Back
2022 MarsdenLR 2214
HIGH COURT MALAYA SHAH ALAM
LIM BAN KAY @ LIM CHIAM BOON – Appellant
Versus
KILANG KELAPA SAWIT MORIB SDN BHD & ORS – Respondent
[Civil Suit No: MT4(2)-22-2109-07]
The executrix of a deceased Plaintiff's estate can substitute the deceased in enforcement actions, maintaining locus standi even after the Plaintiff's death.
Headnote:(A) Rules of Court 2012 – Order 15 r 7(1) and (2) – Executors as representatives of deceased parties – The Court allowed the Applicant, executrix of the deceased Plaintiff's estate, to substitute the deceased for enforcement of specific performance, affirming her locus standi to act in the matter despite objections from the Defendants. (Paras 1-24)
(B)
Functus Officio – The Court ruled that it retained jurisdiction to issue orders necessary to give effect to prior specific performance judgments, clarifying that substitution did not infringe the functus officio doctrine. (Paras 9-22)
Facts of the case:
The Applicant sought to enforce a Court of Appeal Order for specific performance post the Plaintiff's death. The executrix argued for her standing to act on behalf of the deceased's estate.
Findings of Court:
The Court emphasized the necessity of the Applicant's substitution to ensure the enforcement of the original judgment and prevent injustice.
Issues
: The primary issue was whether the Applicant had the right to substitute the deceased Plaintiff to pursue the enforcement of the agreements.
Ratio Decidendi:
The court found that the authority granted under the Probate and Administration Act permitted the executrix to act on behalf of the deceased even after their passing.
Result:
Application allowed with costs in the cause.
JUDGMENT
Introduction
[1] This is an application by the Applicant (Lim Yan Peng) for an order that the Applicant is made a party in this suit to substitute the Respondent/Plaintiff (deceased) pursuant to O 15 r 7 (1) and (2) to of the Rules of 2012 ( ROC 2012).
[2] The 1st Defendant objected to the said application. The 2nd Defendant had not filed an Affidavit in Reply to object, however, the learned counsel for the 2nd Defendant had informed this Court that the 2nd Defendant is supporting the 1st Defendant's objection.
Brief Facts
[3] The Applicant is the executor of the Deceased Lim Ban Kay @ Lim Chiam Boon's (the Plaintiff) estate pursuant to a grant of Probate dated 27 August 2019.
[4] The Plaintiff had obtained an order for the specific performance of four (4) agreements against the Defendants at the Court of Appeal on 27 August 2015 (the COA Order). On 25 January 2017, the Plaintiff filed an application to specifically perform the four (4) agreements in the High Court at Kuala Lumpur vide Originating Summons No WA- 24NCVC-149-01/2017 for either money to be paid or to transfer a portion of the targeted lots. However, the Plaintiff passed away in the middle of the suit. The High Court at Kuala Lumpur allowed the Applicant to be substituted as a party to the suit. Nonetheless, the suit was dismissed with liberty to file afresh as the Defendants' solicitors had argued that the proper forum to decide the matter should be the High Court at Shah Alam.
[5] The executrix of the deceased estate then filed an Originating Summons against the Defendants in the High Court at Shah Alam vide BA-24NCVC-547-06/2020 to specifically enforce the COA Order. However, the learned Judge had struck out the said application with liberty to file the said application at the original suit in the High Court at Shah Alam suit No MT4(2)-22-2109-07.
[6] Therefore, the Plaintiff has filed a Notice of Application to enforce the said COA Order against the Defendants vide Shah Alam High Court Civil Suit No: MT4(2)-22-2109-07 (the Application) to seek an order of specific performance on the said agreements to work out or give effect to the said COA Order. The Application was filed with the Affidavit in Support affirmed by the Applicant. However, the 1st Defendant raised a preliminary objection on the locus standi of the Applicant to affirm the Affidavit in Support filed therein with the said Application.
[7] Hence, this application was filed by the Applicant for an order to substitute the deceased Plaintiff.
The Law
[8] Order 15 r 7(2) of the ROC 2012 states as follows:
"Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may if it thinks it is necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first-mentioned party. An application for an order under this paragraph may be made ex parte. "
Findings Of The Court
[9] The learned counsel for the 1st Defendant submitted that the Court is now functus officio since the final order of the action had been made and perfected in the form of the Judgment dated 21 July 2014, pursuant to a full trial of the matter. The learned counsel referred to the case of Degom ak Agol v. Forescom Sarawak Sdn Bhd .
[10] The 1st Defendant also contended that neither the deceased Plaintiff nor the 1st Defendant has any interest in the suit herein upon the COA Order for specific performance of the agreements. The 1st Defendant further contended that none of the agreements has a successor clause which would enable the heirs, assigns, executors, administrators or legal representatives of the deceased Plaintiff, who were not a party to the contract to enjoy its benefits.
