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Issue #36/2022
08 September 2022
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CASE(S) OF THE WEEK
AMGENERAL INSURANCE BHD v. SA' AMRAN ATAN & ORS AND OTHER APPEALS [2022] 8 CLJ 175 The Road Transport Act 1987 must be construed to protect innocent third party road users against risks caused by motor vehicles. In a claim involving motorist and insurance companies, the court is bound to weigh the competing interests of both parties to ensure that neither party is victimised by the other. In the event that the loss has to be borne by a party, that party has to be the insurance company, as it is compulsory for all vehicle owners to obtain insurance coverage in order for the Road Transport Department to issue road taxes for the motorists; the insurer should automatically step in and indemnify the victim, without the victim having to sue the insurer. INSURANCE: Motor insurance - Insurer's liability - Principles of uberrimae fidei - Whether breached by insured - Whether third party insurance policy rendered null and void and unenforceable - Whether fraud established against insured - Whether finding of liability against insurer by trial court negated allegation of fraud - Whether insurer entitled to deny liability to innocent third party claimant INSURANCE: Third party rights against insurer - Claim under policy - Third party risks insurance policy - Failure by insured to notify insurer of sale of vehicle - Whether insurer absolved from liability - Whether transfer of ownership effected upon sale of vehicle - Whether transfer of interest same as transfer of ownership - Whether lawful transfer of ownership can only be established by proof of registration under s. 13(1) of Road Transport Act 1987 - Whether non-compliance with s. 13 rendered registered owner liable for negligent act or omission of driver - Whether insurer still liable to indemnify registered owner despite insured ceased to have insurable interest INSURANCE: Third party rights against insurer - Claim under policy - Application pursuant to s. 96(3) of Road Transport Act 1987 by insurer - Whether insurer bound to serve cause papers relating to application upon third party claimant before judgment obtained by third-party claimant against insured and tortfeasor - Whether failure to serve cause papers rendered insurer's repudiation of insurance policy unsustainable in law WORDS & PHRASES: 'proceedings' - Road Transport Act 1987 ('RTA') , s. 109(2) - Interpretation of - Whether applies to civil and criminal proceedings alike - Claim for damages by third party claimant arising from accident involving motor vehicle covered by third party risks insurance policy issued pursuant to s. 90 of RTA - Whether 'lawsuit' and not prosecution - Whether 'proceedings' within meaning of s. 109(2) JUDICIAL QUOTESQuote 1: “No less than three witnesses, namely Rizal, Mahdzir and Madinah, have positively identified the voices in the recording as that of Najib and the accused. These three are familiar with Najib and the accused’s voices. I do not doubt that they were right. The accused had attempted to downplay the conversation in the recording by relating it to a typical discussion between a husband and wife. It, however, was no ordinary conversation between spouses, for it was about government affairs. It is clear from the audio recording that the accused gave instructions to Najib on government affairs. Her tone was commanding and contrary to her contention that she heeded Najib’s prohibition on not meddling in government affairs. I say this with the greatest of respect, but it is apparent that the accused dominates Najib. She has control over him. She had no business interfering in Najib’s duties or the government’s affairs, but she did.” Quote 2: “In my opinion, Mahdzir attempted to do the right thing. Bearing that Saidi was a close friend, he could have easily cleared the path for Jepak’s benefit. The evidence shows that Mahdzir wanted Jepak to go through the proper process. He did not want to circumvent the Ministry’s procedure. He had even gone to the extent of trying to persuade Najib on two occasions personally. On the first occasion, Mahdzir tried to convince Najib to use an open tender for the project and not through direct negotiations with Jepak. Najib was adamant and told him to carry out his instructions. On the second occasion, Mahdzir advised Najib to defer the issuance of the letter of award to Jepak as the latter had not met many of the Ministry’s requirements. Mahdzir also complained to Najib of Saidi and Rayyan’s incessant harassment and disrespectful attitude toward him as a Minister. Nevertheless, Najib again ignored his plea and instructed him to follow his instructions.” - Per Mohamed Zaini Mazlan J in PP v. Rosmah Mansor [2022] 1 LNS 1964 APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2022 Volume 7 (Part 6) When a court order has already found the respondents liable and ordered assessment of various heads of damages, there is no longer any need to further probe the issue of liability by another court. A proper assessment ought to be made on the quantum of damages, such as taking into account the evidence of an expert and impartial witness in awarding general damages and considering whether there was oppressiveness or unconstitutional conduct justifying the award of exemplary damages. TORT
TORT: Damages - Assessment - Quantum of - Claimants ordered to vacate holdings in palm oil plantation scheme - Whether claimants entitled to damages - Whether there was negligence and breach of fiduciary duties - Whether High Court erred in dismissing claimants' claim for damages - Whether High Court acted in excess of jurisdiction by reopening issue of liability - Whether irrelevant considerations taken into account - General damages - Whether ought to be awarded - Whether there was oppressiveness or unconstitutional conduct justifying award of exemplary damages
SURAYA OTHMAN JCA
There is no requirement under the National Land Code ('NLC') for a co-proprietor who wishes to terminate his co-proprietorship on a piece of land to show that he had applied for the land to be partitioned, but the application was rejected, before he can come to court. The co-proprietors ought not to be barred from applying to terminate their co-proprietorship under s. 145(1) of the NLC, which states that 'any of the co-proprietors' may apply for the co-proprietorship in the land to be terminated. The court also has the power to direct a sale instead of partition pursuant to s. 25 and para. 3 of the Schedule to the Courts of Judicature Act 1964 and O. 31 of the Rules of Court 2012. LAND LAW
LAND LAW: Ownership - Joint ownership of land - Termination of co-proprietorship - Application for - Whether there was failure to satisfy requirements under s. 145(1) of National Land Code - Whether co-proprietor wishing to terminate has to apply for land to be partitioned before coming to court - Whether court has power to direct sale of land pursuant to s. 25 and para. 3 of Schedule to Courts of Judicature Act 1964 - Rules of Court 2012, O. 31 r. 1
KAMALUDIN MD SAID JCA
The agent, despite not having the requisite approved permits, was authorised by the respondent to run and manage a reconditioned automobiles warehouse using the respondent's approved permits. In the circumstances, where the agent could not deal with the respondent's approved permits without the involvement of the respondent, the respondent could not later backtrack to say that it had no knowledge of the agent nor the agent's dealings. Any act by the agent, while dealing with the respondent's approved permits with third parties, made him the respondent's agent. The respondent was therefore liable for the actions of the said agent. CONTRACT
CONTRACT: Agreement - Credit facility agreements - Parties entered into agreements for financing of import of reconditioned automobiles - Facility provider entered into agreements with agent or chief executive officer ('CEO') of company - Default in repayment - Allegation that person who entered into agreements had no authority to enter into agreements on behalf of company - Whether person agent/CEO - Whether company allowed agent/CEO to obtain trade credit facility from facility provider - Whether Turquand's Rule could be relied on - Whether agreements valid as facility provider did not have requisite licence to provide moneylending with interests - Companies Act 2016, s. 39 - Contracts Act 1950 - Moneylenders Act 1951
NOR BEE ARIFFIN JCA
One who is entrusted to hold a property on trust for the benefit of beneficiaries of the estate, lacks the capacity to transfer the rights, title and interest in the property to a third person. Therefore, any transfer of rights, title and interest in the property obtained by way of void instrument for lack of capacity, would be rendered void and invalid and therefore, defeasible under s. 340(2)(b) of the National Land Code. LAND LAW | LIMITATION
LAND LAW: Transfer - Validity of - Transfer of land by trustee to nephew on consideration of love and affection - Admission by trustee by way of consent judgment that land held in trust - Whether trustee lacked capacity to transfer beneficial interest in land - Whether registration of title effected by means of void instrument - Whether defeasible - National Land Code, s. 340(2)(b) LIMITATION: Land - Recovery of - Transfer of land by trustee to nephew on consideration of love and affection - Whether trustee lacked capacity to transfer beneficial interest in land - Whether registration of title effected by means of void instrument - Whether application defeated by limitation - Whether applicable period of limitation for recovery of land action was 12 years - National Land Code, s. 340(2)(b) - Limitation Act 1953, ss. 9(1) & 22(2)
AZIZUL AZMI ADNAN J
The power to interpret constitutional provisions is not exclusive to the Federal Court. Under the constitutional scheme, the Federal Court is generally a court of last resort for all constitutional questions. It is only in a narrow category of exceptional cases - those expressly stipulated in art. 128(1) of the Federal Constitution - that such questions must be determined by the Federal Court at first instance. CIVIL PROCEDURE
CIVIL PROCEDURE: Jurisdiction - High Court - Reference of constitutional questions to Federal Court - Power to interpret constitutional provisions - Whether constitutional questions within ambit of Federal Court's jurisdiction and determination - Whether applications fell within jurisdiction of High Court - Whether application to refer constitutional questions could be allowed - Federal Constitution, art. 128 - Courts of Judicature Act 1964, s. 84
AHMAD KAMAL MD SHAHID J (Case No: WA-24-6-02-2021)
A striking out application ought to be allowed only when an applicant has demonstrated that the other party's case discloses no reasonable cause of action for bringing the action in the first place, or it would be an abuse of process to allow it to continue, or that the action is scandalous, frivolous or vexatious or otherwise an abuse of the process of the court. CIVIL PROCEDURE
CIVIL PROCEDURE: Originating summons - Declaratory orders - Declaration of right - Parties entered into leasing agreement - Agreement contained requirement of certain conditions to be fulfilled before capable of being registered as lease - Approval of Kedah State Authority under s. 433B of National Land Code - Non-fulfilment of condition - Declaration that agreement had become capable of registration as lease upon s. 433B approval being granted by State of Kedah and consequential declarations - Whether should be allowed CIVIL PROCEDURE: Striking out - Application for - Application to strike out originating summons - Whether originating summons disclosed reasonable cause of action - Whether barred by doctrine of res judicata - Whether scandalous, frivolous or vexatious or abuse of process of court - Whether originating summons obviously unsustainable - Whether should be heard on its merits - Rules of court 2012, O. 18 r. 19(1)
AMARJEET SINGH SERJIT SINGH J
For a litigant to be successful in a claim against a professional for negligence, in a claim for loss of chance, it must be shown that the client had lost something of value or whether on the contrary his prospects of success in the original action were negligible. The court will then assess what would have been the plaintiff's prospects of success had the original litigation been fought out and whether the act of negligence complained of did cause any damage to the plaintiff. LEGAL PROFESSION | TORT
LEGAL PROFESSION: Negligence - Advocate and solicitor - Claim - Loss of chance - Alleged failure of advocate and solicitor appointed to exercise duties to client - Failure to ensure that suit or claim properly pursued before court and disposed of based on merits of claim - Whether advocate and solicitor breached duty of care to client based on standards expected from reasonably competent advocate and solicitor - Whether caused damage to client - Whether client had lost something of value - Whether prospects of success in original action negligible TORT: Negligence - Advocate and solicitor - Claim - Loss of chance - Alleged failure of advocate and solicitor appointed to exercise duties to client - Failure to ensure that suit or claim properly pursued before court and disposed of based on merits of claim - Whether advocate and solicitor breached duty of care to client based on standards expected from reasonably competent advocate and solicitor - Whether caused damage to client - Whether client had lost something of value - Whether prospects of success in original action negligible
MOHD ARIEF EMRAN ARIFIN JC
The Industrial Court could only grant an award in favour of a workman as defined under s. 2 of the Industrial Relations Act 1967 ('IRA') and s. 2(1) of the Trade Unions Act 1959 who is involved in a trade dispute and/or any proceeding referred to it by the Minister of Human Resources pursuant to s. 20(3) of the IRA. An expulsion from a trade union as an officer or member of the trade union, as in this case, does not constitute a trade dispute and is not a case of dismissal under s. 20(1) of the IRA. LABOUR LAW
LABOUR LAW: Dismissal - Claim - Claimant employee of hotel and member of trade union - Claimant retrenched from employment but continued being member and officer of trade union - Claimant committed serious misconduct and expelled from membership of trade union - Whether dismissal without just cause or excuse - Claimant prayed for reinstatement to former position - Whether claimant 'workman' within definition of s. 2 of Industrial Relations Act 1967 - Whether Industrial Court clothed with jurisdiction to determine matter involving expulsion of trade union memberships - Trade Unions Act 1959, s. 2 LABOUR LAW: Trade union - Member - Claimant employee of hotel and member of trade union - Claimant retrenched from employment but continued being member and officer of trade union - Claimant committed serious misconduct and expelled from membership of trade union - Whether dismissal without just cause or excuse - Claimant prayed for reinstatement to former position - Whether claimant 'workman' within definition of s. 2 of Industrial Relations Act 1967 - Whether Industrial Court clothed with jurisdiction to determine matter involving expulsion of trade union memberships - Trade Unions Act 1959, s. 2
NOORIN BADARUDDIN J
CLJ 2022 Volume 8 (Part 1) The intention of s. 254(3) of the Criminal Procedure Code ('CPC') is to confer discretion on the court to direct that the discharge does not amount to an acquittal. In other words, the court must specifically direct that the discharge shall not amount to an acquittal. In the absence of a direction by the court, the discharge in the circumstances under s. 254(1) of the CPC amounts to an acquittal. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Acquittal or discharge - Discharge not amounting to acquittal - Accused person charged under s. 130V of Penal Code - Offence of being member of organised criminal group - Prosecution decided, before evidence was led, not to continue with prosecution of charge against accused person - Allegation that investigation still on-going - Prosecution sought order that accused person be discharged not amounting to acquittal ('DNAA') - Whether prosecution had good grounds for seeking court to grant DNAA - When order for DNAA ought to be granted - Whether discharge amounting to acquittal ought to be ordered instead - Criminal Procedure Code, s. 254(1) & (3)
MOHD ZAWAWI SALLEH FCJ
(i) An invention that is not new by reason of the prior disclosure of the prototype/machine within the meaning and conditions of s. 14(2)(a) of the Patents Act 1983 will make a patent invalid; (ii) Failure to prove elements of sufficient objective similarity and causal connection between two works would cause a claimant not to succeed in a claim on infringement of copyright, although copyright may subsist in its design drawings. INTELLECTUAL PROPERTY
INTELLECTUAL PROPERTY: Patent - Infringement - Allegation of - Raising issue of anticipation by prior art to dispute novelty of patent - Whether ought to be pleaded with specific particulars of prior art relied upon to defeat registered patent - Whether s. 14(2)(a) of Patents Act 1983 on public disclosure of prior art apply where there was unauthorised disclosure to third party of prototype of machine - Whether patent invalidated on ground of anticipation pursuant to s. 14(2)(a) where there is unauthorised disclosure of prototype machine installed on private property for experimentation - Invention not new by reason of prior disclosure of prototype/machine within meaning and conditions of s. 14(2)(a) - Whether patent invalid INTELLECTUAL PROPERTY: Copyright - Subsistence of - Whether copyright could still subsist and not be negated by existence of earlier prior arts - Whether there were substantive efforts made to entitle itself to subsistence of copyright in design drawings - Basic test required under s. 7(3) of Copyright Act 1987 - Whether met - Whether design drawings independently eligible for copyright protection under s. 7(2), (2A) & (4) - Whether infringement of copyright established
ROHANA YUSUF PCA
The law remains that, as provided under art. 121(1) of the Federal Constitution, the civil courts shall have no jurisdiction in respect of any matter within the exclusive jurisdiction of the Syariah Courts. Further, the civil courts have no power to review the decisions of the Syariah Courts in cases where the Syariah Courts are possessed with the jurisdiction to hear the case. ADMINISTRATIVE LAW | CONSTITUTIONAL LAW
ADMINISTRATIVE LAW: Judicial review - Leave - Application for - Syariah High Court and Syariah Appeal Court dismissed applicant's summons and statement of claim to convert out of or renounce Islam - Applicant sought leave of civil court to review orders of Syariah Courts - Whether civil court has jurisdiction to hear cases involving Syariah matters - Whether civil court could review decision of Syariah Courts - Whether test for leave to commence judicial review complied with - Federal Constitution, art. 121(1A) - Rules of Court 2012, O. 53 r. 3 CONSTITUTIONAL LAW: Jurisdiction - Courts - Conversion out/renunciation from Islam - Syariah High Court and Syariah Appeal Court dismissed applicant's summons and statement of claim to convert out of or renounce Islam - Applicant sought leave of civil court to review orders of Syariah Courts - Whether civil court has jurisdiction to hear cases involving Syariah matters - Whether civil court could review decision of Syariah Courts - Federal Constitution, art. 121(1A)
AHMAD KAMAL MD SHAHID J
(i) An application to set aside an arbitration award is not an appeal and an applicant is not allowed to re-litigate the merits of the said award; and (ii) an amendment application cannot be used as a platform to achieve what an applicant could not attain by way of a fresh evidence application filed earlier and dismissed by the court. ARBITRATION | CIVIL PROCEDURE
ARBITRATION: Award - Enforcement - Application for - Construction contract - Structural and non-structural defects discovered at buildings - Termination of consultancy agreement - Matter referred to arbitration - Arbitration held in favour of claimant - Whether award could be enforced ARBITRATION: Award - Setting aside - Application for - Construction contract - Structural and non-structural defects discovered at buildings - Termination of consultancy agreement - Matter referred to arbitration - Arbitration held in favour of claimant - Whether award could be enforced - Whether arbitrator exceeded jurisdiction - Whether arbitrator failed to consider scope of works by preventing witness from referring to construction contract - Whether arbitrator ignored written submission regarding certain issues - Whether quantum of award excessive and would unjustly enrich claimant - Whether there was breach of natural justice - Arbitration Act 2005 CIVIL PROCEDURE: Evidence - Fresh evidence - Application - Construction contract - Structural and non-structural defects discovered at buildings - Termination of consultancy agreement - Matter referred to arbitration - Arbitration held in favour of claimant - Application to adduce fresh evidence for purposes of hearing of application to set aside arbitration award - Whether should be allowed CIVIL PROCEDURE: Amendment - Application for - Construction contract - Structural and non-structural defects discovered at buildings - Termination of consultancy agreement - Matter referred to arbitration - Arbitration held in favour of claimant - Application to amend for purposes of hearing of application to set aside arbitration award - Whether amendment application platform to achieve what applicant could not attain by way of fresh evidence application filed earlier
ALIZA SULAIMAN J
Once a complaint for professional misconduct is registered against a professional, in this case, against an auditor to the Malaysian Institute of Accountants ('Institute'), and once the Investigation Committee ('IC') has deliberated and proposed charges against the applicant to the Disciplinary Committee ('DC'), the DC is not allowed to refer back to the IC for legal opinion or otherwise on matters to be decided exclusively by the DC. The DC has to decide 'independently and autonomously' and, by referring the matter back to IC, the DC had breached the procedural rules. The DC's decision was thus amenable to judicial review. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Judicial review - Application - Disciplinary proceedings pursuant to complaints against applicant - Validity of decision of Disciplinary Committee of Malaysian Institute of Accountants ('DC') - Whether issues in both complaints same - Whether final determination of one complaint rendered continuation of proceeding in second complaint invalid - Whether DC allowed to refer dismissal application back to investigation committee after IC framed charges against applicant - Whether DC's action tainted with procedural impropriety - Whether DC acted independently and autonomously
WAN AHMAD FARID WAN SALLEH J
Each and every person is not only a stakeholder but a guardian of the natural forests. The companies in this case were fined RM400,000 and RM150,000 for offences under ss. 20(2) & 23(2), respectively, of the Forest Enactment 1968 for carrying out felling activities without authority or valid license. Additionally, the companies were ordered to pay to the Government the cost of rehabilitation of the Forest Reserve and the State Land. Once felled, the trees would not be replaced anytime soon or at least in the lifetime of the parties involved in this case. The companies must be held accountable and the sentence must reflect such accountability for their actions. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Appeal - Appeal against discharge and acquittal - Companies jointly charged at Sessions Court under ss. 20(2) & 23(2) of Forest Enactment 1968 - Whether companies physically working at site where logs were felled - Whether reasonable doubt raised on prosecution's case - Whether companies responsible for illegal logging activities - Whether companies ought to be convicted for charges CRIMINAL PROCEDURE: Appeal - Appeal against discharge and acquittal - Companies jointly charged at Sessions Court under ss. 20(2) & 23(2) of Forest Enactment 1968 - Whether companies physically working at site where logs were felled - Allegation that another company was carrying out timber extraction works - Whether said company agent or servant to accused persons - Whether companies principals - Whether principals took all reasonable precautions to prevent illegal felling by agent - Whether liable
CELESTINA STUEL GALID J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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