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Issue #24/2020
04 June 2020
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New This Week
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SIEMENS INDUSTRY SOFTWARE GMBH & CO KG (GERMANY) v.
JACOB AND TORALF CONSULTING SDN BHD & ORS [2020] 5 CLJ 143
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; MOHD ZAWAWI SALLEH FCJ; IDRUS HARUN FCJ;
NALLINI PATHMANATHAN FCJ; ABDUL RAHMAN SEBLI FCJ
[CIVIL APPEAL NO: 02(F)-115-12-2018(W)]
27 MARCH 2020
The law which governs the registration and enforcement of an arbitral tribunal award is s. 38 of the Arbitration Act 2005 (AA). Bearing in mind the meaning of "award" and "in terms of the awards" in ss. 2 and 38 respectively of the AA, the material part of an arbitration award capable of being registered, recognised and enforced as a judgment of the High Court is only the dispositive portion of the award, and not the entire award. The subject word and phrase do not at all indicate that the entire award should be registered; indeed, it defies logic that the whole award containing the findings and analysis of the arbitral tribunal of the evidence, which is akin to the grounds of judgment delivered by the courts, should form the terms of award that should be registered as a judgment of the High Court.
ARBITRATION: Award - Registration of - Whether only dispositive portion of award ought to be registered - Whether entire award including findings, reasoning and analysis of arbitral tribunal necessary to be registered for enforcement purposes - Whether issue of bifurcation of award arose - Whether registration of entire award would undermine confidentiality of arbitration proceedings - Whether recognition and enforcement of arbitration award by way of entry as judgment of High Court of Malaya ought to relate only to disposition of said award - Arbitration Act 2005, ss. 2 & 38 - Rules of Court 2012, O. 69 r. 8
WORDS & PHRASES: 'award' - Arbitration Act 2005, s. 2 - Definition of award - 'decision on the substance of the dispute' - Whether dispositive position of award and not reasoning or findings of arbitral tribunal need to be registered - Whether entire award including findings, reasoning and analysis of arbitral tribunal necessary to be registered for enforcement purposes - Arbitration Act 2005, s. 38
WORDS & PHRASES: 'in terms of the award' - Arbitration Act 2005, s. 38 - Whether indicates dispositive portion only and not entire award - Whether material part of award capable of being registered to be recognised and enforced was dispositive position on its own - Whether entire award including findings, reasoning and analysis of arbitral tribunal necessary to be registered for enforcement purposes - Arbitration Act 2005, s. 2
QM RESOURCES SDN BHD v. PARADE HOTEL SDN BHD & ORS [2020] 5 CLJ 182
COURT OF APPEAL, PUTRAJAYA
HAMID SULTAN ABU BACKER JCA; ABANG ISKANDAR JCA; MARY LIM JCA
[APPEAL NO: J-02(NCVC)(W)-771-04-2017]
11 JULY 2019
A successful bidder of property at a judicial sale or public auction conducted by the court under the National Land Code obtains an indefeasible title to the property, and as such, his right to ownership prevails over the right of a purchaser who had earlier purchased the property from a chargor or the developer. The successful bidder is entitled to act on the public documents relating to the Proclamation of Sale, and the law does not oblige him to carry out further checks on the property, such as to inquire whether part of the property to be auctioned belonged to some other persons or proprietors. It is also noteworthy that the sale transaction between the third party purchaser and the chargor or the developer as the case may be, is rooted in contract thereby giving it a right in personam, whereas the bidder's purchase, being a statutory sale, assumes a right in rem.
LAND LAW: Sale of property - Auction - Dispute over rightful owner of several commercial units on property - Whether successful bidder lawful owner of impugned units - Whether impugned units excluded from sale in auction - Whether successful bidder entitled to get auctioned property on as is basis - Whether successful bidder entitled to act on proclamation of sale - Whether impugned units never expressly referred to in order for sale or proclamation of sale and remained part and parcel of property - Whether purchasers of impugned units failed to prove their units ought to be excluded from public auction of building - Whether successful bidder obtained indefeasible title to property - National Land Code, ss. 259(3) & 267(1)
LAND LAW: Indefeasibility of titles and interests - Purchase of property via auction - Successful bidder's purchase of property a statutory sale involving public auction under judicial supervision - Whether successful bidder entitled to get auctioned property on as is basis - Whether successful bidder entitled to act on proclamation of sale - Whether successful bidder obtained indefeasible title to property - National Land Code, ss. 259(3) & 267(1)
CIVIL PROCEDURE: Functus officio - Applicability - Successful bidder purchased property via public auction - Dispute over rightful owner of several commercial units on property - Whether successful bidder lawful owner of impugned units - Whether successful bidder entitled to get auctioned property on as is basis - Whether impugned units never expressly referred to in order for sale or proclamation of sale and remained part and parcel of property - Whether High Court Judge functus officio and could not go against prior order for sale authorising sale of property as described in proclamation of sale
THENE ARULMANI CHELVI ARUMUGAM v. LONDON WEIGHT MANAGEMENT SDN BHD [2020] 5 CLJ 260
COURT OF APPEAL, PUTRAJAYA
ABDUL RAHMAN SEBLI JCA; MARY LIM JCA; HASNAH MOHAMMED HASHIM JCA
[CIVIL APPEAL NO: B-02(NCVC)(W)-1195-06-2018]
21 AUGUST 2019
A service provider such as a specialist slimming centre, in holding out its expertise, skill and ability to provide such service, owes a duty of care to such of its customers who rely on its service, particularly in ensuring that the treatments it provides will not endanger the customers' health, safety and well-being. Where the treatments and programmes that it administers on a customer has caused the customer to suffer from adverse reactions damaging to his or her health, the service provider may be held to be in breach of a fundamental duty of care, and liable in damages. In such circumstances, the fact that the service provider's consultation card carries a clause stating that the customer has voluntarily consented to the treatments, or has agreed to refrain from initiating any claims against the service provider, is of no respite; such disclaimer is equivalent to a prohibition of access to justice, and must be struck down for violating s. 29 of the Contracts Act 1950.
TORT: Negligence - Duty of care - Claimant signed up for package of slimming treatments with company specialising in slimming services ('company') - Claimant given box of coffee and oat drinks - Claimant fell sick upon consumption of hot coffee - Complaints made to company ignored or not taken seriously - Whether injuries, loss or damage complained of by claimant caused by company - Whether claimant warned of risks and danger of treatments - Whether company owed claimant duty of care - Whether company negligent - Whether claimant had valid cause of action
TORT: Negligence - Damages - Claim for special, general exemplary damages and aggravated damages - Claimant signed up for package of slimming treatments with company specialising in slimming services ('company') - Claimant given box of coffee and oat drinks - Claimant fell sick upon consumption of hot coffee - Complaints made to company ignored or not taken seriously - Whether injuries, loss or damage complained of by claimant caused by company - Whether damages proven
“The courts apply a more stringent test in considering stay of criminal proceedings. It is only in very exceptional or unusual circumstances that a stay order is granted”
“Now, the accused is a public figure who stands charged with offences which cannot by any means be described as trivial, allegedly committed while he was holding office as Prime Minister. Public interest and indeed his personal interest dictate that the trials against him should be commenced expeditiously without any unreasonable delay. He has not established to our satisfaction that his application is so unusual or exceptional that it falls within that class of cases which would justify the grant of a stay. As stated above, a stay of criminal proceedings will only be granted in the rarest of cases and the fact that the proceedings may be rendered a nullity is not a special circumstance.” – per Richard Malanjum CJ in PP v. Dato’ Sri Mohd Najib Hj Abd Razak [2019] 6 CLJ 561
Legal Network Series
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THAMAYANTHI THEVY THIAGRAJAN v. JEYENDERAN M RAMASAMY 1. In the absence of any rebuttal to the presumption under s. 88(3) of the Law Reform Act (Marriage and Divorce) 1976, the best interest of a girl child of tender age is to continue to be in a stable environment with the wife. Hence, custody, care and control of the said child should be given to the wife. 2. Sole guardianship should be granted when it is impossible for parties to communicate effectively and expeditiously in order for joint decisions to be made on matters relating to the upbringing and education of the child. 3. It is the duty of the husband or father to maintain the standard of living that the wife and children had enjoyed during the existence of the marriage. Hence, when the wife and child have been accustomed to a high standard of living and luxurious lifestyle throughout the marriage, they should not be deprived of such a comfortable lifestyle after the marriage comes to an end. FAMILY LAW: Children - Custody - Custody, care and control - Girl of tender age - Husband made admissions in affidavit that he is not in position to take care of child due to work commitments and frequent travelling out of the country - Whether presumption under s. 88(3) Law Reform Act 1976 has been rebutted by husband - Whether best interest of child was for her to continue to be with wife FAMILY LAW: Children - Guardianship - Sole guardianship - Animosity and acrimony between parties at a peak - Communication breakdown making it impossible to effectively and expeditiously make joint decisions on upbringing and education of child - Excessive control by husband - Child witnessing abusive conduct of husband - Whether sole or joint guardianship should be granted - Whether husband would continue to control wife and child if joint guardianship was granted - Whether justice is best served by releasing wife and child from husband's control FAMILY LAW: Maintenance - Assessment - Maintenance for wife and child - Wife and child accustomed to high standard of living and luxurious lifestyle throughout marriage - Wife and child totally financially dependent on husband - Whether it is duty of husband to maintain standard of living that wife and children had enjoyed during existence of marriage - Whether wife and child should be deprived of comfortable life style that husband himself had lavished on them
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STONE WORLD SDN BHD v. ENGAREH (M) SDN BHD Issues on the jurisdiction of a court to make consequential orders in an application seeking compliance of its initial judgment and clarification order should be raised at the time such application is made. Issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, though not actually decided by the Court, are still covered by the doctrine of res judicata . Hence, parties are estopped from attempting to re-litigate the matter under the guise of an impeachment proceeding. CIVIL PROCEDURE: Judgments and orders - Impeachment - Consequential orders - Jurisdictional issue - Application for consequential orders were filed by defendant in previous proceedings as a result of plaintiff's failure to comply with initial judgment and clarification order - Whether plaintiff had every opportunity during proceedings concerning consequential orders to raise issue of jurisdiction - Whether court has jurisdiction to make consequential orders to give effect to its judgment and to ensure that such judgment is not defeated by intervening events - Whether consequential order was granted in contravention of statute - Whether doctrine of res judicata applies
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PT KIARA TEMASEK INTERNASIONAL v. INAI KIARA SDN BHD & ORS The termination of a sub-contract by a main contractor on the basis of frustration as a result of an alleged omission of a certain part of work in the main contract by its joint venture partner is misplaced when the main contractor, who had the absolute right to retain the project, had failed take any steps to prevent such omission. CONTRACT: Termination - Subcontract - Frustration - Termination of sub-contract by main contractor - Force termination due to frustration of contract - Change in circumstances - Parties to joint venture with main contractor omitted some part of work that had been awarded to sub-contractor - Main contractor failed to take any steps to prevent omission - Whether there were supervening events causing frustration - Whether contract was frustrated beyond control of main contractor - Whether force majeure clause applicable to disclaim liability TORT: Inducement of breach of contract - Intention - Conduct of partner of main contractor to omit certain works from subcontract and give the said works to subcontractor of its choice - Whether there was intention to procure a breach of contract
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PP lwn. EFFENDI Kesalahan penyeludupan migran perlu ditangani dengan memberi penekanan pada pencegahan dan pengajaran kepada pesalah-pesalah dan kepada mereka yang cuba untuk melakukan kesalahan serupa agar kepentingan awam dalam masa yang sama turut dipelihara. PROSEDUR JENAYAH: Penghukuman - Prinsip-prinsip - Kesalahan serius - Pertuduhan penyeludupan migran - Pengakuan bersalah - Tertuduh menyeledup seramai 13 orang migran - Tertuduh sendiri merupakan migran haram - Sama ada kesalahan tertuduh adalah serius - Sama ada perbuatan tertuduh telah menjejaskan reputasi negara Malaysia - Sama ada kepentingan awam hendaklah didahulukan
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PP lwn. PREMRAJ KRISHNASAMY Seorang saksi yang mempunyai kaitan dengan seseorang lain atau mangsa kepada kejadian tidak semestinya merupakan saksi yang tidak kredibel disebabkan hubungan itu. Mahkamah harus mempunyai sebab-sebab kukuh dan sebenar bagi mencapai dapatan saksi memberi keterangan secara berpihak. UNDANG-UNDANG JENAYAH: Bunuh - Seksyen 302 Kanun Keseksaan - Mangsa mati kerana kecederaan yang di alami akibat tetakan parang - Kewujudan saksi yang melihat secara langsung perbuatan tertuduh - Sama ada kecederaan yang dialami oleh mangsa membawa kepada kebarangkalian kematian yang tinggi - Sama ada wujud niat atau mens rea tertuduh untuk mendatangkan kecederaan ke atas mangsa KETERANGAN: Saksi - Kredibiliti - Keterangan mangsa kepada kejadian - Kredibiliti - Sama ada seorang saksi yang mempunyai kaitan dengan seseorang lain atau mangsa kepada kejadian merupakan saksi yang kredibel - Sama ada Mahkamah harus mempunyai sebab-sebab kukuh dan sebenar bagi mencapai dapatan saksi memberi keterangan secara berpihak KETERANGAN: Inferen bertentangan - Kegagalan memanggil saksi - Inferen bertentangn terhadap kes pendakwaan - Kegagalan memanggil saksi di tempat kejadian - Sama ada kegagalan pihak pendakwaan mengemukakan dan mengesan saksi memprejudis tertuduh
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CLJ 2020 Volume 5 (Part 2)
The law which governs the registration and enforcement of an arbitral tribunal award is s. 38 of the Arbitration Act 2005 (AA). Bearing in mind the meaning of "award" and "in terms of the awards" in ss. 2 and 38 respectively of the AA, the material part of an arbitration award capable of being registered, recognised and enforced as a judgment of the High Court is only the dispositive portion of the award, and not the entire award. The subject word and phrase do not at all indicate that the entire award should be registered; indeed, it defies logic that the whole award containing the findings and analysis of the arbitral tribunal of the evidence, which is akin to the grounds of judgment delivered by the courts, should form the terms of award that should be registered as a judgment of the High Court.
Siemens Industry Software GmbH & Co KG (Germany) v. Jacob And Toralf Consulting Sdn Bhd & Ors [2020] 5 CLJ 143 [FC]
ARBITRATION: Award - Registration of - Whether only dispositive portion of award ought to be registered - Whether entire award including findings, reasoning and analysis of arbitral tribunal necessary to be registered for enforcement purposes - Whether issue of bifurcation of award arose - Whether registration of entire award would undermine confidentiality of arbitration proceedings - Whether recognition and enforcement of arbitration award by way of entry as judgment of High Court of Malaya ought to relate only to disposition of said award - Arbitration Act 2005, ss. 2 & 38 - Rules of Court 2012, O. 69 r. 8
WORDS & PHRASES: 'award' - Arbitration Act 2005, s. 2 - Definition of award - 'decision on the substance of the dispute' - Whether dispositive position of award and not reasoning or findings of arbitral tribunal need to be registered - Whether entire award including findings, reasoning and analysis of arbitral tribunal necessary to be registered for enforcement purposes - Arbitration Act 2005, s. 38
WORDS & PHRASES: 'in terms of the award' - Arbitration Act 2005, s. 38 - Whether indicates dispositive portion only and not entire award - Whether material part of award capable of being registered to be recognised and enforced was dispositive position on its own - Whether entire award including findings, reasoning and analysis of arbitral tribunal necessary to be registered for enforcement purposes - Arbitration Act 2005, s. 2
TENGKU MAIMUN TUAN MAT CJ
MOHD ZAWAWI SALLEH FCJ
IDRUS HARUN FCJ
NALLINI PATHMANATHAN FCJ
ABDUL RAHMAN SEBLI FCJ
- For the appellant - Cecil Abraham, Arif Emran Ariffin, Sunil Abraham & Raymond Tan; M/s Wong & Partners
- For the 1st - 4th respondents - R Kengadharan, Magita Hari Mogan; M/s R Kengadharan & Co
- For the 5th respondent - GK Ganesan & GS Saran; M/s GK Ganesan
A successful bidder of property at a public auction held under the auspices of the court who was denied ownership of the property by reason of the Land Authority's negligence in failing to endorse a Notice of Seizure issued against the property, is entitled to claim for the losses he suffered against the said Authority. However, where the facts showed that a registrar's caveat and a private caveat were registered on the property, and the bidder had gone ahead with the payment of deposit and the bidding irrespective, he cannot thereafter claim the deposit as part of his losses; he suffered no loss thereby as, without the deposit, he would not be able to bid for the property. There is likewise no justification for him to claim as his losses the monthly repayment to the bank or the redemption sum to settle the loan for the property; what he is entitled to claim on the obtaining facts is his loss of profit for the resale of the property if any, and his legal fees.
Pendaftar Hakmilik Pejabat Tanah Dan Galian Selangor & Anor v. Lau Yong Ying [2020] 5 CLJ 164 [CA]
TORT: Damages - Assessment - Appeal against - Respondent successful bidder of property - Respondent unaware property seized by police - Respondent suffered losses as a result of appellants' negligence in failing to endorse notice of seizure on title to property - Whether respondent only entitled to claim for loss of profit for resale of property and payment of legal fees - Whether trial judge erroneously estimated damages suffered on certain claims - Whether appeal ought to be allowed in part
TORT: Negligence - Damages - Assessment of - Appeal against - Respondent successful bidder of property - Respondent unaware property seized by police - Respondent suffered losses as a result of appellants' negligence in failing to endorse notice of seizure on title to property - Whether respondent only entitled to claim for loss of profit for resale of property and payment of legal fees - Whether trial judge erroneously estimated damages suffered on certain claims - Whether appeal ought to be allowed in part
KAMARDIN HASHIM JCA
KAMALUDIN MD SAID JCA
LEE SWEE SENG JCA
- For the appellants - Siti Fatimah Talib; State Legal Advisor, Selangor
- For the respondent - Americk Sidhu; M/s Americk Sidhu
A successful bidder of property at a judicial sale or public auction conducted by the court under the National Land Code obtains an indefeasible title to the property, and as such, his right to ownership prevails over the right of a purchaser who had earlier purchased the property from a chargor or the developer. The successful bidder is entitled to act on the public documents relating to the Proclamation of Sale, and the law does not oblige him to carry out further checks on the property, such as to inquire whether part of the property to be auctioned belonged to some other persons or proprietors. It is also noteworthy that the sale transaction between the third party purchaser and the chargor or the developer as the case may be, is rooted in contract thereby giving it a right in personam, whereas the bidder's purchase, being a statutory sale, assumes a right in rem.
QM Resources Sdn Bhd v. Parade Hotel Sdn Bhd & Ors [2020] 5 CLJ 182 [CA]
LAND LAW: Sale of property - Auction - Dispute over rightful owner of several commercial units on property - Whether successful bidder lawful owner of impugned units - Whether impugned units excluded from sale in auction - Whether successful bidder entitled to get auctioned property on as is basis - Whether successful bidder entitled to act on proclamation of sale - Whether impugned units never expressly referred to in order for sale or proclamation of sale and remained part and parcel of property - Whether purchasers of impugned units failed to prove their units ought to be excluded from public auction of building - Whether successful bidder obtained indefeasible title to property - National Land Code, ss. 259(3) & 267(1)
LAND LAW: Indefeasibility of titles and interests - Purchase of property via auction - Successful bidder's purchase of property a statutory sale involving public auction under judicial supervision - Whether successful bidder entitled to get auctioned property on as is basis - Whether successful bidder entitled to act on proclamation of sale - Whether successful bidder obtained indefeasible title to property - National Land Code, ss. 259(3) & 267(1)
CIVIL PROCEDURE: Functus officio - Applicability - Successful bidder purchased property via public auction - Dispute over rightful owner of several commercial units on property - Whether successful bidder lawful owner of impugned units - Whether successful bidder entitled to get auctioned property on as is basis - Whether impugned units never expressly referred to in order for sale or proclamation of sale and remained part and parcel of property - Whether High Court Judge functus officio and could not go against prior order for sale authorising sale of property as described in proclamation of sale
HAMID SULTAN ABU BACKER JCA
ABANG ISKANDAR JCA
MARY LIM JCA
- For the appellant - John Mathew & Heng Yee Keat; M/s Christopher & Lee Ong
- For the respondent - Dinesh Athinarayanan; M/s Dinesh & Co
Section 28(4) of the Civil Law Act 1956, being a penal provision, must be construed with some degree of stricture. What this entails is that the right to double rental is a matter of discretion for the court and it is conditional on wilful or contumacious holding over of the premises by the tenant. Further, since parties to tenancy agreements must be taken to have viewed the general law in reaching their final agreement, the same principle applies to the interpretation of "holding over" clauses in such agreements. Hence, whether or not such clauses are silent on wilful refusal to yield up the premises, the landlord is still duty bound to prove wilful or contumacious holding over by a tenant before any claim for double rental for holding over could be successfully made against the latter.
Rohasassets Sdn Bhd v. Weatherford (M) Sdn Bhd & Anor [2020] 5 CLJ 202 [CA]
LANDLORD AND TENANT: Tenancy - Termination - Claim for double rent premised on 'holding over' - Whether tenants' holding over in breach of tenancy agreements - Whether discretion to impose double rental vested with courts - Requirement of wilfulness or contumacious holding over - Whether prerequisite for imposition of double rental - Whether holding over clauses in tenancy agreement premised on s. 28(4)(a) of Civil Law Act 1956 - Whether wilful or contumacious holding over established by landlord - Whether claim for double rent ought to be allowed
ROHANA YUSOF PCA
VERNON ONG LAM KIAT JCA
AB KARIM AB JALIL JCA
- For the appellant - Christopher Foo, Ng Sai Yeang & Chong Juen Quan; M/s Raja, Darryl & Loh
- For the 1st respondent - T Sudhar & Edward Kuruvilla; M/s Shook Lin & Bok
- For the 2nd respondent - Rajendra Navaratnam & Sachpreetraj Singh Sohanpal; M/s Azman Davidson & Co
In seeking the disclosure of documents in the hands of the banks relating to financial transactions, the bank being a non-party to the proceedings, the application under s. 7 of the Banker's Book (Evidence) Act 1949 was misconceived in the light of the specific legal framework for discovery under O. 24 r. 7A of the Rules of Court 2012.
Tey Por Yee & Anor v. Protasco Bhd & Other Appeals [2020] 5 CLJ 216 [CA]
CIVIL PROCEDURE: Discovery - Documents - Application for specific discovery of documents - Application against non-party to proceedings - Application under s. 7 of Bankers' Books (Evidence) Act 1949 ('BBEA') - Whether application should have been made under O. 24 r. 7A of Rules of Court 2012 - Whether s. 7 of BBEA only provides for order to inspect and take copies of entries in banker's book - Whether documents obtained under BBEA could only be used for admission of banking documentary evidence into evidence - Whether application under s. 7 amounted to abuse of court process - Whether documents not properly disclosed ought to be excluded
STATUTORY INTERPRETATION: Construction of statute - Interpretation - 'A copy of any entry in a banker's book' in ss. 3, 4 and 5 of Bankers' Books (Evidence) Act 1949 ('BBEA') - Whether 'entry' defined in BBEA - Whether 'entry' refers to 'the matters, transactions and accounts therein recorded' in banker's book - Whether entries in books of accounts regularly kept in course of business
HAMID SULTAN ABU BACKER JCA
HANIPAH FARIKULLAH JCA
KAMALUDIN MD SAID JCA
- For the appellants - Malik Imtiaz Sarwar, R Jayasingam, Lim Yvonne, Ng Keng Yang & Khoo Suk Chyi; M/s BH Lawrence & Co
- For the respondent - S Sivaneindiren, Peter Skelchy & Joycelyn Teoh; M/s Cheah Teh & Su
A service provider such as a specialist slimming centre, in holding out its expertise, skill and ability to provide such service, owes a duty of care to such of its customers who rely on its service, particularly in ensuring that the treatments it provides will not endanger the customers' health, safety and well-being. Where the treatments and programmes that it administers on a customer has caused the customer to suffer from adverse reactions damaging to his or her health, the service provider may be held to be in breach of a fundamental duty of care, and liable in damages. In such circumstances, the fact that the service provider's consultation card carries a clause stating that the customer has voluntarily consented to the treatments, or has agreed to refrain from initiating any claims against the service provider, is of no respite; such disclaimer is equivalent to a prohibition of access to justice, and must be struck down for violating s. 29 of the Contracts Act 1950.
Thene Arulmani Chelvi Arumugam v. London Weight Management Sdn Bhd [2020] 5 CLJ 260 [CA]
TORT: Negligence - Duty of care - Claimant signed up for package of slimming treatments with company specialising in slimming services ('company') - Claimant given box of coffee and oat drinks - Claimant fell sick upon consumption of hot coffee - Complaints made to company ignored or not taken seriously - Whether injuries, loss or damage complained of by claimant caused by company - Whether claimant warned of risks and danger of treatments - Whether company owed claimant duty of care - Whether company negligent - Whether claimant had valid cause of action
TORT: Negligence - Damages - Claim for special, general exemplary damages and aggravated damages - Claimant signed up for package of slimming treatments with company specialising in slimming services ('company') - Claimant given box of coffee and oat drinks - Claimant fell sick upon consumption of hot coffee - Complaints made to company ignored or not taken seriously - Whether injuries, loss or damage complained of by claimant caused by company - Whether damages proven
ABDUL RAHMAN SEBLI JCA
MARY LIM JCA
HASNAH MOHAMMED HASHIM JCA
- For the appellant - Lim Jit Kiong; M/s JK Lim
- For the respondent - Bahari Yeow Tien Hong, Lim Zhi Jian & Choo Wen Chun; M/s Lee Hishammuddin Allen & Gledhill
A housing developer and a homebuyer, having executed the statutory sale and purchase agreement under the Housing Development (Control and Licencing) Act 1966 (HDA) and the Housing Development (Control and Licencing) Regulations 1989 (HDR), may subsequently enter into a settlement agreement to settle any dispute that has arisen as between them regarding liquidated damages for late delivery of vacant possession. There is nothing in the HAD or HDR that bars or invalidates such a settlement agreement from taking effect, and it is also valid as per s. 64 of the Contracts Act 1950. The result is that a homebuyer who has opted to execute such a settlement agreement is estopped from instituting a suit against the developer claiming for the same relief, albeit for a much higher sum.
Pinpoint Consortium (M) Sdn Bhd v. Mammoth Empire Land Sdn Bhd [2020] 5 CLJ 281 [HC]
CONTRACT: Agreement - Sale and purchase agreement - Settlement agreement - Home buyer and housing developer entered into sale and purchase agreement - Purchase of parcel in apartment - Delay in delivery of vacant possession - Home buyer claimed for liquidated damages under sale and purchase agreement - Allegations that parties entered into settlement agreement - Whether settlement agreement clear - Whether contra proferentem could apply to settlement agreement - Whether home buyer could claim for liquidated damages - Whether estopped by settlement agreement - Whether parties entered into settlement agreement regarding claimed sum - Whether settlement agreement entered into valid - Contracts Act 1950, ss. 24 & 64 - Housing Development (Control and Licensing) Act 1966, ss. 16AB(a), 16T(1), (2) & (3) - Housing Development (Control and Licensing) Regulations 1989, regs. 11(1) & (3)
WONG KIAN KHEONG J
- For the appellant - Rajasegaran Karruppiah & Rajveen Kaur; M/s Pretam Singh, Nor & Co
- For the respondent - Sam How Pek Lean & Kau Hui Ni; M/s Lim Soh & Goonting
LNS Article(s)
LEGISLATIONS IN MALAYSIA TO CONTROL SPREAD OF INFECTIOUS DISEASES [Read excerpt]
by John Mark* [2020] 1 LNS(A) lixTHE RIGHTS OF A COASTAL AND USER STATE IN THE CONTIGUOUS ZONE* [Read excerpt]
by Wan Siti Adibah Binti Wan Dahalan, Aida Farihan Binti M Saleh @ Mohd Nawi, Farah Hana Binti Zainol [2020] 1 LNS(A) lxMONEYS WITHDRAWN FROM THE FEDERAL CONSOLIDATED FUND AND SPENT WITHOUT PARLIAMENT'S APPROVAL [Read excerpt]
by Su Tiang Joo* [2020] 1 LNS(A) lxi
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) 178/2020 | Price Control And Anti-Profiteering (Determination Of Maximum Retail Price For Petrol And Diesel) (No. 8) (Revocation) Order 2020 | 3 June 2020 | 4 June 2020 | ACT 723 |
| PU(A) 177/2020 | Labuan Business Activity Tax (Exemption) Order 2020 | 2 June 2020 | 1 January 2019 | ACT 445 |
| PU(A) 176/2020 | Money Services Business (Exemption Of Fees) Order 2020 | 1 June 2020 | 1 June 2020 | ACT 731 |
| PU(A) 175/2020 | Customs (Prohibition Of Imports) (Amendment) (No. 2) Order 2020 | 29 May 2020 | 2 June 2020 | PU(A) 103/2017 |
| PU(A) 174/2020 | Customs (Prohibition Of Exports) (Amendment) (No. 3) Order 2020 | 29 May 2020 | 2 June 2020 | PU(A) 102/2017 |
PU(B)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(B) 255/2020 | Declaration Under Section 3 | 3 June 2020 | 4 June 2020 | ACT 537 |
| PU(B) 254/2020 | Appointment Of Date Of Coming Into Operation | 3 June 2020 | 4 June 2020 | ACT A1612 |
| PU(B) 253/2020 | Reservation Of Land For Public Purpose For Lot 503 Bandar Kuala Lumpur | 3 June 2020 | 4 June 2020 | ACT 56/1965 |
| PU(B) 252/2020 | Appointment Of Deputy Public Prosecutor | 1 June 2020 | Specified in column (2) of the Schedule | ACT 593 |
| PU(B) 251/2020 | Returns And Statements Of Election Expenses - Sabah | 1 June 2020 | 2 June 2020 | ACT 5 |
Legislation Alert
Updated
| Act/Principal No. | Title | Amended by | In force from | Section amended |
| AKTA A1612 | Akta Hak Cipta (Pindaan) 2020 | AKTA 332 | 1 Disember 1987 [PU(B) 586/1987] | Seksyen 28, 35 dan 59C |
| PU(A) 103/2017 | Customs (Prohibition of Imports) Order 2017 | PU(A) 175/2020 | 2 June 2020 | Second Schedule |
| PU(A) 102/2017 | Customs (Prohibition of Exports) Order 2017 | PU(A) 174/2020 | 2 June 2020 | Second Schedule |
| PU(A) 252/2017 | Income Tax (Accelerated Capital Allowance) (Automation Equipment) Rules 2017 | PU(A) 173/2020 | Year of assessment 2018 | Rules 3 and 7 |
| PU(A) 253/2017 | Income Tax (Exemption) (No. 8) Order 2017 | PU(A) 172/2020 | Year of assessment 2018 | Paragraphs 3, 4 and 9 |
Revoked
| Act/Principal No. | Title | Revoked by | In force from |
| PU(A) 64/2020 | Perintah Kawalan Harga Dan Antipencatutan (Penentuan Harga Runcit Maksimum Bagi Petrol Dan Diesel) (No. 8) 2020 [Dibatalkan Oleh PU(A) 178/2020] | PU(A) 178/2020 | 4 Jun 2020 |
| PU(A) 64/2020 | Price Control and Anti-Profiteering (Determination of Maximum Retail Price For Petrol and Diesel) (No. 8) Order 2020 | PU(A) 178/2020 | 4 June 2020 |
| PU(A) 336/2014 | Income Tax (Deduction For Expenses in Relation to Secretarial Fee and Tax Filing Fee) Rules 2014 | PU(A) 162/2020 | Year of assessment 2020 |
| 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 |