The establishment of a trust, whether resulting or constructive, requires clear evidence and cannot be based on mere assurance or familial relationships; allegations of fraud and shortcomings in pleadings impede claims.

Che Mohd Ruzima Ghazali JCA:

Introduction

[1] At the High Court in Johore Bahru, upon conclusion of a full trial, the learned Judicial Commissioner (the learned JC) adjudged and declared that Tan Keng Yong @ Tan Keng Hong (1st appellant/lst defendant) and Tan Keng Meng (2nd appellant/2nd defendant), the older brothers, held the portion of the assets derived from their father on resulting trust and/or constructive trust for Tan Hwa Ling @ Tan Siew Leng (1st respondent/lst plaintiff), Tan Siew Hoon (2nd respondent/2nd plaintiff) and Tan Siew Ching (3rd respondent/3rd plaintiff), the younger sisters and proceeded to grant the necessary reliefs for the recovery of the trust assets. Dissatisfied with the whole decision, the appellants filed this appeal.

[2] For ease of reference, parties in this appeal will be referred to as in the trial Court, the plaintiffs and the defendants. Individually the plaintiffs will be referred to as PI, P2, P3 and the defendants will be referred to as D1 and D2.

Brief Background Facts

[3] The plaintiffs and the defendants are siblings. They are the children of one Tan Peng Khai (TPK), the deceased father and Chee Mee Sin (CMS), the deceased mother. In the order of age, D1 is the eldest son, P1 is the eldest daughter and 2nd child, D2 is the 2nd son and third child, P2 is the fourth child and P3 is the youngest child.

[4] TPK was diagnosed with cancer in 1963 and passed away on 18 October 1970. Before his death, all his immovable properties had been transferred either to his wife or to D1. Approximately 2 and a half years later on 21 April 1973, CMS passed away as well. Before that, she did transfer all immovable properties registered under her name either to D1 or D2. These immovable properties are now the subject of the dispute between the plaintiffs and the defendants in the plaintiffs' claim.

[5] For better understanding, we find that it is benefitable to reproduce the details of the properties involved as set out in the Appendix A of the counsel for defendants' written submission in encl 36. The details of the properties involved have been comprehensively set out and the learned counsel for the defendants also indicated the chronology of events and the related transactions done with reference to the relevant appeal record. So, we reproduced the said Appendix A with some modifications as follows:

All properties involved will be referred to as 'the disputed properties' and we will use the same abbreviation or short-form used by the defendant's counsel when we refer to the disputed properties individually.

Plaintiffs' Claim

[6] The crux of the plaintiffs' claim is that a trust was established in their favour with regard to the disputed properties that previously belonged to TPK. The plaintiffs' claimed is for the recovery of the disputed properties which were held on trust by the defendants, on their behalf. They claimed that the disputed properties were to be distributed equally among the five siblings.

[7] The plaintiffs claimed that during the earlier years, as they were still young at that time, they had no complaints with the arrangement, since the understanding was that the returns of investment from the disputed properties in the form of rentals and dividends would be utilised to contribute to the plaintiffs' needs, including their education and other needs.

[8] The plaintiffs claim that a trust was created in their favour based on the oral assurance by TPK that "they would be provided for after his passing from the cash, dividends from the shares and returns from the assets" that TPK had inherited and accumulated in his lifetime. The plaintiffs further pleaded that the purpose of establishing the trust, instead of allowing these assets to be bequeathed vide a will was to "avoid substantial estate duty".

[9] Furthermore, after the demise of their parents, numerous family meetings were held and during the meeting in February 2017, the plaintiffs were updated on the status of the disputed properties.