Sulaiman Daud JC:

By a writ issued on 8 July 1995, the plaintiff brought an action against the defendants seeking, inter alia(i) a declaration that the third defendant holds four units of commercial shophouses on trust for the estate of the deceased and the first defendant in one half (1/2) undivided shares each; (ii) a declaration that the estate of the deceased is entitled to one half (1/2) undivided right, title, share and interest in the said four units of commercial shophouses; and (iii) an order that the first and second defendants do sign or execute all the necessary documents to facilitate the transfer of one half (1/2) undivided shares in the said four units of commercial shophouses to the estate of the deceased.

The brief history as established by the evidence and agreed between the parties can be summarised as follows. By an agreement in writing dated 26 Mac 1981 ("the agreement") entered into between one Chong Chin Choi (PW2) as the vendor on the one part and Chew Sek Kee, deceased, and the first defendant as the purchaser on the other part, the vendor agreed to sell to the purchaser six commercial shop lots ("the shop lots") for a total purchase price of RM360,000 of which the sum of RM160,000 shall be payable upon signing of the agreement, RM80,000 on or before 15 Jun 1981 and RM120,000 within seven days of the approval of certain specified plans in respect thereof.

Pursuant to such agreement, on 31 March 1981 both the deceased and the first defendant, as purchaser in the said agreement, lodged a caveat in respect of each of the shop lots. The document of titles in respect of the six shop lots were issued on 13 August 1984, that is few months before the said Chew Sek Kee passed away in November 1984. The six shop iots remained registered in the name of the vendor until they were transferred on 24 July 1986 directly from the vendor to the third defendant, Taman Golsbury Development Sdn. Bhd. of whom the first defendant and his wife, the second defendant, are the shareholders and directors. On 30 September 1986 the third defendant as the registered owner of the six shop lots entered into a development agreement in writing with one Chang Chin Yu trading under the style of Chang Builders ("the contractor") whereby the contractor agreed to build six units of double storey commercial shophouses ("the shophouses") on the said shop lots at its own costs and expenses. In consideration thereof the third defendant agreed to transfer to the contractor three of the six units of such shophouses upon the completion thereof. By a subsequent agreement made between the third defendant and the contractor, it is agreed that the contractor's entitlement under the principal agreement be reduced from three units to two units of the shophouses.

The plaintiff in this action is the executor of the estate of the said Chew Sek Kee ("deceased") by virtue of the deceased's will dated 28 August 1984 in respect of which letter of probate and supplementary probate, as the case may be, were granted to the plaintiff on 23 August 1985 and 27 May 1995 respectively. In para 12 of the re-amended statement of claim the plaintiff averred that the third defendant was in law a constructive and or implied trustee holding one half (1/2) of the undivided right, title, shares and interest in the said four units of shophouses on behalf of the estate of the deceased.

So much of the fact and I will now deal with issues raised by the parties. The learned counsels for both the parties agreed that the main issues for determination are, firstly whether the third defendant is a constructive or implied trustee in respect of the said Chew Sek Kee's, deceased, one half share; secondly whether the third defendant is a separate legal entity from the first defendant; and thirdly whether the third defendant as registered owner is conferred with indefeasibility of title in respect of the said shop lots.

Whether The Third Defendant Is Constructive Or Implied Trustee