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Issue #48/2019 28 November 2019

New This Week Case(s) of the Week JACOB AND TORALF CONSULTING SDN BHD & ORS v. SIEMENS INDUSTRY SOFTWARE GMBH & CO KG (GERMANY); TORALF MUELLER (INTERVENER) [2019] 10 CLJ 281 Latest Cases Legal Network Series CLJ 2019 Volume 10 (Part 3) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

JACOB AND TORALF CONSULTING SDN BHD & ORS v.
SIEMENS INDUSTRY SOFTWARE GMBH & CO KG (GERMANY);
TORALF MUELLER (INTERVENER) [2019] 10 CLJ 281
COURT OF APPEAL, PUTRAJAYA
VERNON ONG LAM KIAT JCA; HASNAH MOHAMMED HASHIM JCA; HARMINDAR SINGH DHALIWAL JCA
[CIVIL APPEAL NO: W-02(NCC)(A)-1219-07-2017]
07 JUNE 2018

There is no provision in the Arbitration Act 2005 providing for registration of only part of an award as a judgment of the High Court of Malaya save for s. 39(3) which allows for a part of the award based on matters submitted to arbitration to be recognised and enforced.

ARBITRATION: Award - Foreign award - Final award by Singapore High Court - Application to register final award - Whether only dispositive portion of award could be registered as judgment of High Court of Malaya - Whether only dispositive portion recognised as binding and enforceable - Term of 'award' in s. 2 of Arbitration Act 2005 ('AA') - Requirements under s. 38 of AA - Whether list of grounds in s. 39 of AA for refusal of registration meant to be exhaustive - Whether referred to only 'dispositive part' and not whole award - Whether parties contemplated that findings of arbitration would be disclosed for use at trial of civil suit - Whether confidentiality could be a ground to oppose registration of award - Whether analogy with procedures applicable with Reciprocal Enforcement of Judgments Act 1958 flawed

WORDS & PHRASES: 'award' - Arbitration Act 2005, s. 2 - Application to register final award by Singapore High Court - Whether only dispositive portion of award could be registered as judgment of High Court of Malaya - Whether only dispositive portion recognised as binding and enforceable - Whether 'award' in s. 2 referred to only 'dispositive part' and not whole award

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Legal Network Series

[2018] 1 LNS 290	HLSL MANAGEMENT HOLDING SDN BHD v. SUJINI SDN BHD CIVIL PROCEDURE: Setting aside - Default judgment - Judgment in default of appearance - Irregular service of process - Service on company - Affidavit of service failed to allude to details of service - Whether defendant had notice of action - Whether proper service had been made out - Whether judgment in default entered was regular For the appellant - M/s Tea, Kelvin Kang & Co For the respondent - M/s GK Sritharan & Co
[2018] 1 LNS 291	DHARSHAN SINGH ATMA SINGH v. MAJLIS PEGUAM MALAYSIA LEGAL PROFESSION: Advocates and solicitors - Reinstatement of roll - Applicant prayed for second chance - Bar Council had objected to applicant being reinstated to rolls - Whether application for reinstatement should offer more compelling reasons - Whether there was demand for applicant's experience or services For the appellant - M/s Kamal Hisham & Associates For the respondent - M/s Baharudin, Wan & Kuna
[2018] 1 LNS 838	MD HAIRUL ITHNIN lwn. PENGERUSI LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO.1) JABATAN KASTAM DIRAJA MALAYSIA & YANG LAIN UNDANG-UNDANG PENTADBIRAN: Semakan kehakiman - Perlanjutan masa - Pemfailan permohonan semakan kehakiman di luar tempoh masa - Kelewatan selama 10 bulan - Sama ada masa yang ditetapkan dibawah A. 53 k. 3(6) Kaedah-Kaedah Mahkamah 2012 hendaklah dipatuhi dengan ketat - Sama ada alasan untuk kelewatan adalah remeh - Sama ada merit kes merupakan satu faktor yang perlu dipertimbangkan dalam permohonan perlanjutan masa Bagi pihak pemohon - Rosli Kamaruddin & Mohd Fahmi; T/n Rosli Kamarudin & Co Bagi pihak responden - Nik Mohd Noor Nik Kar; Peguam Kanan Persekutuan; Pejabat Penasihat Undang-Undang Negeri
[2019] 1 LNS 2	LIM TECK LEE [M] SDN BHD lwn. WATER DRAGON FISHING NET INDUSTRY SDN BHD Abstrak: Anggapan bahawa syarikat tidak mampu membayar hutang terpakai sebaik sahaja notis berkanun diserahkan kepada responden. UNDANG-UNDANG SYARIKAT: Penggulungan - Notis berkanun - Pertikaian - Sama ada notis berkanun perlu secara tepat menuntut jumlah yang tertunggak UNDANG-UNDANG SYARIKAT: Penggulungan - Kesolvenan - Carian SSM menunjukkan responden mempunyai banyak tanggungan berbanding dengan keuntungan - Sama ada responden berada dalam keadaan solven dan mampu membayar jumlah yang dituntut oleh pempetisyen - Sama ada anggapan di bawah undang-undang terpakai sebaik notis berkanun diserahkan kepada responden Bagi pihak pempetisyen - Sharifah Zuraida Syed Kamarullbahrim; T/n Lim Seang Lee & Associates Bagi pihak responden - Marina Nasution; T/n Shearn Delamore & Co
[2019] 1 LNS 266	TEAH CHIAP KUAT @ THE CHIAP KUAT & ANOR v. MENTERI KESEJAHTERAAN BANDAR, PERUMAHAN DAN KERAJAAN TEMPATAN & ORS Abstract: As the Applicants were not owners of the Property in 2010 i.e. when the decision subject to judicial review was made, the Applicants cannot be said to be adversely affected by the said decision and therefore have no locus despite the Applicants subsequently becoming owners of the Property in 2012. ADMINISTRATIVE LAW: Judicial review - Certiorari - Application to quash the decision made by the Ministry of Housing and Local Government which amended the period for delivery of vacant possession from 36 months to 54 months - O. 53 r. 3(6) Rules of Court 2012 - Housing Development (Control and Licensing) Act 1966 - Whether the Applicants' judicial review application was made out of time - Whether the Applicants have locus - Whether the Applicants' claim for damages for late delivery of the Property should have been filed with the Housing Tribunal For the applicant - Jeremy Tan; M/s Tan Ah Lak & Co For the AGC - Kogilambigai Muthusamy (FC); Jabatan Peguam Negara

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CLJ 2019 Volume 10 (Part 3)

There is no provision in the Arbitration Act 2005 providing for registration of only part of an award as a judgment of the High Court of Malaya save for s. 39(3) which allows for a part of the award based on matters submitted to arbitration to be recognised and enforced.  
Jacob And Toralf Consulting Sdn Bhd & Ors v. Siemens Industry Software Gmbh & Co Kg (Germany); Toralf Mueller (Intervener) [2019] 10 CLJ 281 [CA]

• SUBJECT
• CORAM
• COUNSEL

Where in a drug trafficking case a defence supported by credible evidence was presented to the court to the effect that knowledge of the offensive drugs could probably be attributed to a named third party who could be the real trafficker, but yet the trial judge had not evaluated such defence or had erringly dismissed it as an afterthought, then such failure or mistake must amount to a serious misdirection in law and must render a conviction unsafe.  
Lim Kim Wei v. PP [2019] 10 CLJ 297 [CA]

• SUBJECT
• CORAM
• COUNSEL

An easement registered under s. 10 of the Sarawak Land (Control of Subdivision) Ordinance (Chapter 82) which does not provide a time limit for its existence cannot be determined or extinguished by effluxion of time. The concept of effluxion of time does not apply to such easement, notwithstanding the delay or inaction to enforce the rights thereto.  
Teo Sui Chin & Ors v. Lim Siok Luan [2019] 10 CLJ 313 [CA]

• SUBJECT
• CORAM
• COUNSEL

In a chain of construction contracts, if the Principal Contract involves the Government as a party, then all the sub-contracts down the chain may be treated as “government construction contracts” as to enjoy the exemptions granted under the Construction Industry Payment and Adjudication (Exemption Order) 2014; such contracts fall outside the scope of CIPAA 2012 provided the nature of the works are of the categories stipulated under the First Schedule to the Exemption Order.  
Enra Engineering And Fabrication Sdn Bhd v. Gemula Sdn Bhd & Another Case [2019] 10 CLJ 333 [HC]

• SUBJECT
• CORAM
• COUNSEL

An insurance claim based on policies purchased as part of a fraudulent scheme to make claims based on fictitious medical conditions may be nullified for being in blatant violation of the duty of good faith and a breach of contract; consequently, any monies paid out by the insurer may be recovered.  
Great Eastern Life Assurance (Malaysia) Bhd v. Poobalan Rajah [2019] 10 CLJ 353 [HC]

• SUBJECT
• CORAM
• COUNSEL

A widow in an unregistered customary marriage is a ‘dependent’ within the meaning of s. 2(3) of the Employees’ Social Security Act 1969 and is entitled to a survivors’ pension; to construe ‘widow’ as ‘lawful widower’ is unacceptable and contrary to the object of the Act as a social legislation.  
Ketua Pengarah Pertubuhan Keselamatan Sosial v. Lam Kun Tai [2019] 10 CLJ 378 [HC]

• SUBJECT
• CORAM
• COUNSEL

A purchaser of property who enters into a sale and purchase agreement with a developer lacks privity of contract to seek damages for late delivery against a subsequent developer unless a fresh agreement is executed with the latter. It follows that in an action against the original developer, limitation cannot run from the date of vacant possession by the subsequent developer.  
Munusamy Ayeru & Anor v. Koperasi Pembangunan Kampung Tradisional Tasek Pulau Pinang Bhd & Anor And Other Appeals [2019] 10 CLJ 393 [HC]

• SUBJECT
• CORAM
• COUNSEL

A party to an agreement cannot be said to be in breach when its obligations under the same is not yet due to be performed. Likewise, an agreement may not be rescinded notwithstanding that a party has disabled itself from performing its obligations if said party has partially performed its obligations under an agreement.  
Yaw Chun Soon v. Newfields Land Sdn Bhd [2019] 10 CLJ 405 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. THE HIGHER PURPOSE (MAQASID) OF SHARIAH: MILESTONES OF DEVELOPMENT* ^{[Read excerpt]}
   by MOHAMMAD HASHIM KAMALI [2019] 1 LNS(A) cxxxvii

[2019] 1 LNS(A) cxxxvii



MALAYSIA

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THE HIGHER PURPOSE (MAQASID) OF SHARIAH: MILESTONES OF DEVELOPMENT*

by
MOHAMMAD HASHIM KAMALI

The higher purposes, or maqasid, of shariah has a longer history, of course, yet it has become the focus of renewed interest only in recent decades. But even the longer history of maqasid has been problematic due mainly to its close association with the usul al-fiqh (science of the sources of fiqh), which is a stronger and better-established discipline. With their distinctly textualist orientations, the writers of usul al-fiqh saw the maqasid as a departure from that trend and therefore tried to suppress it. Hence the maqasid remained under-developed and received little attention compared to the usul al-fiqh.

The suppression of maqasid by mainstream Islamic scholarship continued well until the later part of the twentieth century and what it meant was that maqasid al-shariah was rarely used in the Muslim academic circles. Muhammad El-Tahir El-Messawi recounts the story of a doctoral candidate at al-Azhar University in the late 1960s who had to change the title of his dissertation that had ‘maqasid’ therein.

. . .

* Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. (www.iais.org.my).

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2. ANOTHER BITE AT THE CHERRY: PURSUING SUMMARY TRIAL ONCE AGAIN ^{[Read excerpt]}
   by SHARYN WONG YI JIEN* [2019] 1 LNS(A) cxxxviii

[2019] 1 LNS(A) cxxxviii



MALAYSIA

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ANOTHER BITE AT THE CHERRY: PURSUING SUMMARY TRIAL ONCE AGAIN

by
SHARYN WONG YI JIEN*

On 1 June 2018, the Court of Appeal decided in the case of Lim Thian Huat & Anor v. MBF Holdings Berhad [2018] 1 LNS 678 that a party who has pursued a matter by way of O. 14A of the Rules of Court 2012 (the Rules) and failed, is not barred from subsequently pursuing the same by way of a summary trial under O. 33 r. 2 of the Rules.

While it is indeed true that there is a distinction between O. 14A and O. 33 r. 2, substance should prevail over form. The mechanical query of “Can a party avail itself of O. 33 r. 2 after trying O. 14A and failing?” which yields only a yes/no answer does not take into account the circumstances and nuances of each case. It is submitted that the central test in Petroliam Nasional Bhd v. Kerajaan Negeri Terengganu [2003] 4 CLJ 337; [2004] 1 MLJ 8 of “whether a summary trial would lead to a substantial saving of time and expenditure” reflects the true intention of expediting cases and may be used as a guide in determining whether a party may apply again for summary trial under another provision of the Rules.

. . .

**The author is an Associate Legal Counsel in a Malaysian statutory body. All views expressed in this article are solely the author's in her private capacity and do not in any way represent the views of any other party, official or otherwise.

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