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Issue #31/2020 23 July 2020

New This Week Case(s) of the Week DUBON BHD v. WISMA COSWAY MANAGEMENT CORPORATION [2020] 6 CLJ 589 JUDICIAL QUOTES  Latest Cases Legal Network Series CLJ 2020 Volume 6 (Part 5) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

DUBON BHD v. WISMA COSWAY MANAGEMENT CORPORATION [2020] 6 CLJ 589
FEDERAL COURT, PUTRAJAYA
AZAHAR MOHAMED CJ (MALAYA); DAVID WONG DAK WAH CJ (SABAH AND SARAWAK);
ROHANA YUSUF FCJ; MOHD ZAWAWI SALLEH FCJ; NALLINI PATHMANATHAN FCJ
[CIVIL APPEAL NO: 02(f)-50-05-2019(J)]
21 MAY 2020
[2020] CLJ JT(3)

COMPANY LAW: Winding up - Proceedings against company - Leave to proceed claim against company as proprietor - Application for - Management corporation claimed for outstanding sums due and owed by company - Whether management corporation entitled to recover from proprietor guaranteed sum - Strata Management Act 2013, s. 77

LAND LAW: Strata title - Management corporation - Claim for outstanding sums due and owed by company as proprietor - Whether management corporation entitled to recover from proprietor guaranteed sum under s. 77 of Strata Management Act 2013 - Whether there was mandatory obligation on proprietors to pay amount incurred by management corporation in course of exercise of carrying out duties - Whether proprietors must settle outstanding amount before selling or transferring properties

STATUTORY INTERPRETATION: Interpretation of Act - 'shall by virtue of this section be guaranteed by the proprietors' - Strata Management Act 2013, s. 77 - Whether there was mandatory obligation on proprietors to pay amount incurred by management corporation in course of exercise of carrying out duties - Whether proprietors must settle outstanding amount before selling or transferring of properties - Whether condition precedent in legal documents of transfer or sales of strata unit shares

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“In both civil and criminal cases, rights exist and are being adjudged. In each the same inherent and constitutional rights exist. In each, the duty of the trial judge is the same. In each, the parties are entitled to justice under law. Concomitant with this is the trial judge's duty to determine and apply the law applicable to the facts found. To the lowest and humblest, to the weak, the poor, and to the strong, the same law applies. To be equally administered by a judge. However, justice does not exist in substantive law alone. Justice in the application of substantive law is dependent on the pre-existent fairness of the procedure; in other words, procedural due process in the trial of the cause. Procedural due process is not only for the parties, but, also, for the court itself. Only thereby can the court maintain its conscience and dignity. Only thereby can it appeal to, and justify the trust and confidence of the public.” – per Vernon Ong Lam Kiat JCA in Hong Yik Plastics (M) Sdn Bhd v. Ho Shen Lee (M) Sdn Bhd & Anor [2020] 4 CLJ 479

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Legal Network Series

[2018] 1 LNS 767	TEE YEE SEIN v. PP 1. Where circumstantial evidence is concerned, it is the cumulative and net effect which must lead to the irresistible inference that it was the accused who had intentionally caused the death of the deceased. It follows that fingerprint evidence should not be treated in isolation but is to be considered cumulatively with other evidence adduced before the court. 2. A defence of alibi mooted in a cautioned statement is unsustainable where the accused is positively identified as the person involved in the killing of the deceased, more so when coupled with the strength of circumstantial evidence. CRIMINAL LAW: Murder - Circumstantial evidence - Deceased succumbed to death due to stab wound and compression to neck - Deceased's personal belongings were found with accused at time of arrest - Accused pawned deceased hand phone soon after demise of deceased - DNA profile of accused found on deceased's fingernail - Fingerprint of accused was found in motorcar where deceased was found unconscious - Whether injury sustained by deceased was fatal in nature - Whether fingerprint evidence should be considered together with other evidence - Whether accused intentionally caused death of deceased - Whether cumulative effect of circumstantial evidence leads to irresistible conclusion that it was accused who had murdered deceased CRIMINAL PROCEDURE: Defence - Alibi - Notice of alibi mooted through cautioned statement of accused - Accused positively identified as the person involved in killing of deceased - Identification of accused made through combined strength of circumstantial evidence - Whether defence of alibi collapsed For the appellant - Chong Joo Tian For the respondent - Ku Hayati Ku Haron, Timbalan Pendakwa raya; Jabatan Peguam Negara
[2018] 1 LNS 829	MAJLIS PERBANDARAN SEREMBAN v. ERA BARU SDN BHD & ANOTHER APPEAL 1. Where there is privity of contract between a contractor and a third party concerning payment of contribution relating to a project, the party which engaged the contractor cannot be held responsible for the default in payment that the third party had agreed to pay the contractor. 2. Communications, meetings and discussions do not constitute sufficient acknowledgment of debt under s. 26 of the Limitation Act 1953. CONTRACT: Privity - Agreement with third party - Project for construction of road - Agreement reached between plaintiff and third party for payment of contribution - Third party failed to honour payment - Plaintiff commenced action against defendant to claim for contribution that is payable by third party - Whether third party was bound by agreement with plaintiff concerning payment of contribution - Whether defendant was responsible for payment - Whether defendant must make good third party's default - Whether plaintiff has cause of action against defendant LIMITATION: Accrual of cause of action - Acknowledgement of debt - Communications, meetings and discussions between parties - Whether communications, meetings and discussions constitute sufficient acknowledgment of debt - Whether plaintiff's claim time barred - Limitations Act 1953, s. 26 For the appellant - S Satharuban & Anne Sangeetha; M/s Satha & Co For the respondent - V Ganesalingam; M/s Ganesalingam Vijayaratnam & Aisha Jothilingan
[2018] 1 LNS 894	GP AUTOBAT SDN BHD v. BATTERY SOLUTIONS SDN BHD 1. A literal reading of a contract is not appropriate where the terms and conditions of the contract are not crystal clear or plain. The Court is entitled to take into consideration the background and surrounding circumstances of a contract where the language is unclear or there is doubt as to the meaning of terms used in the contract. 2. Annexures to a statement of claim cannot be treated as contemporaneous evidence to prove loss of profit as a result of a shortfall in the supply of grid panels by the defendant. The contemporaneous documentary evidence necessary to support such a claim is in the form of purchase orders, delivery orders, invoices and payment made. CONTRACT: Construction - Construction of terms of contract - Unclear language and doubt as to meaning of terms used - Whether court was entitled to take into consideration background and surrounding circumstances of contract - Whether literal reading of words or terms used in contract was appropriate CONTRACT: Breach - Damages - Loss of profit - Shortfall in supply of grid panels - Defendant purchased less grid panels than the amount allegedly agreed in contract - Whether defendant has agreed to a fixed monthly purchase of grid panels - Whether plaintiff has been paid for all grid panels supplied - Whether loss of profit proven EVIDENCE: Proof of - Damages - Loss of profit - Shortfall in supply of grid panel - Contemporaneous documents - Reliance on annexures to statement of claim - Whether plaintiff could rely on annexures to statement of claim to prove damages - Whether annexures to statement of claim were contemporaneous documents - What amounts to contemporaneous documents For the appellant - Gerald Samuel & Goik Kenzin; M/s Ramesh & Loo For the respondent - Harpal Singh Grewal, Harwinder Kaur Harbhajan Singh & Nahvinah Selvaraj; M/s Ariffin, Yeo & Harpal
[2019] 1 LNS 306	PP lwn. MUHAMAD ASRI YAHAYA Penemuan kad pengenalan tertuduh di dalam beg yang berisi dadah yang dijumpai di dalam bilik yang disewa oleh tertuduh jelas menunjukkan tertuduh mempunyai pengetahuan dan milikan terhadap dadah. Apabila tertuduh mempunyai kawalan atau jagaan keatas beg tersebut maka secara langsung anggapan pemilikan di bawah s. 37(d) Akta Dadah Berbahaya 1952 adalah terpakai. UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Pemilikan - Dadah dijumpai di dalam beg galas bersama kad pengenalan tertuduh - Hanya tertuduh menggunakan bilik di mana beg berisi dadah dijumpai - Sama ada tertuduh mempunyai jagaan dan kawalan ke atas dadah yang dijumpai di dalam beg - Sama ada anggapan di bawah ss. 37(d) dan 37(da) Akta Dadah Berbahaya 1952 terpakai - Sama ada dadah adalah untuk tujuan pengedaran PROSEDUR JENAYAH: Pembelaan - Pengetahuan - Dadah dijumpai di dalam beg galas bersama kad pengenalan tertuduh - Tertuduh mendakwa rumah disewa atas permintaan rakannya - Sama ada tertuduh telah memberikan penjelasan berkaitan penemuan beg di atas katil - Sama ada anggapan pemilikan di bawah ss. 37 (d) dan 37 (da)(iiia) Akta Dadah Berbahaya 1952 telah dipatahkan Bagi pihak tertuduh - B Murthy; T/n B Murthy & Co Bagi pihak pendakwaan - Zabidah Ahmad, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Kedah
[2019] 1 LNS 310	KOK LIN RUBBER SDN BHD lwn. MIRZAWATI AHMAD & SATU LAGI Pertikaian berkenaan tujuan bayaran wang oleh plaintif kepada defendan sebagai pemegang amanah merupakan satu isu yang perlu dibicarakan. PROSEDUR SIVIL: Penghakiman terus - Isu-isu untuk dibicarakan - Tuntutan plaintif untuk wang pemegang amanah - Pertikaian berkenaan tujuan bayaran wang oleh plaintif kepada defendan sebagai pemegang amanah - Sama ada tujuan bayaran wang sebagai pemegang amanah adalah adalah isu yang perlu dibicarakan Bagi pihak perayu/plaintif - KH Lee & Pei Nie Lau; T/n Pei Nie Lau & Company Bagi pihak responden/defendan - Zuriyah (menyebut bagi pihak); T/n Peter Miranda & Co

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CLJ 2020 Volume 6 (Part 5)

An employee who is employed on a continuous and unbroken fixed term contract spanning the company's consolidation into the successor company, is a permanent employee and short of gross misconduct or mutual agreement, such a contract cannot be prematurely terminated. The citizenship of an employee and the need for a work permit is irrelevant in determining the genuineness or otherwise of a fixed term contract and where necessary, lifting the corporate veil of the employer is appropriate to identify or establish the true labour relationship between the parties. 
Ahmad Zahri Mirza Abdul Hamid v. AIMS Cyberjaya Sdn Bhd [2020] 6 CLJ 557 [FC]

• SUBJECT
• CORAM
• COUNSEL

The rights of a joint management body or a management corporation to collect and receive payment from a parcel proprietor under ss. 33 and 77 of the Strata Management Act 2013, respectively, does not give it a lawful preference as a secured creditor over the assets of a company in liquidation.
Dubon Bhd v. Wisma Cosway Management Corporation [2020] 6 CLJ 589 [FC]

• SUBJECT
• CORAM
• COUNSEL

Dalam taksiran ganti rugi, dokumen-dokumen yang dirujuk hendaklah relevan dengan tuntutan. Dokumen-dokumen yang dijadikan sandaran dalam taksiran hendaklah jelas. Pihak-pihak yang membuat dokumen-dokumen ini juga semestinya dipanggil untuk memberi keterangan dan penjelasan terperinci agar tidak timbul pertikaian tentang cara pengiraan dan kesahan dokumen-dokumen dalam mencapai jumlah ganti rugi.
Integrated Training And Services Sdn Bhd lwn. Kerajaan Malaysia & Yang Lain [2020] 6 CLJ 605 [CA]

• SUBJECT
• CORAM
• COUNSEL

A party wishing to give effect to an arbitration clause in an agreement must ensure the stay application is filed at the soonest possible time before taking any other steps in the proceedings that would indicate an intention to proceed with the litigation in court. The filing of pleadings prior to making an application for a stay of the proceedings under s. 10(1) of the Arbitration Act 2005 clearly shows an intention to proceed with the trial.
Yeo Eng Lam v. Infinity Vantage Sdn Bhd [2020] 6 CLJ 616 [CA]

• SUBJECT
• CORAM
• COUNSEL

The repeal of s. 42 of the Arbitration Act 2005 is to apply retrospectively to close the door to a s. 42 challenge in respect of any award published on or after 8 May 2018. This is line with the intention of Parliament that awards are to be final and are not to be re-opened via the 'widened' judicial door of error of law, thus inviting a multitude of awards in pending arbitration proceedings coming before the High Court.
AMDAC (M) Sdn Bhd v. BYD Auto Industry Company Ltd [2020] 6 CLJ 625 [HC]

• SUBJECT
• CORAM
• COUNSEL

In order to succeed in an action for minority oppression, it must be shown that there had been unfair discrimination against the shareholder. The deprivation of the right to object to a validation order of share buy-back transactions does not result in any material prejudice to a  shareholder's rights and if no substantive prejudice can be established from the facts of a case, a shareholder may not avail itself of the remedies under s. 356 of the Companies Act 2016.  If a majority of the shareholders have already approved a proposed business merger transaction, any objection by the minority shareholder should not frustrate the will of the majority.  
Concrete Parade Sdn Bhd v. Apex Equity Holdings Bhd & Ors [2020] 6 CLJ 684 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. PAYMENT OF "WAGES FOR WORK DONE": A TALE OF TWO APPROACHES ^{[Read excerpt]}
   by John Mark* [2020] 1 LNS(A) lxxvi

[2020] 1 LNS(A) lxxvi



MALAYSIA

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PAYMENT OF "WAGES FOR WORK DONE": A TALE OF TWO APPROACHES

by
John Mark*

Introduction

Payment of salary is an integral part of an employment contract for the employee while for the employer the employee is required to duly perform his job. In a normal situation an employee works and gets paid for the work done. Essentially, Section 2 of the Employment Act 1955 says that wages are paid for “work done”. A unique situation arises when an employee is willing to work but the employer is unable to provide work temporarily due to an external factor which is not theemployer’s fault for example a major flood, the spread of infectious disease, riots, “Movement Control”(MCO), lockdown or curfews imposed by the government. The question arises whether the employer is obliged to pay salary or wages during such period. It appears that the answer to this conundrum is rather unclear. It is possible that this issue would be decided differently depending where it ends up, whether at the Labour Court or the Industrial Court, due to the fact that these “courts” interpret respective statutes; that is, the Employment Act 1955 and the Industrial Relations Act 1967.

. . .

*LL.B (Hons), Industrial and Employment Law Practitioner.

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2. CYBER PROTECTION ADVISING CLIENTS ON CYBER RISK INSURANCE* ^{[Read excerpt]}
   by AMY BURNS** [2020] 1 LNS(A) lxxvii

[2020] 1 LNS(A) lxxvii



AUSTRALIA

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CYBER PROTECTION
ADVISING CLIENTS ON CYBER RISK INSURANCE*

by
AMY BURNS**

Cyber incidents continue to be an increasing area of risk for organisations, and for lawyers it presents an opportunity to provide practical advice in an ever-changing landscape.

Cyber incidents have been a focus of national headlines over the last decade. Organisations regard electronically stored data as both an indispensable asset, and an area of growing risk and potential liability.

To address this surge in cyber incidents and cyber-related crime, insurance companies have been quick to formulate insurance policies. These policies are designed to protect organisations from third party claims against their business, and first-hand business expenses such as the costs of repairing and restoring systems.

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos Autumn 2020, Issue 255.

** Senior Legal Officer for the Australian Government, specialising in commercial law covering Information and Communications Technology. She has a wealth of experience advising clients across government agencies on complex commercial matters.

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