LEGISLATION

The following principal Act came into force wef 1 July 2015:

  • Public Sector Home Financing Board Act 2015 [Act 767], except Parts IV to VI and VIII [PU(B) 265/2015]

The following amending Act came into force wef 1 July 2015:

  • Industrial Relations (Amendment) Act 2015 [Act A1488] [PU(B) 262/2015]

The following amending Act came into force wef 31 July 2015:

  • Registration of Engineers (Amendment) Act 2015 [Act A1479] [PU(B) 292/2015]

CASES

Administrative Law

Lynawati Abdullah v Abang Sukori Abang Haji Gobil & Anor Civil Appeal No Q-01-203-05-2013 (CA)

Whether decision of Native Court of Appeal of Sarawak amenable to judicial review by High Court

  • Court of Appeal preferred principle laid down in Haji Laugan Tarki bin Mohd Noor v Mahkamah Anak Negeri Penampang (SC). Not persuaded by High Court's reasons for not following Haji Laugan Tarki.
  • Native Courts of Sarawak, established by State law, are inferior tribunals. And like other inferior tribunals, High Court may exercise control over Native Courts through prerogative orders. Therefore, decision of Native Court of Appeal of Sarawak is amenable to judicial review by High Court.

The judgment may be viewed here

See also www.thestar.com.my/News/Nation/2015/08/12/Landmark-judgment-for-indigenous-in-Swak-Native-Courts-decisions-can-be-challenged-in-civil-courts/

For the High Court grounds of judgment, see [2014] 8 CLJ 527; [2013] 5 AMR 936

Menteri Bagi Kementerian Dalam Negeri & Anor v Jill Ireland binti Lawrence Bill and another appeal [2015] 4 AMR 768; [2015] 1 LNS* 480 (CA)

Malaysian Christian finally wins right to regain CDs of worship songs

  • Motion filed to intervene not brought under proper provisions in Rules of Court 2012 (ROC 2012) pertaining to application to be made as interveners in judicial review matter
  • Mode of filing fatally flawed — filed under O 15 r 6 ROC 2012; should have invoked O 53 r 8

The grounds of judgment may also be viewed here

For the High Court grounds of judgment, see [2015] 3 MLJ 743; [2014] 1 LNS 1279

See also

www.worldwatchmonitor.org/2015/06/3904023/

www.themalaymailonline.com/malaysia/article/after-7-years-court-orders-return-of-allah-cds-to-sarawakian-christian

Bankruptcy

Ketua Pengarah Insolvensi, bagi harta Goh Ah Kai, bankrap v Goh Ah Kai & Anor [2015] 4 AMR 338 (CA)

Whether bankrupt's debts paid in full by third party's payment to hospital; whether Director General of Insolvency (DGI) liable in costs

  • View adopted in Ting Nguk Yong v Bank Utama (M) Bhd correct and consistent with principles enunciated in Kwong Yik Bank Bhd v Hah Chiew Tin (FC); In re Keet and Re Hester: Ex parte Hester. Not proper for third party to settle debts of estate of bankrupt without knowledge of or reference to Official Assignee.
  • In exercising discretion to annul adjudication, court is bound to consider not only interests of creditors, but also whether annulment conducive or detrimental to commercial morality and to interests of public at large
  • Rule 69(3) Bankruptcy Rules 1969 whereby DGI shall not be personally liable for costs was not applicable. Not appropriate to order that DGI be personally liable in costs.

The grounds of judgment may also be viewed here

Civil Procedure

Loo Chooi Ting v United Overseas Bank Ltd [2015] 4 AMR 757 (CA)

Scope of rule of estoppel in respect of judgment in default

  • The fact that a judgment is rendered by default does not prevent it from operating as a basis for application of doctrine of res judicata. United Overseas Bank barred from relitigating action.
  • Counsel's reliance on In re A Judgment Debtor misplaced: re A Judgment Debtor not followed

The grounds of judgment may be viewed here

Proton Edar Sdn Bhd v Multioto Assist Sdn Bhd (formerly known as Support Growth Sdn Bhd) [2015] 1 LNS 245; [2015] AMEJ 595 (CA)

Whether trial judge had erred in ordering assessment of damages on quantum meruit basis when not pleaded

  • No concluded contract. When intention of parties is clear that there must be a concluded contract, contractual jurisprudence does not permit court to rewrite agreement, unless exception applies, such as was discussed in Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor
  • Quantum meruit not pleaded case of Proton Edar and the law does not permit court to assess damages based on quantum meruit when there was no evidence to say Multioto had any benefit: Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd; Md Hamid Merican bin Abdul Kader Merican v Abdul Razak bin Hussain & Ors followed
  • On factual matrix of case, pleadings as well as evidence, no form of liability could be attached to Proton Edar

The grounds of judgment may also be viewed here

Chiu Kwan Yiu v Thien Lip Ha @ Annie & Anor Civil Appeal No S-02-286- 02-2014 (CA)

Jurisdiction to order judicial sale pursuant to O 31 Rules of Court 2012

  • Before O 31 r 1 Rules of Court 2012 can be utilised, there must be a cause of action
  • Paragraph 3 of Schedule to Courts of Judicature Act 1964 simply a provision enabling courts to have power to grant certain remedial orders, provided conditions satisfied
  • No cause or matter relating to land at this stage of application

The grounds of judgment may be viewed here

Company Law

Panaron Sdn Bhd v Univac Switchgear Sdn Bhd [2015] 2 CLJ 286; [2015] 9 MLJ 498; [2014] 2 AMCR~ 806; [2014] 6 AMR 432 (HC)

High Court jurisdiction to set aside own winding-up order on the ground company had earlier been wound up by another High Court

  • No reason to stay winding-up order as Univac clearly insolvent. Not in interests of commercial morality and public at large to stay winding-up order of insolvent company that had been previously wound up by another court.
  • Additionally, such a stay would prejudice creditors as they would be out of time to file proof of debt with Official Receiver in first liquidation. Court could not accede to application to stay winding-up order under s 243(1) Companies Act 1965 ("the Act"): Vijayalakhsmi Devi d/o Nadchatiram v Dr Mahadevan s/o Nadchatiram (FC) followed
  • High Court bound by decision in Megah Teknik Sdn Bhd v Miracle Resources Sdn Bhd (CA): the Act and Companies (Winding-Up) Rules 1972 do not permit winding-up court to revisit perfected winding-up order; such an order can only be set aside if appeal is made against winding-up order under s 253(2) of the Act, or if winding-up order is permanently stayed under s 243(1)
  • Superior court such as High Court has inherent jurisdiction to set aside earlier order that has been made without jurisdiction. In view of earlier winding-up order, court in this instance had no jurisdiction to make winding-up order in second liquidation. Order ought to be set aside with effect from date of hearing of instant application: FC judgments of Muniandy a/l Thamba Kaundan & Anor v Development & Commercial Bank Bhd & Anor; Badiaddin Mohd Mahidin @ Rosli Mohidin & Anor v Arab Malaysian Finance Bhd; Allied Capital Sdn Bhd v Mohd Latiff Shah Mohd, Setiausaha Kelab Raintree Kuala Lumpur (disaman sebagai Pegawai Berdafter Kelab) (and another appeal); Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (M) Bhd; and Dato' Seri Anwar Ibrahim v Public Prosecutor followed

The grounds of judgment may also be viewed here

Contract

Mastika Lagenda Sdn Bhd v Kumpulan Darul Ehsan Bhd Civil Appeal No B-02(NCVC)(W)-2185-10-2013 (CA)

Should statutory right to terminate be taken away?

  • To say such right must be exercised within reasonable time, when there was no provision setting out time frame for purchaser to terminate, would be rewriting sale of share agreement (SSA), which courts could not do
  • Circumstances of case did not fit in s 32 Limitation Act 1953 as purchaser had been in talks with Tenaga Nasional in its attempt to revive Sepang Power Project. There could not be any laches or acquiescence on purchaser's part when parties had agreed that any delay in exercise of any right would not constitute a waiver. Equity has no place when contractual rights of contracting parties were expressly set out, as in this case.
  • Unclear why trial judge found Kumpulan Darul Ehsan had been prejudiced. It could not be said that Kumpulan Darul Ehsan was not fully aware of "bargain" it had entered into with purchaser.
  • Not to sustain purchaser's claims would be a blatant disregard of bargain struck between two commercial entities

The judgment may be viewed here

Insurance

Malayan Banking Bhd v Export-Import Bank of Malaysia Bhd [2015] 2 AMCR 40; [2015] 1 LNS 281 (HC)

Whether plaintiff late in submitting claim, and actual amount disbursed

  • Maybank had complied with all requirements of s 17 of multi-currency trade finance policy as well as recovery guidelines. It had given EXIM all documents available in its record and EXIM did not at any time raise issue of noncompliance of any of policy provision. Despite having extended supporting documents, EXIM rejected Maybank's claim.
  • No basis for EXIM to reject claim of Maybank; Maybank had proven case on balance of probabilities against EXIM

Best Re (L) Ltd v ACE Jerneh Insurance Bhd (formerly known as Jerneh Insurance Bhd) Civil Appeal No W-04(IM)(NCC)-379-12-2014 (CA)

Whether Judicial Commissioner right in deciding reference to arbitration agreement was insufficient to incorporate arbitration agreement into another document of contract or agreement; and that for incorporation to be valid and effective, reference must be expressly made to arbitration clause in other contract

  • Incorporation of arbitration clause in one agreement may be by way of reference to arbitration clause found in another agreement. But reference clause must be clear as to intention of parties to incorporate that particular arbitration clause in their agreement: s 9(5) Arbitration Act 2005
  • Question is in what form reference clause should be worded. Must it make an express and specific reference to arbitration clause in the other agreement for it to be effectively incorporated, or will a general reference clause be sufficient? No reported cases in Malaysia that have dealt with this issue
  • Principle that court should attempt to give business efficacy in interpreting and construing commercial document or contract must be applied liberally to save commercial transactions entered into and not to disrupt them

The judgment may be viewed here

For the High Court decision, see [2015] 3 CLJ 636; [2015] 1 AMCR 877

Negotiable Instruments

Yung Ing Ing v Hunfara Construction Sdn Bhd Civil Appeal No Q-02-2628- 12-2013 (CA)

Interpretation of s 121(2) Companies Act 1965

  • High Court judge erred in allowing Hunfara's claim and in assuming limb in question of subsection (2) of s 121 Companies Act 1965 ("the Act") applied to cheques
  • Latter limb of s 121(2) does not apply to cheques. This must be the intention of the Act for, otherwise, why is it that limb (c) of subsection (2) of s 121 has the word "cheque"?
  • Where legislature includes a particular term in one part or section of a statute but omits it in another part or section, it must be presumed that the legislature acts intentionally and purposely in the disparate inclusion or exclusion. Therefore, inclusion of "cheque" in limb (c) of subsection (2) of s 121 and its exclusion in latter limb was done intentionally; court must give effect to the intention of Parliament: that while the former limb (limb (c)) applies to cheques, the latter (subsequent) limb does not
  • High Court judge did not touch on omission of "cheque" in grounds of judgment
  • All four cheques not negotiable instruments as each had been crossed with the words "A/C PAYEE ONLY", rendering them non-transferrable

The judgment may be viewed here

Revenue

Lembaga Minyak Sawit Malaysia v Arunamari Plantations Sdn Bhd & Ors [2015] MLJU^ 260 (FC)

Whether s 35 Malaysian Palm Oil Board Act 1998 is ultra vires Article 96 Federal Constitution

  • Section 35(1) a valid tax statute that empowers minister to impose cess via subsidiary legislation and is not ultra vires Article 96 Federal Constitution
  • Imposition of cess on class of parties/individual under s 35 and exclusion of certain parties/individual from same class not a form of discrimination in breach of Article 8 Federal Constitution
  • Collection of cess for purposes of subsidising price of cooking oil was within s 33(1), after taking into consideration broad objectives of the Act, i.e. for orderly development and administration of oil palm industry of Malaysia

The judgment may also be viewed here

For the Court of Appeal judgment, see [2013] 1 CLJ 906

For the High Court judgment, see [2011] 1 MLJ 705; [2011] 2 CLJ 519

Lok Kok Beng & Ors v Loh Chiak Eong & Anor Civil Appeal No 02(f)-4-02- 2013(P) (FC)

Architects' duty of care to purchasers apart from duty to developer

  • Against public policy to impose on architects a duty to deliver vacant possession of buildings within developer's contractual period
  • Not fair, just or reasonable to impose on architects a duty of care for a responsibility that they had not assumed or one not within professional scope of duty. Claims by purchasers of industrial buildings did not fall within architects' scope of work. Architects could not have foreseen liability for consequential financial loss to purchasers when there was delay in completion of building and issuance of certificate of fitness for occupation. Purchasers' claim against architects for pure economic loss on grounds of late delivery of vacant possession of units must fail.

The judgment may be viewed here

The Court of Appeal decision may be viewed here or see [2013] 1 AMCR 1; [2013] 1 MLJ 27; [2012] 9 CLJ 699

Dr Syed Azman Syed Ahmad Nawawi & Ors v Dato' Seri Haji Ahmad Said Civil Appeal No W-02(NCVC)(W)-602-04-2014 (CA)

Relevant material in pleadings to consider and conclude impugned statements were actuated by express 'malice'

  • Tenor of language used does not rule out or exclude possibility of plaintiff pleading "the particulars of the facts and matters from which malice is to be inferred" in statement of claim itself
  • Requirement to provide specifically particulars of facts and matters from which express malice was to be inferred not a mere formality but founded on sound policy and practical considerations
  • Trial court's conclusion on "malice" bereft of any valid basis. No analysis or deliberation as to any relevant fact or matters from which court was to make or draw inference of "malice" as required. Conclusion that "malice" had been proved was flawed.

The judgment may be viewed here

For the High Court grounds of judgment, see [2014] 1 LNS 357; [2014] AMEJ 0478 (BM)

Siti Athirah Mohd Sapuan v Razanatul Ain Hassan & Anor [2015] 6 CLJ 295; [2015] 4 MLJ 359 (CA)

Sessions Court order varied

  • High Court judge erred in assuming just because vehicle driver's police report formed part of motorcyclist's documents, report was admissible evidence in court, which Sessions Court judge could consider in arriving at her judgment Save for motorcyclist's evidence that she was riding her motorcycle at 50km/h when collision took place, no evidence that she was speeding, or had exceeded prescribed speed limit for stretch of road in question
  • Motorcyclist not liable for contributory negligence, judges of lower courts had erred when they ruled to contrary
  • Nowhere did Sessions Court judge justify how she arrived at RM45k for injury; also failed to follow current trend of cases in awarding damages
  • Separate award for skin grafting ought to have been made, global award inadequate

The judgment may also be viewed here

Footnotes

~ All Malaysia Commercial Reports — Monthly publication of High Court and appellate court decisions on commercial law

# All Malaysia Electronic Judgments — Cases which have not been reported in All Malaysia Reports

* Legal Network Series — Cases available on the Current Law Journal website but which have not been published in CLJ

^ Malayan Law Journal Unreported — Cases available on the LexisNexis website but which have not been published in MLJ

° Malaysian Law Review (Appellate Courts) — Cases from the Court of Appeal and the Federal Court

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