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Issue #11/2023
09 March 2023
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CASE(S) OF THE WEEK
LEE AH SIN v. WASUNAN TONRAB & ANOR [2023] 3 CLJ 23 Order 14 of the Rules of Court 2012 is not applicable to contest probate matters which are governed exclusively by O. 72 and which must ordinarily be dealt with at a full trial. The only occasion when a contentious probate may be disposed of summarily is via the procedure as prescribed and on the occasion when O. 71 r. 38(1) and (2) applies. CIVIL PROCEDURE: Judgments and orders - Summary judgment - Probate action - Disputes regarding validity of wills - Whether matter could be decided summarily by affidavits - Whether there were contentious issues that must be dealt with at trial - Whether summary judgment procedure applicable to probate action - Rules of Court 2012, O. 14 , O. 72 APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2023 Volume 2 (Part 5) (i) The words used in an insurance policy must be given their plain and ordinary meaning in the context of the policy looked as a whole; (ii) The burden to prove that an insurance claim is false or fraudulent and falls within the exception of the insurance policy lies on the insurer. INSURANCE
INSURANCE: Indemnity - Professional indemnity policy - Legal firm insured with insurer - Legal firm sued - Insurer rejected legal firm's request for indemnity - Interpretation of clauses of policy as a whole - Whether trial judge misinterpreted policy - Whether burden of proof on legal firm to prove dishonesty instead of on insurer - Whether trial judge failed to consider evidence tendered during trial
KAMALUDIN MD SAID JCA
Courts are bound to observe judicial hierarchy for the orderly development of legal rules as well as for the courts and lawyers to regulate their affairs. The doctrine of stare decisis provides certainty and uniformity in the law and stabilises the law, hence, is an indispensable foundation to a decision. The Court of Appeal, as the highest court to determine appeals in criminal matters emanating from subordinate courts, when faced with two conflicting decisions of the Court of Appeal, ought to follow the later decision for there to be a finality and certainty in the law. CRIMINAL PROCEDURE | URISDICTION
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Break in chain of evidence - Charge under s. 15 of Dangerous Drugs Act 1952 - Collection of urine samples - Discrepancy in labelling of bottle containing sample - Whether affected identity and credibility of sample - Whether conviction safe URISDICTION: J Court of Appeal - Powers and jurisdiction - Court of Appeal highest court to determine appeals for criminal matters originating from subordinate courts - Application of doctrine of stare decisis - Whether principles governing Federal Court in Dalip Bhagwan Singh v. PP equally applicable to Court of Appeal - Whether later decision prevailed over earlier decision - Whether Magistrate correct in following later decision of Court of Appeal
KAMALUDIN MD SAID JCA
(i) A company is a separate entity, distinct from its shareholders, and therefore, the property owned by the company belongs to it and not to its shareholders. The shareholders have no legal nor equitable rights in the assets of the company; (ii) The shareholders of the company only recognises the registered shareholders of the shares, not the alleged trust created by a shareholders agreement. CIVIL PROCEDURE | CONTRACT
CIVIL PROCEDURE: Striking out - Action - Shareholders agreement - Triable issues - Whether arose - Whether claim unsustainable CONTRACT: Agreement - Shareholders agreement - Privity of contract - Doctrine of - Whether company separate entity distinct from shareholders - Whether shareholders have legal or equitable rights in assets of company - Whether shareholders recognise trust created by shareholders agreement
AZIZAH NAWAWI JCA
(i) When there is a reasonable basis for an employee to believe that she only has to fulfil a certain requirement in order to be released from her bond, a legitimate expectation has been created on the part of the employee that her employer had consented for her to go on an optional retirement; more so, when the requirement, being the sum of monies, had been paid to the employer and the employer acknowledges receipt of such payment. (ii) A statutory authority that makes available to its employees the option to retire early, must communicate its rejection of such application, especially when it is made after the basic and only requirement to be satisfied for the fulfilment of the option, had been met by the said employee. LABOUR LAW
LABOUR LAW: Wrongful dismissal - Claim - Declaratory reliefs and damages - Employee opted for early retirement due to health reasons - Employer informed employee of requirement to pay sum of RM30,000 to break scholarship bond - Employee paid sum and employer acknowledged receipt of payment of sum - Employee still required to report for work and disciplinary proceedings initiated against employee - Employee found guilty of charges and terminated from service - Employee lost right to pension, gratuity and golden handshake - Whether employee was entitled to apply for optional retirement - Whether decision to dismiss employee valid and correct - Whether decision complied with procedure laid down in Statutory Bodies (Discipline and Surcharge) Act 2000
JULIE LACK JC
The land office and its officers and personnel have a statutory duty to ensure that the information contained in its system is correct, true, accurate and safe for members of the public to rely upon for purposes of entering into a commercial transaction. Such information includes the true and actual description of the title to the land as well as the true identity of the registered proprietor thereof. Failure to ensure and maintain the correctness of such information lay grounds to a claim for negligence. TORT | LAND LAW
TORT: Negligence - Duty of care - Statutory duty - Breach - Purchaser purchased land and conducted land searches - Land searches confirmed land free from encumbrances - Purchaser unable to develop land and to secure development approvals - Discovery of overlapping ownership of land - Grant to land cancelled without notice to purchaser - Whether public officers at land office in breach of provisions of National Land Code for failure to properly maintain register of titles and other records - Whether there was breach of statutory duty - Whether caused purchaser to suffer loss and damages - Whether claim time-barred LAND LAW: Title - Indefeasibility of title - Purchaser purchased land and conducted land searches - Land searches confirmed land free from encumbrances - Purchaser unable to develop land and to secure development approvals - Discovery of overlapping ownership of land - Grant to land cancelled without notice to purchaser - Whether cancellation of grant null, void, ultra vires and of no legal effect - Whether purchaser enjoyed indefeasible title - Whether purchaser registered proprietor of land - National Land Code, ss. 89 & 340
MOHD FIRUZ JAFFRIL J
An order for advance payment by a defendant to a plaintiff on account of any damages or debt before judgment is pronounced can be made by the court if it appears that the plaintiff is likely to succeed and obtain a judgment. The goal of O. 22A of the Rules of Court 2012 is to alleviate any hardship that may be suffered by a plaintiff during the wait before judgment is pronounced. While the need or prejudice may be the usual basis upon which an interim payment is sought, it does not follow that an applicant for interim payment must show such need or prejudice before an interim order may be made. Further, the fact that there are sufficient complex issues of fact or law will not prevent the court from ordering an interim payment in respect of part of a complex claim where there is evidence establishing, with 'reasonable certainty', a minimum sum which is likely to be recoverable. CIVIL PROCEDURE
CIVIL PROCEDURE: Interim payment - Application for - Rules of Court 2012, O. 22A - Whether applicable - Whether applicant must show need or prejudice before interim order may be made - Whether issues arose unsuitable for summary disposal - Whether sufficient complex issues of fact and law would prevent court from ordering interim payment - Whether there was evidence establishing with 'reasonable certainty' minimum sum likely to be recoverable - Whether scale tilted in favour of order of interim payment - Whether application for interim payment allowed with reduced amount
HAYATUL AKMAL ABDUL AZIZ J
From the strict reading of the provisions of Arbitration Act 2005 ('Act'), it is clear that the Malaysian courts are precluded from granting orders relating to the enforcement of or the challenge to sums due under foreign arbitral awards outside of the specific powers granted under the Act. The Act is a complete and comprehensive statute which exhaustively and exclusively sets out the court's jurisdiction in respect of all matters relating to the registration and enforcement of arbitral awards, including foreign arbitral awards. This court has limited jurisdiction to grant any relief beyond that which is provided for under the Act. ARBITRATION | CIVIL PROCEDURE
ARBITRATION: Award - Foreign award - Jurisdiction - Recognition and enforcement of - Whether Malaysian courts precluded from granting orders relating to enforcement of or challenge to sums due under foreign arbitral awards - Whether plaintiff could restrain defendant from its legal right to apply to court for award to be recognised - Applicability of maxim of generalis specialibus non derogant - Whether defendant entitled to apply to court to have award recognised under s. 38 of Arbitration Act 2005 CIVIL PROCEDURE: Originating summons - Setting aside - Application for - Whether court precluded by Arbitration Act 2005 from granting reliefs sought by plaintiff in originating summons - Whether court has jurisdiction to hear originating summons - Specific Relief Act 1950, ss. 41 & 42 - Arbitration Act 2005, s. 38
WAN MUHAMMAD AMIN JC
When a proposed intervener is unable to demonstrate any equitable or legal interest in the subject matter of the case, there is no reason to grant the application to intervene. CIVIL PROCEDURE
CIVIL PROCEDURE: Parties - Intervention - Application by proposed intervener to intervene in suit - Whether application under O. 15 and O. 89 of Rules of Court 2012 could be applied together - Whether there was delay in applying to intervene - Whether proposed intervener had legal interest in subject matter of case
AZIZAN MD ARSHAD JC
CLJ 2023 Volume 2 (Part 6) A strict approach is taken by the court when construing statutory powers of executive detention. The Minister may order the detention of a person only upon considering the complete reports of the investigating officer and the inquiry officer, the submission of which is to be in compliance with s. 3(3) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('Act'). Any person arrested under s. 3(1) of the Act may be detained in police custody for the purpose of investigation for a period of up to 60 days without the issuance of an order of detention as ss. 3(2), 3(3) and 5(4), read harmoniously, provides the investigation officer and the inquiry officer 60-days to complete their investigation and inquiry before submitting their reports to the Minister. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Habeas corpus - Preventive detention - Challenge against detention order - Whether ex facie irregular - Whether complied with rational in Selva Vinayagam Sures v. Timbalan Menteri Dalam Negeri Malaysia - Whether facts distinguished from Selva Vinayagam - Whether applicant proven to have acted in association with substantial body of persons in dealing with illegal activity of drug trafficking - Whether investigation report and inquiry report made within prescribed time frame - Whether detention order valid - Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(2), (3), (4), 5(4), 6(1) & 22 CRIMINAL PROCEDURE: Police investigation - Detention order - Preventive detention - Application for habeas corpus - Challenge against detention order - Whether delay in completion and submission of investigating report and inquiry report - Whether investigating report and inquiry report to be completed before expiry of 60-day detention period - Absence of regulations by Minister under s. 22 of Dangerous Drugs (Special Preventive Measures) Act 1985 - Whether rendered detention order by Minister tainted and illegal - Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(2), (3), (4) & 5(4)
ABANG ISKANDAR CJ (SABAH & SARAWAK)
Arising from agreements and a letter of undertaking ('LOU') entered into between the parties, the travel agency is to charter aircrafts from the international charter airline and wet-lease operator. The travel agency's failure to do so while utilising scheduled commercial flights operated by other commercial airlines constituted breach of the LOU and is therefore liable to pay damages to the aggrieved party that suffered losses. CONTRACT
CONTRACT: Agreement - Letter of undertaking ('LOU') - Breach - Contractual relationship between parties - Terms and conditions of all agreements entered into - Agreement for travel agency to charter flights from international charter airline for Umrah flights - Travel agency utilised commercial airline flights instead - Failure to fulfil obligations - Whether there was a breach of LOU - Whether international charter airline suffered losses and has right to claim under LOU - Whether claim for damages allowed CONTRACT: Agreement - Letter of undertaking ('LOU') - Breach - Contractual relationship between parties - Terms and conditions of all agreements entered into - Agreement for travel agency to charter flights from international charter airline for Umrah flights - Travel agency utilised commercial airline flights instead - Failure to fulfil obligations - Whether there was breach of LOU - Whether travel agency's claims for payment for expenses incurred without basis - Whether counterclaim ought to be dismissed
SURAYA OTHMAN JCA
Prinsip-prinsip berkaitan konsep/skim pembangunan projek hartanah dan komuniti terkawal diiktiraf di Malaysia; dengan itu, garis panduan yang dibuat untuk memelihara konsep tersebut perlu dipatuhi. Kewujudan aktiviti-aktiviti komersil atas hartanah tersebut, yang bertentangan dengan syarat-syarat nyata kegunaan hartanah, khususnya apabila pembeli sedar sepenuhnya bahawa hartanah itu tertakluk pada konsep pembangunan projek hartanah dan komuniti terkawal, membentuk pelanggaran kontrak antara penjual dan pembeli hartanah tersebut. GANTI RUGI | KONTRAK | PENTAFSIRAN STATUT | UNDANG-UNDANG TANAH
GANTI RUGI: Pentaksiran - Pemecahan kontrak - Pembelian tanah dalam projek hartanah terkawal tertakluk pada syarat nyata pertanian - Pelanggaran syarat nyata oleh pembeli - Sama ada membentuk pemecahan kontrak - Sama ada penjual membuktikan kerugian dan kerugian disebabkan oleh pembeli - Sama ada ganti rugi dan pampasan kepada penjual wajar KONTRAK: Perjanjian - Tanah - Pembelian tanah dalam projek hartanah terkawal tertakluk pada syarat nyata pertanian - Perjanjian jual beli ('PJB') dan surat ikatan perjanjian ('DOC') dimeterai antara pihak-pihak - Sama ada pembeli terikat pada syarat-syarat dalam PJB dan DOC - Sama ada pertukaran syarat nyata pertanian membentuk pemecahan kontrak - Sama ada aktiviti-aktiviti bertentangan dengan syarat nyata adalah dilarang - Sama ada pelanggaran syarat nyata dibuktikan - Sama ada penjual berhak memperoleh injunksi dan ganti rugi PENTAFSIRAN STATUT: Definisi - 'rumah kediaman' - Pendekatan literal - Kanun Tanah Negara, s. 115 - Sama ada boleh ditafsirkan berasingan tanpa mengambil kira keseluruhan konteks peruntukan s. 115 KTN - Sama ada merujuk pada tanah pertanian - Sama ada hanya aktiviti berkaitan pertanian dibenarkan - Sama ada aktiviti korporat dan hospitaliti termasuk dalam tafsiran pertanian UNDANG-UNDANG TANAH: Jualan tanah - Jual beli hartanah - Pembelian dalam projek hartanah terkawal tertakluk pada syarat nyata pertanian - Perjanjian jual beli ('PJB') dan surat ikatan perjanjian ('DOC') dimeterai antara pihak-pihak - Sekatan terhadap penggunaan tanah selain daripada syarat nyata - Sama ada mengikat pembeli - Sama ada aktiviti-aktiviti bertentangan dengan syarat nyata adalah dilarang - Sama ada pelanggaran syarat nyata dibuktikan - Sama ada penjual berhak memperoleh injunksi dan ganti rugi SURAYA OTHMAN HMR
A bank as a judgment creditor ('JC'), in order to be a secured creditor, must be shown to hold a security for the debt due to the bank. Where the JC has no security to state, in that, the judgment debtor has not provided any security, the judgment debtor could not raise the application and compliance with s. 5(2) of the Insolvency Act 1967 against the JC. BANKRUPTCY
BANKRUPTCY: Creditor's petition - Opposition to - Judgment debtor ('JD') guaranteed grant of banking facilities to company without providing security - Company and JD defaulted in repayment - Whether issuance of creditor's petition in compliance with s. 5(2) of Insolvency Act 1967 - Whether judgment creditor secured creditor - Whether bankruptcy proceedings proceeded on one judgment - Whether judgment creditor's rights of consolidation of JD's accounts could be equated to creating security for facility in issue
YAACOB MD SAM JCA
Section 106 of the Strata Management Act 2013 merely excludes the court's jurisdiction if there is an earlier and pending claim filed within the Strata Management Tribunal's ('SMT') jurisdiction with the same claim filed in court. If the earlier proceedings before the SMT is withdrawn, abandoned or struck out, the court still has the jurisdiction to hear the claim. Likewise, if the claim before the court is withdrawn, abandoned or struck out, the SMT still has the jurisdiction to hear the claim. This is to avoid duplicity of proceedings and inconsistent decisions between the two forums. CIVIL PROCEDURE
CIVIL PROCEDURE: Striking out - Writ and statement of claim - Appeal against - Non-payment of renovation cost - Proprietors commenced suit against management corporation and trustee for parcels - Management commenced claims before Strata Management Tribunal ('SMT') against proprietors for outstanding contributions and renovation charges - Application to strike out proprietors' writ and statement of claim - Whether earlier proceedings before SMT withdrawn, abandoned or struck out - Whether court seized with jurisdiction to hear claim - Whether obviously unsustainable case - Whether ought to be struck out - Rules of Court 2012, O. 18 r. 19(1) - Strata Management Act 2013, s. 106
MOHAMAD ZABIDIN MOHD DIAH JCA (Civil Appeal No: W-02(IM)(NCC)24-01-2019)
The judgment creditor, who seeks the court to order the judgment debtor to transfer the monies that it had allegedly 'siphoned' into another account back to its respective accounts in order to enable the judgment creditor to garnish the same, has no legal basis for praying for such retransfer order pursuant to the court's inherent powers under O. 92 r. 4 of the Rules of Court 2012. Once the court has declined to grant an order absolute, the monies in the judgment debtor's accounts are unfrozen and the judgment debtor would be able to access and use the funds. The judgment creditor's application for the retransfer order, the judgment creditor having omitted to apply for a stay, is a form of abuse. CIVIL PROCEDURE
CIVIL PROCEDURE: Proceedings - Garnishee - Application to garnish funds taken out by judgment debtor - Whether judgment creditor had legal basis in seeking retransfer order - Effect of granting of order absolute being declined earlier by Senior Assistant Registrar - Whether court lifted freezing order and judgment debtor able to access and use funds - Failure of judgment creditor to file stay application - Whether fatal - Whether there was evidence of equitable fraud - Whether funds could still be garnished under O. 92 r. 4 of Rules of Court 2012
ATAN MUSTAFFA J
(i) A directive by the State Director of Customs, Selangor for certain goods to be re-exported is in accordance with the law and within his inherent powers under the Customs Act 1967; (ii) A company retains its legal personality and corporate powers during liquidation until the completion of the liquidation process and the dissolution of the company. Therefore, it is lawful for a company to carry on the importation of goods even after a liquidation order has been issued and insolvency proceedings has been commenced against it. CUSTOMS AND EXCISE
CUSTOMS AND EXCISE: Seizure - Goods - Containers of goods without valid import licence seized by Customs Department - Company paid compound for all containers - Customs Department issued notices of release but containers not released - Whether directive by State Director of Customs, Selangor for goods to be re-exported in accordance with law and within his inherent powers - Whether continuous seizure of goods unlawful and invalid - Whether lawful for company to carry out business when insolvency proceedings had been commenced against it - Whether company entitled to claim for special, general and exemplary damages - Customs Act 1967, s. 3(2) & (3)
FAIZAH JAMALUDIN J
The general belief that a pleading can only be struck out on an application by the opposing party is a clear misnomer. The court, on its own motion, is duty-bound to strike out a pleading if, inter alia, the pleadings may prejudice, embarrass or delay a fair trial. If the extent of the defects in a statement of claim is such that it cannot be cured by mere amendments, the more just and economical method is for the statement of claim to be struck out with liberty to file afresh. CIVIL PROCEDURE
CIVIL PROCEDURE: Statement of claim - Drafting of - Non-compliance - Failure to provide necessary particulars - Whether contained inherent defects - Whether court on its own motion duty-bound to strike out pleadings that may prejudice, embarrass or delay fair trial - Rules of Court 2012, O. 18 rr. 6, 7, 12 CIVIL PROCEDURE: Striking out - Pleadings - Statement of claim - Drafting of - Non-compliance - Failure to provide necessary particulars - Whether contained inherent defects - Whether court on its own motion duty-bound to strike out pleadings that may prejudice, embarrass or delay fair trial - Rules of Court 2012, O. 18 rr. 6, 7, 12
AKHTAR TAHIR J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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