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COURT OF APPEAL PUTRAJAYA
ONG KONG BENG & ANOR – Appellant
Versus
ONG KONG LEONG & ORS – Respondent
[Civil Appeal No: B-02(NCVC)(W)-1673-09/2016]
Certainly. Based on the provided legal document, here are the key points:
The case involves a family dispute over land transferred in 1980 from Ong Ching Chee (Ong Sr) to his sons, with the main issue being whether a valid trust was created over the land or if it was an outright gift (!) (!) .
The court emphasized that trusts require clear, unequivocal, and irrevocable declarations from the settlor. Mere intention without clear words or formal documentation is insufficient to establish a trust (!) (!) .
The burden of proof to establish the existence of a trust lies with the Plaintiffs, and the standard of proof is on a balance of probabilities, not beyond reasonable doubt. The evidence must show certainty of intention, subject matter, and objects (!) (!) .
Evidence of trust creation can be informal; written documentation is not mandatory. However, the words used must be clear and unequivocal, and the conduct of the parties is relevant in assessing whether a trust exists (!) (!) .
The court found that the evidence presented did not sufficiently prove the existence of a trust. There was no clear, convincing, or corroborative evidence that Ong Sr intended to create a trust over the lands, especially given the absence of a trust deed or formal documentation (!) (!) .
The transfer of land was supported by evidence indicating it was done as a gift "love and affection," with Ong Sr claiming he signed documents blindly and was cheated by his son D1. There was no explicit declaration of trust at the time of transfer (!) (!) .
The conduct of Ong Sr after the transfer, including his failure to object to the subdivision and his inconsistent testimony about the landholding intentions, undermined the trust claim. His long silence (over 33 years) before asserting a trust was viewed as inconsistent with the existence of a trust (!) (!) .
The court noted that the original land transfer was not accompanied by a trust deed and was not registered as a trust. The evidence suggested that the lands were intended as absolute gifts, especially given Ong Sr's actions, such as paying taxes and using the land for personal benefit, which are inconsistent with a trust relationship (!) (!) .
The reliance on oral declarations during mediation and the absence of corroborative contemporaneous evidence was considered weak. The court found that these oral statements did not meet the legal requirements for establishing a trust, especially given the lack of independent witnesses or written evidence (!) (!) .
The court concluded that the overall evidence did not establish the essential elements of a trust. The acts and conduct of Ong Sr, over a long period, indicated that the land was intended as a gift rather than held on trust (!) (!) .
As a result, the court set aside the earlier order that recognized the trust and dismissed the Plaintiffs' claim. The court ordered restitution of monies paid under the previous order, including damages and costs, reflecting that the earlier judgment was in error (!) (!) .
The decision underscores that the absence of formal documentation, inconsistent conduct, and the passage of time without assertion of a trust are significant factors that weigh against the existence of a trust relationship in such family land transfer cases (!) (!) .
Please let me know if you need a more detailed analysis or further assistance.
Introduction
[1] This is yet another unpalatable and lamentable case of a family dispute but dolorous in that it concerns a conflict between the patriarch of a family and his sons. The dispute here is in regards to a transfer of lands (in 1980) from the father to 4 of his sons (by his first wife). The sole question for the trial judge was whether the said transfer in 1980 was a settlement to create a trust and a valid trust brought into existence, or whether the transfer was an outright gift inter vivos by the father to his sons, vesting both legal and beneficial interests to the lands in the sons, as donees. The other critical issue is whether the Plaintiffs can rely on what was said by one of the Defendants some 33 years later, in the course of a mediation held in another suit in which the Plaintiffs were not parties, to corroborate their claim that there was a trust created over the said lands. Thus, the critical issue in this entire case is singularly prosaic; was there a trust created over the lands in dispute?
[2] The Appellants (Defendants) were the registered proprietors of two (2) parcels of land. The Respondents (Plaintiffs) sought a declaration that the lands which were registered in the names of the Appellants were held in trust for all the sons of the patriarch of the family, Mr Ong Ching Chee ("Ong Sr").
[3] The Appellants denied the existence of any trust and contended that the lands (before they were subdivided and registered in their individual names after a subdivision exercise in 1998) were transferred to them absolutely by Ong Sr (in 1980), for love and affection, and that they are the legal and beneficial owners of the disputed lands. It is common ground that the alleged trust is not in written form contained in any document.
[4] This is an appeal against the decision of the learned Judge ("Judge") of the High Court dated 26 August 2016 after a full trial of Suit No 22NCVC-497-10/2014 ("Suit 497"). Suit 497 was filed on 14 October 2014. At the end of the trial, which lasted several days, the Judge allowed the Respondents' claim and granted a declaration that the Appellants held the lands in trust for all the sons of Ong Sr The Judge also made a consequential order that the lands be sold and that 1/10 portion of the proceeds of sale be given to each of the sons of Ong Sr The 1st Appellant was also ordered to pay damages in the sum of RM30,000.00 to the Respondents. The Appellants were ordered to pay RM50,000.00 as costs. The High Court Order dated 26 August 2016 shall be referred to as "the HC Order".
[5] As a result of the HC Order, the Respondents, the Appellants, and all the other sons of Ong Sr became entitled to 10% of the proceeds of sale of the lands. The Appellants filed the Notice of Appeal on 2 September 2016. They then applied for a stay of execution of the HC Order pending the disposal of their appeal to the Court of Appeal. However, they were unsuccessful in their endeavour to obtain a stay.
[6] The HC Order was eventually implemented/executed. Thus, the lands were sold and the parties have since been paid their monetary entitlements respectively as per the HC Order.
[7] The appeal came up for hearing before us on 1 March 2021. We heard arguments and reserved the matter for decision on 25 March 2021. On 1 March 2021, we had asked counsel to submit on a particular point relating to a settlor's right to deal with trust property. On 25 March 2021, we allowed the appeal and set aside the HC Order. We dismissed the Respondents' claim as per the ReAmended Statement of Claim dated 19 February 2016. We then made a consequential order for restitution to the Appellants, of all the monies which had been paid to the Respondents pursuant to the HC Order. We also ordered costs of RM80,000.00, as costs here and below. These are our reasons for allowing the appeal.
Proving A Trust - Legal Requirements
[8] The Plaintiffs as the protagonists in Suit 497 had pleaded that there was a trust over t
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