S.S. Tieh's Malaysian Law Updates

Marina bte Mohd Yusoff v Pekeliling Triangle Sdn Bhd (receiver and manager appointed) (and 3 Other Appeals) [2008] 1 AMR 687 [COA] 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. 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). Apart from the test whether there is a likelihood of a successful appeal being rendered nugatory, the principle governing the grant of an interlocutory injunc...

Subashini a/p Rajasingam v Saravanan a/l Thangathoray (and 2 Other Appeals) [2008] 1 AMR [FC] 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. 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. There was no impediment for the husband to ...

Wu Siew Ying (t/a Fuh Lin Bud-Grafting Centre) v Gunung Tunggal Quarry & Construction Sdn Bhd & 2 Ors [2008] 1 AMR 496 [COA] 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. Dato' Seri Dr Kok Mew Soon & 3 Ors v Mustapha bin Mohamed & 2 Ors [2008] 1 AMR 537 [HC] 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. 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 prote...

Araprop Development Sdn Bhd v Leong Chee Kong & Anor [2008] 1 AMR 373 [COA] 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. Kaseh Lebuhraya Sdn Bhd v Azam Development & Construction Sdn Bhd [2008] 1 AMR 454 [HC] 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. Yeow Khoon Kwong v Seng Jong Sdn Bhd [2008] 1 AMR 460 [HC] A consent judgment is final unless amended by consent of both parties.

Joint venturers owe a fiduciary duty to each other   In Eastern Properties Sdn Bhd v Hampstead Corporation Sdn Bhd [2008] 1 AMR 285 , the Court of Appeal held that joint venturers owe a fiduciary duty to each other: just as partners do.

Soo 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   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 a...

Where rights of parties are to be finally determined in a particular application, an affidavit may not contain hearsay evidence   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.   Whether the Industrial Court can choose to depart from the Industrial Court Practice Note No 1 of 1987   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 ...