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Issue #13/2021 01 April 2021

New This Week Case(s) of the Week GARDEN BAY SDN BHD v. SIME DARBY PROPERTY BHD [2021] 3 CLJ 751 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2021 Volume 3 (Part 6) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

GARDEN BAY SDN BHD v. SIME DARBY PROPERTY BHD [2021] 3 CLJ 751
COURT OF APPEAL, PUTRAJAYA
KAMARDIN HASHIM JCA; SURAYA OTHMAN JCA; AZIZAH NAWAWI JCA
[CIVIL APPEAL NO: W-02(C)(A)-2268-12-2016]
11 DECEMBER 2020

ARBITRATION: Award - Setting aside - Appeal against - Dispute between contracting parties referred to arbitration - Whether award dealt with dispute not contemplated by or not falling within terms of submission to arbitration - Whether there was breach of natural justice - Whether arbitrator considered claim and counterclaim based on evidence presented - Whether arbitrator empowered to draw upon own knowledge and expertise in subject matter - Whether award ought to be set aside - Arbitration Act 2005, ss. 21(3)(b), 30(5), 37(1)(a)(iv), 37(1)(b)(ii), 37(2)(b)(i) & 37(2)(b)(ii)

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1. Suhidar v. PP [2019] 1 LNS 801 (CA) affirming the High Court case of PP v. Suhidar [Criminal Trial No: 45A-01-01/2016]

2. PP v. Shahrul Azlan Abdul Jaffar & Ors [2019] 1 LNS 802 (CA) affirming the High Court case of PP v. Shahrul Azlan Abdul Jaffar & Ors [Criminal Trial No: 45A-09-03/2015]

Legal Network Series

[2019] 1 LNS 624	KERAJAAN MALAYSIA lwn. CENTRAL STRATA SDN BHD Kebenaran untuk meneruskan tindakan pelaksanaan selepas 6 tahun penghakiman diperoleh dibenarkan sekiranya terdapat sebab-sebab yang mencukupi. Percubaan penyelesaian antara pihak-pihak sejurus selepas tarikh penghakiman yang menyebabkan kelewatan oleh plaintif untuk memulakan tindakan pelaksanaan penghakiman terhadap defendan merupakan sebab-sebab yang mencukupi untuk memberikan kebenaran pelaksanaan. PROSEDUR SIVIL: Pelaksanaan - Pelaksanaan dengan kebenaran - Kebenaran untuk meneruskan tindakan pelaksanaan selepas 6 tahun penghakiman diputuskan - Penghakiman masih dalam had masa pelaksanaan - Ujian sebab-sebab yang mencukupi - Sama ada fakta bahawa penghakiman masih dalam tempoh had masa pelaksanaan boleh dijadikan alasan untuk memberikan kebenaran pelaksanaan - Sama ada kewujudan percubaan penyelesaian antara pihak-pihak merupakan sebab-sebab yang mencukupi untuk memberikan kebenaran pelaksanaan - Sama ada kehendak peruntukan-peruntukan A 46 k 2(1)(a), 3(1), 3(2)(a)(b)(e) Kaedah-Kaedah Mahkamah 2012 telah dipenuhi Bagi pihak plaintif - Umi Salamah Abdul Latiff; Lembaga Hasil Dalam Negeri Bagi pihak responden - Pavitra Satha Sivam; T/n Selvam Nanda & Partners
[2019] 1 LNS 748	KSKPS HOLDINGS SDN BHD lwn. BERKAT SEHATI SDN BHD & SATU LAGI Pertikaian antara pihak-pihak perlu dirujuk ke timbang tara apabila wujud perjanjian yang sah yang mengikat pihak-pihak bagi maksud s. 10(1) Akta Timbang Tara 2005. Apabila pertikaian pihak-pihak dirujuk ke timbang tara, maka prosiding di Mahkamah tidak wajar dibatalkan tetapi ditangguhkan. TIMBANGTARA: Penggantungan prosiding - Rujukan pertikaian - Klausa timbangtara - Keesahan perjanjian dipertikaikan - Sama ada wujud perjanjian bertulis yang sah yang mengikat pihak-pihak - Sama ada pertikaian berkenaan keesahan perjanjian perlu dibawa ke hadapan timbang tara - Sama ada prosiding di Mahkamah wajar dibatalkan atau ditangguhkan apabila Mahkamah memutuskan untuk merujuk pertikaian ke timbang tara - Akta Timbang Tara 2005, s. 10(1) Bagi pihak perayu/plaintif - Zamri Ibrahim; T/n Zamri Ibrahim & Co Bagi pihak responden/defendan - TK Cheng; T/n Cheng, Lee & Goh
[2019] 1 LNS 1273	PERMATA TRANS OFFSHORE SDN BHD v. NEW WING ENERGY SDN BHD An application for injunction to restrain a winding-up proceedings, after the presentation of the winding-up petition, should rightly be made in the winding-up court itself. The winding-up court may grant the injunction if it is of the opinion that the winding-up petition is an abuse of the court process or that a company will sustain irreparable harm if the petition is permitted to proceed further. Such injunction application should not be made in the civil courts unless in rare and exceptional cases where it is not expedient or if irreparable harm will be suffered by the company if it is required to file its application for the injunction before the winding-up court. CIVIL PROCEDURE: Jurisdiction - Forum convenience - Application for injunction to restrain winding-up proceedings after presentation of winding-up petition - Application filed in civil court - Whether civil courts could exercise jurisdiction to grant an injunction after winding-up petition has been presented - Whether winding-up court would be more appropriate forum to consider and grant injunctive relief - Whether it will not be expedient and irreparable harm will be suffered by company if it is required to file its application for injunction before winding-up court COMPANY LAW: Winding-up - Application for - Injunction to restrain winding-up proceedings - Application filed in civil court - Whether civil court has jurisdiction to grant an injunctive relief to restrain winding-up proceedings after presentation of petition - Whether application ought to have been made in winding-up court instead of civil court For the plaintiff - Brian Sim Boon Lian & Justina Koh Shu Yin; M/s Azmi Fadzly Maha & Sim For the defendant - Ismail Mohamed Arifin & Nur Aliah Selamat; M/s Ram Reza & Muhammad
[2019] 1 LNS 1286	Q & M DENTAL GROUP (SINGAPORE) LIMITED & ORS v. DR. HONG AN LIANG & ORS Terms and undertaking of an Anton Pillar order ('APO') should be construed strictly and the same not only binds the party who seeks the said order but anyone who has notice of the terms and undertaking of the APO. Where the terms of the APO specifically state that the documents obtained are to be used for specific court proceedings, then usage of such documents in proceedings other than the intended court proceedings amounts to a breach of the said order which will expose a party to contempt of court. CIVIL PROCEDURE: Contempt of court - Committal proceedings - Documents obtained as a result of execution of an Anton Pillar order ('APO') was used for commencing disciplinary inquiry against defendant - APO specifically stated documents to be used in current civil proceedings - Whether subject matter of court proceedings was distinct and separate from disciplinary inquiry - Whether use of documents obtained from APO in disciplinary proceedings is a breach of terms and undertaking of the said order - Whether order for committal ought to be made against party that had breached terms and undertaking of APO CIVIL PROCEDURE: Documents - Expungement - Power of court to expunge documents referred in disciplinary inquiry proceedings - Order sought affecting a non-party - Whether court could make an order affecting a non-party - Whether application for expungement of documents was proper For the applicant/ 1st defendant - Raja Eileen Soraya Raja Aman & Amanda Loh; M/s Raja, Darryl & Loh For the contemnors - Oomen Kurien & Nur Ainnabila Rosdi; M/s Zaid Ibrahim & Co
[2019] 1 LNS 1297	DKSH MALAYSIA SDN BHD v. HO YUET CHOON & ANOR 1. It is reasonably foreseeable that a consumer will suffer loss or damage arising from testing conducted by a contractor at the consumer's premises. The contractor thus owes a duty to take all reasonable care in the conduct of the testing so as not to cause loss to the consumer. 2. Where a witness has lied on a material aspect of his testimony during trial, then it is incumbent upon the trial judge to scrutinize the evidence of the said witness with great care rather than rejecting the entire testimony of the said witness. TORT: Negligence - Duty of care - Sufficient close proximity - Contractor of sprinkler conducted testing which resulted in discharge of water in consumer's warehouse - Consumer's goods damaged - Whether contractor owes a duty to take all reasonable care so as not to cause loss to consumer - Whether it was reasonably foreseeable that consumer will suffer loss or damage arising from testing conducted by contractor - Whether purchase orders and invoices had excluded contractor's duty of care - Whether contractor breached duty of care - Whether consumer's loss would not have occurred but for contractor's negligence - Whether consumer's losses were supported with documentary evidence TORT: Negligence - Damages - Assessment - Contractor of sprinkler conducted testing which resulted in discharge of water in consumer's warehouse - Consumer's goods damaged - Whether consumer has a duty to appoint an independent loss adjuster to compute its loss - Whether consumer was bound to accept adjustment prepared by loss adjuster of contractor's insurer EVIDENCE: Witness - Admissibility - Credibility - Witness lied on a material aspect of testimony - Whether entire evidence of witness ought to be rejected - Whether it was incumbent upon court to scrutinize evidence of witness with great care For the appellant - Liew Seong Yee; M/s Shearn Delamore & Co For the respondents - Yap Khoon Jung; M/s KJ Yap & Co

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CLJ 2021 Volume 3 (Part 6)

The mandate of an arbitrator, on reference of a dispute to arbitration, must be limited to the terms defined by the parties for him to exercise his jurisdiction. An arbitrator could not be said to act beyond his jurisdiction and to be in breach of the rules of natural justice when he makes a finding based on an issue presented or argued before him/her and invites parties to present or argue on the issue which forms the award. In arriving at his findings, an arbitrator is also empowered to draw upon his own knowledge and expertise in the subject matter.
Garden Bay Sdn Bhd v. Sime Darby Property Bhd [2021] 3 CLJ 751 [CA]

• SUBJECT
• CORAM
• COUNSEL

The purpose of ss. 17 and 64 of the Sabah Land Ordinance is to protect native ownership of land held under native title and customary tenure. However, the provisions do not expressly outlaw the bank from financing such a transaction. The illegality of the sale of the native titles does not taint all the loan agreements and the related security documents to the extent that the bank could not recover the outstanding loans. Even if the loan agreements were tainted with illegality, there is restitutionary relief available to the bank.
Public Bank Bhd v. Ria Realiti Sdn Bhd & Ors [2021] 3 CLJ 772 [CA]

• SUBJECT
• CORAM
• COUNSEL

In Malaysia, when requesting for the issuance of a warrant of arrest in an admiralty action in rem, there is no requirement for full and frank disclosure and the arresting party only has to demonstrate that he has complied with O. 60 r. 4 of the Rules of Court 2012. The arresting party may, as of right, have a warrant of arrest issued so long as the requirements of the rule are met.
Premium Vegetable Oils Sdn Bhd v. The Owners And/Or Demise Charterers Of The Ship Or Vessel “Ever Concord” (Imo No. 9033347) Of The Port Of Zanzibar, Tanzania [2021] 3 CLJ 803 [HC]

• SUBJECT
• CORAM
• COUNSEL

The legal status of a government agency such as FELDA, which is a beacon for safeguarding public interest and transparency, intensifies the necessity of the court to be extra critical in scrutinising the issue of the enforceability of a development agreement which contains obligations FELDA is statutorily bound to appropriately perform. If the development agreement is allegedly tainted with fraud and conspiracies, and questions arise regarding the very integrity of the entire transaction leading to the development agreement, it would be unfitting for the court to simply summarily order the specific performance of an agreement when there was indeed a serious conflict of material facts which could only be resolved by a careful and complete course of witness examinations vide a full trial.
Synergy Promenade Sdn Bhd v. Felda Investment Corporation Sdn Bhd & Anor [2021] 3 CLJ 821 [HC]

• SUBJECT
• CORAM
• COUNSEL

The Federal Constitution and the internal mechanisms within the Standing Orders of the Dewan Rakyat has removed from the courts the jurisdiction to decide on any matter that concerns parliamentary proceedings. Parliament is the ultimate arbiter of any proceedings in Parliament and hence, only Parliament has the power or jurisdiction to elect and/or to dismiss a Speaker and a Deputy Speaker of the Dewan Rakyat. The validity of any proceeding in the Parliament and the Legislative assembly is therefore not justiciable.
Tun Dr Mahathir Mohamad & Ors v. Datuk Azhar Azizan Harun & Ors [2021] 3 CLJ 852 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. MANAGING EXPERT WITNESS IN CONSTRUCTION AND ENGINEERING DISPUTES* ^{[Read excerpt]}
   by Lim Chee Yong** [2021] 1 LNS(A) xli

[2021] 1 LNS(A) xli

MALAYSIA

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MANAGING EXPERT WITNESS IN CONSTRUCTION AND ENGINEERING DISPUTES*

by
Lim Chee Yong**

Expert witnesses have been thrust into the limelight in recent years, reflecting the sustained rise in construction arbitrations both domestically^[1] and internationally.^[2] In international construction and engineering arbitrations, disputes are often technically and factually complex. Expert witnesses are therefore the norm and not the exception. Expert evidence alone does not determine the entire outcome of an arbitration. However, the increasingly heavy reliance on expert evidence by tribunals and parties makes the effective handling and execution by counsel of the overall expert process a critical factor for a successful outcome. This article details some of the best practices for selecting expert witnesses, managing the party-expert relationship before a hearing, and handling expert witnesses during a hearing.

. . .

* This article was originally published in January 2021 in Arbitration in Malaysia: The Way Forward by the International Arbitration Practice of Lee Hishammuddin Allen & Gledhill.

** Associate, Lee Hishammuddin Allen & Gledhill; Advocate and Solicitor of the High Court of Malaya; called to the Bar of England and Wales (lhy@lh-ag.com).

2. SEXUALITY EDUCATION: A CLASH BETWEEN INTERNATIONAL HUMAN RIGHTS AND "ASIAN VALUES" ^{[Read excerpt]}
   by T. Shanmugam* Shahrul Mizan Ismail** [2021] 1 LNS(A) xlii

[2021] 1 LNS(A) xlii

International

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SEXUALITY EDUCATION:
A CLASH BETWEEN INTERNATIONAL HUMAN RIGHTS AND "ASIAN VALUES"

by
T. Shanmugam*
Shahrul Mizan Ismail**

ABSTRACT

One of the most controversial topics that education experts and politicians have been debating about is whether sexuality education should be taught in schools. It is a dicey and sensitive subject. On the one hand "the international human rights organizations" recognize the importance of sexuality education by including this component either explicitly or impliedly in a number of international human rights declarations. This stance is based on the premise that sexuality education is also crucial in the development and well-being of children and therefore should be guaranteed. This article critically analyses the clash of values in implementing sexuality education in schools in several jurisdictions in Asian countries. It is apparent that the Asian countries appear to have a different standpoint based on the pretext of "Asian values" to implement sexuality education in schools as opposed to the international declarations. This article concisely discusses sexuality education within the context of the cultural relativism theory as Asian nations generally claim they have the right to interpret human rights in the context of their cultural and religious values without being tied to the universality of human rights. Since this study will be a socio-legal study, a qualitative method will be used to explain the issues.

. . .

* Postgraduate student, Faculty of Law, Universiti Kebangsaan Malaysia (UKM), Malaysia.

**LL.B (Hons) (IIUM), LL.M (Human Rights) (Nottingham), Ph. D (UKM); Advocate & Solicitor (Malaya) (Non-practising); Associate Professor, Faculty of Law, Universiti Kebangsaan Malaysia (UKM), Malaysia.

3. SHAREHOLDERS' RIGHT OF INSPECTION IN PRIVATE COMPANIES IN MALAYSIA ^{[Read excerpt]}
   by Nicholas Tan Choi Chuan* [2021] 1 LNS(A) xliii

[2021] 1 LNS(A) xliii

MALAYSIA

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SHAREHOLDERS' RIGHT OF INSPECTION IN PRIVATE COMPANIES IN MALAYSIA

by
Nicholas Tan Choi Chuan*

1.0 Introduction

In an early English case, the Court held that "every member of the corporation had, as such, the right to look into the books of the corporation for any matter that concerned himself, though it was in a dispute, with others".^[1] Therefore, it is well recognized that one of the most fundamental rights a shareholder has is the right of inspection. This involves inspecting the documents and records of the company, thus providing a means in which shareholders can investigate fraud, mismanagement, misappropriation of funds and breach of fiduciary duties by the directors. This right was first developed in England from two sources:

. . .

* Nicholas Tan Choi Chuan is a practicing lawyer in the area of Corporate/M&A in a law firm in Malaysia. Linkedln: https://www.linkedin.com/in/nicholas-tan-a5016229/.

4. THE COVID-19 PANDEMIC & LOCKDOWN POLICIES: A CRITICAL ANALYSIS IN THE CONTEXT OF HUMAN RIGHTS AND FREEDOM OF MOVEMENT ^{[Read excerpt]}
   by Deddy Firdaus Yulianto* Assoc. Prof Dr Shahrul Mizan bin Ismail** [2021] 1 LNS(A) xliv

[2021] 1 LNS(A) xliv

INTERNATIONAL

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THE COVID-19 PANDEMIC & LOCKDOWN POLICIES:
A CRITICAL ANALYSIS IN THE CONTEXT OF HUMAN RIGHTS AND FREEDOM OF MOVEMENT

by
Deddy Firdaus Yulianto*
Assoc. Prof Dr Shahrul Mizan bin Ismail**

Abstract

In early 2020, the world was shocked by the COVID-19 pandemic that started in Wuhan, Hubei Province, which then spread rapidly to various countries. The spread of this disease has had broad social and economic impact. Many countries have implemented lockdowns as one of the steps to reduce the spread of transmission and death due to the COVID-19 pandemic. The implementation of a lockdown policy has been argued by some to be a violation of human rights, especially in the context of the freedom to move, but on the other hand, the lockdown policy has prevented the transmission of COVID-19 and ensured the right to health. From the point of view of human rights law, the author will provide an explanation of the lockdown policy taken by a country as a human rights violation, but in handling the COVID-19 pandemic it is deemed necessary to reduce the number of transmissions for the health of its citizens. This article applies the qualitative method of research to analyze the extent to which the lockdown policy is a violation of human rights or vice versa, and to discuss the lockdown policy as a measure taken to protect citizens so they can live healthily.

. . .

* Master of Law Candidate, Faculty of Law, National University of Malaysia (deddy.fy@gmail.com).

** Associate Professor, Faculty of Law, National University of Malaysia (shahrulmizan@ukm.edu.my).

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