Teh Li Yean (No. K/P: 860106-07-5036) 1. Low Hang Woang (No. K/P: 3354687) 2. Lim Suat See @ Lim Swee See (No. K/P: 2527828)

DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN NO: PA-22NCvC-75-05/2020 Antara Teh Li Yean (No. K/P: 860106-07-5036) ... Plaintif Dan 1. Low Hang Woang (No. K/P: 3354687) 2. Lim Suat See @ Lim Swee See (No. K/P: 2527828) … Defendan- Defendan JUDGMENT Introduction [1] This is an application by the defendants to strike out the plaintiff’s writ of summons and statement of claim dated 9.5.2020 (enclosure 6). The application dated 18.6.2020 was made 1 pursuant to O 18 r 19(1)(c) and/or (d) of the Rules of Court 2012. On 4.3.2021, I allowed the application. This judgment contains the reasons for my decision. The statement of claim [2] The plaintiff is the lawful widow of one Low Joo Lim, deceased who died intestate on 6.2.2020. She brings this action against the defendants who are the lawful parents of the deceased for an order that the letters of administration be granted to her as the sole administrator of the estate of the deceased and for the following declarations: (i) that the movable asset of the deceased at the date of his demise is RM120,076.44 held in an Employees Provident Fund (“EPF”) account; (ii) that the liability of the estate of the deceased is RM5,000.00 as funeral expenses; and 2 (iii) that the beneficiaries of the estate of the deceased are: the plaintiff, Low Yu En (daughter of the deceased), the 1st defendant (father of the deceased) and the 2nd defendant (mother of the deceased). [3] The plaintiff also seek an order of dispensation of the administrative bon pursuant to section 35(2) of the Probate and Administration Act 1959 (“the Act”) and consequential relief. [4] The plaintiff claims that she and her daughter has 75% interest in the estate of the deceased pursuant to section 6(1)(g) of the Distribution Act 1958 and for this reason the plaintiff disagrees that both the defendants or either one of them be appointed co-administrators or sole administrator of the said estate. [5] The other reason pleaded for so opposing was that the defendants had delayed the granting of the letters of administration by refusing to give their permission to the plaintiff to apply for the same. The said refusal was in the form of: (i) failing 3 to take the plaintiff’s phone calls and (ii) refusing to respond to the plaintiff’s solicitors’ letter dated 15.4.2020. The grounds in support of the application [6] The defendants contended that the instant action is non- contentious and can only be brought by way of an originating summons and not a writ under Order 71 of the Rules of Court 2012. The defendants further contended that the plaintiff ought to have taken out citation proceedings under Order 71 rule 42 of the Rules of Court 2012 and that the claims by the plaintiff were not in accordance with the law and the Act. Affidavit evidence [7] The affidavit evidence shows that 9 days after the deceased passed away the daughter of the defendants, one Tang Chueng Khai and the plaintiff met up with a solicitor from Messrs Low & Partners on the matter of obtaining the letters of administration to administer the estate of the deceased. It appeared that the 4 parents of the deceased wanted to be co-administrators of the estate of the deceased and the only thing that came out of that visit was the filing of this action by the plaintiff. Analysis and decision Principles of striking out [8] In determining the application I had kept in the forefront of my mind the following relevant principles concerning O 18 r 19(1)(c) and (d) of the Rules of Court 2012: (i) The power of the court to strike out under the said paragraphs is only to be exercised when it can clearly be determined that a claim is obviously unsustainable. The court proceeds on the basis that the pleaded facts are true and the court is not to resolve disputed facts or determine the merits of the case on affidavits. (Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7) 5 (ii) Paragraph (c) of the rule provides that pleadings causing prejudice to or embarrassing or delaying the fair trial of the action will be reason to strike out such pleadings. The purpose of the paragraph is that parties must obey the rules of pleading. Whether a pleading is prejudicial, embarrassing or is to delay a fair trial is very much fact- based. The applicant must establish facts in order to bring his application within the legal basis on which he relies. (Sukatno v Lee Seng Kee [2009] 3 MLJ 306; Duta Arif Sdn Bhd & Ors v Charterfield Development Corp Sdn Bhd & Ors [2008] 6 MLJ). (iii) Paragraph (d) of the rule protects the process of the court from abuse. This means that the court’s processes must be used bona fide and properly. The determination of this issue includes considerations of public policy and the interests of justice. Frivolous and vexatious pleadings are instances of the abuse of the process of the court. (Konsortium Lebuhraya Utara-Timur (KL) Sdn Bhd v 6 Liew Choong Kin [2018] 6 CLJ 217; Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin & Others [1998] 1 SLR 374) Letters of administration [9] The High Court is empowered under section 30 of the Act to grant letters of administration when a person dies intestate. It is a wide and discretionary power as reflected from the words of the section which are as follows: In granting administration the Court shall have regard to the rights of all persons interested in the estate of the deceased person … Provided that, where the deceased died wholly intestate as to his estate, administration shall, if application is made for the purpose, be granted to someone or more of the persons interested in the residuary estate of the deceased, unless by reason of the insolvency of the 7 estate or other special circumstances the Court thinks it expedient to grant administration to some other person. [10] The Rules of Court 2012 provide specific procedure for the grant of such letters of administration. Order 71 provide for ‘non- contentious’ proceedings while Order 72 provide for ‘contentious’ proceedings. In the instant case, it is not in dispute that the plaintiff and the defendants are all entitled in law to be either a sole administrator or co-administrators of the estate of the deceased. Submissions of parties [11] In essence the plaintiff contended that the matter is not ‘non- contentious’ and must be begun by writ under Order 72 rule 2(1) read with Order 72 rule 1(2) of the Rules of Court 2012. The averments in the statement of claim which are repeated in the affidavit in support to support the filing of the writ are: (i) that the defendants are not fit persons to be co-administrators because the defendants did not attend her solicitors’ office to sign the 8 necessary documents; and (ii) are deliberately delaying her right to apply for and be granted the letters of administration to administer the estate of the deceased. [12] The plaintiff relies heavily on the case of Ahmad Ibrahim & Ors v Abu Bakar & Anor [2018] 1 LNS 2286 which she claims is authority for the proposition that disputes as to an appointment of co-administrators must proceed by way of a writ action. [13] The defendants contented otherwise. They claimed that the matter is a straightforward ‘non-contentious’ proceeding which must be brought by originating summons under Order 71 of the Rules of Court 2012. They claim that the facts are not in dispute. The beneficiaries, property, division of property, liability and persons entitled to be administrator and co-administrators are also not in dispute. The plaintiff submitted that the plaintiff ought to have in the circumstances filed citation proceedings against the defendants under Order 71 rule 42 of the Rules of Court 2012. 9 Decision [14] I found the writ an abuse of the process of the court. In my opinion the matter ought to have proceeded under Order 71 of the Rules of Court 2012 for the following reasons. 1st reason [15] The first reason is that there is no dispute that need resolving through viva voce evidence. The pleading that the defendants did not allow the plaintiff to make an application to be sole administrator and therefore delayed the grant of the letters of administration is frivolous and vexatious amounting to an abuse of the process of the court. The law gives the defendants a right to be co-administrators and this cannot be turned into an instance of them being persons not fit to be co-administrators simply for exercising their legal rights clearly conferred on them by law. 10 [16] The law is clear. Order 71 rule 19 of the Rules of Court 2012 provides that where the deceased died wholly intestate, the person entitled to a grant of administration shall be determined in accordance with the provisions of section 30 of the Act. Order 71 rule 5(1) of the Rules of court 2012 provides as follows: Every application for a grant shall be made by originating summons in Form 5 and shall be supported by an affidavit setting out the information in Form 159 and any other information and/or documents as the Registrar may require. while rule 5(2) provides as follows: On an application for a grant of administration the originating summons shall state whether, and if so, in what manner all persons having a prior right to a grant have been cleared off, and whether any minority or life interest arises under the will or intestacy. 11 [17] When such an application is made, Order 71 rule 4(1) of the Rules of Court 2012 provide that the Registrar of the Court does not allow any grant to be issued until all enquiries, which he may see fit to make have been answered to his satisfaction. [18] In the case where persons having right to administer the estate has not been cleared off the matter will be referred by the Registrar to a Judge under Order 71 rule 38(1) of the Rules of Court 2012 which reads as follows: Every contested matter shall be referred to a Judge who may dispose of the matter in dispute in a summary manner or direct that the provisions of Order 72 shall apply. while Order 71 rule 38(1) of the Rules of Court 2012 states as follows: Where a matter is directed to be disposed of summarily the originating summons, if any, shall ordinarily be 12 adjourned into open Court for hearing and the Court may on such adjourned hearing either grant or refuse the prayer in the originating summons or make such other order as may be just. [19] The matter before the court is clearly one which could be disposed summarily. This is not a case where there are allegations of intermeddling of the property of the estate, dispute as to whether a specific property is estate property or a specific property is actually held in trust for the estate or that the persons entitled to be co-administrators have intermeddled with the estate and are liable to make restitution to the estate as were the circumstances prevailing in Ahmad Ibrahim (above). [20] The facts of Ahmad Ibrahim show that the plaintiffs originally filed an originating summons pursuant to Order 71 of the Rules of Court 2012 for the grant of letters of administration for the estate of their deceased father. Their youngest brother filed an application to intervene in the originating summons. At the case management stage the parties agreed to withdraw their respective 13 matters in view of the contentious claims that the parties made against each other. In this regard the said case is of no assistance to the plaintiff or authority for the proposition advanced by her. [21] Thus, the deliberate filing of the writ where there are no disputes of facts that need resolving and avoidance of the appropriate method to have been employed by the plaintiff is in my considered opinion an abuse of the process of the court. On this ground alone the writ ought to be struck out. 2nd reason [22] The second reason is that the plaintiff by anchoring her claim on delay to obtain letters of administration ought to have commenced citation proceedings under Order 71 rule 42 of the Rules of Court 2012 which reads as follows: A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled 14 to a grant in the event of the person cited renouncing his right thereto. [23] Every citation must be in one of the forms in Form 167 and must issue from the Registry. It is to be by way of an originating summons and not a writ action. It is a method to force the defendants to decide whether to accept or refuse a grant for letters of administration. Failure to enter an appearance by the person cited will result in the citor having the right to apply ex parte for the letters of administration. [24] On the other hand the plaintiff with 25% entitlement of the estate does not herself or with her daughter’s share of 50% of the estate claim to have the right to be sole administrator of the estate of the deceased. Parliament has placed it in the hands of the judge of the High Court to decide on the administration of the estate. It is of crucial importance to note that subsection 4(2) of the Act provide for restriction on the granting of letters of administration. The subsection reads as follows: 15 If any beneficiary is an infant, or if a life interest arises under the will or intestacy, administration shall be granted either to a trust corporation (with or without an individual) or to not less than two individuals: Provided that – (a) the Court may in its discretion and for such special reasons as it may think fit grant administration to one individual; and (b) the Court in granting administration may act on such prima facie evidence, furnished by the applicant or any other person, as to whether or not there is a minority or life interest, as may be prescribed. [25] Thus, in the circumstances, the plaintiff ought to have in the alternative to the 1st reason above proceeded by way of a citation proceeding under Order 71 rule 42 of the Rules of Court 2012. 16 Conclusion [26] For the above reasons enclosure 6 was allowed. The writ and statement of claim was accordingly struck out. ……………Sgd……………… Amarjeet Singh Serjit Singh Judicial Commissioner High Court of Penang Dated: 17th May 2021 Counsel for the Plaintiff: Eric Chee Foo Wei [ LOUIS GOH & CO. (BUTTERWORTH) ] Counsel for the Defendants: Cheng Teng Kuat [ CHENG, LEE & GOH (PULAU PINANG) ] 17 Cases referred to: 1. Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 2. Sukatno v Lee Seng Kee [2009] 3 MLJ 306; 3. Duta Arif Sdn Bhd & Ors v Charterfield Development Corp Sdn Bhd & Ors [2008] 6 MLJ 4. Konsortium Lebuhraya Utara-Timur (KL) Sdn Bhd v Liew Choong Kin [2018] 6 CLJ 217; 5. Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin & Others [1998] 1 SLR 374 18