NG CHEAH KOW (NO K/P: 541021-10-6173) LOW HOCK LAI (NO K/P: 800620-10-5651) [Sebagai Wasi harta Pusaka LOW THEAN CHOR (NO K/P: 480914-71-5113) – SIMATI]

NG CHEAH KOW (NO K/P: 541021-10-6173) LOW HOCK LAI (NO K/P: 800620-10-5651) [Sebagai Wasi harta Pusaka LOW THEAN CHOR (NO K/P: 480914-71-5113) – SIMATI]

The Court of Appeal held that the enforceability of the judgment against the deceased's estate and whether the executor breached fiduciary duties are triable issues requiring viva voce evidence; it is not plain and obvious that the claim is wholly unsustainable or an abuse of process, therefore the High Court's strike‑out was wrong and the matter must be reinstated for case management and trial.

Citation
B-02(IM)(NCVC)-211-01/2019 (Mahkamah Rayuan)
Parties
Appellant / Plaintiff: Ng Cheah Kow; Respondent / Defendant (executor of the Estate of Low Thean Chor): Low Hock Lai
Court
IM
Jurisdiction
Malaysia
Judgment Date
6 September 2019
Case Number
B-02(IM)(NCVC)-211-01/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Appeal to Court of Appeal (decision to Reinstate Claim and Remit to High Court)
Outcome
Appeal allowed with costs; High Court order dated 10.1.2019 set aside; claim reinstated and remitted for case management and trial at Shah Alam High Court.
Legal Topics
Strike Out Application, Substitution of Parties on Death, Enforceability of Judgment Against Estate, Breach of Fiduciary Duty by Executor
Source Language
Malay/English
Civil Procedure Probate and Administration Equity and Trusts Strike Out Application Substitution of Parties on Death Enforceability of Judgment Against Estate Breach of Fiduciary Duty by Executor

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Parties

Ng Cheah Kow

Appellant / Plaintiff

Low Hock Lai

Respondent / Defendant (executor of the Estate of Low Thean Chor)

Procedural Posture

Civil Appeal / Appeal to Court of Appeal (decision to Reinstate Claim and Remit to High Court)

Legal Issues

  1. 1 Whether the judgment obtained in Suit 927 is enforceable against the estate of the deceased
  2. 2 Whether proper substitution of parties under O.15 r.7 was required and if failure defeats the cause of action against the executor
  3. 3 Whether the executor had a duty to inform and to defend the suit and whether failure amounts to breach of fiduciary duty

Ratio Decidendi

The Court of Appeal held that the enforceability of the judgment against the deceased's estate and whether the executor breached fiduciary duties are triable issues requiring viva voce evidence; it is not plain and obvious that the claim is wholly unsustainable or an abuse of process, therefore the High Court's strike‑out was wrong and the matter must be reinstated for case management and trial.

Court Disposition

Appeal allowed with costs; High Court order dated 10.1.2019 set aside; claim reinstated and remitted for case management and trial at Shah Alam High Court.

Orders

  • Appeal allowed with costs
  • Order of the High Court dated 10.1.2019 set aside