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Issue #35/2020
20 August 2020

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New This Week

CASE(S) OF THE WEEK

BANK KERJASAMA RAKYAT MALAYSIA v. ZAINUL RIJAL ABU BAKAR & ANOR [2020] 7 CLJ 438
COURT OF APPEAL, PUTRAJAYA
UMI KALTHUM ABDUL MAJID JCA; HASNAH MOHAMMED HASHIM JCA; SURAYA OTHMAN JCA
[CIVIL APPEAL NO: W-02(A)-1179-06-2018]
02 JULY 2020

As so mandatorily required by s. 103D(1) of the Legal Profession Act 1976 (LPA), the Disciplinary Board, in seeking to depart from the findings and recommendations of the Disciplinary Committee, must provide reasons for its decision. Providing reasons, justification or elaboration as the case may be to support its view means that the Board must advert to some kind of thought-process explaining how it arrived at its conclusion. Where the Committee had ruled that a certain legal advice as given by a solicitor to his client lacked the element of dishonesty or fraud, and was thus a mere negligence or tortious oversight, and not misconduct as spoken of in s. 94(3) of the LPA, and the Board, in rejecting the Committee's finding, opined that the advice given was tantamount instead to gross misrepresentation but without giving any reasons therefor, then such an unreasoned finding constitutes nothing more than just a plain or bare view of the Board, and more, a clear breach of the mandatory requirement of s. 103D(1) LPA.

LEGAL PROFESSION: Disciplinary proceedings - Complaint against solicitor - Whether complaint satisfied requirements under s. 94(3) of Legal Profession Act 1976 - Disciplinary Board ('DB') disagreed with Disciplinary Committee's ('DC') findings and recommendation that no action be taken against solicitor - Appeal against decision of DB - Whether DB failed to provide reasons for not following findings of DC - Whether gross misrepresentation within scope of misconduct under Legal Profession Act 1976 - Whether there was element of biasness in decision of DB - Whether there was breach of s. 103D(1) of Legal Profession Act 1976


PP v. SAMSUL ARIFIN BAKAR [2020] 7 CLJ 503
COURT OF APPEAL, PUTRAJAYA
YAACOB MD SAM JCA; ZABARIAH MOHD YUSOF JCA; RAVINTHRAN PARAMAGURU JCA
[CRIMINAL APPEAL NO: A-06B-84-11-2018]
11 NOVEMBER 2019

Section 31A(1A) of the Dangerous Drugs Act 1952, which allows a urine sample to be taken by a police officer, appears to target drug addicts specifically and is a provision designed to preserve evidence within the possible constraints faced by a medical officer to examine the addict pursuant to s. 31A(1) of the Act. Section 31A(1A) cannot, however, be read to mean that the police, to be able to invoke the section, must first wait for the medical officer to determine whether it was or was not practicable for him to examine the addict, as time would be wasted and traces of drugs in the body of a suspect could have disappeared by the time the urine sample is obtained by the medical officer. In the premise, it must consequentially follow that the test result from a urine sample, as so obtained by the police officer under s. 31A(1A) herein, cannot be rendered inadmissible merely because it has not been proved that sending the suspect to a medical officer to take the urine sample in question is not practicable in the circumstances of the case.

CRIMINAL PROCEDURE: Acquittal and discharge - Appeal against - Appeal by prosecution - Accused charged with offence of self-administration and consumption of dangerous drugs - Traces of drugs found in urine - Accused acquitted and discharged without being called to enter defence - Police officer gave accused one bottle only and dipped strips in urine sample during preliminary test - Whether procedure for urine sample collection complied with - Whether two bottles ought to be used for urine collection - Whether urine sample contaminated - Whether necessary steps taken to request medical officer to take urine sample - Whether prima facie case established - Whether accused ought to be called to enter defence - Dangerous Drugs Act 1952, ss. 15 & 31A(1A)

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 15 - Self-administration and consumption of dangerous drugs - Traces of drugs found in accused's urine - Procedure for urine sample collection - Whether complied with - Police officer gave accused one bottle only and dipped strips in urine sample during preliminary test - Whether two bottles ought to be used for urine collection - Whether urine sample contaminated - Whether necessary steps taken to request medical officer to take urine sample - Whether s. 31A(1A) of Dangerous Drugs Act 1952 complied with - Whether prima facie case established


APPEAL UPDATES  
  1. Sulaiman Abdul Kadir v. PP & Other Appeals [2019] 1 LNS 1736 (CA) affirming the High Court case of PP v. Kamaruzaman Mohamed Shah & Ors [Criminal Trial No: 46-1-06/2011]

  2. Yan Naing Soe v. PP [2019] 1 LNS 1604 (CA) affirming the High Court case of PP v. Yan Naing Soe [Criminal Trial MTJB No: 45B-04-03/2016]

LATEST CASES

Legal Network Series

[2018] 1 LNS 1333

UTHAYAKUMAR PONNUSAMY v. ABDUL WAHAB ABDUL KASSIM & ORS

1. Reinstatement of substantive contempt proceedings would not be appropriate when the Court of Appeal had ruled that the leave granted by the High Court for contempt proceedings which was based on non-adherence of a mere administrative direction was defective.

2. Non-compliance of a mere administrative direction does not amount to contempt of court and thus procedures under O. 52 of the Rules of Court 2012 cannot be invoked.

CIVIL PROCEDURE: Action - Reinstatement - Substantive contempt proceedings - Contempt proceedings commenced as a result of non-compliance of mere administrative direction - Proceedings struck out following absence of applicant's counsel during case management - Court of Appeal ruled leave granted for contempt proceedings was defective - Whether contempt proceedings already nugatory - Whether reinstatement appropriate - Whether reinstatement should be allowed when there was absolutely no basis to pursue committal proceedings

CIVIL PROCEDURE: Contempt of court - Committal proceedings - Non-compliance of administrative direction - Whether there could be any contempt against mere non-adherence of an administrative direction - Whether procedures under O. 52 of Rules of Court 2012 could be invoked

  • For the appellant - M Manogaran; M/s Manogar & Co
  • For the respondent - Hanim Mohd Rashid & Muhammad Azmi Mashud; Peguam Kanan Persekutuan; Jabatan Peguam Negara

[2018] 1 LNS 1341

PP v. NASIR RAMLI

The conduct of the accused in leaving the badly injured and semi-conscious deceased alone in a car without attempting to seek medical treatment for the deceased, coupled with a history of beatings and criminal intimidation supported by police reports lodged by the deceased was sufficient to show that the accused was capable of and had intention to kill the deceased.

CRIMINAL LAW: Murder - Intention - Circumstantial evidence - Conduct of accused - Deceased died due to head injuries suffered - Injury to head caused bleeding to brain which was fatal - Accused was last seen with deceased - Accused refused to send deceased to hospital and left deceased alone in car in a semi-conscious condition - Existence of previous beatings and criminal intimidation reported by deceased to police against accused - Accused absconded and disappeared after incident - Whether accused was capable of committing crime - Whether accused had intention to kill deceased

  • For the prosecution - DPP Wan Mohd I'zzat Wan Abdullah (at the end of the prosecution stage) & DPP Mohd Fuad Abdul Aziz (at the end of defence case)
  • For the accused - Robert Ayu of Jaini; Robert & Lau

[2019] 1 LNS 426

SUNDRA MOORTHY SENDARAYAN lwn. PP

Mahkamah perlu melihat sama ada tertuduh mempunyai sebarang pembelaan yang kukuh terhadap pertuduhan dalam menimbangkan pengakuan salah sebagai faktor mitigasi ketika menentukan hukuman. Hukuman pemenjaraan yang panjang adalah berasas dan mempunyai justifikasi yang kukuh apabila tertuduh telah mengkhianati amanah dengan merogol anak saudaranya.

PROSEDUR JENAYAH: Penghukuman - Prinsip-prinsip penghukuman - Kesalahan rogol statutori - Mitigasi - Pengakuan salah - Mangsa mempunyai pertalian darah dengan tertuduh - Sama ada penyandaran kepada pengakuan salah semata-mata merupakan faktor mitigasi yang utama untuk meringankan hukuman yang dijatuhkan - Sama ada pembelaan yang kukuh terhadap pertuduhan perlu wujud dalam menimbangkan pengakuan salah sebagai faktor mitigasi - Sama ada hukuman bersifat menghalang atau mencegah perlu dijatuhkan - Sama ada hukuman pemenjaraan yang panjang adalah berasas

  • Bagi pihak perayu - Kannan Ratnam; T/n Sundarajan & Associates
  • Bagi pihak responden - TPR Anis Wahidah Mohammad; Bahagian Pendakwaan, Jabatan Peguam Negara; Pusat Pentadbiran Kerajaan Persekutuan

[2019] 1 LNS 427

PP lwn. SHEIKDAWUD M MOHAMED MUSTAFA & YANG LAIN

Perbuatan tertuduh yang hadir di tempat kejadian bagi memastikan wang tersedia bagi urusan penjualan dadah yang dibincangkan dan penyerahan dadah oleh tertuduh kepada agen provokator merupakan satu perbuatan penyerahan sebenar dadah bagi tujuan pengedaran. Penyerahan sebenar telah berlaku walaupun wang yang disediakan tidak diserahkan.

UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Penyerahan sebenar dadah - Penglibatan agen provokator - Kewujudan perundingan dan penyerahan dadah kepada agen provokator - Sama ada wujud penyerahan sebenar - Sama ada transaksi penjualan dadah telah lengkap walaupun wang tidak lagi diserahkan

PROSEDUR JENAYAH: Pembelaan - Penafian - Tertuduh menafikan mempunyai pengetahuan berkenaan dadah berbahaya - Tertuduh mendakwa dadah adalah milik penama yang lain yang ditahan bersama tertuduh - Penama yang dicadangkan oleh tertuduh adalah individu penting dalam naratif kes pembelaan dan tidak dipanggil sebagai saksi - Sama ada kegagalan untuk memanggil penama yang dicadangkan oleh tertuduh telah memberi kesan pada keberatan dan kredibiliti pembelaan

  • Bagi pihak perayu (1) - Selvam Shanmugam; T/n Selvam Shanmugam & Partners
  • Bagi pihak perayu (2) - Kitson Foong; T/n Kit and Associates
  • Bagi pihak perayu (3) - Amritpal Singh; T/n Amrit & Co
  • Bagi pihak pendakwaan - Siti Balkiah Abd Yazaid, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Selangor

[2019] 1 LNS 458

EMIRIZWAN MOHD ROSLAN lwn. TENAGA NASIONAL BHD

Kewujudan surat defendan yang tidak menafikan liabilitinya terhadap kerosakan kabel elektrik kepunyaan plaintif serta tuntutan plaintif dan diikuti dengan permohonan bayaran ansuran baki tuntutan tidak mewujudkan isu-isu yang mewajarkan perbicaraan.

PROSEDUR SIVIL: Penghakiman terus - Kecuaian - Tuntutan untuk kerugian dalam membaikpulih kabel elektrik dan kerugian jualan unit elektrik - Kerosakan kabel elektrik plaintif akibat kerja-kerja pengorekan Tanah oleh defendan - Kewujudan surat pengakuan liabiliti defendan terhadap kerosakan kabel dan permohonan bayaran ansuran untuk baki tuntutan - Defendan cuba untuk mempertikaikan surat-surat yang dikeluarkan oleh defendan - Ketiadaan laporan polis berkenaan dakwaan pemalsuan tandatangan - Sama ada pembelaan defendan bersifat penafian kosong - Sama ada tuntutan plaintif dihalang had masa - Sama ada terdapat isu-isu untuk dibicarakan

  • Bagi pihak plaintif - Sarah Hani Rohizam; T/n Lim Huck Aik & Co
  • Bagi pihak defendan - Muhamad Imran Mohamad Farok; T/n Rosli Ismail & Co

CLJ 2020 Volume 7 (Part 4)

Promotion for a public servant always comes within the purview of the Public Service Commission and is dependent on such factors as merit, personal qualities, length of service et cetera. Promotion for a holder of a post within the Civil Service is not an entitlement and thus can never be an automatic progression of a public servant's career within the service. Where therefore a public servant has been subjected to disciplinary investigations by his Department or Departmental Head, and thereafter has not been promoted to higher posts or salary grades, that per se cannot translate to a case of unfair or unlawful deprivation of promotions, and likewise, cannot form a basis for a claim for damages against the Government.
Ang Ek Koon v. Director, Public Works Department Sarawak & Ors [2020] 7 CLJ 423 [CA]

ADMINISTRATIVE LAW: Public officer - Deprivation of promotion - Allegations of - Public officer subjected to investigation following allegations of improper expenditure and abuse of authority - Allegations by public officer that he missed out on promotions to higher salary grades due to being shabbily dealt with in disciplinary proceedings - Whether disciplinary proceedings cause of public officer missing out on promotions - Whether warning letter issued to public officer amounted to punishment - Whether disciplinary proceedings properly convened - Whether public officer entitled to promotion - Whether promotion guaranteed

 

 

UMI KALTHUM ABDUL MAJID JCA
AB KARIM AB JALIL JCA
RAVINTHRAN PARAMAGURU JCA

  • For the appellant - Mekanda Singh Sandhu, Bong Ah Loi, Kalveet Singh Sandhu & Irving Ting; M/s Suhaili & Bong Advocs
  • For the respondents - Mohd Adzrul Adzlan & Beatrice Minda Ak Winston Bale; SLOs, Sarawak

As so mandatorily required by s. 103D(1) of the Legal Profession Act 1976 (LPA), the Disciplinary Board, in seeking to depart from the findings and recommendations of the Disciplinary Committee, must provide reasons for its decision. Providing reasons, justification or elaboration as the case may be to support its view means that the Board must advert to some kind of thought-process explaining how it arrived at its conclusion. Where the Committee had ruled that a certain legal advice as given by a solicitor to his client lacked the element of dishonesty or fraud, and was thus a mere negligence or tortious oversight, and not misconduct as spoken of in s. 94(3) of the LPA, and the Board, in rejecting the Committee's finding, opined that the advice given was tantamount instead to gross misrepresentation but without giving any reasons therefor, then such an unreasoned finding constitutes nothing more than just a plain or bare view of the Board, and more, a clear breach of the mandatory requirement of s. 103D(1) LPA.
Bank Kerjasama Rakyat Malaysia v. Zainul Rijal Abu Bakar & Anor [2020] 7 CLJ 438 [CA]

LEGAL PROFESSION: Disciplinary proceedings - Complaint against solicitor - Whether complaint satisfied requirements under s. 94(3) of Legal Profession Act 1976 - Disciplinary Board ('DB') disagreed with Disciplinary Committee's ('DC') findings and recommendation that no action be taken against solicitor - Appeal against decision of DB - Whether DB failed to provide reasons for not following findings of DC - Whether gross misrepresentation within scope of misconduct under Legal Profession Act 1976 - Whether there was element of biasness in decision of DB - Whether there was breach of s. 103D(1) of Legal Profession Act 1976

 

 

UMI KALTHUM ABDUL MAJID JCA
HASNAH MOHAMMED HASHIM JCA
SURAYA OTHMAN JCA

  • For the appellant - Abdul Rashid Ismail & Azreen Ahmad Rastom; M/s Rashid Zulkifli
  • For the 1st respondent - Mohamad Haaziq Pillay & Manisha Sugunesegran; M/s J S Pillay & Mohd Haaziq
  • For the 2nd respondent - Mazura Mohd Amin; M/s Mohanadass Partnership

A registered proprietor of a piece of land is entitled to have any structure encroaching on his land demolished, or alternatively to offer for sale the area occupied by the impugned structure. It is contrary to the finality of a registered title if a neighbour's enjoyment of his land can extend beyond his registered entitlement so as to include the adjacent land belonging to another neighbour or proprietor.
ECH Development & Management Sdn Bhd v. Prabagaran Perumal & Anor And Another Appeal [2020] 7 CLJ 451 [CA]

TORT: Trespass - Land - Developer sold land to purchasers - Size of land in final title different from size stated in sale and purchase agreement - Mistake by Land Office - Developer paid damages to purchasers for shortfall in size of land - New title issued for shortfall land to developer - Part of structure of house built on new title - Whether amounted to trespass to land

TORT: Negligence - Land - Developer built house on land and sold it to purchasers - Size of land in final title different from size stated in sale and purchase agreement - Mistake by Land Office - Developer paid damages to purchasers for shortfall in size of land - New title issued for shortfall land to developer - Part of structure of house stood on new title - Whether developer negligent in building house and compound outside boundary of title

 

 

ZALEHA YUSOF JCA
AB KARIM AB JALIL JCA
LEE SWEE SENG JCA

(Civil Appeal No: W-02(NCVC) (W)-1761-08-2018)

  • For the appellant - Low Kok Hee, Chan Chui Tin & Ainur Rabiatuadawiyah Hassim; M/s Jal & Lim
  • For the respondent - Kamaleswari Shanmugam & Sandeep Singh; M/s Kamales & Partners

(Civil Appeal No: W-02(NCVC) (W)-1778-08-2018)

  • For the appellant - Kamaleswari Shanmugam & Sandeep Singh; M/s Kamales & Partners
  • For the respondent - Low Kok Hee, Chan Chui Tin & Ainur Rabiatuadawiyah Hassim; M/s Jal & Lim

A beneficiary to an estate, in commencing an action on behalf of the estate, requires Letters of Administration (LA) and needs to show special circumstances to support the suit. This said, it is not utterly erroneous to say that a beneficiary also has an equity which may entitle him to seek on behalf of the estate the remedy of a declaratory judgment. Hence, where a property under an estate has been fraudulently transferred to a purported purchaser, the beneficiary is entitled and indeed empowered in law, even in the absence of the LA, to institute an action to set aside or nullify the fraudulent transfer. The action is competent and valid, as the fraudulent transfer, by itself, provides the required special circumstances and clothes the beneficiary with the required locus standi.
Lai Wooi Giap v. Rosli Zakaria & Anor [2020] 7 CLJ 477 [CA]

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LAND LAW: Transfer - Estate land - Estate land of deceased owner fraudulently transferred - Whether beneficiaries of estate land may file to set aside transfer without obtaining letters of administration - Whether absence of letters of administration obstruction to take legal steps to protect subject land - Whether special circumstances existed warranting filing of action to regain ownership of land - Whether transferee ceased to have indefeasible title under s. 340(2)(b) of National Land Code

SUCCESSION: Administration - Action for regaining ownership of land - Estate land of deceased owner fraudulently transferred - Whether beneficiaries of estate land may file to set aside transfer without obtaining letters of administration - Whether absence of letters of administration obstruction to take legal steps to protect subject land - Whether special circumstances existed warranting filing of action to regain ownership of land

 

BADARIAH SAHAMID JCA
LAU BEE LAN JCA
S NANTHA BALAN JCA

  • For the appellant - Nashvinder Singh Gill & Gurdit Singh; M/s Sharif & Khoo
  • For the respondents - Effendi Syah Noordin; M/s Effendi & Co

A company involved with leasing transactions in Labuan such as the appellant falls within the purview of the Labuan Financial Services Authority ('LFSA'), a central regulatory, supervisory and enforcement authority of the international business and financial services industry in Labuan. The requirements for payment of fee and approval from the LFSA for every subsequent leasing transaction under Item 8.2 of the Guidelines on the Establishment & Operations of Labuan Leasing Business is not ultra vires s. 7(6) of the Labuan Companies Act 1990, and needs therefore to be complied with by the appellant.
Nabors Drilling (Labuan) Corporation v. Lembaga Perkhidmatan Kewangan Labuan [2020] 7 CLJ 496 [CA]

ADMINISTRATIVE LAW: Judicial review - Application to quash decision - Labuan Financial Services Authority - Power to issue Guidelines on Establishment & Operations of Labuan Leasing Business - Requirement for payment of fee and to obtain approval for every subsequent leasing transaction - Whether item 8.2 of Guidelines ultra vires s. 7(6) of Labuan Companies Act 1990 ('LCA') - Whether Labuan Financial Services and Securities Act 2010 prevails over LCA

 

 

VERNON ONG LAM KIAT JCA
ABDUL RAHMAN SEBLI JCA
STEPHEN CHUNG JCA

  • For the appellant - Mohd Arief Emran Arifin, Jason Liang Dinghui & Kellie Allison Yap; M/s Wong & Partners
  • For the respondent - William Lim Wee Chong, Nur Izzati Rosli & Sylvia Tan Sze; M/s Ariff Rozhan & Co

Section 31A(1A) of the Dangerous Drugs Act 1952, which allows a urine sample to be taken by a police officer, appears to target drug addicts specifically and is a provision designed to preserve evidence within the possible constraints faced by a medical officer to examine the addict pursuant to s. 31A(1) of the Act. Section 31A(1A) cannot, however, be read to mean that the police, to be able to invoke the section, must first wait for the medical officer to determine whether it was or was not practicable for him to examine the addict, as time would be wasted and traces of drugs in the body of a suspect could have disappeared by the time the urine sample is obtained by the medical officer. In the premise, it must consequentially follow that the test result from a urine sample, as so obtained by the police officer under s. 31A(1A) herein, cannot be rendered inadmissible merely because it has not been proved that sending the suspect to a medical officer to take the urine sample in question is not practicable in the circumstances of the case.
PP v. Samsul Arifin Bakar [2020] 7 CLJ 503 [CA]

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CRIMINAL PROCEDURE: Acquittal and discharge - Appeal against - Appeal by prosecution - Accused charged with offence of self-administration and consumption of dangerous drugs - Traces of drugs found in urine - Accused acquitted and discharged without being called to enter defence - Police officer gave accused one bottle only and dipped strips in urine sample during preliminary test - Whether procedure for urine sample collection complied with - Whether two bottles ought to be used for urine collection - Whether urine sample contaminated - Whether necessary steps taken to request medical officer to take urine sample - Whether prima facie case established - Whether accused ought to be called to enter defence - Dangerous Drugs Act 1952, ss. 15 & 31A(1A)

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 15 - Self-administration and consumption of dangerous drugs - Traces of drugs found in accused's urine - Procedure for urine sample collection - Whether complied with - Police officer gave accused one bottle only and dipped strips in urine sample during preliminary test - Whether two bottles ought to be used for urine collection - Whether urine sample contaminated - Whether necessary steps taken to request medical officer to take urine sample - Whether s. 31A(1A) of Dangerous Drugs Act 1952 complied with - Whether prima facie case established

 

YAACOB MD SAM JCA
ZABARIAH MOHD YUSOF JCA
RAVINTHRAN PARAMAGURU JCA

  • For the appellant - Nik Suhaimi Nik Sulaiman, Umar Saifuddin Jaafar, Faizah Mohd Salleh; DPP
  • For the respondent - V Santhiran; M/s Charanjit, V Santhiran & Partners

Although an application for assessment of damages should be done 'with all convenient speed', the delay, for valid reasons, ought not to deprive the party, in whose favour the liability issue was decided, the benefit of the decision. Order 37 r. 1 of the Rules of Court 2012 must be read with O. 34 to ensure that all proceedings are proceeded with justly, expeditiously as well as economically.
Vellasamy Ponnusamy & Ors v. Gurbachan Singh Bagawan Singh & Anor [2020] 7 CLJ 512 [CA]

CIVIL PROCEDURE: Assessment of damages - Application for - Delay - Whether delay was for valid reasons - Whether application breached O. 37 r. 1 of Rules of Court 2012 - Whether O. 37 to be read with O. 34 - Whether other party or court should have fixed assessment of damages where plaintiffs failed to do so - Whether reading O. 37 in isolation would lead to miscarriage of justice

 

 

HAMID SULTAN ABU BACKER JCA
HANIPAH FARIKULLAH JCA
KAMALUDIN MD SAID JCA

  • For the appellants - Ambiga Sreenevasan, DP Vijandran & Ragunath Kesavan; M/s DP Vijandran Assocs
  • For the respondents - Malik Imtiaz & Rabinder Singh; M/s Bachan & Kartar

A claim for losses arising from an agreement, especially one where there are allegations of payment of large sums of money, must be supported by hard evidence. Failure to do so may lead to the irresistible conclusion that no such payment was made.
Yayasan Selangor v. Aviation Development Corporation (M) Sdn Bhd [2020] 7 CLJ 529 [CA]

CONTRACT: Agreement - Joint venture agreement - Claim - Parties entered into joint venture agreement to develop land - Failure to fulfill condition precedent to joint venture agreement - Allegations that there were cash payments made under agreement - Claim for outstanding sum being balance sum for transfer of land - Whether losses claimed for fell within scope of agreement - Whether there were cash payments made - Whether claim substantiated - Whether losses proved - Whether claim attempt to take advantage of own breach - Whether claim for losses supported by documentary evidence and testimonies of witnesses - Whether claim ought to be allowed

 

 

ABANG ISKANDAR JCA
VERNON ONG LAM KIAT JCA
HARMINDAR SINGH DHALIWAL JCA

  • For the appellant - Malek Imtiaz Sarwar, Chan Wei Jun & Fahda Nur Ahmad Kamar; M/s Fahda Nur & Yusmadi
  • For the respondent - M Menon, James Joshua Paulraj & P Taneswaran; M/s Tanes, Khoo & Paulraj

An error in the amount stated in a bankruptcy notice should be treated as a minor error and should be cured by a simple amendment made thereto. Irrespective of whether such error constitutes a non-compliance of r. 90(1)(b) of the Insolvency Rules 2017 or not, since it cannot mislead, prejudice or cause any injustice to the judgment debtor, the bankruptcy notice cannot be invalidated on the ground of such error per se.
Re Chua Liang Hong; Ex p: Kuala Excel Sdn Bhd [2020] 7 CLJ 547 [HC]

BANKRUPTCY: Notice - Setting aside - Error in amount stated in bankruptcy notice - Whether there was non-compliance with r. 90(1)(b) of Insolvency Rules 2017 - Whether judgment debtor suffered prejudice - Whether error could be cured by amendment without judgment debtor suffering any injustice - Whether bankruptcy notice should not be invalidated without benefit of curative provision under s. 93(3) of Insolvency Act 1967 - Insolvency Rules 2017, rr. 90(1)(b), 282 - Insolvency Act 1967, s. 3(2)(ii)

BANKRUPTCY: Notice - Amendment - Seeking to amend amount claimed in bankruptcy notice - Error in amount stated in bankruptcy notice - Whether amendment ought to be allowed - Whether judgment debtor prejudiced by amendment - Insolvency Act 1967, s. 93(3)

 

 

DARRYL GOON SIEW CHYE J

  • For the judgment debtor/appellant - Eric Lit Siew Kee; M/s Lit & Co
  • For the judgment creditor/respondent - Audrey Chong Pei Ying; M/s Ling & Mok

ARTICLES

LNS Article(s)

  1. A LOOK AT ISSUES FACED BY EMPLOYERS AS A RESULT OF THE COVID-19 PANDEMIC AND ENSUING MOVEMENT CONTROL ORDER* [Read excerpt]
    by Wong Kian Jun [2020] 1 LNS(A) lxxxv

  2. [2020] 1 LNS(A) lxxxv
    logo
    MALAYSIA

    A LOOK AT ISSUES FACED BY EMPLOYERS AS A RESULT OF THE COVID-19 PANDEMIC AND ENSUING MOVEMENT CONTROL ORDER*

    by
    Wong Kian Jun

    In this article, Wong Kian Jun looks at the main issues faced by employers as a result of the Covid-19 pandemic.

    Introduction

    The Covid-19 global pandemic which has swept the globe and caused many countries to introduce various degrees of lock down measures has given rise to various issues and scenarios which an employer must deal with and manage. This is no different for employers in Malaysia where the Government has implemented the Movement Control Order (“MCO”) since 18 March 2020 which saw the economic activity brought to a halt.

    . . .

    *Published with kind permission of M/s Shearn Delamore & Co.

  3. WHAT CAN LAWYERS DO TO PROTECT OUR NATIVE WILDLIFE?* [Read excerpt]
    by Tara Ward** [2020] 1 LNS(A) lxxxvi

  4. [2020] 1 LNS(A) lxxxvi
    logo
    AUSTRALIA

    WHAT CAN LAWYERS DO TO PROTECT OUR NATIVE WILDLIFE?*

    by
    Tara Ward**

    The recent bushfires have put the plight of our native wildlife at the forefront of the national consciousness. Here, the Animal Defenders Office considers the legal status of native wild animals in Australia.

    Recent Law Weeks in the ACT have explored the theme of ‘Lawyers: Protecting Your Rights’.[1] As part of Law Week 2019 the Animal Defenders Office presented a seminar to members of the legal profession and the community at large about the billions of non-human animals who do not have rights, and the global quest by lawyers to obtain basic rights for at least some animals.[2]

    In the summer of 2019-20, Australia was ravaged by bushfires. Our collective heart broke as we watched the devastating images of burnt and injured native animals stumble out from the fires. We were then plunged into profound despair as we thought of the suffering of the animal victims we could not see.

    . . .

    *Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos Law Week 2020.

    *Tara Ward is the co-founder of the Animal Defenders Office, and volunteers as Executive Director and Principal Lawyer for the organisation. Tara also teaches animal law at the University of NSW.

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 827 Currency Act 2020 Not Yet In Force -
ACT 826 Food Donors Protection Act 2020 31 March 2020 [PU(B) 166/2020] -
ACT 825 Anti-Fake News (Repeal) Act 2020 31 January 2020 -
ACT 824 Malaysian Health Promotion Board (Dissolution) Act 2019 1 April 2020 [PU(B) 119/2020] -
ACT 823 Finance Act 2019 Income Tax Act 1967 [Act 53] see s 3, Real Property Gains Tax Act 1976 [Act 169] see s 22, Stamp Act 1949 [Act 378] see s 27, Petroleum (Income Tax) Act 1967 [Act 543] see s 29, Sales Tax Act 2018 [Act 806] see s 35, Finance Act 2010 [Act 702] see s 37 and the Finance Act 2018 [Act 812] see s 39 -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1617 Franchise (Amendment) Act 2020 Not Yet In Force ACT 590
ACT A1616 Central Bank Of Malaysia (Amendment) Act 2020 Not Yet In Force ACT 701
ACT A1615 Industrial Relations (Amendment) Act 2020 Not Yet In Force ACT 177
ACT A1614 Labuan Business Activity Tax (Amendment) Act 2020 10 February 2020 - para 2(a) and s 13 and 15; Year of assessment 2020 and subsequent years of assessment - para 2(b) and s 3, 4, 5, 6, 7, 9, 10, 11, 12 and 14; 1 January 2019 - s 8 ACT 445
ACT A1613 Carriage Of Goods By Sea (Amendment) Act 2020 Not Yet In Foce ACT 527

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 227/2020 Price Control And Anti-Profiteering (Determination Of Maximum Price) (No. 2) (Amendment) (No. 2) Order 2020 11 August 2020 15 August 2020 PU(A) 93/2020
PU(A) 226/2020 Federal Roads (West Malaysia) (Amendment) (No. 6) Order 2020 6 August 2020 7 August 2020 PU(A) 401/1989
PU(A) 225/2020 Extradition (Islamic Republic Of Pakistan) Order 2020 5 August 2020 Accordance with Article 20 of the Treaty ACT 479
PU(A) 224/2020 Double Taxation Relief (Multilateral Convention To Implement Tax Treaty Related Measures To Prevent Base Erosion And Profit Shifting) Order 2020 4 August 2020 5 August 2020 ACT 53; ACT 543
PU(A) 223/2020 Education (Terms Of Educational Institutions Year 2021) Regulations 2020 3 August 2020 4 August 2020 ACT 550

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 356/2020 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Federal Territory Of Kuala Lumpur 29 July 2020 30 July 2020 PU(A) 293/2002
PU(B) 355/2020 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Selangor 29 July 2020 30 July 2020 PU(A) 293/2002
PU(B) 354/2020 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Pahang 29 July 2020 30 July 2020 PU(A) 293/2002
PU(B) 353/2020 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Perak 29 July 2020 30 July 2020 PU(A) 293/2002
PU(B) 352/2020 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Penang 29 July 2020 30 July 2020 PU(A) 293/2002

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 93/2020 Price Control and Anti-Profiteering (Determination of Maximum Price) (No. 2) Order 2020 PU(A) 227/2020 15 August 2020 Schedule
PU(B) 160/2020 Perizaban Tanah Bagi Maksud Awam Untuk Lot 481701 Mukim Kuala Lumpur PU(B) 346/2020   Jadual
PU(A) 437/1985 Food Regulations 1985 PU(A) 209/2020 22 July 2022 Regulations 11, 17, 18, 18A - 18F, 19, 23, 25 and 26; Fifth A Schedule and Twelfth Schedule
PU(A) 437/1985 PERATURAN-PERATURAN MAKANAN 1985 PU(A) 209/2020 22 Julai 2022 Peraturan 11, 17, 18, 18A - 18F, 19, 23, 25 dan 26; Jadual Kelima A dan Jadual Kedua Belas
PU(A) 93/2020 Perintah Kawalan Harga Dan Antipencatutan (Penentuan Harga Maksimum) (No. 2) 2020 PU(A) 227/2020 15 Ogos 2020 Jadual

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 251/2006 Entertainments Duty (Exemption) (No. 24) Order 2006 PU(A) 204/2020 1 August 2020
PU(A) 286/2015 Customs Duties (Goods Under the Framework Agreement on Comprehensive Economic Co-Operation Among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea) (Asean Harmonised Tariff Nomenclature) Order 2015 PU(A) 202/2020 1 August 2020
PU(A) 84/2020 Ministers of the Federal Government (No. 2) Order 2020 PU(A) 201/2020 See paragraph 1(2) of this Order
PU(A) 476/2008 Customs Duties (Goods Under Agreement on Comprehensive Economic Partnership Among Member States of the Asean and Japan) Order 2008 [Revoked By PU(A) 191/2020] PU(A) 191/2020 1 July 2020
PU(B) 112/2019 Appointment of Member of the Authority PU(B) 279/2020 1 June 2020 to 31 May 2022