Bulletin_04

CLJ Bulletin, Issue 2011, Vol 4

28 January 2011

CLJ Law Malaysia

http://www.cljlaw.com

Introduction:
To get the most out of this law bulletin join CLJ Law Online now - http://www.cljlaw.com/?page=subscription
Feel free to forward this to your colleagues. Get this bulletin as email by going to http://www.cljlaw.com/?page=bulletinsubscribe

New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 1 (Part 2) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 714 Suruhanjaya Pengangkutan Awam Darat Act 2010 3 June 2010 [PU(B) 262/2010] - Nil -

ACT 715 Land Public Transport Act 2010 Not Yet In Force - Nil -

ACT 716 Wildlife Conservation Act 2010 28 December 2010 [PU(B) 545/2010] - Nil -

ACT 717 Perbadanan Stadium Malaysia Act 2010 Not Yet In Force - Nil -

ACT 718 Agensi Inovasi Malaysia Act 2010 Not Yet In Force - Nil -

Amending Acts

NUMBER

TITLE

DATE COMING INTO FORCE

AMENDING

ACT A1384 Hire-Purchase (Amendment) Act 2010 Not Yet In Force ACT 212

ACT A1385 Anti-Trafficking In Persons (Amendment) Act 2010 15 November 2010 [PU(B) 500/2010] ACT 670

ACT A1386 Children And Young Persons (Employment) (Amendment) Act 2010 Not Yet Inforce ACT 350

ACT A1387 Malaysian Timber Industry Board (Incorporation) (Amendment) Act 2010 Not Yet Inforce ACT 105

ACT A1388 Supply Act 2011 31 December 2010 - Nil -

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 460/2010 Constitution Of The Universiti Malaysia Sabah 31 December 2010 ACT 30

PU(A) 004/2011 Pineapple Industry (Financial Assistant For Growers) (Amendment) Regulations 2011 7 January 2011 ACT 427

PU(A) 005/2011 Customs (Values) (Palm Oil) (No 2) Order 2011 10 January 2011 ACT 235

PU(A) 006/2011 Poisons (Amendment Of Poisons List) Order 2011 13 January 2011 ACT 366

PU(A) 007/2011 Customs (Values) (Crude Petroleum Oil) Order 2011 13 January 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 008/2011 Notice Regarding The Supplementary Electoral Roll For The Third Quarter Of The Year 2010 That Has Been Certified - Terengganu 6 January 2011 ACT 19

PU(B) 009/2011 Appointment And Revocation Of Appointment Of Chief Executive Officer Under Section 6a 8 January 2011 ACT 533

PU(B) 010/2011 Notice Under Subsection 24(1) Returns And Statements Of Election Expenses - Kelantan 10 January 2011 ACT 5

PU(B) 031/2011 Appointment Under Section 3 Of Elections Act 1958 - Tenang, Johor 21 January 2011 ACT 19

PU(B) 032/2011 Appointment Under Section 3 Of Elections Act 1958 - Tenang, Johor 21 January 2011 ACT 19

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

DR 39/2010 Merchant Shipping (Oil Pollution) (Amendment) Bill 2010 - ACT 515

DR 40/2010 International Islamic Liquidity Management Corporation Bill 2010 - -

DR 41/2010 Agensi Inovasi Malaysia Bill 2010 - -

DR 46/2010 Copyright (Amendment) Bill 2010 - ACT 332

DR 47/2010 Renewable Energy Bill 2010 - -

2. Articles

a) Legal Network Series Articles

1. Resolution National Conference 2009 ^{[Read
excerpt]}
By Mr Justice McFarlane*

2. Recent Subprime Crisis: "The Valuable Lessons That The Financial Turmoil In 2008 Can Teach The Islamic Finance Industry" ^{[Read
excerpt]}
By Maimoonah Binti Aid*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 725 [HC] Siti Sarinah Sibun v. Azizah Kamaruddin & Anor

EMPLOYMENT: Contract of service - Condition of employment - Plaintiff removed computers and printer from premises without approval - Whether prima facie misconduct - Whether defendants right to issue show cause letter - Whether defendants right to suspend employee pending investigation - Whether defendants' action in line with procedures in bank and good industrial practices

EVIDENCE: Proof of - Damages - Plaintiff not dismissed but recalled to serve with full restoration of salaries during suspension - Whether any evidence of loss - Plaintiff resigning from job - Whether wounded feelings and loss of reputation claimable

[2009] 1 LNS 732 [HC] Kamsul Mohd Razali v. Choong Yoke Ngoh

CONTRACT: Public policy - Object of settlement agreement opposed to public policy - Dropping of criminal charges against defendant as consideration - Whether agreement valid and binding - Whether defendant coerced into signing agreement - Contracts Act 1950, ss. 24 and 25

CONTRACT: Void contract - Consideration unlawful - Arrangement against public policy - Effect on plaintiff's claim - Whether defendant entitled to sum raised in the counterclaim - Contracts Act 1950, s. 66

[2009] 1 LNS 742 [HC] Mohd Abdullah Mohd Mohaidin & Others v. Alam Flora Sdn Bhd

CIVIL PROCEDURE: Injunction – Injunction to restrain defendants from terminating agreement – Complaints of plaintiff’s non-performance – Whether material non-disclosure on the part of the plaintiffs – Whether damages an adequate remedy

CIVIL PROCEDURE: Injunction - Balance of convenience - Effect of injunction on public interest - Defendant restrained up to an undeterminable period - Defendant unable to attend to public complaints - Whether balance of convenience in favour of granting injunction

CIVIL PROCEDURE: Injunction - Serious questions to be tried - Parties' relationship based on month to month contract - Whether plaintiffs could rely on minutes of meeting between defendant and Perkasa as assurance that existing contract would be maintained - Whether issues warranted continuance of injunction

[2009] 1 LNS 803 [HC] Kuan Chit & Ors v. Daro (M) Sdn Bhd

CONTRACT: Joint venture - Joint venture agreement - Whether to be construed with power of attorney - Whether combined terms establish fiduciary relationship - Whether defendant breached fiduciary duty

LAND: Housing developers - Joint venture agreement - Whether defendant breached joint venture agreement - Defendant surrendered portion of land for construction of road and mosques to Government - Defendant later applied for alienation, subdivided into 10 lots and erected 10 houses - Portion of land reserved for mosque still vacant - Whether land reserved for the construction of a road and mosque no longer the subject matter of the Joint Venture Agreement since surrendered to the Government - Whether defendant applied for Government land and not land which was the subject matter of the Agreement

[2009] 1 LNS 963 [HC] Visiber Sdn Bhd v. Tan Meng Them & Ors

CIVIL PROCEDURE: Contempt of court - Contempt proceedings - Breach of injunction order - Plaintiff contending that defendants had full and personal knowledge of the order to the extent that they could issue instructions with respect to the terms of the order - Whether plaintiff proved beyond reasonable doubt that the defendants had sufficient knowledge of the terms of the order

CITATION	TITLE	SUBJECT
[2009] 1 LNS 725 [HC]	Siti Sarinah Sibun v. Azizah Kamaruddin & Anor	EMPLOYMENT: Contract of service - Condition of employment - Plaintiff removed computers and printer from premises without approval - Whether prima facie misconduct - Whether defendants right to issue show cause letter - Whether defendants right to suspend employee pending investigation - Whether defendants' action in line with procedures in bank and good industrial practices EVIDENCE: Proof of - Damages - Plaintiff not dismissed but recalled to serve with full restoration of salaries during suspension - Whether any evidence of loss - Plaintiff resigning from job - Whether wounded feelings and loss of reputation claimable
[2009] 1 LNS 732 [HC]	Kamsul Mohd Razali v. Choong Yoke Ngoh	CONTRACT: Public policy - Object of settlement agreement opposed to public policy - Dropping of criminal charges against defendant as consideration - Whether agreement valid and binding - Whether defendant coerced into signing agreement - Contracts Act 1950, ss. 24 and 25 CONTRACT: Void contract - Consideration unlawful - Arrangement against public policy - Effect on plaintiff's claim - Whether defendant entitled to sum raised in the counterclaim - Contracts Act 1950, s. 66
[2009] 1 LNS 742 [HC]	Mohd Abdullah Mohd Mohaidin & Others v. Alam Flora Sdn Bhd	CIVIL PROCEDURE: Injunction – Injunction to restrain defendants from terminating agreement – Complaints of plaintiff’s non-performance – Whether material non-disclosure on the part of the plaintiffs – Whether damages an adequate remedy CIVIL PROCEDURE: Injunction - Balance of convenience - Effect of injunction on public interest - Defendant restrained up to an undeterminable period - Defendant unable to attend to public complaints - Whether balance of convenience in favour of granting injunction CIVIL PROCEDURE: Injunction - Serious questions to be tried - Parties' relationship based on month to month contract - Whether plaintiffs could rely on minutes of meeting between defendant and Perkasa as assurance that existing contract would be maintained - Whether issues warranted continuance of injunction
[2009] 1 LNS 803 [HC]	Kuan Chit & Ors v. Daro (M) Sdn Bhd	CONTRACT: Joint venture - Joint venture agreement - Whether to be construed with power of attorney - Whether combined terms establish fiduciary relationship - Whether defendant breached fiduciary duty LAND: Housing developers - Joint venture agreement - Whether defendant breached joint venture agreement - Defendant surrendered portion of land for construction of road and mosques to Government - Defendant later applied for alienation, subdivided into 10 lots and erected 10 houses - Portion of land reserved for mosque still vacant - Whether land reserved for the construction of a road and mosque no longer the subject matter of the Joint Venture Agreement since surrendered to the Government - Whether defendant applied for Government land and not land which was the subject matter of the Agreement
[2009] 1 LNS 963 [HC]	Visiber Sdn Bhd v. Tan Meng Them & Ors	CIVIL PROCEDURE: Contempt of court - Contempt proceedings - Breach of injunction order - Plaintiff contending that defendants had full and personal knowledge of the order to the extent that they could issue instructions with respect to the terms of the order - Whether plaintiff proved beyond reasonable doubt that the defendants had sufficient knowledge of the terms of the order

b. CLJ Volume 1 (Part 2) 2011

COURT

FEDERAL COURT

Taipan Focus Sdn Bhd v. Tunku Mudzaffar Tunku Mustapha
Arifin Zakaria, Ghazali Mohd Yusoff, Raus Sharif
(Civil Procedure; Land Law; Words And Phrases - Whether court may order entry of registrar's caveat in absence of final judgment - Meaning of "proceedings") [2011] 1 CLJ 133 [FC]

COURT OF APPEAL

Sang Lee Company Sdn Bhd v. Suburamaniam Mayawan & Ors
Low Hop Bing, Hishamudin Mohd Yunus, Zaharah Ibrahim
(Contract; Evidence - Proof of oral agreement - Adverse inference on failure to call material witness) [2011] 1 CLJ 167 [CA]

HIGH COURT

Josephine Anne Foo v. Messrs Jayasuriya Kah & Co
Abdul Rahman Sebli
(Civil Procedure - Whether right of appeal overrides non-compliance with Registrar's order) [2011] 1 CLJ 197 [HC]

Muralitharan Naraisamy & Anor v. Ahmad Nowawi Saad
Ho Mooi Ching
(Road Traffic; Damages - Negligence - Personal injuries - Quantum) [2011] 1 CLJ 201 [HC]

Norman Disney & Young v. Affifi Hj Hassan
Lee Swee Seng
(Civil Procedure; Contract - Striking out - Action based on contracts with unlawful objects and/or consideration) [2011] 1 CLJ 210 [HC]

Suzana Md Aris v. DSP Ishak Hussain & Ors
Lee Swee Seng
(Civil Procedure; Constitutional Law; Damages; Tort; Words And Phrases - Death of victim in police custody - Negligence - Fundamental liberties - "enshrined" in s. 2 Human Rights Commission of Malaysia Act 1999 - Dependency claim - Aggravated damages not specifically pleaded) [2011] 1 CLJ 226 [HC]

Teo Ka Fook v. Loo Chiat Hui
Rhodzariah Bujang
(Family Law - Divorce - Petition - Domicile) [2011] 1 CLJ 247 [HC]

Wu Siew Yong v. Pulau Pinang Clinic Sdn Bhd & Anor
Chew Soo Ho
(Tort - Negligence - Medical negligence) [2011] 1 CLJ 255 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Appeal - Right of appeal - Appeal against Deputy Registrar's order - Whether right of appeal overrides non-compliance with Registrar's order within stipulated time - Rules of the High Court 1980, O. 23 r. 1 (a), O. 56 r. 1
Josephine Anne Foo v. Messrs Jayasuriya Kah & Co
(Abdul Rahman Sebli JC) [2011] 1 CLJ 197 [HC]

Costs - Security for costs - Failure to furnish within stipulated time - Whether non-compliance intentional and contumelious - Whether plaintiff's right of appeal overrides non-compliance - Rules of the High Court 1980, O. 23 r. 1 (a), O. 56 r. 1
Josephine Anne Foo v. Messrs Jayasuriya Kah & Co
(Abdul Rahman Sebli JC) [2011] 1 CLJ 197 [HC]

Damages - Aggravated damages - Aggravated damages not specifically pleaded by plaintiff - Whether plaintiff's plea for general damages sufficient - Whether court entitled to award aggravated damages if pleaded and proved facts justified such award
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

Damages - Aggravated damages - Death of victim whilst in police custody - Whether aggravated damages recoverable by dependants - Whether aggravated damages reflected court's and society's abhorrence - Whether aggravated damages reflected public's negative reaction to apathy, abuse and abdication of duty by police
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

Damages - Assessment of damages - Appeal against assessment by registrar - Whether judge ought to be slow to disturb such assessment
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

Jurisdiction - Court of Appeal - Incidental directions and interim orders - Application made to Court of Appeal for interim extension of private caveat pending hearing of appeal - Court of Appeal ordering entry of registrar's caveat and granting injunction instead - Whether Court of Appeal could order entry of registrar's caveat in absence of a final judgment - Whether Court of Appeal could make orders not prayed for - Whether orders rendered appeal nugatory - Whether orders granted justifiable under Courts of Judicature Act 1964, s. 44 - Whether incidental orders led to miscarriage of justice
Taipan Focus Sdn Bhd v. Tunku Mudzaffar Tunku Mustapha
(Arifin Zakaria CJ (Malaya), Ghazali Mohd Yusoff, Raus Sharif FCJJ) [2011] 1 CLJ 133 [FC]

Striking out - Action - Plaintiff's action against defendant based on contracts with unlawful objects and/or consideration - Defendant applying to strike out action - Pointless for plaintiff to go to trial
Norman Disney & Young v. Affifi Hj Hassan
(Lee Swee Seng JC) [2011] 1 CLJ 210 [HC]

CONSTITUTIONAL LAW

Fundamental liberties - Right to life and liberty - Deprivation of such fundamental rights - Whether 'vindicatory damages' recoverable
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

Fundamental liberties - Right to life and liberty - Person deprived of medical care and attention whilst in police custody - Whether such deprivation a deprivation of person's right to life and liberty - Whether such deprivation tantamount to torture, cruel and inhumane treatment - Whether aggravated and exemplary damages recoverable for such oppressive, arbitrary or unconstitutional action by servants of the state - Federal Constitution, Part II - Universal Declaration of Human Rights 1948, arts. 3, 5
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

CONTRACT

Illegality - Contravention of law - Contract attempting to circumvent requirements of statute - Such contract unlawful - Approach of court when illegality suspected
Norman Disney & Young v. Affifi Hj Hassan
(Lee Swee Seng JC) [2011] 1 CLJ 210 [HC]

Illegality - Public policy - 'Ali Baba' type of companies - Contracts to establish such companies illegal and contrary to public policy
Norman Disney & Young v. Affifi Hj Hassan
(Lee Swee Seng JC) [2011] 1 CLJ 210 [HC]

Oral agreement - Proof of - Plaintiffs' claim of right to harvest oil palm fruits on estate land denied by defendant owner - Whether sufficient evidence of such oral agreement existed
Sang Lee Company Sdn Bhd v. Suburamaniam Mayawan & Ors
(Low Hop Bing, Hishamudin Mohd Yunus, Zaharah Ibrahim JJCA) [2011] 1 CLJ 167 [CA]

Void contract - Consideration unlawful - Contract attempting to circumvent requirements of statute - Such contract void under
s. 24(a) and (b) of Contracts Act 1950 - Impossible to sever unlawful part of contract from lawful part - Such severability prohibited under s. 25 of Contracts Act 1950 - Contracts Act 1950, ss. 24, 25
Norman Disney & Young v. Affifi Hj Hassan
(Lee Swee Seng JC) [2011] 1 CLJ 210 [HC]

DAMAGES

Death - Dependency claim - Death of victim whilst in police custody - Death caused by police negligence - Children of deceased victim of tender age and in their formative years - Whether award of RM200,000 for each of victim's two children reasonable
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

Death - Dependency claim - Death of husband and father due to a breach of his fundamental liberty and basic human rights - Whether dependants entitled to recover aggravated and exemplary damages - Civil Law Act 1956, s. 7
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

Personal injuries - Quantum - Closed fracture of the distal end of left radius/ulna styloid - Fracture of right radius - Loss of earnings - Living expenses - Assessment on quantum by trial judge - Whether correct - Whether appeal allowed
Muralitharan Naraisamy & Anor v. Ahmad Nowawi Saad
(Ho Mooi Ching JC) [2011] 1 CLJ 201 [HC]

EVIDENCE

Adverse inference - Failure to call material witness - Whether presumption arose
Sang Lee Company Sdn Bhd v. Suburamaniam Mayawan & Ors
(Low Hop Bing, Hishamudin Mohd Yunus, Zaharah Ibrahim JJCA) [2011] 1 CLJ 167 [CA]

FAMILY LAW

Divorce - Petition - Domicile - Wife residing in Australia - Whether wife abandoned domicile of dependence in Malaysia - Whether court had jurisdiction to hear petition - Whether Certificate of Divorce issued by Australian court recognised
Teo Ka Fook v. Loo Chiat Hui
(Rhodzariah Bujang JC) [2011] 1 CLJ 247 [HC]

LAND LAW

Caveats - Registrar's caveat - Whether court may order entry of registrar's caveat in cases where extension of private caveat cannot be granted - National Land Code, s. 328
Taipan Focus Sdn Bhd v. Tunku Mudzaffar Tunku Mustapha
(Arifin Zakaria CJ (Malaya), Ghazali Mohd Yusoff, Raus Sharif FCJJ) [2011] 1 CLJ 133 [FC]

ROAD TRAFFIC

Negligence - Collision between motorcycle and motorcar - Motorcycle collided into rear of car - Circumstances leading to collision - Whether defendant driver abruptly stopped car resulting in collision - Whether defendant liable - Trial judge's finding of no liability - Whether correct - Whether appeal allowed
Muralitharan Naraisamy & Anor v. Ahmad Nowawi Saad
(Ho Mooi Ching JC) [2011] 1 CLJ 201 [HC]

TORT

Damages - Negligence - Death of victim whilst in police custody - Death of victim due to negligence of police in providing medical care and attention - Whether aggravated and exemplary damages recoverable
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

Negligence - Medical negligence - Duty of care to patient - Whether breached in doctor's conduct of laparoscopy and doctor's failure to perform open surgery - Whether risk and benefit of open surgery considered
Wu Siew Yong v. Pulau Pinang Clinic Sdn Bhd & Anor
(Chew Soo Ho JC) [2011] 1 CLJ 255 [HC]

Negligence - Medical negligence - Negligent acts of specialist doctor - Whether hospital vicariously liable
Wu Siew Yong v. Pulau Pinang Clinic Sdn Bhd & Anor
(Chew Soo Ho JC) [2011] 1 CLJ 255 [HC]

Negligence - Medical negligence - Surgical procedure - Laparoscopic ovarian cystectomy - Failure to remove cysts - Administration of Zoladex injections - Whether defendant negligent - Whether plaintiff proved presence of cysts at time of surgery - Whether Zoladex injections a recognised and accepted treatment for plaintiff's condition
Wu Siew Yong v. Pulau Pinang Clinic Sdn Bhd & Anor
(Chew Soo Ho JC) [2011] 1 CLJ 255 [HC]

WORDS AND PHRASES

'enshrined' - Human Rights Commission of Malaysia Act 1999, s. 2
Suzana Md Aris v. DSP Ishak Hussain & Ors
(Lee Swee Seng JC) [2011] 1 CLJ 226 [HC]

"Proceedings" - Meaning of - Whether must refer to appeal pending before Court of Appeal - Courts of Judicature Act 1964, s. 44
Taipan Focus Sdn Bhd v. Tunku Mudzaffar Tunku Mustapha
(Arifin Zakaria CJ (Malaya), Ghazali Mohd Yusoff, Raus Sharif FCJJ) [2011] 1 CLJ 133 [FC]

CASE OF THE WEEK

WU SIEW YING v. GUNUNG TUNGGAL QUARRY & CONSTRUCTION SDN BHD & ANOR

TORT: Negligence - Causation - Link between wrongdoing and damage caused - Burden of proving link on injured party - Several causes or factors causing harm or damage - The 'but for' test not suitable - The 'material contribution' test appropriate - 'Material contribution', question of degree for court to decide on - Trifling contributions not 'material contribution'

TORT: Negligence - Duty of care - Quarrying - Collapse of limestone hill on quarry destroying claimant's property on adjacent land - Collapse materially caused by vibrations due to blasting and quarrying work of quarry operator - Whether quarry operator owed claimant a duty of care

TORT: Negligence - Independent contractor - Employer not responsible for the torts committed by independent contractor

TORT: Negligence - Standard of care - Quarry operator - Whether standard of care required of quarry operator the standard of a professional quarry operator - Objective standard relating to type of activity rather than category of actor applicable

CLJ Bulletin
To Subscribe/Unsubscribe go to http://www.cljlaw.com/?page=bulletinsubscribe

NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 714	Suruhanjaya Pengangkutan Awam Darat Act 2010	3 June 2010 [PU(B) 262/2010]	- Nil -
ACT 715	Land Public Transport Act 2010	Not Yet In Force	- Nil -
ACT 716	Wildlife Conservation Act 2010	28 December 2010 [PU(B) 545/2010]	- Nil -
ACT 717	Perbadanan Stadium Malaysia Act 2010	Not Yet In Force	- Nil -
ACT 718	Agensi Inovasi Malaysia Act 2010	Not Yet In Force	- Nil -