S.S. Tieh's Malaysian Law Updates

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*Abbreviations   HC = high court  COA = court of appeal  FC = federal court   Ngu Toh Tung & 7 Ors v Superintendent of Lands & Survey, Kuching Division, Kuching & Anor [COA] administrative law; land acquisition J & C New Poly Catering Sdn Bhd v TTMP Bakun Consortium Sdn Bhd [HC] 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...

*Abbreviations   HC = high court   COA = court of appeal   FC = federal court   Kaliammal a/p Sinnasamy v Pengarah Jabatan Agama Islam Wilayah Persekutuan (Jawi) & 2 Yg Ln [HC] 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...

Ong Thye Peng v Loo Choo Teng & 7 Ors [2008] 1 AMR 757 [FC] 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. 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 t...

Indah Desa Saujana Corporation Sdn Bhd & 2 Ors v James Foong Cheng Yuen, Hakim, Mahkamah Tinggi Malaya & Anor [2008] 2 AMR 6 [COA] 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 thereunder . 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 Malaysia . The plaintiff's cause of action was ba...