Malaysia was under the influence of the British and consequently the laws were

influenced by the British as well before independence. Subsequently, after independence, when
the Federal Constitution was implemented, matters measured at Federal and State level were
divided Federal List and the State List. Under trust law, List II of the Federal Constitution
evidently indicated that Islamic law, personal and family law of persons professing the religion
of Islam and the definition and regulation of charitable and religious trusts, except with respect to
the Federal Territories the appointment of trustees and for the incorporation of persons in
respect of Islamic religious and charitable endowments, functioning entirely inside the State.
1

This clearly displays that Malaysian trust law is delimited by the Federal Constitution and
the State. The States were controlled by Syariah Law before the colonial powers came into force
in Malaysia which was also variegated with Malay custom. Thus, after independence, the laws of
Malaysia had transformed and there was misperception when it came to matters pertaining trust.
It was debated that trust law ought to be synchronized by the Syariah Law and not Civil Law
because trust law had always been regulated under waqaf by Muslims. However, it is specified
that matters pertaining trusts are at all times handled by the civil courts.
Basically, there are three views in response to the effect of equity and rights, particularly
with the merging of the two courts into a single court with the 1875 High Court Judicature Act
and Ashburner illustrated that although the two streams of jurisdiction run in the same passage,
side by side and do not circulate their waters.
Alternatively, this collaboration of equity and common law has initiated confusion and
perhaps eliminated the requirement for a separation of equitable remedies from the common law,
as all can be protected at the common law level, for example the law has naturally developed to
defend justifiable rights, which are no longer flexible nonetheless verbalized by common law
precedent but equity does not prevail, because legal rights are a very significant conception and
Ashburner's metaphor is inappropriate, as well as the view that there is only a court ruled by
equity and in personam rights and not common law and in rem rights.
What can be actually said is that a century of fused jurisdiction has seen the systems
working more closely together; each altering, evolving and cultivating from contact with the

1
Federal Constitution, 9th Schedule, List II
other and enthusiastic to accept new concepts, developments and progresses notwithstanding
their origin. They are coming closer together but apparently they are not yet fused.
It was predicted that a court which applies the rules both of common law and of equity
would encounter conflicts where the common law rules would produce one result and equity
another.
2
Section 25 of the J udicature Act 1873 clearly portrays that equity would succeed if
conflict arose between these ideologies.
3
Nevertheless, this did not fuse the ideologies of
common law and equity, which still endure by way of dispersed organizations of rules. "The two
rivers have encountered and still run in the unchanged passage; nevertheless their waters do not
fuse" (Maitland).
Abdul Malik Ishak J in the case of Low Keang Guan v Sin Heap Lee-Marubeni Sdn
Bhd,
4
used the principles of Pennslyvania Shipping Co v Compagnie Nationale De
Navigation,
5
where Branson J stated that at common law if an innocent misrepresentation did not
afterwards become part of the contract its untruth was immaterial. In such a case equity might
intervene to avoid or rescind the contract. However, if the representation has been embodied in
the contract, there the courts of common law could deal with it according to whether it was a
condition entitling the injured party to repudiate the contract or a warranty giving rise only to an
action for damages. The illustration therefore becomes amalgamated in the higher contractual
right, and there was no need to resort to equity for rescission. The fusion of law and equity does
not affect this result.
Similarly, in the case of Low Yin Kow @ Loo Ah Bah v Tor Len Hua,
6
it was submitted that the
action was not maintainable in law on the ground that there is no precedent for asking a court to
grant an injunction against the execution of its own judgment especially in the circumstances
prevailing since the fusion of law and equity. Winslow J. held that dependence was placed on
the judgment in Wright v Redgrave
7
where it was held that on the principle that there should
never be conflicting proceedings going on at the same time in two branches of the court an

2
LawTeacher The Law Essay Professionals (2014) Modern Equity, Available at: http://www.lawteacher.net
(Accessed: 5th August 2014).
3
Judicature Act 1873, Section 25
4
[2005] 7 MLJ 216
5
(1936) 2 KBD 1167
6
[2002] MLJU 358
7
[1879 11 Ch D 24 ]
injunction to restrain proceedings in one branch would be refused on an action being brought in
another.