Shaik Daud Ismail JCA:

This is an appeal against the decision of the Penang High Court which had on 8 September 1997 dismissed an Originating Summons issued by the appellants. The appellants had filed an Originating Summons dated 6 July 1996 against the respondents seeking, inter alia, directions whether the appellants, as Executors and Trustees of the Estate of Tye Kee Yoon @ Tai Hi Yoon, deceased, should or should not institute and prosecute an action against the respondents claiming damages for negligence and for breach of their fiduciary duties as Executors and Trustees of the said estate in relation to the sale of the property known as Holding No. 448, Town subdivision 4, Northern District Penang together with all the buildings erected thereon and for all necessary and consequential directions thereon.

This matter in fact has a long and protracted history. The deceased Tye Kee Yoon @ Tai Hi Yoon (1st deceased) died in 1919 and proceedings in respect of the estate of the deceased began in 1956.

In 1988 the Executors and Trustees of the estate had issued an Originating Summons No. 24-642-88 to obtain consent of the court to sell the property of the estate. In that Originating Summons, the present respondents were plaintiffs and the 2nd and 3rd appellants were defendants No. 17 and 18. Tye Kim Yuen one of the beneficiaries of the deceased, had died in 1982 (2nd deceased). He left a will in which he named his widow (the present 1st appellant) and two of his sons (2nd and 3rd appellants, respectively) as Executors and Trustees. His share of the estate of the 1st deceased was given to seven of his sons. All the seven sons of the 2nd deceased had been named as defendants Nos. 15, 17, 18, 19, 20, 21 and 22.

Originating Summons 24-642-88 had been personally served on all defendants and at the same time the court ordered that it be advertised in three major local newspapers with a request that any interested party could come forward and stake their claim.

On 14 July 1992 with the consent of all parties, the court gave an order of sale of the said property on a reserved price of RM9.5 million. The auction of the said property was fixed on several occasions but on all occasions there were no bidders. Finally on the application of all the plaintiffs in the said Originating Summons, the court on 28 October 1993, ordered that the said property be sold by private treaty to Malaysia Vegetable Oil Refinery Sdn. Bhd. for RM9.5 million. It cannot be gainsaid that this order was given by the court after hearing counsel for all parties and after considering valuation reports tendered. The defendants appeared to have agreed with the order as they did not appeal.

Then on 30 October 1993, one of the defendants ie, the 17 defendant, (who now is the 2nd plaintiff), filed an application for an order that the court recall 28 October 1993 order "for the purpose of enabling the court to consider an alternative valuation report to be submitted by C.H. William, Talha and Wong Sdn. Bhd." The court rejected this unusual application on 11 November 1993 and again there was no appeal.

The sale of the said property was completed on 26 April 1994 and the court was informed that almost all the proceeds of sale had been distributed to all the beneficiaries. What remained to be distributed are the shares of those who disagreed. It must be borne in mind that by this time 80 years had passed since the death of the 1st deceased.

Some two years after the sale, on 6 July 1996 the present plaintiffs filed this Originating Summons 24-580-1996 claiming to be the Executors and Trustees for the 2nd deceased. After a careful study it can be seen that the present 1st plaintiff is the widow of the 2nd deceased and she is not a beneficiary of the estate of the 2nd deceased deriving from the estate of the 1st deceased. 2nd and 3rd plaintiffs are in fact the 17th and 18th defendants in the Originating Summons 24-642-88, and if it can be remembered, it was the 2nd