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Issue #13/2025
27 March 2025
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CASE SPOTLIGHTS
AZMI ALANG AHMAD v. SITI WAKI'AH MOHD NOR & ORS [2025] 3 CLJ 848 Since it is the intention of Parliament in legislating s. 77 of the Anti-Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ('AMLATFPUA') to provide immunity to officers of the competent authority or the relevant enforcement agency who perform their duties in good faith in enforcing the provisions of AMLATFPUA, civil suits naming such an officer either personally or in his/her official capacity ought to be struck out in limine unless it is proven that there is lack of good faith on the part of that officer. General averments of misfeasance are insufficient to justify naming an investigating officer as a co-defendant in a suit. CIVIL PROCEDURE: Striking out - Application for - Applicant sued in official capacity as investigation officer in enforcement agency - Whether applicant committed tort of misfeasance - Whether applicant had legal immunity pursuant to s. 87 of Central Bank of Malaysia Act 2009 - Whether applicant protected under s. 77 of Anti-Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Whether there was reasonable cause of action against applicant - Whether action frivolous, vexatious and abuse of court process - Whether suit ought to be struck out in limine - Rules of Court 2012, O. 18 r. 19 TORT: Misfeasance in public office - Suit - Immunity - Applicant sued in official capacity as investigation officer in enforcement agency - Whether applicant committed tort of misfeasance - Whether applicant had legal immunity pursuant to s. 87 of Central Bank of Malaysia Act 2009 - Whether applicant protected under s. 77 of Anti-Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Whether there was reasonable cause of action against applicant - Whether action frivolous, vexatious and abuse of court process - Whether suit ought to be struck out in limine - Rules of Court 2012, O. 18 r. 19 JUDICIAL QUOTES“The doctrine of promissory estoppel is an extension of the common law estoppel by representation. It is an English doctrine of equity and in certain circumstances provides an exception to the principle of consideration which must exist to form a valid contract. It must be borne in mind that estoppel aims to prevent unfairness, and applies when parties act on an agreement, making it unjust for one to revert to original terms. As far as the law on promissory estoppel is concerned, it cannot by itself give rise to a cause of action. In other words, promissory estoppel cannot be used to create an enforceable contract because of the absence of consideration. It is only used as a shield.” - Per Zabariah Mohd Yusof FCJ in Kuala Dimensi Sdn Bhd v. Port Kelang Authority [2025] 3 CLJ 497 APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2025 Volume 3 (Part 4) An agreement for the sale of a business, encompassing fixed assets, liabilities, and business contracts, constitutes a 'conveyance on sale' under s. 21(1) of the Stamp Act 1949, and is subject to ad valorem stamp duty under item 32(a) of the First Schedule to the said Act, even if the actual transfer of title occurs at a future date. In the case at hand, the intention of parties, as evidenced by the agreement, was to transfer ownership of the business assets. The timing of the actual transfer was immaterial in determining whether the agreement is a 'conveyance on sale.' The crucial factor was the intention to transfer property, not the precise moment of transfer. REVENUE LAW
REVENUE LAW: Stamp duty - Ad valorem stamp duty - Asset purchase agreement - Purchase of assets and liabilities - Collector of Stamp Duties ('Collector') assessed agreement with ad valorem duty on basis that agreement fell within ambit of s. 21(1) of Stamp Act 1949 ('Act') and item 32 of First Schedule to Act - Whether agreement was conveyance on sale within meaning of s. 21(1) of Act - Whether dutiable under item 32(a) of First Schedule of Act - Whether deeming provision in agreement made agreement instrument - Whether fell under s. 21(1) of Act - Whether agreement fell under exception under s. 21(1) of Act - Whether Collector may raise stamp duty assessment without specifying which sub-limb of item 32 of First Schedule to Act had been invoked
Abdul Rahman Sebli CJ (Sabah & Sarawak)
(i) Where the terms of a contract have been reduced to writing, the contract could only be proved by the document itself. It is not open to the contracting parties to seek to introduce and for the court to admit as evidence that would, inter alia, add new terms to it; (ii) The performance of existing contractual obligations under the original contract is not to be taken as sufficient consideration for any subsequent variation. Fresh consideration, in addition to that already owing, would need to be provided for the variation to be binding. CONTRACT
CONTRACT: Agreement - Terms - Validity - Consideration - Parties entered into various contracts in relation to project - Supplemental agreements - Whether agreements void - Whether there was consideration - Whether consideration to be proved only within four corners of agreement - Whether could be proved by extrinsic evidence - Whether 'practical benefit' test in William v. Roffey Bros and Nichollas (Contractors) Ltd good law - Whether parties, who had made their intention clear by entering into legal relations, bound by agreement to vary their previous agreement when they have acted upon former - Whether doctrine of estoppel ought to be invoked - Contracts Act 1950, s. 26
Zabariah Mohd Yusof FCJ
(i) Salah satu prinsip ekuiti yang diterima pakai di Malaysia berkaitan dengan undang-undang tanah adalah konsep amanah semata-mata. Konsep ini adalah berlandaskan pada kewujudan kontrak jualan hartanah antara pembeli dan penjual. Apabila pembeli menjelaskan keseluruhan harga belian, penjual, dari segi ekuitinya, akan menjadi pemegang amanah semata-mata pada pembeli; (ii) Sekiranya satu pendaftaran hak milik berlaku berikutan pemalsuan, iaitu pengecualian terhadap prinsip hak milik yang tidak boleh disangkal bawah s. 340(2)(b) Kanun Tanah Negara ('KTN'), maka pihak yang mencabar hak milik tersebut tidak perlu membuktikan pemilik hak milik berdaftar telah terlibat sama atau bersubahat dalam pemalsuan tersebut. Prinsip yang sama terpakai pada kategori pendaftaran lain bawah s. 340(2)(b) KTN iaitu berkaitan dengan penggunaan instrumen yang tidak mencukupi ataupun penggunaan instrumen yang tidak sah. UNDANG-UNDANG TANAH
UNDANG-UNDANG TANAH: Pindah milik - Kesahan - Pindah milik hartanah oleh pemaju kepada pihak ketiga tanpa pengetahuan pembeli hartanah - Sama ada harga belian dilunaskan dengan penuh - Sama ada nama pembeli perlu didaftarkan dalam hak milik sebaik harga belian dilunaskan sepenuhnya - Sama ada milikan kosong diberi kepada pembeli - Sama ada pembeli pemilik sebenar dan pemaju pemegang amanah semata-mata - Sama ada pemaju sebagai pemegang amanah semata-mata boleh berurus niaga dengan hartanah - Sama ada pemaju boleh melupuskan hartanah atas prinsip nemo dat quod non habet - Sama ada transaksi tidak sah ab initio - Sama ada hak milik diperoleh pihak ketiga boleh disangkal - Kanun Tanah Negara, ss. 340(2)(b) & (3) UNDANG-UNDANG TANAH: Hak milik dan kepentingan tak boleh sangkal - Pindah milik - Pindah milik hartanah oleh pemaju kepada pihak ketiga tanpa pengetahuan pembeli hartanah - Sama ada pihak ketiga pembeli bona fide dengan balasan bernilai - Sama ada pemaju pemegang amanah semata-mata untuk pembeli - Sama ada pemaju boleh berurus niaga dengan hartanah - Sama ada pemaju boleh melupuskan hartanah atas prinsip nemo dat quod non habet - Sama ada transaksi tidak sah ab initio - Sama ada hak milik pihak ketiga dicemari elemen-elemen pengecualian prinsip hak milik tak boleh disangkal bawah s. 340(2) Kanun Tanah Negara - Sama ada hak milik diperoleh pihak ketiga boleh disangkal
Hanipah Farikullah HMR
(i) There is no bar to the applicants filing a judicial review application where the decision being challenged is not a decision within the meaning of s. 26(1) of the Legal Profession Act 1976 ('LPA'); (ii) A statutory body such as the Legal Profession Qualifying Board only has powers and duties conferred upon it by the LPA and it has to act within those powers. When it decided to abolish articled clerkship, it would have gone beyond its powers as such power lay with Parliament. ADMINISTRATIVE LAW | LEGAL PROFESSION
ADMINISTRATIVE LAW: Judicial review - Dismissal of - Appeal against - Decision of Legal Profession Qualifying Board ('Board') rejecting application for registration of articled clerkship - Whether applicants failed to exhaust recourse of remedies under Legal Profession Act 1976 ('LPA') - Whether s. 26 of LPA bar to judicial review application - Whether Board exercised its statutory function under LPA - Whether applicants failed to comply with requirements under Legal Profession (Articled Clerks) Rules 1979 LEGAL PROFESSION: Qualifying Board - Articled clerkship - Application for registration of articled clerkship rejected by Legal Profession Qualifying Board - Whether applicants failed to exhaust recourse of remedies under Legal Profession Act 1976 ('LPA') - Whether s. 26 of LPA bar to judicial review application - Whether Board exercised its statutory function under LPA - Whether applicants failed to comply with requirements under Legal Profession (Articled Clerks) Rules 1979
See Mee Chun JCA
Parties to a contract are bound by the terms of the agreement that they had agreed to and when any contractual dispute arises and is brought to court, the court has a duty to defend, protect and uphold the sanctity of the contract unless such contract is vitiated by any circumstances recognised by the law. When the parties to a contract has explicitly agreed to their respective obligations under the contract, the issue of restitution or unjust enrichment pertaining to those explicit terms does not arise. The contract must be invalidated under any legal grounds before the aggrieved party may claim unjust enrichment or the right to restitution. CONTRACT
CONTRACT: Unjust enrichment - Restitution - Default in monthly payments under lease and maintenance agreements - Parties negotiated and entered into settlement agreement ('SA') and sale and purchase agreement ('SPA') to resolve outstanding payment in full and final settlement made up of transfer of land and payment of balance in instalments - Default in instalment payments under SA - Allegation by defaulting party that land transferred at value in excess of debt owed and there was overpayment - Claim for restitution premised on unjust enrichment - Whether defaulting party acknowledged validity of SA and SPA and agreed to purchase price of land - Whether SA and SPA challenged or set aside - Whether defaulting party could seek restitution for unjust enrichment - Whether election to treat SA and SPA as valid and binding constituted complete bar to claim for restitution on ground of unjust enrichment - Contracts Act 1950, ss. 71 & 73 CONTRACT: Coercion - Restitution - Default in monthly payments under lease and maintenance agreements - Parties negotiated and entered into settlement agreement ('SA') and sale and purchase agreement ('SPA') to resolve outstanding payment in full and final settlement made up of transfer of land and payment of balance in instalments - Default in instalment payments under SA - Allegation by defaulting party that land transferred at value in excess of debt owed and there was overpayment - Claim for restitution premised on coercion - Whether there was coercion - Whether there was criminal intimidation - Whether SA and SPA entered by parties on own volition and free will - Contracts Act 1950, ss. 14, 15, 19(1), 71 & 73
Supang Lian JCA
A statutory duty of care does not mean that there exists an automatic duty in common law by the relevant authority towards the body or class of persons the statute is intended for. Where the authority has done a positive act to the highway to create a danger, for example, if something is installed on the highway which inadvertently caused the accident, a common law duty arises, in accordance with the ordinary principles of tort law. Without the positive act by the authority, a plaintiff cannot plead the common law duty of care for omission by the authority. TORT
TORT: Negligence - Statutory duty - Claim by accident victim for breach of statutory duty - Accident caused by fallen trees and/or electricity poles - Claim against Jabatan Kerja Raya for failure to carry out maintenance work and breach of statutory duty of care - Whether trees and/or electricity poles brought down by landslide or overhanging branches - Whether danger caused by natural cause - Whether elements for negligence and breach of duty of care established - Whether burden of proof discharged
Noor Ruwena Md Nurdin JC
CLJ 2025 Volume 3 (Part 5) (i) The immunity from a suit and from other legal processes, in para. 1 of the First Schedule to the International Organizations (Privileges and Immunities) Act 1992 ('IOPIA') conferred upon the Asian International Arbitration Centre ('AIAC') as an international organisation, under the Kuala Lumpur Regional Centre for Arbitration regulations, is applicable to render the AIAC immune from judicial review, of acts and decisions made by the AIAC in its capacity as the domestic and statutory adjudication authority under the Construction Industry Payment and Adjudication Act 2012 ('CIPAA'); (ii) The IOPIA and the CIPAA do not oust the High Court's inherent powers in judicial review proceedings; (iii) There is no necessity to draw distinction on the capacity of the AIAC, either as an international arbitral institution or the statutory adjudication authority, before the AIAC is entitled to enjoy the immunity conferred under the IOPIA and the CIPAA. ARBITRATION | CONSTRUCTION LAW | CIVIL PROCEDURE
ARBITRATION: Proceedings - Immunity - Immunity of Asian International Arbitration Centre ('AIAC') - Judicial review application sought to impugn acts and decisions of AIAC - Functions of AIAC as statutory adjudication authority under Construction Industry Payment and Adjudication Act 2012 ('CIPAA') - Extent of immunity enjoyed by international organisation in Malaysia - Whether legal immunity conferred on AIAC pursuant to International Organizations (Privileges and Immunities) Act 1992 ('IOPIA') applied in judicial review proceedings brought against AIAC in relation to its domestic and statutory functions under CIPAA - Whether High Court's inherent powers in judicial review proceedings could be ousted by immunity conferred on AIAC by virtue of IOPIA and CIPAA - Whether there was necessity to draw distinction on capacity of AIAC either as international arbitral institution or statutory adjudication authority before AIAC entitled to immunity conferred under IOPIA and CIPAA CONSTRUCTION LAW: Adjudication - Arbitration - Immunity of Asian International Arbitration Centre ('AIAC') - Judicial review application sought to impugn acts and decisions of AIAC - Functions of AIAC as statutory adjudication authority under Construction Industry Payment and Adjudication Act 2012 - Extent of immunity enjoyed by international organisation in Malaysia - International Organizations (Privileges and Immunities) Act 1992 CIVIL PROCEDURE: Judicial review - Proceedings - Immunity of Asian International Arbitration Centre ('AIAC') - Judicial review application sought to impugn acts and decisions of AIAC - Functions of AIAC as statutory adjudication authority under Construction Industry Payment and Adjudication Act 2012 - Extent of immunity enjoyed by international organisation in Malaysia - International Organizations (Privileges and Immunities) Act 1992 Abang Iskandar PCA
A medical practitioner, who is proven to have failed to insert a proper central venous line ('CVL') into the left side of a patient's neck, causing air embolism, which caused or materially contributed to the patient's death, should be held responsible and liable, especially if an expert witness testified that if proper care had been exercised during and after insertion or during its removal, it could have picked up the fractured CVL which was not properly occluded. When there is a nexus between the unsuccessful attempt to insert the CVL on the patient and the medical practitioner, the latter had breached his medical professional duty of care, contributing to the deterioration of the patient's condition leading to premature death. TORT
TORT: Negligence - Medical negligence - Liability - Duty of care - Breach - Deceased died due to 'Hypoxic Ischaemic Encephalopathy Post Cardiac Arrest' and 'Hypovolemic Shock' - Whether fractured central venous line ('CVL') not properly occluded materially contributed to deceased's death - Whether proper care exercised during and after insertion or during removal of CVL - Whether medical practitioner who unsuccessfully inserted CVL ought to be responsible for death of deceased - Whether there was breach of medical profession duty of care TORT: Negligence - Medical negligence - Damages - Claim for - Quantum of damages - Assessment - Aggravated damages - Whether sum awarded manifestly high - Whether ought to be substituted with more reasonable sum
See Mee Chun JCA
A liquidator, who has the predominant role to safeguard the interests of unsecured creditors, has the status of an officer of the court pursuant to r. 63 of the Companies (Winding-up) Rules 1972. Therefore, the leave of the court is required before proceedings for the removal of a liquidator can be commenced. COMPANY LAW
COMPANY LAW: Liquidator - Sanction - Company wound up and liquidator appointed - Removal of court appointed liquidator - Whether applicant must first seek leave of court to commence proceedings against court appointed liquidators - Whether liquidator has status of officer of court - Companies (Winding-Up) Rules 1972, r. 63 - Companies Act 1965, s. 236(3)
Kamaludin Md Said JCA
(i) Silence cannot constitute acceptance to a contract unless there is a legal duty to speak. This principle is codified in ss. 3 and 4 of the Contracts Act 1950 which makes it clear that a positive act of communication is required for acceptance. Mere silence or inaction cannot be construed as assent by conduct; (ii) A director/shareholder's obligations as guarantor under guarantee and indemnity agreements are independent of his status as director/shareholder of a company. These obligations persist until discharged by full settlement. Neither the disposal of the director/shareholder's shares nor his resignation extinguishes his liabilities, particularly when the agreement designates him as a principal debtor; (iii) A lender has no duty to release a guarantor simply because they wish to divest their interest in the borrower, unless there is a formal application from the borrower and the lender agrees. The relationship between a lender and guarantor is primarily contractual, and absent specific contractual provisions or a formal request from the borrower, the lender is not obligated to replace a guarantor, even if it is aware of a share sale agreement between the guarantor and a third party. CONTRACT | CIVIL PROCEDURE
CONTRACT: Guarantee - Guarantor - Borrower company obtained loan facilities from financial institutions - Loan facilities guaranteed by directors/shareholders - Repayment fell into arrears - Director/guarantor sold shares to third party - Third party agreed to replace director/guarantor as guarantor - Director/guarantor sought to be released from obligations as guarantor under loan facilities - Whether obligations as guarantor independent of position as director/shareholder - Whether there was negligence in failing to facilitate change of guarantor - Whether financial institutions privy to or bound by any arrangement between director/guarantor and third party regarding guarantee CIVIL PROCEDURE: Striking out - Application for - Borrower company obtained loan facilities from financial institutions - Loan facilities guaranteed by directors of borrower company - Repayment fell into arrears - Director/guarantor sold shares to third party - Third party agreed to replace director/guarantor as guarantor - Director/guarantor sought to be released from obligations as guarantor of loan facilities - Whether there were triable issues - Whether there was reasonable cause of action - Whether action plainly unsustainable - Whether abuse of process - Whether action warranted full trial - Whether disputes could be summarily determined - Whether director/guarantor's action ought to be struck out
Atan Mustaffa Yussof Ahmad J
(i) Divorce proceedings should unfold within a jurisdiction deeply intertwined with the parties' lives, histories and circumstances. By doing so, it ensures a framework that is not only fair and equitable, but also firmly grounded in legal soundness, providing the most fitting context for resolving the complex issues at hand. When both parties are Malaysian citizens, their marriage solemnised within Malaysia and are both domiciled in Malaysia, Malaysia's jurisdiction to adjudicate the divorce proceedings between the parties is beyond question; (ii) Under Malaysian law, the principle that a married woman assumes the domicile of her husband upon marriage remains applicable, irrespective of the couple's physical living arrangements. Even if the parties are living apart, the wife's domicile remains tied to her husband's for as long as the marriage subsists; and (iii) Given the advancements in modern technology, logistical challenges are no longer decisive factors. The widespread use of remote hearings and online trials, now accepted in legal systems globally, have proven to be both efficient and effective, allowing full participation without the need for physical presence. Thus, the inconvenience of distance alone is insufficient to justify moving the forum from Malaysia. CIVIL PROCEDURE | FAMILY LAW
CIVIL PROCEDURE: Injunction - Anti-suit injunction - Application for anti-suit injunction restraining respondent from proceeding with divorce proceedings in Singapore court - Whether there was delay by petitioner in filing application - Whether petitioner already submitted to Singapore jurisdiction - Whether Malaysia natural forum to hear divorce proceedings - Whether Singapore proceedings would be vexatious or oppressive - Whether allowing application would offend principle of comity FAMILY LAW: Divorce - Proceedings - Application for anti-suit injunction restraining respondent from proceeding with divorce proceedings in Singapore court - Whether there was delay by petitioner in filing application - Whether petitioner already submitted to Singapore jurisdiction - Whether Malaysia natural forum to hear divorce proceedings - Whether Singapore proceedings would be vexatious or oppressive - Whether allowing application would offend principle of comity
Evrol Mariette Peters J
An arbitrator is said to have exceeded his jurisdiction, justifying setting aside of the final award, when he decides on a dispute that was not contemplated by or fell outside the scope of the parties' pleaded cases. This includes deciding on a 'new difference', which is a new dispute not within the original submission. While posing questions to both parties on the new difference may not automatically constitute a breach of natural justice, if the new difference forms the core basis of the arbitrator's decision, it demonstrates that the arbitrator has indeed decided on a matter outside their jurisdiction. ARBITRATION | WORDS & PHRASES
ARBITRATION: Arbitral award - Enforcement - Application for - Arbitration on construction matters - Termination of construction contract - Whether arbitrator decided on issues which departed from pleaded case - Whether arbitrator acted within jurisdiction - Whether natural justice observed - Whether award ought to be recognised and enforced as judgment or order - Arbitration Act 2005, s. 38 ARBITRATION: Arbitral award - Setting aside - Application for - Arbitration on construction matters - Termination of construction contract - Whether arbitrator decided on issues which departed from pleaded case - 'New difference' - Whether arbitrator exceeded jurisdiction - Whether there was breach of natural justice - Whether arbitral award in conflict with public policy - Whether ought to be set aside - Arbitration Act 2005, s. 37 WORDS & PHRASES: 'new difference' - Arbitration matters - Arbitrator decided on dispute not contemplated by, or not falling within terms of submission to arbitration - Whether 'new difference' - Whether relevant to claim - Whether ground for setting arbitral award aside - Arbitration Act 2005
Azlan Sulaiman J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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