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Issue #1/2021
07 January 2021
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New This Week
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HIJAU BIRU ENVIROTECH SDN BHD v. TETUAN DZAHARA & ASSOCIATES & ORS [2021] 1 CLJ 186
COURT OF APPEAL, PUTRAJAYA
MARY LIM JCA; HAS ZANAH MEHAT JCA; S NANTHA BALAN JCA
[CIVIL APPEAL NO: W-04(NCvC)(W)-421-08-2019]
02 JULY 2020
There is an imperative need for every advocate and solicitor engaged in litigation work to practise constant risk management and vigilance in the handling of litigation files; a solicitor who has inexcusably absented himself in court to prosecute his client's case, or mishandled a request for adjournment, or failed to appeal against an appealable decision made against his client, or opted to pursue a course of action which constitutes an abuse of process, which in turn has resulted in the action being struck off or not reinstated, or being decided by default against his client, may be liable in professional negligence to his client, and may eventually have to bear the losses as so or might have been incurred by the client.
TORT: Negligence - Professional negligence - Negligence of solicitors - Right of client to terminate services of solicitors - Whether solicitors vigilant in handling of litigation files - Whether inactions or inadequacies by solicitors decimated client's chance of recovery - Whether trial judge misdirected himself in admitting order of Advocates and Solicitors Disciplinary Board - Whether solicitors liable for negligence
LEGAL PROFESSION: Duty of care - Negligence - Professional negligence of solicitors - Right of client to terminate services of solicitors - Whether solicitors vigilant in handling of litigation files - Whether inactions or inadequacies by solicitors decimated client's chance of recovery - Whether trial judge misdirected himself in admitting order of Advocates and Solicitors Disciplinary Board - Whether solicitors liable for negligence
DR H K FONG BRAINBUILDER PTE LTD v. SG-MATHS SDN BHD & ORS [2021] 1 CLJ 155
COURT OF APPEAL, PUTRAJAYA
KAMARDIN HASHIM JCA; KAMALUDIN MD SAID JCA; LAU BEE LAN JCA
[CIVIL APPEAL NO: W-02(IPCV)(W)-367-02-2018]
13 AUGUST 2020
Sections 4 and 6 of the Franchise Act 1998 and the words 'franchise', 'franchisor' and 'foreign franchisor' therein ought to be accorded a purposive approach as against other rules of interpretation. This being the case, any foreign franchise or franchisor, in order to lawfully participate in the franchise industry in this country, ought to be registered under the said two provisions of the Act. Where no such registration has been effectuated by the foreign franchisor, but the franchise agreements had nonetheless been executed between the foreign franchisor and its local franchisee, such agreements must come to naught as being void and unenforceable. It is to be noted, as exemplified by the facts herein, that where several agreements or documents form a single composite transaction, the illegality of one of the documents will taint the other. Such agreements or documents, by virtue of s. 24(a) and (b) of the Contracts Act 1950, are rendered void in their entirety.
CONTRACT: Agreement - Master license agreement - Breach of - Singaporean licensor entered into master license agreement ('MLA'), guarantee and power of attorney with licensee to operate and manage business in Malaysia - Allegations that licensee awarded sub-license to another, ran competing business with licensor and used licensor's confidential method to run business - Whether MLA franchise under Franchise Act 1998 - Whether franchise registered - Whether licensor 'foreign franchisor' - Whether there were breaches of provisions under Franchise Act 1998 - Whether franchise illegal, void and unenforceable under Contracts Act 1950 - Whether MLA, guarantee and power of attorney formed single composite transaction and tainted with illegality
HASSNAR HJ MP EBRAHIM v. MUSAH GHANI & ORS [2021] 1 CLJ 267
HIGH COURT SABAH & SARAWAK, SANDAKAN
CELESTINA STUEL GALID J
[SUIT NO: SDK-22NCvC-15-7-2016]
30 SEPTEMBER 2020
A plaintiff who has filed a claim for the recovery of land against 10 defendants on the basis of the tort of conspiracy and who has subsequently obtained a judgment in default (JID) against three of them is not entitled to rely on the said JID to prove his case or obtain an order for specific performance against the rest of the defendants. Such a plaintiff needs still to lead evidence in order to challenge the impugned transfer of the land or to prove the existence of a valid sale and purchase of the land in his favour. It must be so as the claim against the three defendants and the remaining defendants cannot be taken as separate or distinct from one another and are not therefore severable. A fortiorari when the rest of the defendants include the State Director of Land and Survey; a prayer for an alleged sale and purchase agreement of land to be specifically performed by the Director of Land and Survey and to compel him to exercise his discretion under s. 9(1) of the Sabah Land Ordinance, as it were, goes against the grain of s. 44 of the Specific Relief Act 1950 and is thus unsustainable in law.
LAND LAW: Ownership - Beneficial ownership - Claim for - Whether there was valid sale and purchase agreement capable of specific performance - Whether Director of Lands and Surveys could exercise discretion under s. 9(1) of Land Ordinance (Sabah) (Cap 68) - Whether there was deception and trickery involved to deprive plaintiff of land - Whether defendants conspired to inflict injury with common intention to cause plaintiff to suffer loss and damages - Whether plaintiff had constitutional right and legitimate expectation to have title to land be registered into his name - Whether plaintiff successfully established claim
CIVIL PROCEDURE: Judgment in default - Reliefs under judgment in default - Whether declaratory in nature - Whether judgment in default sustainable - Whether liable to be set aside
“Thus, whilst there is a slight difference in approach of appellate intervention, both the UK Supreme Court and our Federal Court effectively shares a common thread where it has been held that appellate intervention is justified where there is lack of judicial appreciation of evidence.”
“What is pertinent is that, the 'plainly wrong' test is not intended to be used by an appellate court as a means to substitute its own decision for that of the trial court on the facts.”
“It is to be observed that this court in Tengku Dato' Ibrahim Petra Tengku Indra Petra (supra) had referred to McGraddie (supra) and Henderson (supra) and has adopted the Henderson (supra) approach of the 'plainly wrong' test in determining whether the trial court's findings of fact is reversible upon appeal.”
“Hence following this court's ruling in Tengku Dato' Ibrahim Petra Tengku Indra Petra (supra) an appellate court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was 'plainly wrong' where in arriving at the decision it could not reasonably be explained or justified and so was one which no reasonable judge could have reached. If the decision did not fall within any of the aforesaid category, it is irrelevant, even if the appellate court thinks that with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge.” – per Zabariah Mohd Yusof FCJ in Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Administrator of the Estate of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1
Legal Network Series
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HID ASIA PASIFIC LIMITED (HID GLOBAL) lwn. MENTERI SUMBER MANUSIA & YANG LAIN Mahkamah Perusahaan Malaysia tidak mempunyai bidang kuasa luar wilayah untuk membuat keputusan yang melibatkan sebuah syarikat yang diperbadankan di luar Malaysia. Justeru, tindakan untuk membatalkan keputusan Menteri Sumber Manusia dan seterusnya mendapatkan perintah larangan terhadap Mahkamah Perusahaan dari mendengar representasi adalah tepat. UNDANG-UNDANG PENTADBIRAN: Semakan kehakiman - Certiorari - Permohonan oleh majikan untuk membatalkan keputusan Menteri Sumber Manusia yang telah merujuk representasi pekerja ke Mahkamah Perusahaan dan larangan terhadap Mahkamah Perusahaan dari mendengar representasi - Bidang kuasa luar wilayah - Majikan diperbadankan di Hong Kong - Sama ada Mahkamah Perusahaan Malaysia mempunyai bidang kuasa luar wilayah untuk membuat keputusan yang melibatkan sebuah syarikat di luar Malaysia - Sama ada isu bidang kuasa luar wilayah wajar diputuskan oleh Mahkamah Perusahaan - Sama ada tindakan untuk membatalkan keputusan Menteri Sumber Manusia dan seterusnya mendapatkan perintah larangan terhadap Mahkamah Perusahaan dari mendengar representasi adalah tepat
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ONE VISA SDN BHD lwn. LAPANGAN KOTA SDN BHD Tuntutan plaintif yang berasaskan tort pencerobohan tidak boleh dipertahankan apabila tanah yang didakwa dicerobohi telah diserah balik kepada kerajaan negeri untuk menjadi kawasan rezab. Kelewatan plaintif untuk membawa tindakan terhadap defendan terutama selepas tanah tersebut diserah balik kepada kerajaan negeri terjumlah kepada satu penyalahgunaan proses mahkamah. PROSEDUR SIVIL: Pembatalan - Tindakan - Tort pencerobohan - Sebahagian tanah yang didakwa diceroboh telah diserah balik kepada kerajaan negeri untuk menjadi kawasan rezab - Kelewatan dalam mengambil tindakan - Tindakan hanya diambil selepas tanah diserahkan kepada kerajaan negeri - Sama ada dokumen plaintif sendiri telah menidakkan dakwaan pencerobohan - Sama ada tuntutan plaintif mengaibkan, remeh dan menyusahkan - Sama ada kelewatan plaintif untuk membawa tindakan terjumlah kepada penyalahgunaan proses mahkamah - Sama ada tuntutan plaintif boleh dipertahankan - Sama ada tuntutan plaintif wajar dibatalkan
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LIM TOONG YEN lwn. SASITHARAN K GOVINDAN & YANG LAIN Pembinaan kuil dan perjalanan aktiviti keagamaan di atas tanah tanpa kebenaran pemilik dan pendulu hakmilik tanah merupakan satu pencerobohan. Kewujudan surat pemilik tanah kepada menteri besar meminta pertolongan untuk menyelesaikan masalah kuil, laporan-laporan polis berkenaan pencerobohan serta surat-surat meminta pihak pengurusan kuil untuk mengosongkan tanah jelas menunjukkan tiada kebenaran diberikan untuk membina kuil dan menjalankan aktiviti keagamaan di atas tanah. UNDANG-UNDANG TANAH: Pencerobohan - Milikan kosong - Pembinaan kuil di atas tanah kepunyaan plaintif - Defendan mendakwa kuil wujud lebih 50 tahun - Plaintif telah menulis kepada menteri besar meminta pertolongan untuk penyelesaian masalah kuil - Kewujudan laporan-laporan polis berkenaan pencerobohan dan surat-surat permintaan untuk mengosongkan tanah - Sama ada plaintif dan pendulu dalam hakmilik tanah telah memberikan kebenaran kepada defendan untuk membina kuil dan menjalankan aktiviti keagamaan di atas tanah plaintif - Sama ada defendan tanpa persetujuan plaintif secara salah memasuki tanah plaintif dan membina tapak kuil - Sama ada defendan telah menceroboh tanah plaintif
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ACESIDE (MALAYSIA) SDN BHD v. ZAINAL ABIDIN AHMAD A prohibitory order which was granted in favour of a judgment creditor to seize immovable property of a judgment debtor in order to secure payment of a judgment sum by itself is not an order for sale of property. A judgment creditor should seek an order for sale first before proceeding to file a notice seeking directions for sale of the property. CIVIL PROCEDURE: Foreclosure proceedings - Principles and procedures - Notice of direction filed before obtaining order for sale - Notice of direction filed assumes that there is already in place an order for sale - Notice of direction premised on prohibitory order which had effect of seizing judgment debtor's property to secure payment of judgment sum - Whether court may give directions for a sale which has not been ordered - Whether prohibitory order itself was an order for sale - Whether judgment creditor should have sought an order of sale first before seeking directions for sale
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RE: SULAIMAN SAHARI; EX-PARTE: HAFITZ KHALID & ANOR A pending action to set aside a consent judgment filed by a judgment debtor in which a creditor's petition was presented is not a ground to oppose the creditor's petition. To allow such ground would be an abuse of the court's process as any judgment debtor may apply to delay the granting of receiving and adjudication orders. BANKRUPTCY: Creditor's petition - Opposition - Bankruptcy proceedings premised upon consent judgment - Judgment debtor applied to set aside consent judgment merely on ground of pending application to set aside consent judgment - Whether Court could look behind an existing judgment - Whether creditor's petition could be set aside merely because there was a pending action to set aside consent judgment - Whether to allow such grounds to oppose a creditor's petition amounts to an abuse of process of court and delay in granting of receiving and adjudication orders
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CLJ 2021 Volume 1 (Part 2)
Sections 4 and 6 of the Franchise Act 1998 and the words 'franchise', 'franchisor' and 'foreign franchisor' therein ought to be accorded a purposive approach as against other rules of interpretation. This being the case, any foreign franchise or franchisor, in order to lawfully participate in the franchise industry in this country, ought to be registered under the said two provisions of the Act. Where no such registration has been effectuated by the foreign franchisor, but the franchise agreements had nonetheless been executed between the foreign franchisor and its local franchisee, such agreements must come to naught as being void and unenforceable. It is to be noted, as exemplified by the facts herein, that where several agreements or documents form a single composite transaction, the illegality of one of the documents will taint the other. Such agreements or documents, by virtue of s. 24(a) and (b) of the Contracts Act 1950, are rendered void in their entirety.
Dr H K Fong Brainbuilder Pte Ltd v. SG-Maths Sdn Bhd & Ors [2021] 1 CLJ 155 [CA]
CONTRACT: Agreement - Master license agreement - Breach of - Singaporean licensor entered into master license agreement ('MLA'), guarantee and power of attorney with licensee to operate and manage business in Malaysia - Allegations that licensee awarded sub-license to another, ran competing business with licensor and used licensor's confidential method to run business - Whether MLA franchise under Franchise Act 1998 - Whether franchise registered - Whether licensor 'foreign franchisor' - Whether there were breaches of provisions under Franchise Act 1998 - Whether franchise illegal, void and unenforceable under Contracts Act 1950 - Whether MLA, guarantee and power of attorney formed single composite transaction and tainted with illegality
KAMARDIN HASHIM JCA
KAMALUDIN MD SAID JC
LAU BEE LAN JCA
- For the appellant - Joy Appukuttan & Kelvynn Foo Wai Tzen; M/s KH Lim & Co
- For the respondents - Kok Pok Chin, Ong Hong Keit & Marcus Chong; M/s PC Kok & Co
There is an imperative need for every advocate and solicitor engaged in litigation work to practise constant risk management and vigilance in the handling of litigation files; a solicitor who has inexcusably absented himself in court to prosecute his client's case, or mishandled a request for adjournment, or failed to appeal against an appealable decision made against his client, or opted to pursue a course of action which constitutes an abuse of process, which in turn has resulted in the action being struck off or not reinstated, or being decided by default against his client, may be liable in professional negligence to his client, and may eventually have to bear the losses as so or might have been incurred by the client.
Hijau Biru Envirotech Sdn Bhd v. Tetuan Dzahara & Associates & Ors [2021] 1 CLJ 186 [CA]
TORT: Negligence - Professional negligence - Negligence of solicitors - Right of client to terminate services of solicitors - Whether solicitors vigilant in handling of litigation files - Whether inactions or inadequacies by solicitors decimated client's chance of recovery - Whether trial judge misdirected himself in admitting order of Advocates and Solicitors Disciplinary Board - Whether solicitors liable for negligence
LEGAL PROFESSION: Duty of care - Negligence - Professional negligence of solicitors - Right of client to terminate services of solicitors - Whether solicitors vigilant in handling of litigation files - Whether inactions or inadequacies by solicitors decimated client's chance of recovery - Whether trial judge misdirected himself in admitting order of Advocates and Solicitors Disciplinary Board - Whether solicitors liable for negligence
MARY LIM JCA
HAS ZANAH MEHAT JCA
S NANTHA BALAN JCA
- For the appellant - Devinder Singh & Balvinder Singh; M/s Shahrul Balvinder & Co
- For the respondents - Dzahara Mit Dahlan; M/s Dzahara & Assocs
In construing the terms of contract entered into between contracting parties, the court shoulders the responsibility of seeking the true intention of the parties involved and their bargains and not rewrite the contract by importing new terms or go behind what is already enshrined in the contract. Where several contracts are contemporaneously executed, these contracts would form a single transaction and must be read together for a full comprehension. It is only after reference is made to all the contracts that their meaning, purport, aim and object could be revealed and achieved.
Tay Yew Chong v. Koh Hooi Siang & Ors [2021] 1 CLJ 221 [CA]
CONTRACT: Construction - Legal principles of construing contract - Sale and purchase agreement - Parties entered into sale and purchase agreement ('SPA') for sale of property and executed supplemental agreement and personal guarantee - Whether agreements contemporaneously executed and formed single transaction - Whether to be read together - Meaning, purport, aim and object of agreements - Whether agreements entered into involved loan transaction or sale and purchase of property
CONTRACT: Agreement - Breach - Parties entered into sale and purchase agreement for sale of property and executed supplemental agreement and personal guarantee - Lender/purchaser to give loan to vendor/borrower under agreements and not purchase nor transfer ownership of property - Borrower to repay loan sum within stipulated time - Allegation that purchaser failed to make full payment of purchase price and unlawfully transferred property to own name before expiry of repayment period - Whether agreements entered into involved loan transaction or sale and purchase of property - Whether agreements enforceable and valid - Whether transfer of property to lender/purchaser valid - Whether there was breach of terms of agreements
VERNON ONG LAM KIAT JCA
NOR BEE ARIFFIN JCA
HAS ZANAH MEHAT JCA
- For the appellant - Ranjit Singh, Villie Nethi, Abd Halim & Louis Liaw Vern Xien; M/s Ramrais & Partners
- For the respondents - Malathi Krishnan; M/s Mal Krishnan & Co
A decision which is not predicated upon the pleaded case is perverse and may be disturbed on appeal. Hence, where the plaintiffs who have sought to purchase a brand new car claimed for damages upon the specific allegation that they had been delivered a show room car, the decision of the trial judge allowing the claim on the basis that the said car was one that was manufactured a year earlier, and was therefore not new, is tantamount to allowing a claim on an unpleaded fact and is therefore wrong in law; more so, when the conclusion about the year of the manufacture of the car was obtained not from viva voce or judicial evidence, but merely from information downloaded from the internet.
Actmar Sdn Bhd v. Normah Salijan & Another Appeal [2021] 1 CLJ 247 [HC]
CONTRACT: Misrepresentation - Sale and purchase of car - Claim for damages - Purchaser discovered dissatisfactory conditions day after delivery of car - Allegations that car not new but was showroom car - Whether there was evidence that purchaser given showroom car - Whether there was misrepresentation by seller that car was new - Whether purchaser established claim premised upon misrepresentation - Whether claim for damages substantiated
CONTRACT: Agreement - Hire purchase agreement - Misrepresentation - Purchaser and bank entered into hire purchase agreement for purchase of car - Purchaser discovered dissatisfactory conditions day after delivery of car - Allegations that car not new but was showroom car - Purchaser informed bank to withhold balance of purchase price to seller but bank proceeded to release - Whether there was misrepresentation by bank to purchaser that car was new - Whether purchaser had cause of action in misrepresentation against bank
CIVIL PROCEDURE: Pleadings - Misrepresentation - Sale and purchase of car - Claim for damages - Purchaser discovered dissatisfactory conditions day after delivery of car - Allegations that car not new but showroom car - Claim allowed on basis that purchaser succeeded in proving case as car was not new but manufactured in previous year - Whether decision based on pleaded case of purchaser - Whether claim allowed based on unpleaded facts - Whether there was appealable error
ALICE LOKE YEE CHING JC
- For the appellant - Sugandra Rao Naidu; M/s Rao & Co
- For the respondent - Muhammad Syafiz Shahar; M/s Azreen Ardin Shah, Razif & Partners
- For the appellant - Tan Hong Kait; M/s Sidek Teoh Wong & Dennis
- For the 1st & 2nd respondents - Muhammad Syafiz Shahar; M/s Azreen Ardin Shah, Razif & Partners
- For the 3rd respondent - Sugandra Rao Naidu; M/s Rao & Co
A plaintiff who has filed a claim for the recovery of land against 10 defendants on the basis of the tort of conspiracy and who has subsequently obtained a judgment in default (JID) against three of them is not entitled to rely on the said JID to prove his case or obtain an order for specific performance against the rest of the defendants. Such a plaintiff needs still to lead evidence in order to challenge the impugned transfer of the land or to prove the existence of a valid sale and purchase of the land in his favour. It must be so as the claim against the three defendants and the remaining defendants cannot be taken as separate or distinct from one another and are not therefore severable. A fortiorari when the rest of the defendants include the State Director of Land and Survey; a prayer for an alleged sale and purchase agreement of land to be specifically performed by the Director of Land and Survey and to compel him to exercise his discretion under s. 9(1) of the Sabah Land Ordinance, as it were, goes against the grain of s. 44 of the Specific Relief Act 1950 and is thus unsustainable in law.
Hassnar Hj MP Ebrahim v. Musah Ghani & Ors [2021] 1 CLJ 267 [HC]
LAND LAW: Ownership - Beneficial ownership - Claim for - Whether there was valid sale and purchase agreement capable of specific performance - Whether Director of Lands and Surveys could exercise discretion under s. 9(1) of Land Ordinance (Sabah) (Cap 68) - Whether there was deception and trickery involved to deprive plaintiff of land - Whether defendants conspired to inflict injury with common intention to cause plaintiff to suffer loss and damages - Whether plaintiff had constitutional right and legitimate expectation to have title to land be registered into his name - Whether plaintiff successfully established claim
CIVIL PROCEDURE: Judgment in default - Reliefs under judgment in default - Whether declaratory in nature - Whether judgment in default sustainable - Whether liable to be set aside
CELESTINA STUEL GALID J
- For the plaintiff - Ansari Abdullah; M/s Ansari & Co
- For the 1st & 2nd defendants - Hamida Ambo; M/s Ambo & Co
- For the 6th-9th defendants - Mohammad Abdul Sani & Mohammad Ikhwan Ramlan; Senior State Counsel, Sarawak
Seorang tertuduh yang didakwa di mahkamah dengan pertuduhan jenayah wajar dilepas dan dibebaskan sepenuhnya jika pertuduhan ditarik balik oleh pendakwaan tanpa memberikan apa-apa alasan bagi keputusannya itu. Perintah 'Discharge Not Amounting to an Acquittal' yang dibuat oleh Majistret di sini walaupun pendakwaan memilih untuk tidak meneruskan pendakwaan tanpa apa-apa alasan dikemukakan baginya adalah khilaf dan merupakan suatu salah arahan. Perintah tersebut perlu diusik dan diubah kepada suatu perintah "Discharge Amounting to an Acquittal' bagi melepas dan membebaskan tertuduh sepenuhnya dari pertuduhan yang dihadapi.
Maya Ahmad Fuaad lwn. PP [2021] 1 CLJ 291 [HC]
PROSEDUR JENAYAH: Pertuduhan - Perintah dilepaskan tanpa dibebaskan - Pendakwa Raya memohon pendakwaan terhadap tertuduh dihentikan - Majistret memerintahkan tertuduh dilepaskan tanpa dibebaskan - Sama ada Majistret terkhilaf dari segi fakta dan undang-undang - Sama ada Majistret sepatutnya memerintahkan tertuduh dilepaskan dan dibebaskan - Kanun Tatacara Jenayah, s. 254
PROSEDUR JENAYAH: Semakan - Semakan terhadap keputusan Majistret - Tertuduh dituduh di Mahkamah Majistret kerana membuat laporan palsu pada pihak polis - Pendakwa Raya memohon pendakwaan terhadap tertuduh dihentikan - Majistret memerintahkan tertuduh dilepaskan tanpa dibebaskan - Sama ada Majistret terkhilaf dari segi fakta dan undang-undang - Sama ada Majistret sepatutnya memerintahkan tertuduh dilepaskan dan dibebaskan - Kanun Tatacara Jenayah, ss. 254, 307(1) & 325
ZULKIFLI BAKAR H
- Bagi pihak tertuduh - Kamarul Hisham Kamarudin; T/n The Chambers of Kamarul Hisham & Hasnal Rezua
- Bagi pihak pendakwaan - Siti Rohaida Che Hamid; TPR
Where circumstances have removed or changed the subject of the disputes in an action, and rendered it academic, the decision by a party to withdraw or discontinue the action cannot be equated with defeat or an acknowledgment of likely defeat of the action. It would be unfair and unjust therefore to penalise the party commencing such action to pay costs of the action; in such circumstance, each party should be ordered to bear its own costs.
Yong Teck Lee & Anor v. Amarjit Singh [2021] 1 CLJ 300 [HC]
CIVIL PROCEDURE: Action - Withdrawal - Whether party to bear own costs - Whether withdrawal of action could be safely equated with defeat or acknowledgment of likely defeat - Whether action plainly and obviously unsustainable - Whether justified for plaintiffs to be ordered to pay defendant costs of action - Whether unjust to penalise plaintiffs to pay costs of action - Whether each party ought to bear own costs
CIVIL PROCEDURE: Costs - Withdrawal of action - Whether party to bear own costs - Whether withdrawal of action could be safely equated with defeat or acknowledgment of likely defeat - Whether action plainly and obviously unsustainable - Whether justified for plaintiffs to be ordered to pay defendant costs of action - Whether unjust to penalise plaintiffs to pay costs of action - Whether each party ought to bear own costs
WONG SIONG TUNG JC
- For the plaintiffs - Yong Yit Yee & Darren Punai; M/s Yong & Punai Chambers
- For the defendant - Christopher Chong; M/s Lind Willie Wong & Chin
LNS Article(s)
HONESTLY, WHAT IS DISHONESTY? [Read excerpt]
by Harcharan Singh Ujagar Singh* [2021] 1 LNS(A) iAN OVERVIEW ON LAW OF EVIDENCE FOR CASES UNDER PHARMACY ENFORCEMENT DIVISION [Read excerpt]
by ONG GUAN BOON* ZUHAIR BIN ROSLI** [2021] 1 LNS(A) iiSABAH LEGISLATIVE ASSEMBLY DISSOLVED: ANTI-HOPPING LAW IN HINDSIGHT? [Read excerpt]
by Jeremy Ho* Yong Yit Jee** [2021] 1 LNS(A) iiiUNWRITTEN RULE OF EMPLOYMENT - LOYALTY TOWARDS THE COMPANY [Read excerpt]
by Louis Liaw Vern Xien* [2021] 1 LNS(A) iv
Principal Acts
| Number | Title | In force from | Repealing |
| ACT 831 | Finance Act 2020 | The Income Tax Act 1967 [Act 53] see s 3, the Real Property Gains Tax Act 1976 [Act 169] see s 31, the Stamp Act 1949 [Act 378] see s 39, the Petroleum (Income Tax) Act 1967 [Act 543] see s 51, the Labuan Business Activity Tax Act 1990 [Act 445] see s 55, the Finance Act 2012 [Act 742] see s 63 and the Finance Act 2018 [Act 812] see s 65 | - |
| ACT 830 | Temporary Measures For Government Financing (Coronavirus Disease 2019 (COVID-19)) Act 2020 | 27 February 2020 until 31 December 2022 except s 3; 26 October 2020 until 31 December 2022 - s 3 | - |
| ACT 829 | Temporary Measures For Reducing The Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 | Part I - 23 October 2020 (shall continue for a period of two years); Part II, Part III (Limitation Act 1953), Part IV (Sabah Limitation Ordinance), Part V (Sarawak Limitation Ordinance), Part VI (Public Authorities Protection Act 1948), Part IX (Consumer Protection Act 1999), Part X (Distress Act 1951) - 18 March 2020 until 31 December 2020; Part VII (Insolvency Act 1967) - 23 October 2020 until 31 August 2021; Part VIII (Hire-Purchase Act 1967) - 1 April 2020 until 31 December 2020; Part XI (Housing Development (Control and Licensing) Act 1966), Part XII (Industrial Relations Act 1967), Part XIII (Private Employment Agencies Act 1981), Part XIX - 18 March 2020; Part XIV (Land Public Transport Act 2010), Part XV (Commercial Vehicles Licensing Board Act 1987) - 1 August 2020 until 31 December 2021; Part XVI (Courts of Judicature Act 1964), Part XVII (Subordinate Courts Act 1948), Part XVIII (Subordinate Courts Rules Act 1955) - 18 March 2020 until 23 October 2020 (shall continue for a period of two years) | - |
| ACT 828 | National Land Code (Revised 2020) | 15 October 2020 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 14 October 2020; First enacted in 1965 as Act of Parliament No 56 of 1965 | - |
| ACT 827 | Currency Act 2020 | 1 October 2020 [PU(B) 476/2020] | - |
Amending Acts
| Number | Title | In force from | Principal/Amending Act No |
| ACT A1632 | Service Tax (Amendment) Act 2020 | 1 January 2021 [PU(B) 716/2020] | ACT 807 |
| ACT A1631 | Sales Tax (Amendment) Act 2020 | 1 January 2021 [PU(B) 715/2020] | ACT 806 |
| ACT A1630 | Free Zones (Amendment) Act 2020 | 1 January 2021 [PU(B) 719/2020] | ACT 438 |
| ACT A1629 | Excise (Amendment) Act 2020 | 1 January 2021 [PU(B) 718/2020] | ACT 176 |
| ACT A1628 | Customs (Amendment) Act 2020 | 1 January 2021 [PU(B) 717/2020] | ACT 235 |
PU(A)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(A) 395/2020 | Stamp Duty (Exemption) (No. 5) 2013 (Amendment) Order 2020 | 31 December 2020 | 1 January 2021 | PU(A) 91/2013 |
| PU(A) 394/2020 | Co-Operative Societies (Exemption) Order 2020 | 31 December 2020 | 1 January 2021 | ACT 502 |
| PU(A) 393/2020 | Trademarks (Waiver and Modification of Fee) Regulations 2020 | 30 December 2020 | 1 January 2021 | ACT 815 |
| PU(A) 392/2020 | Patents (Waiver of Fee) Regulations 2020 | 30 December 2020 | 1 January 2021 | ACT 291 |
| PU(A) 391/2020 | Employees Provident Fund (Amendment) (No. 3) Rules 2020 | 30 December 2020 | 1 January 2021 | PU(A) 493/1991 |
PU(B)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(B) 665/2020 | Fatwa Under Section 34 | 2 December 2020 | 3 December 2020 | ACT 505 |
| PU(B) 664/2020 | Notice To Third Parties | 1 December 2020 | 2 December 2020 | ACT 613 |
| PU(B) 663/2020 | Declaration of Vacations of The High Court In Malaya | 1 December 2020 | 2 December 2020 | PU(A) 326/1985 |
| PU(B) 662/2020 | Declaration of Commencement and Duration of Vacations of The Court of Appeal | 1 December 2020 | 2 December 2020 | PU(A) 539/1994 |
| PU(B) 661/2020 | Vacations of The Federal Court | 1 December 2020 | 2 December 2020 | PU(A) 150/1996 |
Legislation Alert
Updated
| Act/Principal No. | Title | Amended by | In force from | Section amended |
| PU(A) 409/2001 | Employees Provident Fund Regulations 2001 | PU(A) 390/2020 | 1 January 2021 | Regulation 5A |
| ACT 452 | Employees Provident Fund Act 1991 | PU(A) 387/2020 | 1 January 2021 to 31 December 2021 | Third Schedule |
| AKTA 812 | Akta Kewangan 2018 | AKTA 831 | Akta Cukai Pendapatan 1967 [Akta 53] lihat s. 3; Akta Cukai Keuntungan Harta Tanah 1976 [Akta 169] lihat s. 31; Akta Setem 1949 [Akta 378] lihat s. 39; Akta Petroleum (Cukai Pendapatan) 1967 [Akta 543] lihat s. 51; Akta Cukai Aktiviti Perniagaan Labuan 1990 [Akta 445] lihat s. 55; Akta Kewangan 2012 [Akta 742]lihat s. 63; dan Akta Kewangan 2018 [Akta 812] lihat s. 65 | Seksyen 3 |
| AKTA 742 | Akta Kewangan 2012 | AKTA 831 | Akta Cukai Pendapatan 1967 [Akta 53] lihat s. 3; Akta Cukai Keuntungan Harta Tanah 1976 [Akta 169] lihat s. 31; Akta Setem 1949 [Akta 378] lihat s. 39; Akta Petroleum (Cukai Pendapatan) 1967 [Akta 543] lihat s. 51; Akta Cukai Aktiviti Perniagaan Labuan 1990 [Akta 445] lihat s. 55; Akta Kewangan 2012 [Akta 742]lihat s. 63; dan Akta Kewangan 2018 [Akta 812] lihat s. 65 | Seksyen 3 |
| ACT 445 | Labuan Business Activity Tax Act 1990 | AKTA 831 | Akta Cukai Pendapatan 1967 [Akta 53] lihat s. 3; Akta Cukai Keuntungan Harta Tanah 1976 [Akta 169] lihat s. 31; Akta Setem 1949 [Akta 378] lihat s. 39; Akta Petroleum (Cukai Pendapatan) 1967 [Akta 543] lihat s. 51; Akta Cukai Aktiviti Perniagaan Labuan 1990 [Akta 445] lihat s. 55; Akta Kewangan 2012 [Akta 742] lihat s. 63; dan Akta Kewangan 2018 [Akta 812] lihat s. 65 | Seksyen 2B, 3A, 6D, 13A, 13B, 20 dan 24 |
Revoked
| Act/Principal No. | Title | Revoked by | In force from |
| PU(B) 166/2019 | Exemption Under Section 65U | PU(B) 592/2020 | 15 November 2020 |
| PU(A) 298/2019 | Co-Operative Societies (Assumption of Control) (Appointment) (No. 4) Order 2019 | PU(A) 332/2020 | 30 November 2020 |
| PU(A) 229/2020 | Co-Operative Societies (Assumption of Control of Koperasi Automobil Kuching Sarawak Berhad) (Reappointment) Order 2020 | PU(A) 331/2020 | 30 November 2020 |
| PU(A) 31/2011 | Malaysia Deposit Insurance Corporation (Protected Benefits) Regulations 2011 | PU(A) 327/2020 | 1 January 2021 |
| PU(A) 27/2011 | Malaysia Deposit Insurance Corporation (Protected Benefits Limit) Order 2011 | PU(A) 326/2020 | 1 January 2021 |