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17 November 2022
New This Week
CASE(S) OF THE WEEK
WONG SHEE KAI v. GOVERNMENT OF MALAYSIA  10 CLJ 1
The Federal Court, in order to guard its exclusive original jurisdiction from abuse, must naturally have the inherent power to set aside any leave granted, pursuant to art. 4(4) of the Federal Court, if the narrow and specific conditions of the art. 4(3) are not met. Leave can only be granted if there is jurisdiction and so, a grant of leave is not capable of becoming the basis of jurisdiction.
CONSTITUTIONAL LAW: Jurisdiction - Federal Court - Petition - Challenge against constitutional validity of ss. 63 and 64 of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Whether subject matter of petition within original jurisdiction of court - Whether leave to file petition ought not to have been granted - Whether Federal Court can consider question of own jurisdiction once leave granted - Federal Constitution, art. 4(3) & (4)
Legal Network Series
CLJ 2022 Volume 9 (Part 6)
Participation in trade union activities alone by a trade union member or officer in the capacity as a trade union member or officer, in the name of the trade union, ought not to be a ground for dismissal. Such activities must be established to have been carried out maliciously or was knowingly or recklessly false. The employer must consider the dual aspects, ie, the employee's work as well as the statutory provisions affording protection in relation to the trade union activities, before deciding on the employee's dismissal.
LABOUR LAW Employment - Dismissal - Employee also President of National Union of Flight Attendants Malaysia - Issuance of press statement in capacity as Union leader - Whether to be considered in decision to terminate employment - Whether role as Union leader intertwined with employment - Whether action fell within scope of trade union activities - Whether participation in lawful activities of trade union - Whether dismissal amounted to act of victimisation and unfair labour practice - Industrial Relations Act 1967, s. 18 - Employment Act 1955, s. 8 - Trade Unions Act 1959, ss. 21 & 22
NALLINI PATHMANATHAN FCJ
(i) Vacant possession is not synonymous with right of occupation, as clearly defined in the sale and purchase agreement. The developer only required to physically complete the works and provide a certificate of practical completion to provide vacant possession; it matters not if the premises is connected with essential utilities; (ii) letters by the architect of a project merely serves the purpose of informing the purchaser of the delay of the project; it does not qualify as a certificate of extension of time which would justify the developer's delaying in the delivery of vacant possession of the premises; (iii) when a purchaser successfully discharges its burden of proof that there was a breach of contract and the sale and purchase agreement contains a clause specifying a sum to be paid upon the breach, the purchaser is entitled to the liquidated ascertained damages (LAD), especially when the rate of the LAD is fair and reasonable.
LAND LAW: Housing developers - Vacant possession - Delay in delivering vacant possession - Claim for liquidated ascertained damages (LAD) - Whether architect's letters valid extensions of time under sale and purchase agreement - Whether vacant possession synonymous with right of occupation - Whether rate of LAD fair and reasonable - Whether purchaser's action against developer premature
LEE SWEE SENG JCA
(i) It is manifestly clear from the words of s. 80(8) and (9) of the Legal Profession Act 1976 ('LPA') that the victim of any dishonest act of an advocate and solicitor, or his clerk or servant, whether the advocate and solicitor is practicing as a sole proprietor or in partnership with others, or whether the advocate and solicitor has a valid practicing certificate at the material time, may make a claim from the compensation fund for any loss suffered by him from that act of dishonesty. The Majlis Peguam Malaysia ('Majlis') does not have such powers to issue Guidelines to restrict claims only to acts of dishonesty of advocates and solicitors who are sole proprietors; (ii) The Majlis is a statutory body and the exercise of statutory powers are justiciable and open to scrutiny of the courts. The act of the Majlis in arriving at a decision vide an ultra vires act, could not be shielded by applying s. 111 of the LPA.
LEGAL PROFESSION: Solicitors - Criminal breach of trust - Dishonesty - Failure to make payment of stakeholder sum to appellants - Solicitor struck off Roll of Advocates and Solicitors - Whether appellants entitled to be compensated for loss from compensation fund - Imposition by guidelines of condition that only losses arising from dishonesty of advocates and solicitors who practice as sole proprietors covered under compensation fund - Whether ultra vires provisions of Legal Profession Act 1976 - Whether s. 111 of Legal Profession Act 1976 applicable to protect respondent from action or legal proceedings
HAS ZANAH MEHAT JCA
The land administrator, in conducting a land enquiry, is not obliged to accept the valuation done by any one of the party's valuer, even if such valuation is accepted by the other party. It is not for the parties to agree on the market value or any other valuation. The law gives that discretion to the land administrator. The land administrator decides on the adequacy of compensation, as provided in s. 12 of the Land Acquisition Act 1960; the valuation report prepared by the Government valuer or the private valuer merely act as a guide in determining the award of compensation.
LAND LAW: Acquisition - Compensation - Objection - Difference in valuation by parties' valuers - Whether land administrator obliged to accept valuation by any one of party's valuer - Whether correct valuation should be one higher of two - Whether rejection of claim for injurious affection/severance correct - Whether there was breach of natural justice during land enquiry - Whether remaining land severed by compulsory acquisition legally inaccessible - Whether there should be compensation for costs of constructing bridge to provide access to scheduled land under claim for injurious affection - Whether application for building or planning permission requirement or pre-condition to claim for compensation - Land Acquisition Act 1960
NOR BEE ARIFFIN JCA
In a matter where freedom of expression and/or where fundamental liberties are being stifled, a reasoned decision must be given. Otherwise, it will violate the principles of procedural fairness guaranteed by art. 8 of the Federal Constitution.
ADMINISTRATIVE LAW | CONSTITUTIONAL LAW
ADMINISTRATIVE LAW: Judicial review - Application for - Application by author and publisher against decision of Minister of Home Affairs in imposing ban against publication of book - Book on homosexuality from Christian's perspective - Whether book likely to be prejudicial to public order, morality and public interest - Whether ban illegal - Whether book form of expression protected by art. 10(1)(a) of Federal Constitution - Whether ban irrational, disproportionate and excessive - Whether applicants denied right to be heard - Printing Presses and Publications Act 1984, s. 7(1)
CONSTITUTIONAL LAW: Fundamental liberties - Right to be heard - Application by author and publisher against decision of Minister of Home Affairs in imposing ban against publication of book - Book on homosexuality from Christian's perspective - Whether applicants denied right to be heard - Whether there was violation of procedural fairness - Federal Constitution, arts. 5(1) & 8(1)
NOORIN BADARUDDIN J
(i) In construing a will, the intention of the testator is paramount and must be given effect to. The intention is to be derived from the wordings of the will. The duty of the court is to give effect to the wishes of the testator; and (ii) a no-contest clause in a will is only effective if the testator demonstrates it by the inclusion of a gift over that he is indeed in earnest.
SUCCESSION: Will - Trustee - Breach of duty - Removal of trustee - Allegation that trustee acted in breach of instructions under will - Whether trustee given absolute discretion to administer estate of deceased under will - Whether intended by deceased - Whether there was reason to interfere with wishes of deceased - Whether there was sufficient cause to remove trustee - Probate and Administration Act 1959, s. 34
SUCCESSION: Will - Clause - No-contest clause - Will contained no-contest clause - Whether testator intended to impose clause - Whether there was gift over - Whether no-contest clause enforceable
ALICE LOKE YEE CHING JC
A record of appeal that is not served within the time stipulated and does not contain a memorandum of appeal as required by O. 55 r. 4 of the Rules of Court 2012 is defective and incompetent. Without the extension of time to regularise the irregularities, there is no valid appeal before the court.
CIVIL PROCEDURE: Appeal - Record of appeal - Whether served within time - Whether served via electronic filing service - Whether there was failure to include memorandum of appeal in record of appeal - Whether appeal defective and incompetent - Rules of Court 2012, O. 55 rr. 2, 4(1), 4(8), O. 62 r. 6(1) & O. 92 r. 4
AMARJEET SINGH SERJIT SINGH J
(i) The time for applying to set aside a default judgment runs from the receipt of the order/judgment, not from when a defendant comes to know of it; and (ii) the annulment of an adjudicating order necessarily means that there had never been any adjudication and there was never a bankrupt. In such situation, there is no requirement on a plaintiff to obtain any leave of the court to file a writ against a defendant.
CIVIL PROCEDURE: Judgments and orders - Default judgment - Setting aside - Application to set aside default judgment - Whether date runs from receipt of order/judgment or when applicant came to know of order/judgment - Whether there was delay in application - Whether there were valid, cogent or acceptable explanation for delay - Whether extension of time ought to be allowed - Rules of Court 2012, O. 13 r. 8 & O. 42 r. 13
CIVIL PROCEDURE: Judgments and orders - Default judgment - Setting aside - Default judgment entered against bankrupt - Bankruptcy order annulled - Whether leave of court obtained - Whether judgment ought to be set aside - Whether annulment of bankruptcy order meant that there had never been any adjudication and there was no bankrupt - Whether default judgment regular - Whether applicant entitled to set aside default judgment ex debito justitiae
AZLAN SULAIMAN JC