Yvonne Wong Yee Woon V Wong Yee Mei & Anor

786 Current Law Journal [2022] 6 CLJ
YVONNE WONG YEE WOON v. WONG YEE MEI & ANOR A
HIGH COURT MALAYA, KUALA LUMPUR

MOHD ARIEF EMRAN ARIFIN JC
[ORIGINATING SUMMONS NO: WA-24NCVC-642-05-2020]
11 APRIL 2022
B
Abstract – An administrator of an estate owes specific duties to the

beneficiaries of the estate to act in accordance with the terms of the will,
set against the backdrop of a general duty to act with impartiality in the
best interests of the beneficiaries. The duty of an administrator of an C
estate includes providing a proper, complete and accurate justification
and documentation for his actions as trustee. Once it is established that
the administration of the estate was undertaken, not in accordance with
the terms of the will, but solely according to the administrator’s personal
views, bias and personal grievances against the beneficiaries, the court D
has sufficient cause to remove the administrator and appoint another.
SUCCESSION: Administration of estate – Administrator – Beneficiary of estate

sought for accounts of estate and investigation be undertaken into its affairs –
Whether administrator had been administering estate in accordance with duties as E
administrator appointed by court – Whether administrator complied with terms of
will – Whether administrator acted in best interest of beneficiaries – Whether court
could administer estate – Whether administrator ought to be removed – Probate and
Administration Act 1959
In this originating summons (‘OS’), the plaintiff sought for the accounts of F
the estate of her late father (‘deceased’) and an investigation be undertaken
into its affairs to determine whether the defendant had been administering the
estate in accordance with her duties as an administrator appointed by the
court. The deceased owned shares in two companies, a partnership and a
property. When the deceased died, the defendant was appointed as the G
administrator of the estate. A dispute arose between the plaintiff and the
defendant concerning the business that was being run under a company
known as Pekeliling Services Station Sdn Bhd (‘PSSB’). A derivative action
was filed by the defendant at the High Court, bearing Suit No. WA-22NCC-
136-04-2016 as the administrator of the estate against the plaintiff, on the
H
grounds that the plaintiff had (i) unlawfully taken over the license awarded
by Shell for the petrol service station that was earlier ran by PSSB;
(ii) hijacked the business under the nose of PSSB and that she had then caused
the business to be taken over by her own company. The High Court
dismissed the claim and the Court of Appeal affirmed the order of the High
Court. The plaintiff also found that the estate of the deceased was entitled to I
receive the proceeds of sale of an asset owned by the estate of one Wong Kim
Seng. The plaintiff then requested particulars of the proceeds and the
Yvonne Wong Yee Woon v.
[2022] 6 CLJ Wong Yee Mei & Anor 787
A defendant confirmed the same but reassured her that the monies will not be
released or distributed pending the decision of the Court of Appeal. A second
dispute brewed between the litigants. The defendant contended that
(i) Magnum Corporation Sdn Bhd’s (‘Magnum’) license to operate, held by
PJ (Wong) (in which the deceased held shares in), was to be held by the
B defendant and this arrangement was consented to by the beneficiaries,
including the defendant; and (ii) all the proceeds from PJ (Wong) that
belonged to the estate be paid into the account in the name of the estate. The
above demands were rebuffed by the plaintiff. The plaintiff stated that (i) the
license would only be transferred if Magnum agrees to do so and this decision
C
lies with Magnum; (ii) she would agree to transfer the same if the other
beneficiaries agree to purchase her interest at the current market value;
(iii) the returns of PJ (Wong) were currently paid into an account with
Alliance Bank and was being operated by the other partner (‘Lim’); and
(iv) the entitlements from the proceeds of the said enterprise would be paid
from the account and the surplus would be retained by PJ (Wong) for
D
operations and working capital. The plaintiff also brought proceedings and
obtained an order against the defendant in Suit No. WA-24NCVC-2004-11-
2017. In this OS, the plaintiff relied on O. 80 of the Rules of Court 2012 to
state that the court has the power to administer the estate and give directions
as to the administration of the same.
E
Held (removing defendant from position as administrator and appointing
Amanah Raya Berhad as administrator of estate):
(1) The issue of the PSSB license and the claims for profits against the
plaintiff were resolved against the defendant by orders of the courts.
F This issue should no longer colour the defendant’s view of the facts of
the case and the mechanism/methods in which the estate was being
administered. Despite her personal views, the orders and decisions of
the courts should be respected and reflected in the administration of the
estate. (para 53)
G (2) Parties have not produced any written agreement that contained the
terms of the partnership of PJ (Wong) that were agreed upon at the time
of the lifetime of the deceased. The partnership at that time, based on
the records available, was between the deceased and Lim. Furthermore,
the documents produced based on the search done with the CCM
H indicated that as of 15 October 2004, a new partnership was set up.
Therefore, the partnership that existed between the deceased and Lim
ended on the death of the deceased. The license now belongs to the new
partnership and not with the old partnership. The defendant should have
collected the monies and assets that were due from the partnership at the
I
dissolution and account them to the estate. She should not have
administered the estate as if the partnership continued after the death of
the deceased. (paras 44, 46, 47 & 54)
(3) The substantial payments made by the defendant as the administrator of A

the estate under her administration were wrongly undertaken. The estate
should not have incurred these expenses or provided loans unless they
were agreed to unanimously by the beneficiaries. The sums were not
part and parcel of the estate’s obligation. The defendant should have
only complied with the requirement of the law. The assets of the estate B
should be called in and utilised to pay the debts of the estate. She should
not have incurred any expenses beyond what was provided in law. She
did not have absolute discretion and she had forgotten or disregarded the
requirements of complying with the terms of the will. (paras 55 & 56)
(4) The defendant had wrongfully favoured the other beneficiaries of the C
estate by making distributions to them and their next of kin. The
defendant had chosen not to pay any sums to the plaintiff without any
justification. The defendant had not supported these payments without
any documentation and without any legal justification. She also failed to
provide the accounts of the estate to the plaintiff despite repeated D
attempts made by the plaintiff for her to disclose the details of the estate.
The defendant did not act appropriately in the administration of the
estate. The administration of the estate was undertaken not in
accordance with the terms of the will but solely according to her
personal views, bias and personal grievances against the plaintiff. E
(paras 59, 60-63)
(5) It was not for the court to administer the estate. The orders sought by
the plaintiff were beyond the scope of the powers of the court. If the
plaintiff was unhappy with the administrator and found that the
administrator had misused her powers, then the right position to F
undertake was to remove her in accordance with the provisions under
the ROC and under the Probate and Administration Act 1959. It was
also inappropriate for the court to decide as to the amount that should
be paid to the defendant. This should be done based on a full
investigation as to the (i) assets of the estate; (ii) debts of the estate; and G
(iii) the amount that should be distributed to the beneficiaries based on
the terms of the will. (paras 79 & 86)
(6) The defendant acted as if the estate was under her own personal
dominion and she was entitled to disregard decisions of the courts, the
terms of the will and applicable laws. She had in fact acted contrary to H
her duties and this should be rectified in this suit. The defendant was
(i) removed from her position as the administrator of the estate and
Amanah Raya Berhad was appointed as an administrator of the estate;
(ii) directed to produce and surrender all documents relating to the
administration of the estate of the deceased to Amanah Raya Berhad; and I
(iii) directed to pay the sums of RM2,161,162.41 in her personal
capacity to the estate of the deceased. (paras 88 & 96)
A Case(s) referred to:

Damayanti Kantilal Doshi & Ors v. Jigarlal Kantilal Doshi & Ors [1998] 4 CLJ 81 CA (refd)
Dato’ Sivananthan Shanmugam v. Artisan Fokus Sdn Bhd [2015] 2 CLJ 1062 CA (refd)
Lalwani Shalini Gobind And Another v. Lalwani Ashok Bherumal [2017] SGHC 90 (refd)
Ligar Fernandez v. Eric Claude Cooke [2002] 6 CLJ 152 HC (refd)
Ng Kong Ling & Anor v. Low Peck Lim & Ors [2017] 5 CLJ 651 FC (refd)
B Re Khoo Boo Gong, Decd Khoo Teng Seong v. Teoh Chooi Ghim & Ors [1981] 1 LNS
78 FC (refd)
Robert Teo Keng Tuan v. Chew Chong Eu & Anor [2015] 7 CLJ 508 HC (refd)
Shirley Kathreyn Yap v. Malcolm Thwaites [2016] 8 CLJ 765 FC (refd)
Siti Fatihah Diman & Ors v. Diman Hassan & Ors [2021] 1 LNS 2055 HC (refd)
Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73 FC (refd)
C
Tan Kah Fatt & Anor v. Tan Ying & Another Appeal [2021] 1 LNS 264 CA (refd)
Tang Seng Cheong & Anor v. Wong Pooi Yen [2019] 1 LNS 2279 HC (refd)
Virgin Atlantic Airways Limited v. Zodiac Seats UK Limited [2013] UKSC 46 (refd)
Legislation referred to:
Partnership Act 1961, s. 35
D Probate and Administration Act 1959, ss. 34, 60, 67, 70, 77, First Schedule
Part II
Rules of the High Court 1980, O. 80
Trustee Act 1949, s. 40
For the plaintiff - B Thangaraj & M Nalini; M/s Thangaraj & Assocs
E For the defendants - Syamsul Azhar Aziz; M/s Azhar Aziz & Assocs
Reported by Lina E
JUDGMENT
F Mohd Arief Emran Arifin JC:
Introduction
[1] The plaintiff is only seeking the following orders against the
defendants:
G (i) Satu akaun dan siasatan dan satu perintah untuk mengesan sekiranya
perlu untuk bantu dalam menentukan bayaran yang tidak sah dan semua
perbelanjaan yang tidak berpatutan yang dikenakan ke atas Harta Pusaka
Wong Poi Fong @ Wong Swee Fong dan dibayar keluar oleh Defendan
Pertama daripada akaun Harta Pusaka Wong Poi Fong @ Wong See
Fong hendaklah dibayar kembali oleh Defendan Kedua dalam kapasiti
H peribadinya ke dalam akaun Harta Pusaka Wong Poi Fong @ Wong Swee
Fong selepas ditentukan dan diperakui oleh Mahkamah.
(ii) In the alternative, an order that:
Secara tambahan dan/atau alternatif, suatu perintah untuk pentadbiran
harta pusaka tak alih dan alih Wong Poi Fong @ Wong Swee Fong,
I
Si Mati dengan semua akaun, arahan dan siasatan yang perlu dan patut
dijalankan oleh Mahkamah untuk menentukan:
(a) harta tak alih dan alih Wong Poi Fong @Wong Swee Fong, A
Si Mati yang sampai ke tangan Defendan Pertama;
(b) semua bayaran tidak sah dan semua perbelanjaan yang tidak
berpatutan yang dikenakan ke atas Harta Pusaka Wong Poi
Fong @Wong Swee Fong dan dibayar keluar oleh Defendan
Pertama daripada akaun Harta Pusaka Wong Poi Fong @Wong B
Swee Fong dan jumlah yang ditentukan dan diperakui oleh
Mahkamah hendaklah dibayar kembali oleh Defendan Kedua
dalam kapasiti peribadinya ke dalam akaun Harta Pusaka Wong
Poi Fong @Wong Swee Fong;
(c) apa yang kena dibayar oleh Plaintif daripada harta pusaka Wong
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Poi Fong @ Wong Swee Fong, Si Mati dan Defendan Pertama
membayar kepada Plaintif dalam tempoh masa (7) hari daripada
tarikh perintah jumlah yang diperakui oleh Mahkamah yang
kena dibayar oleh Defendan Pertama daripada Harta Pusaka
kepada Plaintif dan/atau jumlah yang dipertanggungjawabkan
oleh Mahkamah untuk Defendan Kedua membayar dengan D
sendirinya kepada Plaintif selepas siasatan dijalankan mengikut
perenggan 3(b) di atas;
(d) kebebasan untuk memohon; dan
(e) relif selanjutnya atau relif lain.
E
[2] Essentially, the plaintiff is seeking for the accounts of the estate and
an investigation be undertaken into its affairs to determine whether the
defendant, Wong Yee Mei @ Cynthia, has been administering the estate in
accordance with her duties as an administrator appointed by the court.
[3] The plaintiff’s counsel confirms that his client will not pursue the F
other orders as prayed in the originating summons.
Background Of Facts
[4] The late Wong Poi Fong @ Wong Swee Fong was the father of the
plaintiff and the defendant. He was a relatively successful businessman
G
during his lifetime and held the following assets running several businesses
among others:
(i) shares in a partnership known as PJ (Wong) [000240158];
(ii) shares in a company known as Pekeliling Services Stesen Sdn Bhd
[004829-W]; and H
(iii) shares in a Stesen Servis Weng Heng (Pudu) Sdn Bhd [115452].
The late Wong Poi Fong also owned a property known as Geran 10901, Lot
270, Seksyen 0067, Bandar Kuala Lumpur.
[5] The deceased left a will which was executed on 3 March 1978 and the I
defendant, Wong Yee Mei (Cynthia), was appointed as the administrator of
the estate pursuant to the order of court dated 16 December 2013.
A [6] A dispute arose between the plaintiff and the defendant concerning the
business known ran under the company known as Pekeliling Services Station
Sdn Bhd (PSSB). A derivative action was filed by the defendant, as the
administrator of the estate, against the plaintiff in the suit bearing number
WA-22NCC-136-04-2016.
B
[7] In the aforesaid suit, the defendant alleges that the plaintiff had
unlawfully taken over the license awarded by Shell for the petrol service
station that was earlier ran by PSSB. The defendant alleges that the plaintiff
had hijacked the business under the nose of PSSB and that she had then
caused the business to be taken over by a registered business known as YW
C Global, that is owned by the plaintiff.
[8] The claim was heard by Noorin Badaruddin J by way of a full trial
and the defendant’s claim was dismissed as seen in the judgment dated
13 April 2017.
D [9] Therefore, the issue of whether the plaintiff is guilty of any
wrongdoing concerning the PSSB and the licenses relating to the said entity
is no longer an alive issue. This issue has been decided by the court and
parties are not entitled to reopen the same issue again before me.
[10] I also note that the Court of Appeal had also affirmed the order of the
E High Court dismissing the defendant’s claim against the plaintiff.
[11] The plaintiff also found that the estate of Wong Poi Fong @Wong
Swee Fong is allegedly entitled to receive the proceeds of sale of an asset
owned by the estate of Wong Kim Seng. The plaintiff’s solicitors then
requested particulars of the proceeds received by the estate and information
F as to whether the said sums remain with the estate or have been distributed
in accordance with the will. This is seen in the letter dated 16 June 2017
issued by the plaintiff’s solicitors.
[12] In response, the defendant’s solicitors, Messrs Richard Tee & Chin, by
letter dated 5 July 2017, confirmed that there were sums of monies received
G
from the estate of Wong Kim Seng but reassured that the said monies remain
in the accounts of the estate and will not be released or distributed pending
the decision of the Court of Appeal.
[13] This was followed by subsequent letters issued by the plaintiff’s
H solicitors dated 19 July 2017 seeking the information as to the sale of the
assets of the estate of the deceased and relevant information concerning the
distribution of the assets or monies belonging to the estate. The plaintiff’s
solicitors also rebuked the defendant’s arguments contained in the earlier
letter dated 5 July 2017.
I [14] A second dispute started to brew between the litigants as seen in the
letter dated 28 February 2018 from the defendant’s solicitors. The defendant
contends that, Magnum Corporation Sdn Bhd license to operate held by PJ
(Wong) is to be held by the defendant. They also contend that this
arrangement was consented to by the beneficiaries including the defendant A

and forwarded a copy of the acknowledgment and agreement dated
27 September 2011 and the letter dated 15 January 2016 allegedly from the
plaintiff confirming the same.
[15] This dispute started even as early as 18 October 2011, when the other
B
beneficiaries of the estate wrote a letter on the aforesaid date, demanding that
the administration and management of PJ (Wong) be handed over to them.
[16] The defendant also wrote a letter to the plaintiff seeking that all the
proceeds from the enterprise of PJ (Wong) that belong to the estate be paid
into the account in the name of the estate. This is seen in the letter dated C
21 September 2015.
[17] The above demands were rebuffed by the plaintiff in the letter dated
15 January 2016. In her response, she stated that the license will only be
transferred if Magnum agrees to do so, and that this decision lies with the
said entity. At the same time, she stated that she will agree to the transfer D
if the other beneficiaries agree to purchase her interest at the current market
value.
[18] She also stated that the returns of the said enterprise are currently paid
into an account with Alliance Bank and are being operated by Lim Chin
Beng, the other partner, in the said enterprise. The entitlements from the E
proceeds of the said enterprise will be paid from the account and the surplus
will be retained by PJ (Wong) for operations and working capital. She also
rebuked the other beneficiaries' claims concerning PSSB.
[19] Eric Wong Yee Leong, one of the beneficiaries of the estate, passed
away on 7 March 2018. His son Marc Wong Yip Loon has since been F
appointed as the administrator of the estate of Eric as seen in the order dated
16 December 2019.
[20] This was followed by the letter dated 30 March 2018 issued by the
defendant’s solicitors to the plaintiff’s solicitors. The defendant reiterated the
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contents of the previous letter concerning the running of the PJ (Wong)
business by the defendant as trustee for the estate and that this was agreed
to by all beneficiaries.
[21] The allegations made by the defendant’s solicitors, provoked a
response from the plaintiff’s solicitors dated 15 March 2018. In the aforesaid H
letter, the plaintiff’s solicitors stated that the (i) the issue pertaining to PSSB
has long been settled by the decision of the court and should not be revisited;
and (ii) the defendant is to provide the accounts relating to the estate of the
deceased. Until the accounts are rendered, the proceeds of the PJ (Wong)
business shall be kept in the Alliance Bank account identified by the plaintiff.
I
[22] The plaintiff’s solicitors had also issued a letter dated 10 April 2018
again seeking the particulars of the accounts of the estate.
A [23] The plaintiff had also brought proceedings against the defendant in the
suit bearing number WA-24NCVC-2004-11-2017 where the plaintiff
successfully obtained the following orders dated 26 July 2018:
(1) Defendan dalam tempoh masa empat belas (14) hari daripada tarikh
perintah ini mengemukakan dan menentusahkan kepada Plaintif melalui
B suatu affidavit yang diikrar oleh Defendan berkenaan:
(a) segala wang dan hasil yang diterima semasa pentadbiran Harta
Pusaka Wong Poi Fong @ Wong Swee Fong daripada 16 Disember
2013 sehingga sekarang;
(b) butir-butir berkenaan wang yang dibayar keluar oleh Defendan
C daripada Harta Pusaka Wong Poi Fong @ Wong Swee Fong dan
kepada siapa, tarikh dan jumlah yang telah dibayar keluar;
(c) penjualan tanah yang dikenali sebagai GRN 10901 Lot 270, Seksyen
97, Kuala Lumpur, Wilayah Persekutuan (‘Hartanah berkenaan’);
(i) berapakah jumlah yang diterima oleh Defendan daripada
D
Pentadbir Harta Pusaka Wong Kim Seng daripada penjualan
Hartanah berkenaan;
(ii) adakah hasil Jualan Hartanah berkenaan yang telah diterima
daripada Pentadbir Harta Pusaka Wong Kim Seng telah
diagihkan, dan sekiranya diagihkan, kepada siapa dan bilakan
E agihan tersebut dilakukan;
(iii) berapakah baki hasil jualan yang diterima daripada jualan
Hartanah berkenaan masih dalam simpanan Defendan.
(2) Defendan membayar kepada Plaintif bahagian Plaintif daripada hasil
jualan Hartanah berkenaan dalam tempoh masa empat belas (14) hari
F
daripada tarikh perintah ini; dan
(3) kos bagi prosiding ini ditetapkan sebanyak RM4,000.00 dan hendaklah
dibayar oleh Defendan secara persendirian kepada Plaintif.
[24] Pursuant to the said order, the plaintiff affirmed an affidavit dated
G 9 August 2018 and attached the excerpts from the cash book of the estate of
the deceased. The defendant continues with her allegation that the estate of
the deceased does not owe any sums to the plaintiff on the ground that the
plaintiff had unlawfully taken over the PSSB license and the business of PJ
(Wong) from the estate. The contents of the cash book of the estate will be
H
explained by me in the substantive portion of this judgment.
[25] Dissatisfied with the contents of the affidavit, the plaintiff’s solicitors
then issued another salvo to the defendant’s solicitors via letter dated 10 April
2018. In the aforesaid letter, the plaintiff alleges that the defendant did not
comply with the orders of the court and failed to disclose the accounts. This
I was followed up by the letter dated 8 January 2019 where the contents of
the cash book, payments made and the administration of the estate were
questioned by the plaintiff’s solicitors. The defendant’s solicitors then issued
her response via letter dated 31 January 2019.
[26] The important fact that I must also determine is whether the undated A
letter entitled acknowledgment and agreement, that allegedly confirms that
all sums outstanding to the defendant shall be reimbursed from the estate to
her and this will be at the absolute discretion of the defendant. The plaintiff
denies putting her signature to the document and as such this document was
put in Part C for the purposes of the trial. B
[27] Another important factor that I must take into account is the
dissolution of the original partnership known as PJ (Wong) on the death of
the deceased on 9 September 2004. Thereafter, a new partnership came into
being as seen in the search undertaken at the Companies Commission
Malaysia, where it is shown that as of 15 October 2004, a new partnership C
was set up consisting of (i) Lim Chin Beng, who remained a partner from the
original partnership, (ii) Wong Yee Mei @ Cynthia (defendant), (iii) Yvonne
Wong Yee Woon (plaintiff) and (iv) Eric Wong Yee Leong.
[28] The evidence also indicates that the defendant and the beneficiaries of
D
the estate have been drawing from the partnership as early as 2005. Eric
Wong and the defendant have been drawing funds from the partnership as
seen in the accounts produced by PJ (Wong) showing the distribution of
funds from the said partnership.
Applicable Law E
[29] It is trite law that the defendant, as the administrator of the estate,
owes fiduciary duties to the beneficiaries of the estate. The defendant is a
trustee and must act, first and foremost in the best interest of the
beneficiaries.
[30] On the issue of whether a party has a duty to the account was dealt F
with by the Federal Court in two cases. The first of which is Solid Investments
Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73 and in Shirley
Kathreyn Yap v. Malcolm Thwaites [2016] 8 CLJ 765.
[31] Md Raus Sharif PCA (as he then was) in Shirley Kathreyn Yap
G
v. Malcolm Thwaites (supra) explained the applicable law on this area as
follows:
[42] Thus, the issue before us is whether the trial judge was right in
finding that the defendant has a duty to account to the plaintiff. In Alcatel-
Lucent (Malaysia) Sdn Bhd v. Solid Investments Ltd & Another Appeal [201312
H
CLJ 734; [2012] 4 MLJ 72 (“Alcatel”) the trial judge had made a finding
of a fiduciary and an accounting party when these were not pleaded in
the statement of claim. The Court of Appeal in allowing the appeal,
observed that:
for there to exist a complete cause of action for taking accounts, the
respondent has to plead and prove the following: I
(a) the appellant (as the defendant) must be liable to pay a certain
sum of monies to the respondent as the plaintiff; and
A (b) the appellant (as the defendant) is an accounting party to the

respondent (as the plaintiff).
[43] The Court of Appeal in Alcatel also held that:
The learned judge had gone beyond the pleaded case when he
made a finding that the appellant was an accounting party because
B of an alleged fiduciary relationship between the appellant and the
respondent when this was neither pleaded nor proven.
[44] On appeal by Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd
[2014] 3 CLJ 73, the Federal Court dismissed the appeal and affirmed the
decision of the Court of Appeal. The question of law posed before the
C Federal Court was as follows:
Whether in asserting whether parties stand in a fiduciary
relationship a court is to have regard to the course of dealings
between the parties in addition to any express agreement between
them.
D [45] In resolving the said question of law in the affirmative, the Federal
Court observed with approval that the Court of Appeal had extensively
dealt with the law relating to the duty to account under the common law
as stated, inter alia in Baboo Janokey Doss v. Bindabun Doss [1843] Moore Ind
App 175; Re Cyril Sharp And Others [1992] FCA 616 and Bristol & West
Buidling Society v. Mothew [1998] Ch 1.
E
[46] In Baboo Janokey Doss v. Bindabun Doss (supra), Dr Lushington of the
Privy Council at p. 197 said:
... we cannot make a Decree, ordering them to account, without
first determining that they are liable to pay if anything to be found.
F A Decree for an account is not, as appears to have been assumed,
a mere direction to inquire and report. It proceeds, and must
always proceed, upon the assumption that the party calling for it
is entitled to the sum found due. It is a Decree affirming his rights,
only leaving it to be inquired into, how much is due to him from
the party accounting.
G
[47] In Re Cyril Sharp (supra), the Federal Court of Australia through
Drummond J opined:
The taking of an account is only appropriate once it is established
that the parties involved are in an accounting relationship with
each other, that is, only once it has been established that one party
H
is liable to pay to the other anything that is found, on the taking
of account, to be due to that other ...
[48] In Bristol and West Building Society v. Mothew (supra) at p. 18, Millet LJ
made the following observation on the question of law as who is a
fiduciary:
I
A fiduciary is someone who has undertaken to act for or on behalf
of another in a particular matter in circumstances which give rise
to a relationship of trust and confidence ...
[32] The duties owed by an executor to the beneficiaries were explained by A

Aedit Abdullah JC in the Singaporean case of Lalwani Shalini Gobind And
Another v. Lalwani Ashok Bherumal [2017] SGHC 90, as follows:
13 In the present proceedings, it was not disputed that both executors and
trustees owe fiduciary duties to the beneficiaries of an estate in relation
to the administration of that estate. In Lee Yoke San And Another v. Tsong B
Sai Cecilia And Another [1992] 3 SLR(R) 516 (“Lee Yoke San”), the High
Court held that (at [35]):
An executor “calls in” the estate that collects and converts the
assets into cash, and pays all the funeral and testamentary
expenses, estate duty, debts and legacies. When he has done this, C
he has discharged his duties as an executor. Then he steps into the
shoes of a trustee. He owes a fiduciary duty to the beneficiaries,
whether he is an executor or trustee.
14 As an incidence of this fiduciary relationship, the executor or trustee
owes several specific duties to the beneficiaries of the estate, including the
D
duty to determine the extent of the testator’s assets and liabilities, to act
diligently in the realisation of such assets, and to pay for the testator’s
debts and testamentary expenses (see generally Foo Jee Boo And Another
v. Foo Jhee Tuang And Others [2016] SGHC 260 (“Foo Jee Boo”) at [73]-[83]).
These specific duties are set against the backdrop of a general duty on the
part of the executor or trustee to act with impartiality in the best interests E
of the beneficiaries (Lee Yoke San at [35]; Foo Jee Boo at [83]).
[33] The case is also useful concerning the duty to account on a common
basis and under what circumstances would an executor be made accountable
to a beneficiary:
(i) The taking of account is usually divided into three phases (a) F
determining whether the claimant has a right to an account, (b) the
taking of the account and (c) determining the consequential relief.
(ii) The executor’s duty to account is not contingent of any allegation or
even the establishment of any breach of trust or breach of duty.
G
(iii) The duty to account is continuous on demand and does not have to be
discharged solely at the time of the distribution of the asset.
(iv) The court may decline to force the trustee/executor to account if it is
(i) oppressive to the trustee depending on the circumstances of each case,
(ii) that there are good reasons not to allow the same and (iii) there was H
a settlement on the trust account that the beneficiary is attempting to
renege on.
(iv) The executor must provide a proper, complete and accurate justification
and documentation for his actions as trustee. If there are allegations of
I
breaches of trust, neglect or failure to act then there may be more details
that need to be disclosed. This is however fact sensitive.
A [34] If it is shown that the executor is guilty of any wrongdoing, then he

or she must be made accountable to the estate and the beneficiaries. Once the
accounts are undertaken, and it is shown that the estate is depleted due to
reasons that the executor may be held accountable for, then the executor may
be directed to make good any deficit or losses caused to the estate and to the
B beneficiaries.
[35] Although the case cited above deals with Singaporean law, I am of the
opinion the same legal principles are applicable in Malaysia as well.
[36] I also refer to the decision of the Court of Appeal in Damayanti Kantilal
C
Doshi & Ors v. Jigarlal Kantilal Doshi & Ors [1998] 4 CLJ 81; [1998] 4 MLJ
268 where Shaikh Daud JCA, inter alia, held:
On the complaint of the failure to render accounts or periodic accounts
the conduct of the appellants showed an obvious reluctance to render
such accounts. This is in spite of four years of executorship. Up to the
date of the trial no accounts had been rendered. In fact the record shows
D
that two months after the respondents filed their originating motion, an
application was made by them to obtain an injunction to restrain the
appellants from dealing in whatsoever manner in the assets of the estate.
At the hearing for that application learned counsel for the appellants
informed the court that accounts were being prepared but right up to the
date of the judgment in July 1995, the accounts were neither prepared nor
E
submitted. This is clear evidence of reluctance to render accounts or in
any way be accountable as to the financial position of the estate. The very
first time the accounts were filed was in December 1995 when this court
ordered, as a condition of an order of stay of the Johor Bharu High Court
order that the second appellant file and serve an affidavit containing the
F accounts to the respondents within one month of the date of the stay.
The delay to extract the grant of probate is clearly deliberate for until that
was done there is no obligation to distribute and wind up the estate.
The duty to render accounts is one of the basic duties of all executors
or trustees. It is the duty of the personal representatives to keep clear and
accurate accounts, and to be ready at all times to render such accounts
G
when called upon to do so, see Halsbury’s 4th Edn Vol 17 at para 1551
under “Liability to Account”. By the terms of the deceased’s will the issue
of accounts is all important since the residue for distribution is derived at
only after deductions of debts and expenses have been made. Without
the accounts being rendered periodically or at all (as in this case), the
H
beneficiaries would not have any means of knowing whether the estate
is being administered properly.
[37] Another important area that I would like to address is the issue of the
duties of the administrator. It is trite law that an administrator of the estate
must “call-in” the assets of the deceased, this would include real and personal
I assets. The administrator must determine the assets and liabilities of the
deceased. The assets of the deceased must be utilised to pay (i) the expenses
incident to the due performance of the duty of the administrator eg, the costs A
of obtaining the grant of probate/letter of administration and (ii) the debts
of the deceased.
[38] The administrator is required to act in the best interest of the
beneficiaries and must act in accordance with the terms of the will. Refer to
B
ss. 60, 67, 70, 77, and Part II of the First Schedule of the Probate and
Administration Act 1959.
Preliminary Issues
[39] Before I deliberate on the substantive issues raised by the litigants in
this suit, I would like to deal with two preliminary issues that raised their C
heads during the trial. These are:
(i) The effect of the earlier decisions of the courts in the suit bearing
number WA-22NCC-136-04-2016 and suit bearing number
WA-24NCVC-2004-11-2017.
D
(ii) The status of the partnership is known as PJ (Wong).
[40] I am of the opinion that the issues raised and decided in these two
proceedings are now subject to the doctrine of res judicata and the litigants are
not entitled to rehash the same issues again before me.
E
[41] I refer to the decision of the Federal Court in Ng Kong Ling & Anor
v. Low Peck Lim & Ors [2017] 5 CLJ 651, where Md Raus Sharif PCA (as he
then was) stated:
[37] In Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995]
3 CLJ 783; [1995] 3 MLJ 189 the Supreme Court had held that when a
F
matter between two parties has been adjudicated by a court of competent
jurisdiction, the parties and their privies are not permitted to litigate once
more over the same matter because the judgment “becomes the truth
between the parties”. Where a matter has been adjudged, the Supreme
Court held that an estoppel per rem judicatum arose to prevent a party from
relitigating the cause or issue. The Supreme Court held as follows: ... G
[38] Thus, the issue of estoppel could be raised whether or not the cause
of action in the first proceeding is by nature the same as the second
proceedings. Diplock LJ in Fideltas Shipping Co Ltd v. V/O Exportchleb [1966]
1 QB 630 explained:
It operates in subsequent suits between the same parties in which H
the same issue arises. A fortiori it operates in any subsequent
proceedings in the same suit in which the issue has been
determined.
[42] I also refer to the decision of the Court of Appeal in Dato’ Sivananthan
Shanmugam v. Artisan Fokus Sdn Bhd [2015] 2 CLJ 1062, where Idrus I
Harun JCA stated:
A [19] The next point raises questions which concern the issue of the
application of the doctrine of estoppel and res judicata to the present
appeal. In fact the substantial part of the argument before us turned on
this critical issue which in our view will ultimately determine this appeal.
The terms ‘res judicata’, ‘issue estoppel’ and ‘cause of action estoppel’ are
sometimes used loosely but the modern tendency has been to use res
B judicata comprehensively to cover all those terms of estoppel (see North
West Water Ltd v. Binnie & Partners (a firm) [1990] 3 All ER 548 and OCBC
Bank (Malaysia) Bhd v. Kredin Sdn Bhd [1997] 2 CLJ 534). Res judicata simply
means a matter adjudged, and its significance lies in its effect of creating
an estoppel per rem judicatam. The res judicata rule dictates that when a
matter between two parties has been adjudicated by a court, the matter
C
may not be pursued further by the same parties and their privies because
the judgment becomes the truth between such parties, its application
produces finality in litigation and one ought not to be vexed twice for the
same cause of action. Since a res judicata creates an estoppel per rem
judicatam, the doctrine of res judicata is really the doctrine of estoppel
D
per rem judicatam (see Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn
Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189).
[20] The plea of res judicata comprises two distinct forms of estoppel that
is to say, cause of action estoppel and issue estoppel. Drake J in North West
Water Ltd v. Binnie & Partners (a firm), supra stated that cause of action
estoppel was confined to cases where the cause of action and the parties
E were the same in the second suit as they were in the first suit. In such
a case the bar is absolute (OCBC Bank (Malaysia) Bhd v. Kredin Sdn Bhd,
supra). On the other hand, issue estoppel would involve going over
precisely the same issue or point already decided in the first action or refer
to an issue that has been previously litigated and determined between the
same parties and the same issue is raised in a subsequent proceedings
F
between the same parties involving a different cause of action to which
the same issue is relevant and one of the parties seeks to reopen the issue.
The High Court decision in Seruan Gemilang Makmur Sdn Bhd v. Badan
Perhubungan UMNO Negeri Pahang Darul Makmur [2009] 1 LNS 1457; [2010]
8 MLJ 57 clearly shows that the requirements of issue estoppel are that the parties
G to the judicial decision or their privies were the same persons as the parties to the
proceedings in which the estoppel is raised and that the same question had been
decided. In Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd, supra the
Supreme Court succinctly explained that the term ‘issue estoppel’ literally meant
simply an issue which a party was stopped from raising in subsequent proceeding.
Issue estoppel prevents contradiction of a previous determination, whereas cause of
H action estoppel prevents reassertion of the cause of action (see also Chemfert Sdn Bhd
& Anor v. Lim Hua [2010] 7 CLJ 491).
(emphasis added)
[43] The second issue I would like to address is whether the partnership
known as PJ (Wong) continues to exist after the death of the deceased.
I
[44] Parties have not produced any written agreement that contains the A
terms of the partnership that were agreed upon at the time of the lifetime of
the deceased. The partnership at that time, based on the records available to
me, was between the deceased and one Lim Chin Beng.
[45] Section 35 of the Partnership Act 1961 provides that unless the
B
partners agree otherwise, the partnership will be dissolved by the death or
the bankruptcy of a partner. This will not be automatic if the partnership
agreement provides for the exclusion of the deceased partner or the partner
who is adjudicated bankrupt. However, as I have said earlier, the parties did
not produce any partnership agreement. Please refer to Robert Teo Keng Tuan
v. Chew Chong Eu & Anor [2015] 7 CLJ 508. C
[46] Furthermore, the documents produced based on the search done with
the CCM, indicate that as of 15 October 2004, a new partnership was set up
consisting of (i) Lim Chin Beng, who remained a partner from the original
partnership; (ii) Wong Yee Mei @ Cynthia (defendant); (iii) Yvonne Wong
D
Yee Woon (plaintiff); and (iv) Eric Wong Yee Leong. Since then, Eric Wong
Yee Leong has also passed away and therefore even the existence of this new
partnership is doubtful as parties again failed to produce a copy of the
partnership agreement.
[47] Therefore, I believe the partnership then existed between the late E
Wong Poi Fong @ Wong Swee and Lim Chin Beng ended on the death of
the deceased. This was replaced by the new partnership between Lim Chin
Beng and the beneficiaries of the estate of the deceased.
[48] These ancillary issues are important in the determination of the
substantive issues in this case. F
Decision On The Plaintiff’s Claim
Issues In Dispute
[49] The plaintiff in her written submissions has identified the common
issues that need to be determined by this court. They are: G
(i) Whether there is any amount payable from the estate of Wong Poi Fong
@ Wong Swee Fong (deceased) to the plaintiff, and if there is any
amount payable, what is the amount which the plaintiff is entitled to be
paid by the first defendant as the 1/6 beneficiary of the estate of Wong
Poi Fong @ Wong Swee Fong (deceased)? (Issue 1) H
(ii) From the cash book of the estate of Wong Poi Fong @ Wong Swee Fong
(deceased) prepared by the first defendant and enclosed as exh. CYM1
to the first defendant, what are the amounts which were wrongfully paid
out by the first defendant from the account of the estate of Wong Poi
I
Fong @ Wong Swee Fong (deceased)? (Issue 2)
A (iii) Is the first defendant then liable to – pay back all the amounts which
were wrongly paid out from the account of the estate of Wong Poi Fong
@ Wong Swee Fong (deceased) and – pay the plaintiff the amount which
the plaintiff is entitled to receive as 1/6 beneficiary of the estate of
Wong Poi Fong @ Wong Swee Fong (deceased). (Issue 3 and Issue 4)
B
I will address the above issues in the following paragraphs.
Issue 2 – Whether There Are Any Amounts That Are Wrongly Paid From The
Accounts Of The Estate Of The Deceased
[50] As I have alluded earlier, the plaintiff is not seeking to remove the
C defendant as an administrator of the estate. Instead, the plaintiff is seeking
that the defendant to provide an account of the assets and liabilities of the
estate to determine whether the sums expended was undertaken wrongly by
the defendant. As explained earlier, the law expects that an administrator
provides information pertaining to the administration of the estate with the
D beneficiaries. This includes a complete and accurate statement of the
accounts with the necessary documentation to justify his or her actions as a
trustee.
[51] In this case, it is apparent to me that there is a strained relationship
between the defendant and the plaintiff. The relationship deteriorated rapidly
E with the loss of the PSSB license to the plaintiff and regarding the refusal of
the plaintiff to transfer the license held by PJ (Wong) or any sums of monies
received from the new petrol station and PJ (Wong) to the other
beneficiaries.
[52] However, I am of the opinion that the defendant should have
F disregarded the issue concerning the PSSB license and the PJ (Wong) for the
following reasons.
[53] Firstly, the issue PSSB license and the claims for profits against the
plaintiff were resolved against the defendant by orders of the courts. This
issue should no longer colour the defendant’s view of the facts of the case and
G
the mechanism/methods in which the estate is being administered. Despite
her personal views, the orders and decisions of the courts should be respected
and reflected in the administration of the estate.
[54] Secondly, regarding PJ (Wong), it is clear to me that the partnership
H now as it stood during the lifetime of the deceased no longer exists. PJ
(Wong) as it stands now is a new partnership and the monies belong to the
partners in accordance with the terms of the partnership. The license as it
stands now also belongs to the new partnership and not with the old
partnership. The defendant should have collected the monies and assets that
are due from the partnership at the dissolution and account them to the estate.
I
She should not have administered the estate as if the partnership continued
after the death of the deceased.
[55] I also find, having considered the evidence of parties and the accounts A
produced by the defendant, that the substantial payments made by the
defendant as the administrator of the estate under her administration were
wrongly undertaken. The estate should not have incurred these expenses or
provided these loans unless they were agreed to unanimously by the
beneficiaries. I reproduce the table that explains the monies expended by the B
estate to the sum of RM2,161,162.41 that I find were wrongly expended
from the estate of the deceased.
No. Date Description Outflow (RM)

1. 9.5.2005 Loan to Pekeliling Service Station C
(PSS) 49,000
Loan to Pekeliling Service Station 215,000
D
(postdated cheques issued)
Mom’s medical bill 39,314.38
Advance to Eric 200
2. 12.10.2006 IOU Yvonne 300
E
Chicken Man-Taman Muda (Ah Bee) 300
Amount paid to Evi (Domestic Maid) 5,500
Air Ticket for Evi to Indonesia 329.90
Transport by Maid Agency 120
F
Evi’s pay (Jan 07’ - May 07’) 2,250
3. 10.10.2006 Sent to Indonesia (Evi Maid) 810
Kota Kemuning House (Quit Rent,
assessment charge & TNB) 757.60
4. 1.3.2007 Clear off overdraft for PSS mom’s 7,000 G
house charged Angel’s Decoration
(upholstery of sofa)
S&P and documentation of KK house 850
Interest on loan 10,805
Interest on loan 16,072.27 H
2523.75
5. 1.3.2009 To settle PSS overdraft facility 165,000
6. 7.3.2009 Remittance to Irene Lai Ling-Ching 18,444.60
I
7. 23.3.2011 - Amount advanced to Eric (2011-2015) 130,162.33
5.5.2011
A 8. 1.5.2016 - Distribution of receipts to Eric’s next 16,000

31.8.2016 of kin-Eric Wong
9. 1.9.2016 - Rental of coffee shop & Magnum 59,800
31.7.2018
10. 27.1.2016 Payment to Eric Wong Yee Leong 465,706.61
B
11. 5.2.2016 Payment to Ellen Wong Yee Lin 514,150.97
12. 5.1.2018 Payment to Eric Wong Yee Leong 742.50
Payment to Ellen Wong Yee Lin 371.25
Payment to Cynthia Wong Yee Mei 371.25
C 13. 7.3.2018 Payment of Eric Wong Funeral 7,480
Expenses
14. 17.4.2018 Payment of Eric Wong Funeral 11,800
Columbarium
TOTAL RM2,161,162.41
D
[56] These sums were not part and parcel of the estate’s obligation. The
defendant should have only complied with the requirement of the law. The
assets of the estate should be called in and utilised to pay the debts of the
estate. She should not have incurred any expenses beyond what is provided
E in law. She does not have absolute discretion and she has forgotten or
disregarded the requirements of complying with the terms of the will. As an
example, it is not the duty of the estate to pay for the loans of PSSB, the
medical bills of the wife of the deceased, maid fees and maid travelling
expenses. She should have also not transferred funds solely to Eric Wong or
F covered Eric Wong’s funeral expenses. These are beyond the scope of the
terms of the will and beyond the appropriate scope of the administration of
the estate.
[57] I refer to the judgment of Mohd Firuz Jaffril J’s in Tang Seng Cheong
& Anor v. Wong Pooi Yen [2019] 1 LNS 2279, where he stated:
G
[23] With reference to question (iii) which requires the defendant to
furnish the plaintiff with verified accounts and inventory of all the assets
of the late Chia Yee Hoong is concerned, the defendant herself
acknowledges that Section 62 of the Probate and Administration Act
1959, does impose such a duty on her to provide a true and perfect
H inventory and account of the movable and immovable property of the
deceased (see also the Court of Appeal decision in Damayanti Kantilal
Doshi & Ors v. Jigarlal Kantilal Doshi & Ors [2012] 1 LNS 492; [1998] 4 MLJ
268). Hence, there is no necessity for this court to answer question (iii).
I
[24] With reference question (iv) which requires the defendant to furnish A
the bank statements and all the bank share account statements of the late
Chia Yee Hoong from January 2015 till to date, this court agrees with the
defendant’s submission that her duties as Executor only covers monies
and shares belonging to the CYH as at the date of her demise (see the
Judivial Committee of Privy Council decision in SMKR Meyappa Chetty
v. Supramaniam Chetty [1916] 1 AC 263). Nevertheless, for purposes of B
transparency, impartiality and gesture of goodwill, bearing in mind that
the task of obtaining the statements and the bank share account
statements from January 2015 till to date from the various third parties
is not too onerous, this court takes the view that it is incumbent on the
defendant to provide the documents requested to all beneficiaries of the
C
Estate.
[25] With reference to questions (v) and (vi) which requires the defendant
to obtain from one Chan Lai Mun, the Executrix of the Estate of the late
Tang Tuck Ngow all the bank and share account statements that were
bequeathed to the late Chia Yee Hoong as stipulated in the Last Will and
Testament of Tang Tuck Ngow dated 22.05.2009 and an inventory of all D
the assets that were bequeathed to the late Chia Yee Hoong as stipulated
in Tang Tuck Ngow’s Will, both parties herein agrees that only the
defendant is vested with the right to obtain such documents see Section
59 of the Probate and Administration Act 1959). Without having these
documents, and comparing them to what assets the Estate of CYH has
at the time of CYH’s demised, there exists a strong degree of probability E
that the accounts of the CYH Estate prepared by the defendant not being
accurate.
The duty to keep clear and accurate accounts and to be ready to at all
times to render such accounts when called upon to do so is emphasised
in Halsbury’s Laws of England (4th Ed) at para 1551 and referred to with F
approval by the Court of Appeal in Damayanti Kantilal Doshi & Ors v.
Jigarlal Kantilal Doshi & Ors (supra).
[58] However, I am of the opinion that the legal fees incurred by the
defendant and legal fees for the Federal Court’s case were a genuine attempt
by the defendant to resolve a dispute between the beneficiaries and the G
administrator. This would be an appropriate expense to ensure that the issue
is resolved before a court of law. However, the other expenses were not
validly incurred and are beyond the scope of the will and her duties as the
administrator of the estate of the deceased.
[59] I also find that the defendant had wrongfully favoured the other H
beneficiaries of the estate by making distributions to them and – their next
of kin. I reproduce the sums of monies that were paid to the Eric Wong and
his next of kin. I find that the defendant has chosen not to pay any sums to
the plaintiff without any justification.
I
A
No. Date Description Outflow (RM)
1. 23.3.2011 - Amount advanced to Eric Wong 130,162.33
5.5.2015 (2011-2015)
2. 1.5.2015 - Distribution of receipt to Eric’s 16,000.00
31.8.2016 next of kin
B
3. 1.9.2016 - Distribution of receipt to Eric’s 59,800.00
31.7.2018 next of kin (with rental of coffee
shop and magnum)
4. 27.1.2016 Payment to Eric Wong Yee 465,706.61
Leong
C
5. 5.2.2016 Payment to Ellen Wong Yee Lin 514,150.97
[60] The other important factor that I have taken into account is that the
defendant has not supported these payments without any documentation and
D
without any legal justification. The defendant is duty bound to act in
accordance with the terms of the will and should not put her personal views
and grievances to colour the administration of the estate. I appreciate the
concern raised by the defendant but the issue of the PSSB license is no longer
an alive issue and should have been disregarded by her. These issues have
E been decided by judgment of the courts hearing the earlier suits between the
parties. It is not appropriate for the defendant to disregard the said judgment
and to colour the terms of the distribution based on her personal views. The
defendant chose to incur expenses that were not part and parcel of the
administration of the estate. I find that these expenses should be reimbursed
F by her to the estate.
[61] Regarding the missing documents, the defendant explained that the
documents were missing caused by termites and produced pictures of the files
that were allegedly eaten by termites. However, I find that the request for
accounts was made many times by the plaintiff and had even caused the
G plaintiff to issue a proceeding before to seek such accounts from the
defendant. The defendant chose not to even produce documents even as early
as 2017.
[62] The defendant had also failed to provide the accounts of the estate to
the plaintiff despite repeated attempts made by the plaintiff for her to disclose
H
the details of the estate. As I have said earlier, the defendant has a duty to
render accounts or periodic accounts to the beneficiaries of the estate. This
would include the plaintiff and the accounts were only disclosed by the
defendant after the order of the court. The conduct of the defendant clearly
shows a lack of candour contrary to what is expected of a trustee that must
I act in the best interest of the beneficiaries in accordance with the terms of
the will.
[63] Therefore, I find that the defendant did not act appropriately in the A
administration of the estate. I find that the administration of the estate was
undertaken not in accordance with the terms of the will but solely according
to her personal views, bias and personal grievances against the plaintiff.
[64] I also find that the defendant was less than candid when she gave
B
evidence during the course of the trial. She had continuously refused to
answer questions put by counsel for the plaintiff and even by this court. She
was evasive and her answers, I find, were short of the truth. Therefore, in
view of the evasive nature of the defendant and her conduct during the course
of the trial, including failure to provide documents as requested by the
plaintiff and pursuant to the orders of court, I prefer the evidence of the C
plaintiff to hers. I find that she is not a credible witness and that her actions
are short of what would have been expected of a trustee/administrator acting
in accordance with her duties in law. For instance, the excerpts of her
evidence during cross-examination are as follows:
Q : Miss Cynthia, coming to the account, would you confirm despite D
repeated request by the plaintiff, you did not render the account to
the plaintiff until the court order was obtained?
A : I disagree.
Q : When was the first time you render the account to the plaintiff?
E
A : In 2015.
Q : What was the account?
A : It was done by the forensic accountant. Yes before we had any legal
proceeding because we wanted to settle everything amicably. And
all beneficiary accordingly is agreeable to take action against Yvonne F
for the Pekeliling Service Station. So we didn’t have any money
except for the assets. If you were look at the page 13, Pekeliling
Service is an asset that is why I only administrating to the estate of
my father. I try to administer as correct as possible and PJ wong is
also an asset
G
Q : You just answer the question otherwise we will be here the whole
day you know, just answer what is relevant. You said you have the
forensic accountant to do the account and you rendered the
account. Do you know this document? Forensic account report?
A : Yes it is in the affidavit. H
Q : Can I refer you to page.
A : 238
Q : this is the forensic report prepared by your accountant is it?
A : My forensic accountant before we had any legal recourse so we I
didn’t took any legal recourse because as it is the asset ... in the
administrator ...
A Q : Miss Cynthia can you hold on.

A : I will always bound to do anything you know to be correct.
YA: Madam.
C : All the administration.
B YA: Madam wong .. Madam ...
C : Yes sorry
YA: Listen to the question, you answer the question.
C : Okay.
C
YA : Let the lawyer ask the question, if not you will be here until the end
of time. Mr Thangaraj continue ask her a question.
C : Sorry Yang Arif.
Q : Thank you My Lord. What is the name of the accountant?
D A : Uma. But we did not use her at the moment because it was out of
her capability, we just wanted to.
Q : I only ask you about the accountant’s name. Uma is it ? U-M-A?
A : Yes, I think everybody is agreeable
E Q : Miss Cynthia listen.
A : I think all the beneficiaries are agreeable.
YA: Madam ... if you continue like this I will have to make a finding that
you are not telling the truth you know, you are not answering the
question. Do you want me to make the finding?
F
C : No.
YA: So I am warning you the second time listen to the question, answer
the question. He only asks you simple questions.
Q : I refer you to page 244, look at your claim here the last paragraph...
G basically this report refers to the loss of revenue because the license
of the Shell station license be cancelled by Shell, is that correct?
A : Yes.
Q : Here the estate claim is RM1,143,682.65. Is that correct?
H A : This is agreeable by all beneficiaries.

Q : Miss Cynthia, I am not asking the beneficiaries is agreeable or not.
Answer the question.
A : Anyway by the way, I would like to refer you to..
I YA : Miss Cynthia, this is the third time I am warning you.
C : I am sorry YA.
Q : Ms Cynthia, can I put the question again. Based on what is said in A

paragraph 143, you agree that the civil suit that you filed in 2016 was
dismissed by the High Court?
A : Yes, it was dismissed as in the ...
Q : Ms Cynthia, that’s:
B
A : We lost the license, is it, is that what you mean?
YA : Mr Thangaraj, it’s ok, I will take notice of this.
Q : Miss Cynthia, you agree that during the matter pending in court of
appeal, the plaintiff requested you as the administrator to provide
accounts in respect of the estate of Wong Poi Fong, there were C
letters written.
A : Which case sorry? Which case you are looking at? Is it 2006 or 2017?
Or todays 2021? I am sorry I’m a bit confused.
Q : When the matter was pending in Court of Appeal ...
D
A : Which case please?
Q : I refer you to page 113
A : this is the second case right, 2017?
Q : Miss Cynthia, can you listen to the question? This letter was written
E
to you, are you aware of this letter?
A : Definitely.
Q : You was asked to provide the accounts which you received as
administrator.
A : This is the second case I took against her not she took against me. F
Q : Can you listen to the question, look at this letter, are you aware of
the content of this letter?
A : This case under 2004 case?
YA : Miss Cynthia ... this is the 4th time I’ve told you, dengar soalan, G
when he finish, answer.
Q : Do you agree you are the one who prepares this account? Do you
agree the basis of the termination is basically due to the termination
of the pekeliling services? And the license is subject plaintiff’s firm
YW Global? Is that correct? H
A : I do this because ...
Q : Miss Cynthia, can you answer my question?
A : This is an asset of the estate, so ...
YA : Miss Cynthia, this is my fifth time I ask you to listen to the question I
and answer.
A C : But I don’t agree with his ...

YA : If you don’t agree just say you don’t agree. Because the question
is very simple.
YA: In another word you sold the house to the third party since the
third party purchased it so the money went to where?
B
A : Went to Pekeliling to offset the overdraft.
YA : This event occurred after the death? Isn’t it?
A : This is after Pekeliling went into trouble.
YA : No, no. Answer the question. You have the habit of not answering
C
the question Madam. The question is it occurred after his death,
isn’t it?
A : Yes correct.
YA : Okay. That is all I want to know.
D
[65] Another important factor that I have considered, is the failure of the
defendant to provide the original documents sought by the plaintiff. The
documents sought are:
(i) The original copy of the acknowledgment and agreement undated that
were attached as exh. CWYWM-12.
E
(ii) Original letter from the first defendant dated 11 December 2016 that
was allegedly accepted by the plaintiff and exhibited as exh. YWY-24.
[66] The defendant contends that she needed time to seek the originals that
were allegedly kept at her office and due to the difficulties posed by the
F MCO. However, after disclosing the existence of these documents in the
defendant’s affidavit affirmed on 6 July 2020 and retained by her at her
storeroom or at her office, she now alleges that it was destroyed by thermites.
This allegation only arose after the plaintiff wanted to have the said
documents inspected by a handwriting expert.
G
[67] I find that the explanation given by the defendant is suspicious and
indicate an intention to hide the true nature of the said document especially
(i) the original copy of the acknowledgment and agreement undated that were
attached as exh. CWYWM-12; and (ii) the original letter from the first
defendant dated 11 December 2016 that was allegedly accepted by the
H plaintiff and exhibited as exh. YWY-24. This to me indicate, on a balance
of probabilities, that the said documents were fraudulently created by the
defendant to justify her actions. I also find that she had created these
documents as an attempt to persuade this court that the beneficiaries had
agreed to what she had undertaken with the assets of the estate.
I
[68] My finding is also supported by the findings of Lim Yok Chaw as A

contained in the affidavit in encl. 81. Lim Yok Chaw is the expert appointed
by the plaintiff to consider and verify whether the documents identified
earlier were genuine or otherwise. His finding indicates that there is “high
probability that the writer (plaintiff) of the specimen signatures did not write
the disputed signature.” There is no evidence from the defendant to B
contradict this. The plaintiff herself denies ever agreeing or putting her
signature to the imputed documents.
[69] Therefore, I find that the said documents were fictitiously created by
the defendant. She had relied on them to support her contention that parties
had agreed to all the expenses incurred by her. C
Defendant’s Defences
Res Judicata – These Issues Should Have Been Raised In The Earlier
Originating Summons No. WA-24NCVC-2004-11-2017
[70] The defendant contends that the plaintiff should have raised these D
issues before the court in the earlier originating summons. This is also based
on the doctrine of res judicata as referred to earlier.
[71] However, I do not find that the said doctrine precludes the plaintiff
from pursuing her claim to have the unlawful expenses to be returned by the
E
defendant into the estate of the deceased. This is a separate and different
cause of action available to the plaintiff. Furthermore, the plaintiff would
only have known of these wrongs by the defendant after the accounts were
shared by her pursuant to the order of court made in the aforesaid originating
summons.
F
[72] Res Judicata does not apply unless all the facts were the same, the same
issues were raised and disposed of and all available evidence were available
to the litigants in the earlier suit. I do not believe that this doctrine is
applicable in this case. I refer to the decision of Lord Sumption in the UK
Supreme Court’s case of Virgin Atlantic Airways Limited v. Zodiac Seats UK
G
Limited [2013] UKSC 46 where he stated:
17. Res judicata is a portmanteau term which is used to describe a number
of different legal principles with different juridical origins. As with other
such expressions, the label tends to distract attention from the contents
of the bottle. The first principle is that once a cause of action has been
held to exist or not to exist, that outcome may not be challenged by either H
party in subsequent proceedings. This is “cause of action estoppel”. It is
properly described as a form of estoppel precluding a party from
challenging the same cause of action in subsequent proceedings.
Secondly, there is the principle, which is not easily described as a species
of estoppel, that where the claimant succeeded in the first action and does
I
not challenge the outcome, he may not bring a second action on the same
A cause of action, for example to recover further damages: see Conquer v. Boot
[1928] 2 KB 336. Third, there is the doctrine of merger, which treats a
cause of action as extinguished once judgment has been given upon it,
and the claimant’s sole right as being a right upon the judgment. Although
this produces the same effect as the second principle, it is in reality a
substantive rule about the legal effect of an English judgment, which is
B regarded as “of a higher nature” and therefore as superseding the
underlying cause of action: see King v. Hoare (1844) 13 M & W 494, 504
(Parke B). At common law, it did not apply to foreign judgments, although
every other principle of res judicata does. However, a corresponding rule
has applied by statute to foreign judgments since 1982: see Civil
Jurisdiction and Judgments Act 1982, section 34. Fourth, there is the
C
principle that even where the cause of action is not the same in the later
action as it was in the earlier one, some issue which is necessarily common
to both was decided on the earlier occasion and is binding on the parties:
Duchess of Kingston’s Case (1776) 20 St Tr 355. “Issue estoppel” was the
expression devised to describe this principle by Higgins J in Hoysted
D
v. Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by
Diplock LJ in Thoday v. Thoday [1964] P 181, 197-198. Fifth, there is the
principle first formulated by Wigram V-C in Henderson v. Henderson (1843) 3 Hare
100, 115, which precludes a party from raising in subsequent proceedings matters
which were not, but could and should have been raised in the earlier ones. Finally,
there is the more general procedural rule against abusive proceedings,
E which may be regarded as the policy underlying all of the above principles
with the possible exception of the doctrine of merger.
(emphasis added)
In this case, it is obvious that the evidence of the wrongdoing was only
disclosed subsequently by the defendant after the decision in the earlier suit.
F Therefore, the doctrine of res judicata in all of the guises suggested by Lord
Sumption does not apply to the facts of this case.
The Plaintiff Is Alleged To Be Approbating And Reprobating By
Accepting The Cash Book
G [73] The second argument put forward by the defendant’s counsel concerns
the allegation that the plaintiff is blowing hot and cold at the same time.
[74] The defendant contends that the plaintiff cannot on the one hand
accept the validity of the cash book and at the same time challenge it. I find
that this argument is misplaced. The plaintiff is not alleging that the cash
H book accounts as simply wrong but alleges that the said expenses as contained
and recorded were not made in accordance with the terms of the will and not
in accordance with the fiduciary duties owed by the defendant as the
administrator.
[75] Therefore, I find that the plaintiff is entitled to challenge the expenses
I
incurred by the defendant and whether they were made in accordance with
the will and whether these expenses were made lawfully by the defendant.
[76] Note that the other issues raised by the defendant will be dealt with A
in the appropriate parts of this judgment hereinafter.
Issues 1, 3 And 4 – What Are The Amounts Due To The Plaintiff
[77] Given the above, I will now deal with the penultimate issue before me
that has been unnecessarily convoluted by parties. I find that the penultimate B
issue is what is the amount that should be paid by the defendant, as the
administrator, to the plaintiff.
[78] On this issue, I find it would be inappropriate to make such orders at
this juncture as all of the evidence of the assets and the bona fide expenses of
the estate are not before me. The plaintiff relies on O. 80 of the Rules of the C
High Court 1980 to state that this court has the power to administer the estate
and give directions as to the administration of the same.
[79] However, I am of the view that the orders sought by the plaintiff are
beyond the scope of the powers of this court. It is not for this court to
administer the estate. If the plaintiff is unhappy with the administrator and D
finds that the administrator had misused her powers, then the right position
to undertake is to remove her in accordance with the provisions under the
Rules of the High Court and under the Probate and Administration Act 1959.
[80] Payments from assets of the estate must be undertaken in accordance
E
with the terms of the will and law. The creditors must first be paid and all
lawful outgoings must be considered. This cannot be done as suggested by
the plaintiff and should not be administered by court.
[81] I also note that that the defendant contends that there is a sum of
RM444,100 that is allegedly due from PSSB to the estate. With due respect F
to counsel for the defendant, the claims for these sums even if they exist, lie
solely against PSSB and not against the plaintiff. PSSB is a separate entity that
should not be confused with the plaintiff. The issues concerning PSSB with
the plaintiff have been fully dealt with in court in the aforesaid suits earlier
between parties. I do believe that it would be unlawful for this court to now
G
reopen the same issues again as suggested by the defendant’s counsel.
[82] Furthermore, if the defendant believes that the value of shares in PSSB
should be paid by the plaintiff to the defendant for whatever reason, then I
repeat this should have been raised in the earlier oppression suit. This claim
was resolved in favour of the plaintiff and should not be reopened again. I H
find that the defendant continues her attempt to reopen litigation on issues
that have been decided by the courts earlier. This also appears in the conduct
of the defendant in administration of the estate.
[83] The issue concerning PJ (Wong) is also another red herring by the
defendant to evade the reality of her failure to comply with her duties as the I
administrator of the estate. As I have found earlier, the current PJ (Wong)
partnership is a new partnership that should not be confused with the earlier
A partnership that ceased upon the death of the deceased. Therefore, the estate
has no claim to the proceeds from the new PJ (Wong) partnership. This was
even explained by the plaintiff during cross-examination when she explained
that as on the death of the deceased, the shares in PJ (Wong) partnership have
been transferred to each of the beneficiaries.
B
[84] As I have said above, as of 15 October 2004, a new partnership was
set up consisting of (i) Lim Chin Beng, who remained a partner from the
original partnership, (ii) Wong Yee Mei @ Cynthia (defendant), (iii) Yvonne
Wong Yee Woon (plaintiff) and (iv) Eric Wong Yee Leong. The
beneficiaries had also been drawing each of their shares from the proceeds
C of the said partnership.
[85] In the circumstances, I find that the issues concerning PSSB and the
PJ (Wong) are irrelevant for the purposes of these proceedings. I find that
the defendant does not understand her duties as the administrator and
believes that these entities should operate as if the deceased were still alive.
D
This position is wrong and should be rectified.
[86] However, I do not find it appropriate for this court to decide as to the
amount that should be paid to the defendant. This should be done based on
a full investigation as to the (i) assets of the estate, (ii) debts of the estate and
E
(iii) the amount that should be distributed to the beneficiaries based on the
terms of the will. This should be undertaken by the defendant in accordance
with the requirements of the law and under the terms of the will.
[87] Therefore, despite the existence of the cash book prepared and
disclosed, I am of the opinion, that since there is lack of probity by the
F defendant, a further reconciliation of the estate accounts has to be taken
before any order for payment is made. After it is only the cash book and not
the full ledger of the estate that should laid down the assets, liabilities and
eventual amounts that should then be distributed between the beneficiaries.
Appropriate Remedies Based On The Circumstances Of This Case
G
[88] I find that the defendant acted as if the estate was under her own
personal dominion and she was entitled to disregard decisions of the courts,
the terms of the will and applicable law. I am of the opinion she has in fact
acted contrary to her duties and this should be rectified in this suit. It is for
the purpose of rectifying the errors made by the defendant that I make the
H orders below.
[89] During the proceedings, the plaintiff did indicate to me at an early
stage of the trial that they have chosen not to pursue prayer (1) in its
originating summons. This is due to the procedural error by the plaintiff’s
solicitors not to file the necessary application under O. 72 r. 7 to cite the
I
defendant to bring into and leave at the Registry the Grant of Probate.
See Siti Fatihah Diman & Ors v. Diman Hassan & Ors [2021] 1 LNS 2055.
[90] However, in view of the conduct of the defendant in the administration A

of the estate and the need to finally determine the dispute between parties as
well as the requirement to finally administer the estate in accordance with
the terms of the will and law, I invoke my powers to remove the defendant
as an administrator of the estate.
B
[91] I find that if she continues to administer the estate, it will remain
unresolved, and parties will continue to biker and dispute until the end of
time. Further litigation may ensue, and such a course of action is not in the
best interest of the estate and the beneficiaries.
[92] I find that the conduct of the defendant as shown by the plaintiff in C
these proceedings by (i) causing monies of the estate to be utilised without
justification in law, (ii) ignoring the rights of beneficiaries and (iii) ignoring
orders made by our courts indicate to me an objectively sufficient cause to
exercise my powers to remove the defendant as an administrator of the estate.
It is the welfare and interests of the beneficiaries that are paramount, and I
D
find that the defendant has put her personal feelings and opinion first in the
administration of the estate. To me, the evidence adduced shows an
objectively strong case or at the very least a reasonable suspicion that the
affairs of the estate have not been administered appropriately in accordance
with the law.
E
[93] My opinion above is guided by s. 34 of the Probate and
Administration Act 1959 and s. 40 of the Trustee Act 1949 which empowers
this court with sufficient authority to remove and appoint a new
administrator or administrator in the place of the defendant. I also refer to
the test laid down to invoke such powers in Ligar Fernandez v. Eric Claude
F
Cooke [2002] 6 CLJ 152; Damayanti Kantilal Doshi & Ors v. Jigarlal Kantilal
Doshi & Ors [1998] 4 CLJ 81; Re Khoo Boo Gong, Decd Khoo Teng Seong
v. Teoh Chooi Ghim & Ors [1981] 1 LNS 78 and Tan Kah Fatt & Anor v. Tan
Ying & Another Appeal [2021] 1 LNS 264.
[94] I quote the judgment of the Court of Appeal in Tan Kah Fatt & Anor
G
v. Tan Ying & Another Appeal [2021] 1 LNS 264, where it is reported:
[62] In determining whether Tan Kah Fatt has discharged his duty as an
administrator responsibly, counsel for Tan Ying submitted the learned JC
was correct in ordering the removal of Tan Kah Fatt by referring to the
case of Ligar Fernandez v. Eric Claude Cooke [20021 6 CLJ 152; [2002] 5 MLJ
17, particularly to p. 183 C-D as follows: H
Learned counsel had argued, and I accept, that applying the

objective test, all that is needed is for the plaintiff to adduce
sufficient evidence to raise a strong suspicion of the defendant’s
inaction, want of diligence and honesty, or a conflict of interest
situation or inability to act to invoke this court’s jurisdiction under I
s. 34 of the PAA and allow the reliefs sought. The allegations for
consideration are thus, a question of facts to be determined by this
court on an objective test.
A It is immaterial therefore, if the allegations are actually believed or not,

so long as it can be objective determined that they raised a reasonable
suspicion, then the plaintiff would have succeeded.
[63] In Ligar Fernandez (supra), the plaintiff sought 2 reliefs: to revoke the
grant of probate to the defendant and to remove the defendant’s
B appointment as the administrator and trustee of the estate of the
deceased. The 1st relief which the plaintiff sought was under s. 34 of the
Probate and Administration Act 1959 (‘the PAA’) which states:
Any probate or letters of administration may be revoked or
amended for any sufficient cause.
C In this instant appeal, it is an undisputed fact that Tan Kah Fatt and Tan
Ying are appointed co-administrators pursuant to the LA and Tan Ying
is seeking to remove Tan Kah Fatt as administrator.
[64] We are of the considered opinion that the learned JC was correct in
adopting the approach taken by the High Court in Ligar Fernandez as
D encapsulated in the passage reproduced in para 62 above. The High Court
in Ligar Fernandez did so after taking into account that the Court of Appeal
in Damayanti Kantilal Doshi & Ors v. Jigarlal Katilal Doshi & Ors [1998] 4 CLJ
81; [1998] 4 MLJ 268 had followed the test applied by the Federal Court
in the case of Re Khoo Boo Gong, deed Khoo Theng Seong
v. Teoh Chooi Ghim & Ors [1981] 1 LNS 78; [1981] 2 MLJ 68. The High
E Court in Ligar Fernandez held that the phrase “sufficient cause” has not
been defined but the test is an objective test whereby the consideration
of the welfare and interests of the beneficiaries of an estate is the
paramount criterion in deciding whether there is sufficient cause to
interfere.
[65] We observed that the learned JC after taking cognisance that a
F
conflict of interest situation constituted a ground for the removal of an
administrator thereafter analysed whether there was sufficient evidence to
raise a strong or reasonable suspicion of such a conflict. At para 44 of the
Grounds, the learned JC stated that “Tan Kah Fatt in Suit-1 as the
co-administrator of the estate of the deceased and also sitting as a director of the said
G companies had given his consent for the plaintiffs in Suit-2 to proceed against the
estate of the deceased which clearly supports the contention by Tan Ying in Suit-1
that Tan Kah Fatt is in a position of conflict and ought to be removed immediately.”
(emphasis added)
[95] Applying the above test, I find sufficient cause to remove the
H defendant from her position as the administrator of the estate.
Orders Of This Court
[96] Given the above, I make the following orders:
(i) The defendant is removed from her position as the administrator of the
I estate and that Amanah Raya Berhad is appointed as an administer of the
estate with the will annexed and the costs of the said administration will
be borne from the assets of the estate.
(ii) The defendant is directed to produce and surrender all documents A

relating to the administration of the estate of the deceased to Amanah
Raya Berhad.
(iii) The defendant is directed to pay the sums of RM2,161,162.41 in her
personal capacity to the estate of the deceased.
B
(iv) The plaintiff is given liberty to apply for any further orders thereafter
if the above orders are not complied with.
(v) Costs of RM30,000 to be paid by the defendant personally to the
plaintiff.
C

Yvonne Wong Yee Woon V Wong Yee Mei & Anor

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Yvonne Wong Yee Woon V Wong Yee Mei & Anor

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786 Current Law Journal [2022] 6 CLJ

YVONNE WONG YEE WOON v. WONG YEE MEI & ANOR A

HIGH COURT MALAYA, KUALA LUMPUR

Abstract – An administrator of an estate owes specific duties to the

SUCCESSION: Administration of estate – Administrator – Beneficiary of estate

(3) The substantial payments made by the defendant as the administrator of A

A Case(s) referred to:

arrangement was consented to by the beneficiaries including the defendant A

A (b) the appellant (as the defendant) is an accounting party to the

[32] The duties owed by an executor to the beneficiaries were explained by A

A [34] If it is shown that the executor is guilty of any wrongdoing, then he

No. Date Description Outflow (RM)

A 8. 1.5.2016 - Distribution of receipts to Eric’s next 16,000

A Q : Miss Cynthia can you hold on.

H A : This is agreeable by all beneficiaries.

Q : Ms Cynthia, can I put the question again. Based on what is said in A

A C : But I don’t agree with his ...

[68] My finding is also supported by the findings of Lim Yok Chaw as A

[90] However, in view of the conduct of the defendant in the administration A

Learned counsel had argued, and I accept, that applying the

A It is immaterial therefore, if the allegations are actually believed or not,

(ii) The defendant is directed to produce and surrender all documents A

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