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Issue #39/2023 21 September 2023 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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CASE(S) OF THE WEEKMAJLIS PEGUAM MALAYSIA v. MICHAEL JOSEPH CARVALHO & ANOR [2023] 8 CLJ 835 (i) In cases involving dishonesty by advocates and solicitors, s. 80(8) and (9) of the Legal Profession Act 1976 ('LPA') makes no distinction between an advocate and solicitor who practices as a sole proprietor and an advocate and solicitor who practices in a partnership; (ii) Paragraph 2(b) of the Guidelines on Making a Claim for Compensation is inconsistent with s. 80(8) and (9) of the LPA and is unlawful and liable to be struck down. The power of the Bar Council to make rules or Guidelines in respect of the procedure to be followed in protecting the Bar Council's compensation fund from depletion does not extend to extinguishing the statutory right given to a person by s. 80(8) of the LPA to apply for a grant out of the compensation fund for losses due to the dishonest acts of advocates and solicitors practising in partnerships. LEGAL PROFESSION: Advocates and solicitors - Compensation - Bar Council's compensation fund - Restitution - Clients suffered losses arising from dishonest acts of advocate and solicitor - Advocate and solicitor found guilty of misconduct and ordered to make restitution to clients - Discretion and power of Bar Council to compensate members of public using money from compensation fund for losses arising from acts of dishonesty by advocates and solicitors practising in partnerships, as opposed to sole proprietorships - Whether clients entitled to claim restitution sum from compensation fund - Whether fact that advocate and solicitor practising as partner in firm restricted clients from claiming for restitution sum from compensation fund - Whether para. 2(b) of Guidelines on Making a Claim for Compensation contrary to s. 80(2), (8) and (9) of Legal Profession Act 1976 STATUTORY INTERPRETATION: Legal Profession Act 1976 - Section 80(8) and (9) - Losses in consequence of dishonesty by advocate and solicitor - Whether s. 80(8) and (9) make distinction between advocate and solicitor who practises as sole proprietor and advocate and solicitor who practises in partnership JUDICIAL QUOTES“Applying the above principle of law in interpreting s. 31 of the Bank Kerjasama Rakyat Malaysia Berhad (Special Provisions) Act 1978 (Act 202), it is plain and obvious that the discretion was given to the Menteri Pembangunan Usahawan dan Koperasi (second respondent) with the concurrence of the Minister of Finance, to decide on the termination of the Act 202. The exercise of discretion can be done at any time if it appears to the second respondent that the enforcement of the Act 202 is no longer necessary. Under the law, only the second respondent with the concurrence of the Minister of Finance can determine the appropriate time to terminate the enforcement of the Act 202. From the unambiguous right given under sub-s. 3(1) of the Act 202, second respondent rejected the applicants’ application citing the following reason: “Saya berpandangan dengan melihat kepada keadaan semasa, ini bukan masa yang sesuai untuk Bank Rakyat beroperasi dan ditadbir tanpa kawalan daripada Kementerian Pembangunan Usahawan bagi menjaga kepentingan Bank Rakyat secara keseluruhan" as clearly stated in the rejection letter.” “From the given reason, it is comprehensible that the second respondent had purely made a policy decision in exercising his discretionary power. As a Minister that oversee the implementation and the enforcement of the Act 202, the second respondent had clearly indicated that it is not suitable to terminate the operation of the Act 202 under the current situation. It is trite that the courts normally do not meddle with the policy decision.” - Per Che Mohd Ruzima Ghazali JCA in Tan Sri Abdul Aziz Zainal & Ors v. Lembaga Pengarah Bank Kerjasama Rakyat Malaysia Bhd & Ors [2023] 8 CLJ 422 APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2023 Volume 8 (Part 4) In drug-trafficking cases,
the trial court must inform the accused person of the nature of the charge against him and this includes whether the accused person is being tried for actual trafficking or presumed trafficking. If the accused is being tried for presumed trafficking,
the court must identify the specific presumption that is being used. The failure to do so may result in a miscarriage of justice. CRIMINAL PROCEDURE CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused person arrested at airport for carrying 3,697g of methamphetamine - Accused person found guilty, convicted as per charge and sentenced to death - Whether trial judge erred in not indicating at prima facie ruling whether it was case of presumed trafficking or actual trafficking - Whether trial judge erred in not invoking presumption under s. 37(d) of Dangerous Drugs Act 1952 - Whether conviction and sentence safe
YAACOB MD SAM JCA
In principle,
a partnership agreement can exist orally without the formality of an executed partnership premised on the negotiations,
factual matrix,
exchanges and the intention of the relevant parties to enter into a legally binding contractual relationship ie,
a receipt of a share of profits in the business is prima facie evidence of partnership. When there is unequivocal documentary evidence supporting the claim that one is recognised as an equal profit sharing partner of a firm,
the existence of an equal partnership cannot be doubted. CONTRACT CONTRACT: Agreement - Partnership agreement - Breach - Allegation of - Whether appellant partner in legal firm holding 50% stake - Whether agreement oral contract between appellant and previous partner of legal firm - Whether oral agreement subsisted when respondent appointed as succeeding partner of legal firm - Whether there was binding legal partnership relationship between appellant and respondent - Whether respondent privy to outcome of agreement between then existing partners - Whether respondent unilaterally and wrongfully ceased 'drawing payments' to appellant - Cause of action - Whether claim statute-barred pursuant to s. 6 of Limitation Act 1953 - Partnership Act 1961, s. 4(c)
AB KARIM AB JALIL JCA
(i) Seorang pentadbir pusaka si mati tidak mempunyai locus standi untuk membuat apa-apa tuntutan berkenaan tanah yang diambil secara sah melalui pelaksanaan pengambilan tanah. Membenarkan pelbagai tuduhan dibuat selepas prosiding pengambilan balik tanah selesai hanya merugikan dana awam kerana tujuan pengambilan balik tanah adalah untuk tujuan awam,
seperti dalam kes ini,
pengambilan tanah dibuat untuk pembinaan lebuh raya dan pembesaran jalan untuk kemudahan awam; dan (ii) Seorang plaintif terhalang daripada membawa tindakan luar daripada peruntukan undang-undang,
seperti dalam kes ini,
apabila plaintif membawa tindakan baharu dan berasingan untuk ganti rugi pencerobohan,
tanpa membuat rayuan terhadap award ganti rugi,
satu remedi yang diperuntukkan bawah ss. 37 dan 38 Akta Pengambilan Tanah 1960 PROSEDUR SIVIL | UNDANG-UNDANG TANAH PROSEDUR SIVIL: Pembatalan - Rayuan terhadap - Rayuan terhadap pembatalan tuntutan berasaskan kausa tindakan pencerobohan atas tanah - Sama ada pentadbir pusaka si mati mempunyai locus standi - Sama ada tanah telah diambil dengan sahnya oleh pelaksanaan pengambilan tanah - Sama ada tindakan pentadbir adalah dihalang oleh res judicata - Sama ada tuntutan satu penyalahgunaan proses mahkamah - Kaedah-Kaedah Mahkamah 2012, A. 18 k. 19(1)(a), (b), (d) - Akta Pengambilan Tanah 1960, ss. 37 & 38 UNDANG-UNDANG TANAH: Pencerobohan - Tuntutan - Tuntutan berasaskan kausa tindakan pencerobohan atas tanah - Sama ada pentadbir pusaka si mati mempunyai locus standi - Sama ada tanah telah diambil dengan sahnya oleh pelaksanaan pengambilan tanah - Sama ada tindakan adalah dihalang oleh res judicata - Sama ada tuntutan satu penyalahgunaan proses mahkamah - Kaedah-Kaedah Mahkamah 2012, A. 18 k. 19(1)(a), (b), (d) - Akta Pengambilan Tanah 1960, ss. 37 & 38
HAS ZANAH MEHAT HMR
(i) In order to determine a breach of duty of care,
the balance between the risks and the cost of practical measure to eliminate it is an important feature that would determine whether there is a breach of duty. Even if one party has taken all reasonable care,
it would not of itself exonerate it from liability,
thus preventive measures taken may not assist the relevant party. A party is found liable in negligence where the ingredients of negligence,
namely duty of care,
breach of duty of care and resulting damage,
not being remote,
has been proved,
especially in cases where evidence points toward proximate cause of shutdowns and foreseeability of harm is obvious; (ii) Economic loss consequent to physical or property damage is recoverable but pure economic loss independent of physical or property damage is not. TORT | DAMAGES TORT: Negligence - Breach of statutory duty - Ammonia pollution spillage from landfill causing contamination and shutdown of water treatment plant - Proximate cause - Whether act complained of near or close in time to shutdowns - Whether preventive measures taken would exonerate liability - Whether operators of landfill liable in negligence - Whether pure economic loss independent of physical or property damage recoverable - Whether nominal damages ought to be awarded DAMAGES: Claims - Pure economic loss - Negligence - Breach of statutory duty - Whether pure economic loss independent of physical or property damage recoverable - Whether nominal damages ought to be awarded
HAS ZANAH MEHAT JCA
The claim for double rent or double value,
under s. 28(4)(a) of the Civil Law Act 1956,
by a landlord against a tenant who stays on the landlord's property after the termination of the tenancy of the said property,
is not a matter of right under the law. The claim must be pleaded in the landlord's statement of claim if he opts to make such claim against the tenant. CIVIL PROCEDURE | STATUTORY INTERPRETATION CIVIL PROCEDURE: Statement of claim - Pleadings - Tenant continued staying on landlord's property even after termination of tenancy - Claim for double rent or double value - Whether claim matter of right under law - Whether claim for double rent or double value must be specifically pleaded in statement of claim - Rules of Court 2012, O. 18 r. 15 STATUTORY INTERPRETATION: Civil Law Act 1956 - Section 28(4)(a) - Tenant continued staying on landlord's property even after termination of tenancy - Claim for double rent or double value - Whether claim matter of right under law
HAS ZANAH MEHAT JCA
Every school has a statutory duty to prepare its pupils for examinations. This duty ultimately starts with the teacher,
who has a statutory function in ensuring that the pupils are properly taught as per the school's schedule. A teacher who is frequently or continuously absent for a very long period of time from teaching,
without valid reasons,
is in breach of his statutory duty under the law. Such conduct does not only jeopardise the pupils' opportunity to obtain good grades and to receive better education in the future,
but also amounts to a breach of the pupils' constitutional right to have access to education. TORT | CONSTITUTIONAL LAW | STATUTORY INTERPRETATION TORT: Duty - Statutory duty - Breach - Absenteeism of teacher - Failure of teacher to turn up to teach for long period of time - Teacher frequently absent and later wholly-absent - Claim by students against teacher, principal, Director General of Education, Minister of Education and Government of Malaysia - Whether alleged tortfeasors in breach of statutory duties - Statutory functions of tortfeasors - Whether failed to ensure students properly taught subject in question - Whether failed to prepare students for examinations - Education Act 1996, s. 19 - Public Officers (Conduct and Discipline) Regulations 1993, reg. 3C(2) TORT: Misfeasance - Misfeasance in public office - Absenteeism of teacher - Failure of teacher to turn up to teach for long period of time - Teacher frequently absent and later wholly-absent - Claim by students against teacher, principal, Director General of Education, Minister of Education and Government of Malaysia - Whether alleged tortfeasors in breach of statutory duties - Whether breach of statutory duties amounted to tort of misfeasance in public office - Whether there was targeted malice with requisite intention to harm and injure claimants - Whether claim for misfeasance in public office established TORT: Liability - Vicarious liability - Absenteeism of teacher - Failure of teacher to turn up to teach for long period of time - Teacher frequently absent and later wholly-absent - Claim by students - Whether Director General of Education, Minister of Education and Government of Malaysia vicariously liable for acts and/or omissions of teacher and principal of school - Government Proceedings Act 1956, ss. 5 & 6 TORT: Damages - Claim for - Claim for exemplary, general and aggravated damages - Absenteeism of teacher - Failure of teacher to turn up to teach for long period of time - Teacher frequently absent and later wholly-absent - Claim by students against teacher, principal, Director General of Education, Minister of Education and Government of Malaysia - Whether claimants suffered damages as result of acts and/or omissions of tortfeasors - Factors considered in awarding damages - Appropriate amount to be awarded CONSTITUTIONAL LAW: Fundamental liberties - Rights in respect of education - Absenteeism of teacher - Failure of teacher to turn up to teach for long period of time - Teacher frequently absent and later wholly-absent - Claim by students against teacher, principal, Director General of Education, Minister of Education and Government of Malaysia - Whether students' constitutional rights violated - Federal Constitution, arts. 5(1) & 12 STATUTORY INTERPRETATION: 'life' - Federal Constitution, art. 5(1) - Whether 'life' in art. 5(1) should be given generous and liberal interpretation - Whether includes right to education LEONARD DAVID SHIM J
Section 128 of the Legal Profession Act 1976 allows for the taxation of a bill of costs outside the six-month limitation period if the following conditions are met: (i) the advocate is given notice of the application for taxation; (ii) the applicant proves to the satisfaction of the court that there are special circumstances that justify the taxation of the bill of costs outside the limitation period; and (iii) the order for taxation is made within one year of the delivery of the bill of costs. LEGAL PROFESSION LEGAL PROFESSION: Legal fees - Recovery - Application by legal firm to recover agreed fees for legal services rendered by advocate to clients - Legal firm represented client and company - Whether there was agreement between parties for legal fees - Whether in form of warrant to act signed by client - Whether client bound by what he signed - Whether there was nexus between client and company - Whether legal firm correct in including company in application for recovery LEGAL PROFESSION: Taxation - Bill of costs - Application by client for order that legal firm furnished bill of costs for purposes of taxation of costs by Registrar - Taxation of bill of costs outside six-month limitation period - Whether there was notice to advocate to challenge bill of costs - Whether there existed special circumstances - Whether order for taxation made within one year of delivery of bill of costs - Legal Profession Act 1976, s. 128
SHAHNAZ SULAIMAN J
The sheriff can accept a bid that was made in the first round of tenders under the order for sale after a second round of tenders had been proceeded with. The second round of tenders does not have the effect of causing a rejection of the bids received during the first round of tenders. Additionally,
based on justified circumstances,
the sheriff has powers to sell a vessel below the appraised value if the offer is still valid,
open and capable of acceptance. CIVIL PROCEDURE | MARITIME LAW CIVIL PROCEDURE: Admiralty - Action in rem - Order for sale of vessel by private treaty or public auction - First and second rounds of bids did not meet appraised value of vessel - Whether sheriff could accept bid that was made in first round of tenders under order for sale after second round of tenders had been proceeded with - Whether second round of tenders had effect of causing rejection of bids received during first round of tenders - Whether in best interest of parties for vessel to be sold to highest bidder even if at undervalue MARITIME LAW: Action in rem - Order for sale of vessel by private treaty or public auction - First and second rounds of bids did not meet appraised value of vessel - Whether sheriff could accept bid that was made in first round of tenders under order for sale after second round of tenders had been proceeded with - Whether second round of tenders had effect of causing rejection of bids received during first round of tenders - Whether in best interest of parties for vessel to be sold to highest bidder even if at undervalue
ONG CHEE KWAN J
CLJ 2023 Volume 8 (Part 5) When the identity of the subject matter of the present claim has been conclusively dealt with on merit by the courts in an earlier suit and the parties involved are exactly similar,
the important elements of res judicata are established and proved. CIVIL PROCEDURE CIVIL PROCEDURE: Res judicata - Principle - Elements of - Whether established - Case concerning claim for debt owed by company to former directors/shareholders - Whether identity of subject matter of present claim had been conclusively dealt with on merit in earlier suit - Whether causes of action similar - Whether parties similar - Whether case caught by res judicata - Whether res judicata in wider sense applicable
ABANG ISKANDAR PCA
Ordinarily,
a company is the proper party to sue for a wrong done to it. However,
a minority shareholder may bring a derivative action if the wrong is fraud and the wrongdoers control the company and could prevent it from suing. In such a situation,
the court must first determine whether the company is actually controlled by the alleged wrongdoers before allowing the derivative action to proceed. COMPANY LAW | CIVIL PROCEDURE COMPANY LAW: Derivative action - Leave - Derivative action filed by minority shareholders against director of company - Director had set up other companies running similar business to company - Allegations of breach of director's duties, diversion of company's business to related companies, secret profits and causing of losses and damages to company - Derivative action delayed by ten years - Whether there was reasonable explanation - Whether applicant acted in good faith - Whether in best interest of company for application for leave to be granted - Companies Act 2016, s. 348 CIVIL PROCEDURE: Pleadings - Affidavit - Derivative action - Derivative action filed by minority shareholders against director of company - Director had set up other companies running similar business to company - Allegations of breach of director's duties, diversion of business to related companies, secret profits and causing of losses and damages to company - Applicants specifically pleaded one director as wrongdoer but later alleged that there were other wrongdoers as well - Whether applicants bound by affidavit's evidence - Whether allowed to add other wrongdoers
LEE SWEE SENG JCA
The Criminal Procedure Code ('CPC') provides that all offences under the Penal Code ('PC') and any other law shall be inquired into and tried according to the CPC. However,
in a charge concerning disobedience of the standing order in relation to the armed forces,
and which does not involve a criminal offence under the PC,
the Armed Forces Act 1972,
or any other laws,
the provisions of the CPC,
including s. 399 of the CPC which deals with summary trials,
is not applicable. Even though reg. 16 of the Armed Forces (Terms of Service of Regular Forces) Regulations 2013 uses the term 'summary trial',
a summary trial conducted by a commanding officer is different from a summary trial conducted by a 'court'. ADMINISTRATIVE LAW | ADMINISTRATIVE LAW: Judicial review - Certiorari - Appeal against - Applicant sergeant and serviceman of armed forces - Methamphetamine found in urine sample analysed by chemist - Applicant requested for chemist to give evidence at summary trial - Chemist not called during summary trial - Applicant found guilty and sentenced to fine by commanding officer but chief of army discharged applicant from service on ground that his service was no longer required - Applicant sought certiorari order to set aside decisions of commanding officer and chief of army - Whether non-calling of chemist prejudiced applicant - Whether there was procedural impropriety - Whether applicant's constitutional right to livelihood adversely affected - Armed Forces Act 1972, s. 97(9) - Armed Forces (Terms of Service of Regular Forces) Regulations 2013, reg. 61(1)(m) - Criminal Procedure Code, s. 399(1) ADMINISTRATIVE LAW: Judicial review - Mandamus - Appeal against - Applicant serviceman of armed forces - Methamphetamine found in urine sample analysed by chemist - Applicant requested for chemist to give evidence at summary trial - Chemist not called during summary trial - Applicant found guilty and sentenced to fine by commanding officer - Chief of army discharged applicant from service on ground that his service was no longer required - Whether order of mandamus ought to be granted to direct re-trial by court-martial - Armed Forces Act 1972, s. 97(9)
VAZEER ALAM MYDIN MEERA JCA
Solicitors have a duty 'not to injure their client by failing to do that which they had undertaken to do' and which the clients 'relied on them to do.' A solicitor who chooses to release payment of compensation money to one client without the consent of the other clients has committed a negligent act or a negligent omission,
as it should have protected the rights of the other clients as well. A failure to protect the clients' rights is a breach of the solicitor's reasonable duty of care,
as a result of which,
the clients suffered losses and damages. LEGAL PROFESSION LEGAL PROFESSION: Duty of care - Solicitor-client relationship - Breach - Payment of compensation money to one client and retaining legal fees without consent from other clients - Whether solicitor ought to act for all clients and not just for spokesperson of clients - Whether solicitor owed duty of care to protect clients' interests and rights - Whether solicitor's act foreseeable and causational events depriving clients of compensation money - Whether solicitor liable for damages LEGAL PROFESSION: Professional negligence - Solicitor-client relationship - Duty of care - Breach - Payment of compensation money to one client and retaining legal fees without consent from other clients - Whether solicitor ought to act for all clients and not just for spokesperson of clients - Whether solicitor owed duty of care to protect clients' interests and rights - Whether solicitor's act foreseeable and causational events depriving clients of compensation money - Whether solicitor liable for damages
KENNETH ST JAMES JC
Perkataan 'organisasi' dalam takrif 'sekutu' dalam perenggan (c) s. 3 Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 ('Akta SPRM') tidak termasuk satu pertubuhan. 'Organisasi',
dalam Akta SPRM,
merujuk pada organisasi sebagaimana yang dinyatakan bawah perenggan (c) s. 3. 'Pertubuhan' pula merujuk pada pertubuhan yang didaftarkan bawah s. 7 Akta Pertubuhan 1966. Penggunaan perkataan 'organisasi' dan 'pertubuhan' berdasarkan Akta SPRM adalah berasingan,
berlainan dan merujuk pada dua entiti berbeza. UNDANG-UNDANG JENAYAH | PROSEDUR JENAYAH | PERKATAAN & ISTILAH UNDANG-UNDANG JENAYAH: Kesalahan - Pegawai badan awam, iaitu Perdana Menteri dan Presiden parti politik, dituduh bawah empat pertuduhan menggunakan kedudukan untuk satu suapan iaitu wang bagi sekutunya - Permohonan mengetepikan dan membatalkan pertuduhan-pertuduhan - Dakwaan bahawa pertuduhan-pertuduhan cacat dan tidak sah di sisi undang-undang - Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009, s. 23(1) PROSEDUR JENAYAH: Pertuduhan - Pertuduhan cacat - Pegawai badan awam, iaitu Perdana Menteri dan Presiden parti politik, dituduh dengan empat pertuduhan menggunakan kedudukan untuk satu suapan iaitu wang bagi sekutunya - Pertuduhan-pertuduhan bawah s. 23(1) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 - Permohonan mengetepikan dan membatalkan pertuduhan-pertuduhan - Dakwaan bahawa pertuduhan-pertuduhan tidak mendedahkan satu kesalahan bawah s. 23(1) dan kekurangan dari segi butiran - Sama ada pertuduhan-pertuduhan cacat dan tidak sah di sisi undang-undang - Sama ada kecacatan pada pertuduhan-pertuduhan boleh dipulihkan - Kanun Tatacara Jenayah, ss. 152, 153, 154, 156 & 422 PERKATAAN & ISTILAH: 'sekutu' - Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 - Seksyen 3 - Sama ada pertubuhan yang didaftarkan bawah s. 7 Akta Pertubuhan 1966 'sekutu' seperti yang ditakrifkan bawah s. 3 PERKATAAN & ISTILAH: 'organisasi' - Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 - Seksyen 3 - Sama ada 'organisasi' dan 'pertubuhan' berbeza - Sama ada 'organisasi' termasuk 'pertubuhan' - Sama ada 'organisasi' boleh diluaskan agar merangkumi satu 'pertubuhan' PERKATAAN & ISTILAH: 'pertubuhan' - Akta Pertubuhan 1966 - Sama ada pertubuhan yang didaftarkan bawah s. 7 Akta Pertubuhan 1966 'sekutu' seperti yang ditakrifkan bawah s. 3 Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 - Sama ada 'organisasi' dan 'pertubuhan' berbeza - Sama ada 'pertubuhan' terangkum dalam 'organisasi' MUHAMMAD JAMIL HUSSIN H
The domestic liquefied petroleum gas ('LPG') market in Malaysia is a saturated market,
with only six main oil companies,
all of which is in the same segment of the market,
having to deal with fixed retail price for LPG,
thus presenting limited potential for growth. The industry practice in relation to the collection and exchange or return of LPG cylinders is undertaken to ensure that LPG cylinders of different brands can be picked up by different oil companies and dealers and,
ultimately,
circulated back to other oil companies or other dealers. Although it does not have force of law,
such practice is widely used that it is accepted as a norm and behaviour within the industry. TORT | CIVIL PROCEDURE TORT: Conversion - Claim - Allegation that alleged tortfeasor unlawfully, without consent of claimant, came into possession of gas cylinders and continued to unlawfully keep them - Whether practice in line with industry practice - Whether conduct of alleged tortfeasor inconsistent with rights of claimant as owner of cylinders - Whether conduct deliberate, not accidental - Whether conduct excluded claimant from use and possession of gas cylinders - Whether tort of conversion established CIVIL PROCEDURE: Pleadings - Cause of action - Cause of action premised upon tort of conversion - Allegation that alleged tortfeasor unlawfully, without consent of claimant, came into possession of gas cylinders and continued to unlawfully keep them - Claimant's strong position that alleged tortfeasor abused industry practice - Whether abuse of industry practice pleaded
MOHD NAZLAN GHAZALI J
Given that the maritime liens do not depend on any liability in personam of the shipowner and is a pure in rem action,
the courts should recognise and adopt the personification theory in an in rem action that is based on maritime liens and to hold that the defendant in such action is in fact the res and not the shipowner. The effect of excluding the maritime lien in the in rem action from the moratorium would have minimal impact on the creditors to the proposed scheme of arrangements as the maritime lien makes the claimant in the in rem action a secured creditor only up to the value of the vessel. If the proceeds from the sale of the vessel is insufficient to meet the claim,
the claimant stands only as an unsecured creditor for the balance sum against the shipowner in the event that the shipowner enters an appearance in the in rem action. MARITIME LAW | COMPANY LAW | STATUTORY INTERPRETATION MARITIME LAW: Admiralty - Action in rem - Writ in rem and warrant of arrest - Leave - Action arising from allision - Owners of vessel obtained order restraining and staying 'all current and further proceedings in any legal actions or proceedings ... except by leave of the court' - Whether commencement of writ in rem required leave from court under restraining orders COMPANY LAW: Scheme of arrangement - Writ in rem and warrant of arrest - Action arising from allision - Owners of vessel obtained order restraining and staying 'all current and further proceedings in any legal actions or proceedings ... except by leave of the court' - Whether moratorium under scheme of arrangement applied to in rem claims - Whether writ in rem arising from claim based on maritime lien subject to restraining orders - Whether leave required - Whether leave ought to be granted, be it nunc pro tunc or otherwise - Whether court vested with jurisdiction to grant leave - Whether application for leave ought to be filed before scheme courts - Companies Act 2016, ss. 2(1) & 368(1) STATUTORY INTERPRETATION: Companies Act 2016, s. 368(1) - 'restrain further proceedings in any action or proceeding against the company except by leave of the court' - Whether to mean moratorium under scheme of arrangement applied to in rem claims ONG CHEE KWAN J
ARTICLESCLJ Article(s)
LNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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