Legal Network Series

[2013] 1 LNS 200	TETUAN WANG & CO v. SURUHANJAYA SYARIKAT MALAYSIA; THIAGESWARY A SUPPIAH & ORS (INTERVENERS)	COMPANY LAW: Register - Company struck off the register for failure to file Annual Return and Financial Statement - Application for name of company to be restored to register of Suruhanjaya Syarikat Malaysia - Whether application made within fifteen years after name of company struck off - Whether applicant an aggrieved party - Whether at the time of dissolution, company "carrying on business or in operation" - Company defending itself in civil suit - Whether sufficient to establish that company "in operation" - Whether the Court's discretionary power to restore exercisable - Companies Act 1965, s. 308(5) CIVIL PROCEDURE: Judgments and orders - Consent order - M/s Gerard Lazarus & Associates to hold sum of RM350,000.00 as stakeholder until final disposal of civil suit - Whether civil suit finally disposed off when withdrawn by applicant and struck out by the court - Whether interlocutory consent order still subsisted - Whether the Court had jurisdiction to revive interlocutory consent order STATUTORY INTERPRETATION: Construction of statute - "carrying on business or in operation" - Companies Act 1965, s. 308(5) - Purpose of section - Whether word "operation" wider than "business" - When the court's discretionary power to restore should be brought into play
[2013] 1 LNS 334	ZELAN HOLDINGS (M) SDN BHD v. MALAYSIAN GENERAL CONTRACTING LLC & ANOR	COMPANY LAW: Winding up - Statutory demand - Disputed debt - Whether there was a bona fide dispute relating to monies claimed by D1 from plaintiff - Subsistence of arbitration clause which encompassed all matters relating to subcontract - Whether entitlement of plaintiff to withhold monies certified to be due and owing to D1 was a matter for consideration by the arbitrator rather than this Court - Whether function of the Court was only to ascertain whether or not there was a genuine dispute in relation to sums claimed by D1 to be due and owing in excess of statutory threshold of RM500.00 - Given the genuine dispute on construction of sub contract as well as uncertainty as to quantum due and owing by plaintiff to D1, whether presentation of a petition would amount to an abuse of process
[2013] 1 LNS 335	SISMA ENTERPRISE SDN BHD v. SOLSTAD OFFSHORE ASIA PACIFIC LTD	ARBITRATION: Award - Setting aside - Whether Arbitrator correctly interpreted Clause 26(b)(v) of the Charterparty within factual matrix - Whether Arbitrator dealt with every issue that was referred for arbitration - Whether Arbitrator went outside scope of reference of arbitration - Whether Arbitrator only considered sole issue relevant in determining whether termination was correctly or incorrectly exercised under provisions of Clause 26(b)(v), namely by construing or interpreting that provision - Whether plaintiff had satisfied either of the provisions relied upon under ss. 37(1)(a)(iv) and (v) of the Arbitration Act 2005 ARBITRATION: Award - Enforcement - Whether formal requirements for recognition and enforcement satisfied - Whether any material before the Court to warrant the award not being registered and enforced as envisaged in s. 39
[2013] 1 LNS 337	SHAMSUDIN ABD HAMID v. LEMBAGA TABUNG HAJI & ANOR	CIVIL PROCEDURE: Striking out - Action - Application for - Whether plaintiffs had locus standi to commence present action - Breach occurred in 1972 or thereabouts - Claim for breach of contract, declaratory relief in respect of ownership of land and recovery of land - Whether plaintiff's action filed in 2012 time barred - Whether in an application to strike out a claim, defendant could raise issue of limitation even though it had not been specifically raised in the defence - Whether limitation was a complete bar to plaintiff's action
[2013] 1 LNS 348	AMINVESTMENT BANK BERHAD v. NEP HOLDINGS (MALAYSIA) BERHAD	CIVIL PROCEDURE: Summary judgment - Application for - Whether any triable issues raised CIVIL PROCEDURE: Affidavits - Failure to state source of information - Defendant averred to an oral agreement between two parties to vary terms of payment, of which he was not involved - Whether an application for summary judgment was an interlocutory matter or a final matter which was decisive on rights of parties - Whether affidavit of defendant should only contain facts that he was able of his own knowledge to prove - Whether statement on consent agreement was hearsay and inadmissible

CLJ 2014 Volume 1 (Part 2)

COURT

FEDERAL COURT

Akitek Timor v. Tai Kian Cheong
Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarof, Zaleha Zahari, Sulong Matjeraie FCJJ
(Civil Procedure - Summary judgment - Whether SAR had jurisdiction to make order pursuant to O. 14 r. 3 Rules of the High Court 1980) [2014] 1 CLJ 149 [FC]

Francis Augustine Pereira v. Dataran Mantin Sdn Bhd & Ors And Other Appeals
Arifin Zakaria CJ, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ
(Company Law - Arrangement, scheme of - Court approval) [2014] 1 CLJ 161 [FC]

Loo Ting Meng v. PP
Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop, Zainun Ali, Jeffrey Tan FCJJ
(Criminal Law; Criminal Procedure - Penal Code - Section 302 - Murder - Circumstantial evidence - Appeal) [2014] 1 CLJ 188 [FC]

Tenaga Nasional Bhd v. Kamarstone Sdn Bhd
Arifin Zakaria CJ, Hashim Yusoff, Abdull Hamid Embong, Suriyadi Halim Omar, Jeffrey Tan FCJJ
(Limitation; Statutory Interpretation - Accrual of cause of action - Recovery of debt - Retrospective operation) [2014] 1 CLJ 207 [FC]

COURT OF APPEAL

Balan Subramaniam Ponnudurai v. PP & Another Appeal
Zaleha Zahari, Clement Skinner, Linton Albert JJCA
(Criminal Law; Evidence - Murder - Statements - Admissibility of - Inconsistencies in evidence) [2014] 1 CLJ 233 [CA]

HIGH COURT

Ang Chin Seong v. Chong May Wai & Anor
Chew Soo Ho JC
(Family Law - Divorce - Adultery - Claim for damages) [2014] 1 CLJ 254 [HC]

Dalam Perkara United Malayan Realty Sdn Bhd
Nor Bee Ariffin H
(Undang-Undang Tanah - Hak milik strata - Syarat di bawah s. 204A Kanun Tanah Negara dan s. 9 Akta Hakmilik Strata 1985 - Pengenepian syarat) [2014] 1 CLJ 264 [HC]

Marie Subramaniam lwn. PP
Samsudin Hassan PK
(Prosedur Jenayah - Pertuduhan - Intipati kandungan) [2014] 1 CLJ 276 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Appeal - Appeal to Federal Court - Court of Appeal questioned validity of Senior Assistant Registrar's order on its own motion - SAR's order had been dealt with by High Court Judge - Whether Court of Appeal right in treating order granted by SAR as nullity - Whether decision to dismiss appeal by Court of Appeal was correct
Akitek Timor v. Tai Kian Cheong
(Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarof, Zaleha Zahari, Sulong Matjeraie FCJJ) [2014] 1 CLJ 149 [FC]

Summary judgment - Order of - Summary judgment order for damages by Senior Assistant Registrar - Whether Court of Appeal erred in treating order of SAR as nullity - Whether SAR had jurisdiction to make order pursuant to O. 14 r. 3 Rules of the High Court 1980 - Whether decision of Court of Appeal set aside
Akitek Timor v. Tai Kian Cheong
(Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarof, Zaleha Zahari, Sulong Matjeraie FCJJ) [2014] 1 CLJ 149 [FC]

COMPANY LAW

Arrangement, scheme of - Court approval - Whether scheme could prefer one group of creditors while excluding another where company was in process of being wound up - Whether'class of creditors' under s. 176 Companies Act 1965 meant group of creditors having similar rights enabling them to consult together to achieve common interest - Whether scheme of arrangement could depart from undue preference or pari passu principle even if company subsequently wound up
Francis Augustine Pereira v. Dataran Mantin Sdn Bhd & Ors And Other Appeals
(Arifin Zakaria CJ, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 1 CLJ 161 [FC]

CRIMINAL LAW

Murder - Conviction and sentence - Appeal against - Whether trial judge erred in convicting appellant in reliance on first victim's dying declaration and inferences drawn from circumstantial evidence - Whether appellant responsible for outbreak of fire and injuries - Whether trial judge erred in admitting oral statement of first victim as dying declaration - Cross-appeal by prosecution - Whether trial judge erred in not admitting second victim's written statement recorded by police officer - Whether trial judge erred in not impeaching credit of third victim
Balan Subramaniam Ponnudurai v. PP & Another Appeal
(Zaleha Zahari, Clement Skinner, Linton Albert JJCA) [2014] 1 CLJ 233 [CA]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Circumstantial evidence - Body parts of deceased found - Whether evidence adduced established deceased and appellant were together in hotel room at relevant time - Whether deceased's and appellant's DNA found in hotel room registered under appellant's name - Deceased's blood found on cleaver and handsaw recovered hidden in ceiling of hotel room - Whether instruments used to murder and dismember deceased - Whether conclusion that appellant killed deceased supported by cogent and tangible evidence - Whether act of appellant fell under s. 300 Penal Code - Defence of bare denial - Whether sufficient to cast reasonable doubt on prosecution's case - Whether conviction and sentence imposed on appellant affirmed
Loo Ting Meng v. PP
(Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop, Zainun Ali, Jeffrey Tan FCJJ) [2014] 1 CLJ 188 [FC]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Murder - Circumstantial evidence - Body parts of deceased found - Whether evidence adduced established deceased and appellant were together in hotel room at material time - Whether deceased's and appellant's DNA found in hotel room registered under appellant's name - Deceased's blood found on cleaver and handsaw recovered hidden in ceiling of hotel room - Whether instruments used to murder and dismember deceased - Whether conclusion that appellant killed deceased supported by cogent and tangible evidence - Whether act of appellant fell under s. 300 Penal Code - Defence of bare denial - Whether sufficient to cast reasonable doubt on prosecution's case - Whether conviction and sentence imposed on appellant affirmed
Loo Ting Meng v. PP
(Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop, Zainun Ali, Jeffrey Tan FCJJ) [2014] 1 CLJ 188 [FC]

EVIDENCE

Statements - Admissibility of statement - Statements made by murder victims prior to death - Whether oral statement by first victim to doctor admissible - Whether dying declaration - Whether first victim lucid or mentally fit to make dying declaration - Whether doctor was independent witness - Admissibility of written statement by second victim to police officer - Whether statement dying declaration - Relevancy - Whether statements were relevant in establishing issues raised - Corroboration - Whether second victim's dying declaration corroborated first victim's dying declaration - Evidence Act 1950, s. 32(1)(a)
Balan Subramaniam Ponnudurai v. PP & Another Appeal
(Zaleha Zahari, Clement Skinner, Linton Albert JJCA) [2014] 1 CLJ 233 [CA]

Witness - Inconsistencies in evidence - Third victim's oral testimony in court contradicted statement recorded under s. 112 of Criminal Procedure Code in material particulars - Whether trial judge erred in not impeaching credit of witness
Balan Subramaniam Ponnudurai v. PP & Another Appeal
(Zaleha Zahari, Clement Skinner, Linton Albert JJCA) [2014] 1 CLJ 233 [CA]

FAMILY LAW

Divorce - Adultery - Claim for damages - Whether adultery must be proved beyond reasonable doubt - Adultery between petitioner and third party - Whether respondent entitled to damages against third party - Respondent's financial loss - Whether damages should be compensatory and exemplary or punitive - Law Reform (Marriage and Divorce) Act 1976, ss. 54(1), 58(2) and 59(3)(a)
Ang Chin Seong v. Chong May Wai & Anor
(Chew Soo Ho JC) [2014] 1 CLJ 254 [HC]

LIMITATION

Accrual of cause of action - Recovery of debt - Action for recovery of undercharged amount for electricity use - Whether cause of action arose at time when debt could have been recovered by action - Whether date of discovery of shortfall considered date of breach - Whether there was cause of action
Tenaga Nasional Bhd v. Kamarstone Sdn Bhd
(Arifin Zakaria CJ, Hashim Yusoff, Abdull Hamid Embong, Suriyadi Halim Omar, Jeffrey Tan FCJJ) [2014] 1 CLJ 207 [FC]

Acknowledgement of debt - Right of action - Action for recovery of undercharged amount for electricity use - Whether letter seeking indulgence for reduction amounted to acknowledgement of debt - Whether clear and unequivocal acknowledgement - Whether limitation set in
Tenaga Nasional Bhd v. Kamarstone Sdn Bhd
(Arifin Zakaria CJ, Hashim Yusoff, Abdull Hamid Embong, Suriyadi Halim Omar, Jeffrey Tan FCJJ) [2014] 1 CLJ 207 [FC]

STATUTORY INTERPRETATION

Retrospective operation - Factors to be considered - Whether statute could be interpreted retrospectively - Intention of Legislature - Licensee Supply Regulations 1990, reg. 11(2)
Tenaga Nasional Bhd v. Kamarstone Sdn Bhd
(Arifin Zakaria CJ, Hashim Yusoff, Abdull Hamid Embong, Suriyadi Halim Omar, Jeffrey Tan FCJJ) [2014] 1 CLJ 207 [FC]

INDEKS PERKARA

PROSEDUR JENAYAH

Pertuduhan - Intipati kandungan - Rayuan - Tertuduh dituduh melakukan percubaan membunuh - Kanun Keseksaan, s. 307 - Sama ada intipati dalam pertuduhan lengkap - Sama ada actus reus sahaja cukup untuk membuktikan pertuduhan - Sama ada pertuduhan mencerminkan niat tertuduh untuk membunuh - Sama ada tertuduh diprejudis - Sama ada kecacatan boleh diperbetulkan oleh ss. 156 dan 422 Kanun Tatacara Jenayah
Marie Subramaniam lwn. PP
(Samsudin Hassan PK) [2014] 1 CLJ 276 [HC]

UNDANG-UNDANG TANAH

Hak milik strata - Pemberian milikan semula hak milik - Syarat di bawah s. 204A Kanun Tanah Negara dan s. 9 Akta Hakmilik Strata 1985 - Pengenepian syarat - Permohonan campur tangan mahkamah di bawah s. 417 KTN - Sama ada permohonan konsisten dengan ruang lingkup dan pemakaian s. 417 KTN - Sama ada permohonan bertentangan dengan peruntukan KTN
Dalam Perkara United Malayan Realty Sdn Bhd
(Nor Bee Ariffin H) [2014] 1 CLJ 264 [HC]