Bulletin_01

CLJ Bulletin, Issue 2011, Vol 1

7 January 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 9 (Part 7) 2010

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 398/2010 Entertainments Duty (Exemption) (No 15) Order 2010 2 December 2010 ACT 103

PU(A) 399/2010 Entertainments Duty (Exemption) (No 16) Order 2010 2 December 2010 ACT 103

PU(A) 400/2010 Customs (Values) (Crude Petroleum Oil) (No 24) Order 2010 2 December 2010 ACT 235

PU(A) 402/2010 Anti-Money Laundering And Anti-Terrorism Financing (Amendment Of First Schedule) Order 2010 6 December 2010 ACT 613

PU(A) 403/2010 Anti-Money Laundering And Anti-Terrorism Financing (Invocation Of Part Iv) Order 2010 6 December 2010 ACT 613

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 506/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Setapak 18 November 2010 ACT 56/1965

PU(B) 507/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 18 November 2010 ACT 56/1965

PU(B) 508/2010 Copyright Act 1987 - Corrigendum 18 November 2010 ACT 332

PU(B) 509/2010 Commercial Vehicles Licensing Board Act 1987 - Corrigendum 18 November 2010 ACT 334

PU(B) 510/2010 First Supplementary Scheme To The Scheme For The Operation, Promotion And Management Of The Four Digit Game (4d) For Sandakan Turf Club 2010 22 November 2010 ACT 384

2. Articles

a) Legal Network Series Articles

1. Seminar On Forced Marriages: Law, Religion And Practice ^{[Read
excerpt]}
By Sir Mark Potter*

2. Seminar On Forced Marriages: Law, Religion And Practice ^{[Read
excerpt]}
By Mr Justice Munby*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 419 [HC] EON Bank Berhad v. Mohd Yunus Alias & Ors
CIVIL PROCEDURE: Striking out - Want of prosecution - Plaintiff initiating fresh action - Whether when an action is struck out either under the second or third limb or offshoot of the second limb, it can also be construed that the refiling of an action based on the same facts is itself an abuse of the court process - Whether second action barred - Whether the same principles for striking out for want of prosecution apply for striking out under Order 18 r. 19 (1)(b) and (d) RHC 1980 in such an instance

[2009] 1 LNS 420 [HC] Total Safe Sdn Bhd v. Tenaga Nasional Berhad & Anor
ARBITRATION: Stay of proceedings - Application - Agreement between plaintiff and second defendant dated 5 July 2002 - Whether Arbitration Act 2005 applicable - Whether an arbitration agreement existed between the parties

[2009] 1 LNS 429 [HC] Dr Ngu Siew Kong v. HSBC Bank Malaysia Berhad

CONTRACT: Acceptance - Communication of acceptance - Whether acceptance of plaintiff's counter offer by fax binding - Whether proper acceptance - Whether plaintiff under any legal obligation to sell the pledged shares to reduce the outstanding balance under the loan

EVIDENCE: Without prejudice communications - Admissibility - Whether automatically inadmissible

[2009] 1 LNS 432 [HC] Achieva Technology Sdn Bhd v. Lam Yen Ling & Ors
CIVIL PROCEDURE: Contempt of court - Committal proceedings - Order of committal, application for - Defendants allegedly committing contempt while exercising their legal rights - Whether letter of demand from defendants' solicitors was to intimidate witness - Whether element of guilty mind operating to defeat, obstruct or interfere with the administration of justice present - Whether contempt proved beyond reasonable doubt - Rules of the High Court 1980, O. 52

[2009] 1 LNS 488 [HC] Yinshah Sdn Bhd v. Sin Heap Lee Development Sdn Bhd

EVIDENCE: Fresh or further evidence - Application to admit affidavit at hearing as new or fresh evidence - Whether appropriate for court to read the affidavit alleged to introduce new evidence to determine the nature of evidence to be introduced

CITATION	TITLE	SUBJECT
[2009] 1 LNS 419 [HC]	EON Bank Berhad v. Mohd Yunus Alias & Ors	CIVIL PROCEDURE: Striking out - Want of prosecution - Plaintiff initiating fresh action - Whether when an action is struck out either under the second or third limb or offshoot of the second limb, it can also be construed that the refiling of an action based on the same facts is itself an abuse of the court process - Whether second action barred - Whether the same principles for striking out for want of prosecution apply for striking out under Order 18 r. 19 (1)(b) and (d) RHC 1980 in such an instance
[2009] 1 LNS 420 [HC]	Total Safe Sdn Bhd v. Tenaga Nasional Berhad & Anor	ARBITRATION: Stay of proceedings - Application - Agreement between plaintiff and second defendant dated 5 July 2002 - Whether Arbitration Act 2005 applicable - Whether an arbitration agreement existed between the parties
[2009] 1 LNS 429 [HC]	Dr Ngu Siew Kong v. HSBC Bank Malaysia Berhad	CONTRACT: Acceptance - Communication of acceptance - Whether acceptance of plaintiff's counter offer by fax binding - Whether proper acceptance - Whether plaintiff under any legal obligation to sell the pledged shares to reduce the outstanding balance under the loan EVIDENCE: Without prejudice communications - Admissibility - Whether automatically inadmissible
[2009] 1 LNS 432 [HC]	Achieva Technology Sdn Bhd v. Lam Yen Ling & Ors	CIVIL PROCEDURE: Contempt of court - Committal proceedings - Order of committal, application for - Defendants allegedly committing contempt while exercising their legal rights - Whether letter of demand from defendants' solicitors was to intimidate witness - Whether element of guilty mind operating to defeat, obstruct or interfere with the administration of justice present - Whether contempt proved beyond reasonable doubt - Rules of the High Court 1980, O. 52
[2009] 1 LNS 488 [HC]	Yinshah Sdn Bhd v. Sin Heap Lee Development Sdn Bhd	EVIDENCE: Fresh or further evidence - Application to admit affidavit at hearing as new or fresh evidence - Whether appropriate for court to read the affidavit alleged to introduce new evidence to determine the nature of evidence to be introduced

b. CLJ Volume 9 (Part 7) 2010

COURT

FEDERAL COURT

UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor
(Company law - Winding up - Whether order for majority shareholder to buy out shares of minority shareholder justified) [2010] 9 CLJ 785

COURT OF APPEAL

Ismail Bakar & Ors v. Director Of Lands And Mines, Kedah Darul Aman
(Acquisition of land - Gross delay in paying compensation sum - Whether acquisition unconstitutional and a nullity) [2010] 9 CLJ 810

Sivakumar Varatharaju Naidu v. Ganesan Retanam
(State Legislative Assembly - Speaker - Privileges - Whether immune to civil and criminal proceedings) [2010] 9 CLJ 825

HIGH COURT

EON Bank Bhd v. KSU Holdings Bhd
(Company law - Directors' resolution - Whether tantamount to undertaking by company - Whether having binding effect vis-a-vis company and third party) [2010] 9 CLJ 862

Ng Peter v. Kurnia Insurans (M) Bhd; Robert Michael Fernandez (Third Party)
(Marine insurance - 'Voyage' and 'Time' policies - Seaworthiness of vessel, ascertainment of) [2010] 9 CLJ 885

SUBJECT INDEX

CIVIL LAW ACT

Insurance - Marine insurance - Whether English marine insurance law applicable in Malaysia - Whether provisions of the Marine Insurance Act 1906 (UK) applicable in Malaysia - Civil Law Act 1956, s. 5(1)
Ng Peter v. Kurnia Insurans (M) Bhd; Robert Michael Fernandez (Third Party)
(Harmindar Singh Dhaliwal JC) [2010] 9 CLJ 885 [HC]

CIVIL PROCEDURE

Appeal - Evaluation of evidence - Witness - Case depended largely on oral evidence - Documentary evidence tendered requiring explanation by material witnesses - Trial judge's conclusion that sole witness for respondent not a witness of truth - Whether reasonable and proper judicial appreciation of evidence - Whether appellate court erred in reversing findings of trial judge by referring to inadmissible documents
UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor
(Raus Sharif, Abdull Hamid Embong & Heliliah Mohd Yusof FCJJ) [2010] 9 CLJ 785 [FC]

Appeal - Fact, findings of - Credibility of witnesses - Decision of trial judge - Weight to be given - Amenability to appellate interference - Whether findings of credibility could be severed from documentary evidence - Finding on witness's credibility based on demeanour not to be ordinarily disturbed at appellate stage
UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor
(Raus Sharif, Abdull Hamid Embong & Heliliah Mohd Yusof FCJJ) [2010] 9 CLJ 785 [FC]

Appeal - Interference by appellate court - Questions of fact and credibility based on demeanour of witness - Whether appellate court should be slow to interfere
UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor
(Raus Sharif, Abdull Hamid Embong & Heliliah Mohd Yusof FCJJ) [2010] 9 CLJ 785 [FC]

Summary judgment - Principles and procedure - Whether summary procedure to be resorted to only where claim 'obviously unsustainable' - Whether power of court to strike out action ought to be exercised sparingly - Rules of the High Court 1980, O. 18 r. 19(1)(b), (d)
Sivakumar Varatharaju Naidu v. Ganesan Retanam
(Abdul Malik Ishak, KN Segara & Abdul Wahab Patail JJCA) [2010] 9 CLJ 825 [CA]

COMPANY LAW

Directors - Resolutions - Effect of resolutions - Whether merely an internal document empowering company to carry out matters stipulated therein - Whether company is compelled to carry out matters stated in resolution - Whether resolution may amount to an undertaking by company - Whether resolution may be specifically enforced - Whether resolution has binding effect vis-a-vis company and third party
EON Bank Bhd v. KSU Holdings Bhd
(Hanipah Farikullah JC) [2010] 9 CLJ 862 [HC]

Members' rights - Petition under Companies Act 1965, s. 181 - Remedies - Company insolvent - Whether petition sustainable - Whether winding up of company justified - Whether order for majority shareholder to buy out shares of minority shareholder justified
UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor
(Raus Sharif, Abdull Hamid Embong & Heliliah Mohd Yusof FCJJ) [2010] 9 CLJ 785 [FC]

CONSTITUTIONAL LAW

Legislature - Parliamentary privilege - Actions by lawfully appointed Speaker of State Assembly - Whether privileged - Whether Speaker immune to civil or criminal proceedings
Sivakumar Varatharaju Naidu v. Ganesan Retanam
(Abdul Malik Ishak, KN Segara & Abdul Wahab Patail JJCA) [2010] 9 CLJ 825 [CA]

Legislature - State Assembly - Proceedings in State Assembly - Whether court barred from questioning validity of proceedings in State Assembly - Federal Constitution, art. 72(1)
Sivakumar Varatharaju Naidu v. Ganesan Retanam
(Abdul Malik Ishak, KN Segara & Abdul Wahab Patail JJCA) [2010] 9 CLJ 825 [CA]

CONTRACT

Guarantee - Corporate guarantee - Whether valid and enforceable guarantee existed - Whether defendant undertook or represented to provide a corporate guarantee - No ad idem between parties on terms and conditions of guarantee - Formal guarantee not executed - No contractual relationship between parties
EON Bank Bhd v. KSU Holdings Bhd
(Hanipah Farikullah JC) [2010] 9 CLJ 862 [HC]

EVIDENCE

Adverse inference - Evidence Act 1950, s. 114(g) - Failure to call material witnesses - Whether adverse inference would be drawn
EON Bank Bhd v. KSU Holdings Bhd
(Hanipah Farikullah JC) [2010] 9 CLJ 862 [HC]

Witness - Credibility of - Evaluation of evidence of witness based on demeanour - Whether appellate court should be slow to interfere
UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor
(Raus Sharif, Abdull Hamid Embong & Heliliah Mohd Yusof FCJJ) [2010] 9 CLJ 785 [FC]

INSURANCE

Marine insurance - 'Voyage' and 'Time' policies distinguished - Time policy - Seaworthiness of vessel, how ascertained - Defence of unseaworthiness, elements of - Burden of proving unseaworthiness, whether on insurers - Marine Insurance Act 1906 (UK), ss. 25(1), 39(5)
Ng Peter v. Kurnia Insurans (M) Bhd; Robert Michael Fernandez (Third Party)
(Harmindar Singh Dhaliwal JC) [2010] 9 CLJ 885 [HC]

LAND LAW

Acquisition of land - Compensation - Whether Land Administrator duty bound to pay compensation as soon as may be or within reasonable time - Gross delay in paying compensation sum - Whether fatal - Whether rendering acquisition exercise "not according to law" and unconstitutional - Whether lands to be returned to owners - Land Acquisition Act 1960, ss. 29(1), 29A, 32 - Federal Constitution, art. 13(1)
Ismail Bakar & Ors v. Director Of Lands And Mines, Kedah Darul Aman
(Heliliah Mohd Yusof, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 9 CLJ 810 [CA]

SHIPPING AND NAVIGATION

Marine insurance - Seaworthiness of vessel, how ascertained - Defence of unseaworthiness, elements of - Burden of proving unseaworthiness, whether on insurers - Marine Insurance Act 1906 (UK), ss. 25(1), 39(5)
Ng Peter v. Kurnia Insurans (M) Bhd; Robert Michael Fernandez (Third Party)
(Harmindar Singh Dhaliwal JC) [2010] 9 CLJ 885 [HC]

WORDS & PHRASES

"As soon as may be" - Section 29(1) Land Acquisition Act 1960 - Meaning and import - Whether to mean "within reasonable time"
Ismail Bakar & Ors v. Director Of Lands And Mines, Kedah Darul Aman
(Heliliah Mohd Yusof, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 9 CLJ 810 [CA]

'privity' - Marine Insurance Act 1906 (UK), s. 39(5)
Ng Peter v. Kurnia Insurans (M) Bhd; Robert Michael Fernandez (Third Party)
(Harmindar Singh Dhaliwal JC) [2010] 9 CLJ 885 [HC]

CASE OF THE WEEK

MALAYSIAN ASSURANCE ALLIANCE BHD v. ANTHONY KULANTHAI MARIE JOSEPH

INSURANCE: Life insurance - Whether insurers are trustees of sums secured by policy - Life policy taken by deceased for benefit of wife - Action by wife to recover sum secured by policy - Whether action founded on contract or on trust - Whether insurer declared itself trustee of policy - Whether action time-barred - Civil Law Act 1956, s. 23(1) - Limitation Act 1953, ss. 6 & 22(1)(b)

LIMITATION: Insurance policy - Whether insurers are trustees of sums secured by policy - Life policy taken by deceased for benefit of wife - Action by wife to recover sum secured by policy - Whether action founded on contract or on trust - Whether insurer declared itself trustee of policy - Whether action time-barred - Civil Law Act 1956, s. 23(1) - Limitation Act 1953, ss. 6 & 22(1)(b)

TRUST: Trusts - Life insurance policy - Whether insurers are trustees of sums secured by policy - Life policy taken by deceased for benefit of wife - Action by wife to recover sum secured by policy - Whether action founded on contract or on trust - Whether insurer declared itself trustee of policy - Whether action time-barred - Civil Law Act 1956, s. 23(1) - Limitation Act 1953, ss. 6 & 22(1)(b)

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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
PU(A) 398/2010	Entertainments Duty (Exemption) (No 15) Order 2010	2 December 2010	ACT 103
PU(A) 399/2010	Entertainments Duty (Exemption) (No 16) Order 2010	2 December 2010	ACT 103
PU(A) 400/2010	Customs (Values) (Crude Petroleum Oil) (No 24) Order 2010	2 December 2010	ACT 235
PU(A) 402/2010	Anti-Money Laundering And Anti-Terrorism Financing (Amendment Of First Schedule) Order 2010	6 December 2010	ACT 613
PU(A) 403/2010	Anti-Money Laundering And Anti-Terrorism Financing (Invocation Of Part Iv) Order 2010	6 December 2010	ACT 613