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Issue #8/2024
22 February 2024

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CASE(S) OF THE WEEK

SRI DATAI MINING SDN BHD v. GELINGGAS JAMES WATT & ORS [2024] 2 CLJ 892
HIGH COURT SABAH & SARAWAK, SIBU
WONG SIONG TUNG J
[CIVIL APPEAL NO: SBW-11B-2-5-2023]
13 DECEMBER 2023

(i) If a claimant does not fall within the definition of an 'employee' under the Labour Ordinance (Sarawak) (Cap. 76) ('SLO'), any right to security of tenure guaranteed by the SLO and provisions thereunder would not apply to such claimant. To determine whether a claimant is an 'employee' under the SLO, the paramount considerations are the claimant's remuneration level and whether the claimant is involved in 'manual labour', as defined in s. 2(a) of the Schedule to the SLO; (ii) Allowances do not negate an employee's entitlement to and from receiving overtime pay; (iii) Under s. 14(1) of the SLO , employees are conferred a statutory right to undergo a due inquiry, to be conducted by an employer before any dismissal.

LABOUR LAW: Appeal - Appeal against decision of Senior Assistant Director of Labour - Claimants' employment contract not renewed and terminated - Claim for various sums including overtime payment and termination and layoff benefits - Whether claimants fell within definition of 'employee' under Labour Ordinance (Sarawak) (Cap. 76) ('SLO') - Whether claimants engaged in 'manual labour' - Whether SLO applicable - Whether claimant eligible for overtime pay - Whether working hours exceeded statutory limit specified by SLO for overtime pay - Whether claimants entitled to termination and layoff benefits - Whether employment termination justified due to misconduct on claimants' part

LABOUR LAW: Wages - Payment of overtime - Claimants' employment contract not renewed and terminated - Claim for various sums including overtime payment and termination and layoff benefits - Computation of working hours - Whether exceeded statutory limit - Whether claimants working overtime - Whether payment of overtime owed to claimants constituted wages that must be paid in legal tender - Whether allowances received by claimants negated their entitlement to and from receiving overtime pay - Labour Ordinance (Sarawak) (Cap. 76), ss. 105A & 108

STATUTORY INTERPRETATION: Definition - 'employee' - Employees' employment contract not renewed and terminated - Claim for various sums including overtime payment and termination and layoff benefits - Whether claimants fell within definition of 'employee' - Whether claimants engaged in 'manual labour' - Labour Ordinance (Sarawak) (Cap. 76), ss. 2


JUDICIAL QUOTES

"In my view, if a Court does not wish to compel a litigant to litigate against his will, the Court can still impose the term "without liberty to file afresh on the same matter set out in the present suit" on a plaintiff who comes within Order 21 rule 2 ROC who can discontinue without leave of Court, if the Court finds that the discontinuance is an abuse of the process of the Court. There will be an abuse of the process of the Court if the true purpose for filing the suit is something other than to obtain a remedy provided by law, and the discontinuance of the suit comes after the plaintiff arising from the filing of the said suit has achieved an advantage to the prejudice of the defendant.”

“I have perused the facts. It shows that the withdrawal of the defamation suit is an abuse of process as the plaintiff arising from the filing of the suit has already obtained a substantial advantage to the prejudice of the defendant....”

“It is therefore right that the Court can and should impose the term "without liberty to file afresh on the same matter set out in the present suit" on the discontinuance by the plaintiff here." - Leong Wai Hong JC in Prof Dato' Dr Rahmat Mohamad v. Shahizad Sulaiman [2024] CLJU 127

APPEAL UPDATES

  1. Santanasamy Muthiah v. PP [2023] CLJU 201; [2023] 1 LNS 201 affirming the High Court case of PP v. Santanasamy Muthiah [2020] CLJU 911; [2020] 1 LNS 911

  2. Jiwaneswary Raman v. Etiqa General Takaful Berhad [2023] CLJU 93; [2023] 1 LNS 93 affirming the High Court case of Jiwaneswary Raman lwn. Etiqa General Takaful Berhad [2022] CLJU 2949; [2022] 1 LNS 2949

LATEST CASES

Legal Network Series

[2023] CLJU 108

RAJESWARY MARIMUTHU & ORS v. MAJLIS AGAMA ISLAM SELANGOR & ORS

1. At the leave stage for a judicial review application, the court is only required to ascertain whether there is a prima facie case and not to go into the merits of the case. As such, arguments and issues raised during the leave stage are not barred by res judicata and estoppel from being raised again at the substantive stage.

2. To decide if a civil court has the jurisdiction to hear the matter regarding disputed conversion, the test is whether the case is an ab initio case. If it is a case of renunciation, then the Syariah Court has jurisdiction to hear the matter. Where a deceased person during his lifetime had made a statutory declaration that he made a proclamation to profess the religion of Islam but alleged that he was under alcohol influence and was forced to make the said proclamation, then it is one case of renunciation which will give the Syariah Court jurisdiction to determine the validity of such conversion.

ADMINISTRATIVE LAW: Judicial review - Jurisdiction - Application to quash decision of Syariah Court - Issue of conversion - Issue raised during leave stage - Whether argument made at leave stage could be subsequently raised again during substantive stage of judicial review - Whether respondents are barred from raising issue of jurisdiction of civil court at substantive stage

CONSTITUTIONAL LAW: Courts - Jurisdiction - Conflict of jurisdiction - Determination of religious status of a deceased person - Judicial review to quash decision of Syariah Court - Disputed conversion - Deceased himself affirmed statutory declaring he was intoxicated and was forced to utter kalimah syahadah - Unregistered conversion - Deceased continued to live and profess Hindu faith - Identity card stated deceased was a Hindu - Whether case falls within jurisdiction of Syariah Courts or civil court - Whether an ab initio case or a renunciation case

  • For the applicant - Kee Hui Yee, Rajo Kuppan & Surendra Ananth Anandaraju; M/s Kanesalingam & Co
  • For the respondents - Arham Rahimy Hariri & Mohamad; Ariffuddin Hanafi; M/s Edlin Ghazaly & Associates
  • For the 2nd & 3rd respondents - ALA Nur Irmawatie Daud; Kamar Penasihat Undang-Undang

[2023] CLJU 127

JT BROADWAY SDN BHD v. KETUA PENGARAH KASTAM & ANOR

1. An extension of time under reg. 3 of the Customs (Appeal Tribunal) Regulations 2007 cannot be rejected outright solely based on the length of the delay and when failure to comply with the time frame was not intentional. Lack of knowledge about the timeline for filing the appeal does not automatically bar the grant of an extension of time. Instead, it may constitute a valid ground for giving an extension of time. Silence and omission by the Customs to notify the right of appeal must be construed against them and not used as a reason to refuse an extension of time.

2. In an application for tax refund under the Goods and Services Tax Regulations 2014, any tax assessment can and should only be done according to law and cannot be subject to any other internal policies which do not have the force of law. It follows that the Customs cannot act ultra vires by using a formula which is not officially disclosed to the public or having the force of law to ascertain the amount of tax credit to be refunded.

REVENUE LAW: Goods and Services Tax - Refund - Appeal - Appeal against decision refusing part of refund for input tax - Application for extension of time to file appeal was rejected by Customs Appeal Tribunal - Delay on repayment of refund - Customs failed to notify right to appeal against its decision and timeline for appeal - Whether Customs' decision was final - Whether it was reasonable for appellant not to file appeal with Tribunal within prescribed timeline - Whether Tribunal had failed to take into account all relevant factors and circumstances of case in exercising its discretion on extension of time - Whether delay was intentional - Whether appellant would be seriously prejudiced if extension not

REVENUE LAW: Goods and Services Tax - Refund - Refund of input tax under reg. 46 of Goods and Services Tax Regulations 2014 - Tax refund was refused due to internal policy - Whether tax assessment could be subjected to any internal policies

  • For the appellant - Irene Yong; M/s Shearn Delamore & Co
  • For the respondent - Pavani Kasi, Senior Federal Counsel; Nur Atirah Aiman Rahim, Federal Counsel

[2023] CLJU 176

HEKTAR JUARA SDN BHD v. TAM JAYA GROUP SDN BHD

A main contractor in a subcontract of a construction project is the most important party to ensure that the subcontract works are completed as promised and agreed by the parties. Once the works are done, the next step is to make the necessary payments to its subcontractors.

CIVIL PROCEDURE: Setting aside - Judgment in default - Counterclaim action - Claim for work done in construction project - Claim by subcontractor against main contractor - Whether defence and counterclaim was properly served - Whether there was defence on merit to counterclaim - Whether there was arguable and triable defence to counterclaim

CONTRACT: Building contract - Subcontract - Claim for work done - Part payment made - Whether there was admission of debt - Whether contemporaneous documents show works were carried out accordingly - Whether main contractor must ensure works were completed as agreed and make payments for work done - Whether reasons raised for non-payment were merely to escape from obligations to pay subcontractor

  • For the appellant/2nd defendant in the counterclaim - Michelle Toh Xinran; M/s Vin Carmen Cheng, Kuala Lumpur
  • For the respondent/plaintiff in the counterclaim - Gavin Jay Anand Jayapal; M/s Gavin Jayapal, Petaling Jaya

[2023] CLJU 320

WAN KHIZAN WAN AHMAD & SATU LAGI lwn. HAIZAN HASMI & YANG LAIN

1. Apabila suatu perlanggaran berlaku dan menyebabkan kenderaan yang terlibat dalam kemalangan berpusing dan melanggar kenderaan yang pada asalnya datang dari arah belakang, pelanggaran tersebut tidak terjumlah kepada perlanggaran dari belakang kerana pemandu di belakang tidak dapat menjangka kereta di hadapan akan terpusing dan bergerak ke arahnya. Justeru, pemandu yang melanggar kenderaan yang menuju ke arahnya secara bertentangan adalah tidak bertanggungan dalam kemalangan.

2. Keterangan yang hendak dikemukakan berkenaan pendapatan atau kewangan tidak semestinya perlu disokong oleh apa-apa keterangan dokumen. Mahkamah berhak dalam kes-kes tertentu membenarkan atau menerima keterangan berkaitan kewangan tanpa sebarang keterangan dokumen sokongan dengan syarat ianya adalah munasabah dan boleh diterima.

TORT: Kecuaian - Kemalangan jalan raya - Penentuan liabiliti - Tuntutan dibawa terhadap kenderaan yang terlibat dalam perlanggaran kedua - Kereta plaintif berpusing dan bergerak menuju ke arah kereta defendan selepas perlanggaran awal dengan kereta pihak ketiga - Sama ada defendan telah mengekori plaintif dalam jarak yang selamat - Sama ada defendan wajar menanggung apa-apa liabiliti - Sama ada liabiliti sewajarnya ditanggung oleh pihak ketiga sepenuhnya - Sama ada kecederaan yang dialami oleh plaintif adalah akibat perlanggaran pertama dengan pihak ketiga atau perlanggaran kedua dengan defendan

GANTI RUGI: Ganti rugi khas - Kehilangan pendapatan - Kehilangan pendapatan masa hadapan - Pembuktian - Sama ada pembuktian berkenaan dengan gaji perlu disokong dengan keterangan dokumen - Sama ada mahkamah boleh menerima keterangan lisan saksi berkaitan gaji plaintif tanpa bukti sokongan - Sama ada andaian bertentangan wajar dibangkitkan di atas kegagalan mengemukakan slip gaji plaintiff

GANTI RUGI: Kecederaan diri - Penjagaan rawatan - Sandaran kepada sebut harga pusat jagaan - Keterangan menunjukkan plaintif dalam jagaan keluarga - Sebut harga tidak ditandakan sebagai ekshibit - Sama ada plaintif layak diberikan ganti rugi penjagaan rawatan

GANTI RUGI: Rayuan - Rayuan terhadap award - Hakim bicara gagal membuat penolakan untuk award ganti rugi am dan khas ke atas kecederaan si mati - Sama ada penolakan merupakan budi bicara mahkamah atau wajib dikenakan

  • Bagi pihak perayu-perayu - Muhammad Hafiz Ab Rahman; T/n Othman Hashim & Co
  • Bagi pihak responden-responden - Nor Asniza Md Husin; T/n Kamarudin & Wee

[2023] CLJU 321

CHUA CHONG YIAO lwn. PP

Perbuatan seseorang yang telah ditangkap bukanlah suatu pernyataan di bawah s. 37B Akta Dadah Berbahaya 1952 dan boleh diterima sebagai keterangan di bawah s. 8(2) Akta Keterangan 1950 ('AK'). Perbuatan tertuduh yang menunjukkan di mana dadah disimpan boleh diterima masuk sebagai keterangan di bawah s. 8 AK.

UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Pemilikan - Dadah disimpan dalam beg di atas tempat duduk penumpang di dalam bas - Tertuduh menunjukkan beg dan mengambil sendiri beg - Barang-barang peribadi tertuduh turut dijumpai di dalam beg berisi dadah - Sama ada elemen pemilikan dapat dibuktikan tanpa bantuan anggapan di bawah s. 37(d) Akta Dadah Berbahaya 1952 - Sama ada kegagalan memanggil pemandu bas mengakibatkan inferens yang bertentangan terhadap pendakwaan - Sama ada terdapat kelompangan pada kes pendakwaan

PROSEDUR JENAYAH: Penyiasatan polis - Pernyataan amaran - Pertuduhan pengedaran dadah berbahaya - Dakwaan pernyataan amaran di bawah s. 37B(1)(b) Akta Dadah Berbahaya 1952 ('ADB') tidak diberikan - Jawapan kepada pernyataan diberikan oleh tertuduh kepada pegawai koperal - Sama ada perbuatan tertuduh yang telah ditangkap merupakan suatu pernyataan di bawah s. 37B ADB - Sama ada kelakuan tertuduh boleh diterima sebagai keterangan di bawah s. 8(2) Akta Keterangan 1950 ('AK') - Sama ada perbuatan tertuduh termasuk dalam parameter s. 27 AK

PROSEDUR JENAYAH: Pembelaan - Penafian - Pertuduhan pengedaran dadah berbahaya - Dadah dijumpai di dalam beg di atas tempat duduk tertuduh di dalam bas - Tertuduh mendakwa beg kepunyaan penumpang lain - Sama ada pembelaan tertuduh merupakan rekaan semata-mata

  • Bagi pihak perayu - Syaheera Rosli & Abd Razak Md. Zin; T/n Hanif & Co
  • Bagi pihak responden - Asma Musa & Zaki Asyraf Zubir

CLJ 2024 Volume 2 (Part 4)

(i) The conduct of a taxpayer is an important consideration in determining whether the properties in question are for investment or trading purposes; (ii) A grievance against an alleged non-consideration of evidence by the Special Commissioner of Income Tax ('SCIT') could not succeed as it has always been recognised as a reasonable presumption that the findings of the SCIT would take into consideration all the evidence and contentions of the parties notwithstanding that such specific evidence or contention may not be expressly stated as such in the grounds of decision of the SCIT; (iii) Generally, long period of ownership before disposal would more likely be regarded as an investment. This, however, depends on the circumstances of each case with the application of the interplay of the elements of the badges of trade.
International Naturopathic Bio-Tech (M) Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2024] 2 CLJ 519 [CA]

REVENUE LAW: Income tax - Assessment - Appeal against decision of High Court in affirming decision of Special Commissioners of Income Tax ('SCIT') - Taxpayer company sold shop lots less than one year after vacant possession - SCIT raised notice of assessment in respect of disposal of shop lots - Whether ownership of shop lots in nature of long term investment such that subsequent disposal was subject to real property gains tax - Whether disposal by taxpayer should be subjected to s. 3 of Real Property Gains Tax Act 1976 or s. 4(a) of Income Tax Act 1967 - Badges of trade methodology - Whether sale of shop lots in form of trade or adventure in nature of trade - Whether taxpayer had intention to trade in shop lots - Whether disposal gains from ordinary course of taxpayer's business - Whether there were detailed findings on badges of trade - Whether circumstances which led to disposal of shop lots indicated that taxpayer was trading them - Period properties held by taxpayer - Whether shop lots held for trading

 

 

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

  • For the appellant - Arjunan Subramaniam; M/s Shanker, Arjunan & Chua
  • For the respondent - Normareza Mat Rejab, Syazana Safiah Rozman & Muhammad Danial Izzat Zulbahari; SRCs

A burden of obligation under an agreement cannot be validly assigned to a non-party. However, there is a particular type and nature of contractual burden or obligation which could be validly assigned, together with the rights and benefits under the same contract, to a non-party who becomes the assignee, ie, (i) the benefit and burden must be conferred in or by the same transaction; (ii) the receipt or enjoyment of the benefit must be relevant to the imposition of the burden in the sense that the former must be conditional upon or reciprocal to the latter; and (iii) the person on whom the burden was alleged to have been imposed must have or have had the opportunity of rejecting or disclaiming the benefit, not merely the right to receive the benefit.
Gregory Seow & Anor v. KKHills Management Sdn Bhd & Ors [2024] 2 CLJ 564 [HC]

CONTRACT: Assignment - Burden of obligation - Principle of conditional benefit - Guarded and gated community - Owners of residential home in guarded and gated community refused to pay maintenance charges and sinking fund - Whether burden of obligation under agreement could be validly assigned to non-party - Whether benefit and burden conferred in or by same transaction - Whether receipt or enjoyment of benefit relevant to imposition of burden - Whether person on whom burden was alleged to have been imposed must have or have had opportunity of rejecting or disclaiming benefit

 

 

TEE GEOK HOCK J

  • For the plaintiffs - Foo Hong Chuen & Joycelyn Goh; M/s Izral Partnership
  • For the 1st, 2nd & 3rd defendants - Brenda Chan Qing Wen; M/s Meng Wai & Assocs
  • For the 4th defendant - Prisilla Chong; M/s Ranjit Singh & Yeoh

In spite of their duty to act within the perimeters of the powers accorded to them and the protection to be given to suspects under custody, cases of harm and abuse committed by officers of investigating and enforcement agencies are prevalent. This case underscores the need to recognise the tort committed by these officers in handling suspects/arrestees under their custody, especially in cases involving white-collar crimes and the importance of exercising restraints and recognising humanity and human rights of white-collar crime suspects.
Nik Mohd Suhaimi Ahmad Ghazali v. Siti Fairuz Shamsuri & Ors [2024] 2 CLJ 591 [HC]

TORT: Abuse of process - Malicious process - Claim against Malaysian Anti-Corruption Commission ('MACC') and its officers - Claimant investigated, arrested and detained by MACC - Claimant harassed, threatened, intimidated and induced to plead guilty - Claimant spent night in MACC lock up in deplorable conditions - Claimant brought to court in handcuffs and paraded before media - Claimant claimed for false imprisonment, wrongful arrest and harassment - Whether claimant's claim essentially for malicious process or abuse of process - Whether there was malicious process or abuse of process

TORT: Malicious prosecution - Claim - Claim against Public Prosecutor and its deputies - Claimant charged at Sessions Court for offence of 'forgery' under s. 468 of Penal Code - Claimant acquitted and discharged by Sessions Court without defence being called - Public Prosecutor appealed to Court of Appeal but later withdrew - Whether there was malicious prosecution - Discretionary powers of Attorney General/Public Prosecutor - Federal Constitution, art. 145(3)

 

 

AHMAD BACHE J

  • For the plaintiff - Kamalanathan Ratnam, Vinod Kamalanathan & Anis Amirah Zakaria; M/s Vinod Kamalanathan & Assocs
  • For the defendants - Syahriah Shafiee; SFC

(i) The absence of the words 'illegality', 'irrationality' and 'procedural impropriety' in an affidavit in support is not a ground to defeat a judicial review application at leave stage. It should suffice that the pleaded facts establish one of the above grounds; (ii) The existence of an avenue to obtain compensation for a compulsory land acquisition does not preclude a landowner from seeking relief through judicial review; (iii) No injunction may be granted against the Government at all.
Sabah Forest Industries Sdn Bhd & Anor v. The Collector Of Land Revenue & Ors And Another Case [2024] 2 CLJ 605 [HC]

CIVIL PROCEDURE: Judicial review - Application for - Land matter - Termination of timber licence agreements - State Government issued notifications of resuming lands for public purpose - Whether applicants had locus standi to bring action - Whether applicants had arguable case - Whether remedies under Land Acquisition Ordinance exhausted - Whether leave ought to be granted

CIVIL PROCEDURE: Stay - Application - Land matter - Stay of eviction notices - Termination of timber licence agreements - State Government issued notifications of resuming lands for public purpose - Whether stay application contained injunctive prayers - Whether stay application in nature of injunction against Government - Whether injunctions could be made against Governme

 

 

AMELATI PARNELL J

(Judicial Review No: BKI-25-36-12-2022)
  • For the applicants - Jeyan Marimuttu & Vanessa Marimuttu; M/s Marimuttu & Partners
  • For the respondents - Tengku Datuk Ahmad Fuad, Wilson Chang & Syed Anwar Shariff Abdullah; M/s FT Ahmad & Co
  • Fazriel Fardiansyah Abdul Kadir; FC
(Judicial Review No: BKI-25-5-1-2022)
  • For the applicants - S Vanugopal; M/s S Vanugopal & Partners
  • For the respondents - Tengku Datuk Ahmad Fuad, Wilson Chang & Syed Anwar Shariff Abdullah; M/s FT Ahmad & Co
  • Fazriel Fardiansyah Abdul Kadir; FC

Pursuant to the Land Acquisition Act 1960, the National Land Code and the Town and Country Planning Act 1976, the question of zoning is relevant to the determination of the market value of scheduled lands as at the date of the gazette notification. In this case, as there was no local plan published and/or gazetted by the local planning authority, there was thus no zoning of the area in which the scheduled lands were located as at the time of the acquisition in 1994. Accordingly, the scheduled lands were not deemed as building land with commercial status or commercial purposes as at the date of the gazette notification.
Tan Wei Mia & Ors v. Pentadbir Tanah Daerah Gombak [2024] 2 CLJ 627 [HC]

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LAND LAW: Proceeding - Land reference proceeding - Rehearing - Adequate compensation - Classification of land - Land use - Whether scheduled lands zoned as commercial based at date of valuation - Whether actual and existing use of scheduled lands building for commercial purposes - Whether question of zoning relevant to determination of market value of scheduled lands as at date of gazette notification - Whether assessors shall refer only to documentary evidence filed by parties in rehearing of land reference proceeding and not previous rehearings or other sources - Land Acquisition Act 1960 - National Land Code - Town and Country Planning Act 1976

CIVIL PROCEDURE: Res judicata - Estoppel - Whether applicable - Land reference proceeding - Re-hearing - Whether principle of res judicata and estoppel applied to earlier decisions of High Court that scheduled lands zoned as commercial as at date of valuation and ought to be valued as 'commercial building' - Whether findings of High Court remain binding on parties - Whether parties estopped from relitigating issue of category of land use of scheduled lands

 

FAIZAH JAMALUDIN J

  • For the applicants - Raymond Mah Mun Kitt, Denise Phang Hui Yan, Joseph Khor Sheng Yang & Rachel Ng Ker Chi; M/s Mah Weng Kwai
  • For the respondent - Khairul Nizam Abu Bakar, Siti Radziah Kamarudin, Nurul Izzah Abdul Mutalib, Mohd Shah Faris Kamarulzaman, Amelia Masran, Nur Syafinaz Hayati Kamaruddin & Chempaka Sari Kamarudin; State Legal Advisor, Selangor

CLJ 2024 Volume 2 (Part 5)

(i) Section 27(1) of the Construction Industry Payment and Adjudication Act 2012 ('CIPAA') expressly limits the adjudicator to adjudicate only on matters pursuant to ss. 5 and 6 of the CIPAA. An adjudicator has exceeded his jurisdiction when he decides a dispute based on a clause in a construction contract that was not relied upon in the payment claim and adjudication claim; (ii) The non-giving of the opportunity by the adjudicator for the parties to submit or canvass the issue of cause of action under a specific clause before making the decision is a denial of natural justice.
Anas Construction Sdn Bhd v. JKP Sdn Bhd & Another Appeal [2024] 2 CLJ 665 [FC]

CONSTRUCTION LAW: Adjudication decision - Proceedings - Challenge - Adjudicator made decision based on clause of contract not relied upon in payment claim and adjudication claim to support cause of action - Whether adjudicator acted in excess of jurisdiction - Whether strict rules of pleadings applicable in adjudication proceedings - Whether adjudicator prohibited from referring to specific clause which was not specifically stated by claiming party - Whether there was breach of natural justice - Construction Industry Payment and Adjudication Act 2012, ss. 5, 6, 15(d) & 27(1)

CONSTRUCTION LAW: Adjudicator - Jurisdiction - Limitation of - Adjudicator made decision based on clause of contract not relied upon in payment claim and adjudication claim to support cause of action - Whether adjudicator acted in excess of jurisdiction - Whether strict rules of pleadings applicable in adjudication proceedings - Whether adjudicator prohibited from referring to specific clause which was not specifically stated by claiming party - Whether there was breach of natural justice - Construction Industry Payment and Adjudication Act 2012, ss. 5, 6, 15(d) & 27(1)

CONSTRUCTION LAW: Claims - Payment claims - Adjudication decision - Adjudicator made decision based on clause of contract not relied upon in payment claim and adjudication claim to support cause of action - Whether adjudicator acted in excess of jurisdiction - Whether strict rules of pleadings applicable in adjudication proceedings - Whether adjudicator prohibited from referring to specific clause which was not specifically stated by claiming party - Whether there was breach of natural justice - Construction Industry Payment and Adjudication Act 2012, ss. 5, 6, 15(d) & 27(1)

 

 

ABDUL RAHMAN SEBLI CJ (SABAH & SARAWAK)
MARY LIM FCJ
NORDIN HASSAN FCJ

  • For the appellant - Ong Yu Shin, Lim Wooi Ying & Lee Hooi Ying; M/s The Chambers of Yu Shing Ong
  • For the respondent - Mahinder Singh Dulku, Abdul Fareed Abdul Gafoor & Farah Nabilah Shaharuddin; M/s Ezrilaw Firm

The parties, Lembaga Tabung Haji ('LTH') on one hand and the service provider on the other, having negotiated, varied terms of agreement and relied on the same, and the service provider company having continued works until the final completion of work resulting in the successful grant of license by Bank Negara Malaysia, LTH could not subsequently terminate the agreement on the basis that the issuance of the license was not under the original terms of the agreement. Although there was no actual execution of the draft agreement, the conduct of LTH and its subsidiary were a far cry from any legitimate call or expectation for a strict formal execution of a subsequent contract. Having acted against their own call for formality, it would be unjust to impose the formality against the service provider.
Lembaga Tabung Haji & Anor v. Encap Sdn Bhd [2024] 2 CLJ 728 [CA]

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CONTRACT: Agreement - Termination - Service provider agreement ('SPA') - Service provider accommodated demands by fund board in developing cash management system ('CMS') - Fund board successfully obtained requisite license from Bank Negara Malaysia for new CMS - Draft terms of SPA negotiated and agreed by parties - Whether position of service provider established despite difference in initial terms and concepts - Whether conducts and correspondences within stipulation and allowance of variation mutually agreed under terms of SPA - Whether termination of agreement lawful

CONTRACT: Termination - Damages - Service provider agreement ('SPA') - Service provider accommodated demands by fund board in developing cash management system ('CMS') - Fund board successfully obtained requisite license from Bank Negara Malaysia for new CMS - Whether conducts and correspondences within stipulation and allowance of variation mutually agreed under terms of SPA - Whether service provider entitled for expectation loss or loss of profits as though contract successfully performed - Whether projection of profit baseless conjecture

COMPANY LAW: Lifting of corporate veil - Whether corporate veil should be lifted - Whether subsidiary company dealt with parent company on equal footing - Whether subsidiary company incorporated for specific purpose - Whether fiduciary to parent company - Whether parent company and subsidiary company conserved as one and same entity

 

HANIPAH FARIKULLAH JCA
AZIMAH OMAR JCA
AZHAHARI KAMAL RAMLI JCA

  • For the appellants - Alvin Julian, Long Mohd Noor Adman & Nur Nabila Roslee; M/s Zaid Ibrahim & Co
  • For the respondent - David Morais, Pavitra Pillai & Sara Jailany; M/s M David Morais

(i) A school is neither a statutory authority nor a public authority, and accordingly, the use of a language other than Malay in national-type schools as a medium of instruction would not be for an 'official purpose' and would therefore be permissible by the proviso in art. 152(1)(a) of the Federal Constitution; (ii) The use of Tamil or Chinese in national-type schools as a medium of instruction is protected by the proviso in art. 152(1)(b) of the FC. This proviso has the effect of 'grandfathering' the use of other languages at the time of the proclamation of Merdeka, due to the words 'preserve and sustain.' Where it can be established that a language had been used immediately prior to Merdeka, nothing in art. 152 should be read as limiting the right of Government to preserve the use of the language and to take steps to sustain its continued use.
Mohd Zai Mustafa v. Menteri Pendidikan Malaysia & Ors And Other Appeals [2024] 2 CLJ 753 [CA]

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CIVIL PROCEDURE: Action - Disposal of - Disposal on point of law - Determination of question of law or construction - Whether questions of law capable of being determined based entirely upon undisputed and agreed facts - Whether role of courts to review policies of Government - Whether evidence sought to be adduced irrelevant to exercise of Legislative and constitutional construction -Whether suits suitable for disposal pursuant to O. 14A of Rules of Court 2012

CONSTITUTIONAL LAW: Education - Vernacular schools - Establishment of - Legality and constitutionality - Use of Chinese and Tamil languages as medium of instruction - Whether ss. 2, 17 and 28 of Education Act 1996 inconsistent with art. 152(1) of Federal Constitution ('FC') - Whether existence of such national-type schools in contravention of Federal Constitution providing for fundamental liberties of individuals - Whether use of language other than Malay as medium of instruction in schools existed since pre-Merdeka - Whether art. 152(1)(b) possesses right to preserve and sustain such language - Whether vernacular schools considered public authorities for purpose of art. 152(6) of FC

 

SUPANG LIAN JCA
M GUNALAN JCA
AZIZUL AZMI ADNAN JCA

  • For the Minister of Education & Government of Malaysia - Liew Horng Bin; SFC
  • For the MAPPIM & GAPENA - Mohamed Haniff Khatri Abdulla & Aidil Khalid; M/s Amelda Fuad Abi & Aidil
  • For the Dong Zong & Jiao Zong - KF Wong, Lim Hoon Shi & Ong Jian Kai; M/s KF Wong & Lee
  • For the Majlis Bahasa Cina Malaysia, Persatuan Tamil Neri Malaysia & PERTAMA - Bastion Vendargon, Gene Vendargon, Uma Gunaseelan & Kumaradevan Rajadevan; M/s Gunaseelan & Assocs
  • For the Parti Gerakan Malaysia - Alison Goh; M/s Nazri Aziz Masura Mak & Tan
  • For the MIC - Vischaal Yogaratnam, Nievanee Ravindran & Vasanti Arumugam; M/s Vas & Co
  • For the MCA - Ben Chan, Sangheeta Vasanth Kumar & Caleb Goh Hern-Ee; M/s Ben Chan
  • For the Sekolah Menengah Persendirian Chong Hwa Kuala Lumpur - Arthur Wang Ming Way, Vicky Ong Xiao Qiu & Dhayalan Naidu Doraisamy; M/s Arthur Wang Lian & Assocs
  • For the Persatuan Thamizhar Malaysia - Jeramal Ganesan Muthu & Jonathan Charles Anthony; M/s J Ganesan Tajul Anuar & Co
  • For the Persatuan Tamilar Thirunal Perak - Saravanaban Mathialagan & Ng Mung Ying; M/s Madhi Param & Co
  • For the Persatuan Gabungan Kebajikan Guru-Guru Bersara Sekolah Tamil Malaysia - M Athimulan, Vaithylingam Rajo & Rajo Kuppan; M/s RV Lingam & Co

Once an impugned meter has been rectified and/or replaced with a new meter and the electricity supplier is no longer suffering losses, the electricity supplier cannot lawfully invoke the amended s. 38(1) of the Electricity Supply Act 1990 to disconnect electricity to the consumer's premises. If there is no evidence of meter tampering, no offence is committed and there is no lawful power to disconnect. There has to be a continuing offence to invoke the power of disconnection. However, a consumer still needs to prove its claim for damages in such cases of unlawful disconnection of electricity supply, and a failure to provide sufficient evidence of the losses it incurred or suffered, would lead to its claim being dismissed as the claims would not be legally sustainable or tenable.
Tenaga Nasional Bhd v. Big Man Management Sdn Bhd [2024] 2 CLJ 775 [CA]

UTILITIES: Electricity supply - Disconnection - Discovery of meter tampering at consumer's premises - Whether electricity supplier's action in rectifying tampered meters and later disconnecting supply lawful - Mayaria principle - Applicability - Electricity Supply Act 1990, s. 38(1)

UTILITIES: Electricity supply - Disconnection - Discovery of meter tampering at consumer's premises - Whether electricity supplier's action in rectifying tampered meters and later disconnecting supply lawful - Claim for damages - Whether consumer suffered losses - Whether permissible for exemplary damages to be granted for breach of contract claim - Whether claim for defamation and slander ought to be dismissed

 

 

AB KARIM AB JALIL JCA
S NANTHA BALAN JCA
MOHAMED ZAINI MAZLAN JCA

  • For the appellant - Steven Thiru, Hadi Mukhlis Khairulmaini & Izatunlina Jamaludin; M/s Steven Thiru & Sudhar Partnership
  • For the respondent - Gurdial Singh Nijar, P Mitran, Abraham Au Tian Hui, Lim Yew Yi & Kerk Boon Leng; M/s Kerk & Partners

ARTICLES

CLJ Article(s)

  1. TRADITIONAL PASSING OFF: CLASSICAL TRINITY IN MALAYSIA - HISTORICAL BACKGROUND (PART 1) [Read excerpt]
    by BAHARI YEOW* & DR SIK CHENG PENG** [2024] 2 CLJ(A) xi

  2. [2024] 2 CLJ(A) xi
    logo
    MALAYSIA

    TRADITIONAL PASSING OFF: CLASSICAL TRINITY IN MALAYSIA - HISTORICAL BACKGROUND (PART 1)

    by
    BAHARI YEOW* & DR SIK CHENG PENG**

    Introduction

    This article provides a brief overview on the development of the classical trinity in Malaysia. It serves as an introduction and background to a subsequent article. Tort of passing off is a common law principle. The legislations dealing with trademarks promulgated in early days pre-Merdeka were Trade Marks Ordinance 1934 (Sarawak), Trade Marks Ordinance 1938 (SS), Trade Marks Ordinance 1949 (Sabah), Trade Marks Ordinance 1950 (Federation of Malaya) and Trade Marks Ordinance 1953 (Sarawak). These pre-Merdeka legislations have been repealed and replaced by the Trade Marks Act 1976 and now the Trademarks Act 2019. Whilst these legislations have gone through several substantive amendments and changes, one common feature in them is that they did not affect the right of action against any person for passing off goods and services as those of another person or the remedies in respect thereof.[1] It is for this reason, the history of tort of passing off in Malaysia must begin before 1934.

    . . .

    * Partner, Rosli Dahlan Saravana Partnership Post Graduate Student, Faculty of Law, Universiti Malaya.

    ** Senior Lecturer, Faculty of Law, Universiti Malaya.

  3. DEVELOPMENT OF EXTENDED PASSING OFF IN MALAYSIA AND SELECTED JURISDICTIONS PART 2(1) [Read excerpt]
    by BAHARI YEOW* & DR SIK CHENG PENG** [2024] 2 CLJ(A) lxiii

  4. [2024] 2 CLJ(A) lxiii
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    MALAYSIA

    DEVELOPMENT OF EXTENDED PASSING OFF IN MALAYSIA AND SELECTED JURISDICTIONS PART 2(1)

    by
    BAHARI YEOW* & DR SIK CHENG PENG**

    Introduction

    The previous article analysed the framework of the tort of passing off in Malaysia. Passing off law cannot be underestimated as it provides a tool to protect the valuable assets of a business. The tort, in essence, protects the value of the brand of the goods or business, otherwise known as 'goodwill'.[1] It concluded that the three elements known as the 'classic trinity' of passing off, namely (i) goodwill, (ii) misrepresentation, and (iii) damages have been strictly and jealously guarded under the jurisprudence of the traditional tort. It has identified one of the limitations of the traditional tort of passing off involving the issue faced by distinctive class members who have claimed that they have enjoyed certain reputation or goodwill attached to a certain word, geographical indication, indicia or description, and those word, geographical indication, indicia or description were said to have been 'misappropriated' by the defendant. This new category of issue may not neatly fall within the framework of the traditional tort, specifically the first two elements of the classic trinity of passing off. The court felt the need of providing certain remedies to the class members within the distinctive class, and this gave rise to the most notable development in the history of the tort of passing off cases, namely the recognition of the extended passing off.

    . . .

    * Partner, Rosli Dahlan Saravana Partnership Post Graduate Student, Faculty of Law, Universiti Malaya.

    ** Senior Lecturer, Faculty of Law, Universiti Malaya.

LNS Article(s)

  1. MACHINE MINDS IN THE LEGAL MAZE: HOW GENERATIVE AI WILL RESHAPE THE LEGAL INDUSTRY [Read excerpt]
    by Kho Feng Ming* [2024] CLJU(A) xv

  2. [2024] CLJU(A) xv
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    MALAYSIA

    MACHINE MINDS IN THE LEGAL MAZE: HOW GENERATIVE AI WILL RESHAPE THE LEGAL INDUSTRY

    by
    Kho Feng Ming*

    ABSTRACT

    Honestly, we never anticipated the arrival of generative artificial intelligence ('AI'). When the first word about it was whispered to this world, all of us went euphoric. There was so much excitement regarding generative AI, and the dissonance brought by the COVID-19 pandemic in the yesteryear was no longer our concern. Many spoke highly of what generative AI can bring to our lives, while some remained highly skeptical about it. This article shares the impacts that generative AI will have on our legal industry and points out several interesting areas that may warrant our serious attention.

    . . .

    *LLB (1st Class Honors) (National University of Malaysia); Certificate In International Commercial Arbitration (Eastern University); Associate Qualification In Islamic Finance (IBFIM); Certificate In Book-Keeping & Accounts (LCCI).

  3. IMPLIED TERMS, UNJUST ENRICHMENT AND QUANTUM MERUIT IN SINGAPORE* [Read excerpt]
    by Ben Chester Cheong[i] Chan Zhixuan, Joshua[ii] [2024] CLJU(A) xvi

  4. [2024] CLJU(A) xvi
    logo
    SINGAPORE

    IMPLIED TERMS, UNJUST ENRICHMENT AND QUANTUM MERUIT IN SINGAPORE*

    by
    Ben Chester Cheong[i]
    Chan Zhixuan Joshua[ii]

    The Impact of the UK Supreme Court Decision in Barton and others v. Morris and another in place of Gwyn Jones (deceased) [2023] UKSC 3 on implied Terms, Unjust Enrichment and Quantum Meruit in Singapore

    Contracts form the basis of almost every business transaction. The existence of contracts allows for the participation in collaborative and complementary efforts by setting out the expectations and responsibilities of each party, which in turn protects their interests and rights in that transaction. Founded on English common law principles, English cases on the law of contract continue to play an influential role in Singapore decisions insofar as the interpretation of these principles are concerned. Consequently, the recent Supreme Court case of Barton and others v. Morris and another in place of Gwyn Jones (deceased) [2023] UKSC 3 (Barton v. Morris) is no exception. The article thus seeks to discuss the principles espoused in Barton v. Morris and the decision’s impact on Singapore.

    . . .

    *The article was originally published in the May 2023 issue of the Singapore Law Gazette, the official publication of the Law Society of Singapore. Reproduced with permission.

    [i] Lecturer of Law, Singapore University of Social Sciences. E-mail: benchestercheong@suss.edu.sg. Ben Chester Cheong is a full-time Lecturer of Law at the Singapore University of Social Sciences. He holds a LLM from the University of Cambridge, a LLB (1st Class Hons) from the University of Exeter, and placed 3rd out of 664 candidates in the Singapore Bar Exams (Part B). He is admitted to practise law in both England & Wales and Singapore, and also serves as an Of Counsel in the Financial Services (Regulatory) Practice at RHTLaw Asia LLP.

    [ii] E-mail: joshuachan003@suss.edu.sg. Joshua Chan is currently an Executive Officer at the Law Society of Singapore, and concurrently a third-year LLB law student at the School of Law, Singapore University of Social Sciences.

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealed Superseded
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 - -
ACT 848 Fees (Department of Broadcasting Malaysia) (Validation) Act 2023 28 July 2023 - -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1702 Food (Amendment) Act 2024 Not Yet In Force ACT 281
ACT A1701 Companies (Amendment) Act 2024 Not Yet In Force ACT 777
ACT A1700 Trade Unions (Amendment) Act 2024 Not Yet In Force ACT 262
ACT A1699 Suruhanjaya Perkhidmatan Air Negara (Amendment) Act 2023 1 February 2024 [PU(B) 44/2024] ACT 654
ACT A1698 Inland Revenue Board of Malaysia (Amendment) Act 2023 15 January 2024 [PU(B) 18/2024] ACT 533

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 56/2024 Accountants (Amendment of First Schedule) Order 2024 20 February 2024 21 February 2024 ACT 94
PU(A) 55/2024 Proclamation - Summon Parliament 19 February 2024 20 February 2024 ACT 000
PU(A) 54/2024 Proclamation - Prorogue The Parliament 19 February 2024 20 February 2024 ACT 000
PU(A) 53/2024 Customs (Amendment) Regulations 2024 16 February 2024 22 February 2024 PU(A) 397/2019
PU(A) 52/2024 Federal Territory of Kuala Lumpur Land (Amendment) Rules 2024 16 February 2024 1 March 2024 PU(A) 26/1995

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 64/2024 Reservation of Land For Public Purpose 21 February 2024 22 February 2024 ACT 828
PU(B) 63/2024 Reservation of Land For Public Purpose 21 February 2024 22 February 2024 ACT 828
PU(B) 62/2024 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Month of January 2024 21 February 2024 22 February 2024 PU(A) 293/2002
PU(B) 61/2024 Reservation of Land For Public Purpose 21 February 2024 22 February 2024 ACT 828
PU(B) 60/2024 Appointment and Revocation of Appointment of Members and Alternate Members of The Board 20 February 2024 Appointment - Specified in column (4) of the Schedule; Revocation - 26 September 2023 ACT 105

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 94 Accountants Act 1967 (Revised 1972) PU(A) 56/2024 21 February 2024 First Schedule
PU(A) 397/2019 Peraturan-Peraturan Kastam 2019 PU(A) 53/2024 22 Februari 2024 Jadual Pertama dan Jadual Kedua
PU(A) 397/2019 Customs Regulations 2019 PU(A) 53/2024 22 February 2024 First Schedule and Second Schedule
PU(A) 26/1995 Kaedah-Kaedah Tanah Wilayah Persekutuan Kuala Lumpur 1995 PU(A) 52/2024 1 Mac 2024 Kaedah 29
PU(A) 26/1995 Federal Territory of Kuala Lumpur Land Rules 1995 PU(A) 52/2024 1 March 2024 Rule 29

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 332/2010 Water Services Industry (Rates For Water Supply Services) (State of Kedah) Regulations 2010 PU(A) 33/2024 1 February 2024
PU(A) 290/2022 Perintah Duti Eksais (Penyediaan Pracampuran) (Bayaran) 2022 PU(A) 12/2024 1 Mac 2024
PU(A) 290/2022 Excise Duties (Premix Preparation) (Payment) Order 2022 PU(A) 12/2024 1 March 2024
PU(A) 287/2022 Perintah Duti Eksais (Pindaan) 2022 PU(A) 10/2024 1 Mac 2024
PU(A) 287/2022 Excise Duties (Amendment) Order 2022 PU(A) 10/2024 1 March 2024

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