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MALAYAN BANKING BHD v. MAHKAMAH PERUSAHAAN MALAYSIA & ANOR [2017] 2 CLJ 70
HIGH COURT MALAYA, PULAU PINANG
COLLIN LAWRENCE SEQUERAH JC
[JUDICIAL REVIEW NO: 25-69-09-2015]
17 OCTOBER 2016

CIVIL PROCEDURE: Judicial review - Certiorari - Application to quash award by Industrial Court - Employment on fixed term contract inclusive of probationary period - Employee not confirmed by employer - Industrial Court awarded back wages of 12 months with rescaling of 20% for post-dismissal earnings - Whether employee terminated with just cause and excuse - Whether award appropriate - Whether there was reviewable error by Industrial Court

LABOUR LAW: Employment - Dismissal - Employee employed on fixed term contract inclusive of probationary period - Employee not confirmed by employer due to incompetency - Whether employee dismissed with just cause and excuse - Whether probationer on fixed term contract entitled to back wages of unexpired portion of fixed term contract - Whether entitled to 12 months back wages - Discretion of Industrial Court in rescaling percentage for post-dismissal earnings - Industrial Relations Act 1967

Legal Network Series

CLJ 2017 Volume 2 (Part 1)

FEDERAL COURT

Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor
Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali FCJJ, Balia Yusof Wahi JCA
(Revenue Law - Income tax - Withholding tax - Assessment of - Whether income derived from royalty payments) [2017] 2 CLJ 1 [FC]

Zen Courts Sdn Bhd v. Bukit Jalil Development Sdn Bhd & Ors
Suriyadi Halim Omar, Abu Samah Nordin, Azahar Mohamed, Balia Yusof Wahi, Aziah Ali FCJJ
(Company Law - Valuation - Sale of shares - Allegation of minority oppression - Order for buy-out shares) [2017] 2 CLJ 32 [FC]

COURT OF APPEAL

Heveaplast Marketing Sdn Bhd v. See Leong Chye & Ors And Other Appeals
David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA
(Land Law - Indefeasibility of title and interest - Fraud - Sale and purchase of land - National Land Code, s. 340) [2017] 2 CLJ 43 [CA]

HIGH COURT

Malayan Banking Bhd v. Mahkamah Perusahaan Malaysia & Anor
Collin Lawrence Sequerah JC
(Civil Procedure; Labour Law - Judicial review - Certiorari - Application to quash award by Industrial Court) [2017] 2 CLJ 70 [HC]

Matu Tugang (Suing For And On Behalf Of Himself & 42 Ors) v. Shin Yang Forestry Sdn Bhd & Ors
Rhodzariah Bujang J
(Land Law; Native Law And Custom - Land dispute - Customary rights over land - Claim for) [2017] 2 CLJ 82 [HC]

Teoh Ching Hwa v. Mohd Nor Arif Ahmad & Anor And Another Case
Yeoh Wee Siam J
(Road Traffic; Damages - Negligence - Road accident - Liability - Ascertainment of) [2017] 2 CLJ 107 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Judicial review - Certiorari - Application to quash award by Industrial Court - Employment on fixed term contract inclusive of probationary period - Employee not confirmed by employer - Industrial Court awarded back wages of 12 months with rescaling of 20% for post-dismissal earnings - Whether employee terminated with just cause and excuse - Whether award appropriate - Whether there was reviewable error by Industrial Court
Malayan Banking Bhd v. Mahkamah Perusahaan Malaysia & Anor
(Collin Lawrence Sequerah JC) [2017] 2 CLJ 70 [HC]

COMPANY LAW

Shares - Valuation - Sale of shares - Allegation of minority oppression - Order for buy-out shares - Valuation report prepared by mutually agreed valuer - Application by minority shareholders seeking representations be made on valuation report - Whether cross-examination of valuer in relation to valuation report permitted - Whether buy-out order would be varied - Whether buy-out order good, valid and intact - Companies Act 1965, s. 181
Zen Courts Sdn Bhd v. Bukit Jalil Development Sdn Bhd & Ors
(Suriyadi Halim Omar, Abu Samah Nordin, Azahar Mohamed, Balia Yusof Wahi, Aziah Ali FCJJ) [2017] 2 CLJ 32 [FC]

DAMAGES

Appeal - Appeal against quantum - Road accident - Motorcyclist hitting pedestrian crossing street - Whether awards given to pedestrian exorbitant - Whether pedestrian entitled to award for EPF - Whether pedestrian paid wages as defined under s. 2 of Employees Provident Fund Act 1991 - Whether award for speech therapy should be included in medical costs - Award for total loss of future earnings - Whether reasonable and ought to be maintained
Teoh Ching Hwa v. Mohd Nor Arif Ahmad & Anor And Another Case
(Yeoh Wee Siam J) [2017] 2 CLJ 107 [HC]

LABOUR LAW

Employment - Dismissal - Employee employed on fixed term contract inclusive of probationary period - Employee not confirmed by employer due to incompetency - Whether employee dismissed with just cause and excuse - Whether probationer on fixed term contract entitled to back wages of unexpired portion of fixed term contract - Whether entitled to 12 months back wages - Discretion of Industrial Court in rescaling percentage for post-dismissal earnings - Industrial Relations Act 1967
Malayan Banking Bhd v. Mahkamah Perusahaan Malaysia & Anor
(Collin Lawrence Sequerah JC) [2017] 2 CLJ 70 [HC]

LAND LAW

Charge - Indefeasibility of interest - Title to land obtained by fraud - Whether charge of land tainted by fraud - Whether chargee was subsequent purchaser - Whether chargee was purchaser for good consideration and without notice - Whether protected by deferred indefeasibility under s. 340 of National Land Code
Heveaplast Marketing Sdn Bhd v. See Leong Chye & Ors And Other Appeals
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA) [2017] 2 CLJ 43 [CA]

Customary land - Right to - Whether Penans of Long Jaik used area claimed for livelihood and sustenance before 1 January 1958 - Whether Penans of Long Jaik the only foragers of area - Whether longhouse belonging to Penans of Long Jaik mentioned in schedule of Belaga Protected Forest notification - Whether inequitable and unjust to grant declaration of native customary rights - Whether rights of inhabitants of other longhouses would be obliterated - Whether usufructuary rights of named beneficiaries violated - Failure to prove exclusive possession of area claimed - Whether Penans of Long Jaik discharged burden of proof
Matu Tugang (Suing For And On Behalf Of Himself & 42 Ors) v. Shin Yang Forestry Sdn Bhd & Ors
(Rhodzariah Bujang J) [2017] 2 CLJ 82 [HC]

Indefeasibility of title and interest - Fraud - Sale and purchase of land - Denial by original owners of sale of land - Whether title obtained by fraud - Whether immediate purchaser protected against claim by original owner - Whether purchaser's title to land defeasible - National Land Code, s. 340
Heveaplast Marketing Sdn Bhd v. See Leong Chye & Ors And Other Appeals
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA) [2017] 2 CLJ 43 [CA]

Indefeasibility of title and interest - Transfer - Title to land obtained by fraud - Land sold to subsequent purchaser - Undertaking by vendor to refund in event of failure to effect transfer - Whether complete lack of consideration - Whether refund ought to be ordered
Heveaplast Marketing Sdn Bhd v. See Leong Chye & Ors And Other Appeals
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA) [2017] 2 CLJ 43 [CA]

NATIVE LAW AND CUSTOM

Land dispute - Customary rights over land - Claim for - Whether Penans of Long Jaik used area claimed for livelihood and sustenance before 1 January 1958 - Whether Penans of Long Jaik the only foragers of area - Whether longhouse belonging to Penans of Long Jaik mentioned in schedule of Belaga Protected Forest notification - Whether inequitable and unjust to grant declaration of native customary rights - Whether rights of inhabitants of other longhouses would be obliterated - Whether usufructuary rights of named beneficiaries violated - Failure to prove exclusive possession of area claimed - Whether Penans of Long Jaik discharged burden of proof
Matu Tugang (Suing For And On Behalf Of Himself & 42 Ors) v. Shin Yang Forestry Sdn Bhd & Ors
(Rhodzariah Bujang J) [2017] 2 CLJ 82 [HC]

REVENUE LAW

Income tax - Withholding tax - Assessment of - Assessment based on both ss. 109 and 109B of Income Tax Act 1967 - Whether assessment void for want of form - Whether income derived from royalty payments - Whether Director General of Income Tax (`DGIR') acted in excess of powers conferred by ITA - Whether decision-making process by DGIR flawed - Whether there was withholding of tax
Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali FCJJ, Balia Yusof Wahi JCA) [2017] 2 CLJ 1 [FC]

Income tax - Withholding tax - Notice of assessment by Director General of Income Tax (`DGIR') - Whether subject to appeal to Special Commissioners of Income Tax - Failure to appeal despite being aggrieved by decision of DGIR - Whether amounted to failure to rebut deeming provisions - Whether DGIR statutorily bound to withhold payment as tax - Income Tax Act 1967, ss. 4(d), 4A, 109 & 109B
Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali FCJJ, Balia Yusof Wahi JCA) [2017] 2 CLJ 1 [FC]

ROAD TRAFFIC

Negligence - Road accident - Liability - Ascertainment of - Motorcyclist hitting pedestrian crossing street - Witness' police report lodged one hour after accident a contemporaneous document compared to motorcyclist's police report lodged eight days after accident - Evidence showed motorcyclist running away after hitting pedestrian - Whether motorcyclist more blameworthy than pedestrian - Liability of 20% to pedestrian and 80% to motorcyclist - Whether affirmed
Teoh Ching Hwa v. Mohd Nor Arif Ahmad & Anor And Another Case
(Yeoh Wee Siam J) [2017] 2 CLJ 107 [HC]

LNS Article(s)

1. IS COMMERCIAL ARBITRATION THE FUTURE OF COMMERCIAL JUSTICE?* ^{[Read excerpt]}
   THE RT HON LADY JUSTICE ARDEN DBE [2017] 1 LNS(A) x

[2017] 1 LNS(A) x



UNITED KINGDOM

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IS COMMERCIAL ARBITRATION THE FUTURE OF COMMERCIAL JUSTICE?*

THE RT HON LADY JUSTICE ARDEN DBE

The arbitration world is, I understand, flourishing in Australia. There has been an increase in the use of commercial arbitration and Australia is becoming an ever more popular location for cross-border dispute resolution by arbitration. The pro-arbitration approach of Australian law, and the very high standards of its judiciary and observance of the rule of law, have assisted in this development.

Some states have a panel of specialist judges and also a dedicated arbitration list which enables them to offer a quick turn around and a consistent and high quality service to litigants.

In addition, Australian courts have adopted a restrictive interpretation of the public policy ground for refusal of enforcement of a foreign award. The High Court of Australia has held that enforcement of an award is not to be refused by the courts simply because the court has not satisfied itself as to the correctness of the award (TCL Air Conditioner (Zhongshan) Co Ltd v. Castel Electronics Pty Ltd).^[1] The conceptual basis for this conclusion is significant. Crucially the High Court concluded that enforcement of an award does not mean enforcement of rights and obligations imposed by the general law but of rights and obligations created by the parties' agreement, which have merged into an award. In a liberal democracy, the courts allow parties to set up their own regime of rights and obligations.

. . .

* ©THE RT HON LADY JUSTICE ARDEN DBE, The London 2016 International And Commercial Law Conference (London, June 2016). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary.gov.uk/wp-content/uploads/2016/07/lj-arden-speech-arbitration.pdf).

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2. BACKDATED COVERNOTES AND THE INSURERS' LIABILITY
   UNDER SECTION 96 OF THE ROAD TRANSPORT ACT 1987 ^{[Read excerpt]}
   S. SANTHANA DASS* [2017] 1 LNS(A) xi

[2017] 1 LNS(A) xi



MALAYSIA

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BACKDATED COVERNOTES AND THE INSURERS' LIABILITY
UNDER SECTION 96 OF THE ROAD TRANSPORT ACT 1987

S. SANTHANA DASS*

Motor car No. XXX (the insured vehicle) meets with an accident with motorcycle No. YYY at 9.00am on 30/9/2015. As a result of the accident, the motorcyclist suffers serious injuries. The insured vehicle did not have insurance cover or road tax at the time of the accident. The insured subsequent to the accident, sees an insurance agent of insurer A who issues a cover note wherein it is stated that the period of insurance is 30/9/2015 to midnight of 29/9/2016. The time of issue of the cover note and/or payment of the premiums for the cover is after the time of the accident.

Is insurer A liable to meet the judgment sum awarded in favour of the motorcyclist under Section 96(1) of the Road Traffic Act 1987 (RTA)?

The issue for consideration is whether a policy that was not in existence at the time of accident and issued by the insurer only after the accident, but by its terms covers the date of accident, is unenforceable or void under Section 96(3)? Where only the date of the commencement of cover is mentioned in the cover note, is cover retrospective to cover the time of the time of the accident?

. . .

* Advocate & Solicitor

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