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2022 MarsdenLR 2536
HIGH COURT MALAYA KUALA LUMPUR
MMIP SERVICES SDN BHD – Appellant
Versus
KARTHIK & ANOR – Respondent
[Originating Summon No: WA-24NCVC-2579-12/2021]
The application for appointing a trustee to manage judgment funds was dismissed as premature, affirming the mother's competency without evidence of mismanagement.
Headnote:(A) Rules of 2012 – Order 76 – Application for order to appoint trustee – The Applicant sought to appoint Amanah Raya Berhad for judgment sum management pending trial conclusion – The court dismissed the application, deeming it premature and oppressive, highlighting that the mother was a competent representative without evidence of mismanagement. (Paras 12, 14, 27)
(B)
Court discretion – The court found no necessity for trustee appointment as sufficient evidence supported the mother's capability to manage funds appropriately. (Paras 18, 20, 26)
Facts of the case:
The 1st Respondent, in a vegetative state after a serious accident, has his mother as a litigation representative. The OS sought a trustee to manage potential damages from an ongoing suit.
Findings of Court:
The court determined the application was unnecessary, lacking evidence against the mother's suitability.
Issues
: Whether the OS was premature and unnecessary legal expense, and criteria for trustee appointment.
Ratio Decidendi:
The court ruled in favor of the mother, emphasizing the lack of evidence for her incompetence, and deemed the application premature pending trial.
Result:
Application dismissed with costs to the 1st Respondent.
JUDGMENT
Introduction
[1] The Applicant is the Administrator for Malaysian Motor Insurance Pool. The 1st Respondent is Karthik (Seorang Yang Tidak Berkeupayaan Menuntut Melalui Ibunya Dan Wakil Litigasinya, Ratha A/P Munusami). Karthik is a serious accident victim and is bed-ridden. As a result, he is a person under disability. His mother is his litigation representative appointed under O 76 r 3 of the Rules of 2012.
[2] The 1st Respondent has filed a suit in the Raub Sessions Court against the registered owner and driver of a motorvan for damages arising from the accident whereby he was riding a motorcycle.
[3] The 2nd Respondent is Amanah Raya Berhad.
[4] The Raub trial has yet to be concluded in favour of the 1st Respondent. The Applicant in fact is contesting liability. Notwithstanding this the Applicant on the basis that they will be responsible to meet any judgment, if any, has applied to me by an OS for an order to appoint Amanah Raya Berhad to receive the judgment sum and to use these monies for the care and expenses of the 1st Respondent.
[5] Two issues thus arise for determination by me. They are:
a) Is this OS premature and/or an unnecessary legal expense on the 1st Respondent and/or an unnecessary stress and anxiety on the 1st Respondent?
b) If no, what is the test to grant such an application and is this test satisfied in this case?
[6] I heard the OS on 11 April 2022 and 20 May 2022. At the conclusion of hearing I dismissed the OS. The Applicant has appealed to the Court of Appeal. These are my grounds of judgment.
Background Facts
[7] The 1st Respondent was a motorcyclist. He was involved in a very serious accident with a motorvan on 9 May 2017.
[8] The 1st Respondent has filed a suit in 2020 in the Raub Sessions Court against the registered owner and driver of the motorvan for damages arising from the accident through his mother and his litigation representative appointed under O 76 r 3 of the Rules of 2012 pursuant to an order of the Temerloh High Court dated 24 January 2020.
[9] Before the trial has even commenced the Applicant on 15 December 2021 filed this OS for an order to appoint Amanah Raya Berhad to receive the judgment sum and to use these monies for the care and expenses of the 1st Respondent.
[10] The OS reads:
Responden Kedua dilantik sebagai Pemegang Amanah bagi Responden Pertama dan diberikuasa untuk menerima jumlah penghakiman bagi kos penjagaan dan kos-kos sampingan penjagaan masa hadapan yang mungkin dan/atau jika diawadkan dalam guaman Mahkamah Sesyen Raub dalam Guaman No CC-A53KJ-147-09/2021 ("Guaman Sesyen tersebut") tersebut:
a. Selanjutnya, wang tersebut digunakan semata-mata untuk perbelanjaan dan kepentingan Responden Pertama sepertimana Perintah (jika ada) dalam Guaman Sesyen tersebut; dan
b. Segala kos dan perbelanjaan yang dikenakan oleh pihak Responden Kedua sebagai Pemegang Amanah, di tanggung sepenuhnya oleh pihak Pemohon.
[Emphasis Mine]
[11] The 1st Respondent is resisting this OS.
Legal Issues
Is This Os Premature And/Or An Unnecessary Legal Expense On The 1st Respondent And/Or An Unnecessary Stress And Anxiety On The 1st Respondent?
[12] I am of the view this OS is premature and/or an unnecessary legal expense on the 1st Respondent and/or an unnecessary stress and anxiety on the 1st Respondent.
[13] The Raub trial started in March 2022. Nine [9] witnesses have testified. The trial has yet to conclude in favour of the 1st Respondent. It will resume on 13 July 2022. In fact, the Applicant is contesting even liability.
[14] I view this OS as oppressive against the mother of the 1st Respondent. Her son is in a vegetative state. She is divorced from her husband. There are no other siblings.
[15] No evidence has been tendered to this Court that she would fritter away the moneys or that she is not a fit and proper person to hold the moneys or that she would not use the moneys to care for her son.
[16] My view is shared by Madame Justice Rozana binti Ali Yusoff J who in Allianz General Insura
