Public Bank Bhd 1. ) Fung Shaw Yiew @ Jellfer 2. ) Fung Siew Fa @ Emily 3. ) Registrar of Titles, Land & Surveys Department

Public Bank Bhd 1. ) Fung Shaw Yiew @ Jellfer 2. ) Fung Siew Fa @ Emily 3. ) Registrar of Titles, Land & Surveys Department

The Court of Appeal allowed both appeals, set aside the High Court order, held that the plaintiffs failed to prove forgery of their signatures and had not discharged the burden on balance; the transfer was valid (consistent with a secret trust for the mother) and the 3rd Defendant Bank was a bona fide subsequent chargee entitled to deferred indefeasibility; plaintiffs' claims were dismissed and costs awarded to the appellants (RM70,000 and RM30,000 respectively).

Citation
S-01(NCvC)(W)-379-08/2020 (Mahkamah Rayuan)
Parties
Appellant (3rd Defendant/appellant in Appeal 379): Public Bank Berhad; Appellant (1st Defendant/appellant in Appeal 390): Fung Lee Mee @ Jellsie; 1st Respondent / Plaintiff: Fung Shaw Yiew @ Jellfer; 2nd Respondent / 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)-379-08/2020 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Court of Appeal Decision on Appeals From High Court (appeals Allowed; High Court Order Set Aside)
Outcome
Appeals allowed; High Court order dated 17.07.2020 set aside; Plaintiffs' claims dismissed with costs
Legal Topics
Secret Trust, Forgery / Handwriting Evidence, Indefeasibility of Title, Deferred Indefeasibility, Adverse Inference for Withheld Evidence, Best Evidence Rule, Estoppel, Costs
Source Language
Malay/English
Property Law Trusts and Equity Land Law Evidence Civil Procedure Banking and Finance Secret Trust Forgery / Handwriting Evidence +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 15 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Public Bank Berhad

Appellant (3rd Defendant/appellant in Appeal 379)

Fung Lee Mee @ Jellsie

Appellant (1st Defendant/appellant in Appeal 390)

Fung Shaw Yiew @ Jellfer

1st Respondent / Plaintiff

Fung Siew Fa @ Emily

2nd Respondent / Plaintiff

Registrar of Titles, Lands and Surveys Department

2nd Respondent / Nominal Defendant

Procedural Posture

Civil Appeal / Court of Appeal Decision on Appeals From High Court (appeals Allowed; High Court Order Set Aside)

Legal Issues

  1. 1 Whether the plaintiffs discharged the burden to prove on balance that their signatures on the Memorandum of Transfer (MOT) were forged and that their 1/5 shares were unlawfully transferred without knowledge
  2. 2 Whether the 3rd Defendant Bank was a bona fide subsequent chargee for valuable consideration and entitled to deferred indefeasibility
  3. 3 Whether the Property was held on trust (secret trust) for the siblings' then surviving mother

Ratio Decidendi

The Court of Appeal allowed both appeals, set aside the High Court order, held that the plaintiffs failed to prove forgery of their signatures and had not discharged the burden on balance; the transfer was valid (consistent with a secret trust for the mother) and the 3rd Defendant Bank was a bona fide subsequent chargee entitled to deferred indefeasibility; plaintiffs' claims were dismissed and costs awarded to the appellants (RM70,000 and RM30,000 respectively).

Court Disposition

Appeals allowed; High Court order dated 17.07.2020 set aside; Plaintiffs' claims dismissed with costs

Orders

  • High Court order dated 17.07.2020 set aside
  • Both appeals S-01(NCVC)(W)-379-08/2020 and S-01(NCVC)(W)-390-08/2020 allowed