JUDGMENT

Noradura Hamzah JC:

Introduction

[1] The Plaintiff is the father of the First and Second Defendants. By this action, the Plaintiff seeks to recover from the Defendants a house and a car that he transferred to them in and around 2017 to be held on trust for his benefit, and a sum of RM10,000.00, which was a loan. On the other hand, the Defendants claimed that all three were outright gifts made out of love and affection by a father to his children.

[2] What began as an arrangement within a family has come before this Court as a dispute to be determined according to law. The essential question is one of characterisation: whether what passed between the Plaintiff and his sons in 2017 was made by way of gift, as the Defendants contend, or was intended to be held on trust and repaid, as the Plaintiff asserts.

Background

[3] The Plaintiff, Sim Cheng Siong (SP2), is a crane operator working in Singapore. The First Defendant, Sim Tiang Lim (SD3), is the elder of the two sons and the Second Defendant, Sim Ting Chin (SD2), the younger son. Both are the Plaintiff's children from his first marriage to Chan Hoa Lian, which was dissolved by decree nisi dated 24 June 2009. It is common ground that the Defendants have a younger sister who, at the material time, was a minor.

[4] The material agreed facts are that the Plaintiff purchased a house held under GRN 502430 Lot 131183 at No 62, Jalan Uda Utama 3/2, Bandar Uda Utama, Johor Bahru ("the Property") with cash. On 27 November 2017 he transferred the Property to the Defendants in equal undivided half shares. He also transferred a Proton Exora FL 1.6L CVT bearing registration number JQJ 6017 ("the Vehicle") to the Second Defendant. By letter dated 26 March 2021 the Plaintiff demanded the return of the Property, a sum of RM10,000.00 ("the Cash") paid to the First Defendant and the Vehicle. By letter dated 7 April 2021 the Defendants replied asserting that all three were gifts.

[5] It is also not in dispute that the transfer of the Property was effected by a Form 14A executed by the Plaintiff, in which the consideration for the transfer was stated as "kasih sayang daripada bapa kepada anak" (love and affection from father to children) and that the Defendants contributed nothing towards the purchase of either the Property or the Vehicle.

[6] The Plaintiff's witness statements disclosed that he had been estranged from the Defendants after his first divorce and re-established contact only in or about 2016/2017, at a time when his second marriage was in difficulty. He said that, at a family gathering at his late mother's home in Batu Pahat, his elder brother (SP1) advised him to transfer his assets to the Defendants temporarily, so as to place them beyond the reach of his second wife in anticipated matrimonial proceedings. He transferred the Property and the Vehicle on that footing, intending that the Defendants would hold them on trust and return them once his divorce was concluded.

[7] As to the Cash, the Plaintiff said that the First Defendant had asked to borrow money to purchase a house and that he lent the First Defendant RM10,000.00 for that purpose. He said that, after the transfers, the Defendants changed their attitude, refused to return the assets and excluded him from the Property and that he lodged a private caveat on 12 May 2019 to protect his interest.

[8] The Defendants' case was that the Plaintiff, remorseful for the breakdown of his first marriage and for having been absent from their lives, wished to compensate the Defendants and accordingly gifted the Property and the Vehicle to them. As to the Cash, they argued that he paid it as a booking fee for a house that the First Defendant intended to buy and that it was not a loan.

[9] The Defendants relied in particular on the recital of "kasih sayang" in the Form 14A and on the fact that the divorce proceedings between the Plaintiff and his second wife (JA-33-182-05/2019) commenced only in or about May 2019, some eighteen months after t