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Issue #48/2025
27 November 2025
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CASE SPOTLIGHTS
LIM SWEE CHOO & ANOR v. ONG KOH HOU & ANOTHER APPEAL [2025] 10 CLJ 341 For a breach to have the effect of entitling an innocent party to terminate a contract, it must be either: (i) a breach of condition; (ii) a sufficiently serious breach of an innominate/intermediate term; or (iii) a repudiation of the contract. The legal principles governing the award of restitutionary remedies have no application in determining whether a contract should be terminated for breach. A claim for restitution is available when there is a total failure of consideration. The applicable test for total failure of consideration is not whether the promisee has received a specific benefit but rather whether the promisor has performed any part of the contractual duties in respect of which payment is due. CONTRACT: Agreement - Assignment agreement - Assignor purchased four lands from developer - Assignment of four lands from assignor to assignee under assignment agreement - Breach by assignee's subsequent, unilateral sale and purchase agreement with developer for only three parcels at significantly higher price - Validity and enforceability of assignment of rights under earlier sale and purchase agreement - Whether assignee's unconscionable conduct barred claim for restitution against assignor CONTRACT: Agreement - Sale and purchase agreement - Breach - Restitution - Assignor entered sale and purchase agreements for purchase of four lands from developer - Assignment of four lands from assignor to assignee under assignment agreement - Breach by assignee's subsequent, unilateral sale and purchase agreement with developer for only three parcels at significantly higher price - Claim for return of money paid - Applicable test for total failure of consideration - Whether focus on promisor's performance of contractual duties or whether promisee received specific benefit - Whether assignor had performed contractual duties under assignment agreement - Whether assignee entitled to restitution - Whether Berjaya Times Square Sdn Bhd v. M-Concept Sdn Bhd good law JUDICIAL QUOTES“Before we conclude, we think that since aggravated damages have almost become the norm in medical negligence cases in Malaysia, there needs to be a clear and coherent statement of legal principle by the Federal Court as to whether, and in what circumstances if at all, aggravated damages should be permitted in medical negligence cases. For our part, we think that the courts should be slow to award aggravated damages in medical negligence cases. At any rate, there is in our view, an imperative need for this issue to be revisited and ventilated in the Federal Court, especially since we note that an important and relevant case such as Kralj v. McGrath [1986] 1 All ER 54 per Justice Woolf J (as he then was), was not considered by the Federal Court in Dr Hari Krishnan & Anor v. Megat Noor Ishak bin Megat Ibrahim & Anor Appeal [2018] 3 MLJ 281 case.” – Per S Nantha Balan JCA in Bukit Tinggi Hospital Sdn Bhd & Anor v. Navin Sharma Karam Chand & Anor And Another Appeal [2025] 10 CLJ 574 APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2025 Volume 10 (Part 1) (i) In disciplinary proceedings, a person facing a charge of misconduct has a fundamental right to be present when evidence is being taken from witnesses who testify either for or against him. While the right to cross-examine is not automatic in disciplinary proceedings, if the disciplinary body chooses to call witnesses, then the person should be given the right of cross-examination or, at the very least, the opportunity to articulate a response to the witness's statements; (ii) Appellate disciplinary proceedings can potentially cure earlier procedural defects only if the appellate proceedings themselves are conducted fairly and in strict accordance with the rules of natural justice. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Judicial review - Certiorari - Challenge against decision of appellate Disciplinary Committee - Vice-Chancellor ('VC') of public university found guilty of misconduct of insubordination and punished with reduction in rank - Appellate Disciplinary Committee confirmed decision of Disciplinary Committee - Allegation by VC that evidence of witnesses not taken in his presence - Whether there was breach of natural justice - Whether VC denied rights to be heard and to cross-examine witnesses - Principle of audi alteram partem - Statutory Bodies (Discipline and Surcharge) Act 2000 ADMINISTRATIVE LAW: Disciplinary proceedings - Rules of natural justice - Vice-Chancellor ('VC') of public university found guilty of misconduct of insubordination and punished with reduction in rank - Appellate Disciplinary Committee confirmed decision of Disciplinary Committee - Allegation by VC that evidence of witnesses not taken in his presence - Whether VC afforded opportunity to rebut, contradict or seek clarification of evidence - Whether VC denied rights to be heard and to cross-examine witnesses - Whether there were defects in disciplinary proceedings and investigation exercise pre-disciplinary proceedings - Whether defects cured by proceedings conducted by appellate Disciplinary Committee - Whether VC prejudiced - Statutory Bodies (Discipline and Surcharge) Act 2000
S Nantha Balan JCA
A bona fide redundancy arises when there is a surplus of labour due to legitimate business needs, such as a restructuring or cost-cutting exercise, even if the work itself continues to exist. The key is that the employer's needs now require fewer employees to perform the same tasks. The fact that the job functions of the retrenched employees are absorbed by existing staff does not negate a genuine case of redundancy. The focus is on the business's operational needs, not solely on whether the specific job has ceased to exist. LABOUR LAW | ADMINISTRATIVE LAW
LABOUR LAW: Employment - Dismissal - Retrenchment - Redundancy - Claimants resident engineers employed on fixed term contract of employment - Review by Government on large-scale projects resulted in significant changes to project - Project changes from project delivery partner model to turnkey or 'design and build' contract - Project's organisational chart and site supervision staff restructured - Claimants identified as redundant and retrenched - Whether there was redundancy - Whether bona fide redundancy arose - Whether there was surplus of labour due to legitimate business needs - Whether fact that job continued to exist meant that there was no genuine need for retrenchment - Industrial Relations Act 1967, s. 20 ADMINISTRATIVE LAW: Judicial review - Certiorari - Appeal - Claimants resident engineers employed on fixed term contract of employment - Review by Government on large-scale projects resulted in significant changes to project - Project changes from project delivery partner model to turnkey or 'design and build' contract - Project's organisational chart and site supervision staff restructured - Claimants identified as redundant and retrenched - Industrial Court held in claimants' favour and awarded compensation - High Court quashed Industrial Court's awards - Whether there was genuine need for retrenchment
S Nantha Balan JCA
A contemnor who clearly and unequivocally commits multiple breaches of a court order, representing a sustained and deliberate assault on the administration of justice and demonstrating a complete disregard for a court's authority reveals a conduct that strikes at the very foundation of the judicial system. As such conduct ought to be met with firm sanctions, custodial sentences are appropriate and necessary, particularly where there is no remorse and the contempt is persistent in nature, to reflect the gravity of the contempt and to deter similar conduct. CIVIL PROCEDURE
CIVIL PROCEDURE: Contempt of court - Committal proceedings - Application for committal against vexatious litigant - Court granted order declaring contemnor a vexatious litigant and restraining him from commencing legal proceedings without leave of court - Whether order binding and enforceable - Contemnor wilfully and persistently committed separate acts of contempt by filing multiple legal proceedings without obtaining required leave - Whether there were repeated breaches of vexatious litigant order - Whether contemnor's conduct a deliberate assault on administration of justice - Whether custodial sentence appropriate for serious breaches of court orders - Whether necessary to reflect gravity of contempt - Rules of Court 2012, O. 52 r. 2
Roz Mawar Rozain J
An officer shall not be terminated under sub-reg. 50(1) of the Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012 (‘Regulations’) unless the officer has been given an opportunity to show cause why his services shall not be terminated (reg. 52 of the Regulations). Failure to give an officer the right to show cause before the decision to terminate has been taken is a procedural impropriety, ie, a breach of the right to be heard before one is condemned by way of termination from service. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - Application to quash decision terminating applicant's service - Whether there was failure to give applicant show cause before making decision to terminate services - Whether there was breach of right to be heard - Whether there was procedural impropriety - Whether there was compliance with reg. 48 and sub-reg. 50(1) read with reg. 52 of Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012
Amarjeet Singh Serjit Singh J
The court is equipped with a discretionary power to cure procedural defects. Such defects that could be regularised pursuant to O. 41 r. 4 of the Rules of Court 2012 include a defect where the deponent had, through miscommunication, averred a fact regarding an event that has yet to take place. CIVIL PROCEDURE
CIVIL PROCEDURE: Irregularity - Affidavit - Application to regularise defect in affidavit in support - Deponent had inserted averments regarding event which had yet to take place ('defect') - Whether defect amounted to procedural irregularity curable under O. 41 r. 4 of Rules of Court 2012 ('ROC') - Whether defect mere clerical error - Whether deponent breached O. 41 r. 5 of ROC - Whether defect prejudicial to opposing party
Yusrin Faidz Yusoff JC
(i) The courts' role is to balance fairness with pragmatism, recognising the economic consequences of divorce while encouraging parties to adjust to a new, shared financial reality. While it is important to minimise the decline in one's standard of living, expecting to replicate the exact marital lifestyle is neither realistic nor supported by law; (ii) Any maintenance order must be grounded in realistic assessment of means and needs, not on speculative assumptions about wealth or punitive expectations divorced from financial reality. FAMILY LAW
FAMILY LAW: Maintenance - Spousal maintenance - Assessment - Husband and wife commenced petitions for judicial separation and divorce - Application by wife for monthly maintenance pending disposal of petitions - Wife sought monthly maintenance of RM3 million with yearly increment of 5% per annum - Whether wife financially incapacitated - Whether amount sought proportionate and supported by principles governing spousal maintenance - Whether supported by documentary or corroborative evidence - Whether husband had financial means to pay amount sought - Law Reform (Marriage and Divorce) Act 1976, ss. 77 & 78
Evrol Mariette Peters J
An application for a Mareva injunction that attempts to obtain preservation of assets for the enforcement of an existing judgment through the mechanism of a pre-judgment application in a fresh action is procedurally improper and legally untenable. The applicant cannot fashion the application as a pre-judgment Mareva injunction through a fresh action, while in substance seeking relief that is effectively in aid of execution of an existing judgment. Balance of convenience clearly favours a refusal of such application as it suffers from a fundamental conceptual flaw. CIVIL PROCEDURE
CIVIL PROCEDURE: Injunction - Mareva injunction - Application for - Whether pre-judgment Mareva injunction in fresh tracing action - Whether application tied to enforcement of award registered as judgment - Whether application attempted to obtain preservation of assets for enforcement of existing judgment through mechanism of pre-judgment application in fresh action - Whether application procedurally improper and legally untenable - Whether there was real risk of asset dissipation - Balance of convenience - Whether weighed against grant of application
Wan Muhammad Amin J
(i) The powers of the Commissioner of Buildings ('COB') are defined by the Strata Management Act 2013 ('SMA'). There are no provisions within the SMA or its Regulations that grant the COB the power to demand specific statutory declaration formats or to issue 'letters of recognition'. These acts are considered ultra vires; (ii) The COB should remain neutral and not enter the arena of internal disputes between proprietors regarding elections. Disputes must be resolved through proper legal channels, such as the Strata Management Tribunal; (iii) A bank cannot freeze a management corporation bank account, or refuse to recognise new signatories, based on a dispute among committee members. The bank must act on the official documents provided by the management corporation, such as meeting resolutions, even without a 'letter of recognition' from the COB. STRATA PROPERTY
STRATA PROPERTY: Commissioner of Buildings - Powers and roles - Whether Commissioner of Buildings ('COB') statutorily empowered to demand specific statutory declaration formats - Whether COB empowered to issue 'letters of recognition' - Whether COB may enter arena of internal disputes between proprietor regarding elections - Whether powers of COB circumscribed by Strata Management Act 2013
Gan Techiong JC
CLJ 2025 Volume 10 (Part 2) The breath test under s. 45B of the Road Transport Act 1987 is not an 'initial breath test' that makes it mandatory for an investigating officer to request further specimens of breath, blood, or urine under s. 45C. The court cannot read words into a statute that are not expressly stated. ROAD TRAFFIC | STATUTORY INTERPRETATION
ROAD TRAFFIC: Dangerous driving - Driving motor vehicle with alcohol concentration above prescribed limit - Breath test - Whether breath test under s. 45B(1) of Road Transport Act 1987 ('RTA') 'initial breath test' - Whether if positive, mandatory for investigating officer to request accused to provide two specimens of his breath or specimen of blood or urine under s. 45C(1) of RTA - Motor Vehicles (Breath, Blood and Urine Tests) Rules 1995 STATUTORY INTERPRETATION: Construction of statute - Road Transport Act 1987 - Driving motor vehicle with alcohol concentration above prescribed limit - Breath test - Whether breath test under s. 45B(1) of Road Transport Act 1987 ('RTA') 'initial breath test' - Whether if positive, mandatory for investigating officer to request accused to provide two specimens of his breath or specimen of blood or urine under s. 45C(1) of RTA
Ahmad Zaidi Ibrahim JCA
Jika mahkamah meminda pertuduhan di akhir kes pihak pendakwaan, itu akan memberi kesan bahawa tertuduh telah dibebaskan daripada pertuduhan asal. Mahkamah dikira telah memberikan keputusan/perintah yang muktamad terhadap tertuduh bagi pertuduhan asal. Dalam keadaan sebegitu, pihak pendakwaan boleh mengemukakan rayuan terhadap keputusan/perintah mahkamah itu, walaupun rayuan itu dikemukakan di akhir kes pihak pendakwaan. PROSEDUR JENAYAH
PROSEDUR JENAYAH: Rayuan - Rayuan terhadap keputusan Mahkamah Tinggi - Hakim Mahkamah Tinggi ('HMT') meminda pertuduhan bawah s. 302 Kanun Keseksaan ('KK') kepada pertuduhan bawah s. 304(a) KK ('pertuduhan pindaan') - Tertuduh-tertuduh diperintah membela diri terhadap pertuduhan pindaan - Sama ada HMT terkhilaf - Sama ada pihak pendakwaan telah membuktikan kesemua inti pati bagi kesalahan bawah s. 302 KK - Sama ada pihak pendakwaan berhak merayu terhadap keputusan HMT di akhir kes pihak pendakwaan PROSEDUR JENAYAH: Rayuan - Rayuan ke Mahkamah Persekutuan - Mahkamah Rayuan mengetepikan keputusan Mahkamah Tinggi yang meminda pertuduhan bawah s. 302 Kanun Keseksaan ('KK') ('pertuduhan asal') kepada pertuduhan bawah s. 304(a) KK - Tertuduh-tertuduh diperintah membela diri terhadap pertuduhan asal - Sama ada tertuduh-tertuduh berhak merayu terhadap dapatan prima facie di akhir kes pihak pendakwaan
Ahmad Zaidi Ibrahim HMR
A person challenging a public plan through judicial review must demonstrate a direct and personal interest that goes beyond the interests of the general public. If the challenge is brought in the guise of public interest litigation, it must genuinely champion a public injury and not merely serve the individual interests of the applicants. ADMINISTRATIVE LAW | LOCAL GOVERNMENT
ADMINISTRATIVE LAW: Judicial review - Locus standi - Challenge against legality of local plan for City of Kuala Lumpur - Allegations that final plan had material deviations and/or contradictions with draft plan - Whether applicants had requisite locus standi - Whether proceedings met test of public interest litigation - Whether applicants pursuing individual interests - Kuala Lumpur City Plan 2020 - Kuala Lumpur Structure Plan 2020 LOCAL GOVERNMENT: Town planning - Judicial review - Challenge against legality of local plan for City of Kuala Lumpur - Allegations that final plan had material deviations and/or contradictions with draft plan - Whether applicants had requisite locus standi to commence judicial review proceedings - Kuala Lumpur City Plan 2020 - Kuala Lumpur Structure Plan 2020
Amarjeet Singh Serjit Singh J
(i) An assembly notification, under the Peaceful Assembly Act 2012 ('PAA'), is valid only if it fully complies with the requirements of s. 10 of the PAA. Section 10(c) of the PAA mandates that an assembly notification must include the consent of the owner or occupier of the place of assembly. A public place that is subject to a local authority's control and care, such as a public car park, requires the consent of that authority if it is to be used for an assembly rather than its designated purpose; (ii) False imprisonment requires the complete and total restriction of movement. Partial restriction of freedom of movement does not amount to false imprisonment; (iii) A public officer's action based on a misinterpretation of the law does not constitute misfeasance in public office if he was not acting with reckless indifference to the limits of their authority or with reckless indifference to the probability of harming the plaintiff. CONSTITUTIONAL LAW | TORT
CONSTITUTIONAL LAW: Fundamental rights - Violation of - Rights under Peaceful Assembly Act 2012 ('PAA') and Federal Constitution - Organisers organised assembly at proposed venue to march to another destination - Conditions imposed by police - Whether complied with - Whether police acted ultra vires in using s. 15 of PAA to impose condition absolutely prohibiting assembly to be organised and in taking action to prevent march - Whether there was breach of constitutional rights TORT: False imprisonment - Peaceful assembly and march - Participants gathered at venue to march to another destination - Police formed human chain and blocked all participants from marching - Whether participants able to move about freely - Whether only partial restriction - Whether partial restriction of freedom of movement amounts to imprisonment TORT: Misfeasance in public office - Peaceful assembly and march - Organisers organised assembly at proposed venue to march to another destination - Public officer prohibited march due to misinterpretation of relevant law - Whether there was misfeasance in public office in imposing prohibition - Whether there was abuse of public power or authority by public officer - Whether public officer recklessly indifferent as to limits of his public power or authority - Federal Constitution, art. 132(1)(d)
Gan Techiong JC
(i) A party who participates in a court proceeding without objecting to the court's jurisdiction is estopped from raising a jurisdictional challenge on appeal. The submission to jurisdiction implies consent to the court's authority; (ii) Under proviso (a) to s. 121(1) of the Legal Profession Act 1976, a client's request for a detailed bill can render a previously delivered gross sum bill 'null and void'. The omission to issue an allocatur certificate under O. 59 r. 7(4) of the Rules of Court 2012 does not invalidate a court order for taxation of costs. A higher court can order the issuance of the certificate on appeal. There is no statutory or legal requirement for a law firm to notify a client in writing that it is retracting a gross sum bill in favour of a detailed itemised bill, nor is there a requirement to seek leave of the court to do so. COURTS | LEGAL PROFESSION
COURTS: Sessions Court - Jurisdiction - Sessions Court Judge heard taxation of bill of costs - Whether seized with jurisdiction to hear - Whether party who participates in court proceeding without objecting to jurisdiction estopped from challenging it on appeal LEGAL PROFESSION: Bill of costs - Taxation - Gross sum bill - Client's request for detailed bill - Whether rendered previous gross sum bill 'null and void' under s. 121(1) of Legal Profession Act 1976 - Whether law firm required to give written notice to client that it was retracting gross sum bill in favour of detailed bill - Whether omission to issue allocatur certificate under O. 59 r. 7(4) of Rules of Court 2012 invalidated taxation order
Aliza Sulaiman J
(i) In an allegation of professional negligence against solicitors in a specialised area such as conveyancing, generally, the standard of care must be established through expert evidence as established in the cases of Tetuan Theselim Mohd Sahal & Co & Ors v. Tan Boon Huat & Anor and Shearn Delamore & Co v. Sadacharamani Govindasamy. Pursuant to these cases, the court could not depend on the reasonable man's test as in ordinary negligence cases because the duty is assessed against the competence of a reasonably skilled practitioner in that specialised field. However, the principles in these cases are not strict rules applicable to every situation. Where the omissions or errors committed by the practitioner are blatant or obvious, the failure to call an expert witness is not fatal; (ii) The lower courts may depart from binding decisions of the higher courts if the lower courts are able to distinguish the case factually and provide sound reasons for departing from the established binding authorities. LEGAL PROFESSION | JURISDICTION
LEGAL PROFESSION: Duty of care - Professional negligence - Conveyancing practitioner - Allegation by client that solicitor breached duty by preparing defective document - Standard of care - Whether failure to call expert witness to demonstrate standard of care defeated client's case - Whether strict rules applicable - Whether absence of expert testimony fatal - Whether serious and basic errors that no competent solicitor should have made - Whether breach of duty established JURISDICTION: Courts - Sessions Court - Doctrine of stare decisis - Whether lower courts bound to follow binding precedent - Whether lower courts allowed to distinguish cases - Whether Sessions Court Judge justified in departing from authorities cited - Whether reliance on other binding decisions allowed - Whether Sessions Court Judge applied correct legal principles
Jamhirah Ali J
When stills from a video recording of a vehicle's dashcam clearly shows the traffic light facing the direction from where the motorcyclist is coming from is red, and a road accident occurs, the motorcyclist ought to be found guilty of an offence under r. 17 of the LN 167/59 for not obeying the traffic light signal. In this case, with no evidence of the video recording being tampered with, supported by various witnesses' accounts of the incident, the conviction of the motorcyclist is safe and a fine of RM1,000 imposed is, in the circumstances, reasonable. ROAD TRAFFIC
ROAD TRAFFIC: Accident - Collision between two vehicles - Failure to obey traffic light signal - Evidence from dashcam and memory card of motorcar - Authenticity of video - Whether tampered with - Whether admissible - Whether verified - Whether stills at time of collision showed traffic light facing direction from where motorcyclist was from showed red light - Whether conviction of motorcyclist safe - Whether fine imposed appropriate and reasonable
Anselm Charles Fernandis J
A stay of execution will be granted where special circumstances are established, particularly when immediate execution of the order would lead to irreversible consequences that could render an appeal nugatory. CIVIL PROCEDURE
CIVIL PROCEDURE: Stay - Stay of order - Application for - Director commenced oppression action - Oppressive conduct in management of company - High Court ordered reinstatement of director, disqualification of opposing party from directorship and removal of company secretary - Opposing party filed appeal at Court of Appeal and sought stay of execution of order pending determination of appeal - Whether there were special circumstances warranting stay of order - Whether immediate implementation of order would render appeal nugatory - Whether would cause irreversible prejudice - Whether application ought to be allowed
Atan Mustaffa Yussof Ahmad J
Anonymisation could, among others, prevent the parties from being exposed to public humiliation and reputational damage, especially in today's digitally connected and enduring media environment where once identities are disclosed, it could be circulated and preserved indefinitely online. Via anonymisation, parties could give full and frank evidence in court without fear, of such, thus preserving the integrity of judicial process. Anonymisation, as such, could not be refused merely on grounds that the children from a marriage had attained the age of majority, and one of the parties is holding the position of a senior public official. FAMILY LAW | WORDS & PHRASES
FAMILY LAW: Divorce - Petition - Application for - Anonymisation of identities of parties - Whether application should be allowed - Children had attained age of majority - Whether ground to refuse anonymisation - Whether anonymisation protective measure for all parties - Difference between 'public interest' and 'public's interest' - Whether disallowance of application would serve public interest - Whether position of parties ground for refusing anonymisation - Whether non-anonymisation could hinder prospects of settlement - Courts of Judicature Act 1964, s. 15(2) WORDS & PHRASES: 'public interest' and 'public's interest' - Meaning of - Whether family law cases inherently private - Whether non-disclosure of personal details of parties in matrimonial proceedings would serve broader public purpose
Evrol Mariette Peters J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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