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SILVER CORRIDOR SDN BHD v. GALLANT ACRES SDN BHD & ANOR [2016] 7 CLJ 823
FEDERAL COURT, PUTRAJAYA
ZULKEFLI AHMAD MAKINUDIN CJ (MALAYA), SURIYADI HALIM OMAR FCJ,
ZAINUN ALI FCJ, RAMLY ALI FCJ, BALIA YUSOF WAHI FCJ
[CIVIL APPEAL NO: 02(f)-16-02-2015(W)]
14 JULY 2016

COMPANY LAW: Winding up - Transfer of property - Transfer of company's property within two years prior to presentation of winding up petition - Whether made in good faith and with valuable consideration - Whether in violation of rule against 'undue preference' - Whether absolutely void as against liquidator of company - Whether to be read together with relevant laws of bankruptcy - Companies Act 1965, s. 293 - Bankruptcy Act 1967, ss. 52 & 53

WORDS & PHRASES: 'Undue preference' - Companies Act 1965, s. 293 - Meaning and purport - Whether to be read with ss. 52 & 53 of Bankruptcy Act 1967

Legal Network Series

CLJ 2016 Volume 7 (Part 6)

FEDERAL COURT

Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor
Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali, Balia Yusof Wahi FCJJ
(Company Law; Words & Phrases - Winding up - Transfer of property - Whether made in good faith and with valuable consideration) [2016] 7 CLJ 823 [FC]

COURT OF APPEAL

Assistant Collector Of Land Revenues & Ors v. Alfeus Yahsu & Anor And Another Appeal
Mohd Zawawi Salleh, Prasad Sandosham Abraham, Zaleha Yusof JJCA
(Jurisdiction - Claim for native customary rights - Whether High Court has original jurisdiction) [2016] 7 CLJ 848 [CA]

Hassan Hussin v. Tengku Azhar Adib T Yusuf
David Wong Dak Wah, Idrus Harun, Zamani A Rahim JJCA
(Land Law - Sale of land - Bare trust - Forgery - Transfer of land) [2016] 7 CLJ 864 [CA]

Mohd Badli Abd Razak & Ors v. Ali Ismail
Lim Yee Lan, Varghese George, Idrus Harun JJCA
(Company Law; Contract - Directors - Fiduciary duties) [2016] 7 CLJ 881 [CA]

Uthayakumar Ponnusamy v. Abdul Wahab Abdul Kassim & Ors
Md Raus Sharif PCA, Balia Yusof Wahi FCJ, Abdul Aziz Abdul Rahim JCA
(Civil Procedure - Contempt of court - Failure to comply with orders of court) [2016] 7 CLJ 896 [CA]

HIGH COURT

Chenna Gounder Kandasamy v. Angamah Sunappan
Mohd Nazlan Ghazali JC
(Succession; Evidence - Documentary evidence - Construction of wills - Validity of wills) [2016] 7 CLJ 914 [HC]

Hamidah Mohd Khalid & Yang Lain lwn. Pentadbir Tanah Daerah Gombak
Akhtar Tahir H
(Undang-Undang Tanah - Pelucuthakan - Pelanggaran syarat atas hartanah yang dijadikan tempat pembuangan sampah haram) [2016] 7 CLJ 936 [HC]

Lai Chu Sing v. Lai Teck Sian & Ors
Mohd Firuz Jaffril JC
(Company Law - Transaction of shares - Whether contravened s. 67(1) of Companies Act 1965) [2016] 7 CLJ 948 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Contempt of court - Application for leave - Failure to comply with orders of court - Whether orders arose out of application or matter requiring court determination or ruling - Whether nature of order given final or interlocutory - Whether orders mere administrative directions - Whether non-compliance with directives interfered with administration of justice - Whether orders within meaning of O. 42 of Rules of the High Court 1980
Uthayakumar Ponnusamy v. Abdul Wahab Abdul Kassim & Ors
(Md Raus Sharif PCA, Balia Yusof Wahi FCJ, Abdul Aziz Abdul Rahim JCA) [2016] 7 CLJ 896 [CA]

Contempt of court - Application for leave - Whether leave application for committal ought to be supported by statement setting out grounds on which committal was found - Whether motion for leave contained only prayers to commit for non-compliance with court directives - Whether non-filing of statement fatal to application for leave - Rules of the High Court 1980, O. 52 r. 3(2)
Uthayakumar Ponnusamy v. Abdul Wahab Abdul Kassim & Ors
(Md Raus Sharif PCA, Balia Yusof Wahi FCJ, Abdul Aziz Abdul Rahim JCA) [2016] 7 CLJ 896 [CA]

COMPANY LAW

Directors - Fiduciary duties - Agreement to extract timber - Terms in agreement between directors for share of proceeds - Whether terms in contravention of applicable laws - Whether formulated to circumvent law pertaining to management of financial matters and assets of company
Mohd Badli Abd Razak & Ors v. Ali Ismail
(Lim Yee Lan, Varghese George, Idrus Harun JJCA) [2016] 7 CLJ 881 [CA]

Shares - Transaction of shares - Obtaining financial assistance from company for purposes of acquiring shares - Whether contravened s. 67(1) of Companies Act 1965 - Whether share sale transaction separate and distinct from loan transaction - Whether share sale transaction valid and enforceable - Whether plaintiff entitled to claim for balance of actual market value for his shares
Lai Chu Sing v. Lai Teck Sian & Ors
(Mohd Firuz Jaffril JC) [2016] 7 CLJ 948 [HC]

Winding up - Transfer of property - Transfer of company's property within two years prior to presentation of winding up petition - Whether made in good faith and with valuable consideration - Whether in violation of rule against 'undue preference' - Whether absolutely void as against liquidator of company - Whether to be read together with relevant laws of bankruptcy - Companies Act 1965, s. 293 - Bankruptcy Act 1967, ss. 52 & 53
Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali, Balia Yusof Wahi FCJJ) [2016] 7 CLJ 823 [FC]

CONTRACT

Agreement - Agreement to extract timber - Breach - Whether terms of agreement valid and enforceable - Terms in contravention of applicable laws - Whether formulated to circumvent law pertaining to management of financial matters and assets of company - Whether agreement capable of performance
Mohd Badli Abd Razak & Ors v. Ali Ismail
(Lim Yee Lan, Varghese George, Idrus Harun JJCA) [2016] 7 CLJ 881 [CA]

EVIDENCE

Documentary evidence - Construction of wills - Validity of wills - Existence of two wills allegedly made by deceased - Whether testimonies of witnesses supported circumstances surrounding making of wills
Chenna Gounder Kandasamy v. Angamah Sunappan
(Mohd Nazlan Ghazali JC) [2016] 7 CLJ 914 [HC]

JURISDICTION

High Court - High Court in Sabah - Customary land - Claim for native customary rights - Whether High Court has original jurisdiction to hear claims for native customary rights - Whether High Court can only exercise appellate jurisdiction
Assistant Collector Of Land Revenues & Ors v. Alfeus Yahsu & Anor And Another Appeal
(Mohd Zawawi Salleh, Prasad Sandosham Abraham, Zaleha Yusof JJCA) [2016] 7 CLJ 848 [CA]

LAND LAW

Sale of land - Bare trust - Land purchased by buyer not transferred by vendor immediately - Land subjected to restriction prohibiting transfer of ownership for period of ten years from date land title was issued - Vendor to complete transfer of land to buyer after expiry of restriction - Original qualified title of land in buyer's possession - Whether vendor bare trustee
Hassan Hussin v. Tengku Azhar Adib T Yusuf
(David Wong Dak Wah, Idrus Harun, Zamani A Rahim JJCA) [2016] 7 CLJ 864 [CA]

Sale of land - Forgery - Transfer of land - Allegations by vendor that power of attorney and Form 14A executed in favour of buyer forged - Whether allegations proved
Hassan Hussin v. Tengku Azhar Adib T Yusuf
(David Wong Dak Wah, Idrus Harun, Zamani A Rahim JJCA) [2016] 7 CLJ 864 [CA]

SUCCESSION

Will - Validity - Existence of two wills allegedly made by deceased - First will concerned piece of property - Second will contained statement that deceased deliberately did not make provisions to any beneficiaries who might be entitled - Whether there were defects, omission or inconsistencies in wills - Whether testimonies supported circumstances surrounding making of wills
Chenna Gounder Kandasamy v. Angamah Sunappan
(Mohd Nazlan Ghazali JC) [2016] 7 CLJ 914 [HC]

WORDS & PHRASES

'Undue preference' - Companies Act 1965, s. 293 - Meaning and purport - Whether to be read with ss. 52 & 53 of Bankruptcy Act 1967
Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali, Balia Yusof Wahi FCJJ) [2016] 7 CLJ 823 [FC]

SUBJEK INDEKS

UNDANG-UNDANG TANAH

Pelucuthakan - Pelucuthak hartanah kepada Pihak Berkuasa Negeri - Pelanggaran syarat atas hartanah yang dijadikan tempat pembuangan sampah haram - Notis untuk memulihkan pelanggaran - Sama ada notis harus diberi sebelum pengeluaran Borang 7A dan 7B menurut ss. 128 dan 129 Kanun Tanah Negara - Sama ada plaintif-plaintif bertanggungjawab memastikan kepatuhan peruntukan statutori - Tempoh masa 44 hari untuk membaik pulih kerosakan hartanah - Sama ada tempoh yang munasabah - Sama ada keputusan mala fide - Sama ada terdapat pelanggaran prosedur yang diperuntukkan di bawah s. 134 Kanun Tanah Negara - Sama ada rampasan dan pelucuthak hartanah selari dengan s. 127 Kanun Tanah Negara
Hamidah Mohd Khalid & Yang Lain lwn. Pentadbir Tanah Daerah Gombak
(Akhtar Tahir H) [2016] 7 CLJ 936 [HC]

LNS Article(s)

1. A BALANCING ACTEFFECTIVE MANAGEMENT OF WORKPLACE DISREPUTE BY EMPLOYEES* ^{[Read excerpt]}
   JOHN WILSON** [2016] 1 LNS(A) lxxvii

[2016] 1 LNS(A) lxxvii



AUSTRALIA

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A BALANCING ACT
EFFECTIVE MANAGEMENT OF WORKPLACE DISREPUTE BY EMPLOYEES*

JOHN WILSON**

As Benjamin Franklin once said, “Glass, china, and reputation are easily cracked, and never well mended.” It is commonplace in the modern workplace for contracts of employment to include terms giving the employer the right to terminate the employment relationship if the employee brings the employer’s business into disrepute. But how is one to judge whether damage has been suffered to one’s reputation?

 

The answer is not always as simple as one might first assume.

With the rise of social media and other ‘instant’ sources of publication, the ability for content harmful to a business’ reputation to go viral is at an all-time high. However, whether this has any nexus with the employment relationship is worth considering closely.

For employers, the probability of their employees posting, or being tagged in, posts containing content that could be said to bring disrepute upon their workplace is an ever-growing risk.

Few areas of an individuals’ life are now fully led behind closed doors. Such was certainly so for Scott McIntyre, the former employee of and reporter for the SBS, who was famously sacked for his Tweets surrounding ANZAC Day. The SBS did not appreciate being associated with those Tweets (McIntyre’s Twitter profile referred to the fact that he was an SBS journalist).

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 239 March 2016.

** John Wilson is the Managing Legal Director at Bradley Allen Love and is an Accredited Specialist in Industrial Relations and Employment Law. John's expertise in Labour and Employment Law has been recognised by his inclusion in the Australian Financial Review's List of Australia's Best Lawyers 2013. He is the chair of the ACT Law Society's industrial relations committee.

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2. FIDUCIARIES IN THE ADMINISTRATION OF THE DECEASED'S ESTATE: THE TWO DISTINCT CAPACITIES OF PERSONAL REPRESENTATIVES AND TRUSTEES ^{[Read excerpt]}
   DR. AKMAL HIDAYAH HALIM* NOR AZLINA MOHD NOOR** [2016] 1 LNS(A) lxxviii

[2016] 1 LNS(A) lxxviii



MALAYSIA

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FIDUCIARIES IN THE ADMINISTRATION OF THE DECEASED'S ESTATE:
THE TWO DISTINCT CAPACITIES OF PERSONAL REPRESENTATIVES AND TRUSTEES

DR. AKMAL HIDAYAH HALIM*
NOR AZLINA MOHD NOOR**

Introduction

Personal representative is one of the most important figures in the dramatis personae, a drama in human relationships that normally involves elements of struggle, plight, honesty and fraud in the administration of a deceased’s estate. This is due to the fact that upon a person’s death, his estate does not simply glide between his legal heirs but instead enters into a kind of limbo. Thus, the office of personal representative requires a person who must at the utmost ensure himself to have a solemn understanding of his duties and obligations. A personal representative is in a fiduciary relationship with the estate beneficiaries; a relationship which undeniably encompasses many essential elements of trust. The personal representative is held to the highest degree of good faith in performing his duties and owes fiduciary responsibility to the estate beneficiaries.^[1]

In the process of estate administration, one question that has nagged the office of personal representative is what should be the two distinct capacities of a personal representative and trustee since the element of trust is part and parcel of the duties and obligation imposed on the personal representative. In addition, the expression of trustee under the Malaysian Trustee Act 1949 includes the duties incidental to the office of a personal representative. 

. . .

* Associate Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, akmalh@iium.edu.my.

** Lecturer, School of Law, College of Law, Government & International Studies University Utara Malaysia, norazlyna@uum.edu.my.

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CLJ Article(s)

1. COLLOQUIUM FOR PUBLIC PROSECUTORS AND THE JUDICIARY ON
   THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS OPENING REMARKS ^{[Read excerpt]}
   THE RT HON TAN SRI DATO' SERI ZULKEFLI AHMAD MAKINUDIN* [2016] 7 CLJ(A) xv

[2016] 7 CLJ(A) xv



MALAYSIA

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COLLOQUIUM FOR PUBLIC PROSECUTORS AND THE JUDICIARY ON
THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS OPENING REMARKS

THE RT HON TAN SRI DATO' SERI ZULKEFLI AHMAD MAKINUDIN*

Mr Peter N Fowler, Regional Intellectual Property Attaché for Southeast Asia, USPTO, Honourable Judges, distinguished delegates, ladies and gentlemen,

Good morning.

I am deeply honoured to be invited to officiate the opening of this Colloquium for Public Prosecutors and the Judiciary on the enforcement of intellectual property rights. I wish to thank all the delegates and participants in particular from the ASEAN Member States who are present here today for sharing their time with us at this important forum. Also, I would like to thank the United States Patent and Trademark Office ('USPTO'), its Global Intellectual Property Academy and the ASEAN Secretariat for organising this event and the excellent arrangements made.

. . .

* Chief Judge of the High Court of Malaya. Colloquium organised by the United States Patent and Trademarks Office's Global Intellectual Property Academy and The ASEAN Secretariat with support from the United States Department of State Bureau of International Narcotics & Law Enforcement Affairs (INL) Office.

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