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Issue #13/2023
23 March 2023
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New This Week
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CASE(S) OF THE WEEK
SILVAM SELLAPAN & ANOR v. TAMIL SELVAM VELUSAMY & ORS [2023] 3 CLJ 371 Trustees are not registered owners of a land and have no right to transfer a land to any other entity. Any transfer obtained by insufficient instrument and in clear violation of a declaration of trust ought to be set aside. In such case, there should be a reversion to the status quo ante; the name of the rightful owner should be restored to the issue document of title. LAND LAW: Ownership - Dispute - Dispute over ownership of parcel of land on which Government-aided school sits and operates - Trustees transferred land from school to charitable entity - Whether done in violation of declaration of trust - Whether transfer obtained by insufficient instrument - Whether transfer valid -Whether school legal entity that can hold land or otherwise entitled to hold land by being beneficiary of trust TRUSTS: Trustees - Dispute on ownership of land - Parcel of land on which Government-aided school sits and operates - Trustees transferred land from school to charitable entity - Whether done in violation of declaration of trust - Whether transfer obtained by insufficient instrument - Whether transfer valid - Whether school legal entity that can hold land or otherwise entitled to hold land by being beneficiary of trust APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2023 Volume 3 (Part 2) A moneylending business comes into play when there exists some degree of system and continuity in the moneylending transactions. A single loan at interest, while sufficient to raise a rebuttable presumption under s. 10OA of the Moneylenders Act 1951 ('MLA'), it is important to differentiate between an isolated act of moneylending and engaging in the business of moneylending. The MLA does not apply to an individual who lends money, even with interest, unless he makes a business from it. MONEYLENDERS
MONEYLENDERS: Moneylending transaction - Loan with interest - Loan secured by pledging properties as security - Claim for repayment of loan with interest - Whether lender carrying out 'business of moneylending' - Whether isolated act of moneylending - Whether presumption under s. 10OA of Moneylenders Act 1951 applicable - Whether lender imposed exorbitant interest MONEYLENDERS: Moneylending transaction - Loan with interest - Loan secured by pledging properties as security - Claim for repayment of loan with interest - Whether lender carrying out 'business of moneylending' - Restitutionary remedy - Whether may be ordered to prevent injustice or unjust enrichment - Whether borrower entitled to redeem properties upon repayment of loan - Whether retention of properties would cause lender to be unjustly enriched
LEE SWEE SENG JCA
The correct approach to an assessment of damages that a judge should adopt is to apply the principle that the measure of damages should be as defined in Livingstone v. Raywards Coal Co as 'that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.' When there is ample evidence before the court, both oral and documentary, that the injured party had suffered substantial damages, the judge should not be awarding merely nominal damages. CIVIL PROCEDURE
CIVIL PROCEDURE: Damages - Assessment of - Quantum - General damages - Correct approach to assessment - Proof of loss and damages - Measure of damages - Whether injured party ought to be put in same position as it would have been if it had not sustained wrong for which it is now getting compensation or reparation - Whether quantum of general damages awarded manifestly inadequate and wrong in principle CIVIL PROCEDURE: Damages - Assessment of - Quantum of - Loss of wages to be paid to employees during period of factory closure - Whether disconnection of electricity supply only lasted 13 days and not for three-month period - Whether reasonable award ought to be given
AZIZAH NAWAWI JCA
A scheme of arrangement is not workable when there is non-disclosure of materials needed, the proposed scheme is unreasonable and the composition of the scheme creditors is unfair. There is no reason to allow a company, that is saddled with enormous debts, to continue operating without a clear strategy to effectively manage its serious difficulties. It would only invite further woes to sanction a scheme of arrangement. COMPANY LAW
COMPANY LAW: Scheme of arrangement - Sanction and approval of court - Application for - Whether composition of scheme creditors fair - Whether composition fairly representative of class in question - Whether there was full disclosure of materials needed - Whether scheme of arrangement reasonable - Companies Act 2016, ss. 366, 368 & 369
AB KARIM AB JALIL JCA
Going by the language of s. 56(1) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ('AMLATFPUAA'), there is no requirement that a conviction under s. 4(1)(a) of the AMLATFPUAA or a terrorism financing offence must first be obtained before the applicant can apply for a forfeiture order. What is required is for the Public Prosecutor to satisfy himself that the seized property falls under paras. (a) or (b) or (c) or (d) of s. 56(1) of the same Act. If any property is derived from any unlawful activity such as the criminal offence of smuggling migrants to Malaysia by obtaining professional work permits improperly by way of falsifying academic documents, education certificates and also work application documents, it must be forfeited, irrespective of whether any person had been convicted or otherwise of the offence of money laundering. CRIMINAL LAW | WORDS & PHRASES
CRIMINAL LAW: Offences - Smuggling of migrants - Application for forfeiture of monies and properties - Whether properties proceeds of unlawful activity - Whether conviction under s. 4(1)(a) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 must be obtained before application for forfeiture order - Failure to explain source and frequent flow of cash deposits into account - Whether properties acquired as result of illegal activities under s. 26A of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Whether order of forfeiture ought to be made - Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, s. 56 - Passports Act 1966, s. 12(1)(h) CRIMINAL LAW: Forfeiture - Order of - Application for forfeiture of monies and properties - Whether properties proceeds of unlawful activity - Whether conviction under s. 4(1)(a) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 must be obtained before application for forfeiture order - Failure to explain source and frequent flow of cash deposits into accounts - Whether properties acquired as result of illegal activities under s. 26A of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Whether order of forfeiture ought to be made - Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, s. 56 - Passports Act 1966, s. 12(1)(h) WORDS & PHRASES: 'proceeds of unlawful activity' -Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, s. 56 - Whether property derived from unlawful activity - Criminal offences under s. 26A of Anti-Trafficking in Persons and Anti-Smuggling of Migrant Act 2007 - Whether properties and monies ought to be forfeited
KAMALUDIN MD SAID JCA
The municipal council is not estopped from entering and demolishing an illegal structure/building on account of there being notices issued as per the procedure laid down under the law. Similarly, the granting of extensions of time do not estop the municipal council from entering and demolishing an illegal structure; especially when no representation is made that no enforcement action would be taken. LOCAL GOVERNMENT
LOCAL GOVERNMENT: Local authority - Municipal council - Allegation of breach of duty of care - Claim for losses and damages - Claimant built building/structure on land without approval of municipal council - Municipal council issued notices and gave extensions of time to claimant before finally entering and demolishing building/structure - Whether notices issued and/or served properly - Whether claimant given reasonable time to vacate and remove items in building/structure - Whether, having granted extensions of time, municipal council was estopped from entering and demolishing building/structure - Whether claimant deprived of fundamental liberty under art. 5(1) of Federal Constitution - Whether conduct/action of municipal council in accordance with law and reasonable - Street, Drainage and Building Act 1974, ss. 72 & 120
ANAND PONNUDURAI J
An adopted child born after Malaysia Day who was registered as a Malaysian citizen, albeit based on false information given by her adoptive parents, meant that it would have been legally impossible for her to have acquired within one year after her birth the citizenship of any other country by virtue of any provision corresponding to s. 1(c) of Part II of the Second Schedule of the Federal Constitution ('FC') or otherwise. Thus, the child was a citizen of Malaysia by operation of law pursuant to art. 14(1)(b) and s. 1(e) and s. 2(3) of Part II of the Second Schedule of the FC. CONSTITUTIONAL LAW
CONSTITUTIONAL LAW: Citizenship - Citizenship by operation of law - Malaysian citizen couple adopted child - Identity of biological parents unknown - Child registered as Malaysian citizen based on false information and was issued birth certificate stating child as 'citizen' - Whether legally possible for child to acquire within one year of birth citizenship of any other country - Whether child citizen of Malaysia by operation of law pursuant to art. 14(1)(b) and s. 1(e) and s. 2(3) of Part II of Second Schedule of Federal Constitution - Whether child ought to be registered as citizen of Malaysia
FAIZAH JAMALUDIN J
A sub-contractor of a project owes contractual duties and a duty of care to the main contractor. However, as there is no contract between the main contractor and the sub-contractor's consultant, the latter does not owe any contractual duty to the former for the reason that there is no sufficient legal proximity. It is not in the public interest for a main contractor to commence a suit against the sub-contractor's consultant when the main contractor can institute a suit or arbitration against the sub-contractor regarding breaches of the sub-contractor's duties. TORT | CIVIL PROCEDURE
TORT: Negligence - Professional negligence - Duty of care - Main contractor appointed sub-contractor to complete certain works - Sub-contractor appointed consultant to complete works - Damages occurred to works - Main contractor commenced suit for professional negligence against sub-contractor's consultant - Whether suit ought to be allowed - Whether sub-contractor's consultant owed duty of care to main contractor - Whether there was sufficient legal proximity between main contractor and sub-contractor CIVIL PROCEDURE: Striking out - Application for - Claim for damages - Professional negligence - Main contractor appointed sub-contractor to complete certain works - Sub-contractor appointed consultant to complete works - Damages occurred to works - Main contractor commenced suit for professional negligence against sub-contractor's consultant - Whether sub-contractor's consultant owed duty of care to main contractor - Whether suit ought to be struck out - Rules of Court 2012, O. 18 r. 19(1)(a), (b) & (d)
WONG KIAN KHEONG J
The court, in a striking out application, should not conduct a minute examination of the documents and facts of the case. If the case, on the face of it, raises issues to be tried, the mere fact that the case is weak or that one party believed that the opposing party would likely not be successful in his case, could not be the basis for striking out the pleadings. CIVIL PROCEDURE
CIVIL PROCEDURE: Striking out - Defence - Application to strike out paragraphs in defendant's statement of defence - Whether statements baseless and irrelevant to case - Whether defendant allowed to plead facts deemed necessary for defence - Whether statements intended to shed bad character evidence - Whether statements ought to be expunged - Rules of Court 2012, O. 18 r. 19(1) CIVIL PROCEDURE: Striking out - Counterclaim - Application to strike out defendant's counterclaim - Whether defendant fulfilled elements for claim of tort of abuse of process - Whether process complained of had been initiated - Whether collateral purpose of counterclaim sufficiently pleaded - Whether reasonable cause of action raised by defendant in counterclaim - Whether there were conflicting facts and serious issues to be tried - Rules of Court 2012, O. 18 r. 19(1)
JOHAN LEE KIEN HOW JC
The meaning of 'welfare of child/children' must be considered in the widest sense and all factors necessary must be weighed against one another to arrive at a decision. While the welfare of child/children also encompasses their moral upbringing, the court must be cautious so as not to impose its own moral values on the parties and their child/children. FAMILY LAW
FAMILY LAW: Children - Welfare - Sole guardianship, custody, care and control of children - Application by husband/father - Allegations that wife/mother led very liberal and exhibitionist lifestyle, indulged in extramarital affairs and brainwashed and abused children - Whether allegations proven or substantiated with evidence - Whether conduct of wife/mother compromised parenting skills - Factors considered in deciding best interest of children
EVROL MARIETTE PETERS J
ARTICLESCLJ Article(s)
LNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
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