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Issue #49/2022
08 December 2022
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CASE(S) OF THE WEEK
TAN KIM CHUAN v. TAN KIM TIAN & ORS AND ANOTHER APPEAL [2022] 10 CLJ 503 In exercising its supervisory power under s. 236(3) of the Companies Act 1965, the High Court must be careful not to exercise its supervisory power beyond the ambit of the provision of the section. The High Court must determine, in cases where there are conflicting opinions of joint liquidators as to methods of realisation of a wound-up company's properties, whether the liquidators' actions were in good faith and bona fide. Decisions pertaining to an application under s. 236(3) of the CA in respect of the exercise or proposed exercise of liquidator's power is appealable. COMPANY LAW: Liquidators - Application for directions from court - Conflicting opinions of joint liquidators as to methods of realisation of wound-up company's properties - Whether High Court exercised its supervisory power beyond ambit of s. 236(3) of Companies Act 1965 - Whether decisions pertaining to application under s. 236(3) of Companies Act 1965 in respect of exercise or proposed exercise of liquidators' powers appealable
THIRUNAVUKARASU ANGAPPAN v. KERAJAAN MALAYSIA & ORS [2022] 10 CLJ 604 Where there are medical records pointing to the applicant suffering from a severe mental health condition and receiving treatment, it behoves the disciplinary authority to establish a Committee of Investigation ('CI') pursuant to reg. 37(5) of the Public Officers (Conduct and Discipline) Regulations 1993, to ascertain whether such a condition would justify the applicant being absent from duty especially when the applicant's employer had refused his requests to mitigate the side-effects of the medication he has to take. If a CI is not established, the disciplinary authority ought to provide its reason for not doing so. ADMINISTRATIVE LAW: Judicial review - Application for - Applicant suffered from panic disorder and major depression - Applicant charged under reg. 37 of Public Officers (Conduct and Discipline) Regulations 1993 for absence without leave and justification - Applicant dismissed from employment - Whether disciplinary authority and appeal board considered medical documents on applicant's mental health - Whether disciplinary authority ought to have established Committee of Investigation ('CI') - Whether failure to establish CI meant that disciplinary procedure was unfair - Whether decision to dismiss was illegal and irrational JUDICIAL QUOTES“Otherwise, the constitutional right to freedom of expression would be rendered illusory. It would even imperil academic research. In this context, we note that the Minister had disagreed with the view expressed in the comic book that diplomatic relations between the Ming Dynasty of China and the Malacca Sultanate enabled the latter to prosper.” – per Ravinthran Paramaguru JCA in Hew Kuan Yau v. Menteri Dalam Negeri & Ors [2022] 8 CLJ 880 LATEST CASESLegal Network Series
CLJ 2022 Volume 10 (Part 3) The employee's re-designation, without any change in basic salary, is due to the severity of the inflated timesheets practice which resulted in overcharging of company's clients. Taking into account that the re-designation is consistent with the terms of the employee's contract of employment, which means there is no guarantee that the employee would remain in the same position until his retirement, and the fact that the employee was not the only employee to have faced consequences, his dismissal was found to be with just cause and excuse. ADMINISTRATIVE LAW | LABOUR LAW
ADMINISTRATIVE LAW: Judicial review - Appeal against - Appeal against High Court decision quashing award of Industrial Court - Industrial Court held dismissal of employee with just cause and excuse - Whether findings of Industrial Court in accordance with evidence adduced - Whether High Court Judge ('HCJ') ought not to have interfered with findings of facts by Industrial Court - Whether HCJ took correct approach in evaluating evidence - Whether there were appealable errors on HCJ's part in allowing judicial review - Whether appellate intervention warranted - Whether award of Industrial Court ought to be re-instated LABOUR LAW: Employment - Re-designation of employee - Whether demotion - Whether constituted constructive dismissal - Whether disproportionate and harsh - Whether dismissal with just cause and excuse
YAACOB MD SAM JCA
The language used in a contract of guarantee is vital. If the language is clear, its plain and ordinary meaning must be given. The background knowledge of the contracting parties must also be considered in determining the intention behind it. This includes anything which would have affected the way in which the wordings were used in the guarantee. Another element to consider is the nature of the dealings or the business involved. Where it is clear that the parties are involved in a commercial dealing, the language or the words used in the instruments has to be interpreted in accordance with business common sense and must meet the reasonable expectation of a sensible businessman. CONTRACT
CONTRACT: Agreement - Sale and purchase agreement - Guarantee/indemnity - Late delivery of houses and houses delivered defective - Claim for damages for breach of contract - Court awarded damages - Controller of housing ('COH') failed to pay judgment sums - COH assigned all rights under guarantee to purchasers via deed of assignment to enable purchasers to commence legal action against guarantors - Whether deed of assignment valid - Interpretation of guarantee - Whether claim barred by limitation - Housing (Control and Licensing of Developers) Rules 1980 - Civil Law Act 1956, s. 4(3)
HAS ZANAH MEHAT JCA
A mere refinement or pruning of a claim under a construction contract, which had been previously submitted to the employer and being then included as part of the payment claim, does not constitute a new or premature claim or in future claim, such that it affects the adjudicator's jurisdiction. An adjudicator has the requisite statutory power to determine the correctness of the amounts which are due and payable after taking into account submissions of the parties in adjudication proceedings. CONSTRUCTION LAW
CONSTRUCTION LAW: Adjudication - Decision - Jurisdiction of adjudicator - Claimant commenced adjudication proceedings against employer - Claimant previously submitted impugned items to employer as part of monthly claims but employer never certified items and no payment was made - Discovery of errors in amounts claimed in impugned items - Claimant unilaterally made necessary corrections and presented impugned items as part of payment claim - Whether rectified claim should have been first submitted to employer - Whether payment claim premature - Whether adjudicator acted beyond jurisdiction in considering rectified claims - Construction Industry Payment and Adjudication Act 2012, ss. 4, 5(1), 5(2), 25(m), 25(n), 27
AZIZAH NAWAWI JCA
(i) The courts have recognised that a payment made to remove an impediment or obstacle to a profitable trading, or that results in the increase of income, is attributable to revenue. The payment/contribution could not be said to be of capital in nature; and (ii) an expenditure that is not expressly disallowed should be allowed as a deduction and not be disallowed merely on policy basis. REVENUE LAW
REVENUE LAW: Income tax - Exemption - State Authority exempted property developer from requirement on housing project - Property developer's claim for deduction of payments disallowed and penalty was imposed - Whether payment/contribution made to State Authority to obtain exemption deductible - Whether property developer negligent - Whether notices of assessments and additional assessments and notification of non-chargeability for years of assessments could be raised - Whether time-barred - Income Tax Act 1967, ss. 33(1), 39(1), 44(6), 91(3) & 113(2)
NOORIN BADARUDDIN J
The application to dispense with personal service of an order of court could only be entertained by the court where evidence is shown that the person against whom it is made has full knowledge of the order and its terms. CIVIL PROCEDURE
CIVIL PROCEDURE: Service - Personal service - Application to dispense with personal service on directors of company - Application against mandatory order against express requirement of personal service - Whether valid and reasonable grounds presented - Whether dispensation of personal service could be ordered in directors' absence of knowledge of orders and its terms - Whether service on solicitors of company could be accepted as service on directors - Whether just to order dispensation of personal service
AZLAN SULAIMAN JC
(i) Aturan 41 Kaedah-kaedah Mahkamah 2012 tidak mengkehendaki agar pihak-pihak tertentu sahaja yang dibenarkan memberi afidavit untuk satu-satu pihak. Pihak-pihak yang mengikrarkan afidavit tersebut hanya perlu membuktikan bahawa afidavit yang dibuat adalah berasaskan pengetahuannya sendiri; dan (ii) apabila fitnah dikatakan dilakukan dalam media sosial, kausa tindakan timbul apabila kenyataan tersebut dimuat turun. PROSEDUR SIVIL
PROSEDUR SIVIL: Afidavit - Prinsip - Sama ada afidavit boleh diikrarkan oleh mana-mana pihak - Sama ada terhad - Sama ada pegawai atau petugas bawah mana-mana agensi sahaja yang boleh mengikrarkan afidavit - Kaedah-kaedah Mahkamah 2012, A. 41 PROSEDUR SIVIL: Pemindahan prosiding - Permohonan - Prinsip forum non conveniens - Tindakan berasaskan fitnah - Fitnah dimuat turun dalam media sosial - Tempat kausa tindakan berlaku - Sama ada pemindahan prosiding akan memudahkan pihak-pihak dan saksi-saksi - Sama ada mana-mana pihak akan terprejudis dengan pemindahan prosiding
ROSLAN MAT NOR PK
A restriction order that emanates from a detention order, premised on a set of allegations of facts that does not correspond with the supreme law in art. 149 of the Federal Constitution, and is in non-compliance with the pith and substance of the Dangerous Drugs (Special Preventive Measures) Act 1985, ought to be judicially reviewed. The law demands that the information as to the involvement of the applicant, either alone or with a substantial body of persons when carrying out a drug trafficking activity, has to be furnished to him with certainty, clarity and preciseness; it cannot be a guesswork, surmise or conjecture. ADMINISTRATIVE LAW | PREVENTIVE DETENTION
ADMINISTRATIVE LAW: Judicial review - Application for - Application for judicial review of restriction order issued pursuant to s. 7(1) of Dangerous Drugs (Special Preventive Measures) Act 1985 ('Act') - Restriction order emanated from detention order - Whether detention order lawful and in accord with pith and substance of Act and art. 149 of Federal Constitution - Whether applicant's personal freedom and liberty deprived - Whether entire process of arrest, remand, detention, suspension and restriction illegal - Federal Constitution, arts. 5(1), 151(1)(a) PREVENTIVE DETENTION: Restriction order - Restriction order issued pursuant to s. 7(1) of Dangerous Drugs (Special Preventive Measures) Act 1985 ('Act') - Restriction order emanated from detention order - Whether detention order lawful and in accord with pith and substance of Act andart. 149 of Federal Constitution - Whether applicant's personal freedom and liberty deprived - Whether entire process of arrest, remand, detention, suspension and restriction illegal - Whether judicial review of restriction order ought to be allowed
MUNIANDY KANNYAPPAN J
(i) In an application to adopt a child, if the child is found to have been born a Muslim, the Adoption Act 1952 does not apply; (ii) Although the welfare of a child is a paramount consideration, consent of the child's mother is the most important factor in an application for adoption. The applicant, in failing to adduce evidence that she had made all efforts to locate the child's mother, was not able to convince the court that it is justified for consent to be dispensed with. FAMILY LAW
FAMILY LAW: Adoption - Application to adopt - Application to adopt illegitimate child of applicant's domestic help - Whether child Muslim - Whether Adoption Act 1952 applied - Whether consent of child's birth mother obtained or dispensed with
EVROL MARIETTE PETERS J
Publication of statements in the WhatsApp group chat with substantial number of audience is capable of bearing defamatory meaning once it is proven to have been motivated by malice and such publication would severely tarnish the business reputation of the person defamed, more so, when the group chat consisted largely of his business friends. TORT
TORT: Defamation - Action for defamation - Claim for defamatory postings in WhatsApp group chat - Whether publication of defamatory words proven - Whether postings in chat group defamatory in nature - Whether ordinary reader would interpret words as veiled remark against person defamed - Whether allegations constituted baseless accusations - Whether defamation proven TORT: Defamation - Defences - Fair comment and justification - Claim for defamatory postings in WhatsApp group chat - Whether defence of justification established - Whether points raised were only insinuation - Whether facts on which comment formed were true - Whether postings remotely concerned matter of public interest - Whether defences could stand
JOHN LEE KIEN HOW J
In considering an application for a stay of court proceedings pending the determination of another proceedings, the judge must look at the overall circumstances of both suits, balance the competing interests of the parties and exercise his discretion whether to grant or not to grant a stay to ensure the efficient and fair resolution of the disputes as a whole. CIVIL PROCEDURE
CIVIL PROCEDURE: Stay of proceedings - Application for - Two suits involving same parties with substantial overlapping of facts and issues - Gap of 15 months between dates of suits - Whether proceedings ought to be stayed - Applicable test - Factors to be considered
LEONG WAI HONG JC
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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