1. ) Abdul Rahman bin Usof 2. ) Raman bin Jantan 3. ) Kamariah binti Jantan 4. ) Anrian bin Andi Lala 5. ) Kamsiah binti Amat 6. ) Jasni bin Amat 7. ) Azamain bin Amat 8. ) Zanizah binti Amat 9. ) Suranti @ Lili binti Amat 10. ) Suranti a/p Amat 11. ) Norsuliana a/p Amat 12. ) Mohsin bin Lekok 13. ) Marsenah binti Mohsin 14. ) Suhaili binti Mohsin 15. ) Azizan binti Mohsin 16. ) Suzan bin Mohsin 17. ) Shamsudin bin Mah Gee KoKoh 18. ) Rohani binti Agang 19. ) Nolie Asniera Shmila binti Shamsu...

wa-24ncvc-2583-07-2024 High Court (Mahkamah Tinggi) 27 April 2025 • WA-24NCvC-2583-07/2024 • 34 min read
6 cases cited (0 SG, 6 foreign)

Catchwords

Orang Asli are beneficiaries of a trust – Setting aside of ex-parte orders – Trustee obtained ex-parte order to sell trust properties – Beneficiaries aggrieved by terms of ex-parte order – Proposed sale of trust properties below market value – Trustee agreed to sham scheme for “upgrade and renovation costs” of RM7.6 million to be paid to the property agent appointed by the trust – Whether court has jurisdiction to set aside the ex-parte order which is prejudicial to the beneficiaries – Order 32 rule 6 Rules of Court 2012 applicable to all ex-parte orders – Order 42 rule 13 is inapplicable as the trustee failed to send the ex-parte order to the beneficiaries – Had it been an inter-parte order, setting aside would also be justified on ground of fraud – Fraudulent intention proven based on undisputed documents signed by the trustee to its sale agent – Trustee was court-appointed – Court has the power to direct sale to be held by public auction to ensure transparency and best price is obtained

Practice Areas

Civil Procedure

Judges (1)

Gan Techiong Delivered

Counsel (7)

Rabia Farihan & Sures Firm Xavier & Koh Partnership Firm Afiq Iskandar Counsel Respondent Kenneth Koh Counsel Respondent Moo Jie Ying Counsel Respondent Rabia binti Abd Halim Counsel Applicant Siti Zabedah Kasim Counsel Applicant

Parties (66)

RHB TRUSTEES BERHAD Respondent Abdul Rahman bin Usof Applicant Anrian bin Andi Lala Applicant Aris bin Adong Applicant Azamain bin Amat Applicant Azila binti Edin Applicant Azizan binti Mohsin Applicant Azlan bin Adong Applicant Azman bin Inam Applicant Basir @ Kelana bin Adong Applicant Faridah bt Abdullah/faridah a/p Limah Applicant Hadi a/l Ngah Applicant Isma Shah Reza bin Adong Applicant Jamilah bt Ngah Applicant Jasni bin Amat Applicant Juita a/p Ngah Applicant Julia a/p Ngah Applicant Kamariah binti Jantan Applicant Kamariah bt Malut Applicant Kamsiah binti Amat Applicant Mahayuni a/p Ngah Applicant Mardiana binti Mail Applicant Mariah a/p Leman Applicant Marsenah binti Mohsin Applicant Mazlan bin Adong Applicant Melati a/p Ngah Applicant Miah a/p Malut Applicant Mohsin bin Lekok Applicant Nolie Asniera Shmila binti Shamsudin Applicant Nor Aliyah binti Shamsudin Applicant Nora a/p Liman Applicant Norhasikin binti Sekechik Applicant Norsuliana a/p Amat Applicant Nunai binti Agan Applicant Nur Azie Amira binti Inam Applicant Nur Azura By Abdullah/lina a/p Leman Applicant Nurazrin binti Mail Applicant Raman bin Jantan Applicant Remiah binti Manga Applicant Rohani binti Agang Applicant Saha a/l Ngah Applicant Sakinah By Abdullah/tina a/p Ngah Applicant Salina binti Aziz Applicant Samsir bin Adong Applicant Saridah binti Edin Applicant Sarimah a/p Ngah Applicant Sarimah binti Edin Applicant Saripa a/p Ngah Applicant Sekechik bin Aching Applicant Shamsudin bin Mah Gee Kokoh Applicant Sharifah binti Bopeng Applicant Shidee bin Aziz Applicant Sima binti Sekechik Applicant Sira binti Agang Applicant Suhaili binti Mohsin Applicant Suhaimi bin Mohsin Applicant Suhaizan bin Mohsin Applicant Suranti @ Lili binti Amat Applicant Suranti a/p Amat Applicant Suzan bin Mohsin Applicant Suzimie bin Mohsin Applicant Telani binti Adong Applicant Wing a/l Ngah Applicant Zaabidi bin Sekechik Applicant Zaili bin Shamsudin Applicant Zanizah binti Amat Applicant

Case Significance

Affirms the court's jurisdiction under Order 32 rule 6 to set aside an ex parte order prejudicial to trust beneficiaries who were never served, and its power over a court-appointed trustee to direct a sale by public auction to secure transparency and the highest achievable price for the beneficiaries.

This High Court (Kuala Lumpur) decision concerns an application by beneficiaries of a trust to set aside ex parte orders that a court-appointed trustee had obtained in connection with the proposed sale of trust properties. The beneficiaries are described in the proceedings as persons of Orang Asli descent who are beneficiaries under a Deed of Trust. They were aggrieved by the terms of an ex parte order under which the trustee proposed to sell trust properties — condominium units — at a value said to be below market value, and under which the trustee had agreed to a scheme for "upgrade and renovation costs" of RM7.6 million to be paid to the property agent appointed by the trust.

A central question was whether the court had jurisdiction to set aside an ex parte order that was prejudicial to the beneficiaries. The court held that Order 32 rule 6 of the Rules of Court 2012 applied to all ex parte orders, and that Order 42 rule 13 was inapplicable because the trustee had failed to send the ex parte order to the beneficiaries. The court further observed that, even had the order been an inter partes order, setting aside would have been justified on the ground of fraud, a fraudulent intention being proven on the basis of undisputed documents signed by the trustee to its sale agent.

Emphasising that the trustee was court-appointed and that the court retains the power to direct the manner of sale, the court held that a sale by public auction should be directed to ensure transparency and that the highest achievable price is obtained for the interests of the beneficiaries. The judgment is a strong illustration of the court's supervisory jurisdiction over trustees and of the protection afforded to beneficiaries against prejudicial ex parte dealings with trust property.

Why could the ex parte order be set aside?

Because Order 32 rule 6 of the Rules of Court 2012 applies to all ex parte orders, and Order 42 rule 13 did not assist the trustee who had failed to serve the order on the beneficiaries; the court added that setting aside was justified on the ground of fraud, proven from undisputed documents the trustee signed to its sale agent.

What did the court direct as to the sale?

That the trust properties be sold by public auction to ensure transparency and that the highest achievable price is obtained for the benefit of the beneficiaries, the trustee being court-appointed and subject to the court's supervision.

Statutes Cited

Rules of Court 2012

Cases Cited (6)

UK (1)
[1898] 2 QB 36
MY (5)
[1935] 1 MLJ 31 [1990] 1 MLJ 445 [2010] 5 MLJ 357 [2016] 2 MLJ 457 [2016] 3 MLJ 1

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (wa-24ncvc-2583-07-2024)