CLJ Bulletin, Issue 2014, Vol 03 17 January 2014 Print this page |
KIJAL RESORT SDN BHD v. PENTADBIR TANAH KEMAMAN & ANOR
COURT OF APPEAL, PUTRAJAYA
SYED AHMAD HELMY JCA, ABDUL WAHAB PATAIL JCA, ABDUL AZIZ RAHIM JCA
[CIVIL APPEAL NO: T-01-205-2009]
8 JULY 2013
LAND LAW: Acquisition of land - Acquisition for public purpose - Acquisition to build access road - Proposed acquisition rejected three times - Attempt to acquire land succeeded at third time but unknown to proprietor of land - Declaration that land acquired for public purpose gazetted but proprietor not notified - Application for judicial review by proprietor to obtain certiorari order to quash decision of Land Administrator in allowing acquisition - Application for judicial review dismissed by preliminary objection - Appeal against dismissal of application - Land Acquisition Act 1960, s. 3(1)(a)
ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - Application to quash decision of Land Administrator in allowing acquisition of land - Preliminary objection raised - Whether application made within time - Rules of the High Court 1980, O. 53 - Whether proper party named
KHOR KWEE GAIK & ANOR v. KHOR TENG SUNG [2013] 2 SMC 184
SESSIONS COURT, BUTTERWORTH
ROSLAN HAMID SJ
[SUMMONS NO: B52-06-04-2013]
25 JULY 2013
CIVIL PROCEDURE: Injunction - Interlocutory injunction - Application for - Application to restrain defendant from doing construction works on land - Whether defendant's intention to partition land would sever plaintiffs' factory - Balance of convenience - Whether lies in favour of granting injunction - Whether damages an adequate remedy - Whether there were serious issues to be tried
JURISDICTION: Sessions Court - Injunction - Whether Sessions Court can grant an injunction - Subordinate Courts Act 1948, s. 65(5)
JUDICIAL QUOTES
JAILANI SALEH V. PP [2013] 1 LNS 167
[1] Issue: Whether in a case where the accused had pleaded guilty to three distinct counts of robbery, the learned Sessions Court judge was right in principle in refusing to consider the accused’s guilty plea as a mitigating factor and in imposing a sentence of 39 years’ jail and 15 strokes of the rotan on the accused.
“The learned Sessions Court Judge refused to consider the plea of guilt as a mitigating factor and to me rightly so as the offence committed was a serious offence.”
“The court when considering the plea of guilt should not lose sight of the broader principles of sentencing which includes taking into account the nature of the offence. The learned Sessions Judge was right in considering the offence of robbery to be a serious offence. More so in this case where the accused committed the three robberies on three consecutive days, and armed with dangerous weapons.”
“I could not fault the learned Sessions Judge for imposing a consecutive total sentence of 39 years for all the three charges. Even taking into account the totality principle, 39 years is not manifestly excessive. The accused also deserved the 15 strokes of the rotan imposed for the 3 offences” – per Akhtar Tahir J in Jailani Saleh v. PP [2013] 1 LNS 167.
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Legal Network Series
MALAYAN BANKING BERHAD v. GENERAL INDUSTRIES & ORS
CIVIL PROCEDURE: Summary judgment - Application for - Action to recover moneys loaned - Collateral agreement between plaintiff and defendant - Whether contradicted by express terms of the Facilities Agreement and the Guarantees - Conclusive evidence clause - No evidence of any manifest error - Whether Certificate of Indebtedness conclusive evidence of amount due and owing - Whether triable issues raised
ALMAWOOD INDUSTRIES SDN BHD v. MAJLIS AMANAH RAKYAT
CONTRACT: Breach - Agreement - Whether Tenancy Agreement imposed any contractual obligation on defendant to complete the Pusat Kemudahan Gunasama (PKG) - Whether PKG was subject matter of Tenancy Agreement - Plaintiff applied for a financial facility from defendant - Whether repayment of loan was subject to establishment of PKG - Whether PKG was a precondition to the loan transaction and Tenancy Agreement
EVIDENCE: Extrinsic evidence - Whether parties entered into formal agreement with all the terms spelt out clearly - Whether parties could incorporate extrinsic evidence into said agreement
NOR AZAHAR ZAINOL v. LOKE GIM SAN
TORT: Defamation - Libel - Affidavit - Defences - Whether defence of absolute privilege applied as affidavit made in the course of court proceedings - Plaintiff not a party to proceedings in 2006 suit from which affidavit was affirmed - Whether statement in 2006 suit was relevant to the suit and made in good faith - Whether defence of justification and fair comment applicable
TORT: Defamation - Libel - Affidavit - Damages - Whether plaintiff entitled to general damages which the law presumed to flow from the natural and probable consequence of defendant's act - Whether modest status of a plaintiff detracted from his right not to be defamed - Whether publication in an affidavit was limited to persons who were involved in 2006 suit and those who did a file search of 2006 suit specifically for the affidavit - Whether nominal damages should be allowed
SYARIKAT LETRIK BUMI ABIF SDN BHD v. HLE ENGINEERING SDN BHD
CIVIL PROCEDURE: Appeal - Appeal from subordinate court - Claim by plaintiff for final balance due for electrical work - Defendant paid a lesser sum to plaintiff - Whether acceptance by plaintiff of lesser sum amounted to a full discharge of the debt - Whether Magistrate erred in law and fact in allowing plaintiff's claim
COMPANY LAW: Winding up - Suit by company - Sanction of Official Receiver not obtained by Tetuan W.Y. Chan & Roy to act for plaintiff - Whether legal firm had locus standi at the material time to act for plaintiff - Winding-up order eventually struck off - Whether within purview of the Official Receiver to appoint Tetuan K.L. Choy & Co. to act for plaintiff - Effect on civil suit heard by Magistrate
CHEONG MOO CHUNG v. REGGAE HOLDINGS (M) SDN BHD
COMPANY LAW: Winding up - Petition - Disputed debt - Invoice from petitioner not issued in the respondent company's name - Whether Court able to conclude that respondent company was indebted to petitioner based on the relevant Invoice - Whether debt upon which petition was founded was a judgment debt - Whether debt was disputed on substantial grounds - Whether there were questions of fact which required viva voce evidence which issues could not be decided on a winding-up petition - Whether petitioner should pursue his claim in ordinary litigation
CLJ 2014 Volume 1 (Part 3)
COURT
FEDERAL COURT
Dato' Seri Anwar Ibrahim v. PP
Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Abu Samah Nordin FCJJ
(Criminal Procedure; Legal Profession - Powers and functions) [2014] 1 CLJ 289 [FC]David Wee Eng Siew v. Lim Lean Seng & Anor
Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop FCJJ
(Trusts - Will - Residuary clause - Trust property) [2014] 1 CLJ 299 [FC]COURT OF APPEAL
Bank Bumiputra Malaysia Bhd v. Emas Bestari Sdn Bhd & Anor And Another Appeal
Abdul Wahab Patail, Balia Yusof Wahi, Tengku Maimun JJCA
(Civil Procedure; Evidence - Pleadings - Facts not pleaded) [2014] 1 CLJ 316 [CA]Hap Seng Consolidated Bhd v. Darinsok Pangiran Apan & Ors And Another Appeal
Raus Sharif PCA, Clement Skinner, Azahar Mohamed JJCA
(Civil Procedure - Striking out - Writ and statement of claim) [2014] 1 CLJ 333 [CA]Kijal Resort Sdn Bhd v. Pentadbir Tanah Kemaman & Anor
Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA
(Land Law; Administrative Law - Acquisition of land for public purpose) [2014] 1 CLJ 344 [CA]PP v. Dato' Seri Anwar Ibrahim
Ramly Ali, Rohana Yusuf, Mohd Zawawi Salleh JJCA
(Constitutional Law; Criminal Procedure; Statutory Interpretation - Prosecution - Whether Public Prosecutor empowered to make appointment) [2014] 1 CLJ 354 [CA]HIGH COURT
Nur Dini Md Noh lwn. Lembaga Kemajuan Wilayah Kedah (KEDA)
Zakiah Kassim PK
(Undang-Undang Buruh - Ganti rugi - Tuntutan – Pemecatan) [2014] 1 CLJ 371 [HC]Piccolo Mondo Gastro Sdn Bhd v. Absolute Prestige Sdn Bhd
Vazeer Alam Mydin Meera JC
(Tort; Civil Procedure - Trespass to land - Unlawful occupier) [2014] 1 CLJ 387 [HC]Zurich Insurance Malaysia Bhd v. AM Trustee Bhd & Anor; Meridian Asset Management Sdn Bhd (Third Party) And Another Case
Lee Swee Seng JC
(Trusts; Tort - Trustees - Breach of trust - Negligence - Duty of care) [2014] 1 CLJ 397 [HC]SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review - Certiorari - Application for - Application to quash decision of Land Administrator in allowing acquisition of land - Preliminary objection raised - Whether application made within time - Rules of the High Court 1980, O. 53 - Whether proper party named
Kijal Resort Sdn Bhd v. Pentadbir Tanah Kemaman & Anor
(Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA) [2014] 1 CLJ 344 [CA]CIVIL PROCEDURE
Appeal - Assessment of evidence - Whether trial judge failed to consider certain evidence - Whether trial judge would have come to different conclusion if evidence considered
Bank Bumiputra Malaysia Bhd v. Emas Bestari Sdn Bhd & Anor And Another Appeal
(Abdul Wahab Patail, Balia Yusof Wahi, Tengku Maimun JJCA) [2014] 1 CLJ 316 [CA]Damages- Assessment of - Measure of damages - Trespass to land - Unlawful occupier - Whether defendant used premises for monetary gain - Application of "user principle" - Whether defendant obliged to pay reasonable market rent for use of premises
Piccolo Mondo Gastro Sdn Bhd v. Absolute Prestige Sdn Bhd
(Vazeer Alam Mydin Meera JC) [2014] 1 CLJ 387 [HC]Pleadings - Facts not pleaded - Whether objection that facts not pleaded could be sustained - Whether party making objection had opportunity to address truth and accuracy of facts - Whether evidence was before court - Whether objection purely question of law
Bank Bumiputra Malaysia Bhd v. Emas Bestari Sdn Bhd & Anor And Another Appeal
(Abdul Wahab Patail, Balia Yusof Wahi, Tengku Maimun JJCA) [2014] 1 CLJ 316 [CA]Striking out- Writ and statement of claim - Application for - Whether action could not be sustained and liable to be struck out - Whether there were triable issues warranting trial - Issues raised concerning matters relating to plaintiffs' constitutional and common law rights - Whether issues should be ventilated at trial proper based on evidence adduced - Rules of the High Court 1980, O. 18 r. 19(1)
Hap Seng Consolidated Bhd v. Darinsok Pangiran Apan & Ors And Another Appeal
(Raus Sharif PCA, Clement Skinner, Azahar Mohamed JJCA) [2014] 1 CLJ 333 [CA]CONSTITUTIONAL LAW
Public Prosecutor - Powers and functions - Power to appoint Deputy Public Prosecutor - Whether could appoint advocate as Deputy Public Prosecutor - Federal Constitution, art. 145(3) - Criminal Procedure Code, ss. 376(3), 378 & 379
PP v. Dato' Seri Anwar Ibrahim
(Ramly Ali, Rohana Yusuf, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 354 [CA]CRIMINAL PROCEDURE
Prosecution - Appeal - Conduct of - Prosecution of appeal conducted by advocate appointed as Deputy Public Prosecutor by Public Prosecutor - Whether legally proper - Whether appointment valid - Whether Public Prosecutor empowered to make appointment - Whether appointment vitiated by conflict of interest - Criminal Procedure Code, ss. 376(3), 378 & 379 - Legal Profession (Practice & Etiquette) Rules 1978, r. 5(a)
Dato' Seri Anwar Ibrahim v. PP
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Abu Samah Nordin FCJJ) [2014] 1 CLJ 289 [FC]Prosecution- Appeal - Conduct of - Prosecution of appeal conducted by advocate appointed as Deputy Public Prosecutor by Public Prosecutor - Whether legally proper - Whether appointment valid - Whether Public Prosecutor empowered to make appointment - Criminal Procedure Code, ss. 376(3), 378 & 379
PP v. Dato' Seri Anwar Ibrahim
(Ramly Ali, Rohana Yusuf, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 354 [CA]Public Prosecutor - Powers and functions - Power to appoint Deputy Public Prosecutor - Whether could appoint advocate as Deputy Public Prosecutor - Federal Constitution, art. 145(3) - Criminal Procedure Code, ss. 376(3), 378 & 379
Dato' Seri Anwar Ibrahim v. PP
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Abu Samah Nordin FCJJ) [2014] 1 CLJ 289 [FC]Public Prosecutor - Powers and functions - Power to appoint Deputy Public Prosecutor - Whether could appoint advocate as Deputy Public Prosecutor - Federal Constitution, art. 145(3) - Criminal Procedure Code, ss. 376(3), 378 & 379
PP v. Dato' Seri Anwar Ibrahim
(Ramly Ali, Rohana Yusuf, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 354 [CA]EVIDENCE
Documentary evidence- Admissibility of - Computer generated document - Whether accompanied by certificate under s. 90A Evidence Act 1950 - Whether document admissible
Bank Bumiputra Malaysia Bhd v. Emas Bestari Sdn Bhd & Anor And Another Appeal
(Abdul Wahab Patail, Balia Yusof Wahi, Tengku Maimun JJCA) [2014] 1 CLJ 316 [CA]LAND LAW
Acquisition of land - Acquisition for public purpose - Acquisition to build access road - Proposed acquisition rejected three times - Attempt to acquire land succeeded at third time but unknown to proprietor of land - Declaration that land acquired for public purpose gazetted but proprietor not notified - Application for judicial review by proprietor to obtain certiorari order to quash decision of Land Administrator in allowing acquisition - Application for judicial review dismissed by preliminary objection - Appeal against dismissal of application - Land Acquisition Act 1960, s. 3(1)(a)
Kijal Resort Sdn Bhd v. Pentadbir Tanah Kemaman & Anor
(Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA) [2014] 1 CLJ 344 [CA]LEGAL PROFESSION
Advocates - Appointment as Deputy Public Prosecutor - Advocate appointed by Public Prosecutor as Deputy Public Prosecutor to prosecute appeal before Court of Appeal - Whether appointment valid - Whether vitiated by conflict of interest - Criminal Procedure Code, ss. 376(3), 378 & 379 - Legal Profession (Practice & Etiquette) Rules 1978, r. 5(a)
Dato' Seri Anwar Ibrahim v. PP
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Abu Samah Nordin FCJJ) [2014] 1 CLJ 289 [FC]STATUTORY INTERPRETATION
Statutes - Repeal - Repeal by way of abandonment of use - Criminal Procedure Code, s. 379 - Whether lapsed by effluxion of time - Power to enact and repeal statutes - Whether resides in legislative body - Doctrine of desuetude - Whether applicable in Malaysia - Federal Constitution, art. 66
PP v. Dato' Seri Anwar Ibrahim
(Ramly Ali, Rohana Yusuf, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 354 [CA]TORT
Negligence- Duty of care - Failure to exercise due care and diligence - Economic loss - Plaintiff's claim against fund manager and custodian of funds for missing funds - Vicarious liability - Whether fund manager vicariously liable for fraudulent acts of employee - Whether employee's actions were necessary link that caused loss of plaintiff's funds - Custodian - Fund manager appointed first defendant as custodian of funds - Whether first defendant owed plaintiff duty of care - Damage, remoteness of - Whether fund manager was wholly liable for loss suffered by plaintiff - Claim for contribution and indemnity - Apportionment of liability - Whether blame should be apportioned between fund manager and custodian
Zurich Insurance Malaysia Bhd v. AM Trustee Bhd & Anor; Meridian Asset Management Sdn Bhd (Third Party) And Another Case
(Lee Swee Seng JC) [2014] 1 CLJ 397 [HC]Trespass to land - Unlawful occupier - Damages - Claim for - Assessment of - Whether defendant used premises for monetary gain - Application of "user principle" - Whether defendant obliged to pay reasonable market rent for use of premises
Piccolo Mondo Gastro Sdn Bhd v. Absolute Prestige Sdn Bhd
(Vazeer Alam Mydin Meera JC) [2014] 1 CLJ 387 [HC]Trespass to land - Unlawful occupier - Dispute between parties as to area being trespassed - Whether trespassed area 410 sq ft and not 173 sq ft as claimed by defendant - Whether defendant's valuation report not accurate depiction of trespassed area - Findings of Senior Asssistant Registrar - Whether unimpeachable
Piccolo Mondo Gastro Sdn Bhd v. Absolute Prestige Sdn Bhd
(Vazeer Alam Mydin Meera JC) [2014] 1 CLJ 387 [HC]TRUSTS
Trustees - Breach of Trust - Plaintiff's claim against fund manager and custodian of funds for missing funds - Fraud by fund manager's employee - Breach of fiduciary duties - Whether fund manager liable for missing funds caused by fraudulent acts of employee - Whether there was fiduciary relationship between plaintiff and first defendant custodian - Whether custodian breached its fiduciary duties to plaintiff by failing to take steps to verify false instructions from fund manager's employee
Zurich Insurance Malaysia Bhd v. AM Trustee Bhd & Anor; Meridian Asset Management Sdn Bhd (Third Party) And Another Case
(Lee Swee Seng JC) [2014] 1 CLJ 397 [HC]Will- Residuary clause - Trust property - Intention to create trust - Testator's trust expired upon death of last surviving trustee - Whether residuary clause in will included property which testator did not own at time of death - Whether remainder of testator's property distributed to person or persons he intended to bequest - Whether interest held by executors cum trustees was by way of resulting trust - Whether surplus land distributed in accordance with wishes of testator - Failure to draft residuary clause - Whether remainder of property will pass by way of intestate
David Wee Eng Siew v. Lim Lean Seng & Anor
(Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop FCJJ) [2014] 1 CLJ 299 [FC]INDEKS PERKARA
UNDANG-UNDANG BURUH
Ganti rugi - Tuntutan - Pemecatan - Pekerja menghantar notis inkuiri kepada majikan meminta penjelasan mengapa jawatannya gagal disahkan - Pekerja menerima surat penamatan selepas menghantar notis inkuiri - Sama ada tindakan majikan menamatkan perkhidmatan pekerja sah di sisi undang-undang - Sama ada pekerja wajar diberikan pengiktirafan jawatan tetap dengan pembatalan penyekatan pergerakan gaji - Tuntutan bagi pelarasan gaji bermula dari tahun terhentinya pergerakan gaji pekerja sehingga ditamatkan perkhidmatan
Nur Dini Md Noh lwn. Lembaga Kemajuan Wilayah Kedah (KEDA)
(Zakiah Kassim PK) [2014] 1 CLJ 371 [HC]Pekerjaan - Pemecatan - Tempoh percubaan jawatan dilanjutkan kerana tiada perakuan Ketua Jabatan untuk disahkan jawatan dalam tempoh yang ditetapkan - Penyekatan pergerakan gaji dan penangguhan perkhidmatan pekerja - Notis inkuiri oleh pekerja meminta penjelasan mengapa jawatan gagal disahkan - Pekerja menerima surat penamatan setelah lima tahun berkerja - Sama ada tindakan majikan menamatkan perkhidmatan pekerja sah di sisi undang-undang
Nur Dini Md Noh lwn. Lembaga Kemajuan Wilayah Kedah (KEDA)
(Zakiah Kassim PK) [2014] 1 CLJ 371 [HC]
Legal Network Series Article
1. ENTOMOLOGI FORENSIK (FORENSIC ENTOMOLOGY)
DAN PERANANNYA DALAM PENYIASATAN KES JENAYAH DI MALAYSIA [Read excerpt]
by: RAMALINGGAM RAJAMANICKAM* [2013] 1 LNS(A) xcii2. CIVILIAN AND DEMOCRATIC DIMENSIONS OF GOVERNANCE IN ISLAM* [Read excerpt]
by: MOHAMMAD HASHIM KAMALI [2013] 1 LNS(A) xciii
Principal Acts
Number | Title | Date coming into force | Repealing |
ACT 760 | Fees (Department Of Museums Malaysia) (Validation) Act 2014 | 1 January 1991 to 11 June 2012 | -Nil- |
ACT 759 | Islamic Financial Services Act 2013 | 30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9 | -Nil- |
ACT 758 | Financial Services Act 2013 | 30 June 2013 [PU(B) 276/2013] - except s 129 and Schedule 9 | -Nil- |
ACT 757 | Strata Management Act 2013 | Not Yet In Force | -Nil- |
ACT 756 | Traditional And Complementary Medicine Act 2013 | Not Yet In Force | -Nil- |
Amending Acts
Number | Title | Date coming into force | Principal/Amending Act No |
ACT A1458 | Supply Act 2014 | 1 January 2014 | |
ACT A1456 | Legal Profession (Amendment) Act 2013 | Not Yet In Force | ACT 166 |
ACT A1455 | Legal Profession (Amendment) Act 2012 (Amendment) Act 2013 | Not Yet In Force | ACT A1444 |
ACT A1454 | Supplementary Supply (2013) Act 2013 | 2 November 2013 | |
ACT A1453 | Supplementary Supply (2012) Act 2013 | 7 September 2013 |
PU(A)
Number | Title | Date of Publication | Date coming into force | Principal/Amending Act No |
PU(A) 9/2014 | Speed Limit (Sungai Buaya Interchange) Order 2014 | 8 January 2014 | 9 January 2014 | ACT 333 |
PU(A) 8/2014 | Federal Roads (Private Management) (Collection Of Tolls) (North South Expressway Central Link And KLIA Expressway) (Amendment) Order 2014 | 8 January 2014 | See ss 1(2), 1(3), 1(4), 1(5) and 1(6) | PU(A) 437/2002 |
PU(A) 7/2014 | Federal Roads (Sungai Buaya Interchange) Order 2014 | 8 January 2014 | 9 January 2014 | ACT 376 |
PU(A) 6/2014 | Care Centres (Exemption) Order 2014 | 8 January 2014 | 10 January 2014 | ACT 506 |
PU(A) 5/2014 | Medical (Amendment Of Second Schedule) Order 2014 | 7 January 2014 | 8 January 2014 | ACT 50 |
PU(B)
Number | Title | Date of Publication | Date coming into force | Principal/Amending Act No |
PU(B) 10/2014 | Appointment Of A Member Of The Commission | 10 January 2014 | 11 January 2014 | ACT 695 |
PU(B) 9/2014 | Prescription Of Approved Routes And Declaration Of Immigration Control Posts - Corrigendum | 9 January 2014 | 10 January 2014 | PU(B) 372/2004 |
PU(B) 8/2014 | Appointment Of Deputy Public Prosecutors | 8 January 2014 | Specified in column (2) of the Schedule | ACT 593 |
PU(B) 7/2014 | Appointment Of Lock-Up To Be A Place Of Confinement | 6 January 2014 | 7 January 2014 | ACT 537 |
PU(B) 6/2014 | Appointment Of Lock-Up To Be A Place Of Confinement | 6 January 2014 | 7 January 2014 | ACT 537 |
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