Trustees must act in unison, and a majority does not bind a dissenting minority; the right to counsel of choice must be upheld without tactical disqualification.

Su Tiang Joo JC:

(Enclosure 76)

"...trustees cannot act by a majority... a majority binds neither a dissenting minority nor the trust estate.... to bind the estate the act must be the act of all the trustees." as per Jessel M. R. in Luke v. South Kensington Hotel Co [1879] 11 Ch D 121 (CA)

Introduction

[1] This Court had on 22 August 2023 dismissed an application (Encl 76) made by the plaintiff to remove the firm of solicitors of Messrs Lee & Lim from acting as the solicitors for Robert Yeow Tow Hock ("the 1st defendant") who is one of the co-administrators as well as one of the beneficiaries of the Estate of Tan Siew Ling, deceased ("the Estate of TSL"). Dissatisfied, the plaintiff appealed and these are the grounds of judgment for the decision made.

Parties

[2] Tan Siew Ling ("deceased") died on 4 September 2016. The plaintiff is the ex-husband of the deceased and has made a claim against the Estate of TSL by bringing this action.

[3] The 1st defendant is the surviving spouse of the deceased and is a co-administrator as well as a beneficiary of the Estate of TSL. He denies that the plaintiff has any claim to the Estate of TSL.

[4] The 2nd and 3rd defendants are the surviving parents of the deceased and together with the 1st defendant, they are co-administrators of the Estate of TSL.

[5] The 1st defendant is represented by the law firm of Messrs. Lee & Lim while the 2nd and 3rd defendants are represented by the law firm of Messrs. Najah Ariffin & co.

Brief Background Facts

[6] The deceased died intestate leaving behind the following beneficiaries as provided under the s 6(g) of the Distribution Act 1958 in the following shares:

i) 1st defendant as surviving spouse shall be entitled to one-quarter share of the estate;

ii) Chan Hao Shan who is the daughter of the deceased and the plaintiff, as the sole issue shall be entitled to one-half share of the estate; and

iii) the 2nd and 3rd defendants as surviving parents shall be entitled to the remaining one-quarter share.

[7] In dispute is whether the plaintiff has a valid claim against the Estate of TSL, and this action has been set down for trial in August 2024 from 5th to 8th and 12th to 14th totaling seven days.

[8] The plaintiff and the deceased were husband and wife until their divorce in 1999. The plaintiff asserted that in 2007, the deceased approached him seeking his assistance to lend his name to co-borrow a loan. The plaintiff said he agreed on the condition that the deceased is to be solely responsible in repaying the loan ("First Loan"). The plaintiff also asserted that upon the death of the deceased in 2016, he was approached by the 2nd and 3rd defendants to assist in the repayment of two loans pending their application to administer the Estate of TSL and that he did not seek clarification on the loan details. The plaintiff said he then began repaying. However, sometime later in October 2016 he came to realise that the second loan taken in 2009 was also taken under the joint-names of his and the deceased ("Second Loan").

[9] It is the plaintiff's case that he did not participate in taking the Second Loan, and that he was not even aware of the existence of the same, let alone signed for it.

[10] The plaintiff, therefore, claimed that the Estate of TSL is fully liable to repay the First and Second Loan (jointly referred to as "the Loans") and for the Estate of TSL to reimburse him for the amount he had paid towards the Loans. In short, he seeks to be indemnified by the Estate of TSL for the Loans. He also sued for damages of not more than RM5 million, interest on the judgment sum and costs on an indemni