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2025 MarsdenLR 1015

COURT OF APPEAL PUTRAJAYA
MARZAIDI MOHAMMAD & ANOR – Appellant
Versus
MOHAMED AFFENDI KHAIRUDDIN & ANOTHER APPEAL – Respondent
[Civil Appeal No: W-02(NCvC)(W)-1092-07/2023 & W-02(NCvC)(W)-1122-07/2023]

Petitioner Advocates:Norazali Nordin,Fey Aqis Mohd Khairuddin,Lailatul Fitriah Ma'at ,Respondent Advocate: GK Ganesan,Brijnandran Singh Bhar,Natasha Bhar,Jasween Kaur Dhaliwal,Pavaani Tanggaveloo)

The court affirmed that a claim for wrongful death must be brought by the executor for the benefit of all legal heirs, emphasizing the importance of statutory rights under the Civil Law Act.

Headnote:(A) Civil Law Act 1956 - Section 7(2) - Montreal Convention 1999 - Wrongful death claim - The defendant improperly filed Suit 435 in his personal capacity rather than as executor, failing to represent the interests of the deceased's legal heirs, which included the child and father of the deceased. The court emphasized that statutory rights under Section 7 must be upheld and that the defendant's actions did not preclude the plaintiffs' claims. (Paras 11, 12, 46, 68, 114)

(B) Jurisdiction - The civil courts can declare the distribution of settlement payments according to the Faraid Order without issuing a new Faraid Order. The plaintiffs' claim was based on distribution under the existing Faraid Order rather than seeking a new order. (Paras 90, 92)

Facts of the case:
The deceased was a crew member of MH17, which crashed in Ukraine, leaving behind a husband, child, and father. Following her death, a Faraid Order was issued for property distribution. The defendant filed Suit 435 against Malaysia Airlines, but did so improperly. The plaintiffs sought to claim their share of a settlement from the defendant, leading to Suit 629. (Paras 1-4, 6-10)

Findings of Court:
The court found that the plaintiffs did not relinquish their rights to the Goodwill Payment and were entitled to claim under the Faraid Order. The High Court's dismissal of their claim was erroneous, and the plaintiffs were not estopped from bringing Suit 629. (Paras 84, 114)

Issues: The main issues included whether the plaintiffs relinquished their rights to bring action against Malaysia Airlines, their entitlement to the Goodwill Payment, and the jurisdiction of civil courts to declare the distribution of the Goodwill Payment. (Paras 58, 88)

Ratio Decidendi: The court ruled that the defendant's failure to act as executor invalidated his claim and that the plaintiffs retained their rights under the CLA 1956. The civil courts have jurisdiction to distribute payments according to the Faraid Order. (Paras 68, 90)

Result: Appeals allowed; the High Court's decision is set aside, and the plaintiffs' claims for distribution are granted.

JUDGMENT

Mariana Haji Yahya JCA:

A. INTRODUCTION

[1] The late Mastura binti Mustafa (the "Deceased") was one of the crew members of the ill-fated flight MH17, operated by Malaysia Airlines System Berhad ("Malaysia Airlines"), which crashed near Hrabove in Donetsk Oblast, Ukraine on 17 July 2014.

[2] Flight MH17 was a scheduled passenger flight from Amsterdam Schipol International Airport, Netherlands to Kuala Lumpur International Airport. The aircraft was shot down by a surface to air missile when it was flying over Eastern Ukraine. All the passengers and crew on board the flight perished in the crash.

[3] At the time of her death, the Deceased left the following legal heirs:

(i) Mohamed Affendi bin Khairuddin ("the defendant") - her husband;

(ii) Muhammad Muhriz bin Marzaidi ("the Child") - her only child from her marriage to her ex-husband, Marzaidi bin Mohammad ("the 1st plaintiff"); and

(iii) Mustafa bin Ab Samad ("Mustafa") - her father.

[4] The Deceased was the defendant's second wife. They were married in Songkhla, Thailand on 25 June 2013, approximately one year prior to her death. Their marriage was registered on 10 March 2014 under the Akta Undang-Undang Keluarga Islam Wilayah-Wilayah Persekutuan 1984 pursuant to an Order of the Syariah High Court of Wilayah-Wilayah Persekutuan.

[5] At the time of the Deceased's death, the Child was 10 years old, and Mustafa was 82 years old.

Faraid Order

[6] Following the Deceased's death, the defendant filed for and obtained a Faraid Order (Perintah Faraid) on 5 February 2015 from the Negeri Sembilan Syariah High Court for the division of the Deceased's property among her legal heirs. Under the Faraid Order, the Negeri Sembilan Syariah High Court ordered that the Deceased's estate be distributed among her legal heirs in the following proportions:

[7] On 9 February 2015, the 1st plaintiff was appointed as the guardian to the Child's assets (penjaga kepada harta-harta yang dimiliki oleh anak yang bernama Muhammad Muhriz bin Marzaidi) pursuant to an Order of the Negeri Sembilan Syariah High Court.

[8] The defendant's solicitors, Messrs. Brijnandan Singh Bhar & Co ("Messrs. Brijnandan"), in a letter dated 28 July 2015 addressed to Mustafa, enquired whether the Deceased's family members intend to bring legal action against Malaysia Airlines for her death. Mustafa's former solicitors, Messrs. Mohd. Khairul Masni & Associates, through a letter dated 17 August 2015 replied, inter alia, that the Deceased's family did not want to be involved in the defendant's civil suit against Malaysia Airlines.

Suit 435

[9] The defendant then filed a civil action on 15 July 2016 under the Montreal Convention 1999 ("Montreal Convention") and the Civil Law Act 1956 (Act 1967) (" CLA 1956") against Malaysia Airlines System Berhad (Administrator Appointed) and Malaysia Airlines Berhad for causing the death or wrongful death of the Deceased in Civil Suit No. WA-22CNCVC-435-07/2016 ("Suit 435") at the Kuala Lumpur High Court.

[10] Section 7 (2) of the CLA 1956 (as at the date of filing of Suit 435 i.e. prior to the amendment by the Civil Law (Amendment) Act 2019 , which came into force on 1 September 2019) states that an action for the wrongful death of a person shall be brought by and in the name of the executor of a person deceased, which action shall be for the benefit of the wife, husband, parent, child and any person with disabilities under the care of the deceased person. Section 7 (1) and (2) of the 1956 reads:

7. Compensation to the family of a person for loss occasioned by his death

(1) Whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been ca

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2025 MarsdenLR 1015

COURT OF APPEAL PUTRAJAYAMARZAIDI MOHAMMAD & ANOR – AppellantVersusMOHAMED AFFENDI KHAIRUDDIN & ANOTHER APPEAL – Respondent[Civil Appeal No: W-02(NCvC)(W)-1092-07/2023 & W-02(NCvC)(W)-1122-07/2023]

The court affirmed that a claim for wrongful death must be brought by the executor for the benefit of all legal heirs, emphasizing the importance of statutory rights under the Civil Law Act.

Cases Referred (4)

COURT OF APPEAL PUTRAJAYA
MARZAIDI MOHAMMAD & ANOR – Appellant
Versus
MOHAMED AFFENDI KHAIRUDDIN & ANOTHER APPEAL – Respondent
[Civil Appeal No: W-02(NCvC)(W)-1092-07/2023 & W-02(NCvC)(W)-1122-07/2023]