Fung Lee Mee @ Jellsie 1. ) Fung Shaw Yiew @ Jellfer 2. ) Fung Siew Fa @ Emily

Fung Lee Mee @ Jellsie 1. ) Fung Shaw Yiew @ Jellfer 2. ) Fung Siew Fa @ Emily

Appeals allowed; High Court judgment set aside. On the balance of probabilities the court found the MOT and transfers were valid or, alternatively, the evidence and practice supported the legitimacy of the transfer and the existence of a trust for the mother; the bank was a bona fide subsequent chargee entitled to deferred indefeasibility of its charge. Result: plaintiffs' claim dismissed and costs awarded to appellants.

Citation
S-01(NCvC)(W)-390-08/2020 (Mahkamah Rayuan)
Parties
Appellant / 3rd Defendant: Public Bank Berhad; Appellant / 1st Defendant: Fung Lee Mee @ Jellsie; 1st Respondent / 1st Plaintiff: Fung Shaw Yiew @ Jellfer; 2nd Respondent / 2nd Plaintiff: Fung Siew Fa @ Emily; 2nd Respondent / Nominal Defendant: Registrar of Titles, Lands and Surveys Department
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
16 March 2023
Case Number
S-01(NCvC)(W)-390-08/2020 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) From High Court Originating Summons BKI 22 NCVC 97/8 2017 / Judgment on Appeal (decision Rendered)
Outcome
Appeals allowed; High Court judgment dated 17.07.2020 set aside; plaintiffs' claim dismissed with costs.
Legal Topics
Secret Trust, Indefeasibility of Title, Deferred Indefeasibility, Forgery and Handwriting Evidence, Adverse Inference for Withholding Evidence, Estoppel, Malicious Prosecution (counterclaim)
Source Language
Malay/English
Probate and Succession Land Law Trusts and Equitable Remedies Banking and Security Interests Evidence Law Civil Procedure Secret Trust Indefeasibility of Title +5 more

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Parties

Public Bank Berhad

Appellant / 3rd Defendant

Fung Lee Mee @ Jellsie

Appellant / 1st Defendant

Fung Shaw Yiew @ Jellfer

1st Respondent / 1st Plaintiff

Fung Siew Fa @ Emily

2nd Respondent / 2nd Plaintiff

Registrar of Titles, Lands and Surveys Department

2nd Respondent / Nominal Defendant

Procedural Posture

Civil Appeal (court of Appeal) From High Court Originating Summons BKI 22 NCVC 97/8 2017 / Judgment on Appeal (decision Rendered)

Legal Issues

  1. 1 Whether the plaintiffs signed the Memorandum of Transfer (MOT) or the signatures were forged and the transfer was unlawful
  2. 2 Whether the bank (Public Bank Berhad) was a bona fide subsequent chargee for value entitled to deferred indefeasibility of title

Ratio Decidendi

Appeals allowed; High Court judgment set aside. On the balance of probabilities the court found the MOT and transfers were valid or, alternatively, the evidence and practice supported the legitimacy of the transfer and the existence of a trust for the mother; the bank was a bona fide subsequent chargee entitled to deferred indefeasibility of its charge. Result: plaintiffs' claim dismissed and costs awarded to appellants.

Court Disposition

Appeals allowed; High Court judgment dated 17.07.2020 set aside; plaintiffs' claim dismissed with costs.

Orders

  • High Court order dated 17.07.2020 set aside
  • Plaintiffs' claim dismissed with costs