NG CHING WAN v YAP CHEE HOW

Case Significance

Illustrates the evidential burden under sections 101 and 103 of the Evidence Act 1950 on a party asserting an unwritten agreement over matrimonial property, and that specific performance will not be granted where the existence of a binding sale or settlement agreement is not proved.

This High Court decision at Shah Alam, in the Family Division, arose from a property dispute between a former husband and wife. During and after their marriage the plaintiff had managed the defendant's car-workshop business accounts, and the parties had, on their 2008 divorce, recorded a decree nisi under which the plaintiff agreed to transfer her half-share in a double-storey terrace house in Cheras to the defendant, holding the property on trust for him, and signed a power of attorney. The parties later resumed cohabitation for a period before separating again. The plaintiff's claim rested on an alleged oral agreement that, in return for RM500,000, the defendant would transfer his share of the property back to her, and on assertions about substantial sums, including RM837,202.52 said to have been moved from a bank account, a RM450,000 bank draft, a further RM40,000, and a RM120,000 payment towards a housing loan, which she said were her money or applied with the defendant's knowledge. The issues were whether such an oral agreement existed, who was the true owner of the disputed sums, and whether the court could set aside or vary the terms of the decree nisi. The court held that the burden of proof lay on the plaintiff under sections 101 and 103 of the Evidence Act 1950 and that she had failed to discharge it on the balance of probabilities: she had not proved the existence of a binding sale or settlement agreement, and specific performance could not be granted in its absence. It also observed that any variation of the decree nisi fell to be pursued under the matrimonial legislation in the Family Court. The court dismissed the claim, ordering each party to bear its own costs in view of the parties' relationship. The judgment illustrates the evidential burden on a party asserting an unwritten agreement over matrimonial property.