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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(CIVIL DIVISION)

[GUAMAN SIVIL NO. WA-24NCVC-125-01/2017]

BETWEEN

CHONG WAI FUI … PLAINTIFF

AND

SIEW PEH WAH … DEFENDANT

JUDGMENT

INTRODUCTION

[1] This is the Plaintiff’s application by way of an originating summons

under O.89 r.1 of the Rules of Court 2012 (“ROC”) for possession of a
house built on H.S. (M) 8332 No. Lot 6615 Mukim Petaling Tempat
Kampung Bharu Salak South Daerah Kuala Lumpur bearing the postal
address No. 322, Jalan 13, Salak South Baru, 57100 Kuala Lumpur (“the
Property”).

[2] The Plaintiff is the Defendant’s ex-husband. They were divorced in

March 2010 and the Defendant was awarded the care, custody and control
of their children.

[3] The Plaintiff is the registered owner of the Property. After their
divorce, the Plaintiff consented for the Defendant and their children to live
on the Property.

[4] The Defendant currently occupies the Property with the Plaintiff’s
and her children.
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THE PLAINTIFF’S CASE

[5] In March 2016, the Plaintiff appointed the Defendant as his attorney
in relation to the Property pursuant to a Power of Attorney dated 29 March
2016 registered at this Court under Registration No. 23545/16 on 31 March
2016 (“the PoA”).

[6] The Plaintiff avers in his affidavit in support of the application that
in November 2016, after seeing an advertisement for the sale of the
Property on the internet, the Plaintiff revoked the PoA and tried to meet
the Defendant to ask her to deliver vacant possession of the Property to
him. The Plaintiff, however, did not expressly state in the originating
summons or in his affidavit that he had revoked the consent he had given
for the Defendant and their children to live on the Property.

[7] The Defendant has to date refused to deliver possession of the

property to him.

[8] On the advice of his lawyers, the Plaintiff filed this application for
summary possession of the property by way of an originating summons
under O.89 of the ROC.

THE DEFENDANT’S CASE

[9] The Defendant claims that she is the beneficial owner of the Property
for the following reasons:

(a) In 2013, the Plaintiff wanted to purchase a property held under

Pajakan Mukim No. Hakmilik 5408, No. Lot 6030, Mukim
Petaling, Tempat Kg. Bharu Salak Selatan, Daerah Kuala
Lumpur, Negeri Wilayah Persekutuan with the postal address
No. 751, Jalan 32, Salak Selatan South, 57100 Kuala Lumpur
(“Property 751”) and asked the Defendant to assist him to
procure a loan for him to purchase Property 751 as the Plaintiff
was unable to obtain a housing loan in his own name.
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(b) At the time of Plaintiff’s request, the Defendant together with

their children were living in property owned by her at postal
address No. 32, Jalan 7/149D, Bandar Baru Sri Petaling, 57000
Kuala Lumpur (“Property 32”) and she had a housing loan
secured on Property 32.

(c) As the Defendant could not procure another housing loan to

purchase Property 751 for the Plaintiff with her existing
housing loan secured on Property 32, the Plaintiff suggested
that the Defendant:

(i) sell Property 32;

(ii) redeem the housing loan secured on Property 32;
(iii) procure a new housing loan; and
(iv) using the new housing loan to purchase Property 751 for
the Plaintiff’s benefit.

(d) In return for the Defendant’s purchase of Property 751, the

Plaintiff said that he would give the land on which the Property
is situated to the Defendant and that the Defendant use the
proceeds of the sale of Property 32 to build a house on the
Property for the Defendant and their children to occupy.

(e) Pursuant to the Plaintiff’s request, the Defendant then sold

Property 32, redeemed the housing loan secured on Property
32 and obtained a new housing loan to purchase Property 751.
The Defendant purchased Property 751 in her name and she is
the registered owner of Property 751.

(f) With the proceeds of the sale of Property 32, the Defendant
constructed a house on the Property and paid all the costs and
expenses associated with the construction of the house.
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[10] To protect their respective rights in the Property and Property 751,
the Plaintiff and the Defendant gave each other an irrevocable power of
attorney appointing each other as their respective attorneys in relation to
the Property and Property 751 on 29 March 2016. The Plaintiff’s lawyers,
Messrs John & Associates prepared both irrevocable powers of attorney.
The Defendant avers in her affidavit in reply dated 3 March 2017 that
Messrs John & Associates has to date failed to provide the Defendant with
a copy of both powers of attorney.

[11] It is the Defendant’s case that the Plaintiff’s revocation of the PoA
is invalid because:

(a) the Plaintiff and his lawyer failed to inform the Court that the
PoA was irrevocable; and

(b) the Deed of Revocation was signed the Plaintiff alone. The
Defendant did not sign the Deed of Revocation of Power of
Attorney.

LAW

[12] O.89 governs summary proceedings for possession of land. O.89 r.1
states as below:

Proceedings to be brought by originating summons (O.89 r.1)

1. Where a person claims possession of land which he alleges is

occupied solely by a person or persons (not being a tenant or
tenants holding over after the termination of the tenancy) who
entered into or remained in occupation without his licence or
consent or that of any predecessor in title of his, the
proceedings may be brought by originating summons in
accordance with the provisions of this Order.
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[13] O.89 r.3 requires the Plaintiff to support his application with an
affidavit stating the items detailed in sub-rule (1)(a) to (c). O.89 r.3 states
as below:

Affidavit in support (O.89 r.3)

3. (1) The plaintiff shall file in support of the originating

summons an affidavit stating-

(a) his interest in the land;

(b) the circumstances in which the land has been occupied

without licence or consent and in which his claim to
possession arises; and

(c) that he does not know the name of any person occupying
the land who is not named in the summons.

(2) Where the plaintiff is unable, after taking reasonable steps, to

identify every person occupying the land for the purpose of making
him a defendant, the plaintiff shall state in his affidavit that he has
taken reasonable steps (describing them) to identify the persons
occupying the land who are not named in the summons.

[14] The law governing application for possession under O.89 is well
settled. O.89 is in pari materia with the previous Order 89 of the Rules of
High Court 1980. The Supreme Court in Bohari bin Taib & Ors v.
Pengarah Tanah Galian Selangor [1991] 1 CLJ 647; [1991] 1 MLJ 344
and Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1CLJ 313; [1994] 1
MLJ 89, clearly stated that for the purpose of a summary procedure under
O.89 RHC 1980, a distinction must be made between squatters simpliciter
who have no rights whatsoever, and occupiers with licence or consent, as
well as tenants and licensees holding over.
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[15] Mohamed Azmi SCJ delivering the judgment of the Supreme Court
in Bohari bin Taib held that:

For the purpose of the summary procedure under O 89 a distinction

should be made between squatters simpliciter who have no rights
whatsoever and occupiers with licence or consent, as well as tenants
and licensees holding over.

[16] In Chiu Wing Wa, the Supreme Court in a judgment again delivered
by Mohamed Azmi SCJ held that for applications under O.89, the Court is
not relieved from its duty to consider whether the tenants are trespassers
pure and simple for which the summary procedure under O 89 has been
specially introduced, or whether they are tenants holding over either from
the previous or present landlords after the termination of the tenancy. His
Lordship said that the distinction is relevant for the purpose of O 89(1) of
the RHC. He said that:

The words in the parentheses [in O 89] are crucial. If the appellants
are tenants holding over after termination of the monthly tenancy by
the notice to quit, then O 89 is inapplicable. It should be noted that
O 89 has its origin in O 113 of the English Rules, and the principle
behind McPhail v Persons, Names Unknown; Bristol Corp v Ross
[1973]Ch 447; [1973] 3 All ER 393; [1973] 3 WLR 71 is clearly to
limit the operation of the summary procedure of O 89 to trespassers
pure and simple, whether known or unknown. In our view, the
summary procedure should not be allowed to apply where the
entry to the land in the first instance is lawful, for in such a
situation, there must necessarily be the facts and the law for
determination by evidence viva voce. In this connection, we
approve the judgment of Wan Adnan J in Hotel Ambassador (M) Sdn
Bhd v Seapower (M) Sdn Bhd [1991] 1 MLJ 221; [1991] 1 MLJ 404
9 as discussed by Edgar Joseph Jr J (as he then was) at p 224, and
upheld by the Supreme Court.
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………………………………

The summary procedure under O 89 is governed by the same

principles as those under O 14 of the RHC 1980. To entitle a
defendant to a trial, all he needs to do is to show that there is a
triable issue of law or fact. It is only in clear cases of trespass
that a summary order can be made under O 89.

(Emphasis mine)

[17] The principles governing an application under O.89 laid out by the
Supreme Court in Chiu Wing Wan was followed in Fullrise Resources
Sdn. Bhd. v. Ng Ah Toh & Anor [2004] MLJU 187, where Low Hop Bing J
(as he then was) he said:

The Supreme Court in Chiu Wing Wan, through the judgment of

Mohamed Azmi SCJ (as he then was) enunciated the following
principles:

(1) the summary procedure under O.89 should not be

allowed to apply where the entry to the land in the first
instance is lawful, for in such a situation, there must
necessarily be the facts and the law for determination by
evidence viva voce;

(2) the summary procedure under O.89 is governed by the

same principles as those under O.14;

(3) to entitle a defendant to a trial, all the defendant needs

to do is show that there is a triable issue of law or fact;

(4) it is only in clear cases of trespass that a summary order

can be order made under O.89;

(5) an application under O.89 should be dismissed if there

are triable issues of fact and law, as such an application
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for vacant possession ought to have been commenced by

writ; and

(6) for the purpose of the summary procedure under O.89, a

distinction should be made between squatters simpliciter
who have no rights whatsoever and occupiers with
licence or consent, as well as tenants and licensees
holding over.

ANALYSIS

[18] Based on the Supreme Court decision in Chiu Wing Wan, this Court
must consider whether the Defendant and the parties’ children are
trespassers pure and simple for which the summary procedure under O, 89
has been specially introduced, or whether they are licensee’s holding over.

[19] It is not disputed that after their divorce, the Plaintiff had consented
for the Defendant and their children to stay in the Property. Therefore, the
Defendant’s entry onto the Property in the first instance was lawful and
she and the children are not trespassers pure and simple or squatters
simpliciter on the Property.

[20] For this reason alone, based on the decisions of the Supreme Court
in Bohari bin Taib and Chiu Wing Wan, I must dismiss the Plaintiff’s
application for possession under O.89. As Mohamed Azmi SCJ said in
Chiu Wing Wan “it is only in clear cases of trespass that a summary order
can be made under O 89”.

[21] The Defendant has also shown that there are triable issues. The
triable issues are whether (a) she has a beneficial interest in Property; and
(b) whether the revocation of the PoA was valid at law. A further issue is
if the revocation of the POA was valid whether it amounted to a withdrawal
of the consent.
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[22] If the revocation of the POA is valid and amounts to withdrawal of

consent, the Defendant and their children would be licensees holding over.
If the revocation is not valid and/or does not amount to withdrawal of
consent, the Defendant and their children would still be licensees of the
Property.

[23] Either way, based on the Supreme Court decisions in Bohari bin
Taib and Chiu Wing Wan, the Plaintiff’s application under O. 89 has to
be dismissed because the Defendant and their children are not squatters
simpliciter and there are triable issues of facts and law.

DECISION

[24] Accordingly, I dismiss the Plaintiff’s application with costs of

RM5,000 to be paid by the Plaintiff to the Defendant forthwith subject to
the payment of the allocatur fee.

ORDER

[25] So ordered accordingly.

Date: 29 May 2017

(FAIZAH JAMALUDIN)

Judicial Commissioner

High Court Kuala Lumpur

Counsel:

For the plaintiff - John Henry; M/s John Henry & Associate

For the defendant - Dennis Teoh; M/s K S Teoh & Co