Back to Top

Print this page

Issue #41/2017 12 October 2017

New This Week Case(s) of the Week SMALL MEDIUM ENTERPRISE DEVELOPMENT BANK MALAYSIA BHD v. BLACKROCK CORPORATION SDN BHD & ORS [2017] 9 CLJ 45 Latest Cases Legal Network Series CLJ 2017 Volume 9 (Part 1) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

SMALL MEDIUM ENTERPRISE DEVELOPMENT BANK MALAYSIA BHD v.
BLACKROCK CORPORATION SDN BHD & ORS [2017] 9 CLJ 45
COURT OF APPEAL, PUTRAJAYA
ALIZATUL KHAIR OSMAN JCA, NALLINI PATHMANATHAN JCA, ZABARIAH MOHD YUSOF JCA
[CIVIL APPEAL NO: B-02(IM)(NCVC)-1488-09-2015]
28 JANUARY 2017

CIVIL PROCEDURE: Action – Multiplicity of actions – Whether factual matrix of present action same as previous action – Whether matter adjudged and litigated – Whether created an estoppel per rem judicature – Whether provides finality in litigation – Whether present action abuse of court's process

CIVIL PROCEDURE: Affidavit – Wound up company – Powers to institute legal proceedings – Action commenced by directors of company – Whether directors of wound up company have limited residual powers – Whether power to institute legal proceedings vested in liquidator – Whether only liquidator has capacity to depose affidavit for and on behalf of company – Whether affidavits deposed by wound up company defective – Companies Act 1965, s. 236

CIVIL PROCEDURE: Striking out – Locus standi – Wound up company – Whether has locus standi to institute action – Sanction obtained post filing of writ and statement of claim – Whether sanction is to have retrospective effect – Whether power to institute legal proceedings vested in liquidator – Filing of counterclaim after being served with bankruptcy notice – Whether action frivolous and an abuse of court's process – Rules of Court 2012, O. 18 r. 19(1)

---

Legal Network Series

[2016] 1 LNS 1026	MOHD ROSNI SAFIE v. PP & ANOTHER CASE	CRIMINAL LAW: Dangerous drugs - Possession - Illegal possession of heroin and monoacetylmorphine with a total net weight of 12.68 g - Accused seen discarding incriminating drugs onto ground during physical search - Incriminating drugs found near accused person's leg - Whether ingredients under s. 12(2) of Dangerous Drugs Act 1952 established CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Omissions in police report - Police officer gave evidence in court not stated in police report - Search list not tendered in court but a copy was given to accused - Whether omissions in police report was fatal - Whether police officer had given fresh evidence - Whether absence of search list as evidence for prosecution's case could prejudice accused and raise reasonable doubt in prosecution's case - Whether there was break in chain of evidence CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Appeal by prosecution - Sentence of 7 years imprisonment and 10 strokes of whipping for offence under s. 12(2) of Dangerous Drugs Act 1952 - Illegal possession of heroin and monoacetylmorphine with a total net weight of 12.68 g - Accused was convicted after full trial - Whether trial judge failed to take into account gravity of offence - Whether offence committed was serious in nature - Whether sentence meted out was adequate EVIDENCE: Adverse inference - Section 114(g) Evidence Act 1950 - Prosecution's failure to tender search list and 'akuan serah menyerah dokumen' - Maker of document was called to give evidence in court - Whether there was withholding of material evidence - Whether accused had all opportunity to adduce document in favor of him during trial
[2016] 1 LNS 1034	AHMAD FUAD ABD RAHMAN v. SHELL MALAYSIA TRADING SDN BHD	CONTRACT: Termination - Validity - Agreement granting right and licence to operate petrol station - Validity of termination by licensor - Breach of terms of agreement - Agreement terminated due to licencee's breach of provisions of Control of Supplies Act 1961 and Control of Supplies Regulations 1974 for selling petrol that exceeded maximum limit at station - Whether licensor had lawfully invoked termination clause in agreement - Whether termination of agreement was lawful
[2016] 1 LNS 1334	ANG EK KOON v. DIRECTOR PUBLIC WORKS DEPARTMENT SARAWAK & ORS	CIVIL PROCEDURE: Mode of commencement - Writ action - Objection as to mode of commencement of action - Action commenced by way of writ for declaratory reliefs - Claim against public authorities - Claim concerning deprivation of promotion - Allegation of deliberate victimization - Whether action relates to public law or private law - Whether action should have been filed by way of judicial review proceedings - Whether action commenced was an abuse of court process - Whether action should be dealt with in a trial by calling witnesses CIVIL PROCEDURE: Summary disposal order - Rules of Court 2012, O. 14A - Principles and procedure - Defendant proceeded to file application pursuant to O. 14A before filing of defence - Whether issue of law has to be discernible from statement of claim and defence - Whether court could interpret statement of claim alone to decide point of law - Whether all necessary and material facts relating to subject matter of question of law had been duly proved and admitted - Whether application suitable to determine question posed
[2017] 1 LNS 52	HASRULFAHMY SAMSUDDIN lwn. PP	UNDANG-UNDANG JENAYAH: Rayuan - Rayuan terhadap sabitan - Kesalahan dibawah s. 15(a) Akta Dadah Berbahaya 1952 ('ADB') - Ketiadaan dapatan dalam laporan patologi mengenai dadah berbahaya yang mana yang menjadikan ianya satu kesalahan - Sama ada kegagalan menyatakan dalam laporan patologi bahawa amphetamine dan methamphetamine merupakan dadah berbahaya disenaraikan dibawah ADB adalah fatal - Sama ada tertuduh telah dikelirukan mengenai pertuduhan yang dikenakan terhadapnya - Sama ada sabitan wajar dikekalkan PROSEDUR JENAYAH: Tangkapan - Tangkapan bagi maksud s. 37A Akta Dadah Berbahaya 1952 ('ADB') - Tertuduh dibawa ke pejabat polis untuk kesalahan yang tiada kaitan dengan perihal dadah - Sama ada orang yang akan memberikan spesimen air kencing perlu terlebih dahulu ditangkap dan disusuli dengan pemberian spesimen air kencing - Sama ada tertuduh telah ditangkap pihak polis pada masa air kencing tertuduh diambil - Sama ada pengambilan air kencing menurut s. 31A(1A) ADB adalah sah PROSEDUR JENAYAH: Penyiasatan polis - Pertuduhan berkenaan dadah - Ujian dan analisa air kencing menurut Akta Dadah Berbahaya 1952 ('ADB') - Signifikasi Arahan Tetap Ketua Polis Negara Bab F103 ('Arahan') dan Surat Pekeliling Ketua Pengarah Kesihatan Malaysia Bil 6/2002 ('Surat Pekeliling') - Sama ada Arahan dan Surat Pekeliling perlu dibaca secara kolateral bersama-sama dengan ADB - Sama ada pembekalan 2 botol spesimen air kencing dengan kandungan minimum sekurang-kurangnya 30ml untuk tujuan saringan awal dan analisa adalah mandatori - Sama ada Arahan dan Surat Pekeliling mempunyai kuatkuasa undang-undang
[2017] 1 LNS 636	LOGIK PENGURUSAN SDN BHD v. INDUSTRIAL COURT OF MALAYSIA & ANOR	ADMINISTRATIVE LAW: Judicial review - Certiorari - Application to quash decision of Industrial Court - Departure from pleadings - Erroneous assumption of facts - Industrial Court allowing claimant's application to amend grounds for dismissal in statement of case after end of trial and during submission stage - Whether departure from pleadings caused prejudice to company - Whether there was misdirection of facts and law committed by Industrial Court - Whether industrial court award ought to be quashed

---

CLJ 2017 Volume 9 (Part 1)

COURT OF APPEAL

Pentadbir Tanah Seremban v. Inisiatif Jaya Sdn Bhd & Another Appeal
Balia Yusof Wahi, Hamid Sultan Abu Backer, Badariah Sahamid JJCA
(Land Law; Words & Phrases - Acquisition of land - Compensation - Inadequacy) [2017] 9 CLJ 1 [CA]

Selangor State Government & Anor v. Kuala Lumpur Kepong Bhd
Tengku Maimun Tuan Mat, Abdul Rahman Sebli, Kamardin Hashim JJCA
(Land Law - Land acquisition - Acquisition by State Authority - Whether for public purpose) [2017] 9 CLJ 31 [CA]

Small Medium Enterprise Development Bank Malaysia Bhd v. Blackrock Corporation Sdn Bhd & Ors
Alizatul Khair Osman, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA
(Civil Procedure - Action - Multiplicity of actions - Whether factual matrix of present action same as previous action) [2017] 9 CLJ 45 [CA]

Suruhanjaya Sekuriti v. Datuk Ishak Ismail & Anor
Rohana Yusuf, Idrus Harun, Mary Lim JJCA
(Civil Procedure - Stay of proceedings - Concurrent civil and criminal proceedings - Breach of securities laws) [2017] 9 CLJ 63 [CA]

HIGH COURT

Arena Tegar Sdn Bhd v. Pentadbir Tanah Daerah Johor Bahru & Anor
Choo Kah Sing JC
(Land Law - Acquisition of land - Compensation - Due date for payment of compensation) [2017] 9 CLJ 77 [HC]

Fadzil Awang Kechik v. Menteri Sumber Manusia & Anor
Hanipah Farikullah J
(Administrative Law; Labour Law - Industrial Court - Reference by Minister - Minister's refusal to refer representations to Industrial Court) [2017] 9 CLJ 85 [HC]

Glen Lau Lian Seng v. Personal Representative Of Jeswant Natarajan, Deceased
Azizul Azmi Adnan J
(Civil Procedure - Parties - Action against estate of deceased - Application for widow of deceased to be appointed as personal representative of estate of deceased) [2017] 9 CLJ 96 [HC]

PNSB Acmar Sdn Bhd v. Palanisamy Kuppusamy
Chan Jit Li JC
(Civil Procedure - Appeal - Assessment of damages - Appeal against decision of Registrar) [2017] 9 CLJ 106 [HC]

Sunshine Fleet Sdn Bhd v. Jabatan Kerja Raya Malaysia & Anor
Vazeer Alam Mydin Meera J
(Contract - Breach - Construction contract - Delay in project works by contractor despite extensions given) [2017] 9 CLJ 114 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application to quash Minister's decision not to refer representations to Industrial Court - Forced resignation - Whether there was constructive dismissal - Whether applicant's representation frivolous, perverse and vexatious - Whether Minister overstepped jurisdiction by rejecting applicant's representation on merits - Whether applicant's acceptance of compensation prevented or barred him from seeking remedy of reinstatement from Industrial Court - Whether Industrial Court the appropriate forum to make fair and appropriate decision - Industrial Relations Act 1967, s. 20(3)
Fadzil Awang Kechik v. Menteri Sumber Manusia & Anor
(Hanipah Farikullah J) [2017] 9 CLJ 85 [HC]

CIVIL PROCEDURE

Action - Multiplicity of actions - Whether factual matrix of present action same as previous action - Whether matter adjudged and litigated - Whether created an estoppel per rem judicature - Whether provides finality in litigation - Whether present action abuse of court's process
Small Medium Enterprise Development Bank Malaysia Bhd v. Blackrock Corporation Sdn Bhd & Ors
(Alizatul Khair Osman, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA) [2017] 9 CLJ 45 [CA]

Affidavit - Wound up company - Powers to institute legal proceedings - Action commenced by directors of company - Whether directors of wound up company have limited residual powers - Whether power to institute legal proceedings vested in liquidator - Whether only liquidator has capacity to depose affidavit for and on behalf of company - Whether affidavits deposed by wound up company defective - Companies Act 1965, s. 236
Small Medium Enterprise Development Bank Malaysia Bhd v. Blackrock Corporation Sdn Bhd & Ors
(Alizatul Khair Osman, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA) [2017] 9 CLJ 45 [CA]

Appeal - Assessment of damages - Appeal against decision of Registrar - Claim for damages arising from defects in building structure - Registrar granted nominal damages despite finding purchaser failed to prove damages - Whether Registrar erred in concluding that purchaser failed to prove damages - Whether order of nominal damages justified
PNSB Acmar Sdn Bhd v. Palanisamy Kuppusamy
(Chan Jit Li JC) [2017] 9 CLJ 106 [HC]

Parties - Action against estate of deceased - Application for widow of deceased to be appointed as personal representative of estate of deceased - Widow of deceased applied to set aside appointment - Whether consent an express requirement under O. 15 r. 6A of Rules of Court 2012 - Whether consent a relevant consideration in determining whether court ought to exercise its discretion to grant order sought
Glen Lau Lian Seng v. Personal Representative Of Jeswant Natarajan, Deceased
(Azizul Azmi Adnan J) [2017] 9 CLJ 96 [HC]

Stay of proceedings - Concurrent civil and criminal proceedings - Breach of securities laws - Application to stay all further proceedings in civil suit until final disposal of criminal proceedings - Whether there were special circumstances warranting stay of proceedings - Whether there was possibility of inconsistent finding of fact and law between courts hearing civil suit and criminal proceedings - Whether criminal charges ought to be preferred at later stage after disposal of civil suit - Whether stay application ought to be allowed - Rules of Court 2012, O. 92 r. 4
Suruhanjaya Sekuriti v. Datuk Ishak Ismail & Anor
(Rohana Yusuf, Idrus Harun, Mary Lim JJCA) [2017] 9 CLJ 63 [CA]

Striking out - Locus standi - Wound up company - Whether has locus standi to institute action - Sanction obtained post filing of writ and statement of claim - Whether sanction is to have retrospective effect - Whether power to institute legal proceedings vested in liquidator - Filing of counterclaim after being served with bankruptcy notice - Whether action frivolous and an abuse of court's process - Rules of Court 2012, O. 18 r. 19(1)
Small Medium Enterprise Development Bank Malaysia Bhd v. Blackrock Corporation Sdn Bhd & Ors
(Alizatul Khair Osman, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA) [2017] 9 CLJ 45 [CA]

CONTRACT

Breach - Construction contract - Delay in project works by contractor despite extensions given - Government of Malaysia terminated contract nine months before completion date on ground that contractor failed to proceed with works regularly and diligently - Whether termination premature - Whether there was anticipatory breach - Whether termination lawful
Sunshine Fleet Sdn Bhd v. Jabatan Kerja Raya Malaysia & Anor
(Vazeer Alam Mydin Meera J) [2017] 9 CLJ 114 [HC]

Termination - Notice - Validity - Construction contract - Delay in project works by contractor despite extensions given - Notice of termination faxed to contractor and later delivered by AR registered post - Contract stipulated two methods of delivery of notice of termination - Registered post and recorded delivery - Whether facsimile could be construed as recorded delivery - Whether notice of termination through facsimile transmission proper service - Whether termination lawful
Sunshine Fleet Sdn Bhd v. Jabatan Kerja Raya Malaysia & Anor
(Vazeer Alam Mydin Meera J) [2017] 9 CLJ 114 [HC]

LABOUR LAW

Employment - Forced resignation - Whether there was constructive dismissal - Application to quash Minister's decision not to refer representations to Industrial Court - Whether applicant's representation frivolous, perverse and vexatious - Whether Minister overstepped jurisdiction by rejecting applicant's representation on merits - Whether applicant's acceptance of compensation prevented or barred him from seeking remedy of reinstatement from Industrial Court - Whether Industrial Court the appropriate forum to make fair and appropriate decision - Industrial Relations Act 1967, s. 20(3)
Fadzil Awang Kechik v. Menteri Sumber Manusia & Anor
(Hanipah Farikullah J) [2017] 9 CLJ 85 [HC]

Industrial Court - Reference by Minister - Minister's refusal to refer representations to Industrial Court - Judicial review - Application for - Forced resignation - Whether there was constructive dismissal - Whether applicant's representation frivolous, perverse and vexatious - Whether Minister overstepped jurisdiction by rejecting applicant's representation on merits - Whether applicant's acceptance of compensation prevented or barred him from seeking remedy of reinstatement from Industrial Court - Whether Industrial Court the appropriate forum to make a fair and appropriate decision - Industrial Relations Act 1967, s. 20(3)
Fadzil Awang Kechik v. Menteri Sumber Manusia & Anor
(Hanipah Farikullah J) [2017] 9 CLJ 85 [HC]

LAND LAW

Acquisition of land - Compensation - Due date for payment of compensation - Dispute as to person entitled to compensation - Land Administrator made aware of dispute - Land Administrator applied to deposit compensation into court after due date - Whether Land Administrator delayed in making payment of compensation - Whether Land Administrator liable to pay late payment charges - Land Acquisition Act 1960, ss. 22, 29(1)(c), 29(2), 32, 32(1) and 32(1C)
Arena Tegar Sdn Bhd v. Pentadbir Tanah Daerah Johor Bahru & Anor
(Choo Kah Sing JC) [2017] 9 CLJ 77 [HC]

Acquisition of land - Compensation - Inadequacy - Landowner's objection to compensation via submission of Form N to land administrator - Failure to state claim for severance and injurious affection - Whether requirement to expressly state grounds of objection in Form N a mandatory requirement - Whether landowner entitled to claim for severance and injurious affection - Whether High Court erred in awarding compensation for severance and injurious affection when these issues had not been raised in Form N - Land Acquisition Act 1960, s. 38(2)
Pentadbir Tanah Seremban v. Inisiatif Jaya Sdn Bhd & Another Appeal
(Balia Yusof Wahi, Hamid Sultan Abu Backer, Badariah Sahamid JJCA) [2017] 9 CLJ 1 [CA]

Land acquisition - Acquisition by State Authority - Whether for public purpose - Whether acquisition contravened designated zoning of land - Whether purpose of acquisition contravened requirements under Environmental Quality Act 1974 - Whether Land Acquisition Act 1960 requires compliance with other laws before land could be acquired - Whether State Authority could have leased land instead of acquiring it - Land Acquisition Act 1960, s. 57
Selangor State Government & Anor v. Kuala Lumpur Kepong Bhd
(Tengku Maimun Tuan Mat, Abdul Rahman Sebli, Kamardin Hashim JJCA) [2017] 9 CLJ 31 [CA]

WORDS & PHRASES

'state fully' - Land Acquisition Act 1960, s. 38(2) - Whether 'shall' precedes requirement to 'state fully' - Whether grounds of any objection to award of compensation must be stated expressly and in specific terms in Form N - Whether a mandatory requirement
Pentadbir Tanah Seremban v. Inisiatif Jaya Sdn Bhd & Another Appeal
(Balia Yusof Wahi, Hamid Sultan Abu Backer, Badariah Sahamid JJCA) [2017] 9 CLJ 1 [CA]

---

LNS Article(s)

1. UNIVERSITY ARBITRATION: IS IT THE WAY FORWARD IN ADR?* ^{[Read excerpt]}
   JUSTICE DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER JUDGE, COURT OF APPEAL MALAYSIA** [2017] 1 LNS(A) lxxxviii

[2017] 1 LNS(A) lxxxviii



MALAYSIA

---

UNIVERSITY ARBITRATION:
IS IT THE WAY FORWARD IN ADR?*

JUSTICE DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER
JUDGE COURT OF APPEAL MALAYSIA**

Assalamualaikum Warahmatullahi Wabarakatuh

and Salam Sejahtera.

Honourable Jurists, Law Students, Ladies and Gentlemen,

It is an immense pleasure and unique honour for me to be invited as a keynote speaker to share my thoughts on the caption University Arbitration: Is it The Way Forward In ADR?^[1]

To digress a bit, first let me explain why I say it is an 'immense pleasure' and unique honour, in particular. This is the University where I did my post-graduate Diploma in Shariah Law, Islamic Banking as well as my Doctorate in Civil Procedure and Justice. This is also the University where I met the iconic Malaysian Professor the late Professor Emeritus Ahmad Ibrahim. He was instrumental in shaping my life into becoming a writer. I will share with you a unique conversation with him which may also shape your life.

. . .

* Paper presented on 9 - 10 August 2017 as a keynote speaker at the International Conference on Dispute Resolution (ICDR17) held at Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, and dedicated to its faculty members and students and also the students and faculty members of Shariah Faculty and Law, International Islamic University Malaysia (USIM), Multimedia University (MMU) Law Faculty, and Damodaram Sanjivayya National Law University (DSNLU). Copyright @ Hamid Sultan bin Abu Backer with consent to all to publish this paper. And a note of thanks to advocates Nizam Bashir, Arunachalam Kasi, Thayananthan Baskaran and jurist Dr. Umar A. Oseni for their suggestions.

** Judge of the Court of Appeal Malaysia. He is an Honorary Visiting Professor of Damodaran Sanjivayya National Law University, Visakhapatnam, India; a barrister and a fellow of the Chartered Institute of Arbitrators. He is a graduate in Economics and also an honours and master's degree holder from University of London in Insurance, Shipping and Syariah Law.

---

Please subscribe to cljlaw or login for the full article.

2. EMPOWERING UNIVERSITIES AS ARBITRATION CENTRES: A GLOBAL PERSPECTIVE ^{[Read excerpt]}
   DR. HAMID SULTAN BIN ABU BACKER* ARUN KASI** [2017] 1 LNS(A) lxxxii

[2017] 1 LNS(A) lxxxii



MALAYSIA

---

EMPOWERING UNIVERSITIES AS ARBITRATION CENTRES:
A GLOBAL PERSPECTIVE

DR. HAMID SULTAN BIN ABU BACKER*
ARUN KASI**

Abstract^[1]

A proposal for research to be done to empower Universities as Arbitration Centres or Arbitral Institutions as conceived and advocated by Dr. Hamid Sultan bin Abu Backer. This paper invites consideration of the proposal by stakeholders of Alternative Dispute Resolution (ADR - arbitration, mediation, adjudication, etc.) and universities globally. The paper proposes that universities should be empowered as Arbitration Centres or Arbitral Institutions and the talents from various faculties of the universities to be allowed to sit as arbitrators, mediators, adjudicators, etc. (subject to formal training) and if feasible, university premises to be utilised as hearing centres. It is also being suggested that (i) legislation is made for courts to refer suitable cases fit for ADR to approved and/or participating universities; (ii) existing arbitral institutions or relevant bodies provide guidance and training support for 'University Arbitration'; and (iii) laws are amended to provide for arbitration clauses and 'University Arbitration' in relation to suitable civil and commercial contracts.

. . .

* Judge of the Court of Appeal, Malaysia; author of International Arbitration with Commentary to Malaysian Arbitration Act 2005, Kuala Lumpur, Janab Law Publications, 2016.

** Advocate and Solicitor of the High Court of Malaya; author of Arbitration: Stay of Court Proceedings and Anti-Suit Injunctions, Kuala Lumpur, CLJ Publication, 2014.

---

Please subscribe to cljlaw or login for the full article.

3. LAW, MORALITY AND THE PUBLIC TRUST* ^{[Read excerpt]}
   JUSTIN GLEESON SC** [2017] 1 LNS(A) lxxxvi

[2017] 1 LNS(A) lxxxvi



AUSTRALIA

---

LAW, MORALITY AND THE PUBLIC TRUST*

JUSTIN GLEESON SC**

Introduction

Thank you to the ACT Society for the opportunity to deliver the 2017 Blackburn Lecture, the 32^nd in this important series.

Sir Richard Blackburn was farewelled from the ACT Supreme Court in 1985, the year I commenced legal practice. I did not have the personal opportunity to observe or learn from his rich personal qualities or widespread contributions to Australian law, including at University and through the Courts of the Northern Territory, the ACT and the Federal Court of Australia. I can only hope that my remarks today stimulate thought in the way he envisioned this lecture should when he gave the Inaugural Lecture on 21 May 1986.

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 244 June 2017.

** Barrister, Former Solicitor-General Of The Commonwealth Of Australia.

---

Please subscribe to cljlaw or login for the full article.

Principal Acts

Amending Acts

PU(A)

PU(B)

Legislation Alert