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DATO' HAMZAH ABDUL MAJID v. OMEGA SECURITIES SDN BHD [2015] 9 CLJ 677 SECURITIES: Shares - Trading account - Margin trading facility - Claim for contra losses on transactions - Unpleaded defence - Defence that facility was a loan transaction raised during cross-examination - Whether a radical departure from pleaded case - Whether mere variation, modification or development - Whether trial judge rightly rejected defence of loan - Whether principle in Superintendent of Lands and Surveys (4th Div) & Anor v. Hamit bin Matusin & Ors applicable CIVIL PROCEDURE: Appeal - Appeal to Federal Court - Questions of law - Claim for contra losses on share transactions - Unpleaded defence that facility was a loan transaction raised during cross-examination - Whether elements of loan existed - Whether defence of loan a radical departure from pleaded case - Whether court could reject evidence thereof on account that it was not pleaded - Whether principle in Superintendent of Lands and Surveys (4th Div) & Anor v. Hamit bin Matusin & Ors applicable
AZMI OSMAN v. PP & ANOTHER APPEAL [2015] 9 CLJ 845 JURISDICTION: High Court - Coordinate jurisdiction - Whether one High Court Judge could overrule another High Court Judge - Whether High Court was carrying out appellate jurisdiction - Jurisdiction to correct error - Whether lies with Court of Appeal CRIMINAL LAW: Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Section 4 - Offence of knowingly engaging in proceeds of unlawful activity - Monies in large amounts credited into account of accused - Whether accused took steps to ascertain whether monies were proceeds of unlawful activity - Whether accused ought to have reason to believe that monies were illegal proceeds - Anti-Money Laundering and Anti-Terrorism Financing Act 2001, ss. 3 & 4(1)(a) CRIMINAL LAW: Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Section 55 - Forfeiture of property seized in connection with offence - Third party notice under s. 61 - Appeal against issuance of third party notice - Whether third party notice determined with finality - Fate of property seized - Whether appeal premature CRIMINAL PROCEDURE: Trial - Close of prosecution's case - Whether judge expected to make firm finding of prima facie case or otherwise - Whether open for judge to delve into doubt by offering alternative views - Whether contravened s. 316 of Criminal Procedure Code CRIMINAL PROCEDURE: Sentencing - Multiple charges - Whether facts relating to charges justified invocation of 'same transaction' principle - Whether proximity of time existed - Whether interest of public given paramount consideration MAMAT ADAM lwn. MOHD ABDULLAH MOHAMED [2015] 2 SMC 56 PROSEDUR SIVIL: Penghakiman - Penghakiman ingkar - Pengenepian - Permohonan untuk - Sama ada penghakiman yang diperolehi teratur - Sama ada defendan mempunyai pembelaan bermerit - Sama ada jumlah penghakiman dipertikaikan - Sama ada defendan menerima penghakiman bermeterai - Sama ada terdapat kelewatan memfailkan permohonan ini - Kaedah-Kaedah Mahkamah 2012, A. 42 k. 13 To view a sample of the Sessions and Magistrates' Cases journal, click here. For product enquiries, contact priority@cljlaw.com. |
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LATEST CASES |
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Legal Network Series
CLJ 2015 Volume 9 (Part 6) COURT FEDERAL COURT Dato' Hamzah Abdul Majid v. Omega Securities Sdn Bhd COURT OF APPEAL Choong Howei v. Cheah Choo Eng & Ors And Another Appeal Ho Hup Construction Company Bhd v. Woo Thin Choy Ling Haw Cheun v. PP Parti Islam Se-Malaysia & Ors v. Tan Sri Dato' Seri Abdul Aziz Mohd Yusof & Ors Sen Media Sdn Bhd v. Perunding Pakar Media Sdn Bhd & Ors HIGH COURT Ahmani Sdn Bhd v. Petronas Penapisan (Melaka) Sdn Bhd & Other Cases Guo Feng Ting v. Ta Yang Agricode Sdn Bhd SUBJECT INDEX ARBITRATION Award - Setting aside - Application for - Questions of law - Whether setting aside part of award could only be made under s. 37(1)(a)(v) of Arbitration Act 2005 - Award based on unpleaded and unclaimed matter - Whether tribunal could make its findings based on issue which was never presented or argued before it - Whether tribunal could award sum which was not claimed - Whether tribunal acted beyond its jurisdiction - Whether there was a breach of rules of natural justice - Whether intervention warranted CIVIL PROCEDURE Appeal - Appeal to Federal Court - Questions of law - Claim for contra losses on share transactions - Unpleaded defence that facility was a loan transaction raised during cross-examination - Whether elements of loan existed - Whether defence of loan a radical departure from pleaded case - Whether court could reject evidence thereof on account that it was not pleaded - Whether principle in Superintendent of Lands and Surveys (4th Div) & Anor v. Hamit bin Matusin & Ors applicable Appeal - Facts, finding of - Interference by appellate court - Whether serious misdirection by trial judge in evaluating evidence - Whether trial judge had misread extent of authority given by plaintiff to defendant and its Deputy Executive Chairman - Whether trial judge had omitted to give sufficient weight to documentary evidence adduced by plaintiff - Trial judge's reliance on statement in the plaintiff's Annual Accounts for 2009 as binding or conclusive against plaintiff's further or continuing interest in missing monies - Whether wholly misplaced - Whether trial judge failed to appreciate and apply correct rules of evidence on burden and onus of proof - Whether appellate intervention necessary Judgments and orders - Setting aside - Allegation of failure to make full and frank disclosure of material facts in obtaining order - Whether order irregular or a nullity - Whether application to set aside order could be made through separate court action - Whether application to set aside order barred by laches Jurisdiction - High Court - Election offences - Whether High Court had jurisdiction to question election by way of writ action - Whether High Court excluded from exercising jurisdiction over election matters - Whether jurisdiction vested solely with Election Court - Removal of members of Elections Commission - Whether jurisdiction vested with Yang Di Pertuan Agong acting on recommendation of Tribunal - Federal Constitution, arts. 114(3), 118 - Election Offences Act 1954, ss. 32, 33 Striking out - Appeal against - Appeal against High Court's decision in striking out plaintiffs' action against defendants for breach of constitutional duty to properly conduct elections - Jurisdiction - Whether High Court had jurisdiction to hear plaintiffs' suit - Whether action ought to be struck out for being vexatious, frivolous and abuse of court process - Rules of Court 2012, O. 18 r. 19(1)(b) or (d) Third party proceedings - Indemnity - Appellant failed to pay first respondent due to non-payment of third party (statutory body) to appellant - Whether appellant entered into contract with statutory body for supply of services - Whether appellant should be indemnified by statutory body - Whether services rendered by first respondent benefited statutory body - Whether previous payments paid by statutory body to appellant in breach of treasury instructions - Whether there was a valid contract - Whether High Court Judge erred in dismissing appellant's claim against statutory body - Whether appellate intervention warranted COMPANY LAW Meetings - Extraordinary general meeting (EGM) - Appointment of new board of directors - Company secretary refused to certify extract of EGM - Registration of new board of directors in Companies Commission of Malaysia rejected - Whether previous board of directors remained as directors of company CONTRACT Employment contract - Breach - Accident at work place - Employer's liability and duty of care - Employee met with accident at factory and suffered serious physical injuries - Claim for special and general damages - Employment contract contained clause discharging employer from liability and precluding employee from suing for damages - Whether clause in contravention of s. 24 of Contracts Act 1950 - Whether defeated law granting employee right to sue employer - Whether against public policy CRIMINAL LAW Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Appeal against conviction and sentence - Whether actual possession proved - Defence of no knowledge - Whether there was failure to rebut presumption of knowledge - Failure to call material witness - Adverse inference - Whether ought to be invoked - Whether trial judge thoroughly considered defence explanation - Whether appeal dismissed - Dangerous Drugs Act 1952, s. 37(da) CRIMINAL PROCEDURE Appeal - Appeal against conviction and sentence - Dangerous drugs - Trafficking - Whether actual possession proved - Defence of no knowledge - Whether there was failure to rebut presumption of knowledge - Failure to call material witness - Adverse inference - Whether ought to be invoked - Whether trial judge thoroughly considered defence explanation - Whether appeal dismissed - Dangerous Drugs Act 1952, s. 37(da) DAMAGES Quantum - Assessment - Accident at work with - Employee met accident at factory and suffered serious physical injuries - Claim for special and general damages ELECTION Conduct of election - Breach of constitutional duty to properly conduct elections - Allegation of conspiracy and fraud - Application for declaration that elections were null and void - Jurisdiction - Whether High Court had jurisdiction to question election by way of writ action - Whether High Court excluded from exercising jurisdiction over election matters - Federal Constitution, art. 118 - Whether jurisdiction vested solely with Election Court - Election Offences Act 1954, ss. 32, 33(1) Conduct of election - Breach of constitutional duty to properly conduct elections - Allegation of conspiracy and fraud - Jurisdiction to remove members of Elections Commission - Whether High Court has jurisdiction to remove members of Elections Commission - Whether jurisdiction vested with Yang Di Pertuan Agong acting on recommendation of Tribunal - Federal Constitution, art. 114(3) - Election Offences Act 1954, ss. 32, 33(1) EVIDENCE Witness - Failure to call - Whether trial judge rightly invoked presumption of adverse inference against plaintiff - Whether evidence of witness material to defendant's case SECURITIES Shares - Trading account - Margin trading facility - Claim for contra losses on transactions - Unpleaded defence - Defence that facility was a loan transaction raised during cross-examination - Whether a radical departure from pleaded case - Whether mere variation, modification or development - Whether trial judge rightly rejected defence of loan - Whether principle in Superintendent of Lands and Surveys (4th Div) & Anor v. Hamit bin Matusin & Ors applicable TORT Breach of statutory duty - Accident at factory - Employee met with accident at factory and suffered serious physical injuries - Claim for special and general damages - Allegation that accident caused by employer's breach of statutory duties - Factories and Machinery Act 1967, s. 2 - Whether premises a factory under statutory provision when accident took place - Whether premises satisfied statutory requirements Negligence - Accident at work place - Employer's liability and duty of care - Employee met with accident at factory and suffered serious physical injuries - Claim for special and general damages - Whether employer took reasonable care for safety of employees - Whether employer solely or vicariously liable - Whether employee lawfully at place of accident - Whether in line with terms and conditions of employment agreement - Apportionment of liability CLJ 2015 Volume 9 (Part 7) COURT COURT OF APPEAL Ahmad Nadzrin Abd Halim & Anor v. Allianz General Insurance Company (M) Bhd Azmi Osman v. PP & Another Appeal PP v. Yuneswaran Ramaraj Sampo Materials (M) Sdn Bhd v. Tenaga Nasional Bhd Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor HIGH COURT Chu Boon Yeh & Anor v. Kerajaan Malaysia SUBJECT INDEX COMPANY LAW Winding up - Proof of debts - Appointment of liquidator upon winding up of company - Discovery of sale and purchase agreements - Allegation that company had paid purchase price to wound up company under sale and purchase agreements - Whether allegations substantiated - Whether sales and purchase agreements valid - Whether s. 293 of Companies Act 1965 must be read with ss. 52 or 53 of Bankruptcy Act 1967 CONSTITUTIONAL LAW Jurisdiction - High Court - Accused charged with offence under s. 9(1) Peaceful Assembly Act 2012 ('PAA') - Requirement to give ten days notice prior to assembly - Criminal sanction imposed under s. 9(5) of PAA - Whether s. 9(5) of PAA ultra vires art. 10(2)(b) of Federal Constitution - Whether court bound by decision in Nik Nazmi Ahmad v. PP CONTRACT Agreement - Sale and purchase agreement - Allegation that company had paid purchase price to wound up company under sale and purchase agreements - Whether allegation backed by evidence - Whether sale and purchase agreements valid - Whether sale and purchase agreements a sham and an attempt to fraudulently exclude properties from being considered as part of assets - Whether burden to nullify sale and purchase agreements discharged CRIMINAL LAW Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Section 4 - Offence of knowingly engaging in proceeds of unlawful activity - Monies in large amounts credited into account of accused - Whether accused took steps to ascertain whether monies were proceeds of unlawful activity - Whether accused ought to have reason to believe that monies were illegal proceeds - Anti-Money Laundering and Anti-Terrorism Financing Act 2001, ss. 3 & 4(1)(a) Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Section 55 - Forfeiture of property seized in connection with offence - Third party notice under s. 61 - Appeal against issuance of third party notice - Whether third party notice determined with finality - Fate of property seized - Whether appeal premature Offences - Illegal assembly - Notification of assembly - Requirement of giving ten days notice to police - Organiser failed to give police ten days notice - Whether respondent an organiser of assembly - Whether requirement to give notice reasonable - Whether requirement under s. 9(1) of Peaceful Assembly Act 2012 ('PAA') to give notice prior to assembly was a 'restriction' within art. 10(2)(b) of Federal Constitution - Whether non-compliance to give notice warranted criminal sanction under s. 9(5) of PAA - Whether s. 9(5) of PAA ultra vires art. 10(2)(b) CRIMINAL PROCEDURE Sentencing - Multiple charges - Whether facts relating to charges justified invocation of 'same transaction' principle - Whether proximity of time existed - Whether interest of public given paramount consideration Trial - Close of prosecution's case - Whether judge expected to make firm finding of prima facie case or otherwise - Whether open for judge to delve into doubt by offering alternative views - Whether contravened s. 316 of Criminal Procedure Code CUSTOMS AND EXCISE Export - Taxable goods - Failure to deliver return form within taxable period - Discovery of shortfall of sales tax revenue - Allegation that sale of relevant goods to another business entity said to be part of arrangement for goods to be on-sold to third party exporter - Whether sales for local market - Whether links between appellants and third party existed - Whether allegations proved - Whether sale of goods in question should not be taxed - Sales Tax Act 1972, ss. 6, 19(1) EVIDENCE Documentary evidence - Admissibility of - Claim for undercharged electricity bill due to defect in meter system - Whether basis of calculations proven - Whether content of documents relied on to arrive at outstanding sum properly proven - Whether makers of documents called - Whether documents admissible - Evidence Act 1950, s. 73A INSURANCE Motor insurance - Liability - Personal injury damages suit brought by third party - Insurer sought for declaration that insurance policy issued was void and unenforceable - Application filed upon discovery of change in ownership of insured vehicle without due notice given to insurer - Whether application should have been filed before date of accident - 'if before the date the liability was incurred' under s. 96(3) of Road Transport Act 1987 - Interpretation of - Whether an insurer can commence action to repudiate policy issued in respect of insured vehicle before any judgment is obtained in proceedings commenced by third party JURISDICTION High Court - Coordinate jurisdiction - Whether one High Court Judge could overrule another High Court Judge - Whether High Court was carrying out appellate jurisdiction - Jurisdiction to correct error - Whether lies with Court of Appeal LIMITATION Accrual of cause of action - Computation of limitation period - Claim for undercharged electricity bill due to defect in meter system - Claim founded on agreement - Time when shortfall first recovered - Whether when shortfall incurred - Whether claim barred by limitation - Limitation Act 1953, s. 6(1)(a) UTILITIES Electricity - Consumption and usage - Claim for undercharged bill due to defect in meter system - Whether claim time-barred - Whether claim proven - Whether basis of calculations proven - Whether plaintiff discharged burden of proving claim |
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