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Issue #36/2021 09 September 2021

New This Week Case(s) of the Week ALLIANCE BANK MALAYSIA BHD v. KHEE SAN FOOD INDUSTRIES SDN BHD & ANOR [2021] 8 CLJ 225 DATUK SERI SALAHUDDIN AYUB & ORS v. PERDANA MENTERI, TAN SRI DATO' HJ MAHIADDIN MD YASIN & ANOR [2021] 8 CLJ 260 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2021 Volume 8 (Part 2) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

ALLIANCE BANK MALAYSIA BHD v. KHEE SAN FOOD INDUSTRIES SDN BHD & ANOR [2021] 8 CLJ 225
HIGH COURT MALAYA, KUALA LUMPUR
WAN MUHAMMAD AMIN WAN YAHYA JC
[CIVIL SUIT NO: WA-22NCC-215-06-2020]
18 JUNE 2021

BANKING: Banker and customer - Duty of care - Whether Quincecare duty of care applied - Whether founded upon law of tort - Whether bank owed customer Quincecare duty of care - Whether bank has duty to inquire into commercial documents - Whether Quincecare duty only applies to instructions by customer involving customer's own account with bank

CIVIL PROCEDURE: Summary judgment - Application for - Banking - Whether there were triable issues - Rules of Court 2012, O. 14 r. 2

CIVIL PROCEDURE: Striking out - Counterclaim - Application for - Whether there was cause of action to initiate counterclaim - Whether abuse of process of court - Rules of Court 2012, O. 18 r. 19(1)(a), (b) & (d)

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DATUK SERI SALAHUDDIN AYUB & ORS v.
PERDANA MENTERI, TAN SRI DATO' HJ MAHIADDIN MD YASIN & ANOR [2021] 8 CLJ 260
HIGH COURT MALAYA, KUALA LUMPUR
AHMAD KAMAL MD SHAHID J
[JUDICIAL REVIEW NO: WA-25-32-01-2021]
14 JUNE 2021

ADMINISTRATIVE LAW: Judicial review - Mandamus - Proclamation of Emergency ('Proclamation') under art. 150(1) of Federal Constitution ('FC') by Yang di-Pertuan Agong acting upon advice of Prime Minister - Promulgation of Emergency (Essential Powers) Ordinance 2021 ('Ordinance') to control and reduce Coronavirus Disease 2019 (Covid-19) cases in Malaysia - Challenge against Proclamation and Ordinance - Whether mandamus order could be made to direct Prime Minister to lay Proclamation and Ordinance before both Houses of Parliament - Whether mandamus order could be made to direct Prime Minister to advise YDPA to summon meeting of Parliament for Proclamation and Ordinance to be laid before both Houses of Parliament

CONSTITUTIONAL LAW: Federal Constitution - Article 150 - Proclamation of Emergency ('Proclamation') under art. 150(1) of Federal Constitution ('FC') by Yang di-Pertuan Agong acting upon advice of Prime Minister - Promulgation of Emergency (Essential Powers) Ordinance 2021 ('Ordinance') to control and reduce Coronavirus Disease 2019 (Covid-19) cases in Malaysia - Challenge against Proclamation and Ordinance - Whether arts. 150(6) and 150(8) of FC constitutional - Whether Prime Minister under constitutional duty to advise YDPA to summon meeting of Parliament for Proclamation and Ordinance to be laid before both Houses of Parliament

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1. CT Bakti Timur Construction & Satu Lagi lwn. Tengku Mohammad Arif Raja Husin [2020] 1 LNS 64 (CA) menolak kes Tengku Mohammad Arif Raja Husin lwn. CT Bakti Timur Construction & Yang Lain [2018] 1 LNS 2238

2. Bintulu Lumber Development Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2020] 1 LNS 65 (CA) affirming the High Court case of Bintulu Lumber Development Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2017] 1 LNS 947

Legal Network Series

[2019] 1 LNS 938	PP lwn. SONIA KUMASEGARA Perbuatan tertuduh mengeposkan kotak berisi dadah yang diberikan oleh suami tertuduh tidak menunjukkan tertuduh mempunyai pengetahuan mengenai dadah dan kawalan serta jagaan sepanjang masa terhadap kotak tersebut. UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Tertuduh didakwa bersama suami - Pengetahuan - Dadah disimpan di dalam kotak mainan - Kotak ditutup rapi - Kotak diambil oleh suami tertuduh dari kereta dan diberikan kepada tertuduh untuk diposkan ke luar negara - Butir-butir penghantaran dan penerima barang telah diberikan oleh suami tertuduh - Suami tertuduh memberitahu tertuduh kandungan dadah dalam kotak selepas kotak diposkan - Sama ada tertuduh mempunyai pengetahuan mengenai dadah di dalam kotak semasa mengepos kotak - Sama ada tertuduh mempunyai kawalan dan jagaan sepanjang masa terhadap kotak - Sama ada perbuatan tertuduh mempunyai kaitan dengan pengedaran dadah Bagi pihak tertuduh/responden - LA Gomes; T/n Law Offices of LA Gomes, Meor Shazizi & Partners Bagi pihak pendakwaan - Nurul Izzah Mutalib, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang
[2019] 1 LNS 942	N INTERNATIONAL LTD lwn. AHMAD AFIFI AFFIQ KHALID & ORS Cap dagangan yang sama tidak boleh didaftarkan bagi produk kelas jenis yang berlainan. Perbezaan kelas jenis barangan semata-mata tidak memberi apa-apa kesan terhadap pendaftaran sesuatu cap dagangan. HARTA INTELEKTUAL: Kelirupaan - Cap dagangan - Persamaan pada cap dagangan - Plaintif mendakwa logo pada produk defendan menyerupai logo pada produk plaintif - Logo 'N' - Produk plaintif dilancarkan 2 minggu sebelum tindakan difailkan - Produk plaintif masih dalam proses pendaftaran - Sama ada plaintif mempunyai pemilikan eksklusif logo - Sama ada cap dagangan yang sama boleh digunakan bagi kelas jenis barangan yang berlainan - Sama ada terdapat persamaan di antara logo plaintif dan defendan yang boleh menyebabkan sebarang kekeliruan kepada pengguna PROSEDUR SIVIL: Pembatalan - Tindakan - Tindakan berasaskan kelirupaan cap dagangan - Plaintif mendakwa logo pada produk defendan menyerupai logo pada produk plaintif - Produk plaintif hanya dilancarkan 2 minggu sebelum tindakan difailkan - Logo yang dipertikaikan lebih mirip dengan cap dagangan yang telah didaftarkan atas nama pihak lain - Plaintif gagal memplidkan elemen-elemen kekeliruan - Sama ada tindakan plaintif boleh dipertahankan - Sama ada tindakan plaintif telah dihalang oleh s. 82(1) Akta Cap Dagangan 1976 Bagi pihak plaintif - Aswandi, Mohd Irwan Shah & Muhammad Syamir; T/n Aswandi Hashim & Co Bagi pihak responden - Azrul Hamid; T/n Azrul, Liew & Co
[2020] 1 LNS 21	TAN TAY VUI v. MC GLOBAL SDN BHD Section 30 of the Contracts Act 1950 provides that agreements are void where the meaning of the agreement is not certain, or not capable of being made certain. Therefore, the meaning of the agreement requires certainty and not particular words used in the agreement because the meaning of any of the words or terms in the agreement may be gleaned from reading the whole agreement, and not the particular words complained of in isolation. CONTRACT: Agreement - Terms - Certainty - Validity of joint venture agreement and deed of power of attorney - Words 'more or less' used to describe size of land to be developed - Whether words 'more or less' import meaning of indefiniteness - Whether uncertainty of words or terms in agreement rendered whole agreement void - Whether meaning of words or terms in agreement may be gleaned from reading whole agreement - Whether size of land to be developed was a material consideration in agreement - Whether there was clear identification of land and consideration CONTRACT: Agreement - Terms - Certainty - Validity of joint venture agreement and deed of power of attorney - Joint venture agreement to develop lands - Lands were described in terms of acres - Whether terms of agreement were in contravention to Weights and Measures Act 1972 and National Measurement System Act 2007 - Whether description of unit of measurement of land as 'acre' instead of 'hectares' had invalidated agreement - Whether s. 33 of Weights and Measures Act 1972 allows for conversion of old unit of measurement to new international system of units - Whether terms of agreement was certain within meaning and intent of s. 30 of Contracts Act 1950 CONTRACT: Breach - Joint venture agreement - Agreement to develop land - Allegation that access road built on road reserve instead of within land intended for development - Whether development was undertaken by reason of excess areas - Whether excess areas had been justifiably and adequately accounted for - Whether there was breach of agreement For the appellant - Kwan Khai Hee; M/s KH Kwan & Co Advocate For the respondent - Kevin Wong Heng Kim & Liew Mei Yee; M/s AY Partners (now WV Partners)
[2020] 1 LNS 23	DATO' MAT JAHYA HUSSIN & ANOR v. AMZED DEVELOPMENT SDN BHD An agreement to restrict a party from continuing legal proceedings is prohibited under s. 29 of the Contracts Act 1950. Once a legal proceeding has been commenced against a party for breach of an obligation to complete work within a stipulated time and while the legal proceeding is pending in court, no agreement should be entered between the parties to extend the time period to enable the party in breach to complete the obligation and withdraw the legal proceeding thereafter. CONTRACT: Joint venture - Joint venture agreement - Housing project - Terms - Variation on effective date of agreement - Parties decided to vary agreement by signing and stamping agreement before approvals of all relevant plans obtained - Whether subsequent conduct of parties could vary terms of an agreement - Whether agreement was effective from date of signing and stamping of agreement CONTRACT: Agreement - Agreement in restraint of legal proceedings - Joint venture agreement - Housing project - Legal proceedings commenced by landowners against developer for failure to deliver houses within completion period - Developer entered agreement with one of landowner and in exclusion of others to extend completion period of project and withdraw action - Agreement reached pending action in court - Whether agreement intended to restrict continuation with legal proceeding - Whether agreement in restraint of legal proceedings was void - Contracts Act 1950, s. 29 CIVIL PROCEDURE: Costs - Claim for - Costs for preparation of valuation report - Evidence on costs unchallenged - Whether plaintiff was entitled to full costs for preparation of valuation report For the plaintiffs - Zamri Ibrahim; M/s Zamri Ibrahim & Co For the defendant - Ho Yi Vern; M/s Gibb & Co
[2020] 1 LNS 24	BORNEO HIGHWAY PDP SDN BHD v. INTAN MARUDU SDN BHD Section 12(c) and (d) of the Construction Industry and Adjudication Act 2012 provide a strict and restrictive legislative timeline for the adjudicator to deliver his adjudication decision and as such the adjudicator cannot be expected to give comprehensive reasons for his adjudication decision. An adjudication decision will not be regarded as void merely because no reasons were given for the adjudication decision. CONSTRUCTION LAW: Adjudication - Setting aside - Adjudicator did not give reasons for adjudication decision - Adequacy or sufficiency - Whether adjudication decision was void for not containing reasons for adjudication decision - Whether comprehensive reasons required to be given by adjudicator - Whether provisions of s. 12(c) and (d) of Construction Industry and Adjudication Act 2012 requires adjudicator to provide reasons for his decision - Whether there was denial of natural justice - Whether adjudicator has acted in excess of his jurisdiction CONSTRUCTION LAW: Adjudication - Stay - Financial status of party in whose favour adjudication decision was made - Plaintiff alleged defendant was in a poor financial state and that any payment made would be irrecoverable - Plaintiff tendered summary of financial information contained in corporate information of defendant to support application - Financial information tendered to show state of finances before entering dealings - Whether presumption of continuity of financial standing was applicable - Whether there was sufficient evidence to conclude that defendant was insolvent or in poor financial state CIVIL PROCEDURE: Originating summons - Intitulement - Adjudication proceedings - Full name of adjudicator not stated in intitulement - All payment disputes were adjudicated by same adjudicator - Failure to refer to provisions of O. 69A of Rules of Court 2012 - Whether there was any doubt as to identity of adjudicator - Whether any prejudice and injustice has been caused to defendant For the plaintiff - Alicia Wong; M/s Raj & Co For the defendant - Norbert Yapp; M/s Norbert Yapp & Associates

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CLJ 2021 Volume 8 (Part 2)

The Federal Court, having decided on a crucial point which was not put to the parties against the applicant, ought to allow the applicant's application to review the decision as the Federal Court decision breached the rules of natural justice and occasioned a serious miscarriage of justice.
Nivesh Nair Mohan v. Dato' Abdul Razak Musa, Pengerusi Lembaga Pencegahan Jenayah & Ors [2021] 8 CLJ 163 [FC]

• SUBJECT
• CORAM
• COUNSEL

(1) The alienation of land by way of s. 76 of the National Land Code ('NLC') read with an option to renew clause in the lease does not give rise to a contractual lease between the State and the lessee. The option to renew clause forms part of the conditions that came with the lease granted to the lessee which is subject to the provisions of the NLC; it did not originate from a contractual bargain in the usual context of contract law which relates to private law remedy.
(2) Statutory lease is not subject to private law; the power to renew the lease conferred on the Director of Lands and Mines, an officer of the State Authority, is derived from the NLC and is exercised under the authority of the State to alienate lands as provided for, under the same. Therefore, the mode of approaching the court seeking a private law remedy is unsustainable.
YKK (Malaysia) Sdn Bhd v. Pengarah Tanah Dan Galian Johor [2021] 8 CLJ 179 [FC]

• SUBJECT
• CORAM
• COUNSEL

The Quincecare duty is a duty founded upon the law of tort or is otherwise said to be a tortious duty of care, if not contractual. There are qualifications for the applicability of the Quincecare duty. The Quincecare duty does not apply in all situations where there is a banker-customer relationship; it only applies to instructions by the customer involving the customer's own account with the bank.
Alliance Bank Malaysia Bhd v. Khee San Food Industries Sdn Bhd & Anor [2021] 8 CLJ 225 [HC]

• SUBJECT
• CORAM
• COUNSEL

Article 150(8) of the Federal Constitution shuts the court's doors from any challenge or application being made against a proclamation and the Ordinances enacted under emergency law. Therefore, the decision of the Yang di-Pertuan Agong, made pursuant to art. 150(1) and 150(2B) of the Federal Constitution, could not be challenged by way of judicial review.
Datuk Seri Salahuddin Ayub & Ors v. Perdana Menteri, Tan Sri Dato' Hj Mahiaddin Md Yasin & Anor [2021] 8 CLJ 260 [HC]

• SUBJECT
• CORAM
• COUNSEL

Motorists must always comply with the law pertaining to road traffic and hence, a driver without a valid driving licence, motor vehicle license and the policy of insurance against third-party risk should not be on the road, for to do so is illegal. The law cannot protect one who has no regard for the law. A motorist, having committed a wrong, ought not to be entitled to take advantage of his own wrong.
Mohd Shahril Abdul Rahman v. Ahmad Zulfendi Anuar [2021] 8 CLJ 292 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. LEGITIMACY OF CHILDREN BORN BY ARTIFICIAL INSEMINATION IN MALAYSIA:
   A LEGAL ANALYSIS OF SECTION 112 OF THE EVIDENCE ACT 1950 ^{[Read excerpt]}
   by Ahmad Masum^[i] Nehaluddin Ahmad^[ii] Nuarrual Hilal Md. Dahlan^[iii] [2021] 1 LNS(A) cxiii

[2021] 1 LNS(A) cxiii



MALAYSIA

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LEGITIMACY OF CHILDREN BORN BY ARTIFICIAL INSEMINATION IN MALAYSIA:
A LEGAL ANALYSIS OF SECTION 112 OF THE EVIDENCE ACT 1950

by
Ahmad Masum^[i]
Nehaluddin Ahmad^[ii]
Nuarrual Hilal Md. Dahlan^[iii]

Abstract

Whether a child begotten from artificial insemination is legitimate or illegitimate according to the law is an important question. In other words, the status of legitimacy or illegitimacy of a child is crucial as it will determine the child's entitlement to many rights, especially those within the family circle, such as maintenance, care and upbringing, inheritance, etc. A child is legitimate if its parents have intermarried when it is begotten or born. The fact that conception is effected not by adultery or fornication but by a method not involving sexual intercourse does not in principle seem to alter the concept of legitimacy. The paper aims to analyse the extent of the applicability of the legitimacy test laid down in section 112 can be easily interpreted to include Homologous Artificial Insemination (AIH) because, in this case, the husband is the biological or natural father of the child. The paper recommends a need to streamline the process of artificial insemination in Malaysia and address the legal, ethical as well as technical issues that follow by way of legislative intervention.

Keywords: Adultery, artificial insemination, assisted reproductive technology, Evidence Act, fornication, homologous artificial insemination, illegitimate, legitimate, sexual intercourse.

. . .

[i] Senior Assistant Professor, Faculty of Shariah and Law, Sultan Sharif Ali Islamic University, Jalan Pasar Baharu, Gadong BE1310, Bandar Seri Begawan, Negara Brunei Darussalam. Email: ahmad.masum@unissa.edu.bn or medi24my@yahoo.com.

[ii] Professor, Faculty of Shariah and Law, Sultan Sharif Ali Islamic University, Jalan Pasar Baharu, Gadong BE1310, Bandar Seri Begawan, Negara Brunei Darussalam. Email: ahmadnehal@yahoo.com.

[iii] Professor, School of Law, UUM College of Law, Government and International Studies, Universiti Utara Malaysia. Email: hilal@uum.edu.my or nuarrualhilal@gmail.com.

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2. 50 YEARS AFTER THE GOVE LAND RIGHTS JUDGMENT
   SIR RICHARD BLACKBURN AND ABORIGINAL RIGHTS^{+ [Read excerpt]}
   by Graeme Neate* [2021] 1 LNS(A) cxii

[2021] 1 LNS(A) cxii



AUSTRALIA

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50 YEARS AFTER THE GOVE LAND RIGHTS JUDGMENT
SIR RICHARD BLACKBURN AND ABORIGINAL RIGHTS⁺

by
Graeme Neate*

In April 1971, Justice Blackburn of the Northern Territory Supreme Court delivered the landmark judgment in Milirrpum v. Nabalco Pty Ltd, the Gove Aboriginal land rights case. On key questions of fact and law, he ruled against the plaintiffs' submissions. The decision was controversial, and provided an impetus for Aboriginal land rights legislation for the Northern Territory, legislation which his Honour recommended (albeit behind the scenes).

Although his rulings on fundamental legal issues, such as whether native title formed part of the common law of Australia, were subsequently reversed by the High Court of Australia in Mabo v. Queensland (No 2), aspects of his judgment have been quoted with approval, including by the High Court, over the past 50 years.

This lecture explores the context in which the judgment was delivered, Sir Richard Blackburn’s role in encouraging legislation to overcome the effect of the decision, and the circumstances in Australia and Canada in which the judgment has been quoted.

. . .

+Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 260 Winter 2021.

*Graeme Neate AM, President of the ACT Civil and Administrative Tribunal delivered the 35th Annual Sir Richard Blackburn Lecture during Law Week on 11 May 2021.

Endnotes**

**For complete endnotes, please refer to the full version of this paper, hosted on the Law Society website.

 

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