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Issue #20/2020
07 May 2020
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New This Week
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HONG YIK PLASTICS (M) SDN BHD v. HO SHEN LEE (M) SDN BHD & ANOR [2020] 4 CLJ 479
COURT OF APPEAL, PUTRAJAYA
VERNON ONG LAM KIAT JCA; SURAYA OTHMAN JCA; HAS ZANAH MEHAT JCA
[CIVIL APPEAL NO: B-02(NCVC)(W)-1790-09-2018]
11 NOVEMBER 2019
A trial judge is under a duty to see that justice is done by rendering to every person his due under the law equally, fairly and impartially, and without any bias, prejudice or passion. He must treat lawyers, litigants and witnesses with respect and must refrain from comments that would suggest that he has made up his mind in advance. The adversarial system of trial that we practice also means that he must not descend into the arena or take part in the disputations, and must try his best to hold the balance between the contending parties. A transgression of these etiquettes may dent the principles of fairness and neutrality, or constitute an unfair judicial treatment of a party, and may thus be met with severe disapproval by the appellate court. One consequence would be that the judgment so arrived at may be set aside, and a new trial altogether before another judge ordered.
CIVIL PROCEDURE: Trial - Unfair judicial treatment - Allegation of - Whether plaintiff accorded fair trial - Whether trial judge consistently interrupted and interjected during examination of witnesses - Whether trial judge pre-judged case - Whether trial judge transgressed core principle that judge remain neutral during proceedings - Whether criticisms of trial judge constituted sufficient ground for reversal of judgment - Whether warranted appellate intervention - Whether new trial before another judge ought to be ordered
PACIFIC SANCTUARY HOLDINGS SDN BHD v. MASALAND CONSTRUCTION SDN BHD [2020] 4 CLJ 490
COURT OF APPEAL, PUTRAJAYA
KAMARDIN HASHIM JCA; RHODZARIAH BUJANG JCA; MOHAMAD ZABIDIN MOHD DIAH JCA
[CIVIL APPEAL NO: S-02(IM)-2016-10-2018]
31 JANUARY 2020
A plaintiff who has obtained a Judgment or an Order against a defendant but has subsequently executed a Settlement Agreement with the latter in respect of the same cause of action is barred from taking any further action on the said Judgment or Order, including for its due execution under O. 46 r. 2(1) of the Rules of Court 2012. The Settlement Agreement thus entered into has the effect of superseding or extinguishing the earlier Judgment or Order, with the result that there is no longer any pending Judgment or Order of Court to be enforced between the parties.
CIVIL PROCEDURE: Judgments and orders - Enforcement - Enforcement of judgments and orders after lapse of six years - Whether leave application for enforcement of judgments and orders supported by affidavit explaining reasons for delay - Whether statutory requirements satisfied - Rules of Court 2012, O. 46 r. 3
ATTORNEY GENERAL OF MALAYSIA v. MOHD KASSIM MOHD HAMID [2020] 4 CLJ 512
HIGH COURT MALAYA, SHAH ALAM
MEOR HASHIMI ABDUL HAMID JC
[CRIMINAL APPEAL NO: BA-42(ORS)(A)-1-09-2019]
10 FEBRUARY 2020
An appeal by the Attorney General against a decision of the Coroner granting leave to an applicant to initiate committal proceedings against the Attorney General on the grounds that he has interfered with the inquest before the Coroner and has subverted the cause of justice, upon a proper consideration of s. 3 Courts of Judicature Act 1964 (CJA), s. 307 Criminal Procedure Code (CPC) and O. 52 r. 3 Rules of Court 2012, is a competent and not a premature appeal. The fact that such an appeal was made pursuant to s. 307 CPC is significant, as it means that such an appeal is to be treated as a criminal appeal, and therefore governed by section 307 in particular and the Criminal Procedure Code generally. Section 307(1) CPC, as it were, allows appeals to be made to the High Court from "any judgment, sentence or order pronounced by any subordinate courts" , and is not in any way stymied by the phrase "does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the right of the parties" housed in s. 3 CJA.
CRIMINAL PROCEDURE: Appeal - Appeal against coroner's decision - Appeal by Public Prosecutor - Public Prosecutor directed inquest into death - Allegation that Public Prosecutor made premature decision regarding deceased's death and delayed and disrupted continuity and transparency of inquest - Leave for committal proceedings against Public Prosecutor granted by coroner - Whether coroner's decision final order or ruling - Whether appealable - Whether appeal competent - Criminal Procedure Code, ss. 307 & 339
CRIMINAL PROCEDURE: Appeal - Appeal against coroner's decision - Appeal by Public Prosecutor - Application to strike out appeal - Public Prosecutor directed inquest into death - Allegation that Public Prosecutor made premature decision regarding deceased's death and delayed and disrupted continuity and transparency of inquest - Leave for committal proceedings against Public Prosecutor granted by coroner - Whether coroner's decision final order or ruling - Whether appealable - Whether appeal premature - Whether plain and obvious case warranting striking out - Whether there was reasonable cause of action - Whether appeal unnecessary and has no prospect of success - Whether appeal frivolous, vexatious and an abuse of process of court - Whether defences unarguable - Whether application to strike out appeal ought to be allowed - Criminal Procedure Code, ss. 307 & 339
WORDS & PHRASES: 'Decision' - Courts of Judicature Act 1964, s. 3 - Appeal against coroner's decision in granting application for leave to issue committal proceedings against Public Prosecutor - Whether coroner's decision a decision within s. 3 of Courts of Judicature Act 1964 - Whether 'judgment, sentence or order' or ruling - Whether coroner's decision disposed of rights of parties - Whether coroner's decision appealable - Whether s. 307 of the Criminal Procedure Code applicable to govern appeal
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PP lwn. Mohd Farid Azizan [2019] 1 LNS 354 (CA) menolak kes Mahkamah Tinggi Mohd Farid Azizan lwn. PP [Trial No: 45A-31-08/2016]
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Yam Sau Wah & Ors v. Superboom Projects Sdn Bhd & Other Appeals [2019] 1 LNS 518 (CA) overruling in part the High Court case of Yam Sau Wah & Ors v. Chan Sau Yin & Ors [Civil Suit No: 22NCvC-100-09/2015]
Legal Network Series
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ONG LEONG CHIOU & ANOR v. KELLER (M) SDN BHD & ORS AND ANOTHER APPEAL Lifting the veil of incorporation is justified where the actions of a party taken as a whole shows that they were acting in concert to try to evade their legal obligations under the contract that they have entered with the other party. COMPANY LAW: Separate legal entity - Lifting veil of incorporation - Exceptional circumstances - Action against director and associated companies - Acting in concert - Whether defendants were acting in concert to try to avoid and evade their legal obligations - Whether veil of incorporation ought to be lifted CONTRACT: Building contract - Claim for work done - Claim premised on progress payment certificate - Unilateral decertification after completion of work by defendant - Costs of empty bore works - Whether plaintiff entitled to be paid for works carried out and completed based on interim progress claims and certificates issued before unilateral decertification by defendant
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CH'NG GHEE WENG & ANOR v. LEE KHOON ENG T/A PRESTIGE CONSTRUCTION Mere issuance of cheques should not be construed as an admission of liability. Failure to deposit or encash the cheques and subsequent destruction of the same shows that the value of the said cheques was never meant to be transferred to the plaintiff. Hence, a claim premised upon the value of such cheques is bound to fail. CONTRACT: Building contract - Claim for work done - Project payments - Claim premised upon value of cheques which were not deposited and encashed - Cheques issued for a different purpose - Cheques were later returned and destroyed - Whether documentary evidence required to prove amount claimed in statement of claim - Whether certification by an architect of progress stage of work was required as evidence of plaintiff's claim - Whether issuance of cheques could be construed as an admission of liability - Whether failure to encash cheques and subsequent destruction of the same by defendant shows that value of cheques was never meant to be transferred to plaintiff
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LEE TOON HIAN v. KOK SIEW TONG & ORS 1. Occupation of land, without consent of the registered owner or his predecessor and further without any authority and consent of the state authority, is considered illegal notwithstanding the fact that the squatter had constructed a house thereon and had paid assessment rates to the local authority. 2. Mere submission of applications for temporary occupation licences ('TOL') does not give rise to any legitimate expectation that the land would be given to the applicant. Hence, occupation on the land prior to any TOL is illegal. CIVIL PROCEDURE: Summary possession of Land - Principles and procedures - Whether summary procedure under O. 89 of Rules of Court 2012 ('ROC') is governed by same principles as those under O. 14 of ROC LAND LAW: Possession of land - Encroached land - Illegal squatter - Right of registered owner - Absence of any authority and consent of state authority to occupy land - Defendant constructed a house and paid assessment rates to local authority - Existence of numerous submissions of applications for temporary occupation licences - Whether defendant had licence or consent to be in occupation of land - Whether defendant was given legitimate expectation to occupy and live on land - Whether defendant occupying land as trespasser and illegal squatter
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PP lwn. FRANCIS CHUKWUDI MMADUCHEM Notis Alcontra yang disandar oleh tertuduh menjadi tidak baik apabila tertuduh gagal memberikan butir-butir yang terperinci berkenaan penghuni-penghuni lain yang didakwa menghuni bilik di mana dadah dijumpai bersama tertuduh. UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Dadah dijumpai di dalam bilik rumah di mana tertuduh ditangkap - Sama ada tertuduh mempunyai kawalan atau jagaan ke atas dadah-dadah - Sama ada tertuduh mempunyai kawalan dan pengetahuan berkenaan dadah - Sama ada kes prima facie terhadap tertuduh di bawah s. 39B(1)(a) ADB 1952 telah dibuktikan PROSEDUR JENAYAH: Pembelaan - Penafian - Tertuduh menafikan mengetahui kewujudan dadah yang dirampas di dalam bilik yang dihuni tertuduh - Notis Alcontra - Tertuduh mendakwa wujud penama-penama lain di dalam bilik - Sama ada pembelaan tertuduh adalah satu pemikiran semula - Sama ada tertuduh telah memenuhi pra syarat notis Alcontra - Sama ada maklumat yang relevan berkenaan penama-penama lain secara terperinci perlu diberikan oleh tertuduh bagi membolehkan tertuduh menyandar kepada notis Alcontra
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KOPERASI PERUMAHAN ANGKATAN TENTERA BHD lwn. PERANGSANG TENGGARA SDN BHD Apabila kewajipan untuk bayaran pulangan hasil masih belum bermula, maka penamatan perjanjian pengurusan hotel dan pulangan hasil yang terjamin atas dasar ketiadaan bayaran pulangan hasil adalah tidak sah. KONTRAK: Penamatan - Kesahihan - Perjanjian pengurusan bangunan hotel dan pulangan hasil yang terjamin - Penamatan oleh tuan tanah ekoran kegagalan bayaran pulangan hasil oleh konsultan - Sama ada kewajipan untuk bayaran pulangan hasil bermula dari tarikh penyerahan milikan kosong sepenuhnya - Sama ada milikan kosong hanya akan berlaku setelah pengubahsuaian dan pembinaan hotel siap dan disahkan oleh arkitek yang dilantik - Sama ada terdapat sebarang perlanggaran yang mewajarkan penamatan - Sama ada penamatan sebelum penguatkuasaan bayaran pulangan hasil adalah sah
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CLJ 2020 Volume 4 (Part 4)
Where a plaintiff has made an offer in contract to a defendant and to that end has paid monies or delivered goods forming the subject matter of the contract to the defendant, the defendant cannot, after having accepted and utilized the monies or goods for its benefit, thereafter deny the existence of a binding and enforceable contract between them merely because it has not accepted the offer expressly or in writing as stipulated in the contract. It is trite that writings apart, conduct of contracting parties may and can amount to acceptance.
Genneva Malaysia Sdn Bhd v. Tio Jit Hong & Ors [2020] 4 CLJ 449 [CA]
CONTRACT: Breach - Unwritten contract - Purchase of gold - Company failed to deliver gold to purchasers - Claim by purchasers against company for return of monies - Whether customer purchase order mere offer to purchase - Whether there was contract between purchasers and company - Whether contract by conduct - Whether company breached contract - Company's bank account frozen and seized under Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Whether purchasers obtained consent of Public Prosecutor to commence action against company - Whether purchasers' claim made within prescribed period
CIVIL PROCEDURE: Summary judgment - Application for - Purchase of gold from company - Company failed to deliver gold to purchasers - Claim by purchasers for return of monies - Whether purchasers had clear and undeniable claim - Whether there were triable issues to be tried - Whether company had defence to raise - Rules of Court 2012, O. 14
LIMITATION: Laches - Doctrine of - Purchase of gold from company - Company failed to deliver gold to purchasers - Claim by purchasers for return of monies - Allegation that purchasers filed claim almost six years after date of breach by company without any explanation for long delay - Whether purchasers' claim statute-barred - Limitation Act 1953
HAMID SULTAN ABU BACKER JCA
HANIPAH FARIKULLAH JCA
KAMALUDIN MD SAID JCA
- For the appellant - Hargopal Singh; M/s M Sujata & Assocs
- For the respondents - Paari Perumal & K A Ch'ng; M/s Chai & Partners
A charge of trafficking in dangerous drugs under s. 39B of the Dangerous Drugs Act 1952 will not bite if the manner in which the drug exhibit was handled or mishandled casts a serious doubt on its identity and triggers a break in the chain of evidence. Where a police witness testified that he has handed a sealed drug-envelope to the chemist for analysis, but that the chemist testified that he received two of such envelopes with one being cut opened, the probable conclusion must be that the identity of the subject matter of the charge has been compromised, that the drug has been tampered with and that there was indeed a break in the chain of evidence. Naturally, a conviction recorded under such circumstances is anything but safe.
Hafizi Sufri Johari v. PP [2020] 4 CLJ 470 [CA]
CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B - Trafficking in cannabis - Appeal against conviction and sentence - Break in chain of evidence - Allegation of - Whether there was serious doubt on identity of drugs seized - Whether conviction safe - Whether there ought to be order of discharge and acquittal
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Trafficking in cannabis - Break in chain of evidence - Allegation of - Whether there was serious doubt on identity of drugs seized - Whether conviction safe - Whether there ought to be order of discharge and acquittal - Dangerous Drugs Act 1952, s. 39B
BADARIAH SAHAMID JCA
RHODZARIAH BUJANG JCA
NOR BEE ARIFFIN JCA
- For the appellant - Roland Thomas Tudin; M/s Roland Thomas Advocs
- For the respondent - Muhammad Azmi Mashud; DPP
A trial judge is under a duty to see that justice is done by rendering to every person his due under the law equally, fairly and impartially, and without any bias, prejudice or passion. He must treat lawyers, litigants and witnesses with respect and must refrain from comments that would suggest that he has made up his mind in advance. The adversarial system of trial that we practice also means that he must not descend into the arena or take part in the disputations, and must try his best to hold the balance between the contending parties. A transgression of these etiquettes may dent the principles of fairness and neutrality, or constitute an unfair judicial treatment of a party, and may thus be met with severe disapproval by the appellate court. One consequence would be that the judgment so arrived at may be set aside, and a new trial altogether before another judge ordered.
Hong Yik Plastics (M) Sdn Bhd v. Ho Shen Lee (M) Sdn Bhd & Anor [2020] 4 CLJ 479 [CA]
CIVIL PROCEDURE: Trial - Unfair judicial treatment - Allegation of - Whether plaintiff accorded fair trial - Whether trial judge consistently interrupted and interjected during examination of witnesses - Whether trial judge pre-judged case - Whether trial judge transgressed core principle that judge remain neutral during proceedings - Whether criticisms of trial judge constituted sufficient ground for reversal of judgment - Whether warranted appellate intervention - Whether new trial before another judge ought to be ordered
VERNON ONG LAM KIAT JCA
SURAYA OTHMAN JCA
HAS ZANAH MEHAT JCA
- For the appellant - Nashvinder Singh Gill, Gurdit Singh, Yang Tek Yeh & Melody Woon Sze Mun; M/s Aziz & Co
- For the respondent - Cyndi Chow Li Kian, Jolene Tham & Ong Hui Yi; M/s Josephine, LK Chow & Co
A plaintiff who has obtained a Judgment or an Order against a defendant but has subsequently executed a Settlement Agreement with the latter in respect of the same cause of action is barred from taking any further action on the said Judgment or Order, including for its due execution under O. 46 r. 2(1) of the Rules of Court 2012. The Settlement Agreement thus entered into has the effect of superseding or extinguishing the earlier Judgment or Order, with the result that there is no longer any pending Judgment or Order of Court to be enforced between the parties.
Pacific Sanctuary Holdings Sdn Bhd v. Masaland Construction Sdn Bhd [2020] 4 CLJ 490 [CA]
CIVIL PROCEDURE: Judgments and orders - Enforcement - Enforcement of judgments and orders after lapse of six years - Whether leave application for enforcement of judgments and orders supported by affidavit explaining reasons for delay - Whether statutory requirements satisfied - Rules of Court 2012, O. 46 r. 3
KAMARDIN HASHIM JCA
RHODZARIAH BUJANG JCA
MOHAMAD ZABIDIN MOHD DIAH JCA
- For the appellant/defendant - Norbert Yapp & Eow Ee Pei; M/s Norbert Yapp & Assocs
- For the respondent/plaintiff - Baldev Singh; M/s Baldev Gan & Assocs
A declaration obtained by an insurer under s. 96(3) of the Road Transport Act 1987 that the policy issued to an insured is void and unenforceable affords a complete defence against any recovery proceedings instituted by an injured third party under s. 96(1) of the Act. That being so, it is only fair that the injured third party be added as a party to the insurer's declaration proceedings, and given every opportunity to defend his rights to oppose such an application without qualification. The insurer's failure to accord such an opportunity or serve on the third party the notice under s. 96(3) of the Act, may entail the court treating the declaration obtained as effective only between the insurer and insured, and not as against the third party.
Yeap Tick In v. Pacific & Orient Insurance Co Bhd [2020] 4 CLJ 500 [CA]
INSURANCE: Motor insurance - Policy - Insurer obtained declaration that policy issued to insured void and unenforceable - Injured third party obtained judgment sum against insured - High Court granted permanent injunction against third party from enforcing judgment against insurer - Whether insurer obliged by statute to pay third party on judgment sum obtained - Whether declaration only effective between insurer and insured and not effective against third party - Whether third party could enforce judgment against insurer without having to first file recovery proceedings against insurer - Whether injunction ought not to be allowed - Road Transport Act 1987, s. 96(1), (3)
CIVIL PROCEDURE: Injunction - Permanent injunction - Appeal against - Motor insurance policy - Insurer obtained declaration that policy issued to insured void and unenforceable - Injured third party obtained judgment sum against insured - High Court granted permanent injunction against third party from enforcing judgment against insurer - Whether insurer obliged by statute to pay third party on judgment sum obtained - Whether declaration only effective between insurer and insured and not effective against third party - Whether third party could enforce judgment against insurer without having to first file recovery proceedings against insurer - Whether injunction ought not to be allowed - Road Transport Act 1987, s. 96(1), (3)
BADARIAH SAHAMID JCA
HARMINDAR SINGH DHALIWAL JCA
NOR BEE ARIFFIN JCA
- For the appellant - C Kandiah & G Naidu; M/s Manikam Avadiar & Co
- For the respondent - R Kamalanathan & Vinod Kamalanathan; M/s Vinod Kamalanathan & Assocs
An appeal by the Attorney General against a decision of the Coroner granting leave to an applicant to initiate committal proceedings against the Attorney General on the grounds that he has interfered with the inquest before the Coroner and has subverted the cause of justice, upon a proper consideration of s. 3 Courts of Judicature Act 1964 (CJA), s. 307 Criminal Procedure Code (CPC) and O. 52 r. 3 Rules of Court 2012, is a competent and not a premature appeal. The fact that such an appeal was made pursuant to s. 307 CPC is significant, as it means that such an appeal is to be treated as a criminal appeal, and therefore governed by section 307 in particular and the Criminal Procedure Code generally. Section 307(1) CPC, as it were, allows appeals to be made to the High Court from "any judgment, sentence or order pronounced by any subordinate courts" , and is not in any way stymied by the phrase "does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the right of the parties" housed in s. 3 CJA.
Attorney General Of Malaysia v. Mohd Kassim Mohd Hamid [2020] 4 CLJ 512 [HC]
CRIMINAL PROCEDURE: Appeal - Appeal against coroner's decision - Appeal by Public Prosecutor - Public Prosecutor directed inquest into death - Allegation that Public Prosecutor made premature decision regarding deceased's death and delayed and disrupted continuity and transparency of inquest - Leave for committal proceedings against Public Prosecutor granted by coroner - Whether coroner's decision final order or ruling - Whether appealable - Whether appeal competent - Criminal Procedure Code, ss. 307 & 339
CRIMINAL PROCEDURE: Appeal - Appeal against coroner's decision - Appeal by Public Prosecutor - Application to strike out appeal - Public Prosecutor directed inquest into death - Allegation that Public Prosecutor made premature decision regarding deceased's death and delayed and disrupted continuity and transparency of inquest - Leave for committal proceedings against Public Prosecutor granted by coroner - Whether coroner's decision final order or ruling - Whether appealable - Whether appeal premature - Whether plain and obvious case warranting striking out - Whether there was reasonable cause of action - Whether appeal unnecessary and has no prospect of success - Whether appeal frivolous, vexatious and an abuse of process of court - Whether defences unarguable - Whether application to strike out appeal ought to be allowed - Criminal Procedure Code, ss. 307 & 339
WORDS & PHRASES: 'Decision' - Courts of Judicature Act 1964, s. 3 - Appeal against coroner's decision in granting application for leave to issue committal proceedings against Public Prosecutor - Whether coroner's decision a decision within s. 3 of Courts of Judicature Act 1964 - Whether 'judgment, sentence or order' or ruling - Whether coroner's decision disposed of rights of parties - Whether coroner's decision appealable - Whether s. 307 of the Criminal Procedure Code applicable to govern appeal
MEOR HASHIMI ABDUL HAMID JC
- For the appellant - Ambiga Sreenevasan, Zainur Zakaria, Narkunavathy Sundareson, Mankiranjit Kaur Mehinder Singh & Sarah Ho; DPPs
- For the respondent/applicant - Mohamed Haniff Khatri Abdulla, Aidil Khalid & Abdul Rahim Sinwan; M/s Mohd Zubir Embong & Assocs
A Receiver and Manager is obliged, under s. 31 of the Employment Act 1955, to cause any part of the sale proceeds of a charged asset or property to be paid to the former employees of a wound up company even if none of them is working on the property at the time of the sale by the Receiver. Such an interpretation of s. 31(1) blends harmoniously with the Legislature's intention to give priority to the rights of employees over secured creditors, and such rights cannot be defeated by the general provisions of s. 527 of the Companies Act 2016. Further, the maximum amount payable to such employees is not limited to their wages per se, but shall include as the case may be their termination and lay-off benefits, annual leave pay, sick leave pay, public holiday pay and maternity allowance.
Perwaja Steel Sdn Bhd v. RHB Bank Bhd & Ors [2020] 4 CLJ 535 [HC]
COMPANY LAW: Winding-up - Application by receiver and manager of wound-up company for directions by court - Banks provided facilities to company before company wound-up - Company issued medium term notes to various holders - Credit facilities and notes secured by, inter alia, charges over parcels of industrial land - Employees owed wages by company - Whether wages should be paid out from proceeds of any sale of charged lands, in priority over debenture holders - Whether receiver obliged to cause any part of sale proceeds of charged lands to be paid to any former employees of company if none of them was working on charged lands at time of sale by receiver - Whether maximum amount payable to any former employees of company eligible or entitled to be paid shall be limited to wages for four consecutive months' work only - Whether such payment shall exclude termination and lay-off benefits, annual leave pay, sick leave pay, public holiday pay and maternity allowance - Employment Act 1955, s. 31 - Companies Act 2016, ss. 384, 392 & 527
CIVIL PROCEDURE: Directions - Application for - Application by receiver and manager of wound-up company - Banks provided facilities to company before company wound-up - Company issued medium term notes to various holders - Credit facilities and notes secured by, inter alia, charges over four parcels of industrial land - Employees owed wages by company - Whether wages should be paid out from proceeds of any sale of charged lands in priority over debenture holders - Whether receiver obliged to cause any part of sale proceeds of charged lands to be paid to any former employees of company if none of them was working on charged lands at time of sale by receiver - Whether maximum amount payable to any former employees of company eligible or entitled to be paid shall be limited to wages for four consecutive months' work only - Whether such payment shall exclude termination and lay-off benefits, annual leave pay, sick leave pay, public holiday pay and maternity allowance - Employment Act 1955, s. 31 - Companies Act 2016, ss. 384, 392 & 527
DARRYL GOON SIEW CHYE J
- For the plaintiff - Lau Kee Sern & Lim Pey Tsyr; M/s Kee Sern, Siu & Huey
- For the 1st-5th defendants - Yoong Sin Min & Cheah Faan Jin; M/s Shook Lin & Bok
- For the 6th-790th defendants - Alvin Tang Wye Keet & Tan Yang Qian; M/s Bodipalar Ponnudurai De Silva
The sub-contractor sought to restrain the receipt of monies by the main contractor under the performance bond and advance payment guarantee in order to preserve the status quo pending the resolution of the disputes in an arbitration proceeding. The performance bond and advance payment guarantee, being a conditional bond, the parties were subject to and bound by its terms and therefore the demand, without the conditions being satisfied, was premature.
SN Akmida Holdings Sdn Bhd v. Ahmad Zaki Sdn Bhd [2020] 4 CLJ 564 [HC]
CONTRACT: Guarantee - Demand for payment - Termination of subcontract by main contractor - Allegation of late completion of work - Demand against performance bond and advance payment guarantee - Whether conditional bonds - Whether conditions satisfied - Whether terms on utilisation of bonds satisfied - Whether tabulation of damages merely arbitrary and speculative estimate - Whether lacked cogency - Whether delay in completion contributed by main contractor - Whether demand for payment premature - Whether claims justified
LIM CHONG FONG J
- For the plaintiff - Yusman Mohd Badar & Muhammad Nazmi Hanafi; M/s Chambers Of Yusman Azlin Anwar
- For the defendant - Sanjay Mohan & Gobinath Karuppan; M/s Sanjay Mohan
CLJ Article(s)
INTELLECTUAL PROPERTY RIGHTS DURING THE MOVEMENT CONTROL ORDER PERIOD - PROVIDING CERTAINTY IN TIMES OF UNCERTAINTY [Read excerpt]
by Alex Choo, Lim Zhi Jian & Bahari Yeow* [2020] 4 CLJ(A) i
LNS Article(s)
MINMETALS SOUTH-EAST ASIA CORP PTE LTD v. NAKHODA LOGISTICS SDN BHD
COURT OF APPEAL DECISION: A CRITICAL ANALYSIS* [Read excerpt]
by Arun Kasi** [2020] 1 LNS(A) xlixCAN THE PRIHATIN RAKYAT ECONOMIC STIMULUS PACKAGE BE SPENT? [Read excerpt]
by Su Tiang Joo* [2020] 1 LNS(A) xlviiSOCIO-ECONOMIC RIGHTS AND THE CHALLENGES OF PROTECTION IN NIGERIA [Read excerpt]
by Dr. Joseph I. Aremo*, Dr. Bolanle Oluwakemi Eniola** [2020] 1 LNS(A) xlviii
Principal Acts
| Number | Title | In force from | Repealing |
| ACT 827 | Currency Act 2020 | Not Yet In Force | - |
| ACT 826 | Food Donors Protection Act 2020 | 31 March 2020 [PU(B) 166/2020] | - |
| ACT 825 | Anti-Fake News (Repeal) Act 2020 | 31 January 2020 | - |
| ACT 824 | Malaysian Health Promotion Board (Dissolution) Act 2019 | 1 April 2020 [PU(B) 119/2020] | - |
| ACT 823 | Finance Act 2019 | Income Tax Act 1967 [Act 53] see s 3, Real Property Gains Tax Act 1976 [Act 169] see s 22, Stamp Act 1949 [Act 378] see s 27, Petroleum (Income Tax) Act 1967 [Act 543] see s 29, Sales Tax Act 2018 [Act 806] see s 35, Finance Act 2010 [Act 702] see s 37 and the Finance Act 2018 [Act 812] see s 39 | - |
Amending Acts
| Number | Title | In force from | Principal/Amending Act No |
| ACT A1617 | Franchise (Amendment) Act 2020 | Not Yet In Force | ACT 590 |
| ACT A1616 | Central Bank of Malaysia (Amendment) Act 2020 | Not Yet In Force | ACT 701 |
| ACT A1615 | Industrial Relations (Amendment) Act 2020 | Not Yet In Force | ACT 177 |
| ACT A1614 | Labuan Business Activity Tax (Amendment) Act 2020 | 10 February 2020 - para 2(a) and s 13 and 15; Year of assessment 2020 and subsequent years of assessment - para 2(b) and s 3, 4, 5, 6, 7, 9, 10, 11, 12 and 14; 1 January 2019 - s 8 | ACT 445 |
| ACT A1613 | Carriage of Goods by Sea (Amendment) Act 2020 | Not Yet In Foce | ACT 527 |
PU(A)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(A) 140/2020 | Registration of Businesses (Amendment) (No. 2) Rules 2020 | 5 May 2020 | 7 May 2020 | LN 282/1957 |
| PU(A) 139/2020 | Income Tax (Exemption) Order 2020 | 4 May 2020 | Year of assessment 2020 | ACT 53 |
| PU(A) 138/2020 | Customs Duties (Exemption) 2017 (Amendment) (No. 2) Order 2020 - Corrigendum | 4 May 2020 | PU(A) 106/2020 | |
| PU(A) 137/2020 | Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) (No. 5) Regulations 2020 | 3 May 2020 | 4 May 2020 | PU(A) 327/1993 |
| PU(A) 136/2020 | Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (No. 5) Regulations 2020 | 3 May 2020 | 4 May 2020 to 12 May 2020 | ACT 342 |
PU(B)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(B) 218/2020 | Notification of Values of Crude Petroleum Oil Under Section 12 | 5 May 2020 | 8 May 2020 to 21 May 2020 | ACT 235 |
| PU(B) 217/2020 | Notification of Values of Imported Completely Built-Up Motor Vehicles (New) Under Section 12 | 28 April 2020 | 30 April 2020 | ACT 235 |
| PU(B) 216/2020 | List of Licensees | 28 April 2020 | 29 April 2020 | ACT 731 |
| PU(B) 215/2020 | Notification of Values of Palm Kernel Under Section 12 | 24 April 2020 | 1 May 2020 to 31 May 2020 | ACT 235 |
| PU(B) 214/2020 | Notice of Termination of Assumption of Control (Koperasi Sakilan Sandakan Berhad) | 24 April 2020 | 25 April 2020 | ACT 502 |
Legislation Alert
Updated
| Act/Principal No. | Title | Amended by | In force from | Section amended |
| PU(A) 327/1993 | Prevention and Control of Infectious Diseases (Compounding of Offences) Regulations 1993 | PU(A) 137/2020 | 4 May 2020 | First Schedule |
| PU(A) 327/1993 | Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Pengkompaunan Kesalahan-Kesalahan) 1993 | PU(A) 137/2020 | 4 Mei 2020 | Jadual Pertama |
| ACT 452 | Employees Provident Fund Act 1991 | PU(A) 135/2020 | 1 April 2020 | Section 54 |
| AKTA 452 | Akta Kumpulan Wang Simpanan Pekerja 1991 | PU(A) 135/2020 | 1 April 2020 | Seksyen 54 |
| PU(A) 327/1993 | Prevention and Control of Infectious Diseases (Compounding of Offences) Regulations 1993 | PU(A) 134/2020 | 29 April 2020 | First Schedule |
Revoked
| Act/Principal No. | Title | Revoked by | In force from |
| PU(A) 133/2020 | Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (No. 4) 2020 [Dibatalkan Oleh Pu(A) 136/2020] | PU(A) 136/2020 | 4 Mei 2020 hingga 12 Mei 2020 |
| PU(B) 80/2019 | Notification of Values of Imported Completely Built-Up Motor Vehicles (New) Under Section 12 | PU(B) 217/2020 | 30 April 2020 |
| PU(A) 136/2012 | Malaysia Deposit Insurance Corporation (Payment of Annual Premium in Respect of Insurer Members) Order 2012 | PU(A) 131/2020 | 29 April 2020 |
| PU(A) 30/2011 | Malaysia Deposit Insurance Corporation (Payment of Annual Premium in Respect of Deposit-Taking Members) Order 2011 | PU(A) 130/2020 | 29 April 2020 |
| PU(A) 122/2020 | Companies (Exemption) Order 2020 | PU(A) 123/2020 | 24 April 2020 |