tag:blogger.com,1999:blog-196483692024-03-29T21:39:10.156+08:00Malaysian Case LawsUnknownnoreply@blogger.comBlogger27125tag:blogger.com,1999:blog-19648369.post-1133931586520533472010-03-11T14:05:00.000+08:002010-03-11T14:05:43.683+08:00Law updates - General (Malaysian law unless otherwise stated)<div style="text-align: center;"><b>*Abbreviations</b> </div><div style="text-align: center;"> HC = high court </div><div style="text-align: center;">COA = court of appeal </div><div style="text-align: center;">FC = federal court</div><div style="text-align: center;"></div><div style="text-align: center;"><b></b> <b> </b></div><div style="text-align: center;"><b>Ngu Toh Tung & 7 Ors v Superintendent of Lands & Survey, Kuching Division, Kuching & Anor</b> <b>[COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">administrative law; land acquisition</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>J & C New Poly Catering Sdn Bhd v TTMP Bakun Consortium Sdn Bhd</b> <b>[HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The general rule is that a high court will not issue an injunction to restrain the execution of another high court order. However, the high court possesses inherent jurisdiction to do justice in each case. Thus, an interim injunction could be issued to restrain execution of a decree if it could be shown that the execution would result in an injury to the party against whom the execution was directed at. As a matter of practice, applications for a garnishee order are made before the sar or dr and the decision is appealable to a judge in chambers. Even though under the rules of the high court 1980, service of originating process or other court documents on a corporation or company should be done at the registered address, if it was within the knowledge of the solicitor that was going to effect service that the registered address of the defendant was closed or unmanned, it was incumbent upon the solicitor to inform the defendant. On the facts, the service of the writ was irregular thus affecting the default judgment in question. In any event, the default judgment can be set aside. The issue whether the defendant's money deposited in a current account with the garnishee was a debt owing by the garnishee to the defendant ought to be put to trial. It is a well settled principle that a shareholder in a company has no say in the running of company affairs. The function is the function of the board of directors or anyone of the directors assigned by the board of directors of the company - Udam who was no longer a director of the company had no authority to decide for the company or move the court.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>MR Properties Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b> </b> Under the scheme of taxation in Malaysia, there is no possibility of an overlap between tax payable under the ITA and under the RPGT as the latter is only levied in a situation where the ITA is not applicable. Thus if the gain is from the sale of an asset and was found to be in the nature of income, then the assessment cannot be under the RPGT because such gain should be taxed under the ITA. There is therefore no possibility of a taxpayer being liable to both taxes on the same gain. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Abdul Razak bin Baharudin & 7 Ors v Ketua polis Negara & 2 Ors (and another appeal) [FC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Any challenge against an act done by the minister under s 8 of the ISA may only be mounted on the grounds of procedural non-compliance. The crux of the appellants' first ground of appeal was that the grounds of detention did not fall within the scope of the ISA. This was an allusion to the detention orders being issued mala fide. However, this did not fall within the ambit of procedural non-compliance. There is no procedural requirement provided by law that the minister must first consider criminal prosecution before issuing a detention order. This issue, as raised by the appellants, related more to the issue of mala fide, which could not constitute a proper challenge to the detention orders. There is no procedural requirement that the report to the minister be disclosed. This ground was used, in effect, to challenge the bona fides of the detention orders which was not available to the appellants. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Public Prosecutor v Tan TATT EEK [FC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The high court's drawing of inference, based on the respondent's conduct and appearance, that he knew the nature of the contents of the plastic bag was not justified on the evidence. The factum of the respondent having dropped his bag and displaying a reaction of shock is equally consistent of that of an innocent man. The court must be provided with clear evidence of a set of facts which leave no other possible, or alternative, inference that may reasonably be drawn. In the absence of such evidence, the court cannot but hold that there are other inferences possible in the circumstances. Hence, the fact that the respondent dropped the bag and being in a state of shock could not constitute knowledge of the contents of the plastic bag. There was insufficient evidence to support the inference of knowledge in instant case. In the absence of an express finding of possession, the learned judge ought not to have called upon the respondent to enter his defence on the charge of trafficking. The grounds relied on by the learned judge to find the respondent guilty of trafficking were untenable and unsustainable. At most, the prosecution had only proved custody and control of the plastic bag, and under s 37(d) of the DDA, the presumption could have been invoked for possession and knowledge of the nature of the drugs.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Sejahratul Dursina @ Chomel Binti Abdullah v Kerajaan Malaysia [FC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Whether a writ of habeas corpus could be issued in respect of a detainee who had been released - under both s 365 of the criminal procedure code and article 5(2) of the federal constitution, the only remedy provided for a person allegedly detained illegally is to be released. A person may only be released if his detention is found to be illegal or improper. Therefore, a writ of habeas corpus is only available to a person being physically detained unlawfully, i.e. in actual custody. Where a person has been released, the writ of habeas corpus becomes nugatory. Cheow Siong Chin is clear in that the restraint imposed by reason of an order of restricted residence did not constitute detention of such a nature that would attract the application of a writ of habeas corpus. A person subject to a restricted residence order is not being physically detained, imprisoned or in custody and as such, a writ of habeas corpus is not available to him. The appellant, being a restrictee rather than a detainee, could not avail herself of a writ of habeas corpus. A date of hearing and a date of decision cannot be separated since the date fixed for decision in fact forms part of the hearing. Even on a date fixed for decision, counsel generally seek, and are usually allowed, to make further submissions, clarifications, or to put forward a newly discovered authority. The hearing of an application would therefore include the date of decision.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Sayang Plantation Bhd v Koh Siak Poo [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">With the acceptance of the cheque by the appellant and without the deposit of the original title deeds, the appellant no longer had any lien over the subject land. The lien ceased to exist in fact and in equity from October 21, 2002 as regards the balance of RM62,249.13. Consequently, that balance of the judgment debt lost its character as a secured debt and the appellant had in law, by their letters made an election to recover such balance as an unsecured debt. The legal implication arising therefrom was that recourse under s 281(2) was no longer available to the appellant to realise the balance of the judgment debt plus interest because it was not a secured debt. Being an unsecured debt, the appellant would have to resort to other remedies available to enforce that part of the judgment. Since the lien ceased to exist from October 21, 2002, it followed that the appellant ceased to be entitled to the benefit of such lien from that date. Thus, the conclusion would be that the caveat served no protective function from that date, ought not to remain on the land register and ought to have been withdrawn forthwith, which the appellant was duty bound to do. The judge below would have been well justified under s 331(4)(a) to order its cancellation with effect from that date if in fact it had not subsequently been withdrawn. The caveat had in effect gravely curtailed the rights of the respondent as registered proprietor in that it wrongfully prevented him from dealing with the subject land over that period when the lien ceased to exist and with that, the appellant's entitlement to the benefits thereunder. Under such circumstance, the failure to withdraw the caveat before march 18, 2003 "has caused damage or loss" to the respondent as envisaged under s 331(4)(b). The appellant was liable to pay the respondent compensation for damage or loss caused to the latter from October 21, 2002 to march 18, 2003. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Bank of China v Ngan Ching Wen [HC]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The essence of the defendant's case was that the plaintiff owed him a further duty of care to sell the charged shares when the market was good. However, the defendant was vague about the dates when he alleged the charged shares should have been sold and failed to adduce any evidence of the market value of the charged shares on any specific date to justify his argument. The plaintiff as mortgagee and chargee of the shares owed no duty of care to the defendant as to the timing of the sale of the shares. The provisions of the memorandum of charge gave the plaintiff the right to determine when it chose to sell the security to realise the outstanding amount. This was a contractual right accorded to the plaintiff. The preliminary objection made by the defendant that the plaintiff's application was flawed because the plaintiff ought not to have included the words "and" between limbs (a) and (b) of order 18 r 19 of the RHC, was not one that was made on merits. Order 1A of the RHC clearly states, inter alia, that the court shall have regard to the justice of the case and not only to technical compliance of the rules in administering its provisions. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>HSBC Bank Malaysia Berhad (formerly known as HongKong Bank Malaysia Berhad) v LH Timber Products Sdn Bhd (formerly known as Ho Lim Sawmill Sdn Bhd) & 5 Ors [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">In order to challenge a summary judgment application, the defendant in a dispute needs to show that there is a triable issue as to the facts. It is not sufficient for the defendant to merely raise facts, which do not constitute a defence to the claim. Further, the defendant cannot assert a denial of indebtedness without providing proof thereof. As a general rule, any party who makes a formal admission, the said admission is generally conclusive for the purposes of the proceedings. The hire purchase facilities granted to the first defendant were subject to the terms and conditions of the said. Agreements and not governed by the provisions on the duty of facility providers to reduce damages under the act. From the evidence, it was apparent that the parties had agreed that the plaintiff was entitled to charge late interest charges and consequently, it was not open to the defendants to raise such an objection. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Rapidin bin Kamal v Pendakwa Raya [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">It is clear from the learned judge's decision that he was of the view that the appellant's application did not fall within the ambit of s 317 of the CPC. From the facts, the appellant failed to cross the first hurdle in s 317 when making the said application. Hence, it would be premature to consider whether the test as laid down in Che din b Ahmad had been complied with. There was also no reason to interfere with the decision of the learned high court judge as the power to admit additional evidence under s 317 is discretionary.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Syarikat Kemajuan Perumahan Negara Sdn Bhd v Lee Cheng & Anor [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Whatever principles and propositions enunciated in the authorities, must be considered in the light of those rules and regulations that were applicable. They cannot be of universal guide for all cases associated with late delivery of vacant possession of houses classified under the housing development (control and licensing) act 1966 except when the appropriate rules and regulations so applied are similar. In this case, it is without doubt that the 1989 regulations are applicable. Vacant possession with connection of water and electricity to the said building, must include the developer's duty to energize the water and electricity flow into the building. It is not sufficient for the developer to merely lay the connections for water and electricity between the building and the sub-station or water mains. Instead the developer must ensure at the time of delivery of vacant possession, that there is supply of water and electricity, ready to be tapped into the building. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Yit Kean Hong v Public Prosecutor [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">An appellate court will not interfere with the trial judge's discretion in matters of sentence unless the trial court erred in applying the correct principles of sentencing or had exercised that discretion incorrectly. It is an accepted rule of practice that a plea of guilty is a mitigating factor and that such plea would warrant between a 1/4 and 1/3 discount on the prison term provided by law. However, this is not a strict rule and the trial court may refuse a discount where public interest demands a deterrent sentence. Section 282(d) of the criminal procedure code provides that every sentence imposed shall take effect from the date on which it was passed unless the court passing the sentence otherwise directs. In this instance, it was clear that the learned trial judge had taken the appellant's guilty plea into account when reducing the maximum term of 20 years for each charge by 1/4 and imposing a 15-year term. The instant appeal involved 2 distinct offences with 2 separate victims. On the facts, the charge of attempted murder was not subsidiary to the charge of culpable homicide, although both offences were committed in the course of a single transaction. The appellant had acted cruelly and brutally against the defenseless victims and a reduction in sentence or an order that the terms of imprisonment run concurrently would be inappropriate in the public interest.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Ah San @ Goh Ah Soon v Majlis Bandaraya Ipoh [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Application for defendant to be compelled to issue certificate of fitness for shop lot. The redress sought by the plaintiff was clearly not available by way of an appeal to the appeal board pursuant to s 23 of the town and country planning act 1976 (TCP) which does not apply to the refusal, omission or neglect by the defendant to issue a certificate of fitness under the by-laws. The plaintiff was not precluded from seeking an order of mandamus so long as there was strict compliance with the rules of procedure and the requirements of the sra. The statutory appeal provision is inapplicable unless the plaintiff's grievance came within the ambit of s 23(3) of the TCP. The plaintiff's application for an order of mandamus was not properly made as leave of court as required under order 53 r 1(1) and (3) of the rules of high court 1980 (RHC), read with s 25 and paragraph 1 of the schedule to the courts of judicature act 1964. The plaintiff's contention that order 53 r 1(1) and (3) of the RHC was an inferior provision to s 44 of the sra, enabling her to seek relief without first having obtained leave was misplaced. Although the relief claimed by the plaintiff is substantive relief under the sra, the procedure for doing so is clearly spelt out in order 53 of the RHC. Even if the plaintiff did not require leave, the plaintiff's application would still be refused for the following reasons; the plaintiff was guilty of inordinate delay in filing the instant application, i.e. an unexplained delay of almost 5 years from the date her application for the certificate of fitness; the plaintiff's application was time barred under s 2(a) of the public authorities protection act 1948; the plaintiff's inequitable conduct in failing to disclose the existence of civil suit no 22-88-97; and on the facts, the plaintiff was guilty of unconscionable conduct. The plaintiff also failed to disclose that her application to modify the construction of the shop lot had been rejected by the defendant's architect. He who comes to equity must do so with clean hands, disclosing all the facts and background of the case that may assist the court in arriving at a just decision. There was admission by the plaintiff that the relief sought through the instant application could have been included in civil suit no 22-88-97. This was tantamount to an abuse of the process of court, leading to multiplicity of proceedings on the same subject matter, which had been authoritatively decided by a court of co-ordinate jurisdiction and confirmed by the court of appeal. The machinery of the court should not be abused in order that a plaintiff may divide his case into separate compartments to suit his own needs and motives.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Assets Investments Pte Limited v OSK Securities Berhad [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The correspondence between the parties sufficiently evinced an intention of the parties to enter into a contractual relationship and the terms of the agreement as implied from the said correspondence stipulated that the defendant would, for a management fee, procure and manage an asset swap transaction with a third party, for the plaintiff. Based on its oral representations to the plaintiff, the defendant owed a duty of care to the plaintiff in both contract and tort. The defendant was not merely an introducer and the fees paid to it by the plaintiff were for management services, and not an introduction fee, as claimed by it. The representations and assurances that were made by the defendant and relied on by the plaintiff were made to instill confidence to the plaintiff. The defendant should have ascertained with reasonable certainty the accuracy of the facts transmitted to the plaintiff. It is expected of the defendant to exercise reasonable skill, care and judgment in carrying out its duties for the plaintiff. The defendant had failed to prove its allegation that the asset swap transaction was illegal. There was no evidence on which the allegation could stand or be conclusively determined since the defendant had failed to raise it either in its pleadings or during cross-examination of the plaintiff's witness. Damage in this instance was reasonably foreseeable and the loss suffered by the plaintiff, not too remote. The plaintiff had clearly also fulfilled the 3 elements for an award of damages to be granted in its favour. As there was a close and direct relationship of proximity between the parties, it is fair, just and reasonable for liability in tort to be imposed on the defendant. Pursuant to s 74 of the contracts act 1950 and applying the common law for damages in tort as a result of the defendant's breach of duty in contract and in tort, the plaintiff's alternative claim for the lesser sum was allowed. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Tan Eng Siew & Anor v Dr Jagjit Singh Sidhu & Anor [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Previously, the position regarding the claim of a third party for loss of expense incurred as a result of injury to another person allowed a husband to sue for medical and other expenses to which he has been put as a result of personal injuries inflicted on his wife. However, the law has since changed since the decision in Lai Chi Kay & Ors v Lee Kuo Shin [1981] 2 MLJ 167, which states that "...A third party will have no direct remedy against the wrong-doer...", particularly where the wrong-doer has not committed a breach of duty towards the third party. p1 therefore had no cause of action against both d1, as the alleged direct wrong-doer, or against d2, for being alleged to be vicariously liable for the actions of d1. There are 3 requirements that must be satisfied to ascertain whether d2 was vicariously liable for the alleged wrongdoing of d1. Firstly, there must be a wrongful, or tortious action. Secondly, there must exist a special relationship that is recognised by law between the person alleged to be vicariously liable and the tort feasor. Thirdly, the tort is committed within the course of employment. p2 failed to establish this element of "special relationship" between d1 and d2. This one factor alone, if not satisfied, was sufficient to justify the dismissal of p2's claim against d2 for being vicariously liable for the alleged tortious wrong of d1. D1 was at the material time an independent contractor and had his own set up in the treatment, management and care of p2. d2 only provided the premises and operating facilities for which d1 paid for the use of. d2 had no control over the course or form of treatment, management and care administered to p2.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Alf Properties Sdn Bhd v Ketua Pengarah Jabatan Hasil Dalam Negeri [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">It is settled law that income tax does not necessarily follow the system of accounting or account-keeping of the taxpayer at all. The method of keeping accounts is often a guide but is never conclusive in income tax issues. The method of accounting does not alter the character of the sum received. Finally, the practice of accountants, though it were general or even universal, could not by itself determine the amount of profits and gains of a trade for tax purposes. Generally, when considering the question whether a particular transaction to which a taxpayer is a party constitutes a trading transaction, the court would, first of all, have to consider, objectively, whether the transaction has the outward appearance of trading transactions or, in other words, whether the documents and terms thereof were normal when compared to transactions of the like kind in the commercial world and carried out in a similar manner. Secondly, even if a transaction has all the attributes of trade it must still have a commercial purpose. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Exxon Chemical (Malaysia) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The words "express wholly and exclusively incurred" appearing in s 33(1) of the act includes a sum which the taxpayer is under an obligation to pay. As the appellant in this instance was under an obligation to make such payment upon the demand of eligible employees, it was correct to rely on the decision in <i>lo & Lo. </i>further, being a privy council decision from another jurisdiction on a provision that is materially similar to our written law, great weight must be given to it. The fact that the appellant's employees did not actually receive the money in a given year does not matter. Had any of those who were eligible to receive the benefit claimed it, then it would have been impossible for the appellant to have lawfully resisted the claim. The fact that the employees thought it fit not to make a claim but to defer it does not make the obligation to pay an expense that is incurred by the appellant non-existent. The principle that a provision in a taxing statute must be read strictly is one that is to be applied against the respondent and not in its favour. Thus, the special commissioners and the high court erred in holding against the appellant.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>RHB Bank Berhad v Zalifah Binti Juan & Anor [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The terms of the loan agreement cum deed of assignment ("LCDA") revealed that it was in essence an absolute assignment under s 4(3) of the civil law act 1956 and as such it was an equitable mortgage as opposed to an equitable charge. The plaintiff therefore could not rely on order 83 of the RHC in making its application as the same refers only to charge actions. Further, order 31 r 1 of the RHC did not confer the court with jurisdiction to order a judicial sale as requested by the plaintiff as the operative words in the aforesaid order as "it appears necessary or expedient". In the circumstances, it did not appear necessary nor expedient for the court to make such an order. The plaintiff could have obtained relief by exercising its contractual rights and saved the court and the defendants from wasting unnecessary time and resources, as there was no actual dispute or live issue to be judicially determined. By neglecting to prove that the defendants were in fact denying the plaintiff's rights under the LCDA, the plaintiff failed to satisfy one of the preconditions under s 41 of the act. The plaintiff therefore was also unable to rely on s 41, which provided for the discretion of the court to declare the rights of a party in situations such as in the present application. Order 92 r 4 of the RHC is clear in stating, inter alia, that the inherent power of the court is to be exercised to prevent injustice or an abuse of the process of the court. In the circumstances, the facts of the case revealed no controversy that would warrant that the court draw on its inherent powers, and as the plaintiff's contractual rights had not been disputed, it was incumbent upon to exercise those rights without the aid of the courts.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Sri Minal Construction Sdn Bhd v Mobil Oil Malaysia Sdn Bhd [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The rules are only for the purpose of regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors. They apply only to members of the bar, and any breach thereof is liable to be disciplined under the said rules. The rules do not have the force of law to govern the procedure of the courts. The rules regulating and prescribing the procedure in the subordinate courts are set out in the SCR, which are effected under the powers conferred upon the rules committee by virtue of s 17 of the courts of judicature act 1964. Thus the respondent's failure to provide notice before entering judgment in default did not render the same irregular. Order 28 r 6 of the SCR applies where a defendant does not appear on a date fixed for hearing. In this instance, a date for hearing had yet to be fixed. When the summons was called up for the second time on November 1, 1999, it was a mention date. Since it was not a hearing date, the provisions of order 14 r 5 of the SCR applied. When the learned sessions court judge agreed to the appellant's request for time to file its defence, the next mention date was fixed, which must be implied to mean that the defence ought to have been filed in compliance of the said order. However, at the appellant's failure to file its defence by the next mention date, and absent any explanation, the learned sessions court judge was correct to have exercised his discretion by entering the default judgment against the appellant pursuant to order 14 r 5(2) of the SCR. Although a judgment in default has been regularly obtained, the court still possesses the unfettered discretion to set it aside, where the test to be applied for such evaluation is that enunciated in Evans v Bartlam [1937] AC 473, HL. In this instance, there was no evidence that the appellant had ever complained of short supply to the respondent. Every delivery note, with the amount of diesel supplied listed thereon, was duly signed and acknowledged by the appellant as true and correct. By acknowledging on those delivery notes, the appellant was deemed to have accepted the amount supplied as correct. Merely claiming short supply was insufficient to warrant the setting aside of the default judgment. Further, the failure by the respondent to provide particulars of the claim did not constitute a defence on the merits where the appellant would have been in possession of the relevant documentation relating to the diesel supplied. The appellant failed to prove a defence on the merits. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Abdul Hamid Bin Mahmood & Anor v Oriental Bank Berhad [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">In the instant case, clause 12(a) of the guarantee only related to the variation of the credit facility dispensed or dispensable by the respondent to the first defendant and did not relate to the variation of the security as required under the principal agreement. Clause 12(a) of the guarantee did not permit the respondent to uplift the FD given as security. In the circumstances, the variation in question was rendered invalid. Clause 12(a) was not ambiguous and only referred to the variation of "credit facilities". But since the respondent contended that it permitted the respondent to vary not only the credit given but also the security given under the principal agreement, the respondent gave a dual meaning to the word "credit" and/or "security", making them interchangeable. Thus, the respondents rendered their own wordings ambiguous, thereby entrapping themselves in the contra proferentem rule, which envisages that where there is a doubt about the meaning of an instrument, the doubt will be resolved against the maker. The federal court in the case of <i>Kimlin Housing Development Sdn Bhd (Penerima Dan Pengurus dilantik) (Dalam liquidasi) v Bank Bumiputra (M) Bhd & 3 Ors [1997] 3 AMR 2361 (Kimlin) </i>had set out a 2 limb judicial test to interpret whether a statute permits a person to contract out of it. Firstly, a person can contract out of an act of parliament if the language of the statute is clear to that effect. If the language of the statute is not clear, the second limb comes into operation, which requires the court to examine the overall purpose of the statute to ascertain whether that person or class of persons could or could not contract out of the statute. Further, the basis of a contract is found in the doctrine of consensus ad idem which in simple language means a meeting of minds for a binding contract. When a surety executes a guarantee agreement, it is expected that he knows what his liability is under the doctrine of consensus ad idem. By permitting the creditor to vary the credit to be given to the debtor without the consent of the surety, the surety is placed in a position of not knowing what his liability will be, thus contravening the doctrine of consensus ad idem, which doctrine goes to the root of the law of contract. It is for this reason that s 86 should be interpreted in a way that would not allow the creditor to impose a liability on the surety, which liability the surety has no knowledge of. The federal court in <i>Citibank NA v Ooi Boon Leong & Ors [1981] 1 MLJ 282 </i>was correct to point out that, any variation to the principal agreement is permitted by s 86, but only with the consent of the surety. In the instant case, the covenant which allows the respondent to vary the interest rate depends on the market forces over which it has no control and therefore the variation of interest rate would be accepted under the de minimis rule and would not be caught by SS 86, 92 and 94. But the same could not be said of the respondent varying the other terms in the principal agreement, over which parties have control and/or ascertainment of, since such a variation would infringe the rule on consensus ad idem and bring into operation SS 86, 92 and 94, which forms the basis of the law of surety. The privy council's decision in <i>Ooi Boon Leong </i>was distinguishable as the principal debtor in that case was a company of which the directors were the sureties. All sums borrowed in that case had been enjoyed by the directors who were de facto human entities for the principal debtor and the privy council had to do justice to the case by not allowing the sureties to escape liability by the directors/sureties resorting to of SS 86, 92 and 94. Sections 86, 92 and 94 are intended to protect sureties who do not enjoy the benefit of the loan sum but only make themselves liable for the debt, regardless of whether they had purportedly contracted themselves out of the relief provided for them under the Act. The issue of contracting out of an act of parliament was a point of law decided on facts admitted by the parties, without any dispute of facts or questions as to the credibility of witnesses, nor did it require the parties to give viva voce evidence. Thus, the issue raised being a plain and obvious one could be resolved by summary procedure. Further, this case had seen protracted litigation and it was in the public interest that there should be an early end to it. In the circumstances, there was no valid reason why the respondent's case against the appellant should not be concluded summarily.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Perman Sdn Bhd & 6 Ors v European Commodities Sdn Bhd & Anor [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The plaintiff's claim of the existence of a constructive trust was misconceived since a constructive trust is imposed only by operation of law. A genuine constructive trustee has title to the property or claims the right to deal with the property on behalf of the beneficial owner. Only the owner of property may declare himself as trustee of the same. In the high court, the parties proceeded on the basis that Raja Zainal was owner of the shares, whilst it was the first defendant who was the registered owner of the shares. Thus, only the first defendant could be trustee of the shares since a company is a separate entity from its shareholders. shareholders do not have any interest, whether beneficial or legal, over the company's property. In this instance, there was no evidence that the first defendant had declared itself trustee of the Fimaly shares. It was not the plaintiffs' case that they purchased the Fimaly shares but then registered the first defendant as nominal owner. Therefore, the doctrine of resulting trust was not applicable to facts in the instant appeal. The only reasonable inference to be drawn from the proved and admitted facts is that this was in reality a case of debt and not an express trust. The memorandum executed by Raja Zainal makes no mention that he was a trustee and only confirms the fact that the money paid for the shares was an advance from the plaintiffs. For the first defendant to be accountable to the plaintiffs for the Fimaly shares, the monies paid to Raja Zainal must be trust monies in the sense that they were to be used for a specific purpose. If that purpose failed, there would have been a resulting trust in the plaintiffs' favour. Here, Raja Zainal was a trustee of the money, which he would have been in breach of if the money had been used other than for the purchase of Fimaly shares. If the first defendant dishonestly assisted Raja Zainal, then it would be liable as a fiduciary with a duty to account for the money. Here, the monies were used for their intended purpose and therefore, the beneficial ownership in the money vested in its intended recipient, i.e. the first defendant. When the shares were registered in its name, the first defendant became the sole beneficial owner of those shares. This reinforces the conclusion that the advance given to Raja Zainal was in fact a loan. If it had been established that Raja Zainal had, acting as the first defendant's agent, declared the first defendant the trustee of the Fimaly shares, then this argument would have succeeded. The memorandum executed by Raja Zainal however does not constitute him as a trustee and the language of the document itself does not betray such an intention. Therefore, there was no evidence, from the memorandum or the surrounding circumstances that show a clear intention to create a binding declaration of trust on the first defendant's part. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Simpang Empat Plantation Sdn Bhd v Ali Bin Tan Sri Abdul Kadir & 5 Ors [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Res judicata is a doctrine of substantial justice where justice is achieved procedurally by precluding a party from re-agitating issue(s) in subsequent proceedings that has or could have been fairly determined in earlier proceedings between the parties. Whether res judicata should be permitted must be determined with regard to the particular justice and facts of each case. Allowing the second suit would prevent an abuse of process. The effect of Kimlin was that the r & m did not have the power to deal with the subject property, where the fourth respondent should have satisfied the debt owed to it according to the provisions of the NLC. There were sufficient facts to show that justice favoured the re-opening of the propriety of the sale of land by the r & m. Since the r & m did not have the right to sell the subject land, then no title could have passed to the purchaser. Therefore, the justice of the case demands that those not entitled in law to have property must return it. Pursuant to s 192(2) of the companies act 1965 (the act), the r & m are liable for any misfeasance on their part. The said section was introduced to remedy the injustice where, at common law, a receiver and manager appointed under the power conferred under a debenture owes a duty only to the debenture holder. A receiver and manager is also not an officer of the borrower company within the meaning of s 4(1)(b) of the act and thus does not fall within s 305(1) of the same. Section 305(1) of the act provides a summary method of enforcing pre-existing rights whilst s 192(2) created a new cause of action to prevent injustice under the common law. Reference to cases decided under s 305(1), or its equipollent, must be cited with caution since those cases would not be dealing with a remedial provision. Penalising the r & m for doing an act they were not entitled to do would not constitute an interference with their function since it would amount to holding wrongdoers accountable for their actions. Further, there is no issue that the appellant's assets would be imperiled since if the appellant's summons concludes in its favour, the subject land would be returned to it, which could only be considered a benefit. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>EON Bank Bhd v Edwina Lau [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The plaintiff ought to have sought an appointment with the registrar to sort out the terms of the draft order as required by order 42 r 8(3) of the RHC as he was the one who prepared the draft order instead of requesting that a decision to be made on its term because 48 hours had lapsed. Allowing counsel to proceed with a disputed court order would be a waste of judicial time if at the end of the day the sealed court order was not in accordance with the terms of the ruling of the presiding judge. The primary concern of the parties must be to sort out the terms of the order and the only way this can be done is for the parties to go back to the presiding judge to clarify the terms of the ruling. Counsel should not come before the court to argue on an order, which terms are in dispute. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Lim Chau Leng (P) v Wong Chee Chong [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Granting of leave does not amount to a finding of contempt. That can only happen at the hearing of the substantive motion upon proof beyond reasonable doubt. The objection raised was not procedural but substantive in nature and goes to the root of the cause. The consent order had taken the place of the initial agreement (arrived at by the negotiations of both parties out of court) by merger and the wronged party may take out enforcement proceedings for a breach on the basis that there is a valid contract. The terms said to be in breach does not give rise to a proceeding in contempt. For there to be a contempt of court based on a consent order, the same must contain an express undertaking to the court. This express undertaking was absent in this case thus absolving the plaintiff of guilt. Further, the plaintiff's denial of the existence of any agreement, disentitled her to claim anything from the defendant under the order as there was, consequentially, no collateral bargain between the parties that might have given rise to a debt recoverable at law. Had the divorce petition been heard on its merits and the court had come to a finding of fact on all issues and ordered the defendant to do all that is now found in the consent order, then that would be an order of the court which was in coercive terms, which a breach thereof would have attracted committal proceedings. The failure to carry out the terms, although a breach, was not susceptible to contempt proceedings. The rationale is that the affront committed by the breach was not done to the court but to the parties of the compromise or consent order, which in this case was the plaintiff. What was important was that the terms agreed upon came from the parties to the court and not from the court to the parties. Though the consent order was with the seal of the court affixed to it made it a court order, it lacked coerciveness taking into account the manner the consent order came about. The court merely acknowledged this agreement between the parties by affixing its seal, which brought the suit to an end. The defendant by making these promises (and the plaintiff accepting them) did not deceive the court into bringing the suit to an end. The decision to compromise and to end the suit was entirely by the parties. The law of contempt does not envisage the institution of committal proceedings for a breach of a term agreed by parties merely because it was embodied in a court order. If one spouse wished to commit the other, an undertaking to the court must be incorporated into the consent order. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Dato' Seri S Samy Vellu v Penerbitan Sahabat (M) Sdn Bhd (sebagai penerbit Akhbar "Malaysia Nanban") & Anor [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The correct test for recusal of a judge on the ground of bias, is the real danger of bias test as laid down by the House of Lords in R v Gough [1993] AC 646. The real danger of bias test is a stringent test and surmise or mere conjecture would not be sufficient to satisfy such a test, nor would mere suspicion, however reasonable it may be. The fact that encl 36 was dismissed must not be construed to mean that this case would not be decided on the evidence before the court at the trial of the main suit. An adverse finding of fact by a judge against a party in earlier proceedings does not give rise to the real danger of bias on the part of the judge in the forthcoming proceedings. In any event, and based on the facts and circumstances in this case, the allegation of pre-judgment, cannot in law, amount to a real danger of bias. The best recourse for the plaintiff would have been to appeal to the Court of Appeal against the first judgment instead of filing encl 59. By filing the same, the plaintiff was in fact, obliquely eroding public confidence in the judiciary. In the circumstances, encl 59 ought to be dismissed with costs to be paid to the defendant pursuant to Order 59 r 4(1) of the RHC. Further, the plaintiff's failure to comply with the undertaking to file the affidavit in support of the encl 59, which affidavit, pursuant to Order 92 r 1 of the Rules of the High Court 1980 (the RHC) shall be in the national language, constituted an infraction of Order 32 r 13(2) of the RHC. Bereft of such an affidavit in support, in the national language, encl 59 stood alone and on this basis must be dismissed with costs. Where a defendant has pleaded qualified privilege, the plaintiff, pursuant to Order 78 r 3(3) of the RHC, must deliver a reply to the defence pleading malice, to negate the defence of qualified privilege. In this instance, the plaintiff had failed to comply with the said provisions and such failure must mean that the defendants' plea of qualified privilege stood unassailed. Following the decision in Harakas & Ors v Baltic Mercantile and Shipping Exchange Ltd & Anor [1982] 1 WLR 958, the court will not grant an injunction where a defence of justification and/or qualified privilege is pleaded, and where the defendant swears that he will seek to prove the same at the trial, unless exceptionally, the court is satisfied that the defence is one that cannot succeed. As regards the tort of malicious falsehood, the ruling in Bonnard v Perryman [1891] 2 Ch D 269 still holds good and an injunction will not be granted where the defendant states that he intends to justify. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Tengku Mohd Saad @ Tengku Arifaad bin Tengku Mansur & 3 Ors v Tay Choo Foo @ Tay Chiew Foo & 4 Ors [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The essential ingredients required to sustain an action against the third, fourth and fifth defendants as constructive trustees of the said shares had been sufficiently pleaded in the statement of claim as the courts would consider and deal with the legal result of the pleaded facts even if the particular legal result is not specifically pleaded. A constructive trust arises by operation of law when it is unconscionable for the legal owner of the property to assert beneficial ownership in the same. Therefore, there was no necessity for the plaintiffs to plead a constructive trust over the shares as against the third, fourth and fifth defendants. The doctrine of dishonest assistance and knowing receipt were inapplicable in the instant case since the plaintiffs were not pursuing a personal remedy against the third, fourth and fifth defendants. The plaintiffs here were pursuing a proprietary claim, which allowed them to trace the trust property to the third, fourth and fifth defendants and it mattered not that the person(s) holding the trust property committed no wrong. Where property is the subject matter of a trust, the trust follows the legal estate wherever it goes, unless it comes into the hands of a purchaser for valuable consideration without notice. Having regard to the testimony and documentary evidence tendered, the plaintiffs proved on a balance of probabilities that the first defendant held the impugned shares in the second defendant on trust for the deceased. Further, the first defendant breached his express undertaking in an interlocutory order, in lieu of the plaintiffs' application for an interlocutory injunction restraining him from selling, transferring, assigning, charging or dealing with the said shares until the trial of the instant action by transferring the shares to the third defendant. The statements made by the deceased to PW2 regarding the beneficial ownership of the shares until the first defendant had settled the purchase price, admissible as an exception under s 32(1)(b) of the Evidence Act 1950 as statements made in the ordinary course of business, further showed that the first defendant was not entitled to ownership of the same and that the grounds advanced by him were fabrications. Contemporaneous documentation and the objective facts clearly supported the plaintiffs' claim that the deceased retained beneficial ownership in the shares until and unless the first defendant had settled the full purchase price agreed to. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Asia Pacific Land Berhad & 5 Ors v Datuk Bandar Kuala Lumpur [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Where an application for leave to amend a statement of claim is made, the following requirements would have to be fulfilled, before such leave may be granted, i.e: (i) That the new cause of action arises out of the same or substantially the same facts as the cause of action in respect of which relief had already been claimed in the original action. (ii) In considering the question of whether it is just to grant leave to make the amendment, the court must be vigilant and must weigh in a balance between the applicant's need to amend as against the prejudice which the opposing party's interest may suffer. (iii) In determining the appellant's need to amend, the court is entitled to take into consideration the following factors: (a) If the applicant's existing claim is bound to fail, that may be the barometer to use as it may possibly be relevant to show where the justice of the case lies. (b) If the applicant's existing claim is bound to succeed, that could conceivably be relevant in deciding whether to allow a different cause of action leading to the same remedy but requiring further cogent facts to be pleaded. (c) If the new claim of the applicant is bound to fail, then leave should be refused forthwith by applying the ordinary principles of law. (d) If the new claim is bound to succeed, that may affect the justice of the case. (iv) In an evenly balanced case, it is for the applicant to satisfy the court that it is just to grant leave to amend based on the decision in Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd (The Casper Trader) [1992] 3 All ER 132, CA at p 137; (v) What is said to be just would inevitably be dependent on the judge's impression and discretion. In this instance, the above requirements had not been satisfied. The new causes of action sought to be included, did not arise out of the same facts or substantially the same facts and neither was there any sufficient overlay of the facts. In the circumstances, it would not be just for the leave prayed for to be granted. Pursuant to s 124 of the Local Government Act 1976 and s 11 of the Federal Capital Act 1960, the provisions of the Public Authorities Protection Act 1948 (the Act), would apply in relation to the defendant in this instance. Since the alleged cause of action arose in September 1997, the plaintiffs' cause of action would be barred by limitation in September 2000, by virtue of s 2 of the Act. There was no explanation for the delay in the filing of the plaintiffs' application and in the absence of such an explanation, there was therefore no material before the court for it to weigh in a balance, the proposed amendments. The delay in the circumstances, was fatal. Order 1A of the RHC was inapplicable in this instance, as there were no preliminary objections raised by the defendant with regards to non-compliance of any of the rules. On the facts, and based on the settled propositions of the law, the court's exercise of its discretion under Order 25 r 5(5) of the RHC to allow the proposed amendments in this instance, was unwarranted.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Yong Kon Fatt v Indah Water Konsortium Sdn Bhd [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The appellant is required in law to adduce evidence by way of an affidavit in reply, to oppose the respondent's striking out application. The failure on the part of the appellant to do so was fatal as the appellant is deemed to have admitted the respondent's assertion that the appellant had not provided the sewerage services as claimed. The failure by the appellant to challenge or rebut the respondent's assertion that no sewerage services were provided by the appellant, would constitute an admission by the appellant of that fact. On the facts and circumstances of the instant case, and in view of the appellant's failure to file and affidavit in reply to the respondent's assertion, it was appropriate for the magistrate to have struck out the appellant's claim. It may be envisaged from the provisions of Regulation 7 of the 1994 Regulations that the appellant is obliged to state the particulars and basis of calculation of the sewerage services provided to the respondent, and which the appellant failed to do in his statement of claim. Whilst the omission or failure to include the details itself does not necessarily make the claim unsustainable in law, but where however the claim is challenged and denied as in this case, the appellant is obliged to provide such details by way of affidavit in reply, in order to sustain the claim for determination at a full trial. A magistrate who has reserved his decision in an interlocutory application, is not required under the Subordinate Courts Rules 1980 (SCR) to provide the grounds for this decision. By virtue of Order 49 r 6 of the SCR, it has been deemed fit by the rules committee for the grounds of judgment in interlocutory applications to be dispensed with, with the sole object of ensuring speedier disposal of appeals arising out of a decision given in such interlocutory applications. Further, and as provided under the proviso to Order 49 r 6(3) of the SCR, the record of appeal "should not include grounds of judgment". However, and notwithstanding the aforesaid provisions, it would be good practice to provide brief reasons, be it in a summary form, when giving oral decisions.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>E & E Equipment Sdn Bhd v Speci Avenue (M) Sdn Bhd & 3 Ors [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The plaintiff failed to adduce any evidence to prove that the cranes were in the defendants' possession at the material time. Therefore, the plaintiff failed to discharge the burden of proving beyond reasonable doubt that the cranes were in the possession, custody or control of the defendants when the injunction order was served on them. Since the standard in contempt proceedings is beyond reasonable doubt, the plaintiff's case fell short and any argument based on mere implication would not satisfy the required standard. Further, the defendants' counsel's failure to reply to the plaintiff's affidavit in support of the instant application could not reasonably, or in law, bind the defendants on a criminal charge for contempt. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Faridah Ariffin v Dr Lee Hock Bee & Anor [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">In Malaysia, experts' reports are privileged documents and form part of the fundamental common law right encapsulated in s 126 of the Evidence Act 1950 (the Act). There is no provision in Malaysian law that will compel a witness to produce, before trial, a written statement of his evidence. Pursuant to Order 25 r 4 of the RHC, the defendants have the inherent right not to present evidence until the close of the plaintiff's case. Since Order 34 r 4(2)(j) of the RHC further provides that "subject to all just exceptions as to privilege", it may be readily concluded that privilege may not be removed by the RHC. The provisions of the RHC must be read subject to the Act. Further, Order 25 r 8(5)(b) of the RHC expressly excludes any action where the pleadings contain an allegation of a negligent act or omission in the course of medical treatment from the class of cases where there is a duty to disclose experts' reports. Although the operation of Order 25 has been suspended by the Honourable Chief Judge of Malaya by the coming into force of Practice Direction No. 1 of 2001, the requirements under r 8 thereof remained. Confidential communications made in contemplation of, or after the commencement of litigation between a lawyer and his client, a lawyer and a non-professional agent, or a lawyer and a third party for the sole, or dominant purpose of litigation are protected by privilege unless waived by the holder of that privilege. The court cannot make an order of discovery of the report and therefore, r 4(2)(f) and 4(2)(j) of order 34 of the RHC conflict with the relevant provisions of the Act as well as the common law principles of privilege. Order 35A rr 1 and 2 of the RHC provides the court with the discretion, where parties have agreed, to allow evidence-in-chief by way of affidavit, excepting witnesses' statements. Section 138(1) of the Act provides that witnesses shall first be examined-in-chief, cross-examined and if required, re-examined orally. The taking and recording of oral evidence by the presiding judge must be done transparently as provided by s 15 of the Courts of Judicature Act 1964 (CJA). Order 35A r 1 of the RHC is therefore contrary to s 138(1) of the Act and s 15 of the CJA and thus void for being subsidiary legislation inconsistent with the Act of Parliament as envisaged by s 23(1) of the Interpretation Acts 1948 and 1967. Since Order 35A is void for inconsistency, there is no statutory provision by which the court may order an affidavit to be made or affirmed for use at trial. It may, where justice requires order an affidavit already made or affirmed to be read at trial. Pursuant to Order 35 r 4 of the RHC, the duty of the plaintiff to give evidence arises only at the trial proper and not before it commences. A defendant is not obliged to give evidence and also not obliged to provide witness statements in advance of the trial. Procedurally, witness evidence is given orally at the trial, the recording of which constitutes a judicial function. If evidence is prepared in the form of witness statement in the privacy of a lawyer's office, there is no opportunity for the trial judge and the other parties to observe the demeanour of the witness or to object to matters pertaining issues that may arise as to credibility, competency, hearsay, admissibility, leading evidence and harassment. This would provide ample occasion for the miscarriage of justice. It was for reasons such as these that s 73A(3) of the Act provides, in effect, that a witness statement is inadmissible where it is "made by a person interested at a time when proceedings were pending or anticipated". The safeguards of truth provided by the Act would vanish if witness statements are admitted in lieu of oral evidence-in-chief. It would be fallacy to consider witness statements as the record of oral evidence given before a trial judge. Cross-examination of a witness on his pre-recorded statement, and taken as his evidence-in-chief, would not constitute an adequate safeguard. It is oral testimony in court that ensures justice is seen to be done. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Laksmana Realty Sdn Bhd v Goh Eng Hwa (and Another Appeal) [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The plaintiff was not authorised under the writ of possession to remove the defendant's goods. If it had wanted to have the said goods removed, then it should have obtained an order from the court to that effect. The learned judge was perfectly entitled to make the findings that he did with regards to the lost receipts and had correctly addressed his mind to the crucial fact that the plaintiff had not challenged the number of goods that formed the subject matter of the defendant's claim. However the classification of the award as being general damages was an error since general damages are awarded for harm that is not quantifiable. Where as in this case, the value that is to be placed on the defendant's goods is something that is readily quantifiable then compensation for the loss thereof, should be in the form of special damages. The error in the classification of the award in this instance however did not flaw the judgment, since the trial judge had adopted the correct approach and had taken the relevant matters into consideration in arriving at his decision. The decision in Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22, lays down the approach that should be adopted by the appellate court in an appeal against quantum of damages in cases relating to special damage and in this respect, the plaintiff had fallen far short of the standard called for in the said decision. In the circumstances, no appealable error had been demonstrated by the plaintiff. Rookes v Barnard [1964] AC 1129, sets out the basis for making an award of exemplary damages. The present case however does not fall within the second category of cases referred to in Rookes v Barnard as claimed by the defendant. The plaintiff was merely seeking to get back possession of its land. There was no question of the plaintiff obtaining a profit at the expense of the defendant in this case. The conduct of the plaintiff in seeking a writ of possession after it had notice of the defendant's application to set aside the judgment, did not amount to conduct calculated at making a profit at the defendant's expense. At best, it was procedural misconduct for which they are liable in cost. In the circumstances, this was not a case for exemplary damage.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Re Lim Szu Ang; Ex parte Kewangan Utama Berhad</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">In light of the provisions of Order 45 r 1(1) of the Rules of the High Court 1980 (RHC), the commencement of a bankruptcy proceeding is not an enforcement of a judgment or order. A bankruptcy proceeding is a proceeding that would eventually result in the issuing of adjudicating and receiving orders whereby the judgment debtor is required to account for his assets and liabilities to an official receiver or official assignee (now known as the director general of insolvency) as the case may be, for the purpose of satisfying all his creditors including the judgment creditor who has petitioned for the bankruptcy. Hence if the judgment creditor wanted to enforce the said order it should have used one of the methods of enforcement as specified in Order 45 r 1(1) of the RHC. An action on a judgment is not the same as enforcing a judgment. In enforcing a judgment, a party in whose favour the judgment is given, is taking a proceeding against the adjudged party in order to force that party to satisfy the terms of the judgment in accordance with the rules relating to the enforcement of judgments. However in an action on a judgment, the party that obtained the judgment is not enforcing the judgment as understood under the rules. Instead the party concerned is exercising his rights arising out from the judgment and given to him under the rules or a written law, by a separate and distinct action or proceeding. The outcome of such action or proceeding may however result in the satisfaction of the judgment by the party against whom the judgment is obtained. That being the case, the judgment creditor's submission that it is not prevented by article 98 of the schedule to the Ordinance from taking out the BN and presenting the CP against the judgment debtor, is not entirely correct, because the use of the words "upon judgment obtained in Sarawak..." appears to include the enforcement of judgment as well as action on a judgment. The language of articles 44 and 98 of the schedule to the Ordinance , are akin to the second and first limbs respectively, of s 6(3) of the Limitation Act 1953 (the Act). On the facts it was obvious that the BN was issued 3 years after the interest became due. Thus, applying the decision in UMBC Bhd v Ernest Cheong Yong Yin [2002] 2 AMR 1803, FC, it was clear that the BN was issued out of time under article 44 of the schedule to the Ordinance and was therefore invalid and bad in law. Consequently, the CP that followed was also bad in law for having been pre-empted by an invalid bankruptcy notice.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Tay Seck Loong @ Tay Seck Long & 3 Ors v Teh Chor Chen & 40 Ors (Administrator De Bonis Non of the Estate of Teh Aik Hee @ Hong Seng alias Teh Aik Yee, deceased) [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Cases of partial intestacy would only arise under s 8 of the Distribution Act 1958 (the Act) which, where relevant, provides that where any person dies leaving a will beneficially disposing of part of his property, the provisions of the Act shall have effect as regards the part of his property not so disposed of, subject to the provisions contained in the will. On the facts, the testatrix had vide clause 4 of her will, devised and bequeathed all her movable and immovable properties to her trustee. By virtue thereof, the will has brought about a complete testamentary disposition. Hence there is no question of a partial intestacy coming within the ambit and purview of s 8. The legal effect of s 19 of the Wills Act 1959 is that a lapsed gift must be included in and form part of the residuary devise or bequest, if any, contained in the will. Applying the said provision and the decision in Re Chin Sem Lin's Settlement Yong Tet Foong & Anor v Chin Thin Lee & Ors [1971] 2 MLJ 152, the 3 lapsed gifts fall into the residuary estate of the testatrix for the benefit of all the grandsons living at the date of distribution and are to be distributed in accordance with the terms of the will. On the facts, all of the testatrix's grandsons were of natural issue. There were no grandsons who were adopted, legally or otherwise. For the purposes of the true construction of the will, there was no plausible ground advanced by the plaintiffs for the exclusion of any of the grandsons. In the circumstances all of the grandsons having the family name or surname in the Chinese character Tay, Tey or Teh, are within the meaning of the word "grandsons" in the will of the testatrix and shall benefit in accordance with the terms thereof. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd (dahulunya dikenali sebagai Syarikat Teratai KG Sdn Bhd) (No 1) [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">In dealing with this application, the Court of Appeal was exercising its original jurisdiction under s 44 of the CJA. Section 44(1) of the CJA uses the words "in any proceeding", where s 3 of the same defines "proceeding" to mean any proceeding whatsoever of a civil or criminal nature and "includes an application at any stage of a proceeding". Therefore, when the court makes an order under s 44(1) of the CJA, it does not deal with the appeal proper and hence, it has original jurisdiction, although limited. In this case, the appeals by both sides have been heard and judgment reserved with only the grounds of decision remaining to be delivered. There was therefore no appeal pending before the Court of Appeal. The interim protection was applied for from the date between judgment and the grounds thereof. This was therefore an invitation to exercise original jurisdiction, which was possible due to s 44 of the CJA. Since this application did not involve the exercise of jurisdiction on a matter originating in the High Court, an appeal to the Federal Court would not be available. An order to earmark a sum amounting to RM100 million would be ineffective. The relationship between the plaintiff and the defendant is that of a judgment creditor and debtor, with the plaintiff in the same position as an unsecured creditor. The order sought will have the effect of creating a special fund in the plaintiff's favour to meet his unsecured debt, which will constitute undue preference in the plaintiff's favour and will accordingly be void against the defendant's other creditors in the event of a winding-up. Therefore, although s 44 of the CJA is wide, it did not authorise the court to make the order sought by the plaintiff. The facts in Polly Peck and those in the instant case are distinguishable. In Polly Peck, the plaintiff was the beneficial owner of the monies diverted by the first defendant, Nadir. It had a right in equity to trace all or part of the money into the hands of a third party. Here, the relationship between the plaintiff and the defendant was not one of fiduciary and beneficiary. Whatever monies the defendant has belongs to it and not to the plaintiff. The plaintiff has a judgment that it may execute at the appropriate time. The facts of this case require the interim protection of the plaintiff's accrued rights in view of the serious allegations of fact made, which have been denied by the defendant in general terms. The defendant also failed to be forthcoming as to facts within its particular knowledge. The order herein is one that restraints the defendant from disposing or dissipating its assets up to RM100 million and is a form of post judgment mareva injunction that provides the plaintiff with the necessary interim protection until further order. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Mohd Salleh bin Sheikh Ahmad v Yewpam Sdn Bhd [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The learned judge was completely justified in rejecting the defendant's evidence for lack of credibility. It is trite that once a counterclaim is found to be lacking in merit, it ought to be dismissed. The court is not entitled to raise a dead counterclaim on the basis of granting relief that the court thinks ought to be granted on the facts. Further, a prayer in the counterclaim may not be used against the defendant himself. The plaintiff could not rely on the counterclaim to obtain relief against the defendant. The learned judge was justified in awarding damages in lieu of specific performance as far as order (1) was concerned. Order (2), although not claimed by the plaintiff, was a necessary adjunct and hence, a consequential order. Order (2) was supportable on the basis that the High Court was being moved for equitable relief in the form of specific performance and when considering the grant of equitable relief, as a court of equity, it is entitled to grant alternative relief or to impose conditions.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Tan Ah Tong v Gee Boon Kee & 27 Ors [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Where, in an appeal in a civil matter, the grounds of the decision are unavailable, the appeal should proceed to examine and assess the evidence to enable the appellate court to decide whether the evidence justified the decision appealed against or otherwise. A new trial ought not to be ordered unless there is something crucial to a just decision that may be established in a new trial that cannot be established on an assessment of the evidence already before the appellate court. This is so especially in cases where the credibility of non-expert witnesses needs to be established where the evidence of one side is equally cogent when compared with the conflicting testimony of the other side. In such a case, a new trial may be necessary so that the new trial judge will be able to observe the demeanour of the witnesses. Expert witnesses are excluded from this requirement since their testimony is intellectual in nature and is accompanied by reasoning and analysis that supports the opinion they have formed. An appellate court may, without the aid of demeanour, be able to decide which opinion to accept. The appellant in this instance failed to show why the court would not be able to resolve the issues, pertaining to the solicitor's abscondment and whether full payment of the purchase price had been made, by an assessment of the evidence before the court.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Tang Kam Thai & 133 Ors v Langkah Cergas Sdn Bhd & 4 Ors [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">It was clear from the first defendant's defence that it had admitted the delay in handing over vacant possession of the properties, but attributed such delay to various circumstances beyond its control. The defendant cannot be exempted by reason of such circumstances from fulfilling its obligation to pay the purchasers the agreed liquidated damages in view of the terms of the said agreements, which are explicit. On the facts, the first defendant is liable to pay the liquidated damages for the delay in delivering vacant possession of the properties. As regards the plaintiffs' claim for delay in delivery of vacant possession of the common facilities, which claim had not been proved to the satisfaction of the court, it would not be justified for any interim payment to be made by the first defendant. On the facts there was wilful delay on the part of the first defendant. The excuses given for the delayed completion of the commercial properties were substantially the same as reasons offered for the delay in delivering vacant possession of the residential properties, and were without legal justification. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd (dahulunya dikenali sebagai Syarikat Teratai KG Sdn Bhd) (No 2) and Another Appeal [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The defendant first claimed that the plaintiff had breached its fiduciary duty and then claimed that clauses 2.2 and 9.5 of the restructuring agreement were void. However, equitable protection such as that given to a beneficiary, or to whom a fiduciary duty is owed, gives the victim right to avoid or affirm the transaction. The distinction between a voidable and void transaction is that the former may be affirmed while the latter may not. Therefore, the declarations sought could not be granted in law. The defendant here was seeking to avoid selected parts of the transaction, seeking reprobate and aprobate, which it could not do. The defendant's complaint that the signage agreement and the amending agreement thereto were tainted because Dato' Fawziah and her mother signed those documents on behalf of the plaintiff and the defendant were without merit. By the time the amending agreement was signed, the investors in STKG, being majority shareholders had control of the company for 2 years. The defendant's contention overlooks the proposition that in company law, the company is a separate entity from the shareholders. Further, even assuming that the defendant's shareholders were entitled to claim for the defendant, they would have to come to court with clean hands. However, they were the ones who misappropriated the defendant's property in the amount of RM32.5 million and oppressed the defendant's previous shareholders into parting with their shares. The learned judge addressed his mind to the unamended clause 8 of the signage agreement. However, recitals F and G of the second concession agreement makes it clear that the first concession agreement was terminated by mutual agreement and accordingly, the defendant was liable to pay the plaintiff compensation in the formula expressly agreed to by the parties. The learned judge had therefore misdirected himself on the facts. Having correctly held that the defendant was liable to the plaintiff, the learned judge declined to apply the formula as set out in the amended clause 8 and treated the case as one of ordinary breach of contract, falling within the terms of s 75 of the Contracts Act 1950 (the Act). However, the formula as set out in clause 8 of the signage agreement is not "a sum named in the contract" as provided by s 75 of the Act. It is also not a stipulation by way of penalty since there was nothing extortionate about the formula. It is not directed at ensuring that the defendant performs its obligations under any contract it had with DBKL. Clause 8 came into operation upon the happening of a contingency, namely, the mutual termination of the first concession agreement, and thus had to be used to calculate the losses suffered by the plaintiff. Further, s 75 of the Act does not apply on the facts of this case because it is concerned with the question whether the sum or stipulation named in the contract is a genuine pre-estimate of damages that the innocent party may suffer in the event of a breach. It has no application to an action for a simple debt, although it does apply to extortionate claims of interest on a debt. The clause 8 claim here was an action to recover a debt owed by the defendant to the plaintiff in the sum of RM65,182,920 arrived at in accordance with the formula. The learned judge found clause 9.4 of the second concession agreement void for uncertainty as a matter of contract pursuant to s 30 of the Act. However, the actual words in the clause, i.e. "the future contracts shall be held by the vendor on trust for the purchaser", create an express trust. The fact that the trust was created by way of a clause in a contract makes no difference and it is still a trust as held by Royal Brunei Airlines v Philip Tan Kok Ming [1995] 2 AC 378. The trust is not void for uncertainty as the subject matter of the trust is clearly identified by the restructuring agreement. Clause 1.1 states clearly that any "future contract" means "any contract relating to any project or the construction of any works entered into or to be entered into with the Datuk Bandar Kuala Lumpur or any other person, other than such projects or works relating to the first concession agreement". So if and when the defendant secures a contract with DBKL, or any other person for a project, the contract is immediately charged with a trust. The defendant also had a contingent, if not vested, right to secure the contract with DBKL in the form of the second concession, which is clear from contemporary documentation. A specific trust account was to be set up in a named bank at an identified address. The defendant was therefore a trustee under a duty to open and maintain a trust account and pay into it monies coming into its hand under the second concession agreement, where the failure to do so constituted a breach of trust. Therefore, the second concession agreement was trust property, of which the defendant was trustee and must account to the plaintiff for. Looking at the totality of evidence, both oral and documentary, it was fair inference that the plaintiff and defendant conducted themselves as though the plaintiff was entitled to the signage rights. In its letter to the Ministry of Works dated June 15, 1991, the defendant included a claim of RM63 million, which sum represented the loss of the plaintiff's advertising rights. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Kerajaan Malaysia v Yong Siew Choon [FC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">There was no dispute that the judgment of the Court of Appeal was an excellent exegesis on Order 15 r 6A of the RHC. However, there had been no analysis of its inapplicability to proceedings for the recovery of tax in the light of relevant provisions in the Act itself. The object of Order 15 r 6A of the RHC was to provide a remedy where there is no person in law who can be sued. It was therefore superfluous to state that even where no grant of probate or administration has been made to the estate of a deceased person, Order 15 r 6A will have no application if there is, in law, a person who can be sued. An executor de son tort is such a person. In matters relating to the assessment and chargeability to tax of an estate, the specific provisions to make the executors liable are ss 64(1) and 74(1) of the Income Tax Act 1967 (the Act). It was therefore clear that the person assessable and chargeable to tax in the case of the estate of a deceased person is his executor. In its legal sense the word "executor" is a reference to a person who has obtained the grant of probate or of letters of administration of a deceased person. Such a person has the capacity to sue or to be sued. The definition of "executor" and "administrator" in s 2 of the Act, which refers to persons who are legally appointed only means that the "person administering or managing the estate of a deceased person" is not one who is appointed. The Act has given an extended meaning to the word "executor" by including in its definition a person administering or managing the estate of the deceased. The High Court's finding that the respondent was the person administering the estate of the deceased was therefore correct in law.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b> </b> The learned judge considered evidence from both the expert witnesses but preferred Dr Ramli's evidence on the ground that his investigation was carried out closer in time to when the incident occurred. Further, Dr Ramli's evidence was supported by the fourth defendant himself when he admitted that he did not do a thorough testing of the soil on which the bungalow was built. This constituted negligence on the fourth defendant's part. There was no error attributable to the learned judge. The learned judge did consider Kerajaan Malaysia and Teh Khem On as may be seen from his grounds of judgment. Both were judgments of the High Court and thus did not bind the learned judge. There was no merit to this submission. In any event, the losses suffered by the plaintiffs did not constitute pure economic loss. The evidence shows that the bungalow collapsed a few years after the plaintiffs took up residence and that the cause of the collapse was the first defendant's failure to conduct thorough tests on the site. It was the first defendant's duty as the consultant employed by the plaintiffs to ensure that the land was safe to build on.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1142503334259126762010-03-11T14:03:00.000+08:002010-03-11T14:03:54.321+08:00Law updates - Religion (Malaysian law unless otherwise stated)<div style="text-align: center;"><b>*Abbreviations</b> <b></b> <b> </b></div><div style="text-align: center;"><b>HC = high court</b> <b> </b></div><div style="text-align: center;"><b>COA = court of appeal</b> </div><div style="text-align: center;"><b>FC = federal court</b></div><div style="text-align: center;"></div><div style="text-align: center;"><b></b> <b> </b></div><div style="text-align: center;"><b>Kaliammal a/p Sinnasamy v Pengarah Jabatan Agama Islam Wilayah Persekutuan (Jawi) & 2 Yg Ln [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Ng Wan Chan may be distinguished from the facts of the instant matter in view of the existence of the Syariah Court order, which clearly determines that the deceased was a Muslim named Mohamad b Abdullah. The Syariah Court is the court with the competency and jurisdiction to determine the validity of the deceased's conversion to Islam. Civil courts lack the jurisdiction and may not review a decision of the Syariah Court. The Administration of Islamic Law (Federal Territories) Act 1993 (the Act) has clear provisions as to conversion to Islam and thus, the court competent to determine these issues would be the Syariah Court and not the civil courts. This is in line with Article 121(1A) of the Federal Constitution, which provides that the civil courts do not have jurisdiction pertaining to any matter where the Syariah Courts have been conferred jurisdiction under any written law. Although the applicant attempted to show that the deceased did not at all live as a Muslim, those were matters in relation to Islamic law and the jurisdiction to determine such issues were within that of the Syariah Court and not the civil courts. In the circumstances, only prayer (a) of the applicant's originating summons could be granted, i.e. that she be declared the deceased's legitimate wife at the time of his death.</div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Pendakwa Raya v Mohd Noor bin Jaafar [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The letter of authorisation was given by the learned DPP to a syarie officer to conduct prosecution in the Magistrate's Court and Sessions Court in Malacca. The officer was from the Islamic Religious Department, which was a Government department as envisaged in s 377(b)(3) of the CPC, and conduct of the prosecution in relation to the charge was also subject to the control and direction of the PP. Pursuant to an amendment, vide Enactment No 8 of 2003, the word "Director" in s 34(1) and (2) of the Enactment was substituted with the words "Public Prosecutor" so that the PP's power to give consent or authorisation to prosecute is vested in the PP in consonance with Article 145(3) of the Constitution, where the expression "PP" would include a DPP. The decision in Abdul Hamid v PP [1956] MLJ 231 held that the general words "rights and powers" appearing in s 376(3) of the CPC need not be construed as requiring the consent of the PP personally but that a DPP was permitted to do so. The letter authorising the officer from the Islamic Religious Department to conduct the prosecution in the Magistrate's Court was valid and constitutional. Section 33 of the Enactment expressly provides that a magistrate shall have the jurisdiction to try an offence under the same. The vesting of this jurisdiction in the Magistrate's Court was consistent with federal law as provided by s 85 of the Subordinate Courts Act 1948. Since the jurisdiction to try the offence had been expressly conferred upon a magistrate, it meant that it was not a matter in which the Syariah Court enjoyed exclusive jurisdiction. There was therefore no contravention of Article 121(1A) of the Constitution. Since the subject matter concerned the registration of an Islamic religious school and not the precepts of the religion of Islam, there could be no doubt that the Malacca State Legislature had clearly intended to exclude the subject matter from the jurisdiction of the Syariah Court and instead conferred the jurisdiction on a magistrate. Sections 33 and 34 of the Enactment, when tested against Article 121(1) and (1A) of the Constitution were valid and constitutional.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-4044521445946890142010-03-11T13:54:00.001+08:002010-03-11T13:54:46.686+08:00<div class="MsoNormal" style="font-weight: bold; text-align: center;">Indah Desa Saujana Corporation Sdn Bhd & 2 Ors v James Foong Cheng Yuen, Hakim, Mahkamah Tinggi Malaya & Anor [2008] 2 AMR 6 [COA]<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">Article 145(2) of the Federal Constitution provides, inter alia, that it shall be the duty of the attorney general to discharge the functions conferred on him by or under the Constitution or any other written law, and one of the functions is to represent the government and any person performing any function<span lang="EN-GB"> thereunder</span>.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">The 1st defendant, being a judge of the Kuala Lumpur High Court as well as the head of the civil division having in charge of all matters pertaining to the execution of assets in Kuala Lumpur including writs of seizure and sale, was merely performing his duties as a judge. The attorney general was therefore under a mandatory duty to provide the 1st defendant with legal representation in order to defend and protect the office and institution of the administration of justice in <st1:country-region><st1:place>Malaysia</st1:place></st1:country-region>.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">The plaintiff's cause of action was based on the writ of seizure and sale. Upon a true construction of the relevant rules in Order 46 of the Rules of the High Court 1980 ("RHC"), it is clear that all monies received pursuant to the same have to be paid into the court first and the money so credited shall be paid to the judgment creditors pursuant to those rules. In the circumstances, the cheque was rightly made out in favour of the Senior Assistant Registrar.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">Judicial immunity conferred by Section 14(1) of the Courts of Judicature Act, 1964 ("CJA") is wide enough to extend to the discharge of a judge's duties under written law. These include all acts and duties expected or assigned to be performed by the 1st defendant both within and outside <st1:country-region><st1:place>Malaysia</st1:place></st1:country-region>. The mode and manner in which he exercised his duties were irrelevant.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">Pendakwa Raya v Ouseng Sama-Ae [2008] 2 AMR 51 [COA]<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">In order to establish a prima facie case, the prosecution had to prove that the accused was in actual possession of the drug and that the accused at the material time had the knowledge of the drug found to be in his possession. On the facts, the 1st element was easily established because the accused had the custody and control of the bag and it was clear from the evidence that he was exercising dominion over it at all material times.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">Shayne Corey Cahill v Kaka Singh Dhaliwal (didkawa di bawah seksyen 9(c) Akta Pertubuhan 1966 sebagai pegawai awam berdaftar Persatuan Perlumbaan Malaya [2008] 2 AMR 57 [COA]<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">It is a general rule that an issue which was not raised in the court below cannot be raised on appeal. However, as an appeal is conducted by way of rehearing, an appellate court retains the discretion as to whether to entertain a point raised for the first time on appeal. Therefore, the court should exercise its discretion in favour of hearing the new point raised by the plaintiff since the new point raised by the plaintiff was solely on the point of law, based on undisputed facts.<o:p></o:p></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-35928757485946793082010-03-11T13:54:00.000+08:002010-03-11T13:54:00.406+08:00<div class="MsoNormal" style="text-align: center;"><span style="font-weight: bold;">Ong Thye Peng v Loo Choo Teng & 7 Ors [2008] 1 AMR 757 [FC]</span><o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">Section 60 of the Probate and Administration Act, 1959 ("the Act") is concerned with the manner of disposal of the property of a deceased person by his personal representative. An executor is a trustee of the property of the beneficiaries just as an administrator is. Their duty was to ensure that the estate, of which they are trustees, benefits as much as possible when they deal with trust property. Thus, the obligation of executors and administrators towards the estate of which they are personal representatives must be the same because their primary duty was to protect the rights and interests of the beneficiaries. There can therefore be no difference in the duty of administrators and executors in the sale of estate property.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">It followed that even in the case of a sale of property by an executor, the relevant date to determine whether the price for the property is fair is not at the time of the offer but at the time of the hearing of the application for approval of the proposed sale.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">The Co-operative Central Bank Limited v KGV & Associates Sdn Bhd [2008] 1 AMR 789 [FC]<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">There was no duty of care owed by a registered valuer of a property to a financier (akin to a professional who ought not on policy grounds to be held to owe a duty to persons unknown).<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">See Teow Guan & 12 Ors v Liquidators of Kian Joo Holdings Sdn Bhd (in liquidation) & 3 Ors [2008] 1 AMR 811 [COA]<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">It is quite established that an injunction for the preservation of property and other mandatory orders may only be granted in accordance with the principles applicable to the granting of interlocutory injunctions. It may be granted where the court is satisfied that there is a substantial question to be tried, and a case has been made out for the preservation of that property. And as in the <i>American Cyanamid Co (No 1) v Ethicon Ltd [1975] AC 396</i>, smack on the issue of injunctions, there is the requirement that before a court exercises its discretion in favour of granting an injunction:-<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">(1) there must be a serious question to be tried;<o:p></o:p></div><div class="MsoNormal" style="text-align: center;">(2) there must not be any delay by the appellants in making the application;<o:p></o:p></div><div class="MsoNormal" style="text-align: center;">(3) that if the appellant were to succeed at the appeal, damages would not be adequate compensation for its loss;<o:p></o:p></div><div class="MsoNormal" style="text-align: center;">(4) that the balance of convenience lies in its favour;<o:p></o:p></div><div class="MsoNormal" style="text-align: center;">(5) the appellants must demonstrate evidence that its financial undertaking given to court is solid and worth powder and shot; and<o:p></o:p></div><div class="MsoNormal" style="text-align: center;">(6) there are special circumstances in its favour including the justice of the case.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">At this interlocutory stage, it is not the function of the court to resolve the issues on conflicting affidavit evidence, inclusive of difficult questions of law that require detailed argument or mature considerations.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">Mere fear and sentimentality certainly do not qualify as persuasive grounds construable as special circumstances.<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">Chee Kuat Fong & 3 Ors v Lee Wai Yen [2008] 2 AMR 1 [COA]<o:p></o:p></div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">Based on the judgment in Liew Yew Tiam & 3 Ors v Cheah Cheng Hoc & 2 Ors [2001] 2 AMR 2320, the trial court had erred in awarding separate awards for the joint tortfeasors, i.e., the defendants. However, the total amount awarded in relation to the libel by the learned judge was not outrageously exorbitant or shockingly excessive or even manifestly unreasonable, unjust or irrational. It was a fair and just compensation. In the circumstances, there should be no appellate interference.<o:p></o:p></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-63595584166753863462010-03-11T13:53:00.000+08:002010-03-11T13:53:12.262+08:00<div class="MsoNormal" style="font-weight: bold; text-align: center;"><st1:city><st1:place>Marina</st1:place></st1:city> bte Mohd Yusoff v Pekeliling Triangle Sdn Bhd (receiver and manager appointed) (and 3 Other Appeals) [2008] 1 AMR 687 [COA]</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">Marina bte Mohd Yusoff ("MY"), as a shareholder, has no legal right to any item of property owned by Pekeliling Triangle Sdn Bhd ("PTSB") other than a share in the profits while the company continue to carry out business. PTSB as the registered proprietor has priority of interest on the property over MY who is only a shareholder.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">By virtue of Sections 60 and 72 of the Pengurusan Danaharta Nasional Berhad Act, 1998 ("the Act"), the court is precluded from granting any injunction or other restraining orders against Pengurusan Danaharta Nasional Berhad ("the corporation") or Danaharta Urus Sdn Bhd ("Danaharta Urus") (a subsidiary of the corporation).</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">Apart from the test whether there is a likelihood of a successful appeal being rendered nugatory, the principle governing the grant of an interlocutory injunction are equally applicable to the grant of an Erinford injunction. Any application of an Erinford injunction must involve considerations of the overall justice of the case and as to whether damages would be an adequate remedy.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">The grant of an Erinford injunction by the learned high court judge fell foul of Section 72 of the Act as it had the effect of restraining the action taken or proposed to be taken by Danaharta Urus or its servants or agents over the assets.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">Neoh Hong Sang (t/a Neoh Hong sang Contractor) v Lye Weng Enterprise Sdn Bhd [2008] 1 AMR 703 [COA]</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">It was clear from Nancy Ooi's affidavit that she was the secretary to one of the directors of the respondent and not the secretary of the respondent as claimed by the appellant. Thus, she had no authority to sign anything on behalf of the respondent, more so an agreement on behalf of the respondent. Further, from her affidavit, it was shown that she signed the document as a witness and not as the respondent's agent.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">To allow or not to allow the application of striking out under Order 18 rule 19 of the Rules of the High Court 1980 on the ground of delay is a matter of discretion of the trial judge. In the absence of anything to show that the trial judge had exercised his discretion wrongly to the prejudice of another party, the appellate court would not interfere.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1911397598182273502010-03-11T13:52:00.001+08:002010-03-11T13:52:37.954+08:00<div class="MsoNormal" style="font-weight: bold; text-align: center;">Subashini a/p Rajasingam v Saravanan a/l Thangathoray (and 2 Other Appeals) [2008] 1 AMR [FC]</div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">The proviso to Section 51(1) of the Law Reform (Marriage and Divorce) Act, 1976 ("the Act") clearly reflects the imperative requirement which must be complied with before a petition for divorce can be made. The proviso imposes a caveat on the wife not to file the petition for divorce until a lapse of 3 months from the date of the husband's conversion to Islam. Thus the High Court would not have the jurisdiction to entertain the wife's petition unless the proviso is complied with.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">A non-Muslim marriage does not automatically dissolve upon one of the parties' conversion to Islam. Thus by contracting the civil marriage, the husband and wife were bound by the Act in respect of divorce and custody of the children of marriage and thus, the civil court continued to have jurisdiction over him notwithstanding his conversion to Islam.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">There was no impediment for the husband to appear in the divorce proceedings in the High Court albeit as a respondent, as the jurisdiction of the High Court extended to him unlike the Syariah High Court which restricted its jurisdiction to persons professing the religion of Islam only.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">Both the civil and Syariah courts are administered separately and are independent of each other and are of equal standing under the Constitution.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">The civil court cannot be moved to injunct a validly obtained order of a Syariah Court of competent jurisdiction.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">The word "parent" in Article 12(4) of the Constitution which states that the religion of a person under the age of 18 shall be decided by his parent or guardian, means a single parent. Thus, either husband or wife had the right to convert a child of the marriage to Islam and therefore, Article 8 of the Constitution was not violated.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">An<span lang="EN-GB"> Erinford</span> injunction pending an appeal or an application for leave to appeal like a stay of execution pending an appeal is ordinarily granted by the court which made the decision that is the subject of the appeal.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">Leasing Corporation Sdn Bhd v Indah Lestari Sdn Bhd [2008] 1 AMR 653 [COA]</div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">The plaintiff was legally bound to make a full and frank disclosure of all material facts since in an application for an injunction, it must be made with utmost good faith.<o:p></o:p></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-22825667389374363982010-03-11T13:52:00.000+08:002010-03-11T13:52:01.380+08:00<div class="MsoNormal" style="font-weight: bold; text-align: center;">Wu Siew Ying (t/a Fuh Lin Bud-Grafting Centre) v Gunung Tunggal Quarry & Construction Sdn Bhd & 2 Ors [2008] 1 AMR 496 [COA]</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">It has been a generally accepted principle that amendments to pleadings can be made at any stage of the proceeding before the pronouncement of the decision. Therefore, it was not unlawful for the third defendant to apply for the amendment at this late stage even after the submission of parties had been made.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">Dato' Seri Dr Kok Mew Soon & 3 Ors v Mustapha bin Mohamed & 2 Ors [2008] 1 AMR 537 [HC]</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">Pursuant to Section 72(a) of the Pengurusan Danaharta Nasional Berhad Act, 1998 and the relevant authorities, the court is prohibited from granting an injunction order against Danaharta as a corporation.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;">As receivers and managers, the 1st and 2nd respondents could be equated as special administrators as they were appointed by Danaharta as their agents and acting pursuant to their power as provided under the Danaharta Act. As such, they were protected from liability against any action or proceedings in a court of law for any loss or damage whilst exercising their function and power in good faith. Though Section 72 of the Act does not specifically mention the word "receiver and manager", by implication, a receiver and manager should also have the same immunity under Section 66 of the Act as accorded to a special administrator or an independent advisor and therefore, protected against any legal action such as injunction.<o:p></o:p></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1248818844814550192010-03-11T13:51:00.000+08:002010-03-11T13:51:31.002+08:00<div class="MsoNormal" style="font-weight: bold; text-align: center;">Araprop Development Sdn Bhd v Leong Chee Kong & Anor [2008] 1 AMR 373 [COA]</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">Where there is late delivery of vacant possession of property, a purchaser has the right to either to terminate the sale and purchase agreement or to sue for late delivery damages. A purchaser cannot terminate the sale and purchase agreement and claim damages for late delivery.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">Kaseh Lebuhraya Sdn Bhd v Azam Development & Construction Sdn Bhd [2008] 1 AMR 454 [HC]</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">There is a duty on the applicant under Section 176 of the Companies Act, 1965 to disclose all material facts in clear and precise terms which may have a bearing on the decision of the court as to whether or not to grant a restraining order in the first place.</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="font-weight: bold; text-align: center;"><br />
</div><div class="MsoNormal" style="font-weight: bold; text-align: center;">Yeow Khoon Kwong v Seng Jong Sdn Bhd [2008] 1 AMR 460 [HC]</div><div class="MsoNormal" style="text-align: center;"><o:p> </o:p></div><div class="MsoNormal" style="text-align: center;"><br />
</div><div class="MsoNormal" style="text-align: center;">A consent judgment is final unless amended by consent of both parties.<o:p></o:p></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-69187700151865733132010-03-11T13:50:00.001+08:002010-03-11T13:50:50.238+08:00<div style="text-align: center;"><span style="font-weight: bold;">Can audited accounts be challenged in the Malaysian courts?</span></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><span style="font-weight: bold;"> </span><span lang="EN-GB"> <span style="font-weight: bold;">Soo</span></span><span style="font-weight: bold;"> Boon Siong @ Saw Boon Siong v Saw Fatt Seong dan Soo Hock Seang (sebagai wakil harta pusaka, Soo Boon Kooi @ Saw Boon Kooy, si mati dilantik menurut perintah mahkamah bertarikh 22.10.2001) & 4 Ors [2008] 1 AMR 293</span> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">In this Court of Appeal decision, it was held that the audited accounts were inadmissible as not only the accounts had been challenged, the auditors had not been called to verify the contents. The fact that the appellant had signed the documents relating to the audited accounts which he then challenged was not conclusive of the validity or truthfulness of the accounts. Neither the Companies Act 1965 nor the principle of public policy prohibits a director from challenging the very accounts that he may have signed under the Companies Act 1965. Any other view to the contrary would mean that audited accounts would be admissible as a matter of course and without question merely because they had been signed by the directors. In any event, regardless of whether the accounts had been challenged or not and the issue of the appellant signing the accounts, it was the duty of the court to exclude inadmissible evidence.<o:p></o:p></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-65279634699515788462010-03-11T13:50:00.000+08:002010-03-11T13:50:09.449+08:00<div style="text-align: center;"><span style="font-weight: bold;">Joint venturers owe a fiduciary duty to each other</span></div><div style="text-align: center;"><span style="font-weight: bold;"> </span><o:p> </o:p> </div><div class="MsoNormal" style="text-align: center;">In <span style="font-weight: bold;">Eastern Properties Sdn Bhd v Hampstead Corporation Sdn Bhd [2008] 1 AMR 285</span>, the Court of Appeal held that joint venturers owe a fiduciary duty to each other: just as partners do.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-24680434130982175372010-03-11T13:48:00.000+08:002010-03-11T13:48:12.358+08:00<div style="text-align: center;"><b>Where rights of parties are to be finally determined in a particular application, an affidavit may not contain hearsay evidence </b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">In Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008] 1 AMR 105 [COA], the Court of Appeal held that the general rule under Order 41 r 5(1) RHC 1980 is that where the rights of parties are to be finally determined in a particular application, an affidavit may only contain such facts as the deponent was able to his own knowledge to prove. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Whether the Industrial Court can choose to depart from the Industrial Court Practice Note No 1 of 1987 </b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">In Telekom Malaysia Berhad v Ramli bin Akim [2008] 1 AMR 274 [COA], the Court of Appeal held that the Industrial Court had chosen to depart from the general practice under the Industrial Court Practice Note No 1 of 1987 (which limits the award of backwages to 24 months) without justifiable circumstances to warrant its departure. The Court further held that future loss of earnings has never been an established and recognised head of damage in the Industrial Court, save for the case of R Rama Chandran v Industrial Court of Malaysia [1997] 1 AMR 433, which was an exceptional case. This Court also observed that in Koperasi Serbaguna Sanya Bhd. Sabah v Dr James Alfred, Sabah & Anor [2000] 3 AMR 3493, the Court of Appeal had ruled that in industrial law involving compensation for unfair dismissal, there are only 2 types of compensation, which is backwages and compensation in lieu of reinstatement. That decision was subsequently affirmed by the Federal Court in Dr James Alfred v Koperasi Serbaguna Sanya Bhd, Sabah & Anor [2001] 4 AMR 4225.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-66506342524023807182010-03-11T13:47:00.001+08:002010-03-11T13:47:17.356+08:00Can a registered proprietor caveat his own land?In <b>Mohamed Ali bin Abdul R<span class="blsp-spelling-error" id="SPELLING_ERROR_0">azak</span> v Sim Hock Yang [2008] 1 <span class="blsp-spelling-error" id="SPELLING_ERROR_1">AMR</span> 68</b>, the Court of Appeal held that pursuant to Section 323 of the National Land Code 1965, a person cannot "claim" title to something which is already vested in him or her. Since a registered proprietor will be unable to bring him or herself within the terms of Section 323(1) of the Code, he or she does not have a <span class="blsp-spelling-error" id="SPELLING_ERROR_2">caveatable</span> interest.Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-53073861964960940802010-03-11T13:47:00.000+08:002010-03-11T13:47:01.291+08:00Failure to present the original bank guarantee when making a demandIn <b>Karya Lagenda Sdn Bhd v Kejuruteraan Bintai Kindenko Sdn Bhd & Anor [2007] 6 AMR 13</b>, the Court of Appeal held that since the payment mechanism as contained in the bank guarantee makes no reference or requirement that the original bank guarantee must be produced at the time of demand before payment can be made, it is, therefore, not a contractual requirement.Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-86677817800127123472010-03-11T13:46:00.002+08:002010-03-11T13:46:44.647+08:00What is the legal status of an endorsement of a restrictive date for the filing of claims in a contract?In the recent Court of Appeal case of <b>MBf Insurans Sdn Bhd v Lembaga Penyatuan & Pemulihan Tanah Persekutuan (Felcra) [2007] 5 AMR 778</b>, it was held that an endorsement of a restrictive date for the filing of claims in a contract contravenes Section 29 of the Contracts Act, 1950 and Section 6 of the Limitation Act, 1953.Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-81563254036271368202010-03-11T13:46:00.001+08:002010-03-11T13:46:26.471+08:00What is the fundamental principle in the construction of statutes?The Federal Court has recently held in <b>PP v Sa'ari Jusoh [2007] 2 CLJ 197 </b>that it is a fundamental principle in the construction of statutes that the whole and every part of the statute must be considered in the determination of the meaning of any of its parts. In the subsequent Federal Court case of <b>Sri Bangunan Sdn Bhd v Majlis Perbandaran Pulau Pinang & Anor [2007] 5 AMR 541, </b>it was held by the apex court that in construing a statute, the duty of the court is limited to interpreting the words used by the Legislature and to give effect to the words used by it. The court is not entitled to read words into a statute unless clear reason for it is to be found in the statute itself.Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-14463010235870427092010-03-11T13:46:00.000+08:002010-03-11T13:46:04.905+08:00What are the available remedies to a purchaser when he is given a defective house out of time by the seller developer?In <b>LSSC Development Sdn Bhd v Thomas Iruthayam & Anor [2007] 2 CLJ 434, </b>the Court of Appeal held that where purchasers were given a defective house out of time by the developer, for the defects, that was something for which they were entitled to be compensated. As for the delay in delivery, the contract itself contained a clause which provided the formula for the compensation that the developer must pay for its lateness. This was the clause to which the purchasers have recourse as it created a contractual obligation to pay a single sum by way of liquidated damages for the period during which they were kept out of the building for which they had already paid, such sum being calculated upon the basis set out in the sale and purchase agreement.Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-82362002651208150062010-03-11T13:45:00.001+08:002010-03-11T13:45:43.479+08:00Construction of written documents - the applicable principle of lawIn <b>Bintulu Development Authority v Pilecon Engineering Bhd [2007] 2 CLJ 422, </b>the Court of Appeal reaffirmed the proposition that it is trite law that the construction of a written document is a question of law and not fact.Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-26921726340851620602010-03-11T13:45:00.000+08:002010-03-11T13:45:21.442+08:00What happens when a party to a contract unilaterally introduced a new term into it without the other party's consent?This is one question many contractual parties have to deal with in the course of their commercial dealings. The answer was reiterated in the recent pronouncement by the <b>Court of Appeal </b>in <b>See Teow Chuan & Anor v YAM Tunku Nadzaruddin Ibni Tuanku Jaafar & Ors [2007] 2 CLJ 82 </b>whereby it was held that an attempt by a party to a contract to unilaterally introduce a new term into it was regarded as a breach of contract because it amounts to an intimation of an intention to abandon and altogether to refuse the performance of the contract.Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1140055673192876722010-03-11T13:44:00.000+08:002010-03-11T13:44:17.610+08:00Law updates - Criminal law (Malaysian law unless otherwise stated)<div style="text-align: center;"><b>* Abbreviations </b> <b></b> </div><div style="text-align: center;">HC = high court </div><div style="text-align: center;">COA = court of appeal </div><div style="text-align: center;">FC = federal court <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b></b></div><div style="text-align: center;"><b>Public Prosecutor v Umar Cipto Sumarto [HC]</b> <b></b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">From the evidence adduced, the prosecution succeeded in proving the unlawful possession of more than 2 firearms by the accused and could with justification rely on the presumption of trafficking in firearms under s 7(2) of the Act. The accused knew that the firearms and ammunition were in P5 and P6, which had been placed by him on board the vessel and that he had the power of their disposal to the exclusion of all the others on board at the time they were seized. There was no evidence to prove material breaks in the chain of evidence. Notwithstanding the discrepancies and inconsistencies in the testimony of the prosecution's witnesses, the accused's testimony and by inference from the relevant surrounding circumstances showed that the prosecution had succeeded in establishing that the exhibits produced in court were the firearms and ammunition seized from the vessel. It would be totally unjust to impose upon the prosecution the added burden of disproving or excluding every doubt that may possibly exist. With regards to the issue of whether the firearms and ammunition were "lethal" within the context of s 2(1) of the Act, it was sufficient in the instant case for the prosecution to adduce evidence to show that the same were serviceable because it was an obvious fact that those weapons would cause injury which could lead to death if "a shot bullet or missile" was discharged. There was no merit in the argument that the accused did not and never had the intention to "sell" the firearms and that therefore, he could not be said to be trafficking in firearms. In the first place, the prosecution having proved that the accused was in unlawful possession of more than 2 firearms was entitled to invoke the presumption of trafficking under s 7(2) of the Act. There was no doubt that the accused was in unlawful possession of the firearms because he admitted that he did not hold an arms license or a valid permit. The words "transfer, sell or offer for sale" in s 2(1)(c) of the Act must be read disjunctively and in the circumstances, the prosecution had clearly established that the accused intended to transfer the firearms and ammunitions to his comrades in Indonesia. Lastly, there was also no merit to the contention that there was a doubt as to whether the offence was committed in Malaysian waters. The evidence to the effect that the patrol boat was patrolling Malaysian waters sufficiently established that fact. On all the evidence adduced, the prosecution satisfactorily succeeded in establishing its case beyond reasonable doubt, on which the defence failed to cast a reasonable doubt. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Janti Jackson Empading & 5 Ors v C/Insp Zulkarnain bin Abdullah & Anor [HC]</b> </div><div style="text-align: center;"></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The areas of law involved in this instance, were in relation to ss 112, 113 and 117 of the Criminal Procedure Code (the CPC) which sections have been the subject of numerous litigation as evidenced by the reported cases and in particular those cases referred to by the applicants, which remain good law. Based on the authorities, the issues raised by the applicants have been fully dealt with and there was therefore no necessity in the circumstances for any ruling to be made in this instance, as a guide for future cases. The word "revision" connotes a situation where there is something to revise. Where there is nothing to revise, the general rule is that the powers of revision should be exercised only in the exceptional circumstances as laid down by the House of Lords in R v Secretary of State for Home Department and Another; Ex Parte Abdi [1996] 1 All ER 641 </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Reza Mohd Shah bin Ahmad Shah v Pendakwa Raya [COA]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;"> The decision in Sim Teck Ho, can easily be distinguished as in the present case the inference of possession of cannabis and the appellant's knowledge that the drugs in P3 were cannabis, was deduced only from the fact that the appellant had taken flight and thrown P3 and its contents to the ground upon being confronted. It cannot be concluded from the appellant's conduct that he knew that what he was carrying was cannabis. Other inferences could be easily drawn as the appellant could have acted in the manner he did in respect of any other offence relating to what was contained in P3, more so in this case as he was confronted by the police who were not uniformed at the time. By the operation of the DDA, it was necessary for the prosecution to prove directly or inferentially that the appellant had knowledge of the nature of the drugs he was carrying in P3. Knowledge in a person is a thing which cannot be seen or perceived but can be deduced only from the overt act or conduct of the person, short of the person's own admission. In the circumstances and from the conduct of the appellant, the appellant may be deemed to have been in possession of the drugs and to have known that P3 contained the same only under the provisions of s 37(d) of the DDA of which neither the trial judge nor the prosecution had availed themselves to. Short of invoking the said provisions no prima facie case had been made out against the appellant that he was in possession of cannabis with the requisite knowledge. Consequently, the issue of trafficking in the said drugs does not arise at all as the issue of possession of the same by the appellant had not been made out by the prosecution. Though however there was no direct evidence of possession with the requisite knowledge but on the facts, and based on the provisions of s 37(d) of the DDA, the prosecution had made out a prima facie case for an offence under s 6 of the DDA and the appellant ought to have been called to enter his defence for such offence. The appellant's defence at the trial should have been considered as a defence on the reduced charge of possession of cannabis. On the facts, and considering the appellant's defence, which was one of mere denial of the prosecution evidence, the appellant had failed to rebut the presumption under s 37(d) of the DDA or to raise any reasonable doubt as to his custody and control of P3, which contained the drugs. The prosecution in the circumstances, had proved its case against the appellant on the reduced charge of possession, beyond reasonable doubt and consequently, the appellant was guilty of an offence under s 6 of the DDA. </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Pendakwa Raya v Soo Tai Leng [HC]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;"> Although there was no direct evidence, the circumstantial evidence adduced by the prosecution clearly showed that only the accused, the deceased and their 3 children were present at the time of the incident. SP4 confirmed that there was nobody else present at the material time. SP4 also saw the deceased trying to put out the flames, whilst the accused stood by without coming to his aid. Although there were minor inconsistencies in SP4's evidence, this did not mean that the whole of his evidence ought to be rejected. The circumstantial evidence showed clearly that the accused poured petrol on the deceased and then set him alight. It was indisputable that the accused was directly involved in causing the deceased's death. To qualify as a dying declaration in law and admissible as evidence, the deceased's statement must relate to the cause of death or the transaction causing the death as provided by s 32(1)(a) of the Evidence Act 1950. The statement made by the deceased to SP6, that the accused poured petrol on him and proceeded to set him alight, related to his cause of death, i.e. septicaemia due to severe burns. SP6's evidence on this point was accepted as true since there was no reason for him to make it up. However, since it was indisputable that the accused caused the deceased's death, the deceased's dying declaration was given very little consideration. Although the conduct of the accused was dangerous and it betrayed elements of premeditation, the circumstances showed that the incident occurred immediately after an argument between the deceased and the accused. Further, based on the testimony of SP4 and SP5, the court was inclined to the conclusion that the deceased had been violent towards the accused. However, this did not constitute a full defence in law. This however had to be considered in determining the mens rea of the accused at the material time. The fact that the accused did not attempt to flee after the incident was of no help to the prosecution in attempting to prove the mens rea of the accused. The lapse of 12 days after the incident and the deceased's subsequent death coupled with the fact that it was possible to stabilise the deceased before he was transferred to the hospital in Singapore were also valid considerations. Although the evidence adduced by the prosecution raised suspicions that the accused possessed the necessary mens rea to kill the deceased, the benefit of the doubt must and should be applied in favour of the accused in light of the circumstances of this case. Suspicion did not constitute evidence and could not be the basis for convicting the accused. The accused did not intend to cause injury to deceased that she knew would possibly cause his death. Further, the accused did not intend to cause injury that would, in ordinary circumstances, cause death. The prosecution therefore failed to prove a prima facie case against the accused under s 302 of the Penal Code (PC). At the close of the prosecution's case, there was firm evidence to show that the actions of the accused were done with the intention of causing grievous bodily harm that may cause death. Therefore, the prosecution had proved a prima facie case against the accused under s 304(a) of the PC, and the charge preferred against her was amended pursuant to the powers under s 158(1) of the Criminal Procedure Code. Upon the amendment to the charge, the accused pled guilty and she was convicted under s 304(a) of the PC. Section 304 of the PC provides the court with a wide discretion to determine the period of imprisonment. Of paramount importance would be public interest, as a lesson to the accused and to afford protection to the public. An offence under s 304(a) of the PC is serious where the maximum sentence may be imposed is 20 years imprisonment. However, based on the evidence adduced, the deceased had been violent towards the accused before she poured the petrol on him and set him alight. The accused was acting under severe emotional strain and grappling with her anger towards the deceased. The accused pled guilty at the first available opportunity upon the amendment of the charge. This showed that the accused was truly remorseful about the offence she committed. Therefore, a sentence of 8 years imprisonment from the date of arrest was appropriate and reasonable in the circumstances of this case. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Pendakwa Raya v Kenneth Fook Mun Lee @ Omar Iskandar Lee bin Abdullah (No 2) [COA]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">On the day of the incident, the respondent was armed with a loaded gun which he kept in an ankle holster. He could not be regarded as a person having no knowledge about the dangerous character of a loaded gun, which was clearly a lethal weapon. The weight of the evidence clearly established that the respondent was in control of his actions despite the alcohol he had consumed and that at the scene of the incident, he was capable of moving himself independently and was able to converse with others. There was no evidence to show that the respondent was staggering or that his speech was incoherent. There was also nothing to show that his mind was so affected by the alcohol that he had consumed that he was incapable of knowing that what he was doing was wrong. At the trial, the defence did not specifically raise the defence of intoxication. It was only alluded to in submissions at the end of the trial. The defence had, in fact, called witnesses to counter any suggestion that the respondent had acted under the influence of alcohol. It was not the duty of the trial court to speculate or anticipate any defence that had not been raised or give due consideration to the same. The law requires that a trial judge consider all the evidence that has been adduced in support of the defence and whether it is capable of raising a reasonable doubt in the prosecution's case. Such an exercise should only be carried out at the conclusion of the trial. The learned trial judge in this instance, notwithstanding that the defence had not been raised during the prosecution's case, dealt with it at length at the close of the prosecution's case. The facts were sufficient to bring the case within the ambit of s 300(d) of the Penal Code (PC). The invocation of the learned judge of s 300(c) of the PC was erroneous. Intention was not a necessary element under s 300(d), where all that is needed is knowledge that the act is likely to cause death. The emphasis in s 300(d) is on the imminently dangerous character of the act itself, and is usually applied where the offender acts in general disregard for human life and safety. It is clear from the evidence that the respondent did not know the deceased. The respondent committed culpable homicide amounting to murder, which offence clearly fell under s 300(d). The respondent failed to show on a balance of probabilities that he did not know that his act of discharging his gun at the deceased in close range was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. The learned judge therefore misdirected himself in fact and in law and ought to have found the respondent guilty on the original charge of murder.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1136439568204448162010-03-11T13:42:00.000+08:002010-03-11T13:42:23.219+08:00Law updates - Insurance (Malaysian law unless otherwise stated)<div style="text-align: center;"><b>*Abbreviations</b> </div><div style="text-align: center;"><b></b> HC = high court </div><div style="text-align: center;">COA = court of appeal </div><div style="text-align: center;">FC = federal court <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>The Great Eastern Life Assurance Company Limited v Indra Janardhana Menon (dilantik menurut Perintah bertarikh 17-1-2005 untuk mewakili harta pusaka NVJ Menon, Si Mati) [FC]</b> </div><div style="text-align: center;"></div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The court of appeal was correct to hold that Menon was entitled to the overriding commission as paragraph II(A)(I) of the circular makes provision for the payment of overriding commission to an immediate superior at the rate of 10% of the group scheme agent's commission. In the circumstances of the case, Menon was Indrani's immediate superior as he was the one who recruited Indrani. From the facts, there was no evidence identified by the court of appeal to establish the parties intention that the obligation to pay overriding commission was a continuous one and not from time to time as and when payment became due. There was also nothing to show in any of the agreements that the parties had agreed to prolong the obligation to some date in the future. As such, there was no basis for the court of appeal to make a conclusion that the parties had intended it to be so. As far as the issue of the action being time barred was concerned, the law is well settled. A cause of action founded on contract accrues on the date of its breach and time begins to run from that breach. In the circumstances, the appellant's obligation to pay and Menon's entitlement to overriding commission arose in 1986 when premiums payable to the appellant on the group insurance scheme secured by Indrani was received by the appellant. When the appellant refused payment of the overriding commission as demanded by Menon, the appellant was in breach of its obligation. It is at that point of time that time began to run. The suit instituted by Menon in 1993 was thus time barred. In allowing the appeal, the court of appeal failed to appreciate that Menon's claim was not maintainable as it related to the sale of a group insurance scheme in 1986, whereas his entitlement for overriding commission was governed by the circular, which only came into effect on January 1, 1987. </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Ramli bin Shahdan & Anor v Motor Insurer's Bureau of West Malaysia & Anor [COA]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">When a contract as in this case, is made between the first and second respondents for the benefit of the appellants, the second respondent can sue on the said contract for the benefit of the appellants, and recover all that the appellants would have recovered as if the contract had been made by the appellants themselves. If the second respondent were to fail in his duty, the appellants as beneficiaries under the implied trust may successfully maintain an action against the first and second respondents as joint defendants. For the purposes of the appeal, the issue of locus of the appellants to sue is cadit questio. The second agreement, in the words of the preamble thereto, was a substitute to the first agreement and was deemed to have rescinded the first agreement. That there was an unequivocal intention of the contracting parties to mutually rescind the first agreement, was also clearly laid out in clause 1(b) of the second agreement. The effect of such a rescission by mutual agreement would mean that the first agreement was extinguished. Consequently, there was no obligation on the respondents to perform any bargain or obligation under the first agreement. Pursuant to clause 2 of the first agreement and clauses 2 and 3 of the second agreement, what was imperative for the purposes of enforcement against the first respondent was, a judgment. However, the judgment that was obtained by the appellants was dated September 3, 1993, and was obtained after the first agreement had been deemed ineffective. The said judgment thus fell outside the sphere of the first and second agreements bearing in mind the termination of the first agreement on December 31, 1991 and clause 3 of the second agreement which provides that the said agreement shall be applicable to all claims preferred against the first respondent, excluding any court awards remaining unsatisfied as at January 1, 1992. The submitting of the claim forms by the appellants pursuant to the second agreement, against the backdrop of correspondence produced by the appellants clearly showed that the appellants were in no way labouring under any impression held out by the respondents, that they were entitled to their claims under the first agreement. </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Poh Siew Cheang v American International Assurance Co Ltd [HC]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;"> On the available evidence, the plaintiff had disclosed the fact that he was diabetic and that he held other insurance policies to the defendant's agent, which knowledge was deemed to be that of the defendant's pursuant to s 44A of the Insurance Act 1963 (the Act). The defendant is a company incorporated in Hong Kong with branches in Singapore and Malaysia. The fact that the plaintiff disclosed his diabetic condition to its branch in Singapore would be sufficient to constitute constructive notice to its branch in Malaysia. It was not sound commercial practice for a corporation like the defendant's not to have a common computer system. The concept of constructive notice can also be imputed to the facts of the instant case and when so imputed, it may be shown that the defendant had such knowledge. Given the fact that the plaintiff subsequently obtained insurance from a different insurer, where he made the same disclosures, there was no reason for the plaintiff not to have made the same disclosure to the defendant. SP3's evidence carried with it an element of truth in it and weighed in favour of the plaintiff. There was therefore no reason to doubt that the plaintiff had consistently disclosed the fact of his diabetes and that he was otherwise also insured overseas. The defendant's agent filled out the proposal form and being the defendant's agent, it was the defendant who should have called him to give evidence. There was no reason for the plaintiff to risk calling the agent bearing in mind that the agent could have turned "turtle". Further, the court would have construed the agent as being in collusion with the plaintiff and the weight to be attached to his evidence would have been minimal. In any event, s 44A of the Act was invoked. The plaintiff's evidence was based on what he told the agent and what the agent said to him in return, likewise with SP2. That being the case, their evidence was direct evidence of what they had heard from the agent, to which both testified in court. There was therefore no issue as to reliance on hearsay evidence. Applying the decision in STU v The Comptroller of Income Tax [1937-1978] AMTC 176, the plaintiff's testimony was "worthy of credit" and there was "nothing improbable" therein and likewise, with SP2's testimony. The authorities relied on by the defendant to support their submissions as to the basis clause of the contract contained within the policy had all been decided before the introduction of s 44A of the Act. Since the plaintiff's and SP2's testimony had been accepted as credible, there was no breach of the basis clause. It was the defendant's agent who was guilty of impropriety by not disclosing the plaintiff's condition and his other policy coverage. Diabetic or otherwise, the injuries were sustained by the plaintiff as a direct result of the accident. The accidental fall was the direct and independent cause of the removal of the lens of the plaintiff's left eye. Prospective policyholders are at the mercy of their insurance agents. Recalcitrant agents who failed to record all disclosures made by the policyholder in the proposal forms are not held accountable. The courts therefore exist to protect, inter alia, prospective policyholders. By virtue of s 44 of the Act, what the defendant's agent knew must be imputed to the defendant insurer and therefore permitted the court, on the facts of the instant case, to invoke the same. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Leong Kum Whay v QBE Insurance (M) Sdn Bhd v QBE Insurance (M) Sdn Bhd & 3 Ors [COA]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b> </b> When as in this case, a policy of insurance for a fixed period is renewed by mutual consent, the original proposal form becomes incorporated into the renewed policy and continues to form the basis of the contract. More so in this instance where the renewal certificate expressly states that the renewal is "subject to all terms and conditions and endorsements in your original policy". This would include the declarations in the original proposal form which formed the basis of the contract. Bearing in mind the provisions of clause 6.3 of the original policy, the appellant's statement to the first respondent that he did not have any life insurance policy, was a material fact, though it was untrue. In the circumstances the first defendant was clearly within its contractual rights to refuse payment. Once it is accepted that the appellant's other life policies are a material fact and that the appellant was obliged to inform the first respondent of the same, the matter is at an end. The question of a fresh proposal form cannot arise when the renewal certificate specifically states that the renewal is on the same terms and conditions as contained in the original policy. In the circumstances the High Court was entirely correct in upholding the award dismissing the appellant's claim against the first respondent. The duty is on the insured to make full and frank disclosure of material facts within his knowledge. Whether a particular fact is material, is a question of fact. However, the duty to make full disclosure of all material facts is not an implied terms of a contract of insurance. There is in fact no contract at the point at which the duty arises; the parties being still at the stage of negotiations. Such duty is a pre-contractual duty imposed by the common law. It is without a doubt that the original policy and the second policy issued by the second respondent are two different contracts. On the authorities, the appellant was duty bound to disclose his other personal accident policies to the second respondent prior to it issuing the second policy. The appellant must, as a reasonable man be taken to have known the importance that the second respondent attached to the existence of other personal accident policies. Accordingly, the materiality of the fact not disclosed by the appellant was inferentially established before the arbitrator, who was therefore entirely correct as a matter of law in rejecting the appellant's claims against the second respondent. At common law, where an insurer's agent either fills in or assists in the filling in of a proposal form, he acts in that instance as the agent of the insured and not the insurer. It does not matter that the proposer was illiterate. Pursuant to s 44A(1) of the Act however, where an insurer holds out that a person is its agent, then the knowledge of the agent is deemed to be the knowledge of the insurer, except in the circumstances mentioned in sub-section (3) i.e. where there is collusion or connivance between the agent and the insured, and cessation of agency of which the insurer has taken reasonable steps to inform the public at large. Section 44A of the Act, without a doubt therefore targeted the reversal of the common law. In this instance, the words "a person who has at any time been authorised as its agent by an insurer and who solicits or negotiates a contract of insurance in such capacity" in s 44A of the Act were construed by the arbitrator as enabling an insurer to place limits on the agent's authority whereas the section in fact speaks of the authority in general terms. By adopting such a narrow and restrictive interpretation on the said provision, the arbitrator was introducing a further exception to those already provided by subsection (3) and this would amount to unauthorised legislation. In the circumstances, the award in respect of the appellant's claim against the third respondent was fatally flawed by an error of law and must be set aside. The general rule in a claim for a debt is that interest must run from the date on which the debt became due and payable. The arbitrator therefore should have awarded interest on the sum claimed from the date of the accident because that is when the debt accrued. By awarding instead interest calculated from the date of the award, the arbitrator had thereby departed from the established practice having the force of law. He would have been entitled to do so only if he thought that there were reasons for depriving the appellant of interest for the relevant period. Having delivered a "speaking award" i.e. an award which deals with all issues of fact and law and the findings of fact being final and conclusive, the arbitrator was obliged to give his reasons for refusing to award interest in the usual way. By failing to do so, his award is liable to be set aside for misconduct in that there had been some irregularity of action which was not consonant with the general principles of equity and good conscience. Pursuant to s 69(4) of the Courts of Judicature Act 1964, the Court of Appeal is empowered to "make any order which ought to have been given or made, and make such further or other orders as the case requires". There are also no provisions in the Arbitration Act 1952 which prohibit the Court of Appeal from making such an award of interest in a case such as the present case and it is silent as to what should happen where an arbitrator dies. In the circumstances, and so as to meet the ends of justice, it was ordered that the award in respect should bear interest at the rate of 8% per annum from the date of the accident. </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Malaysia & Nippon Insurance Berhad v Low Buck Ngoh & Anor [HC]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">Pursuant to s 96(2)(a) of the RTA, an insurer, such as the defendant in this case, who has notice of the proceedings, is liable to pay a third party who is entitled to the benefit of a judgment obtained against an insured person by way of an exception to the doctrine of privity of contract. On the facts, the statutory notice had been duly and legally served on the defendant and there was no dispute by the defendant with regards to the service of the summons having been effected on it at the exact same address as stated in the statutory notice. In the circumstances, the defendant did in fact have notice of the said proceedings in which the judgment was given. Further, and as there was in this instance no order for stay of execution of the judgment, the judgment was therefore binding on the parties thereto. Any attempt to set aside the same must perforce be made by the driver and his employer in the proceedings in which the judgment was obtained. The defendant as insurer is not at liberty to reopen the matter by way of a collateral issue in this recovery action.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1145290313876183892010-03-11T13:40:00.000+08:002010-03-11T13:40:18.180+08:00Law updates - Shipping & Maritime (Malaysian law unless otheriwse stated)<div style="text-align: center;"><b>*Abbreviations</b> </div><div style="text-align: center;"></div><div style="text-align: center;"><b></b> <b>HC = High Court</b> <b> </b></div><div style="text-align: center;"><b>COA = Court of Appeal</b> </div><div style="text-align: center;"><b>FC = Federal Court</b> </div><div style="text-align: center;"></div><div style="text-align: center;"><b></b> <b> </b></div><div style="text-align: center;"><b>APV Hill & Mills (M) Sdn Bhd v AQ-Pacific Wide Sdn Bhd & Anor [COA]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;"> On the evidence there were no merits in the plaintiff's submission. The defendant, had not been informed of the alternative arrangement of the plaintiff to use the feeder vessel "Seng Leong" to transport the equipment from Port Klang to Singapore where it was to be loaded onto the "Lady Jane". In the circumstances, the defendant cannot be clothed with the knowledge of the transhipment so as to stop it from objecting the claim of the plaintiff. As far as the defendant is concerned, the journey of the equipment was to originate from Singapore and not any other port. It was the plaintiff who had rejected the proposals put forward by the third party so as to comply with the terms of the LC of the defendant with JOWFE. The plaintiff's transporting of the equipment from Port Klang via a feeder vessel amounted to a transhipment as defined in Houlder Brothers & Co v The Merchants Marine Insurance Co Ltd (1886) 17 QBD 354. By doing so, the plaintiff had gone against, and had acted contrary to the stipulation in the LC prohibiting transhipment of the equipment. There was no evidence to suggest collusion between the plaintiff and the defendant that there was to be a transhipment of the equipment from Malaysia to Libya. The plaintiff had in fact acted against the advice of the third party and without knowledge of the defendant. The falsity if at all, as to the description in the bill of lading was not created by the defendant. In the circumstances, the High Court had not erred in its decision to dismiss the plaintiff's claim and to allow the defendant's counterclaim. It was not the third party who had insisted that a feeder vessel be used instead, in defiance of the prohibition on transhipment. It was the only alternative for the equipment to be transported to Singapore in view of the plaintiff's refusal to accept the proposal for the same to be transported by road. The bill of lading which was sent to the defendant by the third party and which did not represent the true state of affairs as on the face of it, there appeared to be no transhipment of the equipment, was sent upon the instructions of the plaintiff. The misdeeds cannot be attributed to the third party who had merely carried out the instructions of the plaintiff. In the circumstances, there was no error committed by the High Court in its finding of non-liability on the part of the third party. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Pemilik dan Sesiapa Berkenaan dengan Kapal atau Vesel "Siti Ayu" dan "Melati Jaya" v Sarawak Oil Palm Sdn Bhd & Anor [COA]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">The cause of action in the counterclaim principally, was for the wrongful arrest and detention of the tugboats, but subsequently, and by way of amendments, claims for damages in respect of the plaintiffs' failure to comply with the order of court for it to insure and maintain the tugboats were added. None of the said causes of action fall within any of the provisions set out in the relevant section of the Supreme Court Act 1981 (United Kingdom) or, in any other section thereof. These claims, in the circumstances, were certainly outside the ambit of the admiralty jurisdiction. On the facts, the plaintiffs' claim was within the admiralty jurisdiction, whereas the defendants' counterclaim falls under the normal civil jurisdiction. Notwithstanding there being a difference in jurisdiction, on the authorities, the same principle governing the determination of a counterclaim would apply. Applying the rationale in The Cheapside [1904] P 339, and though the plaintiffs' claim and the defendants' counterclaim fall under two different jurisdictions, the trial judge should have for sake of convenience, blended the two jurisdictions and disposed off the counterclaim as a non-admiralty proceeding in an action that had originated from an admiralty proceeding. Bearing in mind that the counterclaim involves the finding of liability and quantum, it would be appropriate in the circumstances for the court of first instance to decide on such matters.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1137817654087948812010-03-11T13:39:00.000+08:002010-03-11T13:39:10.088+08:00Law updates - Revenue law (Malaysian law unless otherwise stated)<div style="text-align: center;"><b>*Abbreviations</b> </div><div style="text-align: center;"></div><div style="text-align: center;"><b></b> <b>HC = high court</b> </div><div style="text-align: center;"><b></b></div><div style="text-align: center;"><b>COA = court of appeal</b> </div><div style="text-align: center;"><b>FC = federal court</b> </div><div style="text-align: center;"></div><div style="text-align: center;"><b></b> <b> </b></div><div style="text-align: center;"><b>Steruda Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [HC]</b> <b></b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">A contract payment may, depending on the circumstances, be a bonus payment. However, it did not follow that every contractual payment that was not derived of a fixed lump sum was a bonus. The sum of RM3,000 per month did not commensurate with the consultant's position as a senior obstetrician and gynecologist. The sum of RM3,000 per month was part of a single package of the consultant's total remuneration. The part of the consultant's remuneration package providing for the payment of 25% of the appellant's profits was a method of calculating the rest of his salary, the payment of which was deferred until after the profits were ascertained. The payment of the sum representing 25% of the appellant's profits was not discretionary and not subject to review, nor did it apply to any of the appellant's other employees. </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Suasana Indah Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [COA]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;"> The definition of partnership in s 2 of the Income Tax Act 1967 (the Act) is not applicable for determining at large whether an arrangement between parties is a partnership, but is intended only for the interpretation of that word where it is used in the Act. The appellant's contention that the sum of RM6,400,000 was capital withdrawn upon the dissolution of a partnership and therefore not chargeable to tax, does not provide occasion or justification for calling in aid the definition of the word "partnership" in the Act. The said definition cannot be used to determine whether the JVA constituted or created a partnership between the appellant and SPSSB. Article 11.7 of the JVA must therefore prevail and be given effect to. Consequently there was no dissolution of partnership as such and the sum of RM6,400,000 was therefore not capital withdrawn upon any such dissolution of partnership. In any event, there could not have been any withdrawal capital when there was never injection of such capital in this instance. In order to determine if the sum of RM6,400,000 was capital, the vital test to be satisfied as laid down in Van den Berghs, is, whether the JVA was one that was "related to the whole structure of the appellant's profit making apparatus". The said test is one which looks to the nature of the agreement in relation to the profit making apparatus of the company, and which agreement can be said to be related to the whole structure of the profit making apparatus of the company. It certainly does not look primarily to the consequences on the profit making apparatus as a result of the cancellation or termination of the agreement. The appellant was not incorporated for the purpose of implementing the JVA nor did the JVA regulate its activities. Based on what the appellant was required to do under the JVA, the JVA was merely an ordinary commercial contract for the provision of services, made in the course of carrying out of the appellant's business. There was no evidence that the JVA was related to the whole structure of the profit making apparatus of the appellant. In the absence of such evidence to that effect, the appellant therefore failed to prove that the RM6,400,000 was neither capital withdrawn from a partnership nor compensation for loss of all rights under the JVA. The JVA constituted or represented the interest of the appellant and SPSSB and the services rendered by the appellant were, whilst the joint venture lasted, a contribution to their common interest and had benefited SPSSB in that it increased the value of SPSSB's lands. Upon termination of the JVA, the said lands remained with SPSSB and the services rendered by the appellant, which had increased the value of the said lands, were as good as having been rendered to SPSSB. Whether or not the appellant was an independent contractor in the sense intended, and whether or not the JVA was in the circumstances, an agency agreement, the fact remains that pursuant to the JVA, the appellant had contracted with SPSSB to perform services, and did in fact perform such services. </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Ketua Pengarah Hasil Dalam Negeri v Malaysian Bar [HC]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;">On the facts, there was no justification to reverse the determination of the Special Commissioners of Income Tax (SCIT) on this issue. In essence: (a) Section 142(1) and 142(2) of the LPA is to be read separately; (b) It was correct for the SCIT to have gone through the historical basis; (c) There was clearly a drafting error due to the oversight of the drafter of the legal profession bill and any ambiguity if at all, in the said bill, must be construed in favour of the taxpayer; (d) A purposive approach should be taken in the interpretation of the ITA and the LPA instead of a literal approach so as to ensure there is no surplusage and absurdity. In the context of income tax legislation, for an organization to be deemed a "trade association", the following conditions must be satisfied i.e.: (a) it must be formed by two or more persons for a common cause; (b) the members must have voluntarily gotten together to form the association; (c) the object of the association is to produce income, profits or gains. The organization cannot be recognized as an "association of persons" for tax purposes if any of the above conditions are not satisfied. In the instant case none of the above conditions befits on the respondent and as such the respondent cannot be deemed to be a trade association. The objects of the respondent as set out in s 42(1) of the LPA, clearly, is not to produce income, profit or gain, but rather, to uphold the cause of justice and to improve the standards of conduct of the legal profession, etc. Nowhere is it stated therein that the "safeguarding or promoting the business of its members", is its main object. Undoubtedly therefore s 53 of the ITA is not applicable to the respondent. Section 80(13) of the LPA clearly stipulates that the respondent is exempted from tax on the compensation fund and it is evident that the said provision is constituted under Article 96 of the Federal Constitution which provides that "No tax or rate shall be levied by or for the purposes of the Federation except by or under the authority of federal law". The LPA is obviously a specific legislation whilst the ITA is a general legislation and therefore where there is a conflict between the LPA and the ITA, it is the LPA which prevails. The respondent, being a statutory body, is entitled to claim deductions for capital allowances in accordance with s 78 of the LPA. </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Mount Pleasure Corporation Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [COA]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;"> There was no evidence to support the appellant's contention that the property was bought for investment purposes. There was also no admissible oral evidence to establish that the property was acquired as an investment. From the facts proved, the said property was not the only property that the appellant dealt with at the material time, where it had dealings with 5 other properties. The special commissioners were therefore right to conclude that its frequent dealings raised a prima facie inference that it was carrying on the business of land dealing, either as a developer or as real estate merchant, which inference the appellant failed to rebut. The presumption against the appellant was further strengthened by the fact that its memorandum and articles of association did not authorise the purchase of land for investment purposes except if there were surplus funds, which it did not have. In fact, the evidence showed that the purchase of the said property was financed by family funds. The special commissioners further found that although the appellant claimed that the property was classified as stock-in-trade in 1978, it remained a fixed asset in its accounts until 1982, with no explanation offered for the discrepancy. The appellant failed to discharge the onus of proving that the assessments raised against it were erroneous.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1140414478108910742010-03-11T13:37:00.000+08:002010-03-11T13:37:28.007+08:00Law updates - Land law (Malaysian law unless otherwise stated)<div style="text-align: center;"><b>* Abbreviations</b> </div><div style="text-align: center;"><b></b> <b>HC = high court</b> </div><div style="text-align: center;"><b>COA = court of appeal</b> </div><div style="text-align: center;"><b>FC = federal court</b></div><div style="text-align: center;"><b> </b> </div><div style="text-align: center;"><b></b> <b>Laksamana Realty Sdn Bhd v Vong Ban Hin [HC]</b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b> </b> <b></b> The defendant's claim to a right to title or interest must be to a registrable title or interest in relation to the plaintiff as the registered proprietor and not one who is not a registered proprietor. Upon examination of the grounds expressed by the defendant in the Form 19B read with his statutory declaration, it was clear that the defendant's alleged right to the title or interest in the land, if any, was not directed at the plaintiff. Instead it was directed wholly and exclusively against Tan Guan Soon on behalf of one Tan Huan and one Tan Eng Chye who had allegedly jointly developed the said land pursuant to an agreement dated May 5, 1964. The ground expressed by the defendant in the Form 19B, was therefore clearly insufficient in law to support a caveat. Hence cadit quaestio. <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Robert Lee @ Robert Seet and Jeffrey Lee Cheng Tiam v Wong Ah Yah (p) & Anor [COA]</b> </div><div style="text-align: center;"><br />
</div><div style="text-align: center;"> The trial judge was entitled to resort to any appropriate principle of law to do justice even if such principle had not been considered in submission. On the facts, the present case concerned an outright sale of land which had been recognized by the estate of the seller for 47 years as no longer belonging to it and which the buyer and his children have since, invested money on and had been using as their own land. De facto, the land belongs to the estate of Tan Tai Tip and no longer to the estate of Li Keng Liat. It is fair and just in the circumstances that the compensation for the acquisition, be paid to the estate of Tan Tai Tip. To do otherwise, would be to deprive the estate of Tan Tai Tip of the continued use and enjoyment of the said land which had been paid for, and to compensate and unjustly enrich the estate of Li Keng Liat which had received the price of the land of which it had practically divested itself of any claim. It was therefore not necessary in the circumstances for the plaintiff to have claimed entitlement to the compensation technically on the basis of exclusive possession and to have sought a declaration to that effect. The reason for Li Keng Liat's estate having remained as the registered owner was due to the fact that even if the parties had intended to effect a formal transfer, the land could not have been registered in Tan Tai Tip's name unless he had a qualifying certificate, which presumably he did not have nor attempt to obtain. The policy of the Ordinance is intended for the benefit of the Malacca Malays only and for the estate of Li Keng Liat. Had Li Keng Liat intended for the said land to be sold, then such sale should have been to a Malacca Malay. The sale of the said land to Tan Tai Tip was wrong, and as a result of which some Malacca Malay had been deprived of the opportunity of owning the land. However as the land had been acquired by the State, the need to uphold the policy does not extend to the compensation monies that represent the value of the land. The policy governing Malacca customary lands is therefore irrelevant to the dispute between the two estates over the compensation.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1140056810349468712010-03-11T13:35:00.000+08:002010-03-11T13:35:52.404+08:00Law updates - Labour law (Malaysian law unless otherwise stated)<div style="text-align: center;"><b>*Abbreviations</b> </div><div style="text-align: center;"><b></b> <b>HC = high court</b> <b> </b></div><div style="text-align: center;"><b>COA = court of appeal</b> </div><div style="text-align: center;"><b>FC = federal court</b> </div><div style="text-align: center;"> <b> </b></div><div style="text-align: center;"><b>Telekom Malaysia Berhad v Ramli bin Akim [HC]</b></div><div style="text-align: center;"><b> </b> </div><div style="text-align: center;"></div><div style="text-align: center;"><b></b> The Industrial Court, or the High Courts and the appellate courts possess the jurisdiction to interpret the law as to the amount or the number of months of back wages that may be awarded in any case. The courts may make their decision upon an interpretation of the relevant law and not at the direction to do so as attempted by the said practice note. In the circumstances, the law that called for interpretation was s 30 of the Industrial Relations Act 1967 (the Act), which governed the powers of the courts to make an award. Further, the Act does not contain any pre-set limit as to the numbers of months of back wages that may be awarded. It was not wrong in law per se if an award of back wages exceeded the 24 months limitation provided in the said practice note. Although it was neither party's fault that the hearing had been delayed, the respondent should not be made to suffer the repercussions. The applicant on the other hand was the party that should be made to shoulder the delay as being a consequence of their wrongful dismissal of the respondent. Employers should ponder very carefully before they embark on the dismissal of their employees and must take into account that the hearing may be protracted, resulting in a higher amount of back wages. The matter of the respondent's unsuccessful venture into business was not necessarily irrelevant because if the respondent had been successful, the profit would have to be brought into account when deciding on the amount of the back wages. Therefore, when the respondent failed in his business venture, it did not mean that he was unemployed at that time since he still was. The period during which he was unemployed, and not the failure of the business venture, was the actual factor that was taken into account when determining the amount of back wages due to him. Since the respondent was not expected to be able to obtain similar employment for the fact he had lost touch with his previous position, it meant that he would be out of employment and was thus rightly compensated by way of back wages. The loss of future earnings covers an entirely different period for which the respondent could not, for various reasons, be expected to secure similar employment, nor reasonably be expected to return to work for the applicant. The respondent would have been entitled to work till he was 55 years old if not for his wrongful dismissal on June 1, 1997 and therefore, would have been entitled to earn the wages from that period till his compulsory retirement age of 55 years. It mattered not what label was attached to the award of wages for that period but it was lawful to award the same from the date of the dismissal to the date of his compulsory retirement age. Deductions would then be made taking into account various factors, e.g. an employee having found alternative employment or having been gainfully engaged in business. None of the factors that would warrant a deduction was present in this case.</div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-19648369.post-1133934162971083472010-03-11T13:34:00.000+08:002010-03-11T13:34:32.746+08:00Law updates - Company (Malaysian law unless otherwise stated)<div style="text-align: center;"><b>*Abbreviations</b> </div><div style="text-align: center;"> HC = high court </div><div style="text-align: center;">COA = court of appeal </div><div style="text-align: center;">FC = federal court <b> </b></div><div style="text-align: center;"><br />
</div><div style="text-align: center;"><b>Metroplex Berhad & 15 Ors v Morgan Stanley Emerging Markets Inc & 3 Ors (RHB Sakura Merchant Bankers Berhad & 10 Ors - intervener) [HC]</b> </div><div style="text-align: center;"> </div><div style="text-align: center;">Section 176(10A) of the act not only provides that an ro may only be granted if there was a proposal for a scheme of compromise which involved creditors representing at least one-half in value of all the creditors, but it also stipulates that an ro may only be extended for a longer period "if and only if" there was a "good reason" to do so. The words "good reason" have been construed by the courts to mean, inter alia, where a bona fide scheme of arrangement was present; the scheme of arrangement presented must not be such that is bound to fail; and that the interest of creditors, i.e. the beneficiaries under the proposed arrangement, were safeguarded. On the facts of the case, the applicants did not seem to have a bona fide scheme of arrangement to achieve their supposed goal of settling the debts. There had been no such compromise or arrangement proposed and all the requirements stipulated in subsection (10A) had not been met. All the provisions of s 176 of the act must be met afresh (which the applicant had not done) in order to empower the court to grant any extension of the ro. As at the date of the instant application, the applicants only managed to show that only 48.52% of the creditors have agreed to the application for extension and that only "some" creditors have given their approval to the proposed scheme itself whereas s 176(10A) requires approval of at least 50% in value of creditors before the court could grant an ro it was apparent that the applicants had not met the conditions in 10A and they would not be in a position to produce a scheme of compromise or arrangement that was viable, reasonable, or feasible even if their fifth application to extend the life of the ro was granted.</div>Unknownnoreply@blogger.com