| Print this page | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Issue #3/2026
15 January 2026
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Subscribe now to make the most of this legal bulletin and have full access to judgments and other documents. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
New This Week
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
CASE SPOTLIGHTS
GIRISH CHANDRA HEMRAJ SHASTRI v. JYOTI SHARMA [2026] 1 CLJ 702 While the court generally will not divide assets long-disposed of to genuine third parties, it will look behind transfers to related parties and order compensation if the timing and circumstances suggest the disposal was made in bad faith to prevent the assets from being divided as matrimonial property. FAMILY LAW: Divorce - Matrimonial property - Division - Wife sought husband to transfer 50% of his share or beneficial interest in house and shoplot or in alternative, to pay her compensation equivalent to half current market value of properties - Husband disposed of assets to related company - Timing of disposal of assets - Whether assets were matrimonial properties - Whether disposal done with mala fide to defeat wife's claim - Whether assets long-disposed of to third party could be divided - Law Reform (Marriage and Divorce) Act 1976, s. 76 JUDICIAL QUOTES“I am aware of the increasing number of the unwritten grounds of judgment at the High Courts. The former Lord President, Tun Suffian once remarked that a judge’s duty is to dispense justice without fear or favour. I would add that we must also dispense it without 'undue delay.' A judge who carries a backlog of ten or more outstanding grounds of judgment is carrying a heavy burden — not just for the system, but on their own conscience.” “We will do everything in our power to assist those who are struggling. But we must be honest: there is a limit to assistance. The bench is a place for those who can stand the heat of the fire. I have to be fair to the litigants. I have to be fair to the Court of Appeal Judges who cannot proceed with the appeal just because the grounds of the High Courts are not available. For the sake of the public who await our decisions, we cannot allow the machinery of justice to be clogged.” - Per Wan Ahmad Farid Wan Salleh CJ vide His Lordship’s speech at the Opening of the Legal Year 2026 on 12 January 2026 at the MITEC, Kuala Lumpur APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2026 Volume 1 (Part 3) One of the reasons to justify consolidation would be to prevent inconsistent findings of fact being arrived at by courts hearing cases premised upon the same transaction. However, if the application for consolidation is a mere tactical manoeuvre and results in an abuse of the process of the court, the court would not allow such an application for consolidation. CIVIL PROCEDURE
CIVIL PROCEDURE: Action - Consolidation of actions - Application for - Whether issues related to one another - Whether merits of cases sought to be consolidated depend on same transaction - Whether absence of order for consolidation would render contentions of fraud in one case having to be proved in another case - Whether possibility of inconsistent finding of fact primary consideration in application for consolidation - Whether application ought to be allowed - Rules of Court 2012, O. 4 r. 1 & O. 57 r. 1(1)
Hashim Hamzah JCA
A guaranteed rental return scheme ('GRRS') offered by a developer's authorised agent as an inducement to purchase a property, covered by a statutory sale and purchase agreement ('SPA') under the Housing Development (Control and Licensing) Act 1966 ('HDA' ) and the Housing Development (Control and Licensing) Regulations 1989 ('HDR'), can be binding on the developer, provided that: (i) the agent who made the representation was acting with actual or ostensible authority from the developer; (ii) the GRRS is an ancillary benefit or collateral promise that does not contravene or vary the statutory provisions of the SPA and is not illegal under the HDA or the HDR; and (iii) the purchaser was induced to enter into the SPA as a result of the representations concerning the GRRS. AGENCY | LAND LAW | CONTRACT
AGENCY: Agent - Development project - Exclusive agent for development project made representations to purchasers - Guaranteed rental return scheme - Purchasers entered into sale and purchase agreements upon inducement by agent - Developer did not honour promise of scheme - Allegation by developer that it had no knowledge of scheme for project and did not authorise agents to enter into any scheme with purchasers - Whether agent was agent of developer - Whether agent made purported representations - Whether purported representations binding on developer LAND LAW: Sale and purchase agreement - Condominium units - Purchase of - Exclusive agent for development project made representations to purchasers - Guaranteed rental return scheme - Purchasers entered into sale and purchase agreements upon inducement by agent - Developer did not honour promise of scheme - Allegation by developer that it had no knowledge of scheme for project and did not authorise agents to enter into any scheme with purchasers - Whether agent was agent of developer - Whether agent made purported representations - Whether scheme legal and valid - Whether purported representations binding on developer - Housing Development (Control and Licensing) Act 1966 - Housing Development (Control and Licensing) Regulations 1989 CONTRACT: Agreement - Sale and purchase agreement - Purchase of condominium units - Guaranteed rental return scheme - Exclusive agent for development project made representations to purchasers - Purchasers entered into sale and purchase agreements upon inducement of scheme by agent - Whether scheme legal and valid S Nantha Balan JCA
Claim for compensation arising from lodgement of a wrongful caveat, which results in losses to the landowner, ought to be allowed. Section 329(1) of the National Land Code creates a statutory right to compensation where a person suffers loss or damage owing to a caveator's failure to withdraw or remove a wrongful caveat. The compensation is subject to fulfilment of the conditions in s. 329(1). In awarding compensation, the court would consider whether the damages are reasonably foreseeable and mitigating measures were undertaken. CONTRACT | LAND LAW
CONTRACT: Agreement - Terms - Joint venture agreement - Indemnity obligations - Damages arising from wrongful lodgement of caveat - Caveat resulted in cancellation of loan and refusal to drawdown loan - Developer incurred additional financing costs in obtaining alternative source of financing - Whether clauses in agreement provided for indemnity obligation for losses arising from independent legal wrong of third party - Whether developer ought to be indemnified LAND LAW: Caveat - Wrongful lodgement - Claim for damages arising from wrongful lodgement of caveat - Whether conditions under s. 329(1) of National Land Code satisfied - Whether caveat entered wrongfully or without reasonable cause - Whether actual damages or losses resulted from wrongful lodgement of caveat - Whether caveat frustrated financing arrangements - Whether damages foreseeable - Whether mitigating steps taken - Whether compensation awarded
Mohd Nazlan Ghazali JCA
Expert opinion evidence on a matter that falls within the common experience and knowledge of the trial judge is inadmissible or, if admitted, should be given no weight, as it risks usurping the judge's function to determine the ultimate issue of fact from the proved circumstances of the case. CRIMINAL LAW | CRIMINAL PROCEDURE | EVIDENCE
CRIMINAL LAW: Offence - Murder - Accused charged with murder of infant son - Whether prosecution proved appellant caused death of deceased - Whether intention to murder established - Whether prima facie case established - Whether trial judge erred in accepting eyewitness testimony over expert opinion - Penal Code, s. 302 CRIMINAL PROCEDURE: Appeal - Appeal against sentence and conviction - Accused charged with murder of infant son - Accused found guilty and sentenced to death - Whether prosecution proved appellant caused death of deceased - Whether intention to murder established - Whether prima facie case established - Whether trial judge erred in accepting eyewitness testimony over expert opinion - Penal Code, s. 302 EVIDENCE: Expert evidence - Opinion evidence - Admissibility - Accused charged with murder of infant son - Accused found guilty and sentenced to death - Pathologist's opinion on proximate cause of injury - Whether expert opinion admissible - Whether trial judge erred in accepting eyewitness testimony over expert opinion - Evidence Act 1950, s. 45(1) EVIDENCE: Eyewitness - Credibility - Accused charged with murder of infant son - Accused found guilty and sentenced to death - Assessment and weight to be attached to eyewitness testimony - Whether trial judge erred in accepting eyewitness testimony over expert opinion - Evidence Act 1950, s. 45(1) Lee Swee Seng JCA
(i) Defamatory words need not specifically name the claimant; it is sufficient if a reasonable person who knows the claimant would conclude that the words referred to him/her; (ii) For the cause of action of libel, with respect to publication to a third party, the element is satisfied when a letter, even if sent only to a firm, is read by the firm's personnel, who are considered the claimant's servants or agents, provided there was no instruction that the letter was to be read only by a particular person. TORT
TORT: Defamation - Libel - Damages - Claim - Correspondence between lawyers acting for respective clients - Words contained in letter - Allegations of misconduct by lawyer - Fraudulent alteration of contract, forgery, tax evasion and coercion - Whether impugned words defamatory - Whether referred to claimants - Whether published to third parties - Whether words/letter published with malice - Whether ingredients of tort of defamation established TORT: Defamation - Libel - Defences - Correspondence between lawyers acting for respective clients - Words contained in letter - Allegations of misconduct by lawyer - Fraudulent alteration of contract, forgery, tax evasion and coercion - Whether defences of unintentional defamation, qualified privilege and justification available to alleged tortfeasor - Defamation Act 1957, s. 7
Kenneth St James J
(i) The ownership interest of the river encroachment area on a private land parcel, wherever it may be situated, is always vested in the State. The State's proprietary right is preserved regardless of whether a memorial reflecting the change has been entered on the land's register document of title; (ii) The employer of an independent contractor is generally not vicariously liable for any tort committed by the independent contractor in the course of executing the contracted works, if there is no evidence to suggest the employer exercised hands-on control or was otherwise responsible for the contractor's operations. TORT
TORT: Trespass - Damages - Claim - Claim by landowners - Allegations that sand mining activities caused river running through landowners' land to widen, deepen and erode banks, reducing land area and causing destruction of trees on land - Whether there was trespass - Whether landowners had necessary locus standi to initiate claim TORT: Negligence - Damages - Claim - Claim by landowners - Allegation that tortfeasors negligent in carrying out sand mining activities - Sand-mining activities caused river running through landowners' land to widen, deepen and erode banks, reducing land area and causing destruction of trees on land - Whether negligence established - Whether landowners had necessary locus standi to initiate claim TORT: Liability - Independent contractor - Claim by landowners - Allegation that tortfeasors negligent in carrying out sand mining activities - Sand-mining activities caused river running through landowners' land to widen, deepen and erode banks, reducing land area and causing destruction of trees on land - Whether employer liable for acts of independent contractor - Whether employer exercised hands-on control over independent contractor's operations - Whether independent contractor liable to indemnify employer if it was found liable for damages
Elaine Yap Chin Gaik JC
A party who has suffered a genuine wrong cannot choose to vent their grievance against an innocent party caught in the crossfire. Liability must be grounded in fault or responsibility, not emotion or misplaced retribution or self-help. Where wrong has been done, redress must follow but it must be sought from the right quarters and in accordance with the law. An innocent party, who does not even have a contractual relationship with the aggrieved party, but is threatened and its premises trespassed due to misdirection of blame, is entitled to exemplary damages. CONTRACT | TORT
CONTRACT: Agreement - Sale and purchase agreement ('SPA') - Purchase of gold between defendants and distributor company - Whether there was contractual relationship between plaintiffs and defendants - Whether plaintiffs merely advanced gold to defendants for the opening of defendants' shop - Plaintiffs claimed for return of gold - Whether defendants threatened plaintiffs' wellbeing - Whether defendants entering plaintiffs' shop and taking gold from their safe wrongful - Whether resulted in loss to plaintiffs - Whether high-handed conduct of defendants could be condoned - Whether plaintiffs entitled to exemplary damages TORT: Damages - Exemplary damages - Claim for - Dispute regarding purchase of gold - Physical assault and threats made against plaintiffs - Whether defendants threatened plaintiffs' wellbeing - Whether defendants entering plaintiffs' shop and taking gold from their safe wrongful - Whether resulted in loss to plaintiffs - Whether high-handed conduct of defendants could be condoned - Whether plaintiffs entitled to exemplary damages
Ong Chee Kwan J
CLJ 2026 Volume 1 (Part 4) (i) In granting a forfeiture order under s. 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ('AMLATFPUAA'), a prior conviction for a serious offence is not required. The High Court need only determine whether the seized property falls within any of the statutory categories set out in s. 56(1) and 56(2). The essential requirement is that there is sufficient evidence to satisfy the court that an unlawful activity has been committed and that the property sought to be forfeited is connected to or derived from that unlawful activity; (ii) Under s. 61(4) of the AMLATFPUAA, the burden is on the third party to establish, on a balance of probabilities, his entitlement to the seized property. Bare assertions regarding his financial status are insufficient to discharge this burden; (iii) Statements recorded under s. 37B of the Dangerous Drugs Act 1952 and s. 32 of the AMLATFPUAA are admissible in forfeiture proceedings by virtue of ss. 71 and 40 of the AMLATFPUAA. These statements - like those under s. 112 of the Criminal Procedure Code - are admissible because forfeiture proceedings under s. 56 are quasi-criminal in nature which focuses on determining whether the property is connected to an unlawful activity. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Forfeiture - Principles governing - Forfeiture order granted under s. 56 of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ('AMLATFPUAA') - Whether seized properties fell within any of categories or situations mentioned in s. 56(1) and (2) of AMLATFPUAA - Applicable standard of proof - Whether conviction of serious offence under AMLATFPUAA prerequisite in granting forfeiture order - Whether forfeiture order could be based on s. 39B of Dangerous Drugs Act 1952, and not s. 6 of DDA, which accused was convicted with - Difference between 'unlawful activity' and 'serious offence' within scheme of AMLATFPUAA CRIMINAL PROCEDURE: Forfeiture - Principles governing - Third party claimed ownership over property sought to be forfeited - Whether third party successfully proven, on balance of probabilities, seized property belonged to him - Whether mere assertion of financial status suffice to discharge burden of proof CRIMINAL PROCEDURE: Forfeiture - Principles governing - Admissibility of statements of accused recorded under s. 37B of Dangerous Drugs Act 1952 and s. 32 of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ('AMLATFPUAA') - Whether admissible under ss. 71 and 40 of AMLATFPUAA
Mohd Nazlan Ghazali JCA
An employer/purchaser of a commissioned product may be deemed a 'privy in interest' of the contractor/supplier who designed, constructed, and installed that product under a contract, if the employer/purchaser had a sufficient degree of identification, connection, and interest in the subject matter of the dispute, ie, the product and the underlying patents. When such privity in interest is established, the employer/purchaser is bound by an earlier final judgment involving the contractor that determined the validity of the relevant patents, and is thus estopped from subsequently contesting or re-litigating the patent's validity in a new suit initiated by the patent owner against the employer/purchaser for the latter's subsequent and distinct infringing acts. INTELLECTUAL PROPERTY | CIVIL PROCEDURE
INTELLECTUAL PROPERTY: Patent - Infringement - Mobile offshore production unit ('MOPU') - Patents relating to offshore production units with removeable wellhead support structures - Respondent awarded engineering, procurement, construction, installation and commissioning contract to third-party contractor for design, construction and installation of MOPU - Whether respondent privy to contractor in earlier patent infringement suit - Whether respondent bound by earlier judgment finding MOPU infringed patents - Whether there was sufficient privity of interest between contractor and respondent - Whether respondent's close involvement in design, engineering, procurement, construction and installation of MOPU established privity - Whether respondent estopped from challenging validity of patents - Patents Act 1983, ss. 11, 14, 15, 23, 27A(1), 35(1), 36(1), 36(2), 36(3), 56 & 56(2) CIVIL PROCEDURE: Res judicata - Issue estoppel - Patent infringement - Earlier final judgment finding contractor infringed patents by designing, constructing and installing mobile offshore production unit ('MOPU') - Subsequent suit by patent owner against employer/purchaser of MOPU - Whether employer privy to contractor - Whether employer bound by earlier judgment - Test for privity of interest - Whether there was sufficient degree of identification and connection between parties - Whether employer had legal or beneficial interest in subject matter of earlier litigation - Whether just to bind employer to earlier judgment CIVIL PROCEDURE: Estoppel - Estoppel per rem judicatam - Requirements for issue estoppel - Whether same question decided - Whether judicial decision final - Whether parties or their privies same persons - Meaning of 'privy' - Privity of blood, title or interest - Test for privity of interest - Whether sufficient community or privity of interest between parties
Lee Swee Seng FCJ
An employee's action, even if found to be ill-advised or mistaken, will generally not constitute misconduct sufficient to warrant termination if the employee acted bona fide and solely for the purpose of improving the company's performance in the scope of their duties, especially when: (i) the action lacked malicious elements, dishonesty, recklessness, or a motive of self-interest; (ii) the employee's superior or the relevant department was consulted, informed or approved the action, demonstrating that it was not a unilateral act; and (iii) the contents of the communication/document are in line with the company's operational expectations and the employee's duties. ADMINISTRATIVE LAW | LABOUR LAW
ADMINISTRATIVE LAW: Judicial review - Appeal - Challenge against award of Industrial Court - Award quashed by High Court - Claimant dismissed from employment - Allegations that claimant directed issuance of document to employees, using and quoting Chief Operating Officer without obtaining prior approval - Document allegedly placed employees under duress and concerned continuity of their employment - Whether allegations proven - Whether claimant acted bona fide - Whether claimant's action amounted to misconduct - Whether punishment of dismissal proportionate - Whether award of Industrial Court tainted with error of law - Whether High Court correct in allowing judicial review and quashing award LABOUR LAW: Employment - Termination - Misconduct - Allegations that claimant directed issuance of document to employees, using and quoting Chief Operating Officer without obtaining prior approval - Claimant dismissed from employment - Whether allegations proven - Whether claimant's action amounted to misconduct - Whether punishment of dismissal proportionate to alleged misconduct
Azmi Ariffin JCA
When the person with firsthand knowledge fails to give evidence, any record or statement that they made outside of court often remains inadmissible or, at the very least, carries significantly reduced weight. Live testimony under oath, subject to cross-examination, are preferred to establish facts. TORT
TORT: Duty of care - Breach - Claim - Bullying and assault in special needs school - Allegation that disabled student bullied by fellow students while enrolled in full boarding facility operated by school - Whether school failed to ensure safety of student - Whether there was failure to take necessary action to prevent recurrence - Whether there was failure by Ministry of Education and Government of Malaysia failed to provide proper education in special needs school - Whether claim substantiated and proven - Persons with Disabilities Act 2008
Mohd Nazlan Ghazali JCA
In drafting grounds of decision, great care must be taken to ensure the correct facts are put into perspective since all deliberations and findings will ultimately affect the fate of the accused person. In criminal trials, more so when it involves capital punishment, the life and death of an accused person greatly depend not only on the critical evaluation of all evidence but also on the words chosen and put together by the trial judge to correctly and accurately convey that evaluation and ultimately his or her decision. A failure of duty by the trial judge to evaluate the correct facts and evidence, not only in the process of decision-making but ultimately in the decision itself, can cause injustice to the accused. CRIMINAL LAW | CRIMINAL PROCEDURE
CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B - Offence of trafficking - Appeal against conviction and sentence - Trial judge confused facts in present case with different unrelated case in grounds of judgment - Whether there was misdirection and error on finding of material facts - Whether injustice caused to accused - Whether there was clear failure of duty by trial judge in evaluating correct facts and evidence in process of decision-making - Whether conviction and sentence ought to be set aside CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Charge of trafficking - Trial judge confused facts in present case with different unrelated case in grounds of judgment - Whether there was misdirection and error on finding of material facts - Whether injustice caused to accused - Whether there was clear failure of duty by trial judge in evaluating correct facts and evidence in process of decision-making - Whether conviction and sentence ought to be set aside CRIMINAL PROCEDURE: Trial - Duty of trial judge - Grounds of decision - Trial judge confused facts in present case with different unrelated case in grounds of decision - Whether there was misdirection and error on finding of material facts - Whether there was clear failure of duty by trial judge in evaluating correct facts and evidence in process of decision-making - Whether trial judge ought to ensure proper facts conveyed in grounds of decision - Whether manifest and serious errors affected credibility and reliability of decision of trial judge
Azman Abdullah JCA
(i) A hotel operator owes a contractual and common law duty of care to guests, which extends to ensuring that hotel amenities are safe for use. The hotel is liable for injuries caused by an unusual or hidden danger that a reasonable guest would not be aware of or expect; (ii) A defence based on a prohibition notice shall fail if the hotel cannot prove the notice was prominently placed and legible, and especially if the hotel employees failed to enforce the prohibition at the time of an incident. CONTRACT | TORT
CONTRACT: Breach - Contractual duty - Claim for damages brought by parents against hotel operators for death of son - Deceased drowned after getting sucked and stuck under water in hotel's jacuzzi due to powerful suction mechanism - Whether hotel operators breached contractual duties towards hotel guests - Whether breach of contract on part of hotel operators caused death of deceased - Whether hotel operators failed to ensure safety of amenity - Whether hotel operators failed to execute proper emergency procedures - Whether notice prohibiting minors from using jacuzzi available as defence to hotel operators TORT: Negligence - Duty of care - Claim for damages brought by parents against hotel operators for death of son - Deceased drowned after getting sucked and stuck under water in hotel's jacuzzi due to powerful suction mechanism - Whether hotel operators owed duty of care to ensure safety of guests - Whether hotel operators breached duty of care - Whether negligence on hotel operators' part caused death of deceased - Whether hotel operators failed to ensure safety of amenity - Whether hotel operators failed to execute proper emergency procedures - Whether notice prohibiting minors from using jacuzzi available as defence to hotel operators
Johan Lee Kien How J
ARTICLESCLJ Article(s)
LNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|