LIEW WAI LOY v LIEW WAI HAN

Case Significance

Illustrates the discipline of pleadings — a claim such as constructive trust must be pleaded and cannot be introduced through unobjected evidence at trial — and the limited basis on which an appellate court will disturb a trial court's findings absent a plainly wrong decision.

This High Court decision at Kuala Lumpur, delivered by Aliza Sulaiman J, is an appeal from the Sessions Court in a property dispute between two brothers. The parties had been registered as joint owners of a property in the Kuala Selangor district since 1994, and the litigation concerned the plaintiff's one-third share, a power of attorney said to allow the defendant to transfer that share, and the validity of the defendant's dealings with the property. In the Sessions Court the plaintiff's claim had been dismissed with costs of RM10,000 after a full trial, and the plaintiff appealed. The appellate questions included whether the plaintiff had in fact pleaded a constructive trust, who bore the burden of proving such a trust, and whether the defendant had a proprietary right to retain the plaintiff's share of the proceeds of sale.

A central difficulty for the appellant concerned the pleadings. The Court examined whether the plaintiff could rely on an issue — bound up with the "ITBT" and the evidence relating to it — that fell outside the four corners of the statement of claim, and whether the defendant's failure to object to that evidence during the trial created an exception to the rule that a party is bound by its pleadings, referring to Superintendent of Lands and Survey (4th Div) v Hamit bin Matusin. After considering supplemental submissions on the point, the Court preferred the well-settled principle that a court should not decide an issue that was not pleaded, describing the case as a glaring instance of the plaintiff shifting the goalposts, which could not be condoned.

Seen in its entirety, the Court found that the plaintiff had not established that the Sessions Court judge was plainly wrong in dismissing the claim; there were no appealable errors. The Court dismissed the appeal with costs of RM10,000, as offered by the appellant's counsel, subject to allocatur. The judgment is a useful illustration of the discipline of pleadings — that a claim such as constructive trust must be pleaded and cannot be introduced through unobjected evidence at trial — and of the limited basis on which an appellate court will disturb a trial court's findings absent a plainly wrong decision.