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Issue #20/2019
16 May 2019

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New This Week

  1. Case(s) of the Week

    1. PUBLIC BANK v. NEW ACE DIGITAL PRINT SDN BHD & ANOR [2019] 5 CLJ 1

  2. Appeal Updates

    1. Appeal Updates

  3. Latest Cases

    1. Legal Network Series

    2. CLJ 2019 Volume 5 (Part 1)

  4. Articles

    1. LNS Article(s)

    2. CLJ Article(s)

  5. Legislation Highlights

    1. Principal Acts

    2. Amending Acts

    3. PU(A)

    4. PU(B)

    5. Legislation Alert
CASE(S) OF THE WEEK

PUBLIC BANK v. NEW ACE DIGITAL PRINT SDN BHD & ANOR [2019] 5 CLJ 1
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP CJ (MALAYA), ZAHARAH IBRAHIM FCJ, BALIA YUSOF WAHI FCJ,
ALIZATUL KHAIR OSMAN FCJ, ROHANA YUSUF FCJ
[APPEAL NO: 02(f)-133-11-2017(W)]
14 MARCH 2019

BANKING: Banker and customer – Joint account – Joint account opened between deceased as controlling shareholder of company and managing director – Deceased passed away leaving managing director as surviving joint account holder – RM500,000 drawn out by surviving account holder via forged cheque and honoured by bank – Company and deceased’s administrator filed claim against bank for wrongful payment from joint account through forged cheque – Whether joint account for benefit of company – Whether shareholders of company had legal or equitable right to assets of company – Whether administrator as shareholder of company could inherit assets and had right to claim – Whether company and administrator had contractual relationship with bank over joint account – Whether company and administrator had good cause of action against bank

BANKING: Banker and customer – Joint account – Survivorship clause – Discharge of – Joint account opened between deceased as controlling shareholder of company and managing director – Deceased passed away leaving managing director as surviving joint account holder – RM500,000 drawn out by surviving account holder via forged cheque and honoured by bank – Company and deceased’s administrator filed claim against bank for wrongful payment from joint account through forged cheque – Whether payment in breach of statute and ought to be held unlawful – Whether survivorship clause could discharge bank despite unlawful payment – Whether any allegation of failure to discharge obligation ought to be brought by account holders and not parties who are not privy to joint account – Whether surviving account holder who committed forgery in a position to sue bank – Whether cause of action available to surviving account holder or administrator of deceased against bank – Bills of Exchange Act 1949, s. 73A

BANKING: Cheques – Forgery – Whether bank wrongfully paid out sum from joint account through forged cheque – Joint account opened between deceased as controlling shareholder of company and managing director – Deceased passed away leaving managing director as surviving joint account holder – RM500,000 drawn out by surviving account holder via forged cheque and honoured by bank – Company and deceased’s administrator filed claim against bank for wrongful payment from joint account through forged cheque – Whether payment in breach of statute and ought to be held unlawful – Whether survivorship clause could discharge bank despite unlawful payment – Whether any allegation of failure to discharge obligation ought to be brought by account holders and not parties who are not privy to joint account – Whether surviving account holder who committed forgery in a position to sue bank – Whether cause of action available to surviving account holder or administrator of deceased against bank – Bills of Exchange Act 1949, s. 73A

APPEAL UPDATES  

  1. Rose Achieng Ojala v. PP [2019] 1 LNS 72 (CA) affirming the High Court case of PP v. Rose Achieng Ojala [Perbicaraan Jenayah No: 45A-123-11/2014]

  2. Krishnan Murthy Paidyya v. PP & Another Appeal [2018] 1 LNS 1808 (CA) affirming the High Court case of PP v. Krishnan Murthy Paidyya & Anor [Criminal Trial No: 45A-31-11/2014]

LATEST CASES

Legal Network Series

[2018] 1 LNS 557

CHUA TIAN CHANG v. ANWAR MOHD ZAIN & ANOR

CIVIL PROCEDURE: Jurisdiction - Election Judge - Special powers - Election dispute - Originating summons filed seeking declaration to challenge decision of Returning Officer in rejecting applicant's nomination papers - Preliminary objection on jurisdiction of court to hear application - Whether application ought to be by way of election petition before Election Judge - Federal Constitution, Art. 118

  • For the applicant - Gurdial Singh Nijar, Ambiga Sreenevasan, John Das & Ngeow Chow Ying; M/s Ngeow & Tan
  • For the respondents - Alice Loke, Suzana Atan, Shamsul Bolhassan, Azizah Arshad & Nik Azrin, Deputy Public Prosecutor; Jabatan Peguam Negara

[2018] 1 LNS 533

JANE DRIPIN (P) v. CHARAN JIT SINGH SANTOKH SINGH (L)

FAMILY LAW: Decree nisi - Variation - Amendment - Application seeking ancillary relief by proposing amendments and variation to entitlement and terms in decree nisi - Variation in custody order - Whether decree nisi could be varied - Whether there was a material change in circumstances regarding custody - Whether there was any plausible proof of material change of circumstances

  • For the applicant/respondent husband - Charan Jit Singh Santokh Singh
  • For the respondent/petitioner wife - Jane Anak Dripin

[2018] 1 LNS 523

CHU KHIUK FA & ANOR v. JOHN BUNYAN JANGON BAYANG & ORS

LAND LAW: Ownership - Claim for - Share in estate - Absence of proof of sale of land - Land being used without interference by beneficiaries of administrator - Administrator of estate passed away - Whether land sold to administrator of estate of original owner - Whether beneficiaries of administrator were entitled to claim a share in estate of original owner

  • For the plaintiffs - Peter Hii; M/s Loke, King, Goh & Partners
  • For the defendants - Bart Lopez; M/s Gala & Tomik

[2018] 1 LNS 366

GOOD FOLIO SDN BHD lwn. TENAGA NASIONAL BERHAD; SRI INDAR HOLDINGS SDN BHD & SATU LAGI (PIHAK KETIGA)

TORT: Pencerobohan - Pencerobohan tanah - Kewujudan pencawang elektrik atas tanah - Pencawang elektrik wujud atas tanah sebelum tanah dibeli oleh plaintif - Plaintif mendakwa pencawang elektrik dibina tanpa kebenarannya - Sama ada dakwaan izin dan kebenaran plaintif adalah remeh, menyusahkan dan mengaibkan - Sama ada plaintif telah membeli tanah dengan pengetahuan pencawang elektrik atas tanah - Sama ada dakwaan pencerobohan adalah munasabah

KETERANGAN: Keterangan saksi pakar - Kebolehterimaan - Laporan saksi pakar - Laporan yang disediakan oleh penilai kuantiti - Laporan berbentuk spekulatif - Sama ada laporan telah mematuhi kehendak-kehendak A. 40A Kaedah-Kaedah Mahkamah 2012 - Sama ada laporan boleh diterima masuk sebagai keterangan - Sama ada adalah sangat merbahaya untuk mahkamah bergantung kepada laporan yang berbentuk spekulatif

  • Bagi pihak plaintif - N Subramaniyan; T/n Subramaniyan
  • Bagi pihak defendan - David Mathew & David Ng Yew Kiat; T/n Shook Lin & Bok
  • Bagi pihak ketiga - Kanesh Sundrum; T/n Kanesh Sundrum & Co

[2018] 1 LNS 142

PP lwn. MOHAMMAD YUSYAIRI SAIDIN

UNDANG-UNDANG JENAYAH: Bunuh - Seksyen 302 Kanun Keseksaan - Keterangan ikut keadaan - Kesan darah si mati diperolehi dalam kereta tertuduh - Si mati telah dilihat menaiki kereta tertuduh pada hari kejadian - Barang kes milik si mati dijumpai di rumah dan perkarangan rumah tertuduh - Kewujudan tikaman pada bahagian penting tubuh si mati - Sama ada keterangan ikut keadaan boleh diterima masuk dan dipertimbangkan untuk menyabitkan tertuduh - Sama ada keterangan ikut keadaan menjurus kepada penglibatan tertuduh dalam mendatangkan kecederaan dan menyebabkan kematian si mati - Sama ada kecederaan bersifat maut

PROSEDUR JENAYAH: Pembelaan - Pertahanan diri - Tertuduh mendakwa telah bertengkar dan bergelut dengan si mati - Si mati telah mencekik tertuduh dan menyebabkan tertuduh bertindak mengambil pisau dan mengacukan ke arah simati - Kewujudan 17 tikaman ke atas bahagian penting tubuh - Sama ada perbuatan tertuduh telah melangkaui hak mempertahankan diri - Kanun Keseksaan, s. 96

  • Bagi pihak tertuduh - Rahamathullah Baharudeen; T/n Rahamat & Mashuri
  • Bagi pihak pendakwaan - Norshuhada Mohd Yatim, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang

CLJ 2019 Volume 5 (Part 1)

FEDERAL COURT

Public Bank v. New Ace Digital Print Sdn Bhd & Anor
Ahmad Maarop CJ (Malaya), Zaharah Ibrahim, Balia Yusof Wahi, Alizatul Khair Osman, Rohana Yusuf FCJJ
(Banking - Banker and customer - Joint account - Wrongful payment from joint account through forged cheque - Whether payment in breach of statute) [2019] 5 CLJ 1 [FC]

COURT OF APPEAL

Dato' Sri Mohd Najib Hj Abdul Razak v. PP
Zabariah Mohd Yusof, Rhodzariah Bujang, Lau Bee Lan JJCA
(Criminal Law; Criminal Procedure - Appeal against dismissal of application for pre-trial production of statements and documents given by potential witnesses to officers of Malaysian Anti-Corruption Commission - Whether copies of documents and statements must be supplied by prosecution to applicant before commencement of trial - Whether request directed at specific document) [2019] 5 CLJ 23 [CA]

Sivananthan Krishnan v. Jade Homes Sdn Bhd
Tengku Maimun Tuan Mat, Mary Lim, Hasnah Mohammed Hashim JJCA
(Land Law - Housing developers - Whether developer ought to deliver property according to approved plan) [2019] 5 CLJ 49 [CA]

HIGH COURT

Badrul Hisham Hashim v. PP
Ahmad Shahrir Mohd Salleh JC
(Criminal Procedure; Legal Profession - Counsel represented accused person without valid practising certificate - Whether accused denied right to qualified advocate - Whether conviction and sentence bad in law) [2019] 5 CLJ 68 [HC]

Boulevard Plaza Sdn Bhd v. Gas District Cooling (Putrajaya) Sdn Bhd
Mohamed Zaini Mazlan J
(Company Law; Utilities - Whether supply of chilled water for air conditioning system fell under category of 'supplies' under s. 392(6) and (7) of Companies Act 2016) [2019] 5 CLJ 81 [HC]

Dato' Sri Mohd Najib Hj Abdul Razak v. PP
Mohd Nazlan Ghazali J
(Criminal Law; Criminal Procedure - Disclosure of information - Application for pre-trial production of statements and documents given by potential witnesses to officers of Malaysian Anti-Corruption Commission - Whether request directed at specific document) [2019] 5 CLJ 93 [HC]

Perbadanan Usahawan Nasional Bhd lwn. Scopelink (M) Sdn Bhd & Yang Lain
Khadijah Idris PK
(Prosedur Sivil - Penghakiman ingkar - Penguatkuasaan - Permohonan bawah A. 46 k. 3 Kaedah-Kaedah Mahkamah 2012) [2019] 5 CLJ 124 [HC]

SUBJECT INDEX

BANKING

Banker and customer - Joint account - Joint account opened between deceased as controlling shareholder of company and managing director - Deceased passed away leaving managing director as surviving joint account holder - RM500,000 drawn out by surviving account holder via forged cheque and honoured by bank - Company and deceased's administrator filed claim against bank for wrongful payment from joint account through forged cheque - Whether joint account for benefit of company - Whether shareholders of company had legal or equitable right to assets of company - Whether administrator as shareholder of company could inherit assets and had right to claim - Whether company and administrator had contractual relationship with bank over joint account - Whether company and administrator had good cause of action against bank
Public Bank v. New Ace Digital Print Sdn Bhd & Anor
(Ahmad Maarop CJ (Malaya), Zaharah Ibrahim, Balia Yusof Wahi, Alizatul Khair Osman, Rohana Yusuf FCJJ) [2019] 5 CLJ 1 [FC]

Banker and customer - Joint account - Survivorship clause - Discharge of - Joint account opened between deceased as controlling shareholder of company and managing director - Deceased passed away leaving managing director as surviving joint account holder - RM500,000 drawn out by surviving account holder via forged cheque and honoured by bank - Company and deceased's administrator filed claim against bank for wrongful payment from joint account through forged cheque - Whether payment in breach of statute and ought to be held unlawful - Whether survivorship clause could discharge bank despite unlawful payment - Whether any allegation of failure to discharge obligation ought to be brought by account holders and not parties who are not privy to joint account - Whether surviving account holder who committed forgery in a position to sue bank - Whether cause of action available to surviving account holder or administrator of deceased against bank - Bills of Exchange Act 1949, s. 73A
Public Bank v. New Ace Digital Print Sdn Bhd & Anor
(Ahmad Maarop CJ (Malaya), Zaharah Ibrahim, Balia Yusof Wahi, Alizatul Khair Osman, Rohana Yusuf FCJJ) [2019] 5 CLJ 1 [FC]

Cheques - Forgery - Whether bank wrongfully paid out sum from joint account through forged cheque - Joint account opened between deceased as controlling shareholder of company and managing director - Deceased passed away leaving managing director as surviving joint account holder - RM500,000 drawn out by surviving account holder via forged cheque and honoured by bank - Company and deceased's administrator filed claim against bank for wrongful payment from joint account through forged cheque - Whether payment in breach of statute and ought to be held unlawful - Whether survivorship clause could discharge bank despite unlawful payment - Whether any allegation of failure to discharge obligation ought to be brought by account holders and not parties who are not privy to joint account - Whether surviving account holder who committed forgery in a position to sue bank - Whether cause of action available to surviving account holder or administrator of deceased against bank - Bills of Exchange Act 1949, s. 73A
Public Bank v. New Ace Digital Print Sdn Bhd & Anor
(Ahmad Maarop CJ (Malaya), Zaharah Ibrahim, Balia Yusof Wahi, Alizatul Khair Osman, Rohana Yusuf FCJJ) [2019] 5 CLJ 1 [FC]

COMPANY LAW

Receivership - Period - Building owner failed to pay for services provided by supplier of chilled water for air conditioning system - Supplier terminated agreement with building owner - Receiver and manager of building sought declaration to compel supplier to continue supplying chilled water to building during period of receivership - Whether supply of chilled water fell under category of 'supplies' under s. 392(6) and (7) of Companies Act 2016 - Whether chilled water public utilities - Whether statutory requirements overrode supplier's contractual rights - Whether there was breach of agreement for supply of chilled water
Boulevard Plaza Sdn Bhd v. Gas District Cooling (Putrajaya) Sdn Bhd
(Mohamed Zaini Mazlan J) [2019] 5 CLJ 81 [HC]

CRIMINAL LAW

Charges - Criminal charges - Applicant, former Prime Minister of Malaysia, charged with seven criminal charges relating to offences under Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Applicant sought pre-trial production, by prosecution, of statements and documents given by potential witnesses to officers of Malaysian Anti-Corruption Commission - Whether application ought to be allowed
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Mohd Nazlan Ghazali J) [2019] 5 CLJ 93 [HC]

Charges - Criminal charges - Former Prime Minister of Malaysia charged with seven criminal charges relating to offences under Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Appeal against decision of High Court in dismissing pre-trial production, by prosecution, of statements and documents given by potential witnesses to officers of Malaysian Anti-Corruption Commission - Whether appeal ought to be allowed
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Zabariah Mohd Yusof, Rhodzariah Bujang, Lau Bee Lan JJCA) [2019] 5 CLJ 23 [CA]

CRIMINAL PROCEDURE

Accused - Right to counsel - Appeal against conviction and sentence - Accused person defended by 'unauthorised person' - Counsel represented accused person without valid practising certificate - Whether accused denied right to qualified advocate - Whether rendered conviction and sentence bad in law - Criminal Procedure Code, s. 255 - Legal Profession Act 1976, s. 37
Badrul Hisham Hashim v. PP
(Ahmad Shahrir Mohd Salleh JC) [2019] 5 CLJ 68 [HC]

Appeal - Appeal against decision of High Court - High Court dismissed application for pre-trial production of certain documents and statements - Applicant, former Prime Minister of Malaysia, charged with seven criminal charges - Application for pre-trial production, by prosecution, of statements and documents given by potential witnesses to officers of Malaysian Anti-Corruption Commission - Whether court ought to compel prosecution to produce statements or documents sought - Considerations - Whether applicant satisfied requirements of 'necessity' and 'desirability' - Stage when application is made - Whether discovery limited to matters specified in charge - Whether applicant could seek inspection or discovery of documents seized in police investigation - Whether request directed at specific document - Whether applicant entitled to discovery if documents satisfy test of relevancy and essential for adjudication - Criminal Procedure Code, ss. 51 & 51A
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Zabariah Mohd Yusof, Rhodzariah Bujang, Lau Bee Lan JJCA) [2019] 5 CLJ 23 [CA]

Disclosure of information - Statements and documents - Appeal against decision of High Court - High Court dismissed application for pre-trial production of certain documents and statements - Applicant, former Prime Minister of Malaysia, charged with seven criminal charges - Application for pre-trial production, by prosecution, of statements and documents given by potential witnesses to officers of Malaysian Anti-Corruption Commission - Whether non obstante clauses in s. 30(9) of Malaysian Anti-Corruption Commission Act 2009 and s. 40 of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 rendered statements recorded and documents collected during investigations automatically admissible as evidence - Whether arts. 5 and 8 of Federal Constitution demand that copies of documents and statements must be supplied by prosecution to applicant before commencement of trial - Whether applicant established case for delivery of information and documents applied for - Whether appeal ought to be allowed - Criminal Procedure Code, ss. 51 & 51A - Malaysian Anti-Corruption Commission Act 2009, s. 62
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Zabariah Mohd Yusof, Rhodzariah Bujang, Lau Bee Lan JJCA) [2019] 5 CLJ 23 [CA]

Disclosure of information - Statements and documents - Applicant, former Prime Minister of Malaysia, charged with seven criminal charges - Application for pre-trial production, by prosecution, of statements and documents given by potential witnesses to officers of Malaysian Anti-Corruption Commission - Whether non obstante clauses in s. 30(9) of Malaysian Anti-Corruption Commission Act 2009 and s. 40 of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 rendered statements recorded and documents collected during investigations automatically admissible as evidence - Whether arts. 5 and 8 of Federal Constitution demand that copies of documents and statements must be supplied by prosecution to applicant before commencement of trial - Whether applicant established case for delivery of information and documents applied for - Whether application ought to be allowed - Criminal Procedure Code, ss. 51 & 51A - Malaysian Anti-Corruption Commission Act 2009, s. 62
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Mohd Nazlan Ghazali J) [2019] 5 CLJ 93 [HC]

Disclosure of information - Statements and documents - Applicant, former Prime Minister of Malaysia, charged with seven criminal charges - Application for pre-trial production, by prosecution, of statements and documents given by potential witnesses to officers of Malaysian Anti-Corruption Commission - Whether court ought to compel prosecution to produce statements or documents sought - Considerations - Whether applicant satisfied requirements of 'necessity' and 'desirability' - Stage when application is made - Whether discovery limited to matters specified in charge - Whether applicant could seek inspection or discovery of documents seized in police investigation - Whether request directed at specific document - Whether applicant entitled to discovery if documents satisfy test of relevancy and essential for adjudication - Criminal Procedure Code, ss. 51 & 51A
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Mohd Nazlan Ghazali J) [2019] 5 CLJ 93 [HC]

LAND LAW

Housing developers - Building contract - Material defects in construction of property - Non-compliance with condition stipulated in development order - Failure to build reinforced concrete wall - Whether rubble wall sufficient to protect stability of adjoining property - Whether approval of building plan subject to compliance with conditions - Whether conditions must be strictly complied with - Whether developer ought to deliver property according to approved plan
Sivananthan Krishnan v. Jade Homes Sdn Bhd
(Tengku Maimun Tuan Mat, Mary Lim, Hasnah Mohammed Hashim JJCA) [2019] 5 CLJ 49 [CA]

LEGAL PROFESSION

Practice of law - Unauthorised person - Counsel represented accused person without valid practising certificate - Whether counsel entitled to practice - Whether accused denied right to qualified advocate - Whether counsel acted in contravention of s. 37 of Legal Profession Act 1976 - Whether rendered conviction and sentence of accused person bad in law
Badrul Hisham Hashim v. PP
(Ahmad Shahrir Mohd Salleh JC) [2019] 5 CLJ 68 [HC]

UTILITIES

Public consumption - Chilled water for air-conditioners - Whether for public consumption at large - Whether a product public could not live without - Whether supply of chilled water for air conditioning system fell under category of 'supplies' under s. 392(6) and (7) of Companies Act 2016 - Whether supplier within rights to terminate supply of chilled water for non-payment of arrears
Boulevard Plaza Sdn Bhd v. Gas District Cooling (Putrajaya) Sdn Bhd
(Mohamed Zaini Mazlan J) [2019] 5 CLJ 81 [HC]

INDEKS PERKARA

PROSEDUR SIVIL

Penghakiman ingkar - Penguatkuasaan - Permohonan kebenaran bawah A. 46 k. 3 Kaedah-Kaedah Mahkamah 2012 bagi mengeluarkan writ pelaksanaan penghakiman ingkar - Sama ada format permohonan mematuhi A. 46 k. 3(1) - Sama ada ketidakpatuhan satu ketidakteraturan yang memprejudiskan - Sama ada tiada tindakan penguatkuasaan diambil plaintif selepas defendan-defendan memungkiri penyelesaian yang dicapai - Sama ada kelengahan plaintif disengajakan - Sama ada alasan mencukupi untuk menjustifikasikan mahkamah menjalankan kuasa budi bicara memberikan kebenaran permohonan - Sama ada plaintif telah 'slept on its right' selama enam tahun tanpa mengambil tindakan penguatkuasaan penghakiman ingkar
Perbadanan Usahawan Nasional Bhd lwn. Scopelink (M) Sdn Bhd & Yang Lain
(Khadijah Idris PK) [2019] 5 CLJ 124 [HC]

ARTICLES

LNS Article(s)

  1. DISCOURSES SURROUNDING THE IMPLEMENTATION OF MERCY KILLING (EUTHANASIA) IN MALAYSIA [Read excerpt]
    by UMMA DEVI LOGANATHAN* [2019] 1 LNS(A) lxii

    2. [2019] 1 LNS(A) lxii
    logo
    MALAYSIA

    DISCOURSES SURROUNDING THE IMPLEMENTATION OF MERCY KILLING (EUTHANASIA) IN MALAYSIA

    by
    UMMA DEVI LOGANATHAN*

    1.0 Introduction

    "The ultimate value of life depends upon awareness and the power of contemplation rather than upon mere survival" said Aristotle. Right to life represents one of the vital parts in any living species in the world. Life is not dominated by human beings alone. Breathing, mobilizing and basic needs such as food, a place or habitat to live are protections equally provided to all the living creatures in the world. Buddhism, Hinduism, Syariah, Christianity, Sikhism and all the religions in the world provide teachings on equal treatment for human beings and other living aspects. Article 8 of the Malaysian Federal Constitution on "Equality" is the equivalent to this.

    . . .

    * Magistrate, LLB (Hons) Universiti Kebangsaan Malaysia, Masters in Public Administration (MPA) Universiti Sains Malaysia, LLM (Corporate) Universiti Utara Malaysia. Currently, pursuing PhD in criminology at Universiti Sains Malaysia.

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  2. RECOVERABILITY OF LIQUIDATED AND ASCERTAINED DAMAGES IN THE CONSTRUCTION INDUSTRY IN LIGHT OF CUBIC ELECTRONICS SDN BHD v. MARS TELECOMMUNICATIONS SDN BHD (2018)* [Read excerpt]
    by DAVID CHEONG ZHAO YEE [2019] 1 LNS(A) lxiii

    3. [2019] 1 LNS(A) lxiii
    logo
    MALAYSIA

    RECOVERABILITY OF LIQUIDATED AND ASCERTAINED DAMAGES IN THE CONSTRUCTION INDUSTRY IN LIGHT OF CUBIC ELECTRONICS SDN BHD v. MARS TELECOMMUNICATIONS SDN BHD (2018)*

    by
    DAVID CHEONG ZHAO YEE

    Introduction

    The Federal Court's recent decision in Cubic Electronics Sdn Bhd v. Mars Telecommunications Sdn Bhd [2019] 2 CLJ 723[1] pertaining to the interpretation of section 75 of the Contracts Act 1950 ("Section 75") appears to have effectively changed the law on the recoverability of liquidated and ascertained damages ("LAD") which is a subject matter of critical importance and of much dispute in the construction industry.

    Definition and nature of LAD

    In the construction setting, LAD is a sum of money pre-determined and agreed between an employer and a contractor in a construction contract, usually calculated by way of a stipulated sum per day of the contractor's delay from the completion date specified in the contract until the works are completed.

    . . .

    * Published with kind permission of M/s Shearn Delamore & Co.

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  3. AN EVALUATION OF THE IMPACT OF COMPETITION IN THE NIGERIAN TELECOMMUNICATIONS INDUSTRY [Read excerpt]
    by Ibrahim Muhammed* Kazeem Azeez Oyinwola** [2019] 1 LNS(A) lxi

    4. [2019] 1 LNS(A) lxi
    logo
    NIGERIA

    AN EVALUATION OF THE IMPACT OF COMPETITION IN THE NIGERIAN TELECOMMUNICATIONS INDUSTRY

    by
    Ibrahim Muhammed*
    Kazeem Azeez Oyinwola**

    Abstract

    As an essential factor in the efficient working of markets, competition in an emerging economy such as Nigeria is central not only to the operation of the markets but also the efficient expansion of the market. Before now, government regarded the telecommunications market as a monopoly and perhaps, for this reason it was operated as such with NITEL having the monopoly of the industry. The industry was later liberalized and opened to competition. The impact of the competition policy in the industry is therefore too visible to be discounted. Competition undoubtedly played key roles in transforming the Nigerian telecommunications industry into an efficient and effective one it is today. Divided into seven parts, this paper evaluates the impact of competition in the Telecommunications Industry in Nigeria.

    . . .

    * LL.B (BUK), LL.M (UniJos) Ph.D (in view) Senior Lecturer, Nigerian Law School, Yola Campus. Barrister and Solicitors of the Supreme Court of Nigeria. Ibraheemmad@yahoo.com.

    ** LL.B (Unilorin) LL.M (NSUK) Barrister and Solicitor of the Supreme Court of Nigeria. kazeemoyinwola@gmail.com.

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CLJ Article(s)

  1. TERMINATION OF PROBATIONARY EMPLOYMENT AND DUE PROCESS: A REVIEW OF BENNETT SUBASH PETER v. BON TON SDN BHD (BON TON RESORT LANGKAWI)[1] [Read excerpt]
    by Prof Dato' Sri Dr Ashgar Ali Ali Mohamed* [2019] 5 CLJ(A) i

    2. [2019] 5 CLJ(A) i
    logo
    MALAYSIA

    TERMINATION OF PROBATIONARY EMPLOYMENT AND DUE PROCESS:
    A REVIEW OF BENNETT SUBASH PETER v. BON TON SDN BHD (BON TON RESORT LANGKAWI)[1]

    by
    Prof Dato' Sri Dr Ashgar Ali Ali Mohamed*

    Introduction

    Before an employee is absorbed on a permanent employment, he is commonly placed on a probationary period which usually ranges between three to 12 months. The probationary period may be taken as a communication by the employer that if the probationer proves himself within the specified period as a fit and proper person to perform the job, he would be entitled to be confirmed in the employment. Suitability of the probationer for confirmation is not just based on his performance alone but may include his conduct, behaviour and attitude towards the job in terms of his diligence, competence and personality. The essence of engaging a worker on probationary status essentially is to identify his skill, diligence, competence, sincerity in the task designated, the ability to work as a team and to interact with other workers in the company.[2]

    . . .

    * Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia

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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 812 Finance Act 2018 The Income Tax Act 1967 [Act 53] see s 3; The Promotion of Investments Act 1986 [Act 327] see s 31; The Stamp Act 1949 [Act 378] see s 63; The Real Property Gains Tax Act 1976 [Act 169] see s 69; The Labuan Business Activity Tax Act 1990 [Act 445] see s 71; The Service Tax Act 2018 [Act 807] see s 83; The Sales Tax Act 2018 [Act 806] see s 91 -
ACT 811 Suruhanjaya Pengangkutan Awam Darat (Dissolution) Act 2018 1 January 2019 [PU(B) 732/2018] -
ACT 810 Subang Golf Course Corporation Act 1968 (Revised 2018) 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1968 as Act of Parliament No 26 of 1968; First Revision - 1993 (Act 509 wef 8 October 1993) -
ACT 809 Pool Betting Act 1967 (Revised 2018) 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1967 as Act of Parliament No 72 of 1967; First Revision - 1989 (Act 384 wef 21 September 1989) -
ACT 808 National Anthem Act 1968 (Revised 2018) 1 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 15 October 2018; First enacted in 1968 as Act of Parliament No 20 of 1968; First Revision - 1989 (Act 390 wef 19 October 1989) -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1589 Co-Operative College (Incorporation) (Amendment) Act 2019 1 September 2011 - only Part II of this Act ACT A1398; ACT NO. 35 TAHUN 1968; ACT 437
ACT A1588 Street, Drainage And Building (Amendment) Act 2019 Not Yet In Force ACT 133
ACT A1587 Hire-Purchase (Amendment) Act 2019 1 March 2019 [PU(B) 117/2019] ACT 212
ACT A1586 Children And Young Persons (Employment) (Amendment) Act 2019 1 February 2019 [PU(B) 62/2019] ACT 350
ACT A1585 Road Transport (Amendment) Act 2019 1 March 2019 [PU(B) 113/2019] ACT 333

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 115/2019 Farmers' Organization (Amendment) Regulations 2019 22 April 2019 1 May 2019 PU(A) 303/1983
PU(A) 114/2019 Price Control And Anti-Profiteering (Determination Of Maximum Retail Price For Petrol And Diesel) (No. 12) Order 2019 19 April 2019 20 April 2019 ACT 723
PU(A) 113/2019 Minimum Retirement Age (Exemption) Order 2019 19 April 2019 20 April 2019 ACT 753
PU(A) 112/2019 Poisons (Amendment Of Third Schedule) Order 2019 18 April 2019 19 April 2019 ACT 366
PU(A) 111/2019 Armed Forces (Regular Forces) (Deserters And Absentees Without Leave) (Prescribed Form) Regulations 2019 16 April 2019 15 April 2019 ACT 77

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 198/2019 List Of Registered Counsellors 19 April 2019 20 April 2019 ACT 580
PU(B) 197/2019 List Of Registered Counsellors 19 April 2019 20 April 2019 ACT 580
PU(B) 196/2019 List Of Registered Counsellors 19 April 2019 20 April 2019 ACT 580
PU(B) 195/2019 Reservation Of Land For Public Purpose For Lot 81241 Mukim Batu 18 April 2019 19 April 2019 ACT 56/1965
PU(B) 194/2019 Reservation Of Land For Public Purpose For Lot 51391 Mukim Kuala Lumpur 18 April 2019 19 April 2019 ACT 56/1965

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 225 Malaysian Examinations Council Act 1980 PU(A) 110/2019 16 April 2019 First Schedule
ACT 51 Dental Act 1971 PU(A) 108/2019 13 April 2019 Second Schedule
PU(A) 437/1985 Food Regulations 1985 PU(A) 104/2019 30 January 2021 Regulations 18B, 360D and 360E
PU(A) 99/2016 Civil Aviation (Fees and Charges) Regulations 2016 PU(A) 101/2019 30 March 2019 Schedule
PU(A) 97/2016 Civil Aviation Regulations 2016 PU(A) 100/2019 30 March 2019 Part XXIV

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 1/1989 Factories and Machinery (Noise Exposure) Regulation 1989 PU(A) 59/2019 1 June 2019
PU(A) 284/2016 Excise Duties (Labuan) Order 2016 PU(A) 89/2019 27 March 2019
PU(A) 283/2016 Excise Duties (Langkawi) Order 2016 PU(A) 88/2019 27 March 2019
PU(A) 286/2016 Customs Duties (Labuan) Order 2016 PU(A) 87/2019 27 March 2019
LN 225/1958 Births and Deaths Registration Rules 1958 PU(A) 54/2019 1 March 2019

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