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Issue #24/2024
13 June 2024

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CASE(S) OF THE WEEK

DAHLIA DHAIMA ABDULLAH v. MAJLIS AGAMA ISLAM SELANGOR & ANOTHER APPEAL [2024] 5 CLJ 855
FEDERAL COURT, PUTRAJAYA
ABANG ISKANDAR PCA; MARY LIM FCJ; ABU BAKAR JAIS FCJ
[CIVIL APPEAL NOS: 01(f)-18-06-2023(B) & 01(f)-19-06-2023(B)]
3 MAY 2024

(i) An invalid legal status of conversion of a minor who is legally in the care and custody of a Muslim-convert mother does not by itself determine that the minor is factually 'never a Muslim.' An assessment of the facts and circumstances of a particular case is not to be restricted only to the point of conversion without evaluating the whole facts revolving around the life of a minor since his/her childhood right until the filing of the suit; (ii) When an individual is requesting a declaration at the Syariah Courts to be declared no longer a Muslim, this is considered a renunciation or apostacy case in which the Syariah Courts have the jurisdiction to decide. It would be inappropriate, unjust to the system of judicial administration and power of the Syariah Courts and wholly unjustified for the same to be supplanted of its jurisdiction and for the jurisdiction instead to be conferred on the civil courts.

CONSTITUTIONAL LAW: Jurisdiction - Courts - Person not professing religion of Islam - Conversion to Islam at age of five by mother without consent of father but continued to practice Hindu religion - Syariah Courts declared that person still Muslim - Whether case of apostasy/renunciation - Whether ab initio case - Whether matter fell within jurisdiction of civil court/Syariah Court - Whether jurisdiction of civil court ousted - Whether person fits statutory definition of 'Muslim' - Federal Constitution, art. 121(1A)

ISLAMIC LAW: Conversion - Conversion to Islam - Validity - Person not professing religion of Islam - Conversion to Islam at age of five by mother without consent of father but continued to practice Hindu religion - Whether conversion valid - Whether there was proof of affirmative profession of religion of Islam - Administration of Islamic Law (Federal Territories) Act 1993, s. 2

STATUTORY INTERPRETATION: 'Muslim' - Administration of Islamic Law (Federal Territories) Act 1993, s. 2 - Whether definition concerns one's faith or identity under law - Whether person practices religion or not consideration in determining 'person professing the religion of Islam'


JUDICIAL QUOTES

“I agree with that view. There should not have been a charge in the first place if the investigations were “still going on” or incomplete. It would be an aberration and a travesty on the administration of criminal justice if the courts were seen to condone a practice of charge now, investigate later. The prosecution's reason for a direction of DNAA under s. 254(3) borders on abuse and oppression that cannot be endorsed by the court. In effect, had this been a summary trial, it would have shown that the prosecution had a groundless case and the accused must be acquitted and discharged.” - Per Mary Lim FCJ in Vigny Alfred Raj Vicetor Amratha Raja v. PP [2022] 8 CLJ 1

LATEST CASES

Legal Network Series

[2024] CLJU 91

TURNPIKE SYNERGY SDN BHD v. KAY CORPORATION SDN. BHD & ANOTHER CASE

1. In setting aside an adjudication decision, the party who is alleging that the adjudication decision was procured by way of fraud by the other party in the latter’s favour has the burden to prove on a balance of probabilities of the alleged fraud. The allegation of fraud fails if the party who is alleging it has not taken any steps to raise the issue of fraud at the earliest opportunity during the adjudication proceedings itself.

2. Cogent evidence and compelling legal submission are required to justify an allegation that an adjudicator in the adjudication proceedings lacked independence or impartiality in arriving at her decision.

CONSTRUCTION LAW: Adjudication - Setting aside - Application to set aside decision of adjudicator - Adjudicator allowed main contractor's claim for unpaid sum under construction contract for relocation of transmission pylons - Allegation that adjudication decision was procured by fraudulent means by relying on a document - Whether applicant had taken steps to stop adjudication proceedings at earliest opportunity - Whether there has been a denial of natural justice - Whether adjudicator had provided both parties opportunities to state their case respectively at adjudication proceedings - Whether adjudicator had acted impartially - Whether adjudicator had acted in excess of his jurisdiction

  • For the Turnpike - Vatsala Ratnasabapathy, Khong Heng Kai & Sharizah Mohamed Shihab; M/s Zain & Co
  • For the Kay Corporation - Jason Ng Kau & Bell Wong Chia Pei; M/s Jason Ng & Partners

[2024] CLJU 93

MOHD AZHAR LAMSAH v. PP

It is the duty of the trial judge at the defence stage to consider the defence of the accused categorically and test it against the evidence led by the prosecution to see if it raises a reasonable doubt on the case of the prosecution. When calling upon the accused to enter his defence, the trial judge must keep an open mind as to the accuracy of the evidence led by the prosecution until the defence's evidence has been tendered. At the close of the case for the defence and submission, the court must review the evidence adduced with regard to all the elements to be proved and then decide whether the prosecution has proved its case against the accused beyond reasonable doubt.

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Offence of self-administration of drugs under s. 15(1)(a) of Dangerous Drugs Act 1952 - Accused denied consuming any drugs - Urine sample shows diverse results - Allegation of mixed up urine sample - Whether trial court had appreciated consistent defence of accused - Whether there was tangible evidence proffered by prosecution to show urine sample taken belonged to accused - Whether defence of accused could be a mere denial

  • For the appellant/accused - G Nanda Goban; M/s Goban & Company; Yayasan Bantuan Guaman Kebangsaan Malaysia
  • For the respondent/Public Prosecutor - Aqilah Ishak; DPP

[2024] CLJU 94

MMSB CONSULT SDN BHD v. MAHKAMAH PERUSAHAAN MALAYSIA & ANOR AND OTHER CASES

1. Failure of the Industrial Court to adequately consider the appropriate legal test as to whether a genuine redundancy situation has arisen amounts to misdirection of law and fact, which is amenable by way of judicial review.

2. Industrial Court had erred in finding that the employer was obligated to inform the employee about the appraisal and the reason thereof, and the failure to do so rendered the appraisal mala fides. Such findings of the Industrial Court are clearly in conflict with established industrial jurisprudence, which has held that there is no requirement to notify employees of the selection process or to conduct appraisals personally with the employees. The Industrial Court had committed a serious error of fact by determining that it was incumbent upon the employer to take separate steps to address the employee's performance when poor performance was never the basis for the employee's dismissal.

ADMINISTRATIVE LAW: Judicial review - Certiorari - Industrial Court held dismissal by applicant without just cause and excuse - Whether Industrial Court had correctly applied legal principles germane to redundancy and retrenchment - Whether Industrial Court had applied a restrictive interpretation of termination clause - Whether Industrial Court had adequately considered appropriate legal test as to genuine redundancy - Whether Industrial Court's decision was irrational

  • For the applicant - T Thavalingam & David Tan Seng Keat; M/s T Thavalingam & Co
  • For the 2nd respondent - Mohammad Amir Sharipuddin; M/s Razif, Abdul Aziz & Partners

[2024] CLJU 3

ABU BAKAR JAMAL lwn. PP

1. Pencabulan terhadap tubuh mangsa kanak-kanak oleh seorang ayah kandung adalah satu keaiban yang sangat besar untuk mana-mana mangsa dan keluarga. Dalam keadaan itu, kehadiran diri mangsa untuk memberi keterangan lisan akan sangat membebankan mangsa atau keluarganya dari segi mental dan emosi. Justeru, mahkamah boleh menerima laporan bertulis kenyataan impak mangsa mengikut s. 183A Kanun Tatacara Jenayah berbanding dengan pemberian keterangan mangsa secara lisan.

2. Hukuman penjara yang melebihi 40 tahun merupakan satu tempoh yang melebihi hukuman penjara maksima yang diperuntukkan di bawah undang-undang bagi jenayah yang boleh dihukum mati walaupun ianya satu jumlah akumulatif dari hukuman-hukuman yang berjalan secara berurutan.

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Jenayah seksual terhadap kanak-kanak - Pengakuan bersalah - Tertuduh dijatuhkan hukuman penjara 46 tahun dan 240 sebatan bagi kesalahan-kesalahan di bawah ss. 376, 377B dan 377CA Kanun Keseksaan dan ss. 14 dan 16 Kesalahan-Kesalahan Seksual Terhadap Kanak-Kanak 2017 - Kesalahan dilakukan oleh ayah kandung mangsa sendiri - Tertuduh berusia 46 tahun - Sama ada peruntukan s. 183A Kanun Tatacara Jenayah telah dipatuhi apabila pernyataan impak mangsa diterima - Sama ada tertuduh telah diprejudis akibat pengemukaan pernyataan impak mangsa secara bertulis - Sama ada rawatan boleh disediakan untuk jenis penyakit yang dialami tertuduh di penjara - Sama ada tempoh hukuman penjara dan sebatan adalah setimpal - Sama ada tertuduh wajar diberi peluang untuk menikmati kebebasan pada sisa hidupnya

  • Bagi pihak perayu - T/n Faridawati & Assocs
  • Bagi pihak responden - Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Melaka

[2024] CLJU 5

KOPERASI CO-OPBANK PERTAMA MALAYSIA BHD v. KOPERASI PEKERJA-PEKERJA MELAYU MELAKA BERHAD; MALAYAN BANKING BERHAD & YANG LAIN (GARNISI)

Dalam memohon untuk pengecualian wang dari tindakan garnisi atas alasan bahawa wang tersebut adalah wang amanah bagi pihak ketiga, penghutang penghakiman hendaklah membuktikan bahawa wang yang dipertikaikan bukanlah wang miliknya dan ia tidak mempunyai kuasa untuk berurusan dengannya.

PROSEDUR SIVIL: Pelaksanaan - Prosiding garnisi - Permohonan untuk pengecualian sejumlah wang dari tindakan garnisi - Pengecualian wang yuran dan caruman ahli-ahli - Sama ada jumlah caruman wajar diasingkan - Sama ada penghutang penghakiman telah memaklumkan semua ahlinya bahawa caruman mereka berisiko untuk hilang melalui tindakan garnisi - Sama ada penghutang penghakiman telah membuktikan wang yang dipertikaikan bukanlah wang miliknya dan tiada kuasa untuk berurusan dengannya - Sama ada wang yang dipegang adalah sebagai amanah bagi ahli-ahlinya

  • Bagi pihak penghutang penghakiman - Amir Affendi Mohd Khairi; T/n Mohd Mohtar & Co
  • Bagi pihak pemiutang penghakiman - Munirah Abd Rahman; T/n Goh Rafidah Tan

CLJ 2024 Volume 5 (Part 5)

Under s. 134(1) of the Land Code (Sarawak) (Cap. 81), where an issue document of title or an entry or amendment on the register of title has been procured or made by fraud, that title, entry or amendment is defeasible at the instance of the person who had been defrauded. Even if the registered proprietor had not been complicit in the fraud, so long as his title or entry onto the register had been procured or made by fraud, his title would be susceptible to challenge by the person defrauded.
Bisi Jinggot & Ors v. Lembaga Amanah Kebajikan Darul Falah [2024] 5 CLJ 687 [CA]

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LAND LAW: Indefeasibility of title and interest - Fraud - Alienation of native customary rights land to registered proprietor - Claim for declaratory orders that titles null and void - Allegation of fraud - Whether indefeasibility defeated by fraud - Whether failure to plead fraud negated claim - Whether proof that title 'procured or made by fraud' sufficient to make title defeasible - Whether suffice even if title procured by fraud by action of others - Land Code (Sarawak) (Cap. 81), ss. 132(1),134(1) & (2)

CIVIL PROCEDURE: Pleadings - Fraud - Alienation of native customary rights land to registered proprietor - Claim for declaratory orders that titles null and void - Allegation of fraud - Whether inconsistent with contents of statement of claim - Whether contravened rules of pleadings - Whether failure to plead fraud negated claim - Rules of Court 2012, O. 18 r. 10

 

SUPANG LIAN JCA
MOHD NAZLAN GHAZALI JCA
AZIZUL AZMI ADNAN JCA

  • For the appellant - Andrew Winston Kaya; M/s Winston Kaya
  • For the respondent - Yap Khan Kee; M/s Ee & Lim

A promise made in good faith but not fulfilled contractually does not give rise to any cause of action. Nevertheless, if the promise is made sans the intention to perform, it is a misrepresentation in respect of the then existing of mind of the promisor, which is a misrepresentation of present fact, giving rise to an action for damages.
IJM Construction Sdn Bhd v. Lingkaran Luar Butterworth (Penang) Sdn Bhd & Anor [2024] 5 CLJ 700 [CA]

CIVIL PROCEDURE: Judgments and orders - Consent judgment - Settlement of outstanding contracts - Parties entered into consent judgment - Allegation that detailed negotiations concerning proposed transaction would only take place following agreement to terms of consent judgment - One party acted on faith and truth of representations and gave consent and agreed to enter into consent judgment - Procrastination on negotiations - Whether there was false/fraudulent misrepresentation - Whether there was inducement - Whether consent judgment null and void

 

 

S NANTHA BALAN JCA
MOHD NAZLAN GHAZALI JCA
CHOO KAH SING JCA

  • For the appellant - Ng Sai Yeang & Angeline Leow Suk Huei; M/s Raja, Darryl & Loh
  • For the respondents - Cecil Abraham, Sunil Abraham, Alex Tan Chie Sian & Ho Zhi Yee; M/s Wong Kian Kheong

Rule 8(1) of the Rules of the Court of Appeal 1994 provides that a respondent can only file a notice of cross-appeal to the Court of Appeal against the decision of the High Court if the respondent intends to vary the High Court's decision. When the High Court's decision is wholly in favour of the respondent, as in this case, the respondent has no basis to file the cross-appeal as there is nothing in the High Court's decision to be varied in the respondent's favour.
Qi Qiaoxian (Claiming As The Mother And Dependent Of Qi Xiangqing, Deceased) & Anor v. Sunway Putra Hotel Sdn Bhd [2024] 5 CLJ 734 [CA]

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CIVIL PROCEDURE: Appeal - Cross-appeal - Deceased checked into hotel and swam in pool and drowned - Parents and dependents of deceased claimed for damages for negligence - Claims dismissed by Sessions Court and High Court - Claimants appealed against decision to Court of Appeal - Hotel cross-appealed - Whether hotel could file cross-appeal - Rules of the Court of Appeal 1994, r. 8(1)

TORT: Negligence - Duty of care - Deceased checked into hotel and swam in pool and drowned - Parents and dependents of deceased claimed for damages for negligence - Whether hotel liable to claimants for tort of negligence - Whether hotel owed duty of care - Whether hotel breached duty of care - Whether breach of duty of care caused deceased's death - Whether hotel could rely on warning notice - Whether defence of volenti non fit injuria applied

TORT: Occupier's liability - Ingredients - Deceased checked into hotel and swam in pool and drowned - Parents and dependents of deceased claimed for damages for negligence - Whether hotel liable to claimants for tort of negligence - Whether hotel had sufficient degree of control of pool at time of incident - Whether hotel liable to deceased as 'occupier' of pool - Whether deceased guest of hotel - Whether drowning of deceased constituted 'unusual danger' to deceased for which hotel failed to take reasonable care as occupier of pool to prevent drowning - Whether ingredients of occupier's liability satisfied

TORT: Damages - Claim for - Claim premised on torts of negligence and occupier's liability - Deceased checked into hotel and swam in pool and drowned - Claim by parents and dependents of deceased - Whether torts of negligence and occupier's liability proven - Whether claim for special damages could only be proven by documentary evidence

 

SUPANG LIAN JCA
AZIMAH OMAR JCA
WONG KIAN KHEONG JCA

  • For the appellants - Loh Chang Woo, Lim Shin Yee & Muhammad Norizul Naufal Dzulkarnain; M/s CW Loh & Assocs
  • For the respondent - Gan Khong Aik & Gwee Xi Wen; M/s Gan Partnership

In a contingent contract where time is of the essence in respect of the occurrence of its contingency, allowance of conditional extensions of time would not render time to be at large. The party required to ensure the occurrence of the contingency must ensure the contingency occurred within the extended deadlines.
Suruhanjaya Tenaga v. Strong Elegance Sdn Bhd [2024] 5 CLJ 763 [CA]

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CONTRACT: Contingent contract - Non-fulfilment of conditions precedent - Company acting as corporate vehicle required to procure lease of land for 23 years ('lease') within prescribed deadline before letter of award of project could be awarded by Energy Commission of Malaysia ('EC') - Company failed to procure lease within original and extended deadlines - EC decided to withdraw and terminate contingent contract - Appeal against withdrawal and termination of contingent contract - Whether contingent contract actually commercial contract - Whether company's reliance on s. 33 of Contracts Act 1950 ('CA') misplaced - Whether there was misinterpretation on s. 36 of CA - Whether incumbent upon EC to wait until company successfully procure lease - Whether allowance of conditional extensions of time caused time to be at large - Whether EC acted in manner which caused company to legitimately expect and accept delay in procuring lease had been accepted

STATUTORY INTERPRETATION: Contracts Act 1950, s. 36 - Interpretation - Contingent contract - High Court Judge's interpretation removed stipulations regarding 'time' and only put emphasis on stipulations regarding 'possibility' - Whether contractual time limitations should not bar performance of contingent contract - Whether there was misinterpretation - Whether interpretation would go against spirit of Contracts Act 1950 and intention of Parliament

 

HANIPAH FARIKULLAH JCA
AZIMAH OMAR JCA
AZHAHARI KAMAL RAMLI JCA

  • For the appellant - M Ramachelvam, Dir Heizwan Abd Halim, Amierul Razzi Ahmad Yusof & Nurul Syuhada Abdullah; M/s Manjit Singh Sachdev Mohammad Radzi & Pts
  • For the respondent; Prem Anand Theruvengadam & Joseph Michael Raju Joseph Alexander; M/s Deol & Gill

A plaintiff cannot enter a judgment in default of appearance to writ if his claim is for a declaration, an account, injunction, specific performance or rectification or other reliefs, other than a claim for liquidated demand, unliquidated damages, detinue or for possession of immovable property. If the reliefs claimed by the plaintiff include injunctions, the application is wrong and would not be permitted by O. 13 r. 6(1) of the Rules of Court 2012. The plaintiff is to proceed with the action as if the defendant had entered an appearance.
Dato’ Setia Dr Hj Mohd Na’im Hj Mokhtar v. Wan Muhammad Azri Wan Deris [2024] 5 CLJ 783 [HC]

CIVIL PROCEDURE: Judgment - Judgment in default of appearance - Application for leave to file and/or enter judgment in default of appearance to writ - Whether plaintiff could enter judgment in default of appearance to writ to claim for relief other than for liquidated demand, unliquidated damages detinue or for possession of immovable property - Whether plaintiff ought to proceed with action as if defendant entered appearance - Rules of Court 2012, O. 13 r. 6(1)

 

 

LEONG WAI HONG JC

  • For the plaintiff - Akberdin Abd Kader, Mohd Rafie Mohd Shafee, Mohd Reza Mohd Rafie & Meor Hafiz Salehan; M/s Akberdin & Co
  • For the defendant - is not present

In an action for negligence and public nuisance on allegations of pollution by unlawfully releasing or discharging industrial effluents into a river, the claimants cannot solely rely on previous convictions under the Environmental Quality Act 1974; they have to bring independent evidence to support their claims. Causation, being an element to prove in a claim for negligence, ought to be made out. However, if a suspension notice has been issued to a specific mill as a result of an investigation, and that mill is found to have breached the conditions of their licence, and their licence suspended, then on a balance of probabilities, a claim for negligence and public nuisance can be established against the said mill.
John Until & Ors v. Prolific Yield Sdn Bhd & Anor [2024] 5 CLJ 789 [HC]

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TORT: Negligence - Public nuisance - Unlawfully or wrongfully releasing or discharging industrial effluents or substance into river and its tributaries - Whether pollution caused by defendants - Whether defendants' mills were the only mills located near affected river - Whether causation, being an element to prove in claim for negligence, made out - Whether suspension notice issued - Whether plaintiffs established their claim on balance of probabilities - Quantum of damages - Whether established

CIVIL PROCEDURE: Action - Representative action - Locus standi - Preliminary objection raised - Whether plaintiffs and those represented by them members of a class, had common interest and common grievances - Whether absence of exact identity of claimants an impediment to plaintiffs commencing representative action - Whether plaintiffs provided list of claimants - Whether plaintiffs had locus standi to commence action

 

CELESTINA STUEL GALID J

  • For the plaintiffs - Goldam Hamid; M/s Goldam & Co
  • For the 1st defendant - Roderic Fernandez & Wong Chik Kien; M/s Shelley Yap
  • For the 2nd defendant - Grace Chaw; M/s Grace Chaw & Co

The question on the mode of commencement of an action depends on the factual matrix of the case. If the claim is based solely on substantive principles of public law, the proper mode should be judicial review; judicial review, however, would not be suitable if the claim falls under private law, even if it concerns a public authority. In the event the claim concerns a mixture of public and private laws, the court must ascertain which of the two is more predominant.
Mohd Yazid Mohd Sahari v. Majlis Perbandaran Hulu Selangor [2024] 5 CLJ 809 [HC]

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CIVIL PROCEDURE: Striking out - Writ and statement of claim - Appeal against - Action by tenant of lands against local authority at Sessions Court - Action premised upon torts of trespass and wrongful seizure of equipment - Sessions Court struck out tenant's writ and statement of claim on grounds of wrong mode of commencement of action and failure of action to disclose reasonable cause of action - Whether decision by Sessions Court correct - Rules of Court 2012, O. 18 r. 19(1)(a), (b) & (d)

CIVIL PROCEDURE: Mode - Mode of commencement - Action by tenant of lands against local authority at Sessions Court premised upon torts of trespass and wrongful seizure of equipment - Tenant commenced action by way of writ and statement of claim - Whether proper mode of commencement - Whether judicial review proper mode of commencement - Directives in Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors

LOCAL GOVERNMENT: Action by tenant of lands against local authority at Sessions Court - Action premised upon torts of trespass and wrongful seizure of equipment - Proper mode of commencement of action - Whether action disclosed reasonable cause of action

 

CHOONG YEOW CHOY JC

  • For the appellant - Manpal Singh Sachdev Manjit Singh & Helmi Zaharin; M/s Manjit Singh Sachdev Mohammad Radzi & Partners
  • For the respondent - Mohd Nazri Yahya & Jailani Moh Fari; M/s Nazri Yahya & Co

Pengapit bertugas menentukan kadar pampasan dalam satu prosiding rujukan tanah di mahkamah; bukan memutuskan kadar pampasan. Sebaliknya, mahkamah mempunyai bidang kuasa kehakiman untuk memutuskan kadar pampasan. Mahkamah akan mendapat bantuan daripada pengapit-pengapit untuk memahami laporan-laporan tersebut dan perkara-perkara yang perlu diberi perhatian dalam mencapai jumlah pampasan yang sewajarnya. Oleh itu, pandangan pengapit-pengapit pada amalannya tidak didedahkan pada pihak-pihak.
Phng Li-Wan lwn. Pentadbir Tanah Daerah Bentong [2024] 5 CLJ 818 [HC]

UNDANG-UNDANG TANAH: Pengambilan tanah - Pampasan - Amaun - Bantahan terhadap amaun pampasan - Amaun pampasan berkaitan kesan mudarat dan pemisahan tanah - Sama ada amaun pampasan oleh Pentadbir Tanah wajar - Pendapat pengapit-pengapit - Akta Pengambilan Tanah 1960, s. 38

 

 

ROSLAN MAT NOR H

  • Bagi pihak pemohon - Harold Tan Kok Leng & Jessica Wong Yi Sing; T/n Harold & Lam Partnership
  • Bagi pihak responden - Azizah Ahmad; Pejabat Penasihat Undang-undang Negeri Pahang

Section 25 of the Construction Industry Payment and Adjudication Act 2012 grants wide powers to an adjudicator, one of which is to draw on his own knowledge and expertise of the construction industry.
Tenaga Nasional Bhd v. Malaysian Resources Corporation Bhd & Other Cases [2024] 5 CLJ 835 [HC]

CONSTRUCTION LAW: Adjudication - Adjudication decision - Application to set aside adjudication decision - Whether adjudicator lacked jurisdiction and acted in excess of jurisdiction - Whether adjudicator proceeded on frolic of his own in deciding on certain matters - Whether adjudicator failed to provide reason/justification - Whether adjudicator failed to consider evidence/arguments raised - Whether adjudication decision null and void - Construction Industry Payment and Adjudication Act 2012, s. 15

CONSTRUCTION LAW: Adjudication - Adjudication decision - Stay of adjudication decision - Whether adjudicator lacked jurisdiction and acted in excess of jurisdiction - Whether adjudicator proceeded on frolic of his own in deciding on certain matters - Whether adjudicator failed to provide reason/justification - Whether adjudicator failed to consider evidence/arguments raised - Whether adjudication decision null and void - Construction Industry Payment and Adjudication Act 2012, s. 16

CONSTRUCTION LAW: Adjudication - Adjudication decision - Enforcement application - Whether adjudicator lacked jurisdiction and acted in excess of jurisdiction - Whether adjudicator proceeded on frolic of his own in deciding on certain matters - Whether adjudicator failed to provide reason/justification - Whether adjudicator failed to consider evidence/arguments raised - Whether adjudication decision null and void - Construction Industry Payment and Adjudication Act 2012, s. 28

CONSTRUCTION LAW: Adjudication - Adjudicator - Jurisdiction - Whether adjudicator lacked jurisdiction and acted in excess of jurisdiction - Whether adjudicator proceeded on frolic of his own in deciding on certain matters - Whether adjudicator failed to provide reason/justification - Whether adjudicator failed to consider evidence/arguments raised - Whether adjudication decision null and void - Powers of adjudicator to draw on own knowledge and expertise of construction industry - Construction Industry Payment and Adjudication Act 2012, s. 25

 

 

ALIZA SULAIMAN J

(Originating Summons Nos: WA-24C-183-09-2022 & WA-24C-184-09-2022)
  • For the plaintiff - Mohanadass Kanagasabai, Kalashini Sandrasegaran & Thomas Shaun Mathews; M/s Mohanadass Partnership
  • For the defendant - Sajitha Suresh & Suria Juan; M/s Selva Mookiah & Assocs
(Originating Summons No: WA-24C-186-09-2022)
  • For the plaintiff - Sajitha Suresh & Suria Juan; M/s Selva Mookiah & Assocs
  • For the defendant - Mohanadass Kanagasabai, Kalashini Sandrasegaran & Thomas Shaun Mathews; M/s Mohanadass Partnership

ARTICLES

LNS Article(s)

  1. WHAT IS THE CONSEQUENCE OF AN ILLEGAL CONTRACT? [Read excerpt]
    by James Ee Kah Fuk* [2024] CLJU(A) xlvii

  2. [2024] CLJU(A) xlvii
    MALAYSIA

    WHAT IS THE CONSEQUENCE OF AN ILLEGAL CONTRACT?

    by
    James Ee Kah Fuk*

    FORMATION OF A CONTRACT

    For an agreement to be enforceable, in other words, for it to become a contract, the pre-requisites of 'offer', 'acceptance', 'intention to create legal relationship' and 'consideration' must be present. If any of these requirements are not present in an agreement, the arrangement remains unenforceable.

    The following observations made in Halsbury's Laws of England (4th edn, reissue, 1998) vol 9 at [632] should also be noted:[1]

    'Agreement is usually reached by the process of offer and acceptance and, where this is so, the law requires that there be an offer on ascertainable terms which receives an unqualified acceptance from the person to whom it is made. In the nineteenth century, the popular theory was that there could be no contract without a meeting of the minds of the parties, consensus ad idem. This is still the general rule, so that, where the intended acceptance is not in accordance with the terms of the offer, the court may find that there is no binding contract, even though both parties to the purported contract contend that there is a binding contract.'

    . . .

    *Messrs KF Ee & Co.

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealed Superseded
ACT 853 Jurisdictional Immunities of Foreign States Act 2024 Not Yet In Force - -
ACT 852 Control of Smoking Products For Public Health Act 2024 Not Yet In Force - -
ACT 851 Finance (No. 2) Act 2023 The Income Tax Act 1967 [Act 53] see s 3; the Real Property Gains Tax Act 1976 [Act 169] see s 35; the Stamp Act 1949 [Act 378] see s 51; the Petroleum (Income Tax) Act 1967 [Act 543] see s 71; the Labuan Business Activity Tax Act 1990 [Act 445] see s 79; the Entertainments Duty Act 1953 [Act 103] see s 87; the Customs Act 1967 [Act 235] see s 89; the Excise Act 1976 [Act 176] see s 91; the Goods Vehicle Levy Act 1983 [Act 294] see s 93; the Windfall Profit Levy Act 1998 [Act 592] see s 95; the Tourism Tax Act 2017 [Act 791] see s 97; the Sales Tax Act 2018 [Act 806] see s 110; the Service Tax Act 2018 [Act 807] see s 126 and the Departure Levy Act 2019 [Act 813] see s 141 - -
ACT 850 Public Finance and Fiscal Responsibility Act 2023 1 January 2024 [PU(B) 584/2023] except s 37 and 38 - -
ACT 849 The Titular Superior of The Brothers of Saint Gabriel (Incorporation) Act 1957 (Revised-2023) 17 October 2023 2023 Date appointed for coming into operation of this revised edition pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 October 2023; First enacted in 1957 as Ordinance No 21 of 1957 - -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1712 Environmental Quality (Amendment) Act 2024 Not Yet In Force ACT 172
ACT A1711 Money Services Business (Amendment) Act 2024 Not Yet In Force ACT 731
ACT A1710 Highway Authority Malaysia (Incorporation) (Amendment) Act 2024 Not Yet In Force ACT 231
ACT A1709 Mutual Assistance In Criminal Matters (Amendment) Act 2024 Not Yet In Force ACT 621
ACT A1708 Unclaimed Moneys (Amendment) Act 2024 Not Yet In Force ACT 370

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 146/2024 Occupational Safety and Health (Fee For Registration of Competent Person and Registered Training Provider) Regulations 2024 31 May 2024 1 June 2024 ACT 514
PU(A) 145/2024 Federal Roads (Sarawak) (Amendment) (No. 4) Order 2024 31 May 2024 1 June 2024 PU(A) 551/1996
PU(A) 144/2024 Federal Roads (Felda Scheme) (Amendment) Order 2024 31 May 2024 3 June 2024 PU(A) 449/1991
PU(A) 143/2024 Housewives' Social Security (Benefits, Facilities For Physical Rehabilitation and Dialysis) (Amendment) Regulations 2024 30 May 2024 1 June 2024 PU(A) 200/2023
PU(A) 142/2024 Housewives' Social Security (Amendment of Sixth Schedule) Order 2024 30 May 2024 1 June 2024 ACT 838

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 213/2024 Notification of Value of Crude Petroleum Oil Under Section 12 12 June 2024 14 June 2024 to 27 June 2024 ACT 235
PU(B) 212/2024 Notice To Third Parties 12 June 2024 13 June 2024 ACT 613
PU(B) 211/2024 Delegation of Powers Under Sections 77 and 84 of The Road Transport Act 1987 12 June 2024 13 June 2024 ACT 358
PU(B) 210/2024 Notification Under Subregulation 3(3) For The Purpose of By-Election For The Seat of The Legislative Assembly N.20 Sungai Bakap In The State of Penang 6 June 2024 7 June 2024 PU(A) 185/2003
PU(B) 209/2024 Notice To Hold By-Election of A Member of The Legislative Assembly of The State of Penang For The Constituency of N.20 Sungai Bakap 6 June 2024 7 June 2024 PU(A) 293/2002

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 141/2017 Employees' Social Security (Amount of Funeral Benefit) Regulations 2017 PU(A) 139/2024 1 June 2024 Regulation 3
PU(A) 115/2024 Peraturan-Peraturan Suruhanjaya Penerbangan Malaysia (Caj Perkhidmatan Penerbangan) (Pindaan) 2024 PU(A) 136/2024 1 Jun 2024 Perenggan 3
PU(A) 115/2024 Malaysian Aviation Commission (Aviation Services Charges) (Amendment) Regulations 2024 PU(A) 136/2024 1 June 2024 Paragraph 3
PU(A) 117/2023 Perintah Kastam (Larangan Mengenai Import) 2023 PU(A) 128/2024 1 Jun 2024 Jadual Pertama
PU(A) 117/2023 Customs (Prohibition of Imports) Order 2023 PU(A) 128/2024 1 June 2024 First Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 402/2022 Perintah Pengangkutan Jalan (Larangan Penggunaan Jalan) (Jalan Persekutuan) (No. 22) 2022 PU(A) 113/2024 30 April 2024
PU(A) 402/2022 Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 22) Order 2022 PU(A) 113/2024 30 April 2024
PU(A) 159/2022 Perintah Komunikasi Dan Multimedia (Pelantikan Pengerusi Tribunal Rayuan) 2022 PU(A) 85/2024 13 Mac 2024
PU(A) 159/2022 Communications and Multimedia (Appointment of Chairman of the Appeal Tribunal) Order 2022 PU(A) 85/2024 13 March 2024
PU(A) 103/2016 Medical Device (Exemption) Order 2016 PU(A) 78/2024 6 March 2024

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