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JW PROPERTIES SDN BHD v. PERBADANAN KEMAJUAN PERTANIAN SELANGOR & ANOR [2016] 1 CLJ 13
COURT OF APPEAL, PUTRAJAYA
BALIA YUSOF WAHI JCA, BADARIAH SAHAMID JCA, ABDUL RAHMAN SEBLI JCA
[CIVIL APPEALS NO: B-01-100 & B-01-101-03-2014]
30 OCTOBER 2015

LAND LAW: Acquisition of land - Compensation - Claim for - Land alienated to first respondent - Subsequent sale of land to appellant - Issue document of title issued in name of first respondent - Compulsory acquisition - Whether appellant beneficial owner of land - Whether appellant entitled to compensation

Legal Network Series

CLJ 2016 Volume 1 (Part 1)

COURT OF APPEAL

Josu Engineering Construction Sdn Bhd v. Tsr Bina Sdn Bhd
Mohd Ariff Yusof, Mohd Zawawi Salleh, Idrus Harun JJCA
(Civil Procedure - Interim payment - Application for - Whether premature - Whether order for interim payment warranted) [2016] 1 CLJ 1 [CA]

JW Properties Sdn Bhd v. Perbadanan Kemajuan Pertanian Selangor & Anor
Balia Yusof Wahi, Badariah Sahamid, Abdul Rahman Sebli JJCA
(Land Law - Acquisition of land - Compensation - Land alienated to first respondent - Whether appellant entitled to compensation as beneficial owner of land) [2016] 1 CLJ 13 [CA]

Penerbit Sahabat (M) Sdn Bhd & Anor v. Kalairasi Arumugam
Rohana Yusof, Ahmadi Asnawi, Badariah Sahamid JJCA
(Tort - Defamation - Whether mistake rectified at earliest possible opportunity - Whether article led reasonable people who knew respondent to conclude that paragraph referred to respondent) [2016] 1 CLJ 30 [CA]

Songsil Udtoom & Ors v. PP
Mohtarudin Baki, Tengku Maimun Tuan Mat, Ahmadi Asnawi JJCA
(Criminal Procedure - Charges - Defective charge - Fact, finding of - Whether failure by trial judge to evaluate defence amounted to misdirection) [2016] 1 CLJ 39 [CA]

HIGH COURT

Dewan Perniagaan Melayu, Malaysia, Negeri Johor v. Menteri Besar Johor & Ors
Mohd Nazlan Mohd Ghazali JC
(Civil Procedure - Contempt of court - Committal proceedings - Application for leave to commence committal proceedings - Rules of Court 2012, O. 52 r. 3) [2016] 1 CLJ 52 [HC]

Lim Chiew v. Siteman Construction Sdn Bhd; Lee Chao Yong (Applicant)
Lau Bee Lan J
(Civil Procedure - Whether court seised with jurisdiction to hear application - Whether applicant had locus standi) [2016] 1 CLJ 90 [HC]

Loke Wan Yat Realty Sdn Bhd v. Datuk Bandar Kuala Lumpur
Asmabi Mohamad J
(Local Government - Rates - Assessment - Revision of annual value of premises - Whether rates fixed beyond rateable value - Whether appeal filed within 14 days as prescribed in s. 145 of Local Government Act 1976) [2016] 1 CLJ 107 [HC]

Mayathevan Mayandi & Ors v. Dr Navin Kumar Batumalai & Ors
Mohd Firuz Jaffril JC
(Tort; Civil Procedure - Damages - Assessment of - Whether fair and adequate - Interest - Discretion to award - Whether properly exercised) [2016] 1 CLJ 115 [HC]

Mohd Faizal Md Sari & Satu Lagi lwn. Touch Mobileguards Sdn Bhd
Abdul Karim Abdul Jalil H
(Undang-undang Buruh; Perkataan & Istilah - Gaji minimum - Tuntutan kerja lebih masa - Sama ada termasuk elaun-elaun tetap - Maksud dan pengertian 'gaji minimum' - Sama ada merangkumi elaun tetap pekerja) [2016] 1 CLJ 144 [HC]

Oh Boon Thiam v. Yan Ming Agricultural Sdn Bhd; Oh Yoke Choon & Anor (Third Parties)
SM Komathy JC
(Intellectual Property; Civil Procedure - Copyright - Designs - Designs registered under Industrial Designs Act 1996 - Whether plaintiff could seek copyright protection - Summary disposal - Whether there was inordinate delay in making application) [2016] 1 CLJ 158 [HC]

Percy Wong Kiet v. PP
Rhodzariah Bujang J
(Criminal Procedure - Revision of Magistrate's order - Whether consent of Public Prosecutor to transmit case obtained - Whether consent mandatory) [2016] 1 CLJ 169 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Committal proceedings - Application for - Whether court seised with jurisdiction to hear application - Whether applicant had locus standi - Whether statement and affidavit contained misrepresentation of material facts and were misleading - Whether applicant mala fide - Whether delay in commencing committal proceedings
Lim Chiew v. Siteman Construction Sdn Bhd; Lee Chao Yong (Applicant)
(Lau Bee Lan J) [2016] 1 CLJ 90 [HC]

Contempt of court - Committal proceedings - Application for leave to commence committal proceedings - Rules of Court 2012, O. 52 r. 3 - Failure to comply with mandamus order - Whether proposed contemnors had notice and knowledge of terms of mandamus order - Whether court orders could be enforced against proposed contemnors - Rules of Court 2012, O. 73 r. 12 - Whether only exempts Federal Government and State Government - Whether extends to immunise Ministers of Federal and State Government - Whether proposed contemnors excused from performing obligations under mandamus order - Whether applicant successfully established prima facie case of contempt against proposed contemnors - Doctrine of estoppel - Whether applicable - Government Proceedings Act 1956, s. 33(1) - National Land Code, s. 16(2)
Dewan Perniagaan Melayu, Malaysia, Negeri Johor v. Menteri Besar Johor & Ors
(Mohd Nazlan Mohd Ghazali JC) [2016] 1 CLJ 52 [CA]

Interest - Discretion to award - Whether discretion properly exercised - Whether within permissible ambit of law - Civil Law Act 1956, s. 11
Mayathevan Mayandi & Ors v. Dr Navin Kumar Batumalai & Ors
(Mohd Firuz Jaffril JC) [2016] 1 CLJ 115 [HC]

Interim payment - Application for - Rules of Court 2012, O. 22A - Judgment on liability awarded in favour of appellant - Whether application for interim payment premature - Whether appellant suffered hardship - Whether appellant would obtain judgment for substantial damages in respect of performance bond money within meaning of O. 22A r. 3(1)(c) & 4(c) of Rules of Court 2012
Josu Engineering Construction Sdn Bhd v. Tsr Bina Sdn Bhd
(Mohd Ariff Yusof, Mohd Zawawi Salleh, Idrus Harun JJCA) [2016] 1 CLJ 1 [CA]

Summary disposal - Rules of Court 2012, O. 14A - Application for - Preliminary issues - Whether there was inordinate delay in making application - Whether question of law suitable for summary disposal - Whether facts on which application were predicated on was in dispute
Oh Boon Thiam v. Yan Ming Agricultural Sdn Bhd; Oh Yoke Choon & Anor (Third Parties)
(SM Komathy JC) [2016] 1 CLJ 158 [HC]

CRIMINAL PROCEDURE

Appeal - Fact, finding of - Evaluation or findings as to defence - Failure by trial judge to evaluate defence - Whether violation of s. 182A of Criminal Procedure Code - Whether amounted to misdirection
Songsil Udtoom & Ors v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat, Ahmadi Asnawi JJCA) [2016] 1 CLJ 39 [CA]

Charges - Defective charge - Charge under s. 57(1)(b) of Internal Security Act 1960 - Four appellants charged with joint possession of firearms and ammunition - Whether charge must be proven against each and every appellant - Whether appellants acting in concert - Whether in furtherance of common intention - Whether pre-arranged plan - Penal Code, s. 34
Songsil Udtoom & Ors v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat, Ahmadi Asnawi JJCA) [2016] 1 CLJ 39 [CA]

Prosecution - Public Prosecutor - Charge of murder - Penal Code, s. 302 - Magistrate allowed prosecution's requests for further mentions of case pending chemist and medical reports - Applications by accused person for remission of case to High Court rejected by Magistrate - Whether consent of Public Prosecutor to transmit case obtained - Whether consent mandatory - Implied consent of Public Prosecutor - Criminal Procedure Code, ss. 117A, 117(2)(a) & 377(3)
Percy Wong Kiet v. PP
(Rhodzariah Bujang J) [2016] 1 CLJ 169 [HC]

Revision - Application for - Revision of Magistrate's order - Charge of murder - Penal Code, s. 302 - Magistrate allowed prosecution's requests for further mentions of case pending chemist and medical reports - Applications by accused person for remission of case to High Court rejected by Magistrate - Whether case ready to be transmitted to High Court - Whether consent of Public Prosecutor to transmit case obtained - Whether consent mandatory - Implied consent of Public Prosecutor - Criminal Procedure Code, ss. 117A, 117(2)(a) & 377(3)
Percy Wong Kiet v. PP
(Rhodzariah Bujang J) [2016] 1 CLJ 169 [HC]

INTELLECTUAL PROPERTY

Copyright - Designs - Designs registered under Industrial Designs Act 1996 - Whether plaintiff barred from seeking copyright protection - Copyright Act 1987, s. 7(5) - Whether drawings of designs considered as industrial designs or artistic works within definition of s. 7(1) of Copyright Act 1987 - Owner obtained protection by way of registration under Industrial Designs Act 1996 - Whether copyright of design could subsist under Copyright Act 1987 - Whether s. 13B of Copyright Act 1987 restricts its application to 'artistic work' - Whether plaintiff's action for copyright could be maintained
Oh Boon Thiam v. Yan Ming Agricultural Sdn Bhd; Oh Yoke Choon & Anor (Third Parties)
(SM Komathy JC) [2016] 1 CLJ 158 [HC]

LAND LAW

Acquisition of land - Compensation - Claim for - Land alienated to first respondent - Subsequent sale of land to appellant - Issue document of title issued in name of first respondent - Compulsory acquisition - Whether appellant beneficial owner of land - Whether appellant entitled to compensation
JW Properties Sdn Bhd v. Perbadanan Kemajuan Pertanian Selangor & Anor
(Balia Yusof Wahi, Badariah Sahamid, Abdul Rahman Sebli JJCA) [2016] 1 CLJ 13 [CA]

LOCAL GOVERNMENT

Rates - Assessment - Revision of annual value of premises - Whether rates fixed beyond rateable value - Appeal to High Court - Preliminary objections - Whether appeal filed within 14 days as prescribed in s. 145 of Local Government Act 1976 - Whether appeal properly brought before High Court
Loke Wan Yat Realty Sdn Bhd v. Datuk Bandar Kuala Lumpur
(Asmabi Mohamad J) [2016] 1 CLJ 107 [HC]

TORT

Damages - Assessment of - Damages for negligence - Whether plaintiffs entitled to special damages, pre-trial damages, general damages for pain and suffering and loss of amenities of life, and cost of future care - Whether Deputy Registrar ('DR') erred by relying on wrong multiplier when calculating third plaintiff's life expectancy - Whether DR erred in deducting two-thirds from multiplicand when assessing future medical expenses and non-medical related damages - Whether damages fair and adequate - Whether appellate intervention necessary - Civil Law Act 1956, ss. 11 & 28A(2)(i)
Mayathevan Mayandi & Ors v. Dr Navin Kumar Batumalai & Ors
(Mohd Firuz Jaffril JC) [2016] 1 CLJ 115 [HC]

Defamation - Defamatory words - Allegation that article in newspaper damaged respondent's reputation - Whether misprint - Whether appellants rectified mistake at earliest possible opportunity - Whether article regarded as capable of referring to respondent - Whether article led reasonable people who knew respondent to conclude that paragraph referred to respondent
Penerbit Sahabat (M) Sdn Bhd & Anor v. Kalairasi Arumugam
(Rohana Yusof, Ahmadi Asnawi, Badariah Sahamid JJCA) [2016] 1 CLJ 30 [CA]

INDEKS PERKARA

PERKATAAN & ISTILAH

'Gaji minimum' - Maksud dan pengertian - Pengiraan - Sama ada merangkumi elaun tetap pekerja - Sama ada terhad kepada gaji pokok semata-mata - Perintah Gaji Minimum 2012 per. 4 - Akta Majlis Perundingan Gaji Negara 2011, ss. 2, 23 & 24
Mohd Faizal Md Sari & Satu Lagi lwn. Touch Mobileguards Sdn Bhd
(Abdul Karim Abdul Jalil H) [2016] 1 CLJ 144 [HC]

UNDANG-UNDANG BURUH

Gaji - Gaji minimum - Tuntutan kerja lebih masa - Sama ada gaji minimum terhad kepada gaji pokok - Sama ada termasuk elaun-elaun tetap - Perintah Gaji Minimum 2012 per. 4 - Akta Majlis Perundingan Gaji Negara 2011, ss. 2, 23 & 24
Mohd Faizal Md Sari & Satu Lagi lwn. Touch Mobileguards Sdn Bhd
(Abdul Karim Abdul Jalil H) [2016] 1 CLJ 144 [HC]

Mahkamah Buruh - Pendengaran - Pegawai Pendengar - Keputusan Pegawai Pendengar - Sama ada perlu membuat penemuan-penemuan fakta yang secukupnya - Sama ada perlu membuat pertanyaan dan pemeriksaan yang sewajarnya bagi mendapatkan keterangan-keterangan yang relevan - Akta Kerja 1955 Bab XV
Mohd Faizal Md Sari & Satu Lagi lwn. Touch Mobileguards Sdn Bhd
(Abdul Karim Abdul Jalil H) [2016] 1 CLJ 144 [HC]

LNS Article(s)

1. I HEREBY ASSIGN TO THEE, ABSOLUTELY ^{[Read excerpt]}
   CLAUDIA CHEAH⁺ WITTER YEE⁺ [2016] 1 LNS(A) i

[2016] 1 LNS(A) i



MALAYSIA

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I HEREBY ASSIGN TO THEE, ABSOLUTELY

CLAUDIA CHEAH⁺
WITTER YEE⁺

Claudia Cheah and Witter Yee examine a recent decision on an absolute assignment of rights relating to land.

In the recent case of Damai Freight (M) Sdn Bhd v. Affin Bank Berhad (unreported), the Federal Court was called upon to answer the following question of law:

“Whether a lender having an absolute assignment of rights to land may realise his security under the terms of the assignment, where the document of title to the land was issued subsequently, without the need to resort to the remedies under the National Land Code, 1965.”

FACTS

This case concerns a piece of land located in Port Klang, Selangor Darul Ehsan (“Land”) which was to be alienated by the State Government of Selangor to Perbadanan Kemajuan Negeri Selangor (“PKNS”). Pending the issuance of a title to the Land, PKNS entered into an Agreement to Lease dated 28 November 1988 (“the Principal Agreement”) whereby it granted a lease over the Land to the appellant for 30 years.

. . .

⁺ Writer’s email: cpy@skrine.com & witter.yee@skrine.com.

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2. THE DUTY OF CARE OF PUBLIC AUTHORITIES: TOO MUCH, TOO LITTLE OR ABOUT RIGHT?* ^{[Read excerpt]}
   LORD DYSON, MASTER OF THE ROLLS [2016] 1 LNS(A) ii

[2016] 1 LNS(A) ii



UNITED KINGDOM

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THE DUTY OF CARE OF PUBLIC AUTHORITIES: TOO MUCH, TOO LITTLE OR ABOUT RIGHT?*

LORD DYSON MASTER OF THE ROLLS

To be asked to give this lecture in memory of Richard Davies was, for me, a truly poignant honour. An honour, because it has become established as one of the most prestigious annual lectures on the legal scene. And poignant, because Dickie welcomed my arrival at what is now 39 Essex Street in 1986 with all the warmth and commitment for which he was well known and for which he was loved by so many of his friends and admirers. He was a brilliant advocate. He brought to his advocacy a remarkable passion and intensity. Shades of grey were not for him. Not even 50 shades of grey. He painted in vivid colours. He had huge expertise in the field of personal injury law. His early death was a terrible loss to the legal profession. He is greatly missed to this day.

Personal injury law has become increasingly complex in recent years. Some of the issues that have troubled the courts have been peculiar to personal injury litigation. The law reports are replete with tricky points relating to the assessment of damages in that area of the law. But questions of wider application have also arisen in personal injury litigation. Take, for example, the vexed issue of causation, which was once thought of as being essentially one of fact, otherwise known as a “jury question”. Some of the most teasing of the causation questions that have arisen in recent times have been decided in personal injury cases. And of perhaps even more general importance is the fundamental issue of whether a duty of care is owed and the whole question of immunity from suit. This too has as much relevance to personal injury practitioners as it does to those who practice in other areas of litigation. I wish to devote my lecture to this topic, with particular reference to the circumstances in which a public authority owes a duty of care in negligence. This is a huge subject in a developing area of the law. There are many cases, and, as is so often the case, many of them cannot be reconciled with each other. This is fertile territory for academics; but less attractive for lawyers trying to advise their clients and to hard-pressed fist instance judges who have to make sense of and apply the law.

. . .

* Lord Dyson, Master of the Rolls, PIBA Richard Davies Lecture (27 November 2012). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/mr-speech-piba-lecture-27112012.pdf).

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