Lim Mei Tze v Patrick Khoo Ghee Wong
Rayuan Sivil No. W-02-3071-12/2012; Court of Appeal
Date of Judgment: 22 July 2015 | Source: Federal Court Registry

DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO. W-02-3071-12/2012

ANTARA

LIM MEI TZE ... PERAYU

DAN

PATRICK KHOO GHEE WONG ... RESPONDEN

[Dalam perkara Mahkamah Tinggi Guaman Sivil No. S4-22-105-2009
Di dalam Mahkamah Tinggi Malaya di Kuala Lumpur

Antara

Patrick Khoo Ghee Wong ... Plaintif

DAN

Lim Mei Tze ... Defendan

[Dalam perkara Mahkamah Tinggi Guaman Sivil No. S4-22-1171-2008
Di dalam Mahkamah Tinggi Malaya di Kuala Lumpur

Antara

Patrick Khoo Ghee Wong ... Plaintif

DAN

Lim Mei Tze ... Defendan

W-02-3071-12.2011 Lim Mei Tze v Patrick Khoo Ghee Wong

[Dalam perkara Mahkamah Tinggi Guaman Sivil No. S4-22-2404-2008 Di dalam Mahkamah Tinggi Malaya di Kuala Lumpur

Dalam perkara Seksyen 25(2) dan Bahagian 3 Akta Mahkamah Kehakiman 1964

Dan

Dalam perkara Aturan 31 Kaedah 1 Kaedah-Kaedah Mahkamah Tinggi 1980

Dan

Dalam perkara hartanah yang dikenali sebagai Plot/Lot No. 2 yang terletak di atas Geran 9337 (Lot 45191) dan Geran 50059 (Lot 55482) Mukim Kuala Lumpur, Daerah Kuala Lumpur dan dengan alamat pos di No. 2A Jalan Rosa, Idamansara, Off Changkat Semantan, Bukit Damansara, 50490 Kuala Lumpur.

Antara

Lim Mei Tze ... Plaintif

DAN

1. Patrick Khoo Ghee Wong
2. HSBC Bank Malaysia Berhad ... Defendan
(No. Syarikat 127776-V)

KORAM: ZAHARAH BINTI IBRAHIM, HMR; ANANTHAM KASINATHER, HMR; ABDUL AZIZ BIN ABD. RAHIM, HMR

JUDGEMENT OF THE COURT

INTRODUCTION

[1] This was an appeal by Ms Lim Mei Tze ("Appellant") against the High Court decision allowing the claim by Mr. Patrick Khoo Ghee Wong ("Respondent") that the half-share in the property bearing the postal address No. 2A, Jalan Rosa, Idamansara, Off Changkat Semantan, Bukit Damansara, 50490 Kuala Lumpur ("Subject Property") held in the Appellant's name was held in trust for the Respondent, and ordering the half-share to be transferred to the Respondent.

IN THE HIGH COURT

AGREED FACTS

[2] The agreed facts of this case were that on or about 11/07/2007, the Appellant and the Respondent had jointly entered into a Sale and Purchase Agreement to purchase the Subject Property.

[3] By a Deed of Assignment dated 02/08/2008, the Appellant and the Respondent has assigned all their rights over the Subject Property to HSBC Bank Malaysia.

[4] The Appellant and the Respondent were also the purchasers named in the Agreement dated 11/07/2007 for furniture and fittings in the Subject Property.

THE CLAIMS

[5] By Originating Summons no. No. S7-24-2404-2008 filed on 10/11/2008, the Appellant sought an order for the sale of the Subject Property by public auction, and an order that the net proceeds be divided between the Appellant and the Respondent equally, under O. 31 r. 1 of the Rules of the High Court 1980.

[6] By Writ of Summons No. 22-1171-2008 filed on 30/12/2008, the Respondent claimed that the half-share held by the Appellant was held in trust for the Respondent and sought an order for the transfer of that half-share to the Respondent.

[7] There was also another suit filed by the Respondent on 20/02/2009, being Suit No. S4-22-105-2009, by which the Respondent claimed that a Mercedes Benz CLK40 (A) car registered in the name of the Appellant was really his and that the Appellant was merely his nominee or was acting as a trustee for his benefit.

HIGH COURT DECISION

[8] After a full trial (during which the Appellant appeared in person as his counsel was allowed to be discharged before the witnesses started to give evidence) the High Court dismissed the Respondent's claim (Suit No. S4-22-105-2009) that the Appellant held the car as nominee or trustee for his benefit, and dismissed also the Appellant's counterclaim against the Respondent for the monies she paid towards the car (which counterclaim was filed in the event that the Court found in favour of the Respondent). There was no appeal by either party against that decision.

[9] In relation to the Subject Property, the High Court allowed the Respondent's claim in Suit No. 22-1171-2008 that the Appellant held the half-share in her name in the Subject Property in trust for the Respondent and made the order that the Appellant transfer the half-share to the Respondent.

[10] The Appellant's claim in Suit No. 24-2404-2008 that half of the Subject Property as well as furniture and fittings in the Subject Property were absolute gift from the Respondent to her and that the property be sold by public auction and the net proceeds be divided between them was dismissed by the High Court.

[11] The Appellant had also filed a counterclaim in Suit No. 22-1171-2008 for breach of promise to marry. That counterclaim was dismissed by the High Court. There was no appeal filed.

[12] The learned trial Judge's reasons for finding that the Subject Property was not intended to be a gift to the Appellant were that-

(1) while the Sale and Purchase Agreement, and the Deed of Assignment and the Power of Attorney in HSBC Bank's favour, were in the joint names of the Appellant and the Respondent, the loan from HSBC Bank was applied for by the Respondent, who also paid 10% of the purchase price to the developer;

(2) the Respondent paid to the developer for the furniture and fittings in the Subject Property;

(3) the Respondent paid for the electricity deposit, assessment, stamp duties and maintenance fees for the Subject Property;

(4) the Respondent serviced the loan to HSBC Bank.

[13] The learned trial Judge also held that Respondent's "modus of paying for the intended property to be purchased is consistent with his conduct when he paid for the earnest deposit for the purchase of No. 35, Jalan Setiakasih 7, Bukit Damansara. The fact that the Plaintiff and Defendant were stated as joint purchasers as admitted by him in the Letter of Offer and Acceptance (Sale) did not detract from the fact that they were not joint owners as the sale was aborted."

[14] The learned High Court Judge also found that there could not be a presumption of advancement by way of a gift in contemplation of a marriage because "the relationship between the Plaintiff and the Defendant fell apart not long after the purchase of the subject property and in any event it is the court's finding there is no breach of promise to marry which finding was not appealed against by the Defendant".

[15] The learned trial Judge held, relying on Wan Naimah v Wan Mohamad Nawawi [1974] 1 MLJ 41, that there was no requirement for a trust to be in writing.

[16] On the Appellant's contention that there was a resulting trust, the learned trial Judge held that the case of Cooke v Head [1972] 2 All ER 38 was of no assistance to the Appellant as she did not contribute towards the purchase price of the Subject Property.

[17] The learned trial Judge also distinguished the case of Moate v Moate [1948] All ER 486 on the grounds that in that case the presumption of advancement was held to apply because the parties married after the purchase of the property and remained married for 13 years.

[18] The Appellant appealed to this Court against the decision that she held the half share in trust for the Respondent, against the order that the half-share be transferred to the Respondent, and against the dismissal of her claim in Suit No. 24-2404-2008.

APPEAL

[19] Before proceeding further, it needed to be pointed out that HSBC Bank was not a party before us. We were informed by the learned counsel for the Respondent that the strata title had been issued and HSBC Bank was already the registered chargee of the Subject Property. This fact was relevant in relation to the Appellant's appeal against the decision in relation to Suit No. 24-2404-2008.

ISSUE

[20] The sole issue before us was whether the Appellant held the half share in the Subject Property in trust for the Respondent, or, conversely, whether the half share in the Subject Property was a gift to the Appellant from the Respondent.

APPELLATE INTERVENTION

[21] We were mindful of the fact that this case went through a full trial and the decision of the learned trial Judge was made based on findings of facts.

[22] However, based on the Federal Court case of Gan Yook Chin and Anor v. Lee Ing Chin And Ors [2004] 4 CLJ 309 and other cases decided before and after it along similar vein, we were of the view that appellate intervention was warranted if it was found that the trial judge had not properly analysed the evidence before that trial judge and had not given sufficient judicial consideration to such evidence.

ANALYSIS

Legal Approach

[23] This Court in Heng Gek Kiau v Goh Koon Suan [2007] 6 CLJ 633, held that the correct approach in cases of this nature is -

... for the court first to determine the true intention of the purchaser. The question whether the purchaser in a particular case had a donative intention is to be determined objectively through a meticulous examination of the facts and evidence of the surrounding circumstances. If after such an examination the court concludes that there was a donative intention on the part of the purchaser that is the end of the matter and there is no room for the presumption of resulting trust or advancement as the case may be. It is only where there are no or insufficient facts or evidence from which a fair inference of intention may be drawn that a court should turn to presumption as a last resort".

[24] The Court of Appeal further noted, after citing several English authorities, that it was the absence of an explanation that gave rise to the presumption.

[25] In Ng See Liang v Ng Say Hoon @ Ng Say Huen [2009] MLJU 337, the Court of Appeal further added, relying on Laskar v Laskar [2008] EWCA Civ 347 and Petit v Petit [1970] 1 AC 777, that the presumption of advancement "is a relatively weak presumption which can be rebutted on comparatively slight evidence".

[26] We found that the sole basis for the learned trial Judge's finding that the half-share could not have been intended as a gift was the fact that the Respondent had paid for everything in relation to the purchase of the Subject Property.

[27] In our considered view, if the Appellant had been making payments towards the purchase, the issue of a "gift" would not have arisen in the first place. The issue of whether the half share was a gift to the Appellant or was held in trust for the Respondent arose precisely because the payments were all made by the Respondent, but the half-share was in the Appellant's name.

[28] While the learned trial Judge had set out the background of the relationship of the Appellant and the Respondent, her Ladyship did not proceed to evaluate whether that background did or did not show a "donative intention" on the part of the Respondent to make the half-share in the Subject Property a gift to the Appellant, regardless of whether there was or there was not a promise to marry made by the Respondent, and whether there was or there was not subsequently a marriage solemnised between the Appellant and the Respondent.

The Evidence

[29] It was the Respondent's evidence that he met the Appellant in July 2005. The Respondent admitted that he and the Appellant became a "couple". He did not object when she moved in with him at his then residence at No. 934, Desa Damansara, Jalan Setia Kasih, Damansara Heights, Kuala Lumpur ["No. 934"]. He admitted that they had a sexual relationship with each other.

[30] The Respondent admitted that he took the Appellant for holidays, and bought her flowers and presents. He even gave her a RM 14,000.00 ring (which he denied was an engagement ring).

[31] The Respondent admitted that the Appellant was given his supplementary credit cards.

[32] The Appellant and the Respondent had also jointly purchased a time share in a time share apartment in Bali. According to the Respondent:

If I remember it was a summer holiday in Bali, we came across with time share apartment and we like it. I paid for it and the amount again, not large. I don't know. 3 million, I think. RM300,000.00. I am not too sure. 3 million rupiah is about RM300 or RM3,000.00 or something. [Emphasis added]

[33] The Respondent claimed that by May 2006, he realised the relationship was going sour and that the Appellant was only after his assets; a "gold-digger", so to speak. He also claimed that she had been lying to him and others, such as about her family's wealth.

[34] The learned trial judge referred to this allegation by the Respondent in her Judgement. Yet, the evidence before the court was that the Appellant owned her own apartment worth (at the time) approximately RM 900,000.00, fully paid for by her father. She had her own business giving her an annual return of approximately RM 100,000.00 a year, with the initial capital being furnished by her father. This evidence raised doubts about the Respondent's allegations that the Appellant had "lied" about her family's wealth.

[35] The Respondent claimed that he realised the Appellant was only after his assets when she asked him to buy her a car. Yet, it was also the Respondent's evidence that when the Appellant asked him to buy her a car, he did buy her a BMW 523 car sometime in May 2006. The car was later stolen. The insurance claim payments as well as the trade-in proceeds of the Appellant's own Mercedes Benz enabled them to buy a Mercedes Benz CLK 240 which was registered in the Appellant's name and which the learned trial Judge found to be a gift to the Appellant.

[36] Despite claiming that the relationship had gone sour by May 2006, the Respondent and the Appellant went looking for a house to purchase in 2007 when the Appellant "demanded", claimed the Respondent, that he bought a house. A tentative purchase was made, with earnest money paid, of a bungalow house (No. 35, Jalan Setiakasih 7, Bukit Damansara) at a price of RM2.65 million. The Letter of Offer and Acceptance signed on 16/04/2007 was in the name of both the Appellant and the Respondent. The Respondent denied that for that purchase the Appellant and Respondent were intended to be joint owners. He claimed they were only to be joint purchasers, but not joint owners. This, he claimed, was borne out by the fact that the deposit was refunded to him alone when the sale and purchase was aborted.

[37] When the sale and purchase of that bungalow house was aborted, the Appellant and Respondent (some 3 months later) entered into the Sale and Purchase Agreement for the purchase of the Subject Property. This was more than a year after the relationship allegedly turned sour and the Respondent claimed he realised the Appellant was only after his assets.

[38] When cross-examined by the learned counsel for the Appellant, the Respondent admitted that he only told her she was holding the property (and car) on trust for him when they separated in December 2007.

[39] The Appellant had formally claimed the half-share in the Subject Property by her solicitor's letter dated 17/10/2008. The learned trial Judge said that that letter "bears little weight as the Plaintiff explained he had not seen it otherwise he would have responded". However, it was quite clear from the Respondent's own evidence that he received the letter but chose not to read it.

[40] The learned trial Judge accepted that the relationship ended in December 2007, but disbelieved the Appellant's claim that the breakdown was precipitated by an incident involving her finding the Respondent and DW2 in a locked bathroom of the Subject Property during a party held there on 20/12/2007, an incident involving drugs.

[41] The learned trial Judge did not take into account the fact that when he was asked specifically if the incident was true, the Respondent was very evasive. Instead of answering the question with an emphatic "No", the Respondent responded by saying "I do not recall", "doesn't ring a bell" and that the Appellant was "hallucinating".

[42] The Respondent admitted he left the Subject Property towards the end of December allegedly after a quarrel, which had been building up over weeks. He claimed "I think she accused me of a few things which I had not done". The Respondent was rather evasive when asked the exact date he left the house. The notes of proceedings showed that it was only after a lengthy crossexamination that the Respondent admitted (as had been the contention of the Appellant) that he stayed in a hotel. He said he "was just with a friend". That friend, he admitted, was a lady friend.

[43] He came back to the Subject Property only later, and when he did he asked the Appellant to move into No. 934.

[44] The learned trial Judge appeared to have overlooked the following exchange when the Appellant was cross-examined by the Respondent (who was acting in person):

PK: Did I ever mention that I gave you the house?

DW-1: Yes

PK: Can you recall how I gave it to you?

DW-1: Yes. Answer No. 10.

PK: Now we are not together, can I take it back?
(our emphasis)

DW-1: It's for the court to decide.

[45] Answer no. 10 referred to by the Appellant was the answer to question 10 in her witness statement:

10. Did PK tell you why your name was being inserted as one of the owners?

Yes, he said that as we intended to be together, the house was to be ours and as such it should be in our joint names. He said that if anything was to happen to either of us, it would be easier for the other person and there will be no one else who can have a claim on the property.

Finding

[46] After examining the notes of evidence, particularly the evidence set out above, we came to the conclusion that the Respondent was not a credible witness.

[47] Having carefully examined the evidence before the trial Court, we were of the considered view that the evidence before the trial Court showed that from the nature of the relationship between the Appellant and the Respondent, and the conduct of the Respondent throughout that relationship, there was clearly a "donative intention" on the part of the Respondent at the time when the Sale and Purchase Agreement was entered into in July 2007, and when the Deed of Assignment and the Power of Attorney were executed subsequently, to give the half-share in the Subject Property to the Appellant.

[48] The evidence clearly showed that the Respondent only changed his mind when the relationship ended at the end of 2007. We must add that from the totality of the evidence it would appear that the break-up was not the fault of the Appellant.

[49] The Appellant could not therefore be holding the half-share in her name in the Subject Property in trust for the Appellant.

DECISION

[50] Based on our findings as set out above, we allowed the appeal in part, namely that part arising from Suit No 22-1171-2008. We set aside paragraph 2 of the High Court order dated 29/11/2012.

[51] In relation to that part of the appeal arising from Suit No. 24(22)-2404-2008, we found ourselves unable to make any of the orders sought by the Appellant in view of the fact that the Subject Property was, by the time this appeal was heard, legally charged to the HSBC Bank. Furthermore, the chargee (HSBC Bank) was not a party to this appeal.

[52] We affirmed the rest of the High Court order.

[53] We fixed costs at RM10,000.00 to be paid by the Respondent to the Appellant.

tt

ZAHARAH BINTI IBRAHIM
Putrajaya.

22.07.2015.

For the Appellant: Encik Colin Andrew Pereira, [Tetuan Goh Wong Pereira]

For the Respondent: Cik Fiona Bodipalar, Cik Thivina Kumaran [Tetuan Bodipalar Ponnudurai De Silva]

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