[2014] 1 LNS 1335 Legal Network Series

MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT MIRI
[ORIGINATING SUMMONS NO.: MYY-24-46/7-2013]

In the matter of Section 139 of the

Sarawak Land Code (Cap 81)
AND
In the matter of Section 41 of the
Specific Relief Act 1950
AND
In the matter of Section 10 of the
Sarawak Limitation Ordinance (Cap
49)

BETWEEN

LEONG YEU MOI (F)

(NRIC No. 470822-10-5108)
Lot 56, Kampung Haji Wahid,
\98000 Miri, Sarawak. ... Plaintiff

AND

NEO AI SI (F)
(NRIC No. 770518-01-5524)
Sued as administratrix of the estate of the late
WONG TIONG HUA (deceased)
Lot 1192, King’s Park,
Jalan Hilltop, 98000 Miri, Sarawak. ... Defendant

BEFORE THE HONOURABLE JUDGE

YANG ARIF STEPHEN CHUNG HIAN GUAN

IN OPEN COURT

1
[2014] 1 LNS 1335 Legal Network Series

RULING

1. By an Originating Summons, the Plaintiff prays for a

declaration that a double-storey semi-detached

house described as Lot 1550 Block 2 Miri

Concessions Land District is held on trust by the

Defendant’s estate for the Plaintiff; and for an order

that the Defendant’s estate shall transfer Lot 1550

Block 2 Miri Concession Land District (MCLD) to the

Plaintiff failing which the Senior Assistant Registrar

of the High Court at Miri shall execute a

Memorandum of Transfer for and on behalf of the

Defendant’s estate to the Plaintiff.

2. The Plaintiff submitted that the deceased held Lot

1550 Block 2 MCLD on trust for her whereas the

Defendant contended that the deceased did not hold

Lot 1550 Block 2 MCLD on trust for the Plaintiff and

that there was no evidence of trust created in favour

of the Plaintiff.

2
[2014] 1 LNS 1335 Legal Network Series

3. T h e r e a r e f o u r ( 4 ) t y p e s o f t r us t , n a m e l y e x p r e s s

trust, implied trust, resulting trust and constructive

trust. To create a trust, there are three ingredients

necessary for the creation of the trust:- (a) certainty

of words; (b) certainty of subject matter; and (c)

c e r t a i n t y o f o b j e c t . A c o n s t r u c t i v e t r u s t i s i m p os e d

by operation of law, ie, it overrides the intention of

the parties. When a person deals with a property in a

way which is deemed to be unconscionable, a court

o f e q u i t y w i l l c o n s t r u e t h e p e r s on t o b e a t r u s t e e o f

that property: see Yong Ah Chee v. Lee Chong Hai

& Anor and Other Appeal [1994] 3 CLJ 20,

Perman Sdn Bhd & Ors v European Commodities

Sdn Bhd & Anor [2005] 4 CLJ.

4. A court may presume an implied trust despite the

absence of specific language creating a trust. The

registered p r o pr i e t o r is p r e s um e d to hold the

property on trust for the person who had supplied or

paid the purchase money for the property: Pathma

3
[2014] 1 LNS 1335 Legal Network Series

Naganather & Anor v. Nivedita Nagather (No. 1)

[2003] 8 CLJ 457.

5. The Plaintiff averred that at the end of January 2008

she purchased Lot 1550 Block 2 MCLD (the property)

together with a relative Chee Ah Chuan @ Se Poh

Eng and her daughter Chong Lai Kit (who is an

undischarged bankrupt) at a purchase price of

R M 2 5 5 , 0 0 0 . 0 0 . A b r o k e r P a t r i c k N g w a s a p p o in t e d

as their nominee and trustee as the purchaser of the

p r o p e r t y . S u b s e qu e n t l y , h e r r e l a t i v e d e c i d e d n o t t o

p r o c e e d w i t h t h e p u r c h a s e b u t t he P l a i n t i f f a g r e e d t o

continue to purchase the property.

6. The Plaintiff averred that on 20.3.2008 a Sale and

Purchase Agreement and a Memorandum of Transfer

(exhibit LYM-4) were executed between Patrick Ng

and the Vendor. On 8.7.2008 a Power of Attorney

(exhibit LYM-9) was granted in favour of Patrick Ng

by the Vendor in respect of the property.

4
[2014] 1 LNS 1335 Legal Network Series

7. The Plaintiff averred that subsequently Patrick Ng

decided not to continue as the nominee of the

Plaintiff. The deceased was then appointed as the

nominee of the Plaintiff and the property was

transferred to the deceased by Patrick Ng vide a

me morandum of transfer (exhibit LYM-10).

8. The Plaintiff did not plead specifically whether she

r e l i e d o n a n e x p r e s s t r u s t , i m p l i e d t r u s t , r e s u l ti n g

trust or constructive trust. However, the Plaintiff

submitted that she made payments totaling

RM80,000.00 (Exhibit LYM-2 and LYM-3) which were

acknowledged and received by the Vendor. The

Plaintiff submitted that the Vendor also issued

receipts in her name for sums a mounting to

RM255,000.00 paid by her.

9. The Plaintiff submitted that on 1.1.2010 the property

was rented to one Ho Chiah Liang by the Plaintiff.

The Plaintiff averred that the tenancy agreement was

s i g n e d b y C h o n g L a i K i t o n b e ha l f o f t h e d e c e a s e d

and that the monthly rentals were paid to the

5
[2014] 1 LNS 1335 Legal Network Series

Plaintiff via standing instructions by the tenant to

CIMB Bank (Exhibits LYM-13 and LYM-14) instead

to the deceased. The Plaintiff averred that on

13.9.2010 she lodged a caveat against the property

to prevent the deceased from dealing with the

property (Exhibit LYM-15).

10. The Plaintiff also averred that on 13.8.2009 the

memorandum of transfer from the Vendor to Wong

Tiong Hua (deceased) as the Plaintiff’s nominee was

signed in the presence of Antonio Sim, Chong Lai Kit

and Plaintiff.

11. The Defendant denied the allegations of the Plaint iff

and averred that there was nothing in writing that

the deceased had agreed to be appointed as the

nominee of the Plaintiff to hold the property on trust

for the Plaintiff. It was submitted that the execution

o f t h e m e m o r a n du m o f t r a n s f e r t o t h e d e c e a s e d w a s

for a consideration of RM250,000.00. The Defendant

submitted that in the case of Lee Phek Choo v. Ang

Guan Yau & Anor [1975] 2 MLJ 146, it was held

6
[2014] 1 LNS 1335 Legal Network Series

that the Statute of Frauds applied to Sarawak and

t h a t a d e c l a r a t i on o f t r u s t w h i c h i s n o t e v i d e n c e d i n

writing is not enforceable

12. The Defendant submitted that the Plaintiff relied on a

Statutory Declaration of Patrick Ng (exhibit LYM-

12) that the deceased was holding the property on

trust for the Plaintiff. The Defendant submitted that

the statutory declaration was made by Patrick Ng

after he ceased to be the nominee of the Plaintiff and

after the death of the deceased. It was submitted

that it should not be used in this application.

13. The Defendant did not exhibit any receipt that the

deceased had paid for the property. Although the

P l a i n t i f f h a s e xh i b i t e d d o c u m e n t s i n p a r t i c u l a r t h e

receipts to show that she paid for the property, the

Defendant has denied that the deceased was the

nominee and or trustee of the Plaintiff in respect of

the property. There was no document exhibited to

establish an express trust between the Plaintiff and

the deceased or to appoint the Plaintiff as the

7
[2014] 1 LNS 1335 Legal Network Series

attorney of the deceased pursuant to a power of

attorney.

14. Based on the affidavits filed in this OS application,

there are disputes of facts and law. The court

should not made any finding of facts based on the

disputes raised in the affidavits in such a case. The

facts should be determined in a trial by calling

witnesses to establish the claim of the Plaintiff that

the deceased was at all material times that he was

the nominee and trustee of the Plaintiff in respect of

the said property.

15. Although Patrick Ng had made a declaration that he

was previously the nominee and trustee of the

P l a i n t i f f h o l d i ng the property on behalf of the

Plaintiff, his averments were not tested and not

subject to cross-examination. Patrick Ng should

testify and explain why he transferred the property to

the deceased and whether he or the Plaintiff had

received any payment from the deceased when the

transfer was executed.

8
[2014] 1 LNS 1335 Legal Network Series

16. Mr. Antonio Sim has not affirmed any affidavit but is
in a position to explain and clarify whether the
deceased was signing the transfer as the nominee or
trustee of the Plaintiff. Similarly, Chong Lai Kit and
Ho Chiah Liang could testify and explain the
transactions in respect of the property.

17. In this OS application, there are substantial disputes

of facts and it is not appropriate to decide the
existence or validity of the trust: Abdulmajid v. Haji
Abdulrazak [1971] 2 MLJ 228. For the reasons
given, the OS application is refused and should be
converted into a writ and to be set down for trial. It
is up to the parties to decide whether to treat the
affidavits filed as to stand as the pleadings in this
action or to file new pleadings for the trial. Costs to
be in the cause.

Dated: 21 MARCH 2014

(STEPHEN CHUNG HIAN GUAN)

Judge,
High Court Miri.

9
[2014] 1 LNS 1335 Legal Network Series

Counsel:

For plaintiff - Rajesh Jethi; M/S Jethi & Associates

Miri.

For defendant - Merlyn Toh; M/S Merlyn Toh & Co

Advocates, Miri.

10