Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o

Pennusamy & Ors and other appeals (Richard Malanjum CJ

[2015] 1 MLJ (Sabah and Sarawak)) 773

A Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o

Pennusamy & Ors (on their behalf and for the 213
sub-purchasers of plots of land known as PN35553, Lot 9108,
Mukim Hutan Melintang, Hilir Perak) and other appeals
B

FEDERAL COURT (PUTRAJAYA) — CIVIL APPEAL NOS 02(f )-58–09

OF 2013 (A), 02(f )-59–09 OF 2013 (A), 02(f )-60–09 OF 2013 (A) AND
02(f )-61–09 OF 2013 (A)
C RICHARD MALANJUM CJ (SABAH AND SARAWAK), AHMAD
MAAROP, HASAN LAH, ZALEHA ZAHARI AND RAMLY ALI FCJJ
27 NOVEMBER 2014

D Legal Profession — Duties — Client — Dispute over estate land — Allegation

that respondent had agreed to purchase land and had made deposit payments
— Solicitor bid for land under own name and succeeded — Claim that land was
his and transferred ownership into new company — Solicitor informed purchasers
that he was not their solicitor — Suggested purchasers to buy back their portions of
E estate land — Solicitor-client relationship — Whether to be determined only by
reference to retainer — Whether fiduciary entitled to restitution — Whether
court entitled to lift corporate veil of company in order to do justice

This appeal involved a dispute between clients (‘the respondents’) and their
F erstwhile solicitor, the first and second appellants. The subject matter was over
an estate land which the respondents claimed to have agreed to purchase and
had made some deposit payments. An auction was scheduled and the
purchasers became aware that the estate land was going to be put up for sale by
tender. The purchasers set up a pro-tem committee (‘the committee’) which in
G turn approached the second appellant through the first appellant in his capacity
as an advocate and solicitor. The first appellant was briefly informed of the
matter regarding the sale of the estate land. In view of the perceived urgency of
the matter, the first appellant applied for a registrar’s caveat to be entered on the
estate land. The first appellant also entered and assisted in the entry of private
H caveats on the estate land by a few of the purchasers. When the auction of the
estate land proceeded, the first appellant came to bid for it in his own name at
the price of RM4,000,000 and his bid was accepted. However, the sale could
not go through as an injunction was obtained to stop the sale. After the
injunction was set aside, once again the R&M called for the sale by tender of
I the estate land. SD7 and the first respondent together with some other
purchasers went to see the first appellant. Arising from that meeting the first
appellant went again to bid for the estate land for RM4,850,000. At request of
the first appellant, some of the purchasers paid the sum of RM276,450 being
their contributions towards the deposit payment for the auction bid. The first
774 Malayan Law Journal [2015] 1 MLJ

appellant was later informed that his second bid was successful and he therefore A
invited the purchasers to buy their allotted shares or plots from him. During a
meeting the first appellant for the first time told the purchasers that he was not
their lawyer and that the estate land was his land. The genuine purchasers
would have to buy back their portions of the estate land from the first appellant
on the basis of the supposed balances due to SPPKB. He suggested to the B
purchasers that they purchased their allotted shares or plots from him and he
drew up a proposed sale and purchase agreement to be entered by them with
him. On hearing this, the purchasers were not too pleased. They alleged that to
their understanding the first appellant was their solicitor when he made the bid
C
for the estate land. Meanwhile, the first appellant proceeded to set up the
fourth appellant with him, his wife and a friend as the directors. The first
appellant then transferred the ownership of the estate land to the fourth
appellant. As there was no agreement reached between the purchasers and the
first appellant the respondents proceeded to file this case at the High Court D
which adjudged for the appellants. The Court of Appeal reversed the decision
of the trial judge. The issues that arose were in the present appeal were whether
the existence of, and scope of duties in, a solicitor-client relationship was to be
determined only by reference to the retainer; whether a fiduciary was entitled to
restitution of expenditure incurred in securing a benefit subsequently E
determined to be due and payable to persons whom the fiduciary owes duties;
and whether a court was entitled to lift the corporate veil of a company in order
to do justice despite it not being the pleaded or argued case of the claimants
that the company concerned was used as an engine of fraud.
F
Held:
(1) In an action against a solicitor by his or her erstwhile client the threshold
issue is whether a solicitor-client relationship exists between the
plaintiff-client and the defendant-solicitor. In the absence of such G
relationship the defendant-solicitor in his professional capacity owes no
duty to the plaintiff-client. Where the evidence adduced including the
words and conduct that transpired between a solicitor and a client
determines that a solicitor-client relationship has come about, a retainer
can then be said to exist, express or by implication. It is therefore not H
necessarily the existence of an express retainer that determines the
existence of a solicitor-client relationship (see paras 35 & 40).
(2) There was definitely a solicitor-client relationship between the first
appellant and the purchasers including the respondents. The relationship
I
was not limited for those purposes as mentioned by the first and second
appellants. If indeed the first appellant wanted to limit the solicitor-client
relationship he could have easily indicated it to the purchasers or to any
of the members of the committee (see paras 47–48).
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 775

A (3) The purchasers entrusted the first appellant to get their portions of the
estate land for them. Instead, the first appellant took advantage of his
position as a fiduciary and having obtained the whole estate land, he
transferred it to his company, the fourth appellant. The first appellant was
in breach of his fiduciary duty. In so doing he had unjustly enriched
B himself. Hence, the first appellant must account for the profit and other
advantages he acquired while acting in breach of his fiduciary obligations
towards the purchasers (see para 77).
(4) It would be unconscionable to allow the first appellant to keep the profit
C and other advantages he made as a result of his acquisition of the estate
land. However, it would be inequitable for the purchasers to take the
whole of the estate land and/or profit without incurring expenses to
obtain them. The first appellant obtained the whole estate land,
including the portions identified to be the plots or as represented in the
D form of shares to which the purchasers laid their claims to be beneficially
entitled. Since not all the purchasers were parties in this case only the
plots and shares claimed by the respondents were therefore relevant in
this judgment. The estate land cannot be subdivided to enable separate
titles to be given as the respondents’ shares (see paras 77–78).
E
(5) The first appellant must pay to the respondents damages to be assessed.
When doing the assessment, the value of the respondents’ shares must be
taken into account. Indeed the respondents would have acquired their
shares if not for the act of ‘disloyalty or infidelity’ on the part of the first
appellant. Further to be taken into account when assessing the damages
F
were the profits flowing from the sale of the estate land. However, the
expenditure incurred by the first appellant had to be deducted from the
assessed damages and profits. To ascertain the damages and profits
payable to the respondents, an enquiry or assessment would have to be
conducted by a High Court judge preferably stationed in the High Court
G
(see paras 79–80).
(6) Evidence relating to the issue of whether the third appellant and SPPKB
were one and same entity and whether the first appellant was the alter ego
of the fourth appellant had been given without any objection from the
H appellants. It could not be said that such evidence had departed radically
from their pleaded case. Such evidence, had cured the absence of a
specific plea of the aforementioned parties being one and same entities in
the respondents’ statement of claim. The trial judge should not have
dismissed the issue on account of it being not pleaded (see paras 92 &
I 94).

[Bahasa Malaysia summary

Rayuan ini melibatkan pertikaian antara anak guam (‘responden-responden’)
dan bekas peguamcara mereka, perayu-perayu pertama dan kedua. Hal perkara
776 Malayan Law Journal [2015] 1 MLJ

adalah berkenaan tanah estet yang mana responden-responden mendakwa A

telah bersetuju untuk membeli dan telah membuat bayaran deposit. Satu
lelongan telah dijadualkan dan pembeli-pembeli mendapat tahu bahawa tanah
estet itu akan dijual melalui tender. Pembeli-pembeli telah menubuhkan
jawatankuasa sementara (‘jawatankuasa itu’) yang telah menghubungi perayu
kedua melalui perayu pertama dalam kapasitinya sebagai peguambela dan B
peguamcara. Perayu pertama secara ringkas telah diberitahu tentang perkara
berkaitan jualan tanah estet itu. Berdasarkan tanggapan kesegeraan perkara itu,
perayu pertama telah memohon untuk kaveat pendaftar dimasukkan ke atas
tanah estet tersebut. Perayu pertama juga telah memasuki dan membantu
dalam kemasukan kaveat-kaveat persendirian ke atas tanah estet itu oleh C
beberapa pembeli. Apabila lelongan tanah estet itu dijalankan, perayu pertama
telah membuat bidaan untuknya atas namanya sendiri pada harga
RM4,000,000 dan bidaannya telah diterima. Walau bagaimanapun, jualan itu
tidak berjaya kerana injunksi telah diperolehi untuk menghalang jualan itu.
Selepas injunksi itu diketepikan, penerima dan pengurus telah dipanggil sekali D
lagi untuk jualan melalui tender tanah estet. SD7 dan responden pertama
bersama dengan beberapa pembeli lain telah pergi berjumpa perayu pertama.
Berdasarkan mesyuarat tersebut perayu pertama telah pergi sekali lagi untuk
membuat bidaan ke atas tanah estet itu untuk RM4,850,000. Atas permintaan
perayu pertama, beberapa pembeli telah membayar jumlah RM276,450 E
sebagai sumbangan mereka terhadap bayaran deposit untuk bidaan lelongan
itu. Perayu pertama kemudian telah memberitahu bahawa bidaan keduanya
telah berjaya dan oleh itu dia telah menjemput pembeli-pembeli itu untuk
membeli saham atau plot mereka yang diperuntukkan daripadanya. Dalam
satu mesyuarat perayu pertama untuk kali pertama telah memberitahu F
pembeli-pembeli bahawa dia bukan peguam mereka dan bahawa tanah estet
itu adalah tanahnya. Pembeli-pembeli sebenar perlu membeli balik bahagian
tanah estet mereka daripada perayu pertama berdasarkan baki yang sepatutnya
kena dibayar kepada SPPKB. Dia mencadangkan kepada pembeli-pembeli
bahawa mereka telah membeli saham atau plot mereka yang diperuntukkan G
daripadanya dan dia telah membuat perjanjian jual beli yang dicadangkan
untuk dimasuki oleh mereka bersama dengannya. Setelah mendengar ini,
pembeli-pembeli tidak begitu gembira. Mereka mendakwa bahawa
berdasarkan pemahaman mereka perayu pertama adalah peguamcara mereka
apabila dia membuat bidaan untuk tanah estet itu. Sementara itu, perayu H
pertama telah meneruskan dengan menyediakan perayu keempat bersama
dengannya, isterinya dan seorang kawan sebagai pengarah-pengarah. Perayu
pertama kemudian telah memindah pemilikan tanah estet itu kepada perayu
keempat. Oleh kerana tiada perjanjian yang tercapai antara pembeli-pembeli
dan perayu pertama maka responden-responden telah meneruskan dengan I
pemfailan kes ini di Mahkamah Tinggi yang membuat keputusan berpihak
kepada perayu-perayu. Mahkamah Rayuan telah mengakas keputusan hakim
perbicaraan. Isu-isu yang timbul dalam rayuan ini adalah sama ada kewujudan,
dan skop kewajipan dalam hubungan peguamcara-anak guam perlu
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 777

A ditentukan hanya melalui rujukan kepada retainer; sama ada fidusiari berhak
untuk restitusi perbelanjaan yang ditanggung dalam mendapat manfaat yang
kemudiannya ditentukan adalah terhutang dan kena dibayar kepada orang
yang mana fidusiari itu mempunyai kewajipan; dan sama ada mahkamah
berhak mengangkat tabir korporat syarikat bagi tujuan melaksanakan keadilan
B meskipun ia bukan kes yang dipli atau dihujah oleh penuntut-penuntut
bahawa syarikat berkenaan telah digunakan sebagai jentera penipuan.

Diputuskan:

C (1) Dalam tindakan terhadap peguamcara oleh anak guam atau bekas anak
guamnya isu utama adalah sama ada hubungan peguamcara-anak guam
wujud antara plaintif-anak guam dan defendan-peguam. Tanpa
kewujudan hubungan sebegini defendan-peguam dalam kapasiti
profesionalnya tidak mempunyai kewajipan kepada plaintif-anak guam.
D Di mana keterangan dikemukakan termasuk perkataan-perkataan dan
perlakuan yang berlaku antara peguamcara dan anak guam menentukan
bahawa hubungan peguamcara-anak guam wujud, retainer bolehlah
dikatakan wujud, jelas atau tersirat. Oleh itu adalah tidak perlu
kewujudan retainer nyata yang menentukan kewujudan hubungan
E peguamcara-anak guam (lihat perenggan 35 & 40 ).
(2) Adalah pasti terdapat hubungan peguamcara-anak guam antara perayu
pertama dan pembeli-pembeli termasuk responden-responden.
Hubungan itu tidak terhad bagi tujuan yang dinyatakan oleh
perayu-perayu pertama dan kedua. Jika sememangnya perayu pertama
F ingin menghadkan hubungan peguamcara-anak guam dia boleh dengan
mudah menunjukkannya kepada pembeli atau kepada mana-mana
anggota jawatankuasa (lihat perenggan 47–48).
(3) Pembeli-pembeli telah mengamanahkan perayu pertama untuk
G memperolehi bahagian tanah estet mereka untuk mereka. Sebaliknya,
perayu pertama mengambil peluang daripada kedudukannya sebagai
fidusiari dan setelah memperolehi keseluruhan tanah estet, dia telah
memindahkannya kepada syarikatnya, perayu keempat. Perayu pertama
telah melanggar kewajipan fidusiarinya. Dengan berbuat demikian dia
H secara tidak adil telah mengayakan dirinya. Oleh itu, perayu pertama
perlu mengambil kira keuntungan dan kelebihan lain yang diperolehi
semasa bertindak dalam pelanggaran kewajipan fidusiarinya terhadap
pembeli (lihat perenggan 77).
(4) Adalah tidak berpatutan untuk membenarkan perayu pertama
I menyimpan keuntungan dan lain-lain kelebihan yang diperolehi olehnya
hasil daripada pengambilalihannya ke atas tanah estet itu. Walau
bagaimanapun, adalah tidak saksama untuk pembeli-pembeli
mengambil keseluruhan tanah estet itu dan/atau keuntungan tanpa
menanggung perbelanjaan untuk memperolehinya. Perayu pertama
778 Malayan Law Journal [2015] 1 MLJ

memperolehi keseluruhan tanah estet, termasuk bahagian yang dikenal A

pasti sebagai plot-plot atau sebagaimana dinyatakan dalam borang saham
di mana pembeli-pembeli telah meletakkan tuntutan mereka yang
berhak diperolehi secara benefisial. Oleh kerana bukan semua
pembeli-pembeli adalah pihak-pihak dalam kes ini hanya plot-plot dan
saham-saham yang dituntut oleh responden-responden dengan itu B
adalah relevan dalam penghakiman ini. Tanah estet itu tidak boleh
dipecah bahagikan bagi membolehkan hak milik berasingan diberikan
sebagai syer responden-responden (lihat perenggan 77–78).
(5) Perayu pertama perlu membayar responden-responden ganti rugi yang
C
ditaksirkan. Apabila membuat taksiran, nilai saham
responden-responden hendaklah diambil kira. Sememangnya
responden-responden akan memperolehi saham mereka jika bukan
kerana tindakan ‘disloyalty or infidelity’ di pihak perayu pertama.
Selanjutnya apa yang perlu diambil kira apabila menaksir ganti rugi
D
adalah keuntungan yang mengalir daripada jualan tanah estet itu. Walau
bagaimanapun, perbelanjaan yang ditanggung oleh perayu pertama
hendaklah dipotong daripada ganti rugi dan keuntungan yang
ditaksirkan. Untuk memastikan ganti rugi dan keuntungan yang perlu
dibayar kepada responden-responden, satu siasatan atau taksiran perlu
E
dilakukan oleh hakim Mahkamah Tinggi yang sebaik-baiknya bertempat
di Mahkamah Tinggi (lihat perenggan 79–80).
(6) Keterangan berkaitan isu sama ada perayu ketiga dan SPPKB adalah
entiti yang satu dan sama ada perayu pertama adalah alter ego perayu
keempat telah diberikan tanpa apa-apa bantahan daripada F
perayu-perayu. Tidak boleh dikatakan bahawa keterangan tersebut
berbeza daripada kes yang dipli oleh mereka. Keterangan tersebut telah
memulihkan ketiadaan pli spesifik pihak-pihak yang dinyatakan sebagai
entiti yang satu dan sama dalam penyataan tuntutan
responden-responden. Hakim perbicaraan tidak patut menolak isu G
tersebut disebabkan ia tidak dipli (lihat perenggan 92 & 94). ]

Notes
For cases on client, see 9 Mallal’s Digest (4th Ed, 2014 Reissue) paras
1521–1523. H

Cases referred to
Adams v Cape Industries plc [1990] Ch 433, Ch D (refd)
Boardman v Phipps [1966] 3 WLR 1009, HL (refd)
Boardman v Phipps [1967] 2 AC 46, HL (refd) I
Breen v Williams (1996) 186 CLR 71, HC (refd)
Bristol and West Building Society v Mothew [1998] Ch 1, CA (refd)
Cawdery Kaye Fireman & Taylor v Minkin [2012] EWCA Civ 546, CA (refd)
Datuk Jagindar Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196, FC (refd)
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 779

A Fladgate LLP v Harrison [2012] EWHC 67, QBD (refd)

French v Carter Lemon Camerons LLP [2012] EWCA Civ 1180, CA (refd)
Galambos and Another v Perez 2009 SCC 48, SC (refd)
Gilford Motor Co Ltd v Horne and another [1933] Ch 935, CA (refd)
Guinness Plc v Saunders [1990] 2 AC 663, HL (refd)
B Gurbachan Singh s/o Bagawan Singh & Anor v Vellasamy s/o Pennusamy & Ors
and other applications [2012] 2 MLJ 149, FC (refd)
Hilton v Barker Booth and Eastwood (a firm) [2005] UKHL 8, HL (refd)
Hospital Products Limited v US Surgical Corporation (1984) 58 ALJR 587, HC
(refd)
C
Hotel Jaya Puri Bhd v National Union of Hotel, Bar and Restaurant Workers &
Anor [1980] 1 MLJ 109 (refd)
Jones v Lipman [1962] 1 WLR 832, Ch D (refd)
Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574, SC
D (refd)
Law Kam Loy & Anor v Boltex Sdn Bhd and others [2005] MLJU 225; [2005]
3 CLJ 355, CA (refd)
Lie Hendri Rusli v Wong Tan & Molly Lim (a firm) [2004] 4 SLR 594, HC
(refd)
E Longstaff v Birtless [2002] 1 WLR 470, CA (refd)
Mackt Logistics (M) Sdn Bhd v Malaysian Airline System Bhd [2014] 2 MLJ
518, CA (refd)
O’Sullivan v Management Agency and Music Ltd [1985] QB 428, CA (refd)
Phipps v Boardman [1964] 1 WLR 993, Ch D (refd)
F Phipps v Boardman [1965] 2 WLR 839, CA (refd)
Prest v Petrodel Resources Limited and others [2013] UKSC 34, SC (refd)
Rabiah Bee bte Mohamed Ibrahim v Salem Ibrahim [2007] 2 SLR 655, HC
(refd)
Richard Buxton (a firm) v Mills-Owen [2010] EWCA Civ 122 (refd)
G Solid Investments Ltd v Alcatel-Lucent (M) Sdn Bhd (previously known as Alcatel
Network Systems (M) Sdn Bhd [2014] 3 MLJ 785; [2014] 3 CLJ 73, FC
(refd)
Spector v Ageda [1973] Ch 30, Ch D (refd)
Stephenson Nominees Pty Ltd v Official Receiver (on behalf of Official Trustee in
H Bankruptcy; Ex parte Roberts and another) (1987) 76 ALR 485, FC (refd)
Sunrise Sdn Bhd v First Profile (M) Sdn Bhd & Anor [1996] 3 MLJ 533, FC
(refd)
Superintendent of Lands and Surveys (4th Div) & Anor v Hamit bin Matusin &
Ors [1994] 3 MLJ 185; [1994] 3 CLJ 567, SC (refd)
I Takako Sakao (f ) v Ng Pek Yuen (f ) & Anor [2009] 6 MLJ 751, FC (refd)
Togstad v Vesely, Otto, Miller & Keefe and Jerre Miller 291 NW2d 686, SC (refd)
Underwood, Son and Piper v Lewis [1894] 2 QB 306, CA (refd)
Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of
plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir
780 Malayan Law Journal [2015] 1 MLJ

Perak) v Gurbachan Singh s/o Bagawan Singh & Ors [2010] 5 MLJ 437, CA A
(refd)
Vellasamy s/o Pennusamy & Ors v Gurbachan Singh s/o Bagawan Singh & Ors
[2006] 2 MLJ 715, HC (refd)
Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152; [1990] 1 CLJ (Rep) 330,
SC (refd) B
Yong & Co v Wee Hood Teck Development Corporation [1984] 2 MLJ 39, FC
(refd)
Legislation referred to
Contracts Act 1950 s 24 C
Courts of Judicature Act 1964 s 96(1)
National Land Code s 214A
Rules of the Federal Court 1995 r 137
Stamp Act 1949 s 52(1)
D
Appeal from: Civil Appeal No A-02–91 of 2006 (Court of Appeal, Putrajaya)
Malik Imtiaz Sarwar (Harpal Singh Grewal, Chan Wei June and Pavendeep Singh
with him) (Bachan & Kartar) for the first and second appellants.
Leong Kok Keong (Kean Chye & Sivalingam) for the third appellant. E
Loh Siew Cheang (Brian Foong Mun Loong, Eolanda Yeoh and Verene Tan Yeen Yi
with him) (Cheang & Ariff ) for the fourth appellant.
Ling Hua Keong (Mohamed Khairil bin Abidin with him) (Ling & Mok) for the
fifth appellant.
Cecil Abraham (DP Vijandran, T Kumar, Amrit Gill, S Ambiga and Ragunath F
Kesavan with him) (DP Vijandran & Assoc) for the respondents.

Richard Malanjum CJ (Sabah and Sarawak) (delivering judgment of the

court):
G
INTRODUCTION

[1] This case has a checkered history. It first came before this court for leave
to appeal pursuant to s 96(1) of the Courts of Judicature Act 1964 (‘the Act’).
It was refused. The appellants applied for a review under r 137 of the Rules of H
the Federal Court 1995. Despite being sparingly exercised this court ruled ‘that
this is another rare but an appropriate case for the exercise of the inherent
power of this court as envisaged in r 137’ (see Gurbachan Singh s/o Bagawan
Singh & Anor v Vellasamy s/o Pennusamy & Ors and other applications [2012] 2
MLJ 149). I

[2] Upon re-hearing of the leave application this court granted leave and
allowed five leave questions for consideration (‘the leave questions’). They are as
follows:
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 781

A Question 1: Whether the existence of, and scope of duties in, a solicitor-client
relationship is to be determined only by reference to the retainer;
Question 2: Whether a fiduciary is entitled to restitution of expenditure incurred in
securing a benefit subsequently determined to be due and payable to
persons whom the fiduciary owes duties;
B Question 3: Whether a Court is entitled to lift the corporate veil of a company in
order to do justice despite it not being the pleaded or argued case of the
claimants that the company concerned was used as an engine of fraud;
Question 4: Whether a trust could be imposed to allow the Respondents to acquire
equitable interests in the land prior to receivership when the
C Respondents acknowledge that their claim is limited to only a portion
of the total 3681 acres of undivided interest in the land; and
Question 5: Whether claimed beneficial interest in fragmented portions of Estate
Land contingent upon obtaining approval from the estate land board
under Section 214A of the National Land Code 1965 and/or the
D consent of transfer from the Menteri Besar entitles the Court to declare
beneficial interest for the purpose of an immediate equitable remedy.

[3] The leave questions may be categorised into two parts. Questions 1–2
deal with the relationship between the first and second appellants and the
E respondents. Questions 3–5 deal with the claims of the respondents on the
estate land. In our view Questions 1–2 may be determined on their own merits.
They are not dependent on the determination of Questions 3–5. Nevertheless
the status of the estate land at all material times may be relevant in the
assessment of damages should liability be found against the first and second
F appellants after considering Questions 1–2.

[4] In this judgment, unless stated otherwise, any reference to purchasers

includes the respondents but not vice versa.
G
[5] This case involves a dispute between clients, the respondents and their
erstwhile solicitor, the first appellant and his firm, the second appellant. The
other three appellants may be conveniently described as incidentals to the
dispute. The subject matter was over an estate land which the respondents
claimed to have agreed to purchase and had made some deposit payments.
H
[6] In their action filed in July 1994 the respondents prayed for the
following relief as summarised by the learned trial judge:
(a) that D1 (the first appellant) and D2 (the second appellant) were at all
I material times the solicitors acting for the plaintiffs (the respondents) with
a fiduciary duty in all the benefits and interests held by them to the
plaintiffs in the purchase of the said land (the estate land) by way of tender;
(b) that D1 held the said land which D1 purchased from the R&M, in trust
for the plaintiffs;
782 Malayan Law Journal [2015] 1 MLJ

(c) that the four named plaintiffs or other fit and proper persons be now A
declared as new trustees in place of D1 and that the R&M make
rectifications to the agreement dated 30 April 1994 (between the R&M
and D1) to include the new trustees appointed by this court;
(d) to declare certain sale and purchase agreements between D1 and some
sub-purchasers as null and void and that D1 and D2 refund with 8%pa B
interest, all monies paid under those agreements or alternatively rescission
of those agreements;
(e) that the transfer of the said land to D4 (the fourth appellant) be declared
invalid, null and void; C
(f) that the said land be held under trust for the plaintiffs on terms
determined by this court;
(g) that the plaintiffs be declared as either the lawful or beneficial owners
according to the plots they held under their agreements with SPPKB; and
D
(h) That there be an inquiry and accounts taken in respect of the usage and
profits of the said land by D1 and/or D4, and that such profits be paid to
the plaintiffs.

BACKGROUND FACTS E

[7] The facts and the chronology of events including the relevant
documentary evidence in this case have already been succinctly elaborated,
analysed and reproduced in the judgments of the trial High Court (see
Vellasamy s/o Pennusamy & Ors v Gurbachan Singh s/o Bagawan Singh & Ors F
[2006] 2 MLJ 715) and the Court of Appeal (see Vellasamy s/o Pennusamy &
Ors (on their behalf and for the 213 sub-purchasers of plots of land known as
PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) v Gurbachan Singh
s/o Bagawan Singh & Ors [2010] 5 MLJ 437). We need not regurgitate them in
this judgment. Suffice it if we only highlight the pertinent facts and G
circumstances.

[8] Nam Bee Rubber Estate Sdn Bhd (‘Nam Bee’) was the registered
proprietor of a large parcel of land measuring 3,681.165 acres (about 1,490 H
hectares) known as PN 35553 Lot 9108, Mukim Hutan Melintang, Hilir Perak
(‘the estate land’). Since it was a rubber estate land s 214A of the National Land
Code (‘the NLC’) was applicable to it.

[9] In December 1979 a company, Syarikat Pembinaan Perusahaan I

Kemajuan Bhd (‘SPPKB’) proposed to buy the estate land. The agreed sale
price was RM3,204,080 (subsequently it was agreed at RM3,520,000 as seen
in ‘P41’). It paid a deposit of RM51,000 to Tan Ann Loong (‘Tan’) a Director
of Nam Bee (the receipt of payment ‘P38’).
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 783

A [10] Upon inquiry with the Land Office SPPKB found out that the estate
land could not be transferred to it. SPPKB and Nam Bee did not have common
directors. Meanwhile, on 18 December 1981 Tan signed a declaration of trust
(‘P40’) that bound and declared him as a trustee for all the monies paid by
SPPKB to acquire the estate land. At that point in time SPPKB had already
B paid a sum of RM1,161,224 to Nam Bee towards the purchase price. However
no evidence was adduced to show that SPPKB had paid the balance of the
purchase price to Nam Bee. In any event SPPKB was never registered as the
owner of the estate land.
C
[11] Subsequently, Nam Bee incorporated Simpang Empat Plantation Sdn
Bhd (‘SEP’), the third appellant, with its initial directors common with Nam
Bee’s. The estate land was thus transferred to SEP on or about 29
October 1984. The directors of SEP were then replaced with the directors of
D SPPKB. Mr Renganathan (‘SP8’) assumed the position as the managing
director of SEP.

[12] From 1979–1984 SPPKB entered into separate agreements (‘SPPKB

agreements’) with different purchasers including the respondents purportedly
E to sell either in the form of shares or plots in the estate land at a purchase price
ranging from RM3,500 to RM5,000 per acre. In order to meet the obligations
under the SPPKB agreements the estate land was supposed to be subdivided. In
respect of the sale of shares, each share was pegged to the size of three acres in
the estate land.
F
[13] Under the SPPKB agreements, SPPKB as the vendor agreed to develop
the infrastructure and to develop and manage the estate land into a palm oil
estate within 48 months with the purchasers sharing in the produce based on
G their respective shares or plots. On their part, the purchasers were required to
pay the deposits for their purchase prices and that the balance sums would have
to be settled within 48 months partly in cash and partly in kind, namely, by
deducting 60% of ‘the sale of produce harvested each time’.

H [14] Of the many purchasers involved in the SPPKB agreements only 217
are listed as the respondents in this case. Neither Nam Bee nor SEP were parties
to the SPPKB agreements. Further, the purchasers only bought a total of about
3,000 acres of the estate land. The balance remained with SEP.

I [15] To raise funds SEP borrowed from Maybank a sum RM500,000 in

1985 and an overdraft facility of RM500,000. However, it was still not
sufficient. In December 1990 SEP borrowed from MBF Finance (‘the fifth
appellant’) a sum of RM2,500,000 to enable the rehabilitation of the estate
land and to repay the loan with Maybank. In order to secure the new loan a
784 Malayan Law Journal [2015] 1 MLJ

charge and a debenture were created by SEP in favour of the fifth appellant A
without the knowledge of the purchasers.

[16] Unfortunately, SEP defaulted in the repayment of the loan with the
fifth appellant. As a result the fifth appellant, in the exercise of its rights under
the debenture appointed Messrs Ernst & Young as the R&M to manage the B
affairs of SEP with Dato’ Robert Lim (‘SD12’) as the person in charge. SD12
then appointed Suppiah (‘SP13’) to assist him. The R&M found out that SEP
had no business activities and thus had no income to pay its debt which was by
then about RM3,800,000 or RM3,900,000. C

[17] Furthermore, SP13 reported to SD12 that there were a few squatters on
the estate land. SD12 decided to sell the estate land by way of auction pursuant
to the powers under the debenture. A notice to that effect was published in the
newspapers. The auction was scheduled on 8 September 1992. D

[18] In August 1992 the purchasers became aware that the estate land was
going to be put up for sale by tender. They also knew that an R&M had been
appointed. In order to address their predicament the purchasers set up a
pro-tem committee (‘the committee’). The committee approached the second E
appellant through the first appellant in his capacity as an advocate and solicitor.
The first appellant contacted SP13 and was briefly informed of the matter
regarding the sale of the estate land. SP13 assured the first appellant that he
would obtain the necessary documents on the same and revert to him.
F
[19] In view of the perceived urgency of the matter, the first appellant
applied for a registrar’s caveat to be entered on the estate land. The registrar’s
caveat was entered on 28 August 1992. The first appellant also entered and
assisted in the entry of private caveats on the estate land by a few of the G
purchasers. SP13 subsequently reverted to the first appellant. It became
apparent to the first appellant that the sale by tender scheduled for 8
September 1992 could not be stopped and he duly informed the committee.

[20] On 30 August 1992 the first appellant was invited to attend a meeting H
at Simpang Empat in the office of SP8 by Tan Tang Seong (‘SD7’) a member of
the committee. During that meeting the first appellant met SP8 and inquired
about the auction. SP8 assured the first appellant and those present that the sale
would not go on as he had procured the necessary funds to pay the fifth
appellant. SP8 showed the first appellant and those present a cheque drawn in I
favour of the fifth appellant for the amount of RM3,500,000. On the request
of the first appellant SP8 issued a letter drafted by the first appellant that SEP
would recognise the SPPKB agreements. The first appellant also told the
purchasers not to worry and that the sale would not go on.
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 785

A [21] Shortly before the auction was to take place it became clear to the
purchasers that SP8 had failed to settle the outstanding loan of the third
appellant with the fifth appellant and that the sale of the estate land would
therefore go on as scheduled. The committee again approached the first
appellant and informed him of what they had learnt.
B
[22] On 8 September 1992 the auction of the estate land proceeded. The
first appellant came to bid for it in his own name at the price of RM4,000,000.
His bid was accepted. The 10% deposit amounting to RM400,000 was duly
paid by the first appellant with the assistance from his friends. However, the
C sale could not go through as an injunction was obtained by SEP through SP8
to stop the sale. The deposit paid was therefore refunded to the first appellant.
On 23 December 1993 the injunction was set aside. Once again the R&M
called for the sale by tender of the estate land.
D
[23] On 30 January 1994 SD7 and the first respondent together with some
other purchasers went to see the first appellant. Arising from that meeting the
first appellant went again to bid for the estate land for RM4,850,000. It was not
in dispute that at request of the first appellant some of the purchasers paid the
sum of RM276,450 being their contributions towards the deposit payment for
E
the auction bid.

[24] On 7 March 1994 the first appellant was informed that his second bid
was successful.
F
[25] On 17 March 1994 the first appellant wrote to all the purchasers (listed
in P42) informing them of the successful bid. The first appellant therefore
invited the purchasers to buy their allotted shares or plots from him.

G [26] The first appellant held meetings with the purchasers on the 2–3 April
1994 (as recorded in D78 and D80 respectively). During the 3 April meeting
the first appellant for the first time told the purchasers that he was not their
lawyer and that the estate land was his land. The genuine purchasers would
have to buy back their portions of the estate land from the first appellant on the
H basis of the supposed balances due to SPPKB. He suggested to the purchasers
that they purchased their allotted shares or plots from him and he drew up a
proposed sale and purchase agreement to be entered by them with him. On
hearing this, the purchasers were not too pleased. They alleged that to their
understanding the first appellant was their solicitor when he made the bid for
I the estate land.

[27] Meanwhile, the first appellant proceeded to set up the fourth appellant
with him, his wife and a friend by the name of Manjeet as the directors. The
first appellant then transferred the ownership of the estate land to the fourth
786 Malayan Law Journal [2015] 1 MLJ

appellant on 15 October 1994. The first appellant had since transferred his A
shares in the fourth appellant to two companies, namely, Lien Hoe Xing Sdn
Bhd and Jugra Palm Oil Mill Sdn Bhd.

[28] As there was no agreement reached between the purchasers and the first
appellant the respondents proceeded to file this case at the Ipoh High Court. B

IN THE HIGH COURT

[29] After a full trial the learned High Court trial judge adjudged for the
C
appellants. The learned trial judge held, inter alia,:
(a) that the claim of SPPKB and the purchasers were based on P38 and P40
but since there was no evidence that the balance of the purchase price
was ever paid to complete the sale cl 4 of P40 came into effect thus
terminating the whole proposed sale of the estate land to SPPKB; D

(b) that in any event the SPPKB agreements were void being unlawful
under s 24 of the Contracts Act 1950 in view of s 214A of the NLC and
the requirement of consent from the Menteri Besar. Further, being an
estate land approval from the estate land board was also required for such E
transaction. Accordingly SPPKB never had any title to the estate land,
legal or beneficial;
(c) that there was also no evidence whether Tan the Director of Nam Bee,
was acting personally or on behalf of Nam Bee when he executed the
trust deed (D40). Although D40 made reference to the money being F
held on trust until a further proper agreement was made, there was no
such agreement tendered in court;
(d) that there was no basis to lift the corporate veil of the third appellant in
order to show that SEP was merely a vehicle to transfer the estate land G
from Nam Bee;
(e) that in this case the sale of the estate land was a force sale and thus the
consent of the Menteri Besar was not required for the transfer to the
fourth appellant;
H
(f) that P45 (the agreement between Nam Bee and SPPKB) was not
stamped as required under s 52(1) of the Stamp Act 1949 and thus it was
inadmissible. Further, even if admitted little weight should be given to it
since it was produced by surprise during the re-examination of SP8.
Moreover, P45 did not have the signatories and common seal of Nam I
Bee. Hence the plaintiffs (the respondents) could not be said to have
acquired the equitable or beneficial interests in the estate land;
(g) that even for the first auction the committee set up by the purchasers did
not appoint the first appellant as their solicitor. There was no warrant to
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 787

A act produced or that fees were paid to the first appellant. The court
accepted the denial by the first appellant that he had ever told the
purchasers during the meeting in August 1992 at PW8’s office that he
was their lawyer and that he would do anything to stop the auction;

B (h) that the documentary evidence (D71 and D72A) and the evidence of
SD12 indicated that the first appellant made the bid for the estate land
in his own capacity;
(i) that the evidence of SP14 who was not even a member of the committee
could not be relied upon due to discrepancies with the other evidence,
C including the documentary evidence available;
(j) that SD7 Tan Tang Seong, a member of the committee, testified that
during the meeting on 30 August 1992 the first appellant never
represented himself as the lawyer for the purchasers;
D
(k) that after the successful second bid only 43 of the purchasers entered
into the fresh sale agreements with the first appellant and were willing to
pay the balance of the purchase prices for their plots or shares in the
estate land;
E (l) that the first appellant only acted for the purchasers to enter caveats on
the estate land. Thereafter his fiduciary relationship with the purchasers
ceased;
(m) that whilst it could be shown that the first appellant had acted as the
F lawyer for the purchasers as shown from the several letters written by
him as well as some documents such as D69, D70, D111 and D128, at
best it was a limited retainer;
(n) that the first appellant did not act for the plaintiffs (the respondents)
when he made his second bid for the estate land. As such he was not a
G trustee for the plaintiffs (the respondents);
(o) that the fourth appellant was not the alter ego of the first appellant;
(p) that the fourth appellant was a bona fide purchaser for the following
reasons:
H
(i) the issue was not pleaded by the plaintiffs (the respondents);
(ii) the fourth appellant did not have notice of the beneficial interest of
the plaintiffs (the respondents) in the estate land;

I (iii) the first appellant bought the estate land by way of personal bid in
a valid and proper public auction called by the R&M of the third
appellant;
(iv) the evidence of SD14 was accepted when he testified that the fourth
appellant bought the estate land from the first appellant
788 Malayan Law Journal [2015] 1 MLJ

notwithstanding that he was informed earlier about the 43 A

purchasers who acquired 360 acres of the estate land; and
(v) it was never shown that the fourth appellant had knowledge of any
beneficial interests of the plaintiffs (the respondents) in the estate
land, B
(q) that the allegation of the fifth appellant having the ‘actual knowledge of
the presence of the sub-purchasers on the said land was mere conjecture,
not founded on any factual basis.’ As such, the fifth appellant ‘did not
have any notice of the plaintiffs’ alleged beneficial interest even if it had
been proven that they had such an interest in the said land. C

IN THE COURT OF APPEAL

[30] The Court of Appeal was split in its decision with the majority (‘the
majority’) in favour of the respondents. It reversed the decision of the learned D
trial judge and granted the declarations prayed for by the respondents. The
court also awarded RM50,000 costs to the respondents and ordered for an
account and inquiry to be held on to the use of the estate land by the first
and/or the fourth appellants, the profits thereby derived and such profits to be
paid to the respondents. E

[31] The majority found, inter alia:

(a) that the transfer of the ownership of the estate land to the third appellant
was legitimately done to enable SPPKB to own it; F
(b) that D14 showed that the third appellant took the estate land subject to
the beneficial rights of the purchasers. D14 was drafted by the first
appellant and signed by SP8;
(c) that being mostly illiterate the purchasers did not know the transfer of G
the estate land to the third appellant. The purchasers were also not
informed of the loan taken by the third appellant from the fifth
appellant and the consequences of the default by the third appellant;
(d) that it could not be said that the fifth appellant was a bona fide purchaser
for value without notice. The fifth appellant had prior knowledge of the H
existence of the purchasers before the loan to the third appellant was
approved. This was apparent from the evidence of SD17 the credit
manager of the fifth appellant;
(e) that the purchasers after knowing of the pending auction formed the I
committee to meet SD12. Upon being advised by SD12 to bid in the
auction the committee approached the first appellant to be their
solicitor on the matter;
(f) that the first appellant after being consulted as a solicitor by the
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 789

A purchasers came to know of the pending auction of the estate land. He

then proceeded to gather information from the purchasers and those
associated with the auction and thereafter utilised such information for
his own benefit;

B (g) that there was definitely a solicitor-client relationship between the first
appellant and the purchasers for the following reasons:
(i) the first appellant never denied that he acted as the solicitor for the
purchasers albeit with some reservation;
C (ii) the representations and conduct including the many letters written
by the first appellant and by others to the first appellant all
categorically established a solicitor-client relationship. For
instance, he was consulted as a lawyer, he attended the meeting at
Simpang Empat and negotiated with SP8 on behalf of the
D purchasers and that he communicated with SP8 who in turn was
made to believe that the first appellant was representing the
purchasers; and
(iii) the committee consulted the first appellant as a lawyer,
E (h) that the first appellant had a fiduciary duty towards the purchasers;
(i) that the title to the estate land remained with the third appellant because
the auction was conducted by R&M based on their power under the
debenture that is not recognised under the NLC. A chargor cannot
F confer any power of sale to the chargee by way of a debenture as in this
case. As such the rights of the purchasers must be held to be valid and
subsisting as against the third appellant and all those who took the title
from it;

G (j) that the sale to the first appellant did not extinguish the equitable rights
of the purchasers;
(k) that the transfer of the estate land to the fourth appellant did not
extinguish the equity of the purchasers because the fourth appellant
through the first appellant had full knowledge of the equitable rights of
H the purchasers on the estate land. The fourth appellant was the alter ego
of the first appellant. Thus, it justified the lifting of the corporate veil of
the fourth appellant;
(l) that the prior equitable rights of the purchasers emanating from their
I contractual agreements with SPPKB must prevail over all subsequent
dealings in the estate land;
(m) that the third appellant was a constructive trustee for SPPKB and the
purchasers. There were therefore compelling reasons to lift its corporate
veil;
790 Malayan Law Journal [2015] 1 MLJ

(n) that s 214A of the NLC does not prohibit the making of contractual A
agreement of sale. The consent from the estate land board is only needed
when the individual buyer wants his or her name to be registered in the
title; and
(o) that at any rate the SPPKB agreements did not provide for subdivision. B
The purchasers became owners of plots that were not subdivided or
what is commonly known as a ‘ground partition’. In such situation
s 214A of the NLC would not be applicable. The appellants’ reliance on
the provision was therefore totally misconceived.
C
[32] The minority judgment (‘the minority’) found in favour of the
appellants and upheld the decision of the High Court.

BEFORE THIS COURT

D
Question 1: Whether the existence of, and scope of duties in, a solicitor-client
relationship is to be determined only by reference to the retainer

[33] In respect of Question 1 it was contended by learned counsel for the first
appellant: E

(a) that the solicitor-client relationship between the first appellant and the
purchasers was a limited retainer because:
(i) ‘the retainer of a solicitor was to be determined by reference to the
F
circumstances of the particular case and not by the application of any
presumption. This is particularly so where fiduciary duties are
concerned’. Yet the majority went on to determine the contractual scope
of the retainer prior to the majority defining the scope of fiduciary
duties; G
(ii) the majority had therefore erroneously relied on the perceived fiduciary
duties to enlarge the scope of the retainer. In doing so, the majority failed
to sufficiently appreciate the significance of the learned trial judge
having found as a matter of fact that at the time of the first and second
bids by the first appellant there was no solicitor-client relationship; H

(iii) in coming to his conclusion the learned trial judge depended on his
finding that SP8 was not a witness of truth;
(iv) the majority however erroneously relied on SP8’s version of events
I
without addressing the specific finding of fact as to his credibility. An
appellate court is less ready to interfere with a trial judge’s finding of fact
that depends on the credibility of a witness; and
(v) the majority further appeared to have overlooked the significance of the
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 791

A contemporaneous documentary evidence, in particular D71, D72A,

D78 and D80,
(b) that ‘not every breach of duty by a fiduciary is a breach of a fiduciary
duty’ (per Millet LJ in Bristol and West Building Society v Mothew [1998]
B Ch 1). The majority therefore:
(i) failed to sufficiently appreciate that there is no general rule that a
solicitor should never act where a conflict of interest arises. As to what is
informed consent in any given circumstances, it is crucial to determine
precisely what services were required of the solicitor in addition to what
C
had been agreed to; and
(ii) failed to consider that not all information derived from such an agency
is property as to warrant the imposition by law of a duty upon the
solicitor to account. Yet the reasoning of the majority on the breach of
D fiduciary duties by the first and second appellants was grounded on the
first appellant having come to know from the purchasers about the estate
land and its intended sale. The majority appeared to have viewed this as
a determinative factor in concluding that there was a breach on the part
of the first and second appellants,
E
(c) that the contemporaneous evidence is overwhelming and singularly
points to the auction bid having been made by the first appellant in his
personal capacity. The foundation of the claim against the appellants by
the respondents was on the existence of a purported solicitor-client
F relationship.

[34] In response learned counsel for the respondents submitted:

(a) that Question 1 has two parts, namely:
G (i) whether the existence of a solicitor-client relationship is to be
determined only by reference to the retainer; and
(ii) whether in a solicitor-client relationship the scope of duties is
determined only by reference to the retainer,
H (b) that for the first part of the question it is factual. There must be evidence
adduced upon which a factual finding could be made that there existed
a retainer of the first appellant as a solicitor for the purchasers to act for
them in the bid for the estate land. In the case of Yong & Co v Wee Hood
Teck Development Corporation [1984] 2 MLJ 39 the trial judge found a
I retainer of the appellants as solicitors for the respondents based on
documentary evidence and subsequent conduct ‘showing a course of
dealings which might give rise to legal obligations’. In this case there was
evidence of retainer found by the majority thus a solicitor-client
relationship existed between the first appellant and the purchasers;
792 Malayan Law Journal [2015] 1 MLJ

(c) that in respect of the second part of the question, it was also held in Yong A
& Co v Wee Hood Teck Development Corporation [1984] 2 MLJ 39 that
a retainer puts ‘into operation the normal terms of the contractual
relationship including in particular the duty of, solicitors ‘to protect the
interests’ of their clients ‘in matters to which the retainer relates by all
proper means’; B
(d) that in view of the first part of Question 1 being factual and accepting
the factual finding of the majority and ‘the subsequent principle of law
that follows in answer to the second part of the question, it matters not
whether the answer to Question 1 be in the negative or affirmative’. The C
fact remains that the finding of the majority was not in favour of the
appellants;
(e) that the majority found there was a full-fledged solicitor-client
relationship between the first appellant and the purchasers. Such
relationship gave rise to fiduciary duties of the first appellant as a D
solicitor towards the purchasers as his clients;
(f) that fiduciary duties include:
(i) ‘duty not to take any secret advantage whether or not any dishonesty is
involved’ (Boardman v Phipps [1967] 2 AC 46; Solid Investments Ltd v E
Alcatel-Lucent (M) Sdn Bhd (previously known as Alcatel Network Systems
(M) Sdn Bhd [2014] 3 MLJ 785; [2014] 3 CLJ 73); and
(ii) ‘a duty to make full disclosure of any interest in the transaction for which
the solicitor is retained’ (McGarry J in Spector v Ageda [1973] Ch 30 at F
p 47),
(g) that ‘Intentional conduct in breach of fiduciary duty even if not
dishonest will result in liability arising’;
(h) that where ‘breach of fiduciary duty of a solicitor is established, the G
Courts of Equity have jurisdiction to direct (1) accounts to be taken; (2)
in proper cases, to order the solicitor to replace the property improperly
acquired from the client; and (3) to make compensation if he has lost it
when acting in breach of his duty’; and
(i) that ‘Damages representing the loss sustained includes replacement or H
restitution of any property improperly obtained from the client or
disgorgement of profits’.

Finding for Question 1

I
[35] It is trite law that in an action against a solicitor by his or her erstwhile
client the threshold issue is whether a solicitor-client relationship exists
between the plaintiff-client and the defendant-solicitor. In the absence of such
relationship the defendant-solicitor in his professional capacity owes no duty to
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 793

A the plaintiff-client (see Rabiah Bee bte Mohamed Ibrahim v Salem Ibrahim
[2007] 2 SLR 655).

Solicitor-client relationship

B [36] A solicitor-client relationship may arise either:

(a) by an express agreement between a solicitor and a client; or
(b) where there is express assertion by a solicitor to act for the client; or
C (c) it may be implied.

[37] Where it is to be implied it is for the purported client in an action

against a solicitor to prove the existence of a solicitor-client relationship
between them. Proof of such relationship requires an objective consideration of
D all the facts and circumstances in order to come to a reasonable conclusion:
(a) that the purported client has sought for advice or assistance from the
solicitor;
(b) that the assistance sought for was within the professional competence of
E the solicitor;
(c) that the solicitor expressly or impliedly agreed to provide such assistance
or reasonably should know that the purported client would reasonably
rely on him to provide the assistance; and
F (d) that it was reasonable for the purported client to believe that the solicitor
was representing him.

[38] It is therefore a matter of evidence to determine whether a

solicitor-client relationship exists. Hence, it is essential to consider such
G evidence adduced including the words and conduct of the parties towards each
other. It is also to be noted that fee arrangement or payment is not
determinative of the existence of a solicitor-client relationship. Take for
instance the case of the Minnesota woman who met a lawyer for less than an
hour to consult on a possible claim for medical negligence. At that point in
H time only ten months was left before limitation would set in. No fee
arrangement or authorisation to act was discussed. But the woman was left
with the impression that her case was weak and that the lawyer would consult
with others to discuss the case, only getting back to her if she had a viable claim.
The woman did not hear from the lawyer even after a year past. So she
I consulted another lawyer but only to find that the statute of limitation had set
in. The first lawyer was ultimately found liable and was ordered to pay a sum
that the woman would have received if she had timely proceeded with her case
(see Togstad v Vesely, Otto, Miller & Keefe and Jerre Miller 291 NW2d 686
(Minn 1980). But unilateral belief by a purported client that the solicitor
794 Malayan Law Journal [2015] 1 MLJ

would represent him or her would not suffice (Rabiah Bee bte Mohamed A
Ibrahim v Salem Ibrahim).

[39] In Yong & Co v Wee Hood Teck Development Corporation [1984] 2 MLJ
39 the then Federal Court agreed with the approach taken by the learned trial
judge and held that ‘there was ample evidence on record for the learned judge B
to conclude that a retainer came into existence by implication and as amplified
by the conduct of the parties which showed a course of dealings giving rise to
legal obligations and establishing the relationship of solicitor and client’ (see
also Datuk Jagindar Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196 (FC)). C

[40] Accordingly, where the evidence adduced including the words and
conduct that transpired between a solicitor and a client determines that a
solicitor-client relationship has come about, a retainer can then be said to exist,
express or by implication. It is therefore not necessarily the existence of an D
express retainer that determines the existence of a solicitor-client relationship.

[41] It has been held that ‘the giving of instructions by a client to a solicitor
constitutes the solicitor’s retainer by that client. It is not essential that the
retainer must be in writing. It may be oral. It may be implied by the conduct of E
the parties in the particular case’ (see Fladgate LLP v Harrison [2012] EWHC
67 (QB)).

[42] Indeed it should be noted that a ‘retainer’ in relation to solicitor-client

F
relationship can be at least in three forms, namely, the payment of certain
amount of money to the solicitor to be placed in trust accounts or a
professional relationship that culminated between a solicitor and a client under
given facts and circumstances or an agreement the existence of which depends
on the facts and circumstances of each case. G

[43] Once a solicitor-client relationship exists and thus a retainer, it ‘put into
operation the normal terms of the contractual relationship including in
particular the duty’ of the solicitor ‘to protect the interests’ of his client ‘in
matters to which the retainer relates by all proper means’ (see Yong & Co v Wee H
Hood Teck Development Corporation).

[44] It was also held in Underwood, Son and Piper v Lewis [1894] 2 QB 306
per Lord Esher MR; (see also Cawdery Kaye Fireman & Taylor v Gary
Minkin [2012] EWCA Civ 546; Richard Buxton (a firm) v Mills-Owen [2010] I
EWCA Civ 122):
… that the law must imply that the contract of the solicitor upon a retainer in the
action is an entire contract to conduct the action till the end. When a man goes to
a solicitor and instructs him for the purpose of bringing or defending such an
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[2015] 1 MLJ (Sabah and Sarawak)) 795

A action, he does not mean to employ the solicitor to take one step, and then give him
fresh instructions to take another step, and so on; he instructs the solicitor as a
skilled man to act for him in the action, to take all the necessary steps in it, and to
carry it on till the end. If the meaning of the retainer is that the solicitor is to carry
on the action to the end, it necessarily follows that the contract of the solicitor is an
B entire contract — that is, a contract to take all steps which are necessary to bring the
action to a conclusion.

[45] There is no reason why the foregoing principle cannot be applied with
equal force to other services rendered by a solicitor.
C
[46] Reverting to the present case, in his submission before this court learned
counsel for the first and second appellants did not dispute that there was
solicitor-client relationship between the first appellant and the purchasers.
However, he went on to say that the purchasers through the committee only
D
retained the first appellant for a limited purpose, namely, to secure the letter
from the third appellant to recognise the SPPKB agreements and for the entry
of the caveats on the estate land in anticipation of the public auction sale.

E [47] With respect, having considered the evidence adduced in this case and
the submissions of learned counsel for the parties, we are inclined to agree with
the majority that there was definitely a solicitor-client relationship between the
first appellant and the purchasers including the respondents. And the
relationship was not limited for those purposes as mentioned by learned
F counsel for the first and second appellants.

[48] If indeed the first appellant wanted to limit the solicitor-client

relationship he could have easily indicated it to the purchasers or to any of the
members of the committee.
G
[49] It is a settled law as stated by the majority that a limited retainer should
be reduced in writing to avoid any misunderstanding (see Lie Hendri Rusli v
Wong Tan & Molly Lim (a firm) [2004] 4 SLR 594). Otherwise a solicitor upon
H being retained expressly or impliedly is expected, unless earlier and properly
discharged, ‘to take all the necessary steps’ ‘to carry it on till the end’ (see
Cawdery Kaye Fireman & Taylor v Minkin [2012] EWCA Civ 546).

[50] If it was true that the relationship between the first appellant and the
I purchasers stopped on or just before the first bid, there was no reasonable
explanation given by the first appellant why he continued to have any dealing
with SD7 who was a member of the committee even past the second bid. He
also required the purchasers to contribute to the required deposit for the second
auction bid.
796 Malayan Law Journal [2015] 1 MLJ

[51] The learned trial judge opined that D71 and D72A indicated that the A
first appellant made the second bid for the estate land on his own accord. With
respect D71 and D72A should be read in the context that the first appellant did
not deny that the committee first approached him on the basis of his status as
an advocate and solicitor. And while the first appellant claimed that he was only
the solicitor for the purchasers to secure the acknowledgment by SEP of the B
SPPKB agreements and the entry of caveats, it was only in D80 that he declared
to the purchasers that he was not their solicitor.

[52] As such there is thus no merit in the submission by learned counsel for C
the first and second appellants that had the majority considered the
contemporaneous documents D71, D72A, D78 and D80, they would have
come to a different conclusion.

[53] Contrary to the contention marshaled for the first appellant, the earlier D
documents D71, D72A and even D78 did not indicate any suspension or
termination of the solicitor-client relationship between the first appellant and
the purchasers. Any suspension or termination of a solicitor-client relationship
should have been expressly stated (see Cawdery Kaye Fireman & Taylor v
Minkin) or could be implied from the evidence adduced. There was none in E
this case. In fact it was to the contrary as discussed above. Thus, it would
therefore be reasonable to consider that the solicitor-client relationship
between the first appellant and the purchasers continued to subsist until the
first appellant declared or announced to the purchasers as recorded in D80 that
he was no longer their solicitor (see French v Carter Lemon Camerons LLP F
[2012] EWCA Civ 1180). At any rate even assuming that his denial of being
the solicitor of the purchasers has any validity despite the facts and
circumstances indicating to the contrary, his late denial should not have any
retrospective effect (see Fladgate LLP v Harrison).
G
Fiduciary duty in solicitor-client relationship

[54] ‘For a person to be a fiduciary he must first and foremost have bound
himself in some way to protect and/or to advance the interests of another. This
is perhaps the most obvious of the characteristics of the fiduciary office for H
Equity will only oblige a person to act in what he believes to be another’s
interests if he himself has assumed a position which requires him to act for or
on behalf of that other in some particular matter’ (see Professor PD Finn:
Fiduciary Obligations (1977)). Thus, the essential element is that there must be
some undertaking on the part of the fiduciary to act with loyalty in the interest I
of the other party. ‘A fiduciary is someone who has undertaken to act for or on
behalf of another in a particular matter in circumstances which give rise to a
relationship of trust and confidence’ (see Bristol and West Building Society v
Mothew).
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Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 797

A [55] The categories of fiduciary relationship are not closed. Indeed it was
said that it was doubtful ‘if it is fruitful to attempt to make a general statement
of the circumstances in which a fiduciary relationship will be found to exist.
Fiduciary relations are of different types, carrying different obligations … and
a test which might seem appropriate to determine whether a fiduciary
B relationship existed for one purpose might be quite inappropriate for another
purpose. For example, the relation of physician and patient, and priest and
penitent, may be described as fiduciary when the question is whether there is a
presumption of undue influence, but may be less likely to be relevant when an
alleged conflict between duty and interest is in question. Moreover, different
C fiduciary relationships may entail different consequences, as is shown by the
discussion of the respective positions of a trustee and a partner in relation to the
renewal of a lease’ (see Hospital Products Limited v US Surgical Corporation
(1984) 58 ALJR 587). Nevertheless, it is generally accepted that there are two
main circumstances in which fiduciary relationships arise, namely, per se
D fiduciary (status-based fiduciary) and ad hoc fiduciary (fact-based fiduciary).

[56] A solicitor-client relationship comes within the ambit of per se fiduciary

because of ‘their inherent purpose or their presumed factual or legal incidents’
(see Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574).
E However, as alluded to above, all fiduciary relationships, whether ad hoc or per
se, must depend on the fiduciary agreeing to act loyally in the interest of the
beneficiary.

[57] A ‘claim for breach of fiduciary duty may only be founded on breaches
F
of the specific obligations imposed because the relationship is one characterized
as fiduciary’. It is ‘not every legal claim arising out of a per se fiduciary
relationship, such as that between a solicitor and client, will give rise to a claim
for a breach of fiduciary duty’ (see Galambos and Another v Perez 2009 SCC
48).
G

[58] Indeed a breach of duty by a solicitor is not necessarily a breach of

fiduciary duty though a claim for negligence may arise (see Bristol and West
Building Society v Mothew; Hilton v Barker Booth and Eastwood (a firm) [2005]
H UKHL 8). Not every task undertaken in the course of a solicitor-client
relationship attracts a fiduciary obligation (see Galambos and Another v Perez).
It is only those duties that are peculiar to fiduciaries can properly be termed as
fiduciary duties (see Breen v Williams (1996) 186 CLR 71 at 137).

I [59] The distinguishing duty of a fiduciary is the duty of loyalty. Lord Justice
Millett said this (see Bristol and West Building Society v Mothew):
The principal is entitled to the single-minded loyalty of his fiduciary. This core
liability has several facets. A fiduciary must act in good faith; he must not make a
profit out of his trust; he must not place himself in a position where his duty and his
798 Malayan Law Journal [2015] 1 MLJ

interest may conflict; he may not act for his own benefit or the benefit of a third A
person without the informed consent of his principal. This is not intended to be an
exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations.
They are the defining characteristics of the fiduciary.

[60] In the present case the gist of the submission of learned counsel for the B
first and second appellants is that due to the limited retainer that defined the
solicitor-client relationship between the first appellant and the purchasers, the
biddings for the estate land by the first appellant were outside the scope of the
retainer. As such the issue of any fiduciary obligation did not arise.
C
[61] With respect, such submission completely ignored the basic fact that
the committee approached the first appellant as an advocate and solicitor. The
committee on behalf of the purchasers required the professional services of the
first appellant in relation to the estate land. The first appellant agreed to render D
his professional services.

[62] The sole objective of the committee in seeking for the professional
services of the first appellant was to ensure that the claims of the purchasers in
the estate land were secured. The SPPKB agreements gave the purchasers their E
claims over a substantial portion of the estate land. This was affirmed in D14.
Such claims in relation to the fiduciary duties of the first appellants towards the
purchasers were not entirely dependent on them being holders of legal or
equitable interests over the estate land. As stated earlier a ‘claim for breach of
fiduciary duty may only be founded on breaches of the specific obligations F
imposed because the relationship is one characterized as fiduciary’. In this case
the evidence adduced and on the given facts and circumstances the relationship
between the first appellant and the purchasers could only be properly
characterised as fiduciary. The first appellant also acknowledged such claims of
the purchasers on the estate land. In fact the first appellant took steps to meet G
the legitimate expectation of the purchasers such as drafting D14 and had it
signed by SP8. The first appellant also caused caveats to be entered on the estate
land. Obviously, the first appellant, being the solicitor, recognised and accepted
that the purchasers had caveatable interest on the estate land. Thus, it was clear
that the first appellant carried out his undertaking in a way that gave ‘rise to an H
understanding or expectation in a reasonable person’ that he ‘would behave in
a particular way’ (see J Edelman: When do fiduciary duties arise? (2010)’ 126
Law Quarterly Review 302). In other words, there was a legitimate expectation
by the vulnerable purchasers that the first appellant, while armed with the
power to act and discretion, would act in their interests. At no time the I
committee approached the first appellant for some entirely different
transaction (see Longstaff v Birtless [2002] 1 WLR 470; see Galambos and
Another v Perez) purchasers. And, as determined earlier, there was no evidence
adduced express or even implied that the solicitor-client relationship was
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Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 799

A terminated or even suspended when the first appellant made his auction bids
for the estate land (see Cawdery Kaye Fireman & Taylor v Minkin).

[63] The first appellant first obtained his information about the estate land
from his clients, the committee that represented the purchasers. And, as
B determined earlier, there was no evidence adduced express or even implied that
the solicitor-client relationship was terminated or even suspended when the
first appellant made his auction bids for the estate land (see Cawdery Kaye
Fireman & Taylor v Minkin).
C
[64] Accordingly, at all material times there was fiduciary obligation of the
first appellant towards the purchasers in connection with the estate land. As
such the issue of a limited retainer between him and the purchasers did not
arise. The first appellant should have acted in good faith. He should not have
D made profit out of his trust. Being a fiduciary the first appellant should not have
made ‘an unauthorised profit by reason or in virtue of the fiduciary office or
otherwise within the scope of that fiduciary office’ (see The Law Commission
Paper on Fiduciary Duties of Investment Intermediaries (2014), (Law Com No
350)). He should not have placed himself in a position where his duty and his
E interest conflicted. He should not have acted for his own benefit or the benefit
of any third person without the informed consent of his principals, in this case
the purchasers. In doing what he did the first appellant breached his fiduciary
obligation thus an indication of his ‘disloyalty or infidelity’ (see Bristol and West
Building Society v Mothew).
F
[65] For the foregoing reasons our answer to Question 1 is therefore in the
negative if it relates to an assertion that the existence of a solicitor-client
relationship is to be determined only by reference to an express retainer. For the
G
reasons given above we find in this case that there was a solicitor-client
relationship and thus a retainer between the first appellant as a solicitor, and by
extension, the second appellant as the solicitor’s firm, and the purchasers as the
clients. And arising from such relationship and for the reasons given above as
well we also find that there was fiduciary duty of the first appellant, and by
H extension the second appellant, towards the purchasers.

Question 2: Whether a fiduciary is entitled to restitution of expenditure incurred in

securing a benefit subsequently determined to be due and payable to persons whom
the fiduciary owes duties
I
Contentions of the parties

[66] In respect of Question 2 learned counsel for the first appellant

submitted the following:
800 Malayan Law Journal [2015] 1 MLJ

(a) that in the event of a finding of fiduciary duty of the first appellant A
towards the purchasers arising from the solicitor-client relationship and
that he had breached such duty, in the circumstances of this case the first
appellant should be entitled to counter-restitution. Learned counsel
reasoned that while a wrong doer may be stripped of the unjust
enrichment derived from the wrong, it did not follow that there may not B
be appropriate restitution the other way;
(b) that the circumstances of this case warranted such a restitution because
without the first appellant’s funds, the purchasers could not have
purchased the estate land. Notwithstanding this, the majority ordered C
the title to the estate land be transferred to the purchasers;
(c) that in making the order as it did, the majority in effect ordered the
enrichment of the purchasers at the expense of the first appellant and
this ran counter to the underlying rationale of equitable remedies and
restitution which should not be intended to be of a punitive character. D
The constructive trust and associated remedies is intended only to strip
a defendant of any enrichment flowing unjustly from the wrong, or,
where no enrichment has occurred, to enforce observance of a fiduciary
duty. The case of Stephenson Nominees Pty Ltd v Official Receiver (on
behalf of Official Trustee in Bankruptcy; Ex parte Roberts and another) E
(1987) 76 ALR 485 was cited as the authority in support of that
argument;
(d) that the principle of counter-restitution has been recognised by the
Supreme Court of Canada in Lac Minerals Ltd v International Corona F
Resources Ltd [1989] 2 SCR 574. It was held that the defendant was
entitled to a lien over the subject property to secure repayment of
expenses incurred by it in wrongfully exploring the opportunity to mine
the subject property in breach of confidence. Quote from La Forest J was
reproduced thus: G
LAC has been enriched at the expense of Corona by acquiring the Williams
property. Having acquired that property in breach of a duty of confidence
and in breach of a fiduciary obligation, that enrichment is unjustified.
Likewise, however, Corona will receive an enrichment when LAC hands over
the property, in the amount of the value of the improvement of the land to H
Corona. That value is equal to what would have been spent by Corona to
develop both properties, less what Corona in fact spent. The trial judge made
a $50,000,000 downward adjustment to the amount LAC spent, directing a
reference to determine the exact amount in the event the parties disputed the
adjustment. I would affirm that award. The three elements of a claim for I
restitution are made out, namely there is an enrichment (the mine), that
enrichment accrued to Corona at LAC’s expense, and the enrichment is
unjustified. The enrichment is not justified since, on the assumption that
Corona had acquired the Williams property, it would of necessity have had to
expend funds to develop the mine. In these circumstances, LAC is entitled to
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
Pennusamy & Ors and other appeals (Richard Malanjum CJ
[2015] 1 MLJ (Sabah and Sarawak)) 801

A a restitutionary remedy, namely a lien on the Williams property to the extent

that Corona was saved a necessary expenditure,

(e) that the aforesaid position was in fact conceded by learned counsel for
the respondents in his submission in the Court of Appeal when he said
B this:
The said land should therefore be vested in the sub-purchasers with
consequence orders as to payment of the purchase price,
(f) that the majority should have ordered the purchasers to repay the first
C appellant the amount paid by him to purchase the estate land and
molded a relief accordingly. Instead, the purchasers was given a windfall;
and
(g) that Question 2 ought to be answered in the affirmative and that
appropriate orders be made.
D
[67] In response, learned counsel for the respondents submitted thus:
(a) that restitution was not an issue which arose in the High Court. There
was no alternate counterclaim by the first appellant that he was entitled
E to be reimbursed if it was found that he had breached his fiduciary
responsibility;
(b) that the first appellant made no such claim in the Court of Appeal; and
(c) that in any case, in view of the extensive orders made on remedies in this
F case by the majority, both parties applied for and were granted liberty by
the Court of Appeal to apply for any further directions or orders. There
was thus an avenue provided in the judgment itself for the appellants to
pursue the claim for an order as to restitution. The appropriate forum to
take up this issue is still the Court of Appeal and that because of the
G ‘liberty to apply’ provision, the Court of Appeal is not functus officio in
respect of further orders such as the claim for fiduciary expenses. If the
Court of Appeal refuses such ancillary order then the appellants can
come to the Federal Court. At this stage, the issue of reimbursement is
premature.
H
Finding for Question 2

[68] As found earlier we agree with the majority that the first appellant was
in a fiduciary position in relation to the purchasers.
I
[69] It is trite law that a person in a fiduciary position is not entitled to make
a profit and he is not allowed to put himself in a position where his interest and
duty are in conflict. In Boardman v Phipps [1966] 3 WLR 1009 Lord Hodson
explained the rule as follows:
802 Malayan Law Journal [2015] 1 MLJ

Whether this aspect is properly to be regarded as part of the trust assets is, in my A
judgment, immaterial. The appellants obtained knowledge by reason of their
fiduciary position and they cannot escape liability by saying that they were acting
for themselves and not as agents of the trustees. Whether or not the trust or the
beneficiaries in their stead could have taken advantage of the information is
immaterial, as the authorities clearly show. No doubt it was but a remote possibility B
that Mr Boardman would ever be asked by the trustees to advice on the desirability
of an application to the court in order that the trustees might avail themselves of the
information obtained. Nevertheless, even if the possibility of conflict is present
between personal interest and the fiduciary position the rule of equity must be
applied. This appears from the observations of Lord Cranworth LC in Aberdeen
C
Railway Co v Blaikie 1 Macq 461, 471
In the later case of Bray v Ford [1896] AC 44 Lord Herschell stated the rule in a way
which has peculiar application to the facts of this case, when he said:
It is an inflexible rule of a Court of Equity that a person in a fiduciary position, such
as the respondent’s is not, unless otherwise expressly provided, entitled to make a D
profit; he is not allowed to put himself in a position where his interest and duty
conflict. It does not appear to me that this rule is, as has been said, founded upon
principles of morality. I regard it rather as based on the consideration that human
nature being what it is, there is danger, in such circumstances, of the person holding
a fiduciary position being swayed by interest rather than by duty, and thus prejudicing E
those whom he was bound to protect. It has, therefore, been deemed expedient to
lay down this positive rule. But I am satisfied that it might be departed from in
many cases, without any breach of morality, without any wrong being inflicted,
and without any consciousness of wrong-doing. Indeed, it is obvious that it
might sometimes be to the advantage of the beneficiaries that their trustee F
should act for them professionally rather than a stranger, even though the trustee
were paid for his services. (Emphasis added.)

[70] Thus, the rule of equity is that if a person obtains a profit from his
fiduciary position he is accountable for that profit. The liability arises from the G
mere fact of a profit having been made and that the fiduciary, however honest
and well intentioned, cannot escape the risk of being called upon to account.
This is how Lord Guest put it in Boardman v Phipps [1966] 3 WLR 1009 at
p 1060:
The position of a person in a fiduciary capacity is referred to in Regal (Hastings) Ltd H
v Gulliver [1942] 1 All ER 378, 386 by Lord Russel of Killowen where he said:
My Lords, with all respect I think there is a misapprehension here. The rule of
equity which insists on those, who by use of a fiduciary position make a profit,
being liable to account for that profit, in no way depends on fraud, or absence of
I
bona fides; or upon such questions or considerations as whether the profit would
or should otherwise have gone to the plaintiff, or whether the profiteer was under
a duty to obtain the source of the profit for the plaintiff, or whether he took a risk
or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in
fact been damaged or benefited by his action. The liability arises from the mere fact
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
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[2015] 1 MLJ (Sabah and Sarawak)) 803

A of a profit having, in the stated circumstances, been made. The profiteer, however
honest and well-intentioned, cannot escape the risk of being called upon to account.
(Emphasis added.)
Again Lord Russel quotes with approval from the judgment of the Lord Ordinary in
Huntington Copper Co v Henderson [1877] 4 R 294 to the following effect:
B
Whenever it can be shown that the trustee has so arranged matters as to obtain
an advantage whether in money or money’s worth to himself personally through
the execution of his trust, he will not be permitted to retain, but be compelled to
make it over to his constituent.
C Lord Wright in the same case said:
That question can be briefly stated to be whether an agent, a director, a trustee or
other person in an analogous fiduciary position, when a demand is made upon
him by the person to whom he stands in the fiduciary relationship to account for
profits acquired by him by reason of his fiduciary position, and by reason of the
D opportunity and the knowledge, or either, resulting from it, is entitled to defeat
the claim upon any ground save that he made profits with the knowledge and
assent of the other person.
Again Lord Wright said:
E The courts below have held that it does not apply in the present case, for the
reason that the purchase of the shares by the respondents, though made for their
own advantage, and though the knowledge and opportunity which enabled
them to take the advantage came to them solely by reason of their being directors
of the appellant company, was a purchase which, in the circumstances, the
F respondents were under no duty to the appellant to make, and was a purchase
which it was beyond the appellant’s ability to make, so that, if the respondents
had not made it, the appellant would have been no better off by reason of the
respondents abstaining from reaping the advantage for themselves. With the
question so stated, it was said that any other decision than that of the courts
below would involve a dog-in-the-manger policy. What the respondents did, it
G was said, caused no damage to the appellant and involved no neglect of the
appellant’s interests or similar breach of duty. However, I think the answer to this
reasoning is thai both in law and equity, it has been held that, if a person in a
fiduciary relationship makes a secret profit out of the relationship, the court will not
inquire whether the other person is damnified or has lost a profit which otherwise he
H would have got. The fact is in itself a fundamental breach of the fiduciary
relationship. Nor can the court adequately investigate the matter in most cases.
(Emphasis added.)

[71] While the Law Lords appeared to have laid down harsh consequences
I for breach of fiduciary duties in Phipps v Boardman [1964] 1 WLR 993 at
p 1017, the qualified orders made by the learned trial judge (Wilberforce J (as
he then was)) were maintained. The learned trial judge ordered the defendants
to account for the profit earned. But at the same time the learned trial judge
ordered that the expenditure that was necessary to enable the profit to be
804 Malayan Law Journal [2015] 1 MLJ

realised and the allowance or credit for the work and skill of the defendants A
must also be taken into account. This is what the learned trial judge said:
In my judgment, therefore, the plaintiff succeeds in his claim that Boardman and
Phipps must account for the proportionate profit they made on the shares. The
measure of their liability, so far as this action is concerned, must of course be related
B
to the plaintiff ’s own interest in the trust fund, ie, 5/18ths. Moreover, account must
naturally be taken of the expenditure which was necessary to enable the profit to be
realised. But, in addition to expenditure, should not the defendants be given an
allowance or credit for their work and skill? This is a subject on which authority is
scanty; but Cohen J in In Re Macadam [1946] Ch 7382 gave his support to an
allowance of this kind to trustees for their services in acting as directions of a C
company. It seems to me that this transaction, ie, the acquisition of a controlling
interest in the company, was one of a special character calling for the exercise of a
particular kind of professional skill. If Mr Boardman had not assumed the role of
seeing it through, the beneficiaries would have had to employ (and would, had they
been well advised, have employed) an expert to do it for them. If the trustees had D
come to the court asking for liberty to employ such a person, they would in all
probability have been authorised to do so, and to remunerate the person in
question. It seems to me that it would be inequitable now for the beneficiaries to
step in and take the profit without paying for the skill and labour which has
produced it.
E
I cannot now form any opinion what sum would be appropriate, but I shall direct
an inquiry what sum is proper to be allowed to the first and second defendants in
respect of their work and skill in obtaining the shares in the company mentioned in
the statement of claim and the profit in respect thereof. I shall direct that such
inquiry is to be taken before the judge, but refer it to chambers for directions as to
F
evidence and other preparatory matters. Without in any way binding the court as to
what it should do on the evidence that may be presented, I think that I thought from
the knowledge gained in the course of this trial, to express the opinion that payment
should be on a liberal scale. (Emphasis added.)

G
[72] The Court of Appeal and the House of Lords upheld the decision of the
learned trial judge including the orders he made. However, Lord Denning MR
in Phipps v Boardman [1965] 2 WLR 839 at p 861 in the Court of Appeal
made this passing remark, inter alia:
The gist of it is that the defendant has unjustly enriched himself, and it is against H
conscience that he should be allowed to keep the money. The claim for repayment cannot
however, be allowed to extend further than the justice of the case demands. If the
defendant has done valuable work in making the profit then the court in its discretion
may allow him a recompense. It depends on the circumstances. If the agent has been guilty
of any dishonesty or bad faith or surreptitious dealing, he might not be allowed any
I
remuneration or reward; but when, as in this case, the agents acted openly and above
board, but mistakenly, then it would be only just that they should be allowed
remuneration. As the judge said: It seems to me that it would be inequitable now for
the beneficiaries to step in and take the profit without paying for the skill and labour
which has produced it. (Emphasis added.)
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
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A [73] In a subsequent case of Guinness Plc v Saunders [1990] 2 AC 663 the

House of Lords agreed with the proposition of law expounded in Phipps v
Boardman [1964] 1 WLR 993. Lord Goff of Chieveley while endorsing the
rule that fiduciaries must not put themselves in a position where there is a
conflict between their personal interests and their duties as fiduciaries, made
B reference to the decision of Wilberforce J with reservation. He said this, inter
alia:
Plainly, it would be inconsistent with this long-established principle to award
remuneration in such circumstances as of right on the basis of a quantum meruit
C claim. But the principle does not altogether exclude the possibility that an equitable
allowance might be made in respect to a trustee for work performed by him for the
benefit of the trust, even though he was not in the circumstances entitled to
remuneration under the terms of the trust deed, is now well established. In Phipps
v Boardman [1964] 1 WLR 993 the solicitor to a trust and one of the beneficiaries
were held accountable to another beneficiary for a proportion of the profits made by
D them from the sale of shares bought by them with the aid of information gained by
the solicitor when acting for the trust. Wilberforce J directed that, when accounting
for such profits, not merely should a deduction be made for expenditure which was
necessary to enable the profit to be realised, but also a liberal allowance or credit
should be made for their word and skill.
E …
It will be observed that the decision to make the allowance was founded upon the
simple proposition that ‘it would be inequitable now for the beneficiaries to step in
and take the profit without paying for the skill and labour which has produced it’.
…
F
…
The decision has to be reconciled with the fundamental principle that a trustee is
not entitled to remuneration for services rendered by him to the trust except as
expressly provided in the trust deed. Strictly speaking, it is irreconcilable with the
G rule as so stated. It seems to me therefore that it can only be reconciled with it to do
the extent that the exercise of the equitable jurisdiction does not conflict with the
policy underlying the rule. And, as I see it, such a conflict will only be avoided if the
exercise of the jurisdiction is restricted to those cases where it cannot have the effect
of encouraging trustees in any way to put themselves in a position where their
H interests conflict with their duties as trustees. (Emphasis added.)

[74] Earlier on, in the case of O’Sullivan v Management Agency and Music
Ltd [1985] QB 428 the Court of Appeal applied the principle of recompensing
the fiduciaries as propounded in Phipps v Boardman [1964] 1 WLR 993.
I
[75] In his judgment, with Dunn LJ in agreement, Fox LJ in dealing with the
question of recompensing the defendants referred to the decision in Phipps v
Boardman [1964] 1 WLR 993 and held that there was in existence a necessary
power in the court to make an allowance to the fiduciary without which
806 Malayan Law Journal [2015] 1 MLJ

substantial injustice might result. He said this, inter alia: A

The next question is, it seems to me, the recompensing of the defendants. The rules
of equity against the retention of benefits by fiduciaries have been applied with
severity. In Phipps v Boardman [1967] 2 AC 46, where the fiduciaries though in
breach of the equitable rules, acted with complete honesty throughout, only
succeeded in obtaining an allowance ‘on a liberal scale’ for their work and skill … B

…
These latter observations (and those of Lord Denning MR and the judgment of
Wilberforce J at first instance) accept the existence of a power in the court to make an
allowance to the fiduciary. And I think it is clear necessary that such a power should exist. C
Substantial injustice may result without it. A hard and fast rule that the beneficiary can
demand the whole profit without an allowance for the work without which it could not
have been created is unduly severe. Nor do I think that the principle is only applicable
in cases where the personal conduct of the fiduciary cannot be criticised. I think that
the justice of the individual case must be considered on the facts of that case. D
Accordingly, where there has been dishonesty or surreptitious dealing or other improper
conduct then, as indicated by Lord Denning MR, it might be appropriate to refuse relief;
but that will depend upon the circumstances.
…
E
Once it is accepted that the court can make an appropriate allowance to a fiduciary
for his skill and labour I do not see why, in principle, it should not be able to give
him some part of the profit of the venture if it was thought that justice as between
the parties demanded that.
… F
But be that as it may, it would be one thing to permit a substantial sharing of profits
in a case such as Phipps v Boardman [1967] 2 AC 46 where the conduct of the
fiduciaries could not be criticised and quite another to permit it in a case such as the
present where, though fraud was not alleged, there was an abuse of personal trust and
confidence. I am not satisfied that it would be proper to exclude Mr Mills and the G
MAM companies from all reward for their efforts. I find it impossible to believe that
they did not make a significant contribution to Mr O’Sullivan’s success. It would be
unjust to deny them a recompense for that. I would, therefore, be prepared as was
done in Phipps v Boardman to authorise the payment (over and above out of pocket
expenses) of an allowance for the skill and labour of the first five defendants in
H
promoting the compositions and performances and managing the business affairs of
Mr O’Sullivan, and that an inquiry (the terms of which would need to be
considered with counsel) should be ordered for that purpose. Such an allowance
could include a profit element in the way that solicitors’ costs do.
In my view this would achieve substantial justice between the parties because it I
would take account of the contribution made by the defendants to Mr O’Sullivan
success. It would not take full account of it in that the allowance would not be at all
as much as the defendants might have obtained if the contracts had been properly
negotiated between fully advised parties. But the defendants must suffer that
because of the circumstances in which the contracts were procured. On the basis
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
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A that the first five defendants are remunerated as I have mentioned I see no reason in
equity why the agreements and the assignments of copyright should not be set aside,
the master recordings transferred to Mr O’Sullivan and an account of profits
ordered. (Emphasis added.)

B [76] We find the approach employed by Fox FJ very useful and would apply
it with appropriate modifications to the facts of this case before us. What we
seek to do in this case is to give, within the court’s discretion, relief to parties
that is fair and just in the circumstances. As indicated by Lord Denning MR in
Phipps v Boardman [1964] 1 WLR 993 where there has been dishonesty or
C
surreptitious dealing or other improper conduct, it might be appropriate to
refuse but that will depend on the circumstances. In other words, the exercise
of the discretion to refuse allowance to the fiduciary depends on the facts and
circumstances of each case.
D
[77] In this case the purchasers entrusted the first appellant to get their
portions of the estate land for them. Instead the first appellant took advantage
of his position as a fiduciary. He was entrusted, after he managed to convince
the purchasers during the meeting before the second auction, to bid for the
E estate land in his own name but only to subsequently claim that he did it on his
own accord. Having obtained the whole estate land he transferred it to his
company, the fourth appellant. The first appellant was in breach of his fiduciary
duty. In so doing he had unjustly enriched himself. Hence, we hold that the
first appellant must account for the profit and other advantages he acquired
F while acting in breach of his fiduciary obligations towards the purchasers. It
would be unconscionable to allow him to keep the profit and other advantages
he made as a result of his acquisition of the estate land.

[78] However, it would be inequitable for the purchasers to take the whole of
G the estate land and/or profit without incurring expenses to obtain them. The
first appellant obtained the whole estate land, including the portions identified
to be the plots or as represented in the form of shares to which the purchasers
laid their claims to be beneficially entitled. Since not all the purchasers are
parties in this case only the plots and shares claimed by the respondents (‘the
H respondents’ shares’) are therefore relevant in this judgment. The balance of
1,500 hectares is also as well. It was not within the SPPKB agreements. But the
estate land cannot be subdivided to enable separate titles to be given as the
respondents’ shares.

I [79] The first appellant must therefore pay to the respondents damages to be
assessed. When doing the assessment, the value of the respondents’ shares must
be taken into account. Indeed the respondents would have acquired their
shares if not for the act of ‘disloyalty or infidelity’ on the part of the first
appellant. Further to be taken into account when assessing the damages are the
808 Malayan Law Journal [2015] 1 MLJ

profits flowing from the sale of the estate land (to be adjusted according to A
acreage representing the respondents’ shares).

[80] However, the expenditure incurred by the first appellant has to be

deducted from the assessed damages and profits. To ascertain the damages and
profits payable to the respondents an enquiry or assessment would have to be B
conducted by a High Court judge preferably stationed in Ipoh High Court.

[81] In the upshot our answer to Question 2 is therefore in the affirmative.

C
Question 3: Whether a court is entitled to lift the corporate veil of a company in
order to do justice despite it not being the pleaded or argued case of the claimants
that the company concerned was used as an engine of fraud.

[82] In considering Question 3 it should be noted that the majority, on the D

ground of doing justice, exercised the power to lift the corporate veil of the
third and fourth appellants. The majority disagreed with the learned trial judge
who declined to do so.

[83] In respect of the third appellant, the majority held that it was E
incorporated solely for the purpose of enabling the transfer of the estate land
from Nam Bee since the law did not allow a direct transfer from Nam Bee to
SPPKB. As such there were compelling reasons to lift the corporate veil ‘where
the justice of the case so demands’. The majority thus held that the third
appellant and SPPKB should be treated as one and the same entity. The case of F
Hotel Jaya Puri Bhd v National Union of Hotel, Bar and Restaurant Workers &
Anor [1980] 1 MLJ 109 was cited in support.

[84] As for the fourth appellant the majority held that it was the alter ego of
the first appellant since it was incorporated to hold the estate land from the first G
appellant who had successfully bid for it. Meanwhile the first appellant knew
all along the interests of the purchasers over a substantial portion of the estate
land.

Contentions of the parties H

[85] Learned counsel for the first appellant submitted that the lifting of the
corporate veil by the majority was wrong in law for the following reasons:
(a) that it was against decided cases. He cited Law Kam Loy & Anor v Boltex I
Sdn Bhd and others [2005] MLJU 225; [2005] 3 CLJ 355 and Adams v
Cape Industries plc [1990] Ch 433 to support his argument; and
(b) that the first appellant was neither a shareholder nor a director of either
SPPKB or the third appellant. He did not use either company as a mask
 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o
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A or cloak to hide himself from the eyes of equity. He was not managing
the third appellant at all. He was therefore not the alter ego of either
company. The respondents did not rely on any special circumstances to
show that either company in question was a mere facade concealing the
true facts.
B
[86] Meanwhile learned counsel for the fourth appellant contended that the
respondents should not be allowed to rely on the issue of corporate veil for the
following reasons:
C (a) that the matter was not pleaded as part of the respondents’ case. Even in
their memorandum of appeal to the Court of Appeal the corporate veil
issue was not a ground of appeal;
(b) that the ‘interest of justice’ test was not the correct test to be applied in
D piercing the corporate veil. The case of Mackt Logistics (M) Sdn Bhd v
Malaysian Airline System Bhd [2014] 2 MLJ 518 was cited in support;
(c) that the corporate veil should only be pierced for the sole purpose of
making the controllers of the company liable in cases where a person is
under an existing legal obligation or liability or subject to an existing
E legal restriction yet he deliberately evades or whose enforcement he
deliberately frustrates by interposing a company under his control.
Reference was made to the recent case of Prest v Petrodel Resources
Limited and others [2013] UKSC 34;
F (d) that on the facts of the present case there was no concealment by the first
appellant. The formation of the fourth appellant and the transfer of the
estate land to the fourth appellant were disclosed by the first appellant
prior to him agreeing to bid at the second auction. The disclosures
included (i) formation of the fourth appellant to take the transfer of
G estate land; (ii) issue of shares to genuine purchasers; (iii) appointment
of purchasers to office; and (iv) share cancellation and resignation from
office upon successful fragmentation;
(e) that as found by the learned trial judge there was no evasion of legal
H obligations by the first appellant through interposition of the fourth
appellant. The interposition of the fourth appellant was necessary in the
circumstances and done openly;
(f) that lifting a corporate veil is not for the purpose of confiscating
I property but to hold somebody to a legal bargain which he had made
with another; and
(g) that there was no justification to lift the corporate veil of the third
appellant and identifying the third appellant as being synonymous with
SPPKB and extending it onwards to the respondents.
810 Malayan Law Journal [2015] 1 MLJ

[87] In reply learned counsel for the respondents submitted thus: A

(a) that even though the issue of lifting the corporate veil of the fourth
appellants was not pleaded by the respondents, evidence was given on
the subject during trial and it was not objected to by the appellants. As
such the fourth appellant was not taken by surprise as the matter was B
raised in the evidence and contemporaneous documents;
(b) that on the facts of the present case there was concealment by the first
appellant of fiduciary relationship and the equitable rights of the
purchasers and an evasion of his legal obligations towards them. The
following cases were cited in support: C

(i) Gilford Motor Co Ltd v Horne and another [1933] Ch 935;

(ii) Jones v Lipman [1962] 1 WLR 832;
(iii) Prest v Petrodel Resources Limited and others [2013] UKSC 34; D
(iv) Law Kam Loy & Anor v Boltex Sdn Bhd and others [2005] 3 CLJ 355;
and
(v) Takako Sakao (f ) v Ng Pek Yuen (f ) & Anor [2009] 6 MLJ 751,

(c) that the fourth appellant was set up by the first appellant as a mere facade E
to transfer the estate land in order to evade his liabilities and obligations
as a trustee of the estate land purchased by the purchasers; and
(d) that the first appellant was the controller of the fourth appellant and he
evaded his duties to the purchasers and concealed his true intentions F
with the aim to commit fraud. He was a director, shareholder and
promoter of the fourth appellant and he formed it with the express
purpose of transferring the estate land to it. The fourth appellant was
therefore the alter ego of the first appellant. When the transfer of the
estate land to the fourth appellant took place the first appellant had full G
knowledge of the equitable rights of the purchasers.

Finding on Question 3
H
[88] At the outset we note that Question 3 as posed is only on pleadings
issue. It does not extend to the issue of whether the majority rightly lifted the
corporate veil of the third and fourth appellants. Thus, it would suffice for us
to confine our answer to the pleadings issue.
I
[89] It is trite law that the parties are bound by their pleadings and the trial
of a suit must confine to the pleadings. The court is not entitled to decide a suit
on a matter that has not been pleaded (see Yew Wan Leong v Lai Kok
Chye [1990] 2 MLJ 152; [1990] 1 CLJ (Rep) 330).
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A [90] However, in some instances, evidence adduced during the hearing can
overcome the defects in pleadings as long as the other party is not taken by
surprise. More so if ‘Such evidence when given without any objection by the
opposing party will further have the effect of curing the absence of such plea in
the relevant pleading, in other words, the effect of overcoming such defect in
B such pleading’ (see Superintendent of Lands and Surveys (4th Div) & Anor v
Hamit bin Matusin & Ors [1994] 3 MLJ 185; [1994] 3 CLJ 567).

[91] In this case the respondents while conceding that issue on lifting the
corporate veil of the companies was not pleaded argued that the evidence
C relating to the issue was adduced. As such the learned trial judge had erred in
dismissing the issue on the ground that it was not pleaded.

[92] We find the majority has dealt with the point quite succinctly. Having
considered the evidence adduced by the respondents as highlighted by the
D
majority, we are satisfied that evidence relating to the issue of whether the third
appellant and SPPKB were one and same entity and whether the first appellant
was the alter ego of the fourth appellant had been given without any objection
from the appellants.
E
[93] For instance, it was not a disputed fact and indeed evidence was
adduced that the directors of SPPKB replaced the directors of Nam Bee as the
directors of the third appellant. That occurred soon after the estate land was
transferred to the third appellant. and in respect of the fourth appellant there
F was no denial and in fact the first appellant admitted that he was its director for
a while.

[94] Hence, having considered the case for the respondents as a whole it
could not be said that such evidence had departed radically from their pleaded
G case. Such evidence, in our view, had cured the absence of a specific plea of the
aforementioned parties being one and same entities in the respondents’
statement of claim. With respect we are therefore of the view that the learned
trial judge should not have dismissed the issue on account of it being not
pleaded.
H
[95] Accordingly on the facts and circumstances of this case our answer to
Question 3 as we understand it is in the affirmative. Anyway, we do not think
it is necessary for us to deal with the issue of the actual lifting of the corporate
veil as done by the majority.
I
[96] But in the event that we should, we are of the view that it is now a settled
law in Malaysia that the court would lift the corporate veil of a corporation if
such corporation was set up for fraudulent purposes, or where it was established
to avoid an existing obligation or even to prevent the abuse of a corporate legal
812 Malayan Law Journal [2015] 1 MLJ

personality (seePrest v Petrodel Resources Limited and others [2013] UKSC 34). A

[97] As to what constitutes fraudulent purposes it has been described as to

include actual fraud or fraud in equity (see Law Kam Loy & Anor v Boltex Sdn
Bhd and others). And fraud in equity occurred in ‘... cases where there are signs
of separate personalities of companies being used to enable persons to evade B
their contractual obligations or duties, the court would disregard the notional
separateness of the companies ...’ (see Sunrise Sdn Bhd v First Profile (M) Sdn
Bhd & Anor [1996] 3 MLJ 533 per Chong Siew Fai FCJ (as he then was)).
C
[98] Quite recently this court also discussed on the issue of lifting a corporate
veil. It said this:
… As for principle, the starting point is no doubt the doctrine of corporate
personality. The general rule is that a company has an existence that is separate and
distinct from its shareholders. It finds expression in the seminal case on the subject, D
Salomon v A Salomon & Co Ltd [1897] AC 22. Lord Halsbury LC there stated the
rule thus:
... once the company is legally incorporated it must be treated like any other
independent person with its rights and liabilities appropriate to itself, and that the
motives of those who took part in the promotion of the company are absolutely E
irrelevant in discussing what those rights and liabilities are.
The Lord Chancellor however provided for cases in which the veil of incorporation
may be lifted. He said:
If there was no fraud and no agency, and if the company was a real one and not a
F
fiction or a myth, every one of the grounds upon which it is sought to support the
judgment is disposed of.
The proposition when inverted states that if there is fraud or an agency relationship
or if the company is a myth or fiction, the doctrine of corporate personality does not
insulate the shareholders or directors from being assailed directly.
G
[22] A more recent statement of the doctrine of corporate personality is to be found
in the case of Woolfson v Strathclyde Regional Council 1978 SLT 159 which is
authority for the proposition that a litigant who seeks the court’s intervention to
pierce the corporate veil must establish special circumstances showing that the
company in question is a mere facade concealing the true facts (see Takako Sakao (f ) H
v Ng Pek Yuan (f ) & Anor).

[99] The phrase ‘a mere façade concealing the true facts’ was recently
elaborated by the Supreme Court of the United Kingdom in the case of Prest v
Petrodel Resources Limited and others [2013] UKSC 34. The leading judgment I
of the court said this:
The concealment principle is legally banal and does not involve piercing the
corporate veil at all. It is the imposition of a company or perhaps several companies
so as to conceal the identity of the real actors will not deter the courts from
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A identifying them, assuming that their identity is legally relevant. In these cases the
court is not disregarding the ‘façade’ but only looking behind it to discover the facts
which the corporate structure is concealing. The evasion principle is different. It is
that the court may disregard the corporate veil if there is a legal right against the
person in control of it which exists independently of the company’s involvement,
B and a company is interposed so that the separate legal personality of the company
will defeat the right or frustrate its enforcement. Many cases will fall into both
categories, but in some circumstances the difference between them may be critical.
This may be illustrated by reference to those cases in which the court has been
thought, rightly or wrongly, to have pierced the corporate veil.
C
[100] Reverting therefore to the facts and circumstances in the present case,
and bearing in mind the foregoing principles, we are inclined to agree with the
majority that there were justifications in the lifting of the corporate veil of the
fourth appellant.
D
[101] It was not in dispute that the first appellant made the bids for the estate
land in his own name. But the respondents had adduced evidence that the
purchasers only agreed to the arrangement after the first appellant managed to
convince them during the meeting before the second auction. Further, it is also
E
a fact that part of the money for the deposit for the second auction was paid by
some of the purchasers. After having successfully bid for the estate land the first
appellant proceeded to incorporate the fourth appellant with the sole intention
of transferring the estate land to it. But at the same time he was one of the
directors, a shareholder and the promoter of the fourth appellant.
F
[102] As such, on the facts as found, we agree with the finding of the majority
that the fourth appellant was the alter ego of the first appellant. The first
appellant established the fourth appellant as a mere facade to transfer the
G ownership of the estate land in order to evade his fiduciary obligations as the
solicitor towards his clients, the purchasers including the respondents.

[103] Be that as it may, as we have intimated earlier on in this judgment,

liabilities may be imposed against the first and second appellants but excluding
H the other appellants. Thus, the lifting of the corporate veil of the fourth
appellant does not necessarily mean that liability must be attached to it.

[104] In this case the fourth appellant is no longer under the control of the
first appellant. He had unloaded his shares in the fourth appellant as well as the
I shares of those who were closely associated with him after the estate land was
transferred to the fourth appellant.

[105] And it is not in dispute that the estate land although registered in the
name of the fourth appellant is now under the management of two corporate
814 Malayan Law Journal [2015] 1 MLJ

entities having no ties with the first or second appellants. They are not parties A
to this action. There was no assertion by the respondents that these two
corporate entities did not acquire those shares in good faith and for valuable
consideration from the first appellant and the other shareholders. There was
also no challenge to the fact that these two corporate entities had expended
monies to develop the estate land up to the present condition. It would be B
‘inequitable for the purchasers to take the estate land and/or profit without
incurring expenses to obtain them’. Accordingly, we make no order to declare
as invalid, null and void the transfer of the estate land to the fourth appellant.
C
[106] In respect of the third appellant, it is now in liquidation. Further, it lost
the estate land not on its own volition but on force sale by auction being the
consequence of its default in servicing its loan with the fifth appellant. It would
serve no purpose to lift its corporate veil or to make any order against it. As for
the R&M, it was only exercising the powers contained in the debenture. It had D
done its duties and there was no allegation of misconduct on its part. Further,
as we have found, the estate land is now under the control of two corporate
entities that had no link to the scheme of the first appellant when he acquired
the estate land. It would therefore be inequitable and unconscionable to now
order the two corporate entities through the R&M to relinquish their interests E
in the estate land after expending monies to develop it.

Question 4: Whether a trust could be imposed to allow the respondents to acquire

equitable interests in the land prior to receivership when the respondents
acknowledge that their claim is limited to only a portion of the total 3,681 acres of F
undivided interest in the land,

Question 5: Whether claimed beneficial interest in fragmented portions of estate

land contingent upon obtaining approval from the estate land board under s 214A
of the National Land Code and/or the consent of transfer from the Menteri Besar G
entitles the court to declare beneficial interest for the purpose of an immediate
equitable remedy

[107] In view of the findings we arrived at for Questions 1–3, we are of the
opinion that we need not answer Questions 4 and 5. As we have said above, H
Questions 1–2 may be determined on their own merits. They are not
dependent on the determination of Questions 3–5. We therefore decline to
answer Questions 4–5.
THE FIFTH APPELLANT I

[108] In the case of the fifth appellant we have perused the evidence adduced
and the submissions of learned counsel for the respective parties. We are
inclined to agree with the finding of the learned trial judge that ‘the allegation
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A made’ that the fifth appellant ‘had actual knowledge of the presence’ of the
purchasers on the estate land ‘was mere conjecture, not founded on any factual
basis’. As such, the fifth appellant ‘did not have any notice’ of the purchasers
‘alleged beneficial interest’.

B [109] In any event the loan with the fifth appellant had been settled with the
auction of the estate land. As such the fifth appellant may at worse be liable on
the basis of indemnity. However that is not an issue before us.

CONCLUSIONS AND ORDERS

C
[110] For the reasons above we dismiss the appeals by the first and second
appellants with costs to be taxed unless agreed by the parties. Accordingly:
(a) we affirm:
D (i) the declaration granted by the majority that at all material times the
first and second appellants were the solicitors of the respondents
and ‘are therefore under a fiduciary duty and accountable’ to the
respondents ‘for any benefits that they have obtained under the ‘sale
by tender’ of the estate land’; and
E
(ii) the order of the majority that the first appellant be declared a trustee
for the respondents ‘with respect to the purchase by sale by tender’
of the estate land from the R&M of the third appellant,
(b) we decline to affirm in view of our findings in relation to Questions 1–3:
F
(i) the order of the majority that the respondents ‘be declared new
trustees of the aforesaid declaration of trust in place of the’ first
appellant;
(ii) the order of the majority that the R&M of the third appellant ‘do
G make the necessary rectifications and variations to the agreement
dated 30 March 1994 with’ the first appellant ‘to incorporate the
declaration of trust aforesaid and the inclusion of the new trustees’;
(iii) the order of the majority that ‘the transfer of property known as PN
H 35553, Lot 9108 Mukim of Hutan Melintang, Hilir Perak’ to the
fourth appellant ‘(Regal) be declared null and void’; and
(iv) the order of the majority that the estate land ‘be vested in the first
four’ respondents ‘who are the new trustees and who will hold’ the
estate land ‘in trust and who will administer’ the estate land and
I ‘who will distribute the same on a just basis. The new trustees too
will have to draw up a scheme for the implementation of a just
distribution’ of the estate land which will be transferred and
registered in the names of the numerous sub-purchasers subject to
the consent of the estate land board,
816 Malayan Law Journal [2015] 1 MLJ

(c) we decline to affirm in view of (d) below the order of the majority that the A
first and second appellants do ‘refund all moneys paid by some’ of the
purchasers (including the respondents) under the sale and purchase
agreement’ stated therein ‘together with interest at 8%pa from the date
of filing of this writ’;
B
(d) we find as unnecessary in view of our findings in relation to Questions
1–3 the order by the majority that ‘the ‘sale and purchase agreement
entered into by some’ of the purchasers with the first appellant be
declared null and void’;
(e) we find as unnecessary the order of the majority that ‘the register C
document of title and the issue document of title’ to the estate land ‘be
rectified …’ and ‘subject to the consent of the estate land board’;
(f) we hold that the first and second appellants are liable to the respondents
for the reasons given in this judgment with particular reference to our
D
findings for Questions 1–2;
(g) we hereby order that there shall be assessment for damages to be paid by
the first and second appellants to the respondents which is to be held
before a High Court judge preferably stationed in the High Court Ipoh,
Perak. Thus to that extent we vary the order of the majority that the E
assessment is to done by a Senior Assistant Registrar, Ipoh Perak;
(h) we further order that when doing the assessment the value of the
respondents’ shares or plots in the estate land and the profits flowing from
the sale of the estate land (to be adjusted according to acreage
F
representing the respondents’ shares) must be taken into account;
(i) we further order that in the exercise of our discretion the expenditure
incurred by the first appellant is to be deducted from the assessed damages
and profits;
G
(j) we allow the appeal by the fifth appellants with costs to be taxed unless
agreed by parties. We also hereby order that such costs shall be borne by
the first appellant; and
(k) we allow the appeals by the third and fourth appellants with no order as
to costs and only to the extent that it is not inconsistent with the finding H
of liability against the first and second appellants.

Order accordingly.

Reported by Afiq Mohamad Noor I