

the director may, in accordance with the provisions of this section, divide any land within a group settlement area into a number of holdings.

a rural holding shall be of such area as the state authority may approve and shall comprise one or more parcels of land within a rural S/N pcffqGlwUmRsrfSLXv6nQ settlement area for occupation by one individual holder or not more than two holders as may be permitted by this act and all rural holdings shall, as far as possible, be of equal area: provided that there may be included in a rural holding one parcel of land within an urban settlement area for occupation by the holder for residential purposes exclusively.

…

The provision before the amendment only allowed for an individual owner when it provided as follows:

…

A rural holding shall be of such area as the State Authority may approve and shall comprise one or more parcels of land within a rural settlement area for occupation by one individual holder and all rural holdings shall, as far as possible, be of equal area: Provided that ….

…

Despite this amendment, the restriction in interest of Lot 8411 on the Deed of Title remains the same “occupation by one individual owner”, without any change. Parties had deliberated on whether NYC with 2 directors when the SPA was signed in year 2009, have the capacity to hold the said land as owner. Thus, it is understood why the witnesses from the land office itself SP1 and SD5 appeared to be uncertain but this Court agreed with the submission by counsel S/N pcffqGlwUmRsrfSLXv6nQ for NYC that they were clear that GSA land can be held by a corporate entity with not more than 2 directors or 2 shareholders.

Other parties including the Plaintiff had contended that the trust needs to be registered in accordance with section 344 of the National Land Code. This Court is of the view it is not a mandatory requirement as the word use in the relevant section 344(2) is “may”. Section 344 states as follows: Section 344. Registration as trustee or trustees, and deposit of trust instrument

Where, by any instrument of dealing or order of the Court or Land Administrator, any alienated land or share or interest therein is transferred or transmitted to, vested in or created in favour of any person or body “as trustee”, or two or more persons or bodies “as trustees”, the Registrar shall so describe him, it or them in the memorial of registration.

The proprietor or co-proprietors of any alienated land, and any person or body in whom any share or interest in alienated land is for the time being vested, may apply to the Registrar to be registered in respect of that land, share or interest “as trustee” or, as the case may be, “as trustees”; and the Registrar shall give effect to any such application by making the appropriate addition to, or amendment of, the existing memorial of registration”.

The SPA between the original owner Mariam and NBT did not mention anything to this effect that the land would be held by NBT S/N pcffqGlwUmRsrfSLXv6nQ on trust for NYC albeit other existing documents of NYC such as the company’s resolution and financial statements contain such fact or statement to this effect. It is for this reason that this Court concluded section 344(1) of NLC is not applicable. Section 344(2) however, may be applicable but is not strictly required by law as option is given by the use of the word “may”.

The other Director of NYC Yong On Cheong (SD6) had lodged a police report against NBT via Senai Report 004216/19 on 9.7.2019. NBT by then was a fugitive. The police report was made on grounds of criminal breach of trust committed by NBT against NYC. The report in itself supports NYC position that the land was held by NBT on trust for NYC.

The financial statements of NYC too, for the year 2011 up to 2017 contained statement notifying a land in Johor held in the name of a director in trust for the company and the purchase being partly financed by PBB (see: enclosure 164 at page 150 pdf.). Both directors of NYC being NBT and Yong On Cheong signed these audited financial statements.

This Court finds support on this point that there was in existence evidence of a creation of trust between NYC and NBT relying on the decisions by the Court of Appeal referred to by counsel for NYC in the submission (see: the case of Zainab bt Ibrahim v Limah Bt Che Mat [2014] 1 LNS 716; [2014] MLJU 702 referred to by Liza S/N pcffqGlwUmRsrfSLXv6nQ Chan J in Dato’ P.B.Ashok P.B Krishnan Pillai & Ors v Azrin Fazrina Jamri & Anor [2022] CLJU 541; Chong Yaw Ming v Hew Ah Fatt [2021] 1 LNS 819; Ambikamurali PV Govindan v Kannan Deban PV Govindan [2021] 3CLJ 220; Si Soo Hong v Si Hock Seng & Others [2024] CLJU 1903).

This Court noted the submission by the Plaintiff suggesting that the Court of Appeal in Ambika had allowed the appeal, having ruled that the ought to be a single proprietor in a GSA land. However, agreed with the submission by NYC that the Court of Appeal had in fact accepted the arrangement of a trust where the GSA land was ruled by the Court of Appeal, held on trust by the Defendant for his mother and siblings.

After NBT went missing and after his removal as director from NYC, NYC acted to secure its interest over the said land by filing a suit JA-24NCVC-217-04/2019 against NBT. In the meantime, a caveat was lodged by NYC on the said land via presentation number 401/2018 registered on 11.7.2018. On 10.7.2019, an order was obtained by NYC declaring NYC as beneficial owner of the said land and Defendant hold the land on trust for NYC (see: enclosure 109 at page 41 pdf. for the Court Order and page 52 pdf. for the land search on NYC’s caveat).

Other interested parties in this suit, submitted that the absence of a caveat by NYC upon registration of the said land on NBT’s name, S/N pcffqGlwUmRsrfSLXv6nQ attracts an adverse inference going against NYC’s stand that the land being held on trust by NBT, for NYC. Firstly, it is the finding of this Court that the absence of a caveat by NYC is merely to comply with the restriction in interest that the granting of occupation is just for an individual whilst NYC comprised of 2 directors at that time.

Secondly, it is the finding of this Court that the contemporaneous document of the charge form 16A dated 12.10.2010 contained the same position that NBT, although was registered as owner of the said land, had agreed to have it charged to PBB for the purpose of the loan granted to NYC (see: CBOD enclosure 163 at page 153 pdf.)

SD6 the other Director of NYC (called by NYC) testified that the absence of, not only the caveat but also a written trust deed was because NYC was not advised by the lawyer to do so. It is the finding of this Court that a probable inference arising from this, is that the creation of the trust between NYC and NBT is well established from the available documents as highlighted by this Court.

Such being the case, lodging a caveat by NYC at that material time, may risk facing the hurdle with the written restriction in interest of “ownership by a single individual” of a GSA land endorsed on the Deed of Title. Therefore, this Court is of the view nothing adverse can be drawn from the late entry of a caveat by NYC, only on S/N pcffqGlwUmRsrfSLXv6nQ

11.7.2018. This, having also noted by this Court that NBT was removed from NYC’s board of directors on 30.7.2018. C. Competing interest on the said land by YWK and YKL

YWK’s claim on the said land arose from a Settlement Agreement (“SA”) between YWK and Win Divine Investment (S) Pte Ltd and NBT dated 31.5.2016 (see: enclosure 107 at page 270 pdf.). 3rd party Asiah & Hisam was solicitor for NBT who was identified as “transferor” in the said SA, with Win Divine as “receiver” and YWK as “provider”.

It is noted by this Court that there is some error on the first page of the SA (see: enclosure 107 at page 270 pdf.) as it states “provider’s solicitor” to be “Messrs. Asiah & Hisam” and “Messrs. David Gurupatham” identified as “transferor’s solicitor” when it should read the other way around “provider’s solicitor” as “Messrs. David Gurupatham” with “YWK correctly identified as “provider”. The “transferor’s solicitors” to read as “Messrs. Asiah & Hisam” with “NBT” correctly identified as “transferor”.

The SA was a result of 2 business venture agreement (BVA) entered into between YWK and Win Divine, dated 18.3.2014 and 8.4.2014 (see: enclosure 107 at page 239 pdf). YWK had remitted a sum of SGD350,000.00 to Win Divine. YWK sought to lodge a caveat on 10.11.2016 by way of form 16B, on the said land. The caveat was S/N pcffqGlwUmRsrfSLXv6nQ then registered on 20.11.2016. In the SA, NBT represented himself as the registered and beneficial owners of the said land (Lot 8411).

The 2 BVA were subsequently aborted. This gave rise to the formulation of the SA executed between NBT and YWK. This SA was a pledge by NBT, agreeing to transfer the said land as consideration of a full discharge and settlement of monies due to YWK. What caused the “cancellation” or abortion of the VA, is not known neither the date of any notice of the said cancellation was specified in the SA. But, it is certain that there was a termination as this fact was generally stated in clause B of the SA.

Although in scrutinising the facts, one would frown having noted that Asiah & Hisam was acting for NBT in this SA matter when the same firm also acted for NYC earlier, in the SPA of the said land involving the owner Mariam. It is the finding of this Court that although it may not be appropriate for the said firm to now, act for “NBT”, the new client as there may be possible conflict arising later. Yet, it is not wrong as no complaints seemed to arise from this.

It has to be reminded that the pertinent SPA and the facilities agreement were in 2009, whilst this SA was in 2016. NBT was a director of NYC in the 2009 transaction whilst NBT in the SA was a director of Win Divine (see: company profile of Win Divine in enclosure 107 at page 220 pdf.). YWK on the other hand, a different 3rd party, new to the scene. S/N pcffqGlwUmRsrfSLXv6nQ

Circumstances may have changed. Memories or records of former representation by the firm may have lapsed. In any event, in absence of any expert evidence to say that this is in breach of the Legal Profession Act 1976, this Court did not see anything illegal on the part of Asiah & Hisam to act for NYC, then and to act for NBT now because it was an act on 2 split occasions, with NBT representing different ‘master’. Other adverse facts of NBT gone missing and the police report against NBT had not transpired.

In the middle of year 2017, NBT then went missing. This resulted in the completion of the SA stalled. YWK then filed a suit against NBT via JA-24NCVC-272-06/2018 at the JB High Court seeking for, amongst others a declaration that the SA dated 31.5.2016 being valid and specific performance for the transfer of the said land.

YWK also sought for an alternative relief that, should there be failure on the part of NBT to complete the transfer, the Court Registrar is entitled to do the signing of the necessary documents, followed by a delivery of vacant possession of the said land to YWK. A Judgment was obtained by YWK (refers to “YWK’s order”) on 3.10.2018 with the said reliefs granted (see: enclosure 107 at page 331 pdf.).

Having looked at the 2 BVA, this Court could not resist but to agree with the submission by NYC that the BVA comprising of a loan of SGD150,000.00 to result in a return of USD3,000,000.00 for the 1st BVA and a loan of SGD200,000.00 to result in a return of EURO S/N pcffqGlwUmRsrfSLXv6nQ 5,000,000.00 for the 2nd BVA, are far-fetched and illogical and is a sham, but instead is a money lending transaction.

In the absence of any cogent evidence to show proof of money transactions between YWK and Win Divine and Datuk Sri Raden Hilmi (parties named in the BVA), it is therefore inevitable that the determination by this Court that the BVA is in fact a money lending transaction, became the conclusion arrived at by this Court. D. YKL’s interest

YWK’s order, to this Court however, is open to challenge by YKL who was also claiming his interest over the said land. YWK would have been alerted of YKL’s caveat entered on 28.7.2016 registered as presentation No. 321/2016, if a more recent land search done. Although this caveat was withdrawn by YKL later in May 2017, YWK ought to have known the existence of YKL’s caveat when YWK himself entered a caveat on 20.11.2016.

A land search done either shortly prior to or shortly after the lodging of YWK’s caveat would have revealed YKL’s caveat. Hence, having then been alerted of YKL’s caveat, YWK ought to have named YKL as a party in suit JA-24NCVC-272-06/2018, but this did not happen. S/N pcffqGlwUmRsrfSLXv6nQ

YKL’s claim over the said land arose from a SPA dated 18.7.2016 between YKL and also NBT (see: enclosure 108 at page 34 pdf.). The agreed price was RM2,380,000.00. Having paid RM1,800,000.00 towards the purchase price, the precedented move was to lodge a caveat on the said land to protect his interest.

YKL lodged a caveat on 28.7.2016 but it was withdrawn in May

The withdrawal, said was aimed with the purpose to allow application by NBT for state consent. The state consent, arises following the restriction in interest on the deed of title, before a transfer can be permitted. NBT did not take any steps towards obtaining the necessary consent before he (NBT) eventually went into hiding sometime July 2017.

The precise time or date NBT went missing is important as parties have focussed on the date of filing of caveat by parties to demonstrate the bona fide of all, in not only protecting their interest but also in addressing the missing NBT. From the correspondences between Asiah & Hisam with Messrs David Gurupatham and NBT himself, this Court formed the view that NBT became untraceable sometime end of July 2017 (see: enclosure 107 at page 318 pdf. for the correspondence).

The official removal of NBT as director of NYC happened on 30.7.2018, formalised by way of Companies Act Section 58 “Position of Change in the Register of Directors, Managers and S/N pcffqGlwUmRsrfSLXv6nQ Secretaries” Notice (see: enclosure 107 at page 330 pdf. for Section 58 Notice). Evidence was led by the Immigration officer to show that NBT left Malaysia via KLIA on 22.11.2017 and never returned.

YKL made another submission to enter a second or subsequent caveat and the caveat was registered on 24.6.2018 as presentation number 358/2018. YKL then commenced his suit via JA-22NCC-65- 12/2018 against NBT. With the absence of NBT to challenge the suit, an order for summary judgment in favour of YKL was allowed by the High Court, on 26.6.2019 (see: enclosure 163 at page 307 pdf.).

The summary judgment order granted specific performance of the SPA with NBT Defendant was directed to do the necessary towards obtaining the state authority’s consent for the sale and transfer of the said land. Alternatively, if the Defendant fails, the Senior Assistant Registrar of the High Court is authorised to do so. E. The State Authority’s consent in all ‘3 dealings’

First and foremost, it is this Court’s finding that NBT hold the said land on trust for NYC in the 2009 SPA. This took place prior to NBT and YWK entering into BVA and SA (business venture agreement and the settlement agreement). This Court is of the view, it cannot be disputed that the acts of NBT in all the transactions being the SA with YWK and the SPA with YKL are full of fraud that moved the S/N pcffqGlwUmRsrfSLXv6nQ other director of NYC (SD6) to lodge a police report alleging criminal breach of trust committed by NBT towards NYC.

This is added by the fact that NBT in the SA (settlement agreement) transaction with YWK, obtained state consent on 28.11.2016. Yet, knowing at that same time there was in existence a sale of the said land by NBT taking place with YKL, by way of SPA dated 18.7.2016.

This Court however, did not find any move to obtain the state consent by NBT in the YKL matter. NBT did not initiate any action to this effect for a state consent. Yet, at the same time, this Court observed that caveat was only lodged by YKL first, on 28.7.2016, a slight delay of 10 days from the date of the SPA 18.7.2016. It was removed in May 2017, before the second caveat which was only lodged almost a year later on 24.6.2018.

The peculiar thing is there was no suggestion coming from YKL that NBT could not be traced, yet this fact appeared in the suit between YWK and NBT as can be seen from the correspondence between Messrs. Asiah & Hisam and Messrs. David Gurupathnam, deliberated earlier in this judgment. Therefore, to this Court what was the real reason for the removal of the caveat in May 2017 by YKL, is questionable. S/N pcffqGlwUmRsrfSLXv6nQ

Furthermore, the only amount said to have been paid by YKL to NBT was RM238,000.00 as stated in his statutory declaration (SD) for the 1st entry of caveat. The amount paid remained the same RM238,000.00 as stated in his 2nd SD for the subsequent caveat, despite after lapsed of almost 2 years of the SPA. The purchase price under the SPA was RM2,380,000.00. This Court finds the act by YKL, as absurd and ridiculous.

It is the finding of this Court that NYC agreed for the transfer of the said land to NBT, with the purpose to address the limitation of occupation by one holder alone, as stated in the restriction in interest found on the Deed of Title. It is the finding of this Court too, that the trust element that NBT was holding the said land on trust for NYC can be seen clearly stated or can be inferred from other documents of NYC. This was analysed earlier by this Court.

The transactions between NBT and YWK, NBT and YKL are full of illogical and consist of unexplained facts that moved this Court to conclude both the transactions as baseless, not supported by any cogent evidence and therefore a sham. The consequential result is that any caveat entered should also fail.

Hence, this Court ruled their respective actions as dismissed with only the counter-claim by NYC against YWK was allowed only to the S/N pcffqGlwUmRsrfSLXv6nQ extent that the land was held on trust by NBT for NYC. All other declaration of status or position of the agreements between parties YWK and YKLE are rejected, as deliberated earlier in this judgment. All other claims for damages equally are dismissed as no evidence put forward by any of the parties. It similarly follows that the claims by NYC against 3rd party (Asiah Binti Supian and Norlita Binti Mohd Tahir) are dismissed. Dated 19th July 2026 -sgnd- (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) JUDGE HIGH COURT OF MALAYA IN JOHOR BAHRU Solicitors for the Plaintiff YWK :

Tan Vincent

Kang Ying Qian Messrs How, Ong & Associates Solicitors for the Defendant NYC : Chang Tau Sian Messrs Henry Soong & Chang S/N pcffqGlwUmRsrfSLXv6nQ Solicitors for 3rd party YKL Leslie Looi Meng Messrs Dennis Nik & Wong Solicitors for 3rd party Asiah and Norlita

Husna Bte Azman

Fatimah Az-Zhara Bte Mohamed Ibrahim Messrs Syed Amir Naqib & Co S/N pcffqGlwUmRsrfSLXv6nQ