Ooi Kim Geik 1. ) Ng Kim Pin 2. ) Lim Peng Seng

IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL SUIT NO.: BA-22NCvC-70-02/2020 _________________________________________________________ BETWEEN OOI KIM GEIK [IDENTITY CARD NO. : 651028-02-5744] ..... PLAINTIFF (as Executor and Beneficiary of the Estate Ng Kin Yong, The Deceased AND 1. NG KIM PIN [IDENTITY CARD NO. : 610419-05-5130] 2. LIM PENG SENG [IDENTITY CARD NO. : 591216-07-5405] ….. DEFENDANTS GROUNDS OF JUDGMENT (After Full Trial) Introduction [1] The present case involves the dispute between the Plaintiff, the widow of a deceased businessman, and the Defendants, who are her sister-in-law and sister-in-law’s husband, over a shop-office registered in the joint names of the deceased and the Defendants. [2] In gist, the Plaintiff alleged that the Defendants held the two-third share in the shop-office in trust for the deceased, but this has been denied by the Defendants who asserted that it was a gift from the deceased. [3] After a full trial of 4 days, this Court on 28.7.2022 dismissed the Plaintiff’s claims and allowed the Defendants’ counterclaims with costs. [4] Dissatisfied with the said decision, the Plaintiff has appealed to the Court of Appeal. 1 Parties’ Pleaded Case and Defences [5] The Plaintiff’s case is that the Defendants have been holding the 2/3rd shares in the Subject Property as nominees or trustees for the deceased Ng Kin Yong. In gist, the Defendants deny they have been holding the 2/3rd shares in the Subject Property as nominees or trustees, and they aver that the 2/3rd shares in the Subject Property were gifted by the late Ng Kin Yong to the Defendants. [6] In arguing that the Defendants have been holding the 2/3rd shares in the Subject Property as trustees for the late Ng King Yong, the Plaintiff avers that (a) the entire purchase price was paid by the late Ng Kin Yong; and (b) during his lifetime, the late Ng Kin Yong told her that the Defendants held the 2/3rd shares in the Subject Property in trust for him; and (c) during his lifetime, the late Ng Kim Yong told the Plaintiff (his wife), that he wanted to pass the entire Subject Property to his twin sons. [7] On the other hand, the Defendants in denying the existence of any trust aver that (a) the 1st Defendant’s brother, the late Ng Kin Yong, gifted the 2/3rd shares in the Subject Property to the defendants in appreciation of their close relationship, support and help in 1991when he had Difficulties with the UUM Project and his first wife Jenny suffered from cancer; (b) the late Ng Kin Yong never told them that the 2/3rd shares in the Subject Property were held on trust; and (c) when the late Ng Kin Yong consolidated his assets and properties after his second marriage with the Plaintiff, the Defendants transferred back to him the Pedas land Lot No. 1688 at his request as the Pedas land was told by him as being held on trust but there was no request for transfer of the 2/3rd shares in the Subject Property; and (d) in the Plaintiff’s application for Probate in respect of the deceased Ng Kin Yong’s estate, his estate’s portion was stated as 1/3rd share of the Subject Property. Cause Papers and Full trial [8] At a pre-trial case management session on 8 February 2021, the following documents in the cause papers were marked with the respective numbers as stated below: Enclosure 18 filed on 22.7.2020: Bundle of Pleadings (Ikatan Pliding), marked as “BOP” 2 Enclosure 31 filed on 13.10.2020: Statement of Agreed Facts (Fakta Yang Dipersetujui): “SAF” Enclosure 29 filed on 15.9.2020: Issues to be Tried (Isu-Isu Untuk Dibicarakan): “SIT” Enclosure 22 filed on 29.7.2020: Defendants’ Summary of Case (Ringkasan Kes Defendan): “SOC(D)” Enclosure 19 filed on 24.7.2020: Plaintiff’s Summary of Case (“Ringkasan Kes Plaintif): “SOC(P)” Enclosure 30 filed on 15.9.2020: Tabulated Summary of Parties’ Positions and Arguments: “TSPP” Enclosure 33 filed on 13.11.2020: Common Bundles of Documents, Part A (Ikatan Dokumen Bersama, Bahagian A) pages 1 – 14: “ AA “; Enclosure 34 filed on 13.11.2020: Common Bundles of Documents, Part B (Ikatan Dokumen Bersama, Bahagian B) pages 1 – 380 : “AB1” Enclosure 35 filed on 13.11.2020: Common Bundles of Documents, Part C (Ikatan Dokumen Bersama, Bahagian C) pages 1 – 15: “C” [9] It was also the agreed procedure that: (1) At the full trial, upon the witness' affirmation and confirmation of the contents of his/her Witness Statement as his/her evidence, the Witness Statement and its contents are deemed to be read and there is no necessity for the witness to read the contents of the Witness Statement into the CRT system. This procedure is without prejudice to the rule against hearsay, i.e. the principle of evidence which requires witnesses to testify as to facts and matters within their personal knowledge and not on hearsay evidence. Liberty is given to the counsel to ask supplementary or additional question in examination-in-chief to clarify or explain or highlight salient parts of the Witness Statement before the cross-examination begins. 3 (2) In order to save time and costs at the full trial, the Part A and Part B documents referred to in the witnesses' statements and evidence are marked as per the marking of Agreed Bundles of Documents as “AA” and “AB” numbers respectively followed by the page numbers and there is no necessity to mark the relevant pages of the Part A and Part B documents with separate exhibit numbers again. However, this procedure shall be without prejudice to the rule against hearsay. Part C document, when either upgraded into Part B document or its original have been tendered by the maker and verified as authentic, shall be marked with a separate exhibit number. [10] The trial proceeded for 4 days on 5.1.2022, 6.1.2022, 14.3.2022 and 16.3.2022 at which the following 7 witnesses attended and gave oral evidence: Witness Date of Witness Statement giving oral evidence PW1 Ng Lee 5.1.2022 Enclosure 50; Wee Signed copy in Enclosure 83 marked as “WS-PW1” PW2 Ooi Kim 5.1.2022; Enclosure 52; signed copy in Geik 6.1.2022 Enclosure 82 marked as “WS- PW2” DW1 Ng Kim 14.3.2022; Witness Statement in Enclosure Pin 16.3.2022 57; L64 (signed copy in Enclosure 72 marked as “WS-DW1(A)”); + Supplemental Witness Statement in Enclosure 66 & L70 (signed copy in Enclosure 73 marked as “WS-DW1(B)”) DW2 Lim Peng 16.3.2022 Witness Statement in Enclosure Seng 58; L63 (signed copy in Enclosure 78 marked as “WS- DW2(A)”) & Supplemental Witness Statement (Enclosure 69), signed copy in Enclosure 79 marked as “WS-DW2(B)” DW3 Ng King 16.3.2022 Witness Statement in Enclosure Chong 62; signed copy in Enclosure 77 marked as “WS-DW3” 4 DW4 Ng Kin 16.3.2022 Witness Statement in Enclosure Siong 59; L60; L61; & Supplemental Witness Statement in Enclosure 67; signed copies in Enclosures 80 and 81 marked as “WS- DW4(A)” and “WS-DW4(B)”. DW5 Ng Kin 16.3.2022 Witness Statement in Enclosure Boon 43 (signed copy in Enclosure 75 marked as “WS-DW5(A)”) & Supplemental Witness Statement in Enclosure 71 (signed copy in Enclosure 76 marked as “WS- DW5(B)”). Legal Principles [11] In order to determine if a property is subject to a resulting trust or that the property had been gifted away, the court has to examine the facts and evidence in totality to determine whether a resulting trust, or a gift on the other hand, was intended by the initial disponer. In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, the Federal Court held that:- “[18] In our judgment, the primary function of the court in a case where resulting trust is asserted or a gift is alleged arising from a disposition of property is clear. It is to determine whether the initial disponor intended to make a gift of the property be it movable or immovable, or whether he or she intended it to be held by the disponee in trust for some other person or persons, including the disponor or the disponee or both. A court when called upon to decide whether a resulting trust or a gift was intended in given circumstances should not begin by resorting to presumptions. It must meticulously examine the facts to objectively ascertain the true intention of the parties. If the intention of the parties when objectively determined was that the particular property was to be held on a resulting trust then that is the conclusion the court should declare. However, if the intention was that the disponee of the property was to have it as a gift, there can be no question of a resulting trust being implied. It is only when there is absent any indication of what was intended by the parties that the court should resort to presumptions. Were it otherwise, the court may be arriving at an 5 incorrect conclusion based on a presumption when the evidence points in quite the opposite direction.” [Emphasis added]. [12] In the case of Wan Khairani Wan Mahmood v Sri Alam Sdn Bhd [2013] 2 CLJ 63, the plaintiff argued that certain shares in a company were held on trust for him by the second defendant. The plaintiff relied on the presumption of resulting trust on the basis that the second defendant did not provide any consideration in acquiring the shares. The High Court ruled in favour of the plaintiff. On appeal, the Court of Appeal highlighted the following errors committed by the trial judge:- “(i) In his finding, the trial judge had resorted directly to a presumption of a resulting trust. His finding is based on sole reason that the Rasa Rata Shares were paid for by the plaintiff through the transfer of the PDC shares to the second defendant. (ii) The trial judge had been largely influenced by the fact that the plaintiff had contributed towards the purchase of the PDC shares, thereby invoking the presumption of resulting trust. (iii) In this, the trial judge fell into error because he overlooked the fact that the burden of proof alleging the existence of trust is upon the plaintiff before the burden could be shifted to the first defendant. [Emphasis added]. 13. Unlike resulting trust, which also operates by the operation of law, constructive trust does not give effect to the presumed intention of the parties. Constructive trust arises where the circumstances are such that it would be unconscionable or unjust if one were to be allowed to keep the property for himself and deny the beneficial interest of another. 14. In the Federal Court case of Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn Bhd [2017] 8 CLJ 392, the Federal Court held:- “[58] From decided case authorities it has been established as a principle of law that constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the property (usually but not necessarily the legal owner) to assert his own beneficial 6 interest in the property and deny the beneficial interest of another … [59] It has also been held that a constructive trust is a trust which is imposed by equity in order to satisfy the demands of justice and good conscience without reference to any express or presumed intention of the parties ...” [Emphasis added]. Examination and Analysis of the Evidence and Facts 15. Following the principles decided by the Federal Court in Takako Sakao, the role of this Court is to meticulously examine the facts to objectively ascertain the true intention of the parties to see whether the intention of the parties when objectively determined was that the particular property was to be held on a resulting trust or whether the intention was that the disponee of the property was to have it as a gift. This also will thereafter also find whether there was any constructive trust which arises by operation of law in that it would be unconscionable for the Defendants as registered owner of the property to assert their own beneficial interest in the property and deny the alleged beneficial interest of the deceased. 16. In dealing with the facts and circumstances in the present case, this Court will set out the findings of background facts and surrounding circumstances under the heading of undisputed and/or indisputable events in chronological sequence before dealing with the contentious facts and issues in subsequent parts of this judgment. Undisputed and/or indisputable events in chronological sequence 17.1 The subject-matter in dispute in our present suit is the 2/3rd shares in a 3-storey shophouse known as Nirwana Shop No. 21 ( the said shophouse is hereinafter referred to as “the Subject Property” or “Nirwana Shop No. 21”). Pursuant to the Sale and Purchase Agreement signed with the original vendor, the Subject Property, as it stands, is registered in the name of the deceased Ng Kin Yong, the 1st Defendant Ng Kim Pin and the 2nd Defendant Lim Peng Seng: Statement of Agreed Facts “SAF”, para. 6. 17.2 Ng family was very poor in their early childhood days, went through much hardship together in life and the family members had close bonding and relationship in the past: IT Manager DW5 Ng Kim Boon’s evidence on 16.3.2022. DW5 Ng Kim Boon is the youngest 7 brother of the deceased Ng Kin Yong. See also Q&A 5 of WS- DW1(A) - DW1 Ng Kim Pin’s evidence. 17.3 Their parents had 7 children, being 6 sons and 1 daughter. The siblings’ seniority according to age are (1) Kin Tiong; (2) Kin Yong (the deceased and late husband of the Plaintiff Ooi Kim Geik); (3) Kim Pin (the only sister and the 1st Defendant here); (4) King Chong; (5) Kim Ming; (6) Kin Siong and (7) Kim Boon: DW5 Ng Kim Boon’s evidence on 16.3.2022; DW1 Ng Kim Pin’s evidence in WS-DW1(A) Q&A 5. 17.4 The central figure, as far as matters pertaining to this court suit are concerned, was the late Ng Kin Yong, the second eldest son in the Ng family. The Plaintiff is the widow of the late Ng Kin Yong and they were married after the death of the late Ng Kin Yong’s 1st wife Jenny. The Defendants are husband and wife, with the 1st Defendant Ng Kim Pin being the only sister of the late Ng Kin Yong. See SAF paragraphs 2 and 3. 17.5 Late 1980s: Kin Tiong (the eldest son) and Kin Yong (the second eldest son) had a big fallout; however, the relationship between each of Kin Tiong and Kin Yong with the other brothers and the only sister remained close and intact: DW4 Kin Siong’s evidence on 16.3.2022. 17.6 January 1987: the late Ng Kin Yong and his 1st wife Jenny were married: Encl. 82, WS-PW2 Ooi Kim Geik Q&A 6. 17.7 Mid-1991: Ng Kin Yong’s late wife Jenny was diagnosed to be suffering from cancer: see PW2 Ooi Kim Geik’s evidence in WS- PW1 Q&A 6. 17.8 9.7.1991: Lim Peng Seng and Ng Kim Pin’s withdrew their 3 Fixed Deposits totaling RM150,000: AB1/181. 17.9 11.7.1991: Overdraft facility of RM150,000 was taken by the 1st and 2nd Defendants to help Kin Yong’s finance in University Utara Malaysia Project (“UUM Project”) in Changlun, Kedah, using their 3 Fixed Deposits of RM50,000 each as security for the overdraft. This advance was subsequently repaid by Kin Yong: DW1 Ng Kim Pin’s evidence on 14.3.2022; : AB1/180 -184 181, 185 - 186. The repayment was made through King Chong: see also DW3 King Chong’s evidence on 16.3.2022 and AB1/185 - 186. See also WS- 8 DW1(A) Ng Kim Pin Q&A 8 paras. 2 to 4. 17.10 15 September 1991: the late Ng Kin Yong’s 1st wife Jenny passed away: WS-DW1(A) Ng Kim Pin Q&A 8 para. 6. This was after about 3 months of having been diagnosed as having cancer: PW2 Ooi Kim Geik’s evidence in WS-PW1 Q&A 6. The late Ng Kin Yong and his 1st wife the late Jenny did not have any child. DW2 Lim PS played key role in arranging the funeral of Kin Yong’s late wife Jenny: DW2’s evidence on 16.3.2022, WS-DW2(A) Q&A 1. 17.11 1991 and 1992: DW2 Lim PS worked as IT Consultant with Hawlette Packett Sales: DW2 Lim PS’s evidence on 16.3.2022. 17.12 Mid-1991: Kin Chong, who graduated in March 1991, joined the UUM Project (a construction project procured by the late Kin Yong) in mid-1991 at salary of RM3,000, about 2 months after he started work as Computer Programmer in Southern Steel Sdn Bhd in Prai with salary of RM1,600; left Prai; initially stayed in rented house in Alor Setar and later shifted to Changlun, near UUM Project site: DW3 King Chong’s evidence on 16.3.2022. 17.13 18.6.1992: Deceased Kin Yong, in a rather apologetic tone, sent a letter to Kin Siong: DW4 Ng Kin Siong’s evidence WS-DW4 Q&A 8; AB2/98 – 99. 17.14 17.8.1992: Purchase of Nirwana Shop No. 21 (“the Subject Property”) under 3 joint names of Kin Yong, Kim Pin and Lim PS. The Sale and Purchase Agreement (“the SPA”) dated 17.8.1992 was signed between Chan Chwee Geok (Vendor) and Ng Kin Yong, Ng Kim Pin & Lim Peng Seng (as purchasers) on purchase the Nirwana No. 21 Shop (the Subject Property): Encl. 33, AA/1 – 12. See also the Statement of Agreed Facts marked as “SAF” (Encl. 32) para 4. The deceased Kin Yong paid for the entire purchase price for the Subject Property: para 5 of SAF. Pursuant to the SPA, the Subject Property is registered in 3 joint names: SAF para 7. 17.15 1.4.1993: The bank BBMB’s overdraft facility of RM175.000 for purchase of Nirwana 21 Shop (the Subject Property). signed and accepted by all of Ng Kin Yong, Ng Kim Pin and Lim Peng Seng. The joint applicants and borrowers were Ng Kin Yong (the deceased), Ng Kim Pin (1st Defendant) and Lim Peng Seng (2nd Defendant): AB1/187 – 193. The land title search as at 10.2.2020 9 shows that the Deceased Kin Yong, the 1st Defendant Ng Kim Pin and the 2nd Defendant Lim Peng Seng were the registered proprietors of the Subject Property and that there was a BBMB Bank’s legal charge on the title in respect of a bank loan taken by the 3 co-proprietors: see AA/13 – 14; DW1 Ng Kim Pin’s evidence in WS-DW1(A) Q&A9 para. 1. 17.16 2.6.1993: The charge of the Subject Property in favour of Bank Bumiputra Malaysia Bhd (BBMB) was registered on 2.6.1993, showing Lim Peng Seng, Ng Kim Pin and Ng Kin Yong as co- owners and co-chargors,: AA/13 -14. NPSB paid all rentals to Kin Yong in respect of Nirwana 21 Shop (the Subject Property) during his lifetime: see SAF paragraph 9. 17.17 4.6.1993: date of incorporation of Nation Park Sdn Bhd: AB3/1; WS-DW1(A) Ng Kim Pin Q&A 1 para. 2. Over the years, the different floors of the Subject Property were rented out to Nation Park Sdn Bhd (“NPSB”) and others: SAF para 8. Rentals for the Property were collected by the Deceased during his lifetime, and subsequently by the Plaintiff after the Deceased’s demise in March 2016 (SAF para 9) until July 2016. It is also undisputed that Nation Park Sdn Bhd operated its business activities, administration and management at the premises of the Subject Property since 1993 (1st Floor), then 2nd floor as well as from 1998 plus the ground floor (as from 2012) until its winding-up and cessation of business in year 2020: see Q&A 22 and Q&A 25 of WS-PW2 Ooi Kim Geik (the Plaintiff). 17.18 31.10.1994: Ng Kin Chong became Director of Nation Park Sdn Bhd: AB3/3. 17.19 December 1994: The Plaintiff and the late Ng Kin Yong met through a mutual friend: Encl. 82, WS-PW2 Ooi Kim Geik Q&A 5. 17.20 1.9.1995: 1st Defendant DW1 Ng Kim Pin’s joining of NPSB on 1.9.1995; before that she was with American International Assurance (“AIA”) as Assistant Manager: DW1’s evidence on 16.3.2022; WS-DW1(A) Q&A 1 para. 2. 17.21 1995: The late Ng Kin Yong and the Plaintiff Ooi Kim Geik started going out: Encl. 82, WS-PW2 Ooi Kim Geik Q&A 5. 10 17.22 10.02.1999: Kin Yong’s re-marriage with the Plaintiff PW2 Ooi Kim Geik: Encl. 82, WS-PW2 Ooi Kim Geik Q&A 5. 17.23 2001: The twin sons of the late Ng Kin Yong and Plaintiff were born: Encl. 82, WS-PW2 Ooi Kim Geik Q&A 5. 17.24 2003: The third and youngest child, a daughter, of the late Ng Kin Yong and Plaintiff was born: Encl. 82, WS-PW2 Ooi Kim Geik Q&A 5. 17.25 Sometime between 2002 and 2007: Purchase of 4 adjacent lots of land at Pedas: WS-DW1 Kim Pin Q&A 9; see Tarikh Daftar in AB1/337 and AB1/257: (1) Lot 1667: under Nation Park Sdn Bhd’s name; (2) Lot 1688 (about 9 acres) : under the 1st and 2nd Defendants’ names; later re-transferred in 2015 to the late Kin Yong at Kin Yong’s request: DW1 Ng Kim Pin’s evidence on 16.3.2022; SPA re-transfer: AB3/15 – 34. (3) Lot 1689: under Kin Ming’s name; later re-transferred in 2015 to the late Kin Yong at Kin Yong’s request: DW1’ Ng Kim Pin’s evidence on 14.3.2022; AB3/35. (4) Lot 1690: under Ng Kin Chong’s name; subject-matter of a pending Seremban High Court Suit: DW3 Ng King Chong’s evidence on 16.3.2022, WS-DW3 Q&A 10. 17.26 December 2008: Kin Siong left Kin Tiong’s company Casuarina Nursery Sdn Bhd and joined deceased Kin Yong’s company NPSB in December 2008: DW4 Kin Siong’s evidence on 16.3.2022. 17.27 2009: Purchase of Nirvana No. 25 shop at Bandar Ampang Baru under 3 joint names of the Plaintiff (Ooi KG), the 1st Defendant (Kim Pin) and sister-in-law Alice (Hew Oi Lee): see DW1 Ng Kim Pin’s evidence on 16.3.2022. 17.28 Year 2014: The Bandar Baru Ampang shop was sold by co-owners the deceased Ng Kin Yong, the 2nd Defendant Lim Peng Seng and Ng Kin Chong, and sale proceeds were distributed among the three (3) joint owners subsequently: DW2 Lim Peng Seng’s evidence on 16.3.2022. This Bandar Baru Ampang shop was held 11 under the 3 joint names of the 2nd Defendant Lim Peng Seng, Ng Kin Chong and the late Ng Kin Yong, with 1/3rd share each: see evidence of DW1 Ng Kim Pin on 16.3.2022. This shop was bought by them when DW1 Ng Kim Pin was still with AIA and before she joined NPSB: see evidence of DW1 Ng Kim Pin on 16.3.2022. 17.29 20.01.2015: At deceased Ng Jin Yong’s instruction, his solicitor Ti & Associates prepared draft Sale and Purchase Agreement (between the 1st Defendant Ng Kim Pin, 2nd Defendant Lee Peng Seng as the Vendors in their capacity as registered and beneficial proprietors and the deceased Ng Kin Yong as the Purchaser) regarding Pedas, Rembau land Lot No. 1688 at a consideration price of RM350,000 and e-mailed to 1st Defendant Ng Kim Pin (Elaine Ng): AB1/194 – 214 @ pages 196, 198 Recital (1) and page 197 item 7 (Purchase Price). This Pedas land Lot No. 1688 was free from encumbrances at that time [see item 3A at AB1/196: “The said Chargee: NIL”]. In the same e-mail, a draft of the Sale and Purchase Agreement (between a brother Ng Kim Ming as the Vendor in his capacity as registered and beneficial proprietor and the deceased Ng Kin Yong as the Purchaser) regarding Pedas land Lot No. 1689 at a consideration price of RM350,000 was also enclosed and sent to 1st Defendant Ng Kim Pin (Elaine Ng): AB1/194, 215 - 234 @ pages 194, 218 Recital (1) and page 216 item 7 (Purchase Price) regarding Pedas land Lot No. 1689 at a consideration price of RM350,000 and e-mailed to 1st Defendant Ng Kim Pin (Elaine Ng): AB1/194, 215 – 234. This Pedas land Lot No. 1689 was free from encumbrances at that time [see item 3A at AB1/216: “The said Chargee: NIL”]. Messrs Ti & Associates had been the deceased Ng Kin Yong’s solicitors for more than 10 years before he passed away in 2016: WS-PW1 Ng Lee Nee (advocate & solicitor) Q&A 2. See also WS-DW1(A) Ng Kim Pin Q&A 9 paras. 5 to 7. 17.30 31.3.2015: The 1st Defendant (Elaine Ng Kim Pin) asked Ng Kin Yong (Andrew or “KY”) whether to proceed as SPA using the draft SPA or as a gift transfer in view of GST implication [AB1/235] and in reply on 10.4.2015, the late Ng Kin Yong (Andrew) instructed that there was no need to change but to proceed as SPA as per the draft [AB1/237]. 17.31 25.5.2015: signed and dated SPA for transfer of Pedas land Lot No. 1688 from the Defendants to deceased Kin Yong: Encl 48, AB3/15 – 34; WS-PW1 Ng Lee Nee (advocate & solicitor) Q&A 3. 12 The Sale and Purchase Agreement dated 25.5.2015 (between the 1st Defendant Ng Kim Pin, 2nd Defendant Lee Peng Seng as the Vendors in their capacity as registered and beneficial proprietors and the deceased Ng Kin Yong as the Purchaser) regarding Pedas, Rembau land Lot No. 1688 at a consideration price of RM350,000 and e-mailed to 1st Defendant Ng Kim Pin (Elaine Ng): AB3/15 – 34 @ pages 15, 16 Recital (1) and 34 item 7 (Purchase Price). This Pedas land Lot No. 1688 was free from encumbrances at that time [see item 3A at AB3/33: “The said Chargee: NIL”]. See also WS-DW1(A) Ng Kim Pin Q&A 9 paras. 5 and 6. 17.32 25.6.2015: signed and dated SPA for transfer of Pedas land Lot No. 1690 from Kim Ming to deceased Kin Yong: Encl 48, AB3/35 – 54; WS-PW1 Ng Lee Nee (advocate & solicitor) Q&A 4. Sale and Purchase Agreement (between a brother Ng Kim Ming as the Vendor in his capacity as registered and beneficial proprietor and the deceased Ng Kin Yong as the Purchaser) regarding Pedas land Lot No. 1689 at a consideration price of RM350,000 was also enclosed and sent to 1st Defendant Ng Kim Pin (Elaine Ng): AB3/35 - 54 @ pages 35, 36 Recital (1) and 54 item 7 (Purchase Price) regarding Pedas land Lot No. 1689 at a consideration price of RM350,000 and e-mailed to 1st Defendant Ng Kim Pin (Elaine Ng): AB1/194, 215 – 234. This Pedas land Lot No. 1689 was free from encumbrances at that time [see item 3A at AB3/53: “The said Chargee: NIL”]. See also WS-DW1(A) Ng Kim Pin Q&A 9 para. 7. 17.33 In the second half of 2015: the said 2 plots of Pedas lands land Lots Nos. 1668 and 1689 were transferred by the Defendants and Ng Kim Ming respectively to the late Kin Yong at the late Kin Yong’s request after the signing of the respective Sale and Purchase Agreement between the late Ng Kin Yong and each of the Defendants and Ng Kim Ming. See paragraphs 17.32 and 17.34. 17.34 Although the purchase price of RM350,000 was stipulated for each lot of land, no actual money whatsoever has changed hand: DW1 Kim Pin’s evidence on 16.3.2022. PW1 Ng Lee Nee (advocate & solicitor) also testified that no money was paid through the law firm Messrs Ti & Associates, and this evidence was not questioned or dispute by any party hereto: see WS-PW1 Q&A 7 & 8 and PW1 Ng Lee Nee’s evidence on 5.1.2022. The Plaintiff has not produced any evidence to contradict this fact and has not produced any document to show any payment of purchase price 13 was made by the late Ng Kin Yong to either of the Defendants or to Ng Kin Ming. Indeed, PW1 Ooi Kim Geik herself confirmed that no money was paid by the late Ng Kin Yong to any of the 1st Defendant Ng Kim Pin and 2nd Defendant Lim Peng Seng or Ng Kin Ming: see WS-PW2 Ooi Kim Geik Q&A 43. In the Sale and Purchase Agreements, Recital (a) states the Vendors as “the registered and beneficial proprietors of the said land”: AB1/198, 218. 17.35 September 2015: late Kin Yong diagnosed of cancer: Encl. 82, WS-PW2 Ooi Kim Geik Q&A 5; WS-DW1(A) Ng Kim Pin Q&A4. 17.36 19.10.2015: The Last Will and Testament of Ng Kin Yong was made, leaving all his estate to his wife solely, with no mention of identities of assets and properties and with no mention of giving anything to his children: AB1/1 – 2. This Will of the late Ng Kin Yong was made about 1 month after he was diagnosed of cancer and about 5 months before his death. 17.37 29.02.2016: The late Kin Yong was admitted to hospital for cancer: DW1 Kim Pin’s evidence on 14.3.2022. 17.38 To take care of the late Kin Yong while he was hospitalized, there was put in place and implemented a 24-hour duty roster by Kin Yong’s siblings including the 1st and 2nd Defendants, their son, etc and also the Plaintiff’s siblings: DW1 Kim Pin’s evidence on 14.3.2022 and 16.3.2022. 17.39 28.3.2016: The Plaintiff Ooi Kim Geik became a Director and 77.5% shareholder of Nation Park Sdn Bhd: AB3/3 & 4. In the previous years before this date, the shareholding in Nation Park Sdn Bhd was Kin Yong 77.5%; Kin Chong 15%; Kim Pin 7.5%: DW1 Ng Kim Pin’s evidence on 14.3.2022. 17.40 Over the previous years, Nation Park Sdn Bhd was established and grown into a substantial business in landscaping and related businesses with sizeable projects and formed a very important part of the late Ng Kin Yong’s business operations. During these years of business operations, Nation Park Sdn Bhd’s business and operational office have been located in the premises of the Subject Property. 14 17.41 29.3.2016: the late Ng Kin Yong passed away as a result of terminal cancer: SAF paragraph 1; Encl. 82, WS-PW2 Ooi Kim Geik Q&A 5; DW1 Kim Pin’s evidence on 14.3.2022; WS-DW1(A) Ng Kim Pin Q&A 4. 17.42 April – June 2016: rentals for Subject Property were paid to the Plaintiff but this was stopped by the 1st Defendant as from July 2016: DW1 Kim Pin’s evidence on 14.3.2022. It was the 1st Defendant who instructed or caused the stoppage of such rental payments to the Plaintiff. According to the 1st Defendant, she did so because she wanted to claim her portion of the rentals. 17.43 July 2016: The Plaintiff filed her application for probate vide KL High Court OS No. WA-32NCVC-1172-07/2016: AB1/241. In the Plaintiff Ooi Kim Geik’s probate application, there was a long List of Assets and Liabilities (15 items of immovable properties, 27 items of movable properties as assets and 2 bank loans as liabilities) which included the 1/3rd share in the Subject Property as 1 of the many items of properties and assets: see AB1/250, item 1 (the 1st item at the top of the List). 17.44 20.7.2016: DW2 Kim Pin’s e-mail to Plaintiff with caption “Issues to be settled” : 7 items: AB1/43. 17.45 July – August 2016: Kin Siong made project incentive claims totaling about RM1 million against NPSB: Ng Siong’s evidence on 16.3.2022. 17.46 1 August 2016: DW1 Kim Pin’s stoppage of signing NPSB’s cheques for rental payment to Plaintiff in respect of Nirwana Shop No. 21: PW2 Ooi Kim Geik’s evidence in Q&A 22 of WS-PW2; AB1/156. 17.47 3.8.2016: Plaintiff obtained Grant of Probate as sole executrix of Kin Yong’s estate: AB1/3. 17.48 November 2016: Plaintiff’s termination of DW1 Kim Pin’s employment as Administration Manager with NPSB. On the same day as the Plaintiff issued NPSB’s cheque to pay judgment sum to DW2 pursuant to the court judgment in connection with Nirvana 25 property, Plaintiff terminated DW1 Kim Pin’s employment as Administration Manager: DW2 Kim Pin’s evidence on 16.3.2022. The court suit was brought by Alice (DW1’s sister-in-law) and DW1 15 Kim Pin for their shares of rentals in another jointly-owned property Nirwana No. 25 and in 2016 judgment was obtained by Alice and DW1 Kim Pin against PW2 Ooi Kim Geik: DW1 Ng Kim Pin’s evidence on 16.3.2022. 17.49 29.11.2016: The Plaintiff filed her 1st application to amend the List of Assets and Liabilities for the Grant of Probate: AB1/241 – 312. In the Plaintiff’s application to the Court to amend the asset list of the deceased’s estate in AB1/241 – 300 @ 281, the very first listed item, namely item 1 of the Assets is the 1/3rd of Nirwana Shop No. 21 held under HS(M) 3016 Lot 8679 (the Subject Property). This first item of the Listed Assets appears as the 1/3rd share of the Subject Property in the original Assets List [AB1/250] as well as in the proposed amended Assets List [AB1/282]. The Affidavit in Support of the amendment application was affirmed by Plaintiff on 9.11.2016 [see AB1/243 – 245]. 17.50 7.12.2016: KL High Court’s Registrar granted an order in terms of the Plaintiff Ooi Kim Geik’s 1st application for amendment of the List of Assets and Liabilities: AB1/301 – 310. The first item of the approved List of Assets in the sealed Amended List of Assets and Liabilities (which was sealed on 5.1.2017) was the 1/3rd of Nirwana Shop No. 21 held under HS(M) 3016 Lot 8679 (the Subject Property): see AB1/303. 17.51 6.4.2017: the title for Pedas lands Lots No. 1688 and No. 1689 were registered in the name of the Plaintiff as proprietor: AB3/8 – 14. 17.52 Mid-2017: some of the siblings suspected that PW2 Ooi GK took away Ng family mother’s insurance money: DW1’s evidence including WS-DW1(A) Q&A 18 para. 4, DW3’s evidence, DW4’s evidence. 17.53 Mid-2017: DW4 Kin Siong queried Plaintiff about taking mother’s insurance money: DW4’s evidence on 16.3.2022. 17.54 12.12.2017: The Plaintiff made a 2nd application to amend the List of Assets and Liabilities of the deceased Ng Kin Yong wherein the Plaintiff attempted to amend the first litem 1 of the List of Assets and Liabilities from 1/3rd share to the entirety (“Semua bahagian”) of the Subject Property: AB1/311 – 380 @ 362. In the Plaintiff’s second application of 12.12.2017 to amend again the List of 16 deceased’s Assets and Liabilities alleging that (1) item 17 registered in the name of Nation Park Sdn Bhd was held in trust for the benefit of the deceased Kin Yong: para 4 of Affidavit; (2) item 18 registered in the name of Ng King Chong was held in trust for the benefit of Ng Kin Yong: para 5 of Affidavit; (3) the Subject Property Nirwana Shop No. 21 was 2/3 held by Kim Pin and Lim PS in trust for the late Ng Kin Yong: para 7 of Affidavit in AB1/311 – 315; at AB1/362 the word “1/3”in the Asset List was proposed to be changed to “Semua bahagian” in respect of the Subject Property. See also WS-DW1(A) Ng Kim Pin Q&A 17 para. 3. 17.55 19.01.2018: This first item of amendment application was rejected by the KL High Court on 19.01.2018: see the sealed Order of Court in AB1/370 – 380 @ 372 wherein the first item No. 1 of the List of Assets and Liabilities remains as 1/3rd share (“1/3 bahagian”) of the Subject Property. 17.56 19.01.2018: The Court allowed some amendment but, among others, item 1 (the Subject Property) remained at “1/3 bahagian”: AB1/370 - 379 @ 372. See also WS-DW1(A) Ng Kim Pin Q&A 17 para. 4. 17.57 After the fall-out with the Ng family, the Plaintiff filed Seremban High Court Suit against Nation Park Sdn Bhd and Ng King Chong to claim for Pedas lands Lot 1887 and Lot 1690 on the ground that the late Ng Kin Yong never intended to give these lots to Nation Park Sdn Bhd and Ng Kin Chong respectively: WS-PW2 Ooi Kim Geik Q&A 46. This Seremban High Court Suit was still pending trial as at the date of the full trial in our present case. According to DW3 Ng Kin Chong, the trial of the Seremban High Court Suit was expected to start in June 2022: see DW3 Kin Chong’s evidence on 16.3.2022. 17.58 May 2019: the Plaintiff as the Director and majority shareholder appointed one Loh Leong Chin to be the 3rd Director of Nation Park Sdn Bhd: AB3/1 – 6; WS-PW2 Ooi Kim Geik Q&A 19. 17.59 15.11.2019: for the first time the Plaintiff’s solicitor sent a demand letter claiming the Defendants held the 2/3rd shares in the Subject Property on trust: AB1/45. Before 15.11.2019 there was never any letter, e-mail or telecommunication message from the Plaintiff to either of the Defendants to allege that they were holding the 2/rd shares in the Subject Property as trustees for the late Ng Kin Yong. 17 There is no letter, e-mail or telecommunication message from any of the Defendants or from the late Ng Kin Yong to state or assert that either of the Defendants was holding his/her 1/3rd share in the Subject Property as trustee for the late Ng Kin Yong. After 15.11.2019 the Defendants then engaged solicitor and they denied there was any trust and asserted that the 2/3rd shares in the Subject Property were gifted by the late Ng Kin Yong to them: see exchange of solicitors’ letters in AB1/45 – 48. 17.60 4.12.2019: The 1st Defendant Ng Kim Pin was forced to retire from her directorship in Nation Park Sdn Bhd due to the winding-up of Nation Park Sdn Bhd: Encl. 72, WS-DW1(A) Q&A 1. 17.61 6.12.2019: Defendants’ solicitor’s letter denying trust: AB1/48. 17.62 10.2.2020: Search of land title for the Subject Property as at 10.2.2020 showing Lim Peng Seng, Ng Kim Pin and Ng Kin Yong as co-owners and co-chargors, with charge in favour of BBMB: AA/13 -14. The charge was registered on 2.6.1993. 17.63 From 1995 until March 2020, Nation Park Sdn Bhd has been occupying the premises at the Subject Property or part thereof, and has been operating its business and administrative activities there. See evidence of PW2 Ooi Kim Geik and evidence of the DW1 Ng Kim Pin. 17.64 3.3.2020: Nation Park Sdn Bhd was wound up by the Court at the Plaintiff/Ooi KG’s application: WS-DW1(A) Ng Kim Pin Q&A 10 para. 5; WS-PW2 Ooi Kim Geik Q&A 20; AB3/7. The winding-up was because of the fight between the Plaintiff, the 1st Defendant and Ng Kin Chong which resulted in the deadlock in the company and no new project was coming in: WS-PW2 Ooi Kim Geik Q&A 20. Analysis and Findings on intention of the Deceased and the Defendants [18] In our present case there is no contemporaneous document or written communication between the deceased Ng Kin Yong and either of the Defendants which contains any statement or indication as to what their true intention was at or about the time of their signing the Sale and Purchase Agreement as purchasers with the vendor in connection with the Subject Property. Also, there is no subsequent 18 document or written communication between the deceased Ng Kin Yong and either of the Defendants which contains any statement or indication as to what their true intention was regarding their position as joint purchasers and holders of the Subject Property. In the circumstances, their true intention at the material time has to be gathered objectively from the entire facts and circumstances of the case. [19] As the Plaintiff and the Defendant give conflicting versions of what the true intention was, this Court has to assess from the totality of the facts and circumstances whose version of the true intention is more probable in the present case. [20] Under the laws, the Court in making findings of a fact in dispute has to consider and weigh it on a balance of probabilities. Towards whom is a person likely to have donative intent [21] The first factor to be considered is the ordinary habits and behaviour of human beings in the same or similar position and ethnic group as the parties to the relevant transaction. In the ordinary habits and behavior of human beings including those among the people of Chinese ethnic group, a man is likely to have donative intent (i.e. intention to give a gift) towards persons who are close to him in relationship (including parents, spouse, brothers and sisters, or other close relatives) – this donative intent is motivated by natural love and affection. Going beyond the ethnic group, a man generally is more likely to have donative intent towards persons who have helped him significantly in the past, especially at a time when the man was going through some hardship or acute difficulty – this donative intent is spurred by a sense of gratitude. Also, such man is more likely to have a donative intent towards those other persons at a time when the man has emerged from his past hardship and is beginning or is expected to begin to enjoy some prosperity or relatively much better prospects which he would like to share with one or more of those persons who helped him in the past or is helping him to solve his hardship or difficulty – this donative intent is motivated by a mixture of gratitude and enhanced or improving ability to give or donate. [22] The facts and circumstances summarized in paragraphs 17.2, 17.3, 17.5 – 17.10, 17.14 – 17.16, 17.17 and 17.20 above (relationship as brother and only sister; financial assistance in the form of overdraft 19 to help in the late Ng Kin Yong’s UUM Project; and better prospects or expectation of better prospects in future with the establishment of Nation Park Sdn Bhd) are conducive or positive for a donative intent of the late Ng Kin Yong towards the 1st Defendant (his only sister) and the 2nd Defendant (his only sister’s husband) in mid-1991 and the several subsequent years. The active roles of the 2nd Defendant, as a brother-in-law, who arranged and organised the funeral of the late Kin Yong’s beloved wife Jenny at a time when the late Kin Yong grieved greatly for the loss of Jenny, was also a factor which tends to lean in favour of the late Ng Kin Yong having a donative intent towards the 1st and the 2nd Defendants as a couple. Re-organisation and consolidation of previously-acquired properties after a man’s marriage and having children [23] The second factor is to consider how the person organised his various properties during his lifetime. Where a person has placed several of his assets and properties under the names of his nominees or trustees at a time when he had no living wife or child but subsequently gets married and then has children, it is in the ordinary habit and behaviour of human beings that this man after his marriage and having children is likely to re-organise and consolidate his assets and properties by (a) either requiring his nominees or trustees to re-transfer them back to his name or the name of his wife or children, or (b) require his nominees or trustees to sign and execute trust deed or written instrument to record or confirm the holders as nominees or trustees for his benefit or for the benefit of his estate. This ordinary habits and behavior of human beings was in fact reflected in the late Ng Kin Yong’s consolidation of his assets and properties by requiring his brother Ng Kim Ming and his sister Ng Kim Pin (the 1st Defendant) to transfer the Pedas land Lots No. 1688 and 1689 to the late Ng Kin Yong during his lifetime in 2015, after his marriage with the Plaintiff and after his children were born [see paragraphs 17.29 to 17.33 above]. When the late Ng Kin Yong in his consolidation of his assets and properties left out the Subject Property which was 2/3rd held by his only sister (the 1st Defendant) and his brother-in-law (the 2nd Defendant), this would serve as his subsequent conduct in affirming the donative intent unless the circumstances show that he had inadvertently overlooked to deal with the Subject Property in the course of his consolidation of his assets and properties. 20 Whether a person was likely to have overlooked a shop where his core business operations were located when he re-organised and consolidated his properties [24] The third factor is the prominence and importance of the subject property to the relevant person’s life and business during his lifetime. Bearing in mind that Nation Park Sdn Bhd is the main business of the late Ng Kin Yong, that Nation Park Sdn Bhd’s business and administration and management office have been at the premises of the Subject Property for many years until during the time of the late Ng Kin Yong’s consolidation of his assets and properties and thereafter, it is highly improbable that the late Ng Kin Yong would have inadvertently overlooked to deal with the 2/3rd share in the Subject Property when handling his consolidation of his assets and properties [see paragraphs 17.40 above]. Unlike some other items of properties which are located far away from the place of his daily business operations and administration, the Subject Property was the hub of his daily business operations and administration for years and at the time of consolidation of assets and properties – right before his very eyes. It is not an item of property which the late Ng Kin Yong, who had the skill and acumen of collecting and owning a long list of assets and properties to be left for his estate, could have inadvertently overlooked. In the circumstances, this Court finds on a balance of probabilities that the late Ng Kin Yong knowingly or intentionally excluded the 2/3rd shares in the Subject property held by the Defendants from his consolidation of his assets and properties. This fact is supportive or affirmative of a donative intent on the part of the late Ng Kin Yong towards his only sister (the 1st Defendant) and her husband (the 2nd Defendant). Whether it was likely for a man, who suffered from cancer for months, to have overlooked in telling his surviving wife regarding the true beneficial ownership of the shop where his core business was being operated [25] The fourth factor is the likelihood of a deceased telling his surviving spouse regarding the true beneficial ownership of the subject property. Even if one were to take the late Ng Kin Yong as having acted or behaved unlike an ordinary human being in his situation would have acted (i.e. contrary to what is stated in paragraph [18] above), the very least which one would expect the late Ng Kin Yong to do during his lifetime would be to tell his wife the Plaintiff (Ooi Kim 21 Geik) during his lifetime that the said 2/3rd shares in the Subject Property were held by other persons in trust for him. If that were the case, the Plaintiff Ooi Kim Geik would have known about such trust holding and would have expressly stated in her application for probate the Subject Property as entirely (“semua bahagian”) as belonging to the estate. However, contrary to such scenario, what the Plaintiff Ooi Kim Geik expressly stated in respect of the Subject Property in her application for probate was 1/3rd share (“1/3 bahagian”) of the Subject Property as belonging to the late Ng Kin Yong’s estate, and the probate she procured was with 1/3rd of the Subject Property under the estate’s List of Assets and Liabilities [see paragraph 17.43 above]. In the 1st amendment to the List of Assets and Liabilities approved by the High Court pursuant to the Plaintiff’s own application, the Subject Property was still stated as 1/3rd share belonging to the estate of the late Ng Kin Yong [see paragraph 17.49 above]. Whether it is likely for a widow to have made an inadvertent mistake twice is stating the late husband’s beneficial ownership of the very 1st item of the List of Assets and Properties in her probate application where the said 1st item was where she also recently had a dispute with another co-proprietor and was where the business and company she took over from her late husband [26] the fifth factor is the probability or improbability of the surviving widow making an inadvertent in the very first item of the deceased List of Assets and Liabilities in her probate application. It is highly improbable that the Plaintiff Ooi Kim Geik could have inadvertently made a mistake in the probate proceeding regarding the late Ng Kin Yong’s extent of ownership of the Subject Property. The Plaintiff Ooi Kim Geik was appointed as a Director of Nation Park Sdn Bhd on 28.3.2016 and also became 77.5% shareholder in the company as from 28.3.2016 [see paragraph 17.39 above]. The business operations and administration of Nation Park Sdn Bhd in year 2016 was still at the Subject Property [see paragraph 17.40 above]. The 1st Defendant stopped signing the cheques so as to stop the rental payment to the Plaintiff in July 2016 [see paragraph 17.42 above]. Yet in the very 1st item of the List of Assets and Liabilities in the Plaintiff’s amendment application in November 2016, the Plaintiff still expressly described the late Ng Kin Yong’s entitlement to the Subject Property as 1/3rd share thereof [see AB1/250]. This 1st item appears at the very top of the proposed Amended List of Assets and Liabilities. When the Plaintiff proposed to make amendments to the 22 List of Assets and Liabilities, she must have re-examined and re- checked the original List prior to the amendment application – yet is still appeals as 1/3rd share of the Subject Property [see AB1/282]. In the circumstances, this is supportive of the late Ng Kin Yong’s donative intent towards the Defendants in connection with the 2/3rd shares in the Subject Property. Whether the Deceased had told his wife, the Plaintiff, that the 2/3rd shares in the Subject Property did not belong to him [27] Further or additionally, this Court finds that it is also consistent with the late Ng Kin Yong having told his wife (the Plaintiff) during his lifetime that the 2.3rd shares in the Subject Property did not belong to his estate. In making such further or additional finding, this Court has considered the following facts and circumstances: (a) The late Ng Kin Yong did not require the Defendants to transfer the said 2/3rd shares in the Subject Property to him during the course of his consolidation of his assets and properties in 2015 [see paragraphs 17.29 to 17.33 above]; (b) As the late Ng Kin Yong did not die of a sudden or abrupt death but there was a gap of about 6 months between his being diagnosed of cancer and his eventual death [see paragraphs 17.35 to 17.41 above], he had adequate time and opportunity to put in some form of writing his wish or instruction to the Defendants to transfer whatever balance trust property, if any) to him or to sign a trust deed (if relevant). Nevertheless, there was no such attempt or step taken by the late Ng Kin Yong during those few months; (c) While he was afflicted with cancer, the late Ng Kin Yong planned for his wife by getting her to be appointed as Director and also as 77.5% shareholder of Nation Park Sdn Bhd [see paragraph 17.39 above] and by telling her and/or providing her with description of a long list of many items of assets and properties belonging to him (see the List of Assets and Liabilities in AB1/250 – 256), which is the result of a man who planned elaborately and organized well his departure from this world to ensure his surviving widow knew the many items and the identities of assets and properties owned by him, and bearing in mind that in our Malaysian society, not many men 23 could do such elaborate planning for his estate left to their surviving widows; and (d) If the late Ng Kin Ying had told his wife (the Plaintiff) that the said 2/3rd shares in the Subject Property were held in trust for him, the Plaintiff would have stated so in her own application for probate and in her 1st amendment application to the List of Assets and Liabilities. Analysis of the overall acts and conduct of the late Ng Kin Yong in his handling and planning the succession for his estate [28] Now this Court will look at sixth factor, the overall acts and conduct of the late Ng Kin Yong in his handling and planning the succession for his estate. [29] In year 2015, the late Ng Kin Yong consolidated his assets and properties wherein, among others, he instructed the Defendants and Ng Kim Ming who willingly transferred the Pedas Lot No. 1688 and Lot No. 1689 respectively to the late Ng Kin Yong, and for which the Defendants have not received any payment or monetary consideration. The late Ng Kin Yong survived for about 6 months until 29.3.2016 after he was diagnosed of cancer in September 2015. After having been diagnosed of cancer, the late Ng Kin Yong planned his estate succession by signing his Will (appointing his wife the Plaintiff to be the sole executrix and sole beneficiary of his estate), caused to be prepared and signed the transfer of his 77.5% shares in Nation Park Sdn Bhd and the substitution of his wife (the Plaintiff) in his place as the Director of the said company, and caused to be implemented the perfection of the said changed of directorship and the transfer of 77.5% shares in the said company. This effectively further consolidated the control and ownership by him and/or his estate successor of assets and properties by ensuring that his wife (the Plaintiff) took control of Nation Park Sdn Bhd. In the Plaintiff PW2 Ooi Kim Geik’s evidence, she testified as to considerable details pertaining to the late Ng Kin Yong’s first wife Jenny – probably told to her by the late Ng Kin Yong during his lifetime. In the original application for probate filed in July 2016 (just 3 months after the death of the late Ng Kin Yong), the Plaintiff listed down the details of many items of the deceased’s assets and properties. This is probably the result of the deceased’s elaborate planning for succession of his estate during his lifetime after he was diagnosed with cancer. These acts and conduct of the late Ng Kin 24 Yong tend to show that he was not a careless or ignorant person who could have overlooked in telling his surviving wife what assets and properties belonged to him and what did not belong to him. These tend to show that it is unlikely for the Plaintiff to have inadvertently or carelessly missed out the late Ng Kin Yong’s full extent of ownership and entitlement to the very 1st item at the top of the Listed Assets and Liabilities (i.e. the Subject Property) in her application for probate in July 2016 and in her first application to amend the said List of Assets and Liabilities in November 2016. [30] The improbability of the Plaintiff’s version is even more glaring here where the Subject Property was the premises of Nation Park Sdn Bhd’s business and operational activities [see paragraph 17.40 above], the late Ng Kin Yong operated and worked there for many years even until he has hospitalized due to cancer [see paragraph 17.40 above], the late Ng Kin Yong arranged and ensured his 77.5% shares in Nation Park Sdn Bhd was transferred by him to his wife (the Plaintiff) before his death [see paragraph 17.39 above], and also ensured that his wife became Director of Nation Park Sdn Bhd before his death [see paragraph 17.39 above]. It is highly unlikely that the late Ng Kin Yong could have overlooked the 2/3rd shares in the Subject Property held by the Defendants – the very property premises right before his eyes and which was occupied by Nation Park Sdn Bhd in respect of which he also planned well for his estate succession. Analysis of the overall acts and conduct of the Defendants [31] Next we look at the seventh factor, the overall acts and conduct of the Defendants to assess whether they are probably persons who try to take advantage of their relative’s surviving widow (thereby making the Plaintiff’s version of trust holding more probable) or whether they are persons who merely want to keep what rightfully belongs to them and who return to the rightful owner what do not belong to them (thereby rendering the Defendants’ version of gift more probable). [32] The re-transfer of the Pedas land Lot No. 1668 by the Defendants willingly and without asking for any extraneous monetary consideration from the late Ng Kin Yong is a factor in favour of the Defendants’ version on this point. Firstly, in the bundles of documents before the Court in the present case, there is no document to corroborate the fact that the entire payment of the 25 purchase price for the Subject Property was made by the late Ng Kin Yong, yet the Defendants willingly agree in the Statement of Agreed Facts and in their evidence that the entire payment of the purchase price for the Subject Property was made by the late Ng Kin Yong. Secondly, this agreement to such fact on payment was made despite the fact of the documents in the form of the Sale and Purchase Agreement for the Subject Property expressly stipulating that the Deposit for the purchase price had been paid by the purchasers, which grammatically included the Defendants as joint purchasers. A person in the Defendants’ position who tries to take advantage of their relative’s surviving widow would most probably have denied the fact of such entire payment of purchase price by the late Ng Kin Yong – a fact which, on the face of the Sale and Purchase Agreement, that person could easily deny. Thirdly, in the subsequent Sale and Purchase Agreement [AB3/15 – 54] for the Defendants’ transfer of the title for Pedas land Lot No. 1688 to the late Ng Kin Yong at a stipulated consideration of RM350,000, the Defendants were expressly stipulated as “the registered and beneficial proprietors” of the Pedas land Lot No. 1688. In light of the Defendants’ evidence and the Plaintiff’s confirmation that no money change hands between the late Ng Kin Yong (as purchaser/transferee) and the Defendants (as vendors/transferors) notwithstanding the subsequent Sale and Purchase Agreement, a person who tries to take advantage of his/her relative’s surviving widow could have easily denied the trust holding in respect of the Pedas land lot No. 1688 and proceeded to claim for the agreed consideration of RM350,000 which was never paid pursuant to the Agreement. Fourthly, this Court has also observed carefully the tone of voice and demeanour of the Defendants during the course of their oral testimonies, and this Court did not detect anything to justify an allegation that they are trying to take advantage of their relative’s surviving widow, the Plaintiff here. [33] In the circumstances, this Court finds on a balance of probabilities that the Defendants are persons who merely want to keep what rightfully belongs to them and who return to the rightful owner what do not belong to them, and that they are not persons who try to take advantage of their relative’s surviving widow. The conduct of the Defendants therefore tends to lean in favour of the Defendants’ version that they were not holding the said 2/3rd shares in the Subject Property as trustees for the late Ng Kin Yong. 26 Diary entries of the Deceased [34] We now consider two controversial documents upon which the Plaintiff spent much time and relied heavily during the course of her evidence at the trial. These two documents are (1) some diary entries of the late Ng Kin Yong in 1991, 1992 and part of 1993 [AB2/8 – 66, AB2/95; AB4/6 - 7]; and (2) the 1st Defendant Ng Kim Pin’s e-mail of 20 July 2016 [AB1/43 - 44]. [35] In connection with the late Ng Kin Yong’s diary entries, the Plaintiff argues that the contents of the diary entries show that the late Ng Kin Yong had very bad relationship with all his siblings and therefore could not have gifted the 2.3rd shares in the Subject Property to the Defendants. On the other hand, the Defendants argued that the isolated diary entries was for a rather short period of time and was not reflective of the late Ng Kin Yong’s relationship with his siblings during the many years, that the diary entries were made at the period of time when the late Ng Kin Yong was greatly devastated or aggrieved by his loss of first beloved wife, that even the diary entries chosen by the Plaintiff also show that the late Ng Kin Yong was thankful to the 1st Defendant Ng Kim Pin for her help at times of his distress and hardship. [36] Firstly, this Court agrees with the Defendants that the said diary entries were only some of the entries chosen by the Plaintiff in respect of a relatively short period of his life but the state of relationship between the late Ng Kin Yong and his siblings should be viewed in the overall context and over a much longer period of time. [37] This Court accepts the evidence of the youngest sibling DW5 Ng Kim Boon on 16.3.2022. DW5 Ng Kim Boon, being the youngest brother and working as IT Manager in Singapore, is the least partisan witness who is also most visibly saddened by the ongoing litigations between the Plaintiff and the other siblings of the late Ng Kin Ying. From DW5 Ng Kim Boon’s evidence on 16.3.2022 this Court finds that although there were certain junctures of time when there was friction or misunderstanding between the late Ng Kin Yong and some of his sibling other than the eldest brother Ng Kim Tiong, the bonding and close relationship built up during the hardship and poverty years in their childhood remained rather strong except for the eldest brother Ng Kim Tiong. This is reinforced by the fact that the late Ng Kin Yong appointed the 1st Defendant (his only 27 sister) as a Director and Administration Manager of Nation Park Sdn Bhd (“NPSB”) in year 1995 (well after the date of the diary entries of 1991 to part of 1993 relied upon by the Plaintiff), the late Ng Kin Yong in October 1994 employed Ng Kin Chong to work in NPSB, the late Ng Kin Yong gifted some minority shares in NPSB to his only sister the 1st Defendant and to his younger brother Ng Kim Chong, and four (4) lots of Pedas land were purchased by the late Ng Kin Yong, with 2 lots put under the names of the 1st Defendant Ng Kim Pin and another brother Ng Kim Ming. [38] Secondly, the said diary entries were written at a period of time when the late Ng Kin Yong was going through severe depression not long after the death of his beloved 1st wife Jenny. A person under severe depression tends to view things and events pessimistically and/or in an excessively negative perspective. Such views of the person under severe depression could not be truly representative of his views and perspective during his normal periods of time before the onset of the severe depression or after the end of his depression. This is also corroborated by the fact that on 18.6.1992, the late Ng Kin Yong, in a rather apologetic tone, sent a letter to his brother Ng Kin Siong: WS-DW4 Q&A 8; AB2/98 – 99. Further facts which confirm the late Ng Kin Yong’s recovery from his depression and thereafter could organize and manage his business operations, working relationships and financial affairs include his second marriage with the Plaintiff, his ability to earn and acquire many assets and properties in subsequent years [see the List of Assets and Liabilities in the probate application: AB1/250 – 256] despite his extreme financial hardship in 1991 in connection with the UUM Project, his ability to establish Nation Park Sdn Bhd into a sizeable company, his ability to buy quite a number of properties, his ability to consolidate his assets and properties in year 2015, his ability to properly plan his estate succession after having diagnosed with cancer, etc. In contrast with the early years in 1990 and first half 1991 when he struggled financially while he was handling the UUP Project alone, his subsequently years of working together with his siblings culminated in his eventual accumulation of many items of assets and properties to pass down to his estate successor. This is most probably the fruits of many years of united efforts, team work and cooperation between him and his siblings in the Nation Park Sdn Bhd’s business as a rather united team on overall basis, and is definitely not the picture of seriously broken relationship with the siblings which some of his isolated diary entries during his mental depression months on the surface seem to portray. 28 [39] If the relationship between the late Ng Kin Yong and his siblings throughout the years 1991 to 2016 or the substantial part thereof were as bad as alleged by the Plaintiff in our present case, the late Ng Kin Yong would not have done any of the following things which he in fact did: (a) appointing his only sister (the 1st Defendant Ng Kim Pin) as a Director of Nation Park Sdn Bhd; (b) appointing his only sister (the 1st Defendant) as the Administration Manager of Nation Park Sdn Bhd on 1.9.1995 and letting her continue in the employment until after his death [see paragraph 17.20 above]; (c) letting his only sister (the 1st Defendant) to have and continue to keep 7.5% shares in Nation Park Sdn Bhd; (d) using the name of his only sister (the 1st Defendant) to buy Pedas land Lot 1688 sometime between 2002 and 2007 and trusting that she would later return it to him [see paragraph 17.25 above]; (e) using the name of his younger brother Ng Kim Ming to buy Pedas land Lot 1689 sometime between 2002 and 2007 and trusting that he would later return it to him [see paragraph 17.25 above]; (f) letting his younger brother Ng Kin Chong to join him in the operation and management of projects of Nation Park Sdn Bhd in 1991, appointing Ng Kin Chong to be a Director of NPSB in October 1994 and letting Kin Chong continue until after the deceased’s death [see paragraph 17.18 above]; and (f) letting his younger brother Ng Kin Chong to have and continue to keep 15% shares in Nation Park Sdn Bhd until after the deceased’s death. The abovementioned undisputed and/or indisputable facts (a) to (f) show that despite having suffered severe depression for some months after the death of his beloved first wife Jenny and therefore having excessively pessimistic views or excessive expectations from his siblings while he was under severe depression due to 29 extreme sorrows for the loss of wife, the late Ng Kin Chong in other years and months had no such negative or bad views against his younger siblings and his overall relationship with his younger siblings (including his sister the 1st Defendant) remained close and intact. What DW1 Ng Kim Pin testified in detail on 14.3.2022 regarding the inappropriateness or impropriety of using isolated entries in the deceased’s diary to portray an erroneous picture out of context is also consistent with the reliable documentary evidence as well as with the undisputed and/or indisputable facts including the acts and conduct of the parties and of the late Ng Kin Yong at the material times. [40] Human nature is such that a person under extreme sorrow over recent loss of his beloved spouse also tends to expect excessive amount of attention and support from his other friends and siblings, forgetting or overlooking the other people have their own cares and burdens to carry also. This explains why the late Ng Kin Yong’s tone in some of the diary seems to hint or expect his siblings to dump whatever they have under their cares and burdens and immediately come to his aid, now that his beloved wife had been afflicted with cancer or that he had lost his beloved wife through the terminal disease of cancer. [41] In fact, the excessively pessimistic views of the deceased Ng Kin Yong in the diary entries made during his time of severe depression over the loss of his beloved wife Jenny shortly after the making of such diary entries was exemplified by his entry at AB4/7 lines 10 and 11, lines 32 to 35 wherein the deceased begrudged against or blamed DW3 Ng King Chong who expressed his unhappiness that their mother had to take care of the deceased’s late wife, when in reality, as testified by DW3 Ng Kin Chong in cross-examination on 16.3.2022, during that period of time the mother almost everyday had to go to hospital to take care of the late Jenny (Kin Yong’s first wife), that the mother was more than 60 years old, after her work at the nursery until 6p.m., she had to take a bus from Seremban to Kuala Lumpur to take care of Ng Kin Yong’s late wife, and that Ng King Chong as a son also cared for the mother. A son’s expression or act of concern for his mother been burdened with excessive works and duties should not be a reasonable cause for another brother to begrudged against or blame him. This Court finds that DW3 Ng Kin Chong as a son was reasonably justified in expressing his unhappiness with the situation concerning his mother, and the 30 deceased Ng Kin Yong’s diary entry which begrudged against or blamed DW3 Ng Kin Chong is rather inappropriate. [42] In the circumstances, this Court agrees with the Defendant’s submission that the late Ng Kin Yong’s isolated diary entries during his period of severe depression are of no assistance to the Plaintiff’s case. 1st Defendant Ng KP’s e-mail of 20.7.2016 [43] As regards the 1st Defendant’s e-mail of 20 July 2016, this Court finds that when viewed grammatical in the context this e-mail merely states that 1st Defendant’s offer to transfer her as stated in the 1/3rd share in the Subject Property to the Plaintiff in exchange for the Plaintiff doing and confirming certain things in return. There is nothing in the e-mail to confirm whether the 1st Defendant’s 1/3rd share in the Subject Property was held by her as a trustee for the late Ng Kin Yong or was gifted by the late Ng Kin Yong to her. In effect, this e-mail is neutral as to whether the 1st Defendant’s 1/3rd share in the Subject Property was on trust or was a gift. In the premises, when viewed objectively, this e-mail was a conditional offer by the 1st Defendant to settle all outstanding issues with her sister-in-law (the Plaintiff), of which the 1/3rd share in the Subject Property was one of the items involved. As the Plaintiff did not unconditionally accept this offer, there is no agreement or binding promise arising from this e-mail. This e-mail also did not constitute the 1st Defendant’s admission of any trust in respect of her 1/3rd share in the Subject Property. In addition, in light of the entire circumstances of the present case this Court accepts the 1st Defendant DW1 Ng Kim Pin’s testimony on 14.3.2022 that she conditionally agreed in the e-mail to transfer her share in the Subject Property because the Plaintiff kept pleading with her, saying that it was the late brother’s wish to pass this shop to his twin sons. DW1 Ng Kim Pin also testified that she never heard from her late brother that he wished to pass the Subject Property to his twin sons. DW1 Ng Kim Pin further testified on 14.3.2022 that the late Ng Kin Yong said he gifted the 2/3rd shares in the Subject Property to her and her husband, and that if the Plaintiff accepted DW1’s terms and settled all the issues with her in accordance with the terms of the e-mail, DW1 would give to the Plaintiff as the late brother had gifted the same to DW1. This Court finds the testimony of DW1 Ng Kim Pin to be consistent with the reliable documentary evidence as well as with 31 the undisputed and/or indisputable facts, and that DW1 Ng Kim Pin’s evidence is more probable and therefore should be accepted. [44] Now we consider the contents of the e-mail in light of the acts and conduct of the relevant parties shortly or not long after the sending of this e-mail. This e-mail was sent 20 July 2016: AB1/43 – 44. In her evidence at the full trial, the Plaintiff alleged that “Kin Yong always considered the Property as his own, and that he was only ‘borrowing’ Elaine’s and Peng Seng’s names. He never wanted to give the 2/3 shares in the Property to Elaine and Peng Seng. In fact, when Kin Yong was alive and when our children were still very young, he told me that he wanted the Property to be given to be given to our twin sons. He repeated this to me several times.”: Encl. 82, WS-PW2 Ooi Kim Geik Q&A 13. As the Subject Property was occupied by Nation Park Sdn Bhd and the late Ng Kin Yong had been operating and managing his business there for years, one would expect the late Ng Kin Yong to have included this 2/3rd shares in the Subject Property as part of his steps and exercise in his consolidation of his assets and properties in year 2015 if what PW2 Ooi Kim Geik in Q&A 13 were true. Moreover, when the Plaintiff herself was appointed as a Director and became the controlling 77.5% shareholder of Nation Park Sdn Bhd as from 29.3.2016, one would expect that she would promptly put in writing and/or take steps to get back the 2/3rd shares in the Subject Property to be passed down to her twin sons after her husband’s demise if what she said in Q&A 13 of her Witness Statement were true. More so, when the 1st Defendant as from July 2016 refused to sign cheques for rental payment in favour of the Plaintiff in connection with the Subject Property. [45] However, none of such expected steps or actions was taken by either the late Ng Kin Yong or the Plaintiff. Analysis of the Plaintiff Ooi KG’s List of Assets in her application for probate [46] Instead, the Plaintiff’s own application for probate which was issued and approved on 3.8.2016, the 1st item of the List of Assets and Liabilities was “1/3 bahagian” in the Subject Property itself: see AB1/250. In the Plaintiff’s own first application dated 29.11.2016 supported by her affidavit affirmed on 9.11.2016, there were a number of proposed amendments to the List of Assets and Liabilities but the very 1st item on top of the List remained as “1/3 bahagian” in 32 the Subject Property: see AB1/281 read with AB1/241 – 245. If the 1st Defendant e-mail of 20.7.2016 were interpreted or understood by the Plaintiff as a confirmation or admission of trust as alleged by the Plaintiff in the present case, the Plaintiff would have asserted in the 1st item of her application for probate (July 2016) or in her first amendment application (November 2016) that the late Nh Kin Yong’s rights and entitlement to the Subject Property should be “Semua bahagian” instead of “1/3 bahagian”. This is particularly so where the probate application and the 1st amendment application were made by the Plaintiff herself and was not served upon or notified to the Defendants, and that in such applications the Plaintiff as the sole executrix and sole beneficiary could assert whatever she felt or thought was her own version of the correct state of affairs regarding the late Ng Kin Yong’s estate. In the circumstances this Court finds that when viewed in light of the parties’ contemporaneous acts and conduct, the acts and conduct of the Plaintiff herself in the months subsequent to the e-mail dated 20.7.2016 are not consistent with the Plaintiff’s assertion of trust or admission of trust in our present suit. Overall conduct of the Plaintiff and the Defendants in their dealing of issues between each other [47] In assessing the acts and conduct of the parties, this Court has also considered the overall conduct of the Plaintiff and the Defendants in their dealing of issues between each other. In paragraphs 24, 25 and 26 above, this Court has found that the Defendants have been honest and transparent in their dealing vis- a-vis the Plaintiff and late Ng Kin Yong’s estate and did not take advantage of the terms of agreement in connection with the Pedas land lot No. 1668 which on the face favours them. In contrast, the Plaintiff has been doing things behind the backs of the Defendants in an attempt to try to unilaterally enhance or improve her supposed position vis-à-vis the Defendants. Such surreptitious acts of the Plaintiff include: (a) appointment in 2019 of the 3rd Director and change of cheque signatories culminating in the Plaintiff’s taking of RM59,200 as rentals the months Aug 2016 – Nov 2019 [see AB1/178 and 179] despite the co-proprietor 1st Defendant’s repeated refusals in August 2016 onwards to sign the cheques or to recognize the Plaintiff’s right to collect rentals [see BA1/156 – 33 177] and also without giving any prior notice to the 1st Defendant or the 2nd Defendant; (b) without the prior consent or knowledge of the Defendants or either of them, the Plaintiff unilaterally inserted a recital item 3 in the Plaintiff’s own Tenancy Agreement of 2017 with an outsider tenant to allege the Defendants allegedly informed her that they were purported trustees for the late Ng Kin Ying [see AB1/5; DW1 Ng Kim Pin’s evidence in WS-DW1(A) Q&A15, Q&A 16; DW2 Lim Peng Seng’s evidence on 16.3.2022, WS-DW2 Q&A 10 ]; (c) without the prior consent or knowledge of the Defendants or either of them, the Plaintiff unilaterally applied in end 2017 for the 2nd amendment to her probate documents by purporting to change “1/3 bahagian” of the Subject Property in the List of Assets and Liabilities of the late Ng Kin Yong’s estate to “Semua bahagian” which, if allowed by the Court, would probably wipe out the Defendants’ proprietorship and/or ownership in the 2/3rd shares of the Subject Property [see AB1/362 read together with AB1/311 – 315; DW1 Ng Kim Pin’s evidence in WS-DW1(A) Q&A 17]; (d) In November 2016, the Plaintiff terminated the 1st Defendant’s employment as the Administration Manager of Nation Park Sdn Bhd on the same day the Plaintiff had to pay the judgment sum to the 1st Defendant pursuant to a court judgment arising from the jointly owned Nirvana 25 property [see DW1 Ng Kim Pin’s evidence on 16.3.2022]; and (d) the Plaintiff’s attempt to rely on a computer print-out Tenancy Agreement Register with “NKY/OKG” under “Landlord” column in AB5/1 – 2, a document of doubtful evidential value prepared by someone else other than the 1st Defendant after the 1st Defendant had left Nation Park Sdn Bhd and alleging or contending that it was prepared by the 1st Defendant. See also paragraph 43 below for further details. This Court accepts DW1 Ng Kim Pin’s evidence the computer print-out of Tenancy Agreement Register was altered and printed by someone else after DW1 had left NPSB’s employment: see WS-DW1 Q&A 13A and her oral evidence on 14.3.2022 and 16.3.2022. 34 Such acts and conduct of the Plaintiff are not consistent with those of an honest and transparent person who properly pursues his/her rightful claims vis-à-vis his/her relatives or her late husband’s relatives. [48] Further or alternatively, this Court also accept the 2nd Defendant’s evidence that the 1st Defendant’s e-mail was sent out by her without the prior consent or confirmation by the 2nd Defendant, and that as different and separate legal entities, the 2nd Defendant has not agreed to transfer his 1/3rd share nor has he made any alleged admission of trust. See DW2 Lim Peng Seng’s evidence on 16.3.2022; WS-DW2 Q&A 8. Finding that no resulting trust was created [49] In addition to the documentary evidence and surrounding circumstances which overwhelmingly show there was no trust holding regarding the Defendants’ 2/3rd shares in the Subject Property, the Defendants’ evidence that the late Ng Kin Yong has never said that the Defendants were holding as nominees or trustees in connection with the 2/3rd shares in the Subject Property is also confirmed by DW3, DW4 and DW5. Having observed the demeanour of these witnesses, this Court finds that the youngest sibling DW5 Ng Kim Boon (an IT Manager in Singapore) to be least partisan and most saddened by the state of disputes and litigations between the relatives. In the event of conflicting versions between DW5 Ng Kim Boon’s oral evidence and the other witnesses’ oral evidence and in the absence of documentary evidence which contradicts DW5’s oral evidence, this Court prefers to accept DW5 Ng Kim Boon’s such oral evidence. In this regard, DW5 Ng Kim Boom has testified that the late Ng Kin Yong never said that the Defendants’ 2/3rd shares in the Subject Property were held in trust. Tenancy Agreement Register [50] In our present case, the Plaintiff also tried to rely on a computer print-out Tenancy Agreement Register with “NKY/OKG” under “Landlord” column in AB5/1 - 2. From the face of the document, December 2016 was the date of print-out of this document. This Court accepts the Defendants’ evidence on 14.3.2022 that this document was prepared and updated with additional details about 1 month after the 1st Defendant left Nation Park Sdn Bhd and that it was prepared by someone else other than the 1st Defendant. If the 35 said document were of real evidential value or weight, the Plaintiff ought to have produced it to the 1st Defendant in 2016 or 2017 to confront the 1st Defendant instead of keeping it until the court suit before producing it. In light of the entire circumstances of the present case including the acts and conduct of the Plaintiff, this Court finds this document to be suspect and of doubtful evidential value. Hence, this Court finds that this document is of no assistance to the Plaintiff’s case here. Collection of rentals by one co-proprietor [51] The Court does not find the fact regarding the collection of rentals by the late Ng Kin Yong to be of any assistance to the Plaintiff’s case here. It is not unusual to have situations where a property is held in the joint names of two or three proprietors but the rental payments are made in favour the name of only one of them. In situations where a property is held in the joint names of three persons, it is not unusual that these three persons do not have a joint bank account in all their three names and therefore any rental payment cheque issued in the three persons’ joint names would not be able to be banked in or cleared. In such situations, it is erroneous to say that the cheque payee becomes the sole owner of the property and the other joint proprietors hold their shares in the property in trust for the cheque payee. In some cases of joint proprietorship by three persons, it can also happen that the cheque payee as the sole collector of rental payments was entrusted or expected to use the rental collections to repay, on behalf of all three proprietors, the bank loan which was jointly taken by them to part-finance the purchase of the property. This type of arrangement does not convert the other two joint proprietors’ shares in the property into trust shares for the cheque payee or rent recipient. Even if this Court were to assume the fact of rental collections by the late Ng Kin Yong as a factor which tends to lean in favour of the Plaintiff’s version, this factor cannot tip the balance of probabilities in favour of the Plaintiff’s version because the many other factors (including the undisputed facts, indisputable facts, the acts and conduct of the parties, the acts and conduct of the late Ng Kin Yong etc) show an overwhelming balance of probabilities in favour of the Defendants’ version that the 2/3rd shares in the Subject Property were gifted to them and are not held in trust for the late Ng Kin Yong or his estate. 36 Whether any constructive trust [52] On the question whether or not it is unconscionable for the Defendants to assert their beneficial rights via-a-vis the state of the late Ng Kin Yong, this Court finds that there is nothing unconscionable for the Defendants to assert their beneficial rights and ownership rights via-a-vis the late Ng Kin Yong’s estate because of the following facts and circumstances: (1) The 1st Defendant Ng Kim Pin is the only sister of the late Ng Kin Yong, the 2nd eldest son in the Ng family and they grew up together in hardship and poverty as siblings during their childhood years; (2) As the only sister, the 1st Defendant had bonding and close relationship with his elder brother, the late Ng Kin Yong; (3) In 1991, when the late Ng Kin Yong was going through financial hardship in connection with UUM Project, it was the Defendants (his sister and brother-in-law) who took out a bank overdraft facility of RM150,000 at their risks help finance the ongoing construction works in UUM Project; (4) When Jenny (the late Ng Kin Yong’s 1st wife) was hospitalized for cancer, the Defendants were among the relatives who helped to take care of her; (5) The 2nd Defendant, as brother-in-law, was the main person who arranged and organized the funeral for Jenny (the late Ng Kin Yong’s 1st wife) upon her death at a time when the late Ng Kin Yong was under extreme grief and sorrow over the loss of his beloved 1st wife: see DW2 Lim Peng Seng’s evidence on 16.3.2022; (6) The Defendants also signed the loan agreement jointly with the late Ng Kin Yong as borrowers of bank loan to part-finance the purchase of the Subject Property, thereby taking the risks of being held jointly or severally for the repayment of the loan in the event of any default: see AB1/181 – 184; AB1/187 – 193; 37 (7) In 1995 the 1st Defendant left her job as Assistant Manager of AIA and joined Nation Park Sdn Bhd as the Administration Manager; (8) The 1st Defendant, with a small shareholding, also became a Director of Nation Park Sdn Bhd. There are responsibilities and potential liabilities, including personal liabilities, as a director of a private company. By taking up such directorship the 1st Defendant faced such risk of being a director of Nation Park Sdn Bhd; (9) From his humble beginning in 1991 when he was still struggling with the financial difficulties in the UUM Project until after the establishment and growth of Nation Park Sdn Bhd right up to his demise in March 2016, the late Ng Kin Yong through his businesses of Nation Park Sdn Bhd accumulated a sizeable wealth for his estate, including many items of properties, motor vehicles, many bank accounts and fixed deposits [see List of Assets in AB1/250 – 256]; (10) As the 1st Defendant in her capacity as his sister cum Administration Manager cum Director was also actively involved in the management and administration of the businesses of Nation Park Sdn Bhd, it is undeniable that she has also contributed towards the operations, management and growth of Nation Park Sdn Bhd [see WS-DW1(B) Q&A 2 to 4]; and (11) When the late Ng Kin Yong was hospitalized due to cancer, the Defendants and their children also helped to take care of the late Ng Kin Yong in the hospital by participating in the 24- hour duty roster of caring him: see DW1 Ng Kim Pin’s evidence on 14.3.2022 and 16.3.2022, DW2 Lim Peng Seng’s evidence on 16.3.2022, WS-PW2(B) Q&A 1 and Q&A 2. [53] Bearing in mind that the 2/3rd shares in the Subject Property is relatively very small as compared with the list of many assets and properties in the Plaintiffs List of Assets and Liabilities of the late Ng Kin Yong [see List of Assets in AB1/250 – 256], this Court further finds that for the late Ng Kin Yong to have gifted 2/3rd of the Subject Property to his only sister and her husband in light of their past assistance, support and contribution is what an honourable wealthy 38 man with some sense of gratitude would have done in similar circumstances. [54] In the circumstances this Court holds that there is no constructive trust in connection with the 2/3rd shares in the Subject Property held by the Defendants. Defendants’ counterclaims [55] In the present case, the Defendants have made counterclaims for declaratory reliefs regarding their ownership of the Subject Property and also a monetary counterclaim for their respective 1/3rd share of the rentals which were collected from mid-2016 until May 2020 and which the Plaintiff has refused to pay to the Defendants. [56] As this Court has come to the conclusion that the Defendants are the registered and beneficial owners of 1/3rd share of the Subject Property each, the Defendants are therefore entitled to the declaratory reliefs as prayed for in the counterclaims and also their shares of the rentals collected in respect of the Subject Property. [57] After considering the evidence of the Defendants including WS- DW1(A) Q&A18 and WS-DW2 Q&A 11 and the documents referred to therein, this Court finds that the 1/3rd share of rentals collected from mid-2016 until May 2020 in respect of the Subject Property is RM78,000. As such each Defendant is entitled to RM78,000 as his/her share of rentals for the period from mid-2016 to My 2020. Conclusion [58] In conclusion this Court finds and holds that: (1) the 2/3rd shares in HSM 3016, Lot No. 8679, Mukim Empang, Daerah Hulu Langat, Negeri Selangor (“the Subject Property”) were gifted by the late Ng Kin Yong to the Defendants when the Subject Property were jointly purchased under their three names; (2) the 2/3rd shares in the Subject Property have been and still are held by the Defendants in their own ownership rights and are not held in trust for the late Ng Kin Yong; 39 (3) the 2/3rd shares in the Subject Property held by the Defendants are not subject to any resulting trust; (4) it is not unconscionable for the Defendants to assert their beneficial ownership of the 2/3rd shares in the Subject Property vis-à-vis the estate of the late Ng Kin Yong; and (5) the 2/3rd shares in the Subject Property held by the Defendants are not subject to any constructive trust. Decision and Orders [59] By reason of the foregoing, this Court on 28.7.2022 dismissed the Plaintiff’s claims and allowed the Defendants’ counterclaims. As the parties are in stalemate in connection with the rental collections and management of the Subject Property, an order of sale should be made and for distribution of the net proceeds of sale. [60] In allowing the Defendants’ counterclaims, this Court has granted the following orders and reliefs in favour of the Defendants: (i) A declaration that the Defendants are the registered and rightful 2/3 owners of the immovable property held under HSM 3016, Lot No. 8679, Mukim Empang, Daerah Hulu Langat, Negeri Selangor (“the Subject Property”); (ii) A declaration that the Plaintiff as the Executrix and Beneficiary of the Deceased’s Estate is only entitled to 1/3rd share in the Subject Property; (iii) An order that the Plaintiff shall pay RM78,000 to each of the Defendants as the Defendants’ respective shares of the rentals collected by the Plaintiff in connection with the Subject Matter within 14 days from the date of this Order; (iv) An order that the Plaintiff shall forthwith deliver a set of the keys to the Subject Property to the Defendants; (v) An order that the Plaintiff shall, together with the Defendants, take all necessary actions to jointly sell the Subject Property at fair market value within 6 months, and that each of them shall be entitled to 1/3 of the net proceeds of the sale of the 40 Subject Property; and (vi) In the event of late payment of the rental distribution ordered in item (iii) above, the said amounts shall carry interest at the rate of 5% per annum until the date of full realisation. [61] This Court also orders that the Plaintiff shall pay costs of RM50,000 to the Defendants, subject to allocator. [62] Before the Order dated 28.7.2022 the Defendants asked for clarification as to the amount of rentals and cut-off date of computing the rental amount in item (iii) of the Order. After reading the parties’ supplementary submissions and hearing the parties’ respective counsel, this Court on 29.9.2022 clarify item (iii) of the Order by adding the words as shown with underline below: “(iii) An order that the Plaintiff shall pay RM78,000 to each of the Defendants as the Defendants’ respective shares of the rentals collected as at May 2020 by the Plaintiff in connection with the Subject Matter within 14 days from the date of this Order”. Dated this : 5th October 2022. Signed ….............................................................. TEE GEOK HOCK JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) 41 To the parties’ solicitors: 1. For the Plaintiff : Angeline Tay Lee Yin Messrs Bodipalar Ponnudurai De Silva (Kuala Lumpur) 2. For the Defendants : Jessica Wong Yi Sing Messrs Harold & Lam Partnership (Kuala Lumpur) 42