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Issue #4/2022 27 January 2022

New This Week Case(s) of the Week MERCU PUSU DEVELOPMENT SDN BHD v. SETARA JAYA SDN BHD [2022] 2 CLJ 106 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2022 Volume 1 (Part 6) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

MERCU PUSU DEVELOPMENT SDN BHD v. SETARA JAYA SDN BHD [2022] 2 CLJ 106
HIGH COURT MALAYA, KUALA LUMPUR
JOHAN LEE KIEN HOW JC
[CIVIL SUIT NO: WA-22NCVC-202-04-2020]
6 JUNE 2021

CIVIL PROCEDURE: Summary judgment – Application for – Tenancy agreement entered between tenant and land’s previous owner – Company alienated land and registered as land’s registered proprietor after tenancy agreement entered – Application for declaration that tenant’s occupation of land illegal and vacant possession ought be handed to company – Whether plain and obvious tenant had no defence against application – Whether tenant’s occupation of land justified by existence of tenancy agreement – Whether alienation of land to company proper and complete – Whether qualified title confers similar proprietary right as final title – Whether tenancy agreement came to end after date company registered as land proprietor – Rules of Court 2012, O. 14 r. 1

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1. Tenaga Nasional Berhad v. ATA Industrial (M) Sdn Bhd [2019] 1 LNS 1456 (CA) affirming the High Court case of Tenaga Nasional Bhd v. ATA Industrial (M) Sdn Bhd [2019] 4 CLJ 546

2. Zuraimi Md Talib lwn. PP [2019] 1 LNS 1455 (CA) menolak sebahagian kes PP lwn. Zuraimi bin Md Talib [Perbicaraan Jenayah No: 45A-15-03/2016]

Legal Network Series

[2020] 1 LNS 169	DATO' GUE SEE SEW & ORS v. HENG TANG HAI & ORS 1. Beneficial owners of shares have locus standi to commence an oppression action although their names are not listed in the register of members as holders of any shares in the company. It would be unjust and inequitable to preclude such beneficial owners from commencing an oppression action on the grounds that their names are not on the company's register of members. 2. Breach of shareholders' agreement and company policy can be grounds for an oppression action if it relates to how the company's affairs are being conducted and/or how the directors' power are being exercised to the detriment of the minority shareholder. COMPANY LAW: Members' rights - Oppression - Action commenced by beneficial owners of shares - Oppression action commenced by persons whose names not registered in register of members - Whether defendants through previous acknowledgment and actions had clearly treated plaintiffs as full members - Whether plaintiffs had locus standi to commence an oppression action - Whether it would be just and equitable to preclude plaintiffs from presenting oppression action - Whether defendants estopped from challenging locus standi of plaintiffs - Companies Act 2016, s. 346 COMPANY LAW: Members' rights - Oppression - Breach of shareholders' agreement and company policy - Defendants denied plaintiffs' legitimate expectation of having right to participate in management of company and disregard plaintiffs' interests as beneficial owners of shares - Whether plaintiffs have made out a case for oppression - Whether breach of shareholders' agreement and company policy could be grounds for oppression action - Whether breach has relation to manner in which affairs of company are being conducted For the plaintiffs - Kelvin Seet, James Khong & Lim Lay Yee; Leon Low Tsung Shen (PDK); M/s Chooi & Company & Cheang & Ariff For the 1st & 2nd defendants - Lim Kee Wai; M/s Gan, Lee & Tan
[2020] 1 LNS 176	UNITED OVERSEAS BANK (MALAYSIA) BHD v. SRI RAM SARMA AND ANOTHER CASE The issuance of two separate Form 16D Notices indicating different amounts due and owing without credible explanation from the chargee would in and of itself warrant a dismissal of the order for sale. A chargee must be estopped from issuing further Form 16D Notices after the initial Form 16D Notice. As such, any other subsequent Form 16D Notice should be regarded irrelevant and rejected. LAND LAW: Charge - Order for sale - Cause to contrary - Defective Form 16D Notice - Chargee failed to state exact amount due and owing by chargor - Form 16D Notice failed to stipulate breach of conditions of charge - Existence of two separate Form 16D Notice - Whether Form 16D Notice was effected in accordance with provisions under National Land Code - Whether Form 16D Notice was defective - Whether chargee should be estopped from issuing any subsequent Form 16D Notice - Whether there was cause to contrary that would warrant dismissal of order for sale LAND LAW: Charge - Order for sale - Cause to contrary - Discrepancies in amount claimed in Form 16D Notice and redemption amount - Redemption amount exorbitantly inflated by chargee - Chargee failed to state exact amount due and owing by chargor - Whether chargor deprived of his right to redeem his property at actual price - Whether there was cause to contrary that would warrant dismissal of order for sale CIVIL PROCEDURE: Res judicata - Charge action - Existence of previous proceedings concerning application for redemption filed by chargor which has not been determined - Chargor raised issue of redemption sum in chargee's foreclosure proceedings - Whether court entitled to determine issue of redemption in chargee's foreclosure proceedings - Whether principle of res judicata applicable concerning chargor's issue on discrepancies in redemption sum For the plaintiff - Wong Chee Chien; M/s Raja, Darryl & Loh For the defendant - Rabinder Singh, Cheryl Patricia Fredericks; M/s Rabinder Budiman & Associates
[2020] 1 LNS 190	SS BASE CONTRACTORS SDN BHD v. SHANMUGHANATHAN VELLANTHURAI & ORS In the determination of a striking out application, the plaintiff is not prevented from relying on the pleadings by other defendants in respect of their defences despite withdrawing his suit against them. CIVIL PROCEDURE: Striking out - Action - Claim for outstanding amount for construction works completed in project - Locus standi - Allegation of absence of privity of contract - Defendant involved directly in project as sole decision maker and gave personal guarantee to settle payment - Defendant stands as proxies in companies connected to project - Plaintiff relied on pleadings relating to other defendants against whom the suit had been withdrawn - Whether plaintiff was prevented from relying on pleadings by other defendants in determining striking out application - Whether defendant was justified in raising corporate separateness to evade contractual obligations and duties - Whether claim ought be struck out merely on grounds of absence of privity of contract - Whether plaintiff has reasonable cause of action against defendant in his capacity as owner and beneficiary of project For the plaintiff - S Paul Raj Vimalan Visvalingam; M/s AG Roseli & Paul For the 1st defendant - Naahenra Kumar Shanmugam; M/s RY Nanthan & Partners
[2019] 1 LNS 1440	CHE YUNUS ABD RAHMAN @ CHE AWANG & SATU LAGI lwn. ISMAIL CHOKAT ALI Penetapan kos membela dan kos kepeguaman adalah berasingan dengan pemberian ganti rugi dalam sesuatu tuntutan. Apabila suatu tuntutan yang berasaskan kecuaian telah dilupuskan melalui perbicaraan penuh maka kos membela dan kos kepeguaman penuh wajar diberikan kepada plaintif walaupun agihan liabiliti pihak-pihak telah diputuskan atas kadar 50%. PROSEDUR SIVIL: Pindaan - Notis rayuan - Permohonan meminda notis rayuan bagi mengemukakan isu baru - Penambahan subjek perkara rayuan berkenaan kos - Pertikaian berkenaan jumlah kos - Kelewatan pemfailan pindaan - Sama ada Mahkamah mempunyai budi bicara untuk meminda notis rayuan - Sama ada perayu mengetahui tentang penetapan kos ketika pemfailan notis rayuan yang asal - Kaedah-Kaedah Mahkamah 2012, A. 20 k. 8 PROSEDUR SIVIL: Kos - Penetapan kos - Kos membela dan kos kepeguaman - Penetapan kos selepas bicara penuh - Agihan liabiliti pihak-pihak ditetapkan atas kadar 50% - Mahkamah memberikan kos 100% kepada pihak plaintif - Sama ada kos penuh wajar diberikan - Sama ada penetapan kos adalah berasingan dengan pemberian ganti rugi yang dituntut - Kaedah-Kaedah Mahkamah 2012, A. 59 k. 23(5)(c) GANTI RUGI: Rayuan - Kuantum - Awad berjumlah RM250,000 diberi bagi kecederaan serius di bahagian kepala - Plaintif mempunyai daya ingatan yang lemah dan berjalan dengan bantuan tongkat akibat kecederaan - Sama ada awad yang diberikan terlalu tinggi - Sama ada awad ganti rugi mengikut tren semasa GANTI RUGI: Rayuan - Kuantum - Awad berjumlah RM400,320 diberi sebagai kos penjagaan atau pengawasan seumur hidup - Keadaan emosi dan kelakuan plaintif tidak stabil akibat kecederaan serius di bahagian kepala - Plaintif berusia muda - Kecacatan kekal - Kehilangan keupayaan untuk bekerja - Plaintif terpaksa bergantung kepada pertolongan isteri dan bapa mertua - Sama ada hakim bicara tersalah arah dalam memberikan awad kos penjagaan atau pengawasan seumur hidup Bagi pihak perayu - Mohd Arif; T/n Naicker & Associates Bagi pihak responden - HT Tiong; T/n NM Tiong & Co
[2019] 1 LNS 1665	GAN HONG LEE & SATU LAGI lwn. NORAZALINA MOHD ARSAD Perjanjian jaminan harus mempunyai tarikh yang sama dengan perjanjian prinsipal yang dimeterai. Suatu perjanjian jaminan tidak boleh dikuatkuasakan apabila ia mempunyai tarikh yang berbeza dengan perjanjian prinsipal. KONTRAK: Perjanjian - Jaminan - Perjanjian jaminan bayaran balik pinjaman - Tuntutan plaintif untuk bayaran balik pinjaman - Wang pinjaman diberikan kepada defendan oleh syarikat lain - Plaintif bukan pengarah atau pemegang saham syarikat yang memberikan wang kepada defendan - Sama ada terdapat sebarang balasan daripada plaintif kepada defendan berdasarkan perjanjian jaminan - Sama ada wujud priviti kontrak antara plaintif dan defendan - Sama ada perjanjian jaminan adalah sah dan boleh dikuatkuasakan KONTRAK: Perjanjian - Jaminan - Perjanjian jaminan mempunyai tarikh meterai yang berbeza dengan perjanjian prinsipal - Sama ada perjanjian jaminan boleh dikuatkuasakan KONTRAK: Pembatalan - Pembatalan secara salah - Perjanjian jaminan - Pemanggilan untuk bayaran balik pinjaman selepas pembatalan perjanjian jaminan - Perjanjian dibatalkan tanpa sebarang notis tuntutan yang menepati pra-syarat tuntutan - Sama ada perjanjian telah dibatalkan secara salah KETERANGAN: Inferens bertentangan - Kegagalan memanggil saksi - Nama saksi dinyatakan di dalam senarai saksi tetapi gagal dipanggil ketika bicara - Tiada penjelasan berkenaan ketidakhadiran saksi ketika bicara - Sama ada inferens bertentangan wajar dibangkit terhadap pihak yang gagal mengemukakan saksi ketika bicara Bagi pihak perayu - Bibi Chong, Idza Hajar & Bailey Leong; M/s Tia & Noordin Bagi pihak responden - GK Sritharan; M/s GK Sritharan & Co

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CLJ 2022 Volume 1 (Part 6)

A successful bidder in a judicial sale conducted pursuant to an order for sale issued under ss. 256 or 257 of the National Land Code (NLC) cannot sue the chargee bank for breach of contract for any shortcomings in the sale. A judicial sale under the NLC does not give rise to any contract between the chargee bank and the successful bidder, and it was incorrect for the latter to have premised the pleaded cause of action on contract; for any breach or shortcoming that such sale is susceptible to, the remedy does not lie in the Contracts Act 1950 but elsewhere.
AmBank (M) Bhd v. AIM Edition Sdn Bhd [2022] 1 CLJ 831 [FC]

• SUBJECT
• CORAM
• COUNSEL

An application to stay a criminal proceeding pending an appeal against a preliminary ruling made therein by the trial judge must show exceptional unusual or compelling circumstances for stay to be granted. The determinative principles that the judge is bound to consider include: (i) a strong public interest in the prosecution of the crime; (ii) the desirability or otherwise of the criminal process to be interrupted and whether such interference is antithetical to the proper and just disposition of the case; and (iii) whether the accused's right over such ruling are best vindicated by way of an appeal after conviction, if any.
Datin Seri Rosmah Mansor v. PP [2022] 1 CLJ 849 [CA]

• SUBJECT
• CORAM
• COUNSEL

The Competition Commission of Malaysia (MyCC), being a quasi-judicial body, has no power or jurisdiction to file an appeal or a judicial review application against the decision of the Competition Appellate Tribunal (CAT). MyCC cannot appeal against the decision of its own appellate body and once its decision is brought to appeal to CAT, it would become functus officio and would cease to have an interest in the matter. Further, upon the commencement of the Malaysian Aviation Commission Act 2015, all jurisdiction and powers of MyCC pertaining to the regulation of economic matters relating to civil aviation industry, including matters relating to competition issues, came to vest in the Malaysian Aviation Commission or MAVCOM, thereby depriving MyCC of any capacity to file the appeal or application in question.
Malaysian Airline System Bhd v. Competition Commission & Another Appeal [2022] 1 CLJ 856 [CA]

• SUBJECT
• CORAM
• COUNSEL

The offence under s. 124K of the Penal Code, notwithstanding its inclusion in the First Schedule to the Security Offences (Special Measures) Act 2012 ('SOSMA'), does not ipso facto render it as falling within the ambit of SOSMA. There exists an ambiguity whether Parliament had intended the section to be categorised as a security offence. The object and purpose of SOSMA has always been to combat terrorism and therefore s. 124K of Penal Code (herein relating to sabotage of water services) does not fall under or within the ambit of SOSMA.
Nathan Rajandran v. PP [2022] 1 CLJ 908 [CA]

• SUBJECT
• CORAM
• COUNSEL

The conviction of the accused Minister charged under s. 165 of the Penal Code for obtaining without consideration RM2,000,000 from a company which he knew had dealings with him while carrying out his official duties was unsafe as the trial judge had failed to consider the evidence of prosecution witnesses, each of which and cumulatively supported the defence's contention that the monies was a political donation to a political party for by-elections. It is trite that the prosecution is bound by the evidence of its own witnesses.
Tengku Adnan Tengku Mansor v. PP [2022] 1 CLJ 917 [CA]

• SUBJECT
• CORAM
• COUNSEL

The Malaysian Association of Taxi, Rental Car, Limousine and Airport Taxi (the Society), by alleging that GrabCar was running an illegal e-hailing services unauthorised by the relevant authorities and thereby, in competition with its members' right to livelihood was, in effect, seeking to enforce a public right. The claims were premised on alleged damages caused to each individual taxi drivers and rental car drivers, damages which were personal to them and not to the Society. The Society clearly lacked locus standi to prosecute the personal claims action; the action against GrabCar for alleged breaches of the Road Transport Act 2012, the Competition Act 2010, the Federal Constitution and the Contracts Act 1950 must therefore fail.
Gabungan Pertubuhan Teksi, Kereta Sewa, Limosin Dan Teksi Lapangan Terbang Semalaysia-GTSM v. GrabCar Sdn Bhd [2022] 1 CLJ 956 [HC]

• SUBJECT
• CORAM
• COUNSEL

When an agreement is discovered to be void, the restitutionary provision of s. 66 of the Contracts Act 1950 is triggered. However, being equitable in nature, the remedy is not available in an illegal contract, thus, the parties seeking restitution under s. 66 should not have knowledge of the illegality of the agreement at the time the agreement was made. In this case, the claim for restitution was defeated by the knowledge of the illegality of the agreements entered by the parties.
Kee Hin Ventures Sdn Bhd v. Great Partners Industries Ltd & Ors; Cheng Ping Keat & Ors (Third Parties) [2022] 1 CLJ 974 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. NOTITIAM INTENTIONIS APPARERE: RECALIBRATING THE TRUE INTENT OF THE NOTICE OF INTENTION IN WINDING-UP PROCEEDINGS ^{[Read excerpt]}
   by Kwan Yi Tung* [2022] 1 LNS(A) viii

[2022] 1 LNS(A) viii



MALAYSIA

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NOTITIAM INTENTIONIS APPARERE:
RECALIBRATING THE TRUE INTENT OF THE NOTICE OF INTENTION IN WINDING-UP PROCEEDINGS

by
Kwan Yi Tung*

ABSTRACT

At first glance, the notice of intention to appear (Form 8 of the Companies (Winding-Up) Rules 1972) in the context of winding-up proceedings may be synonymous with the memorandum of appearance. This unfortunate affinity has resulted in divergent approaches to its application, with one school of thought insisting that in order to participate in the proceedings, a respondent must file the notice of intention (in addition to the affidavit to oppose).

Distinguishably, a memorandum of appearance is filed in a civil suit to essentially state that the defendant is 'entering an appearance', thereby preventing a judgement in default to be entered against him. On the other hand, filing a notice of intention to appear in a winding-up petition is to make known to the court (and the petitioner) that the party lodging the said notice is either supporting or opposing the petition. It follows that the respondent, who is already a named party in the proceedings, is not required to lodge such a notice, as the court and the petitioner will be made aware of their intention (whether to oppose or to support the petition) upon receiving their affidavit in opposition.

This article will distillate the jurisprudential background, the comparative legislative analysis of selected jurisdictions, and the Malaysian setting of the notice of intention, and will contend that the correct legislative intent of the notice of intention to appear in the Malaysian winding-up courts does not encompass the respondent, and solely serves to enable certain categories of persons (principally the creditors or the contributories of the respondent company), to state their decided stand, viz whether to support or oppose the petition.

. . .

*LLB (Hons), Barrister-at-Law (Middle Temple), Pupil-in-Chambers in Liow & Co. The writer expresses her gratitude to Mr SK Liow from M/s Liow & Co for supervising and reviewing the draft of this article.

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2. MISTREATMENT AND ABUSE OF HUMAN RIGHTS IN THE CONTEXT OF UYGHURS: A CRITICAL EXAMINATION OF INTERNATIONAL LAW ^{[Read excerpt]}
   by Nehaluddin Ahmad^[i] Hanan Binti Dato Haji Abdul Aziz^[ii] Nor Zakiah Haji Ramlee^[iii] Muhd Khairul Hafiz bin Abdullah^[iv] [2022] 1 LNS(A) ix

[2022] 1 LNS(A) ix



INTERNATIONAL

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MISTREATMENT AND ABUSE OF HUMAN RIGHTS IN THE CONTEXT OF UYGHURS:
A CRITICAL EXAMINATION OF INTERNATIONAL LAW

by
Nehaluddin Ahmad^[i]
Hanan Binti Dato Haji Abdul Aziz^[ii]
Nor Zakiah Haji Ramlee^[iii]
Muhd Khairul Hafiz bin Abdullah^[iv]

ABSTRACT

The paper evaluates the vast number of allegations originating from independent and reliable sources, which suggest that the Uyghurs population in Xinjiang province, northwest of China, is subjected to many forms of severe mistreatment, abuse, repression and violations of international human rights by the Chinese government. The so-called violations of international law include mass surveillance and arbitrary detention of over 1 million Uyghurs, torture and inhuman treatment of detainees, forced separation of children from their parents, denial of the Uyghurs' right to practice their religion or speak their language, forced sterilization, forced labour, enforced disappearances, forcible transfer and deportation, and killings in detention. This paper aims to highlight the fundamental issues that triggered the emergence of the crisis, draw attention to the violations of human rights against the Uyghur community, and emphasize the need for intervention from the international community to resolve the conflict.

. . .

[i] MA, LLB, LLM (Lucknow University, India), LLM (Strathclyde University, UK), LLD (Meerut University, India), Professor of Law, Sultan Sharif Ali Islamic University (UNISSA), Brunei. Email:ahmadnehal@yahoo.com.

[ii] LLB (IIUM), LLM, PhD (UK), Lecturer, Sultan Sharif Ali Islamic University (UNISSA), Brunei.

[iii] MA, (Brunei), PhD (Jordan), Lecturer, Faculty of Shariah and Law, Sultan Sharif Ali Islamic University (UNISSA), Brunei.

[iv] LLB & Bachelor of Shariah (BSL) and LLM, Faculty of Shariah and Law, Sultan Sharif Ali Islamic University (UNISSA), Brunei.

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3. WILLS AND SAFE CUSTODY PACKETS: CAN THEY BE DISPOSED OF LAWFULLY?^{+ [Read excerpt]}
   by John Buxton* [2022] 1 LNS(A) x

[2022] 1 LNS(A) x



AUSTRALIA

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WILLS AND SAFE CUSTODY PACKETS:
CAN THEY BE DISPOSED OF LAWFULLY?⁺

by
John Buxton*

It is commonplace for solicitors to hold various documents of clients, especially Wills, Powers of Attorney and related instruments, for safe keeping. They invariably do so at the conclusion of a matter.

Since amendments to the Legal Profession (Solicitors) Conduct Rules 2015 (the Solicitors Conduct Rules) in 2016, provided the client has agreed in writing, the solicitor may charge for this arrangement.

This long-standing practice, previously done gratuitously, was rarely formalised in any agreement other than a passing reference to it in the final letter to the client. To have a significant safe custody facility was considered to be potential capital allowing for the likelihood of further instructions upon the death of the testator, or maintaining a degree of loyalty from the client which may lead to further and unrelated work during the period of holding.

Although the storage and subsequent retrieval of the documents is undertaken in many cases without controversy, a contrary experience appears to be emerging, where practitioners, wishing to unburden themselves of the documents, are unwittingly transferring such documents in breach of their common law duties.

. . .

+Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 261 Spring 2021.

*Wills and Estate Lawyer, Mcinnes Wilson Lawyers.

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