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Issue #28/2024
11 July 2024

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New This Week

CASE(S) OF THE WEEK

LING BOON HUAT v. DING TOH BIEW [2024] 6 CLJ 694
COURT OF APPEAL, PUTRAJAYA
S NANTHA BALAN JCA; MOHD NAZLAN GHAZALI JCA; CHOO KAH SING JCA
[CIVIL APPEAL NO: A-02(NCVC)(A)-312-03-2023]
22 MARCH 2024

A consent order operates as a contract. Parties are bound by the terms of the consent order and there is no rule that permits or allows one party to seek to imply a term into a consent order merely because it is a consent order. Thus, a consent order stands on the same footing as a contract that has been agreed upon by parties in the usual way. Hence, a party that seeks to rely on an implied term, bears the same burden, which must of necessity be onerous, to demonstrate that the requisite legal criteria has been met before a term is to be implied. A term would only be implied if it satisfies the test of business necessity and if the party seeking to rely on it could satisfy the court that without such a term 'the contract would lack commercial or practical coherence'.

CIVIL PROCEDURE: Judgments and orders - Consent order - Sale/transfer of property - Implied term - Whether there was implied term that property would be re-valued to reflect current market value - Whether plaintiff could seek re-valuation of property to cater for delay in implementation of consent order - Whether such term would change financial paradigm of consent order - Whether there was legal basis for terms to be implied - Whether there was abuse of court process


LIM SWEE CHOO & ANOR v. ONG KOH HOU & ANOTHER APPEAL [2024] 6 CLJ 811
COURT OF APPEAL, PUTRAJAYA
RAVINTHRAN PARAMAGURU JCA; WONG KIAN KHEONG JCA; AZHAHARI KAMAL RAMLI JCA
[CIVIL APPEAL NOS: W-02(NCvC)(W)-439-03-2022 & W-02(NCvC)(W)-449-03-2022]
19 APRIL 2024

The doctrine of total failure of consideration, while not provided in the Contracts Act 1950, provides a valid ground for one to rescind the contract wherein, the consideration for which he has paid, has totally failed. The doctrine of total failure of consideration is not confined to money paid under the contracts. This doctrine has now been applied by the courts in the Commonwealth, including Malaysia, to allow restitution of money, benefit and/or advantage provided under contracts on the ground that the 'consideration' for the provision of the money/benefit/advantage has totally failed.

CONTRACT: Consideration - Total failure of consideration - Plaintiff purchased land and assigned absolutely rights in land to defendant - Assignment and supplemental agreement - Part of purchase price set off from debt owed by plaintiff to defendant - Plaintiff concealed from defendant that land sold before conclusion of assignment - Whether there was total failure of consideration - Whether claim for special damages by plaintiff constituted unjust enrichment - Whether restitutionary remedy ought to be ordered against plaintiff - Whether plaintiff should return to defendant monies paid under contract


JUDICIAL QUOTES

“Now, if Respondents were to leave the country and even if the appeal were to proceed in the absence of the Respondents as is permitted by law, their subsequent extradition to Malaysia would be wrought with difficulty and in some cases it would be an impossibility. We have taken judicial notice of the case of Sirul Azhar, where the Public Prosecutor's appeal proceeded in the absence of the accused/respondent who were then convicted by the Federal Court, the sentence could not be executed as he had fled to Australia and attempts to extradite were not fruitful because Australian law forbade any person facing the death penalty to be extradited. Obviously, once a person facing a drug trafficking charge is out of jurisdiction, then the continuation of the trial or appeal would be a waste of public funds and judicial resources.” - Per Vazeer Alam Mydin Meera JCA in PP v. Artur Peek & Ors [2024] CLJU 913

APPEAL UPDATES

  1. Presto Supermarkets (Subang) Sdn Bhd & Ors v. Attic Holdings Sdn Bhd [2024] CLJU 405 overruling in part the High Court case of Attic Holdings Sdn Bhd v. Presto Supermarkets (Subang) Sdn Bhd & Ors [Writ Saman No:BA-22NCVC-327-05/2017]

  2. JDI Builtech (M) Sdn Bhd v. Danga Jed Development Malaysia Sdn Bhd [2024] CLJU 373 affirming the High Court case of JDI Builtech (M) Sdn Bhd v. Danga Jed Development Malaysia Sdn Bhd [2022] CLJU 1777; [2022] 1 LNS 1777

LATEST CASES

Legal Network Series

[2024] CLJU 14

LOW KIM HONG v. TETUAN CHIENG & LUM ASSOCIATES

Lack of authority or no authority to act warrants the act of solicitors as a nullity. The burden of proof is on the solicitors to prove that there was a written appointment to represent a party in any matters or proceedings. In the absence of express authority, the court could compel the solicitors to withdraw conducts carried out by the solicitors and grant a permanent injunction to refrain the solicitors from holding out that they were solicitors for a party in any matters or proceedings.

LEGAL PROFESSION: Retainer - Authority - Representation - Application for declaration that defendant was not appointed to represent plaintiff - Absence of written appointment - Whether defendant had authority to act for plaintiff - Whether defendant had discharged its burden to prove that it was duly appointed by plaintiff - Whether plaintiff has choice to appoint solicitors - Whether act done by defendant in absence of authority was a nullity - Whether court could grant injunction to refrain defendant from holding out that they were plaintiff's solicitors in any matters or proceedings

  • For the plaintiff - M/s Goik, Ramesh & Loo
  • For the defendant - M/s Law Chambers of Dahlia Lee & Co

[2024] CLJU 17

HENDRA MULANA v. PP & OTHER APPEALS

1. Section 20 of the Sexual Offences Against Children Act 2017 ('2017 Act') operates as a presumption of law, meaning that an accused cannot claim that he did not know the true age of the child unless he took all reasonable steps to ascertain the age of the child. The accused must adduce evidence on a balance of probabilities to dispel any notion that he knew the victim's true age.

2. In an application to tender fresh evidence at the appeal stage, it is not the task of the court at the hearing of the application to decide whether the proposed evidence is to be believed or not. The function of the court is to determine whether the proposed evidence, if given, is capable of belief. However, the first condition is that the evidence must not be available at the trial. The mere failure of the previous counsel to submit the documents during the trial does not mean the documents are not available at all and could then be tendered as fresh evidence during appeal.

CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Offence under s. 8(b) of Sexual Offences Against Children Act 2017 ('2017 Act') - Child pornography - Accused alleged victim was his lover and did not know victim's true age - Whether evidence of child witnesses was credible - Whether accused had taken all reasonable steps to ascertain age of victim - Whether defence raised any reasonable doubt on prosecution's case - Whether s. 20 of 2017 Act operated as a presumption of law - Whether accused had adduced any evidence to rebut presumption that he knew victim's true age

CRIMINAL PROCEDURE: Sentence - Appeal - Accused was convicted on four charges of requesting for child pornography under s. 8(b) of Sexual Offences Against Children Act 2017 - Accused was sentenced to 13 years imprisonment from date of conviction and three strokes of rotan in respect of each charge - Sentence was ordered to run concurrently - First offender - Whether maximum term of imprisonment was imposed - Whether principle of one transaction rule applicable - Whether imprisonment term to be reduced taking into account that accused was a first offender

EVIDENCE: Fresh or further evidence - On appeal - Alleged new evidence purportedly not available during trial - Previous counsel failed to submit documentary evidence to support defence of accused - Whether evidence was available at trial - Whether document could be tendered as fresh evidence

  • For the applicant - Jefri Jaafar; M/s Abdullah, Maznah & Jefri
  • For the respondent - DPP Sail Chay Mei Ling; Pejabat Timbalan Pendakwa Raya Negeri Perak, Cawangan Taiping

[2024] CLJU 22

GOLD MART SDN BHD v. SHAKILONE THARMASEELAN

1. A purchaser must exercise caution to ensure that the contract provides that time is of the essence with regard to the delivery of vacant possession. It is the purchaser's duty to know what he has agreed upon when the sale and purchase agreement ('SPA') is signed. By signing the SPA, the purchaser is assumed to have read and advised himself of the effect of individual clauses singularly and the SPA as a whole binding document. Thus, where the clauses in the SPA are silent with regard to the date of delivery of vacant possession, the purchaser cannot later allege that time was intended to be of essence in relation to the delivery of vacant possession.

2. Even if time was not of the essence with regard to the delivery of vacant possession, the purchaser would have the right to terminate the SPA if facts show that the developer's breach in failing to complete the SPA amounted to repudiation through any act evincing an intention to no longer be bound by the SPA or that the developer intends to fulfil the SPA only in a manner substantially inconsistent with their obligations under the SPA. The developer's repudiatory breach does not obligate the purchaser to make time an essence of the SPA and give reasonable time to the developer to deliver vacant possession. In such a situation, the payment of liquidated ascertained damages will not be the only remedy available to the purchaser.

CONTRACT: Sale and purchase of property - Breach - Repudiatory breach - Failure to deliver vacant possession - Purchaser terminated sale and purchase agreement ('SPA') and sought a return of monies paid - Abandonment of obligation - Whether delivery of vacant possession within stipulated period was an essence of SPA - Whether essence of time limited to payment terms - Whether liquidated ascertained damages solely the remedy available to purchaser - Whether time was at large at benefit of developer - Whether there was continuous failure by developer to fulfil obligations to deliver vacant possession - Whether developer's breach amounted to repudiation of SPA - Whether purchaser had right to terminate agreement due to failure to deliver vacant possession - Whether purchaser was obligated to give notice to make time an essence - Contracts Act 1950, ss. 40 & 56(2)

  • For the plaintiff - Choon Jun Hong; M/s Chee Siah Le Kee & Partners
  • For the first defendant - M Rishee; M/s Munawar & Associates

[2024] CLJU 15

CHU BOON TIONG lwn. TETUAN BAHARI & BAHARI

Tuntutan untuk fi guaman bagi perkhidmatan profesional yang telah diberikan mengikut pesanan anak guam berdasarkan kepada keterangan dokumentari konkrit yang tidak dicabar atau dipertikaikan adalah wajar dibenarkan melalui penghakiman terus.

PROFESION UNDANG-UNDANG: Bil kos - Fi guaman - Tuntutan baki bayaran guaman - Sama ada jumlah tuntutan fi guaman telah dipersetujui - Sama ada invois-invois yang dikeluarkan peguam telah dibantah dan dipertikaikan oleh anak guam - Sama ada yuran guaman serupa dengan yuran bagi perkhidmatan perubatan - Sama ada peguam merupakan perantara antara mahkamah dan anak guam

PROSEDUR SIVIL: Penghakiman terus - Isu-isu untuk dibicarakan - Tuntutan baki bayaran guaman - Tuntutan jumlah yang dipersetujui - Invois-invois tidak dipertikaikan - Sama ada tuntutan plaintif adalah jelas dan terang yang tidak memerlukan perbicaraan - Sama ada wujud keterangan prima facie yang membolehkan penghakiman terus dimasukkan

  • Bagi pihak perayu (Defendan) - Daniel Tan Shen Yang; T/n Chai & Company
  • Bagi pihak responden (Plaintif) - Muhammad Danish Abdullah Manoharan; T/n Manoharan Chambers

[2024] CLJU 149

PP lwn. YOU YONG

Akta Pemansuhan Hukuman Mati Mandatori 2023 hanya menghapuskan hukuman mati yang bersifat mandatori. Namun hukuman mati masih kekal menjadi antara dua pilihan hukuman yang boleh dijatuhkan di bawah s. 39B(2) atas sabitan di bawah s. 39B(1) Akta Dadah Berbahaya 1952. Pemilihan hukuman adalah di bawah kuasa budibicara Mahkamah yang semestinya dilaksanakan secara kehakiman dengan mengambil kira kesemua faktor-faktor mitigasi dan juga pemberatan.

PROSEDUR JENAYAH: Penghukuman - Hukuman alternatif - Pengakuan bersalah - Kesalahan pengedaran dadah berbahaya - Sama ada tertuduh boleh bergantung kepada mana-mana faktor yang disenaraikan dalam s. 39B(2A) Akta Dadah Berbahaya 1952 ('ADB') sebagai faktor mitigasi - Sama ada hukuman alternatif kepada hukuman mati adalah wajar - Sama ada faktor mitigasi mengatasi faktor pemberatan - Sama ada mahkamah mempunyai pilihan hukuman lain di bawah s. 39B(2) ADB


CLJ 2024 Volume 6 (Part 3)

There is a difference between the contract test and the reasonable test. The appropriate test for determining a constructive dismissal is the contract test. The reasonableness of the employer's conduct is a factor that may be taken into consideration in determining whether there is any fundamental breach of the contract of employment or an intention to no longer be bound by the contract.
Tan Lay Peng v. RHB Bank Bhd & Anor [2024] 6 CLJ 315 [FC]

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CONTRACT: Employment contract - Breach - Constructive dismissal - Applicable test - Employee expatriated to Thailand before repatriated to Malaysia - Employee claimed constructive dismissal - Applicable test in determining constructive dismissal - Whether contract test or reasonable test - Difference between tests

LABOUR LAW: Employment - Dismissal - Constructive dismissal - Applicable test - Employee expatriated to Thailand before repatriated to Malaysia - Employee claimed constructive dismissal - Applicable test in determining constructive dismissal - Whether contract test or reasonable test - Difference between tests - Industrial Relations Act 1967, s. 20

 

HARMINDAR SINGH DHALIWAL FCJ
RHODZARIAH BUJANG FCJ
NORDIN HASSAN FCJ

  • For the appellant - Jec Siose, KS Devanathan & Chen Hui Ken; M/s Jec Siose & Co
  • For the respondents - N Sivabalah & Jamie Goh Moon Hoong; M/s Shearn Delamore & Co

The Strata Titles Act 1985 ('STA') and the Strata Management Act 2013 ('SMA') assign the responsibility and management of a common property to the management corporation. In order to fulfill these duties, the management corporation requires funding and this is established through a maintenance account authorised by both the STA and SMA. Based on the relevant scheme of legislation, 'common property' is primarily determined by its location.
AUM Capital Sdn Bhd v. Menara UOA Bangsar Management Corporation [2024] 6 CLJ 335 [CA]

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LAND LAW: Management corporation - Common property - Electricity and maintenance of centralised air-conditioning facilities - Maintenance corporation bore electricity and maintenance costs of centralised air-conditioning facilities - Preliminary determination of questions of law - Whether duty and management of 'common property' fell upon management corporation - What constitutes 'common property' within relevant scheme of legislation - Whether centralised air-conditioning facilities common property - Strata Management Act 2013 - Strata Titles Act 1985 - Common Property (Maintenance and Management Act) 2007

STATUTORY INTERPRETATION: Definition - 'common property' - Whether centralised air-conditioning facilities common property - Strata Management Act 2013 - Strata Titles Act 1985 - Common Property (Maintenance and Management Act) 2007

 

RAVINTHRAN N PARAMAGURU JCA
AHMAD ZAIDI IBRAHIM JCA
COLLIN LAWRENCE SEQUERAH JCA

  • For the appellant - Lai Chee Hoe, Ooi Xin Yi & Goh Peng Hong; M/s Lai, Goh & Assocs
  • For the respondent - Ganesan Nethi & Daniel Tan Wee Xian; M/s Tommy Thomas

Persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence. Except in very special circumstances, all persons interested should be made parties whether by representation orders or otherwise, before a declaration by its terms affecting their rights is made. An injunction may be refused if a relevant and necessary party is not before the court.
Awesome Broadcasting Sdn Bhd v. MYTV Broadcasting Sdn Bhd [2024] 6 CLJ 350 [CA]

CIVIL PROCEDURE: Injunction - Injunctive reliefs - Application for - Applicant sought injunctive reliefs against service provider - Suspension of services - Agreements entered into between applicant and service provider registered by statutory regulator - Applicant sought declaration that service provider breached contractual agreements and order of reinstatement of services and compensation for losses incurred due to unfair pricing and service suspension - Whether applicant failed to exhaust statutory remedy - Whether applicant wrong to immediately file writ and apply for injunction - Communications and Multimedia Act 1998, ss. 120, 121 & 150

CIVIL PROCEDURE: Injunction - Application for - Parties - Applicant sought injunctive reliefs against service provider - Suspension of services - Agreements entered into between applicant and service provider registered by statutory regulator - Whether statutory regulator affected party - Whether relevant and necessary to suit - Whether ought to be named as party to suit - Whether there was serious question to be tried as relevant and necessary party not before court - Whether statutory regulator should be given opportunity of being heard - Whether would be prejudiced if injunctive reliefs granted

 

 

S NANTHA BALANG JCA
MOHD NAZLAN GHAZALIG JCA
CHOO KAH SING JCA

  • For the appellant - Muhammad Shafee Abdullah & Genevieve Vanniasingam; M/s Shafee & Co
  • For the respondent - Gopal Sreenevasan & Kelvin Seet Wan Nam; M/s Cheang & Ariff Loke Mansion

While the courts shall not lend its hand to assist any persons to obtain any remedy whatsoever arising from an illegal contract, there exists exceptional circumstances to the rule. Hence, in circumstances where one party would be unjustly deprived of the fruits of their litigation and is attempting to recover monies that are by no means illegal, it would be gravely against public policy to allow the other party to undermine the integrity of the courts and to abuse the process of the court.
Chan Kok Sung & Anor v. Accupro Sdn Bhd & Anor [2024] 6 CLJ 394 [CA]

CIVIL PROCEDURE: Court - Powers and jurisdiction - Settlement agreement by parties to set aside winding-up order - One party attempted to extricate from settlement agreement - Whether court has power to relitigate winding-up order already set aside pursuant to settlement agreement - Whether settlement agreement was fraudulent and nullity - Whether winding-up order irregularly obtained - Whether court functus officio when winding-up order set aside on parties' mutual agreement - Whether settlement agreement transgressed rule of undue preference - Companies Act 2016, s. 528

 

 

RAVINTHRAN PARAMAGURU JCA
MARIANA YAHYA JCA
AZIMAH OMAR JCA

  • For the appellants - Jarrett Ong Kah Lok, Jolyn Ch'ng Fern & Lee Chia Yee; M/s Han Ch'ng & Partners
  • For the respondents - Rishwant Singh & Wong Hur Shiaw (Wallace); M/s Wong & Lu-Yen Partnership

In an application for judicial review, time, under O. 53 r. 3 of the Rules of Court 2012, starts to run from the date of the decision sought to be impugned. However, where the decision-maker has expressly, overtly or impliedly or by conduct, agreed to and do, reconsider or review its earlier decision, for purposes of judicial review, time only starts to run from the later decision, albeit, that it reiterated or reconfirmed and maintained the earlier decision.
Ketua Pengarah Hasil Dalam Negeri v. Yayasan Buah Pinggang Kebangsaan Malaysia [2024] 6 CLJ 413 [CA]

ADMINISTRATIVE LAW: Judicial review - Application for leave - Challenge against decision by Inland Revenue Board ('IRB') to revoke tax exemption - Whether final decision - Whether IRB's decision reiteration of earlier decision - Calculation of time period for judicial review application - Whether time starts to run from later decision - Whether application filed within time required under O. 53 r. 3 of Rules of Court 2012 - Income Tax Act 1967, ss. 44(6) & 145

 

 

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

  • For the appellant - Ahmad Isyak Mohd Hassan & Mohamad Ashyraf Zakaria; LHDN
  • For the respondent - S Saravana Kumar & Nur Hanina Mohd Azham; M/s Rosli Dahlan Saravana Partnership

The court may vary and rescind orders for maintenance and custody for children based on, inter alia, material changes in circumstances. Section 88(2) of the Law Reform (Marriage and Divorce) Act 1976 makes it mandatory, however, for the court to consider the children's welfare as the first and paramount consideration. Long-drawn, unnecessary squabbles on access are not in the children's best interest.
Loh Siew Hong v. Nagahswaran Muniandy & Anor [2024] 6 CLJ 441 [HC]

FAMILY LAW: Children - Access - Application to vary order - Non-muslim mother granted sole custody, care and control of children - Children unilaterally converted to Islam by father without mother's consent - Application by Islamic body to vary order to be allowed supervised access to children to assist financially and to guide and educate children on Islamic tenets - Whether application to vary order in children's best interest - Whether mother of children required financial assistance from Islamic body - Whether children wanted to remain as Muslims - Whether application to vary order justified - Whether application abuse of process - Whether there were merits in application - Law Reform (Marriage and Divorce) Act 1976, s. 88 - Perlis Islamic Administration Enactment 2006

 

 

HAYATUL AKMAL ABDUL AZIZ J

  • For the petitioner - Gunamalar Joorindanjin & Thian Yee Chuan & Alan Chen Yu Quan; M/s Gunamalar Law Chambers
  • For the 1st respondent - Malcolm Fernandez & Vhimall Murugesan; M/s C Sukumaran & Co
  • For the 2nd respondent - Haniff Khatri Abdullah & Aidil Khalid, Danial Farrhan Zainul Rijal, Zainul Rijal Abu Bakar, Ali Huzaifah Sharif Ahmad, Nik Nur Afiqah Nik Arrez (PDK) & Muhammad Adam Zulkarnain (PDK); M/s Chambers of Zainul Rijal

 


CLJ 2024 Volume 6 (Part 4)

(i) Only where there is a valid agreement in existence does the enforceability of an agreement come into play and it is at this stage that vitiating factors, ie, fraud, forgery and conspiracy to defraud, would be considered by the court; (ii) Section 92 of the Evidence Act 1950 only excludes oral evidence as to contradict the terms of the agreement. When there is a plea denying the agreement, oral evidence is admissible in support of that plea. Section 92 is not attracted when the existence and validity of the agreement is in question.
Abd Ghani Golamdin v. Universiti Utara Malaysia & Ors [2024] 6 CLJ 475 [FC]

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CONTRACT: Agreement - Authenticity, validity and enforceability - Employee claimed for breach of oral agreement reduced into written agreement - Agreement on salary, increment, allowances, incentives, sales commercialise and compensation - Whether there was valid agreement - Whether alleged agreement authorised or approved - Whether contents of agreement proven - Whether agreement authentic and valid in absence of vitiating factors such as fraud, forgery and conspiracy to defraud - Whether Turquand rule applied

EVIDENCE: Documentary evidence - Agreement - Validity - Employee claimed for breach of oral agreement reduced into written agreement - Agreement on salary, increment, allowances, incentives, sales commercialise and compensation - Agreement adduced and admitted as evidence - Whether validity of agreement challenged - Evidence Act 1950, ss. 91 & 92

 

TENGKU MAIMUN TUAN MAT CJ
ZABARIAH MOHD YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ

  • For the appellant - Harjinder Kaur & Mohd Farhan Abdul Ghani; M/s Shahrizat Rashid & Lee
  • For the respondent - Kanesh Sundrum & Nurul Jannah Zakariah; M/s Kanesh Sundrum & Co

(i) In awarding costs, the powers of the High Court as provided under s. 25(2) read with item 15 in the Schedule to the Courts of Judicature Act 1964 ('CJA') is in relation to only the proceedings at the High Court. The powers of the High Court do not extend to other courts unlike the Federal Court and the Court of Appeal which are empowered to deal with costs to courts other than their respective courts, as provided under ss. 70 and 99 of the CJA ; (ii) There is a fairly elaborate costs regime in our system of civil justice, the purpose of which is to regulate the award of costs, ensuring that there is, to a large extent, consistency and uniformity in the award of costs. While the courts are conferred with discretion to award costs, there is an extensive regime in the Rules of Court 2012 to complement the exercise of discretion. And the award of costs must be differentiated from damages; costs could not be recovered as damages.
Golden Star & Ors v. Ling Peek Hoe & Anor And Another Appeal [2024] 6 CLJ 487 [FC]

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CIVIL PROCEDURE: Costs - Principles - Whether legal charges, legal fees, legal costs or litigation costs in same proceedings between same parties recoverable as special damages - Whether costs different from damages - Whether damages subject to proof and costs is discretionary - Whether parties claim for costs faced serious jurisdictional constraints - Whether claims for costs to be incurred in future at appellate courts non-existent and entirely speculative - Whether costs incurred in prosecuting claim could in itself be cause of action - Whether claims fell within terms already allowed as costs - Courts of Judicature Act 1964, ss. 25(2), 70 & 99 - Rules of Court 2012, O. 59 r. 1

CIVIL PROCEDURE: Damages - Claim for - Whether legal charges, legal fees, legal costs or litigation costs in same proceedings between same parties recoverable as special damages - Whether costs different from damages - Whether damages subject to proof and costs is discretionary - Whether claims fell within terms already allowed as costs - Courts of Judicature Act 1964, ss. 25(2), 70 & 99 - Rules of Court 2012, O. 59 r. 1

STATUTORY INTERPRETATION: Construction - Powers given by Act - Award of costs - Whether matter of discretion - Whether power specifically provided in ss. 25(2), 70 and 99 of Courts of Judicature Act 1964 - Whether power of High Court to award costs is necessarily of and in relation to proceedings at High Court alone - Whether only Federal Court and Court of Appeal's powers extend to dealing with costs other than those incurred in those respective courts - Rules of Court 2012, O. 59 r. 1

 

MARY LIM FCJ
HARMINDAR SINGH DHALIWAL FCJ
ABU BAKAR JAIS FCJ

  • For the appellants - Ranjit Singh, Saw Wei Siang & Yeoh Cho Kheong; M/s Nethi & Saw
  • For the respondents - Hong Chong Hang & Edmund Lim Yun; M/s Hong Chew King

(i) It is a principle in statutory interpretation that if there exists a deliberate change in wordings between two related provisions under the same statutes, then there must be a corresponding or consequential change of meaning; (ii) When there is no ambiguity as to a particular provision, the court ought not to modify or qualify the provision beyond what is expressly prescribed within the provision; (iii) Specific to statutes as to tax exemptions, the tax exemption must strictly be construed in favour of taxation.
Ketua Pengarah Kastam & Anor v. Wintercorn Malaysia Sdn Bhd [2024] 6 CLJ 510 [CA]

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REVENUE LAW: Sales tax - Exemption - Company engaged in trading edible oil products - Company applied for exemption on purchase of packaging materials - Company granted certificates of exemption specific and limited to sale and purchase of edible oil products - Company not eligible for exemption concerning packaging material for purposes of trader's repackaging - Bill of demand issued to company - Whether company entitled to legitimate expectation that purchase of packaging materials, for trader's repackaging, was exempted - Whether company's exercise of trader's repackaging fell either within broad exemption under subject exemption or specific exemption and manufacturer's exemption - Whether customs' interpretation of subject exemption merely holistic and proper interpretation of all relevant laws or undue imposition of internal policies beyond ambit of subject exemption - Sales Tax Act 2018 - Sales Tax (Persons Exempted From Payment Of Tax) Order 2018

ADMINISTRATIVE LAW: Judicial review - Appeal - Appeal against decision of High Court - Applicant commenced judicial review against decision of customs authorities - Bill of demand issued to company - Whether company entitled to legitimate expectation that purchase of packaging materials, for trader's repackaging, was exempted - Whether company's exercise of trader's repackaging fell either within broad exemption under subject exemption or specific exemption and manufacturer's exemption - Whether customs' interpretation of subject exemption merely holistic and proper interpretation of all relevant laws or undue imposition of internal policies beyond ambit of subject exemption

 

S NANTHA BALAN JCA
AZIMAH OMAR JCA
CHOO KAH SING JCA

  • For the appellant - Rahazlan Affandi Abdul Rahim; SFC & Noor Atiqah Zainal Abidin; FC
  • For the respondent - S Saravana Kumar & Rishima Sudhakaran (Pupil in Chambers); M/s Rosli Dahlan Saravana Partnership

The failure of the Court Recording and Transcribing system to record the entire trial proceeding does not render the trial a nullity that requires a retrial when there are sufficient manual notes of proceedings that are in conformity with the requirements of the Criminal Procedure Code.
Tay Kiang Heong v. PP & Another Appeal [2024] 6 CLJ 532 [CA]

CRIMINAL PROCEDURE: Charge - Date - Accused charged for outraging modesty of complainant - Allegation that accused wrongly convicted on charge which stated different date of offence whilst evidence led by prosecution showed that offence was committed on different date - Whether accused prejudiced - Penal Code, s. 354

CRIMINAL PROCEDURE: Trial - Recording - Court Recording and Transcribing system ('CRT') - Accused charged for outraging modesty of complainant - Accused requested to be provided with CRT recording of proceedings - Incomplete CRT recording due to technical problems - Whether there was miscarriage of justice - Whether rendered entire trial proceeding nullity warranting retrial - Penal Code, s. 354 - Criminal Procedure Code, ss. 266 & 267

CRIMINAL PROCEDURE: Appeal - Appeal by prosecution - Appeal against sentence - Accused convicted for offence of outraging modesty of complainant - Sessions Court sentenced accused to three years' imprisonment - High Court reduced sentence to three months' imprisonment together with fine of RM8,000, in default eight months' imprisonment - Whether sentence imposed by High Court manifestly low - Factors considered in imposing appropriate sentence - Penal Code, s. 354

 

 

AB KARIM AB JALIL JCA
VAZEER ALAM MYDIN MEERA JCA
CHE MOHD RUZIMA GHAZALI JCA

  • For the appellant - Lua Kok Hiong, Cheah Poh Loon & Ummi Salhah Mohamad; M/s Lua & Mansor
  • For the respondent - Dhiya Syazwani Izyan Mohd Akhir; DPP AG's Chambers

Even if a party has no contractual relationship with their neighbour, who could also be a complete stranger, they remain obligated to owe that neighbour a duty of care if their acts or omissions are transparently reasonable for the foreseeability of harm to that neighbour. As a result, a special proximity relationship between the parties occurred creating an obligation of care towards the harmed neighbour if evidence existed that this party's act caused the damage. A landowner is legally entitled to rely on the natural support provided by their neighbour's adjoining land to maintain the quiet and peaceful enjoyment of the land.
Industrial Property Management Sdn Bhd v. Forebase Property Sdn Bhd & Ors [2024] 6 CLJ 548 [HC]

TORT: Negligence - Duty of care - Plaintiff's property damaged by works done on adjacent neighbouring land by defendants - Whether there was special proximity relationship between parties - Whether there was obligation of care towards harmed neighbour if evidence existed that a party's act caused damage - Whether defendants' acts amounted to withdrawal of natural right to support on part of plaintiff's property causing serious defects - Whether developer ought to be vicariously liable for wrongful acts committed by contractor - Whether defendants established defence of ex turpi causa non oritur actio - Whether defendants should be held jointly and severally liable - Whether claim for aggravated and exemplary damages allowed

TORT: Nuisance - Claim for damages - Plaintiff's property damaged by works done on adjacent neighbouring land by defendants - Whether there was special proximity relationship between parties - Whether there was obligation of care towards harmed neighbour if evidence existed that a party's act caused damage - Whether defendants' acts amounted to withdrawal of natural right to support on part of plaintiff's property causing serious defects - Whether defendants fully aware of damage to bungalow but did nothing to prevent further damage - Whether there was failure to exercise control over management of development of land - Whether defendants liable for nuisance caused by physical damage to plaintiff's property - Whether defendants established defence of ex turpi causa non oritur actio - Whether defendants should be held jointly and severally liable - Whether claim for aggravated and exemplary damages allowed

 

 

RAJA AHMAD MOHZANUDDIN SHAH JC

  • For the plaintiff - Chetan Jethwani, Goh Hui Ring & Naveenraj Rajendra; M/s Goh Partnership
  • For the 1st & 3rd defendants - Foo Joon Liang & Carissa How Chen Huey; M/s Gan & Partnership
  • For the 2nd defendant - Teo Jeng Yu & Teng Mun Wei; M/s Prem & Assocs

(i) A quasi-judicial body, cannot challenge and/or review the decision of its own appellate body, and is not an 'adversely affected' person within the meaning of O. 53 r. 2(4) of the Rules of Court 2012 ; (ii) it is the duty of the party applying for certiorari to show utmost good faith in the presentation of the material upon which it wishes the court to rely on, as a failure to do so may result in the order for leave to commence application for judicial review being refused and/or set aside.
Suruhanjaya Persaingan v. Tribunal Rayuan Persaingan & Ors [2024] 6 CLJ 570 [HC]

ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for leave by Malaysia Competition Commission ('MyCC') - Locus standi - Whether MyCC had locus standi to challenge decision of Competition Appeal Tribunal ('CAT') - Whether MyCC quasi-judicial body that can challenge or review decision of its own appellate body - Whether MyCC person 'adversely affected' within meaning of O. 53 r. 2(4) of Rules of Court 2012 - Whether MyCC adhered to its duty of full and frank disclosure in application - Whether application ultra vires and frivolous

 

 

AHMAD KAMAL MD SHAHID J

  • For the applicant - V Sithambaram, Kwan Will Sen, Reuban Kumar Asokan, Muayyad Khairulmaini, Wong Chee Chien & Saradha Laksmi Hariharan; M/s Lim Chee Wee Partnership
  • For the 2nd respondent - Khoo Guan Huat, Shanthi Kandiah, Yo Yi Yun & Azyan Mohamed Ibrahim; M/s SK Chambers
  • For the 3rd respondent - Nahendran Navaratnam, Wong Wye Wah, Lau Mark Chi-Ming & Kathleen Ramanathan; M/s Sreenevasan Young
  • For the 4th respondent - Ng Yee Lin & Dawn Wong Keng Jade; M/s Steven Thiru & Sudhar Partnership
  • For the 5th respondent - K Shanti Mogan, Lilien Wong & Ooi Ji Shan; M/s Shearn Delamore & Co
  • For the 6th, 7th, 8th & 9th respondents - Tunku Farik Tunku Ismail, Yap Mei Foong & Tan Sixin; M/s Azim, Tunku Farik & Wong
  • For the 10th, 13th, 14th, 15th, 16th & 19th respondents - Anand Raj, Jeevitha T Thurai Rathnam, Choo Kelly & Cynthia Lian; M/s Shearn Delamore & Co
  • For the 11th & 12th respondents - Nereen Kaur Veriah, Yon See Ting, Nalina Santhiran & Samuel Ong; M/s Christopher & Lee Ong
  • For the 17th, 18th & 20th respondents - Khoo Guan Huat, Tan Shi Wen, Melissa Long & Manshan Singh; M/s Skrine
  • For the 21st, 22nd, 23rd & 24th respondents: Mark Yu Kee La Brooy & Steven Ramesh; M/s Raja Darryl & Loh

In the State of Malacca, a 'holding' under the Local Government Act 1976 ('Act') refers not only to land but also, inter alia, building. Section 2 does not make a distinction on the status of ownership between the owner of a land and the owner of a building. Although a party may be the owner of a building and not the owner of a land, the Act presumes that the building is owned by the registered owner of the land where the building may reside.
Tenaga Nasional Bhd v. Majlis Bandaraya Melaka Bersejarah [2024] 6 CLJ 596 [HC]

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ADMINISTRATIVE LAW: Judicial review - Application for - Challenge against decisions of Local Government Authorities - Applicant licensee under Electricity Supply Act 1990 - Local Government Authorities dismissed applicant's objections or appeal against notices of new valuation list - Imposition of rates on transmission line towers or pylons erected by applicant - Whether notices complied with requirements of s. 137 of Local Government Act 197 6 - Whether applicant owner of holdings - Whether applicant proper party against whom notices should be issued

LOCAL GOVERNMENT: Local authority - Challenge against decisions of Local Government Authorities - Applicant licensee under Electricity Supply Act 1990 - Local Government Authorities dismissed the applicant's objections or appeal against notices of new valuation list - Imposition of rates on transmission line towers or pylons erected by applicant - Whether notices complied with requirements of s. 137 of Local Government Act 1976 - Whether applicant owner of holdings - Whether applicant proper party against whom notices should be issued - Local Government Act 1976, ss. 2, 137 & 141

 

MOHD RADZI ABDUL HAMID J

  • For the applicant - Goh Peng Hong & Soh Ling Ling; M/s Lai, Goh & Assocs
                               Natalia Iza Nasaruddin, Tengku Nazmi Tengku Anuar & Wong Yan Zhang; M/s Azmi & Assocs
  • For the respondents - Adillah Ahmad Nordin, Nurul Nasyirah Mohd Heliemy & Fithriyaani Hafzhan Mohd Shaari; M/s Adillah A Nordin

In interpreting an agreement or contract, the court will ascertain the meaning intended by the parties based on all the facts and circumstances of the case and the words used in the agreement. The court will always rely on the rules that the words should be given their natural and ordinary meaning. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. The contract should be construed as a whole and in harmony with every clause in the contract, in order to ascertain the true intention of the parties.
Terry Chan Kong Ngee v. Sabah Air Aviation Sdn Bhd [2024] 6 CLJ 611 [HC]

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CONTRACT: Contract of employment - Breach - Clause in agreement provides contract 'extendable for another two years on mutual agreement' - Whether failure by any party to agree to extension would render extension of contract impossible to implement - Whether company to write to employee at end of term for purpose of agreed extension - Whether company's unilateral decision not to extend employment contract contravened clause in agreement - Whether constituted breach of contract of employment

JURISDICTION: Proper forum - Civil court - Cause of action - Breach of contract of employment - Whether claim relating to employment - Whether claim under constructive dismissal or breach of contract - Whether Industrial Court proper forum - Whether to be distinguished from case of 7-Eleven Malaysia Sdn Bhd v. Ashvine Hari Krishnan - Whether claim for breach of contract properly commenced in civil court WORDS & PHRASES: 'extendable for another two years on mutual agreement' - Meaning of - Whether requires agreement of both parties - Whether failure by any party to agree to extension would render extension of contract impossible to implement - Whether subject to process and procedure agreed by parties

 

FARIDZ GOHIM ABDULLAH JC

  • For the plaintiff - Joan Goh Penn Nee; M/s Goh & Assocs
  • For the defendant - Sukumaran Vanugopal; M/s S Vanugopal & Partners

 


ARTICLES

LNS Article(s)

  1. CLINICAL APPROACH IN LEGAL EDUCATION: AN ANALYSIS [Read excerpt]
    by Rajali bin Haji Aji[i] Yusuf Sani Abubakar[ii] Sulaiman Dorloh[iii] [2024] CLJU(A) lv

  2. [2024] CLJU(A) lv
    INTERNATIONAL

    CLINICAL APPROACH IN LEGAL EDUCATION: AN ANALYSIS

    by
    Rajali bin Haji Aji[i]
    Yusuf Sani Abubakar[ii]
    Sulaiman Dorloh[iii]

    ABSTRACT

    The clinical approach in teaching law subjects is one of the most important and useful pedagogical methods and, thus, a crucial area of research in order to deliver knowledge pertaining to legal studies effectively. Based on some research, the clinical approach in legal education is also referred to as the CLE (clinical legal education). The CLE serves to enhance a student's critical thinking skills, the application of substantive legal principles to real-life scenarios, information gathering and research in formulating a hypothesis and legal solutions. It is said that the CLE enables law students to understand and assimilate responsibilities as members of public service in the administration of justice, upholding the rule of law and equitable distribution of justice in society. This research examines the definition of CLE, its aim, significance and challenges. This research has submitted that the CLE plays a major role in developing the full potential of law students in utilising the legal knowledge they have learned in theoretical classes.

    . . .

    [i] Sultan Haji Hassanal Bolkiah Faculty of Law, Sultan Sharif Ali Islamic University Brunei Darussalam.

    [ii] Corresponding Author; Sultan Haji Hassanal Bolkiah Faculty of Law, Sultan Sharif Ali Islamic University Brunei Darussalam. Email: sani.yusuf@unissa.edu.bn.

    [iii] Sultan Haji Hassanal Bolkiah Faculty of Law, Sultan Sharif Ali Islamic University Brunei Darussalam. Email: sulaiman.dorloh@unissa.edu.bn.

  3. DISCIPLINARY PROCEEDINGS OF ADVOCATES AND SOLICITORS IN ACCORDANCE WITH THE LEGAL PROFESSION ACT 1976 - A MALAYSIAN OVERVIEW [Read excerpt]
    by M Visvanathan* [2024] CLJU(A) lvi

  4. [2024] CLJU(A) lvi
    MALAYSIA

    DISCIPLINARY PROCEEDINGS OF ADVOCATES AND SOLICITORS IN ACCORDANCE WITH THE LEGAL PROFESSION ACT 1976 -
    A MALAYSIAN OVERVIEW


    by
    M Visvanathan*

    INTRODUCTION

    In Malaysia, disciplinary proceedings against advocates and solicitors[1] are regulated by the Legal Profession Act 1976[2] (hereinafter referred to as 'LPA') enacted by Parliament to consolidate the law relating to the legal profession in Malaysia. For the purposes of this article, the author shall review and evaluate authorities and sources relevant to the Malaysian jurisdiction so as to provide an overview of disciplinary proceedings against advocates and solicitors in Malaysia pursuant to the LPA.

    It is paramount that a lawyer must comply with legal ethics and possess the highest degree of integrity throughout their practice of the legal profession. This sentiment was echoed in a paper delivered at the 6th Malaysian Law Conference held on 17 to 19 August 1981 by Justice Datuk Harun M Hashim,[3] in which His Lordship eloquently stated that 'a lawyer should be a person of unquestioned integrity, good character and true to the dignity and high standard of his profession'.

    In keeping with the high professional standards expected of lawyers, any failure to adhere to these standards may often result in disciplinary proceedings. If a complaint is lodged against an advocate and solicitor, the disciplinary mechanism under Chapter VII of the LPA provides the framework for the process of such disciplinary proceedings.

    . . .

    *Advocate and Solicitor, High Court of Malaya.

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealed Superseded
ACT 854 Cyber Security Act 2024 Not Yet In Force - -
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 - -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1714 Human Rights Commission of Malaysia (Amendment) Act 2024 10 July 2024 [PU(B) 247/2024] ACT 597
ACT A1713 Universities and University Colleges (Amendment) Act 2024 Not Yet In Force ACT 30
ACT A1712 Environmental Quality (Amendment) Act 2024 7 July 2024 [PU(B) 243/2024] ACT 127
ACT A1711 Money Services Business (Amendment) Act 2024 Not Yet In Force ACT 731
ACT A1710 Highway Authority Malaysia (Incorporation) (Amendment) Act 2024 1 July 2024 [PU(B) 216/2024] ACT 231

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 185/2024 Price Control and Anti-Profiteering (Determination of Fixed Charge For Class of Service of Licensed Tour Operator) Order 2024 9 July 2024 10 July 2024 ACT 723
PU(A) 184/2024 Income Tax (Exemption For Malaysian Ship) Order 2024 5 July 2024 Year of assessment 2024 to the year of assessment 2026 ACT 53
PU(A) 183/2024 Federal Roads (West Malaysia) (Amendment) (No. 6) Order 2024 4 July 2024 5 July 2024 PU(A) 401/1989
PU(A) 182/2024 Ministers of The Federal Government (Amendment) (No. 5) Order 2024 2 July 2024 25 March 2024 - subsubparagraph 2(a)(i); 3 April 2024 - subsubparagraph 2(a)(ii) and subparagraph 2(c); 14 April 2023 - subsubparagraph 2(b)(i); 5 December 2023 - subsubparagraph 2(b)(ii) PU(A) 27/2023
PU(A) 181/2024 Employees' Social Security (Amount of Funeral Benefit) (Amendment) (No. 2) Regulations 2024 28 June 2024 1 July 2024 PU(A) 141/2017

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 250/2024 Reservation of Land For Public Purpose 11 July 2024 12 July 2024 ACT 828
PU(B) 249/2024 Appointment and Revocation of Appointment of Deputy Commissioner of Buildings For The Federal Territory of Labuan 10 July 2024 Appointment - 8 February 2024; Revocation - 8 February 2024 ACT 757
PU(B) 248/2024 Appointment of Deputy Commissioner of Buildings For The Federal Territory of Kuala Lumpur 10 July 2024 Specified in column (3) of the Schedule ACT 757
PU(B) 247/2024 Appointment of Date of Coming Into Operation 9 July 2024 10 July 2024 ACT A1714
PU(B) 246/2024 Appointment of Date of Coming Into Operation 5 July 2024 6 July 2024 ACT 775

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
AKTA 597 Akta Suruhanjaya Hak Asasi Manusia Malaysia 1999 ACT A1714 10 Julai 2024 [PU(B) 247/2024] Seksyen 4, 5, 6A, 8, 10, 10A, 10B, 11A, 13, 14 dan 22
ACT 597 Human Rights Commission of Malaysia Act 1999 ACT A1714 10 July 2024 [PU(B) 247/2024] Sections 4, 5, 6A, 8, 10, 10A, 10B, 11A, 13, 14 and 22
PU(A) 27/2023 Ministers of the Federal Government Order 2023 PU(A) 182/2024 25 March 2024 - subsubparagraph 2(a)(i); 3 April 2024 - subsubparagraph 2(a)(ii) and subparagraph 2(c); 14 April 2023 - subsubparagraph 2(b)(i); 5 December 2023 - subsubparagraph 2(b)(ii) Schedule
PU(A) 141/2017 Employees' Social Security (Amount of Funeral Benefit) Regulations 2017 PU(A) 181/2024 1 July 2024 Regulation 2
ACT 127 Environmental Quality Act 1974 ACT A1712 7 July 2024 [PU(B) 243/2024] Sections 2, 3, 16, 18, 19, 22, 23, 24, 25, 27, 29, 29A, 29AA, 30A, 31, 31A, 32, 33, 34A, 34AA, 34B, 37, 41, 45, 48, 48A, 48AD and 51

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 233/2023 Perintah Pengangkutan Jalan (Larangan Penggunaan Jalan) (Jalan Persekutuan) (No. 18) 2023 PU(A) 166/2024 28 Jun 2024
PU(A) 233/2023 Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 18) Order 2023 PU(A) 166/2024 28 June 2024
PU(A) 336/2021 Peraturan-Peraturan Petroleum (Cukai Pendapatan) (Elaun Pelaburan Bagi Petronas) 2021 PU(A) 163/2024 Tahun taksiran 2023
PU(A) 336/2021 Petroleum (Income Tax) (Investment Allowance For Petronas) Regulations 2021 PU(A) 163/2024 Year of assessment 2023
PU(A) 326/2023 Perintah Kawalan Harga Dan Antipencatutan (Penandaan Harga Barangan Harga Terkawal) (No. 5) 2023 PU(A) 161/2024 17 Jun 2024

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