Bulletin_05

CLJ Bulletin, Issue 2011, Vol 5

11 February 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 1 (Part 3) 2011
	c) CLJ Volume 1 (Part 4) 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 Assistance 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

2. Articles

a) Legal Network Series Articles

1. From The Children Act 1908 To Today - Any Progress For Children In Court? ^{[Read
excerpt]}
By The RT Hon Lord Justice Thomas*

2. Protection Of Database Under Actionable Torts** ^{[Read
excerpt]}
By Nazura Abdul Manap*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 780 [HC] Perwira Affin Bank Berhad v. Agrimal Marketing Sdn Bhd & Ors

CONTRACT: Guarantee - Whether the guarantees signed by 3^rd defendant could be enforced - 3^rd defendant contending that he was told they would not be enforced against him - Guarantors liability expressly contained in guarantee - Whether 3^rd defendant's evidence admissible to vary or contradict terms of guarantee - Evidence Act 1950, s. 92

CONTRACT: Guarantee - Construction - Modification of security - Whether discharges guarantors - Plaintiff failed to apply proceeds of sale of charged property sequentially to discharge the charges in the order in which they were created - Whether misapplication of proceeds by plaintiff

CONTRACT: Interest - Construction - Letter of Offer requiring all variation of interest to be communicated to borrower - Plaintiff failing to tender notice evidencing variation of interest - Whether plaintiff entitled to claim interest rate as varied

EVIDENCE: Conclusive evidence clause - Guarantee - Whether plaintiff proved the amount due and owing under the facility - Plaintiff produced summaries of computations - Whether 3^rd defendant established manifest error in certificate

[2009] 1 LNS 782 [HC] Watinah Mad Kartam v. Dr KS Sarvananthar

CIVIL PROCEDURE: Striking out- Statement of Claim - Rules of the High Court 1980, O. 18 r. 19 - Whether plaintiff's claim statute barred - Sabah Limitation Ordinance, s. 18 - Whether time only began to run after plaintiff became aware of defendant's act of concealing from her that abdominal pack had been left inside her abdomen - Whether fit and proper case for striking out

CIVIL PROCEDURE: Amendment - Pleadings - application for amendment to include particulars of fraud - Plaintiff's amendment application filed after defendant' striking out application - Whether plaintiff barred from raising issue of fraud

[2009] 1 LNS 832 [HC] PB Securities Sdn Bhd v. Lee Kwee Heng

SECURITIES: Remisier - Relationship with stockbroking company - Claim for losses in defendant's clients' margin accounts - Failure by defendant to settle the outstanding amount under clients' margin accounts and/or to top-up his build-up account to rectify the deficit position - Plaintiff terminating defendant's services - Whether termination valid - Whether defendant bound by his indemnities given to the plaintiff under the Remisier's Agreement - Whether plaintiff breached the Remisier's Agreement - Whether defendant was his clients' or plaintiff's agent - Whether transactions under the margin accounts were tainted with illegality by virtue of contravention of Sections 9B, 38(2), 84, 85 & 87A of the Securities Industry Act 1983

[2009] 1 LNS 834 [HC] Chong Wan Ping & Anor v. Shamshudeen Hj Mohd Yunus

CONTRACT: Fraud - Fraud claim in civil proceedings - Requirement for contemporaneous police report to be lodged - Plaintiffs failing to lodge police report against defendant - Whether plaintiff's claim of fraud can be sustained

CONTRACT: Misrepresentation - Sale and Purchase of stake in defendant's companies - Plaintiffs acting on the Sale and Purchase Agreement despite misgivings and contributing to the working capital after receiving the due diligence audit - Whether plaintiff estopped from claiming the sum of USD 2.1 million - Whether any misrepresentation by defendant

[2009] 1 LNS 843 [HC] Keep Good Feel Corporation Sdn Bhd & Anor v. Pharma World (M) Sdn Bhd & Ors

TRADE MARKS: Infringement of registered trade mark and passing off - Plaintiff maintaining its product is Lady Gold with 3 kanji characters - Registration of trademark of 2 kanji characters - Whether there was act and/or conspiracy to pass off - Whether there was similarity between the packaging and products of the plaintiffs and defendants - Whether similarity in terms of design, colour and name - Whether confusion and deception created - Whether plaintiffs proved establishment of goodwill and reputation of the products at all times

CITATION	TITLE	SUBJECT
[2009] 1 LNS 780 [HC]	Perwira Affin Bank Berhad v. Agrimal Marketing Sdn Bhd & Ors	CONTRACT: Guarantee - Whether the guarantees signed by 3^rd defendant could be enforced - 3^rd defendant contending that he was told they would not be enforced against him - Guarantors liability expressly contained in guarantee - Whether 3^rd defendant's evidence admissible to vary or contradict terms of guarantee - Evidence Act 1950, s. 92 CONTRACT: Guarantee - Construction - Modification of security - Whether discharges guarantors - Plaintiff failed to apply proceeds of sale of charged property sequentially to discharge the charges in the order in which they were created - Whether misapplication of proceeds by plaintiff CONTRACT: Interest - Construction - Letter of Offer requiring all variation of interest to be communicated to borrower - Plaintiff failing to tender notice evidencing variation of interest - Whether plaintiff entitled to claim interest rate as varied EVIDENCE: Conclusive evidence clause - Guarantee - Whether plaintiff proved the amount due and owing under the facility - Plaintiff produced summaries of computations - Whether 3^rd defendant established manifest error in certificate
[2009] 1 LNS 782 [HC]	Watinah Mad Kartam v. Dr KS Sarvananthar	CIVIL PROCEDURE: Striking out- Statement of Claim - Rules of the High Court 1980, O. 18 r. 19 - Whether plaintiff's claim statute barred - Sabah Limitation Ordinance, s. 18 - Whether time only began to run after plaintiff became aware of defendant's act of concealing from her that abdominal pack had been left inside her abdomen - Whether fit and proper case for striking out CIVIL PROCEDURE: Amendment - Pleadings - application for amendment to include particulars of fraud - Plaintiff's amendment application filed after defendant' striking out application - Whether plaintiff barred from raising issue of fraud
[2009] 1 LNS 832 [HC]	PB Securities Sdn Bhd v. Lee Kwee Heng	SECURITIES: Remisier - Relationship with stockbroking company - Claim for losses in defendant's clients' margin accounts - Failure by defendant to settle the outstanding amount under clients' margin accounts and/or to top-up his build-up account to rectify the deficit position - Plaintiff terminating defendant's services - Whether termination valid - Whether defendant bound by his indemnities given to the plaintiff under the Remisier's Agreement - Whether plaintiff breached the Remisier's Agreement - Whether defendant was his clients' or plaintiff's agent - Whether transactions under the margin accounts were tainted with illegality by virtue of contravention of Sections 9B, 38(2), 84, 85 & 87A of the Securities Industry Act 1983
[2009] 1 LNS 834 [HC]	Chong Wan Ping & Anor v. Shamshudeen Hj Mohd Yunus	CONTRACT: Fraud - Fraud claim in civil proceedings - Requirement for contemporaneous police report to be lodged - Plaintiffs failing to lodge police report against defendant - Whether plaintiff's claim of fraud can be sustained CONTRACT: Misrepresentation - Sale and Purchase of stake in defendant's companies - Plaintiffs acting on the Sale and Purchase Agreement despite misgivings and contributing to the working capital after receiving the due diligence audit - Whether plaintiff estopped from claiming the sum of USD 2.1 million - Whether any misrepresentation by defendant
[2009] 1 LNS 843 [HC]	Keep Good Feel Corporation Sdn Bhd & Anor v. Pharma World (M) Sdn Bhd & Ors	TRADE MARKS: Infringement of registered trade mark and passing off - Plaintiff maintaining its product is Lady Gold with 3 kanji characters - Registration of trademark of 2 kanji characters - Whether there was act and/or conspiracy to pass off - Whether there was similarity between the packaging and products of the plaintiffs and defendants - Whether similarity in terms of design, colour and name - Whether confusion and deception created - Whether plaintiffs proved establishment of goodwill and reputation of the products at all times

b. CLJ Volume 1 (Part 3) 2011

COURT

FEDERAL COURT

Aedy Osman v. PP
Alauddin Mohd Sheriff, Zulkefli Makinudin, James Foong (Criminal Law - Dangerous Drugs Act 1952 - Section 39B(2)) [2011] 1 CLJ 273 [FC]

COURT OF APPEAL

Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd
Low Hop Bing, Hishamudin Mohd Yunus, Clement Skinner (Civil Procedure; Trade And Industry - Summary judgment - Arguable issues - Illegality - Forestry - Licence to take timber) [2011] 1 CLJ 285 [CA]

Kumar Gurusamy v. Koperasi Jimat-Cermat Dan Pinjaman Keretapi Bhd
Zaleha Zahari, Zainun Ali, Zaharah Ibrahim (Administrative Law; Statutory Interpretation; Unincorporated Associations - Rules of natural justice - Right to be heard - Maxims of construction - Societies - Removal of membership) [2011] 1 CLJ 318 [CA]

Naza Motor Trading Sdn Bhd v. Malaysian Motor Insurance Pool
Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali (Insurance - Motor Insurance - Loss of car) [2011] 1 CLJ 332 [CA]

Thanabalan Krishnan lwn. PP
Tengku Baharudin Shah, Hishamudin Mohd Yunus, Zaharah Ibrahim (Prosedur Jenayah - Rayuan - Sabitan dan hukuman) [2011] 1 CLJ 343 [CA]

HIGH COURT

Central Coldstorage Kuching Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri
Ravinthran Paramaguru (Administrative Law - Remedies - Certiorari) [2011] 1 CLJ 353 [HC]

PP v. Uthaya Kumar Ponnusamy & Ors
Abang Iskandar (Criminal Procedure - Charge - Defective charge - Failure to annex transcript in Tamil language) [2011] 1 CLJ 360 [HC]

Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
Ravinthran Paramaguru (Contract; Insurance; Shipping And Navigation - Warranties - Marine insurance - Policy - Sue and labour clause) [2011] 1 CLJ 375 [HC]

Three V Marketing Sdn Bhd v. Heng Capital Industries (M) Sdn Bhd; The Registrar Of Industrial Designs (Interested Party)
Azahar Mohamed (Patents; Words And Phrases - Industrial Designs - Registered Designs - 'new') [2011] 1 CLJ 394 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Certiorari - Application to quash respondent's notices of additional assessment - Whether respondent lacked jurisdiction or statutory power to issue additional notices - Whether arguable case disclosed - Rules of the High Court 1980, O. 53 r. 3
Central Coldstorage Kuching Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri
(Ravinthran Paramaguru JC) [2011] 1 CLJ 353 [HC]

Rules of natural justice - Right to be heard - By-law of co-operative society providing for removal of member - By-law silent as to member's right of being heard before removal of membership - By-law not expressly excluding member the opportunity of being heard - Whether member had a right to be heard before being removed from membership - Whether rules of natural justice applicable
Kumar Gurusamy v. Koperasi Jimat-Cermat Dan Pinjaman Keretapi Bhd
(Zaleha Zahari, Zainun Ali, Zaharah Ibrahim JJCA) [2011] 1 CLJ 318 [CA]

CIVIL PROCEDURE

Summary judgment - Application for - Whether burden on applicant - Whether plaintiff's action disclosed a reasonable cause of action - Whether plaintiff's action 'scandalous, frivolous or vexatious' - Whether plaintiff's action an abuse of the process of court - Rules of the High Court 1980, O. 18 r. 19(1)(a), (b), (d)
Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd
(Low Hop Bing, Hishamudin Mohd Yunus, Clement Skinner JJCA) [2011] 1 CLJ 285 [CA]

Summary judgment - Arguable issues - Illegality - Whether issue of illegality ought to be argued and resolved after a full trial - Rules of the High Court 1980, O. 18 r. 19(1)(a), (b), (d)
Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd
(Low Hop Bing, Hishamudin Mohd Yunus, Clement Skinner JJCA) [2011] 1 CLJ 285 [CA]

CONTRACT

Terms - Construction of - Express warranties in marine insurance policy - Whether warranties breached
Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2011] 1 CLJ 375 [HC]

Terms - Warranties - Express warranties - Marine insurance policy - Warranties not inserted in cover note to marine insurance policy - Warranties inserted in policy proper - Whether attention of insured drawn to such warranties when negotiating policy of insurance - Whether warranties incorporated into the policy of insurance - Whether such policy of insurance subject to the warranties - Whether warranties breached
Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2011] 1 CLJ 375 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(2) - Trafficking in cannabis - Convicted and sentenced to death - Appeal against - Whether trial judge erred in finding appellant had possession of the drugs and necessary knowledge of it - Whether appellant succeeded in casting reasonable doubt on the prosecution's case to warrant acquittal
Aedy Osman v. PP
(Alauddin Mohd Sheriff PCA, Zulkefli Makinudin, James Foong FCJJ) [2011] 1 CLJ 273 [FC]

CRIMINAL PROCEDURE

Charge - Defective charge - Failure to annex a transcript in Tamil language of speeches containing alleged seditious words - Whether there was a legal obligation to do so - Whether such omission caused ambiguity - Whether charge ruled as groundless ab initio - Whether Sessions Court Judge erred when rendering the charge defective and liable to be dismissed - Sedition Act 1948, s. 4(1)
PP v. Uthaya Kumar Ponnusamy & Ors
(Abang Iskandar JC) [2011] 1 CLJ 360 [HC]

INSURANCE

Marine insurance - Express warranties - Warranties contained in policy proper but not in cover note - Whether attention of insured drawn to warranties when negotiating the policy - Whether such warranties properly incorporated into the policy - Whether such warranties breached
Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2011] 1 CLJ 375 [HC]

Marine insurance - Sue and labour clause - Salvage costs - Salvage agreement on 'no cure no pay' basis - Salvage unsuccessful - Invoices, bills and receipts unverified - Invoices, bills and receipts inconsistent with claim for salvage costs - Whether such costs recoverable under the sue and labour clause - Whether insured had proved salvage costs
Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2011] 1 CLJ 375 [HC]

Motor insurance - Loss of car - Car stolen while being test driven by potential buyer - Whether events leading to the loss of the car constituted theft or cheating - Whether defendant could deny liability under the insurance policy - Penal Code, s. 378
Naza Motor Trading Sdn Bhd v. Malaysian Motor Insurance Pool
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JCA) [2011] 1 CLJ 332 [CA]

Patents

Industrial designs - Registered designs - Revocation of registration, application for - Whether there was prior disclosure to public - Disclosure to public, how effected - Industrial Designs Act 1996 ss. 12 & 27
Three V Marketing Sdn Bhd v. Heng Capital Industries (M) Sdn Bhd; The Registrar Of Industrial Designs (Interested Party)
(Azahar Mohamed J) [2011] 1 CLJ 394 [HC]

Industrial designs - Registered designs - Whether design was 'new' within meaning of s. 12 of the Industrial Designs Act 1996 - Design similar to earlier registered design but with differences - How differences ascertained - Industrial Designs Act 1996 s. 12
Three V Marketing Sdn Bhd v. Heng Capital Industries (M) Sdn Bhd; The Registrar Of Industrial Designs (Interested Party)
(Azahar Mohamed J) [2011] 1 CLJ 394 [HC]

TRADE AND INDUSTRY

Forestry - Licence to take timber - Licence under Forest Enactment 1968 (Sabah) - Whether licence under s. 15 or under s. 24 of Enactment - Assignment of rights - Whether illegal - Forest Enactment 1968 (Sabah), ss. 15, 24
Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd
(Low Hop Bing, Hishamudin Mohd Yunus, Clement Skinner JJCA) [2011] 1 CLJ 285 [CA]

SHIPPING AND NAVIGATION

Marine insurance - Policy - Sue and labour clause - Salvage costs - Salvage agreement on 'no cure no pay' basis - Salvage unsuccessful - Invoices, bills and receipts unverified - Invoices, bills and receipts inconsistent with claim for salvage costs - Whether such costs recoverable under the sue and labour clause - Whether insured had proved salvage costs
Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2011] 1 CLJ 375 [HC]

Marine insurance - Policy - Warranties - Express warranties - Warranties not inserted in cover note to policy but inserted in policy proper - Whether insured's attention had been drawn to such warranties when negotiating the policy - Whether such policy of insurance subject to the warranties
Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2011] 1 CLJ 375 [HC]

Merchant shipping - Master of ship - Competency of - Master certified under Sarawak Merchant Shipping Ordinance 1960 - Whether such master bound by revalidation requirements under the MSTC Rules 1999 made under West Malaysian Merchant Shipping Ordinance 1952
Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2011] 1 CLJ 375 [HC]

Merchant shipping - Master, officers and crew - Warranty in marine insurance policy requiring vessel to be properly officered and manned - Whether such warranty required master's revalidation of certificate of competency
Soon Hai Kee Shipping Sdn Bhd v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2011] 1 CLJ 375 [HC]

STATUTORY INTERPRETATION

Aids to construction - Maxims of construction - 'Expressio unius est exclusio alterius' - Application of - Construction of by-laws - By-laws inconsistent with principal Act - Whether maxim applicable
Kumar Gurusamy v. Koperasi Jimat-Cermat Dan Pinjaman Keretapi Bhd
(Zaleha Zahari, Zainun Ali, Zaharah Ibrahim JJCA) [2011] 1 CLJ 318 [CA]

UNINCORPORATED ASSOCIATIONS

Societies - Co-operative Societies - Membership - By-law of co-operative society providing for removal of member - By-law silent as to member's right of being heard before removal of membership - By-law not expressly excluding member the opportunity of being heard - Whether member had a right to be heard before being removed from membership - Whether rules of natural justice applicable
Kumar Gurusamy v. Koperasi Jimat-Cermat Dan Pinjaman Keretapi Bhd
(Zaleha Zahari, Zainun Ali, Zaharah Ibrahim JJCA) [2011] 1 CLJ 318 [CA]

Words and Phrases

'new' - Industrial Designs Act 1996 s. 12
Three V Marketing Sdn Bhd v. Heng Capital Industries (M) Sdn Bhd; The Registrar Of Industrial Designs (Interested Party)
(Azahar Mohamed J) [2011] 1 CLJ 394 [HC]

INDEKS PERKARA

PROSEDUR JENAYAH

Rayuan - Sabitan dan hukuman - Rayuan terhadap sabitan dan hukuman - Faktor-faktor peringanan - Sama ada dipertimbangkan oleh hakim bicara - Kanun Keseksaan, s. 326
Thanabalan Krishnan lwn. PP
(Tengku Baharudin Shah, Hishamudin Mohd Yunus, Zaharah Ibrahim HHMR) [2011] 1 CLJ 343 [CA]

c. CLJ Volume 1 (Part 4) 2011

COURT

FEDERAL COURT

Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Anor
Richard Malanjum, Hashim Yusoff, James Foong
(Tort - Negligence - Causation - Link between wrongdoing and damage caused) [2011] 1 CLJ 409 [FC]

COURT OF APPEAL

Alan Michael Rozario v. Merbok MDF Sdn Bhd
KN Segara, Abu Samah Nordin, Abdul Wahab Patail
(Contract; Legal Profession; Partnership - Illegality - Corruption - Practice of law - Stakeholder - Liabilities of partners) [2011] 1 CLJ 433 [CA]

Dr Mohd Yusof Ismail v. Hj Ismail Mohd Nor
Low Hop Bing, Ramly Ali, T Selventhiranathan
(Damages; Tort - General damages - Quantification - Defamation) [2011] 1 CLJ 445 [CA]

Hass Plantation Sdn Bhd v. Southwind Development Sdn Bhd
Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali
(Contract - Employment contract - Termination - Assessment of damages) [2011] 1 CLJ 451 [CA]

S Ashok Kandiah & Anor v. Dato' Yalumallai Muthusamy & Anor
Abdul Malik Ishak, KN Segara, Jeffrey Tan
(Tort - Defamation - Libel - Absolute privilege - Justification - Fair comment - Qualified privilege) [2011] 1 CLJ 460 [CA]

Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor
Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail
(Arbitration; Civil Procedure; Company Law; Equity - Award - Enforcement - Estoppel by election - Separate legal entity) [2011] 1 CLJ 491 [CA]

HIGH COURT

Badan Pencegah Rasuah v. Chong Chee Liong
Ravinthran Paramaguru
(Criminal Procedure - Revision - Revisionary powers of High Court - Appeal) [2011] 1 CLJ 524 [HC]

Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
Hamid Sultan Abu Backer
(Civil Procedure; Company Law - Interlocutory injunction - Directors - Removal - Meetings - Companies Act 1965, ss. 145, 158(4)) [2011] 1 CLJ 533 [HC]

SUBJECT INDEX

ARBITRATION

Award - Enforcement - Arbitration proceedings between respondents and appellant's corporate subsidiary - Appellant excluded from such arbitration proceedings - Award made in favour of respondents against appellant's corporate subsidiary - Award registered in High Court by respondents against appellant's corporate subsidiary - No representation or undertaking that appellant would honour the award - Whether unjust and abuse of court's process to enforce such award against appellant - Whether veil of incorporation ought to be lifted to attach liability on appellant
Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 491 [CA]

CIVIL PROCEDURE

Estoppel - Estoppel by election - Nature of - Application and effect of
Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 491 [CA]

Injunction - Interlocutory injunction - Application to restrain defendants from convening an Extraordinary General Meeting or implementing any resolution thereto to remove plaintiffs as directors of 3rd defendant pending disposal of suit - Whether there were serious issues to be tried - Balance of convenience - Status quo - Companies Act 1965, ss. 145, 158(4)
Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
(Hamid Sultan Abu Backer J) [2011] 1 CLJ 533 [HC]

Striking out - Action - Action to enforce arbitration award against appellant - Appellant excluded from arbitration proceedings - Award made against appellant's corporate subsidiary - Whether unjust and abuse of court's process to enforce such award against appellant - Whether action ought to be struck out
Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 491 [CA]

COMPANY LAW

Directors - Removal - Injunction - Application to restrain defendants from convening an Extraordinary General Meeting or implementing any resolution thereto to remove plaintiffs as directors of 3rd defendant pending disposal of suit - Whether there were serious issues to be tried - Balance of convenience - Status quo - Companies Act 1965, ss. 145, 158(4)
Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
(Hamid Sultan Abu Backer J) [2011] 1 CLJ 533 [HC]

Meetings - Injunction - Application to restrain defendants from convening an Extraordinary General Meeting or implementing any resolution thereto to remove plaintiffs as directors of 3rd defendant pending disposal of suit - Whether there were serious issues to be tried - Balance of convenience - Status quo - Companies Act 1965, ss. 145, 158(4)
Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
(Hamid Sultan Abu Backer J) [2011] 1 CLJ 533 [HC]

Separate legal entity - Lifting the veil of incorporation - Arbitration award made against appellant's subsidiary - Appellant not a party to the arbitration proceedings - Appellant's subsidiary a corporate body in its own right - Whether award enforceable against appellant - Whether corporate veil ought to be lifted to attach liability on appellant
Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 491 [CA]

CONTRACT

Employment contract - Termination - Defendant appointed plaintiff to develop land into an oil palm plantation - Subsequent termination of contract by defendant - Whether plaintiff had breached conditions of contract - Whether defendant's termination of contract wrong and clearly a breach - Assessment of damages
Hass Plantation Sdn Bhd v. Southwind Development Sdn Bhd
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2011] 1 CLJ 451 [CA]

Illegality - Corruption - Consultancy agreement for appointment of consultant to secure a contract with third party and to pay consultant a fee if contract is successfully secured - Whether purpose of agreement is to offer bribe - Whether consultancy agreement illegal - Whether null and void and unenforceable
Alan Michael Rozario v. Merbok MDF Sdn Bhd
(KN Segara, Abu Samah Nordin, Abdul Wahab Patail JJCA) [2011] 1 CLJ 433 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal to High Court - Notes of proceedings and grounds of judgment of lower court unavailable - Whether High Court can still exercise its revisionary powers - Whether a grave injustice to order a retrial - Factors to be considered - Criminal Procedure Code, s. 316
Badan Pencegah Rasuah v. Chong Chee Liong
(Ravinthran Paramaguru JC) [2011] 1 CLJ 524 [HC]

Criminal revision - Revisionary jurisdiction of High Court - Appeal - Notes of proceedings and grounds of judgment of lower court unavailable - Whether High Court can still exercise its revisionary powers - Whether a grave injustice to order a retrial - Factors to be considered - Criminal Procedure Code, s. 316
Badan Pencegah Rasuah v. Chong Chee Liong
(Ravinthran Paramaguru JC) [2011] 1 CLJ 524 [HC]

Jurisdiction of court - High Court - Appeal - Notes of proceedings and grounds of judgment of lower court unavailable - Whether High Court can still exercise its revisionary powers - Whether a grave injustice to order a retrial - Factors to be considered - Criminal Procedure Code, s. 316
Badan Pencegah Rasuah v. Chong Chee Liong
(Ravinthran Paramaguru JC) [2011] 1 CLJ 524 [HC]

Revision - Revisionary powers of High Court - Appeal - Notes of proceedings and grounds of judgment of lower court unavailable - Whether High Court can still exercise its revisionary powers - Whether a grave injustice to order a retrial - Factors to be considered - Criminal Procedure Code, s. 316
Badan Pencegah Rasuah v. Chong Chee Liong
(Ravinthran Paramaguru JC) [2011] 1 CLJ 524 [HC]

DAMAGES

General damages - Quantification - Defamation - Whether general damages in a defamation action should not be quantified and should instead be left at large - Whether decision of Court of Appeal in Skrine & Co v. MBF Capital Bhd & Anor & Other Appeals needs to be reviewed
Dr Mohd Yusof Ismail v. Hj Ismail Mohd Nor
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 1 CLJ 445 [CA]

EQUITY

Estoppel - Estoppel by election - Nature of - Application and effect of
Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 491 [CA]

LEGAL PROFESSION

Practice of law - Partnerships between solicitors - Partners in charge of separate branches - Partners in a firm jointly and severally liable for acts of each other executed in course of their vocation - Whether act done in course of firm's business - Subjective intention of partners irrelevant
Alan Michael Rozario v. Merbok MDF Sdn Bhd
(KN Segara, Abu Samah Nordin, Abdul Wahab Patail JJCA) [2011] 1 CLJ 433 [CA]

Stakeholder - Duty to return stakeholder monies - Failure by legal firm to return stakeholders monies upon cancellation of intended transaction - Whether partners in breach of undertaking to return stakeholder monies - Whether letter of undertaking a forgery - Whether payee entitled to return of stakeholder monies
Alan Michael Rozario v. Merbok MDF Sdn Bhd
(KN Segara, Abu Samah Nordin, Abdul Wahab Patail JJCA) [2011] 1 CLJ 433 [CA]

PARTNERSHIP

Liabilities of partners - Legal firm - Partners in a firm jointly and severally liable for acts of each other executed in course of their vocation - Partnership Act 1961
Alan Michael Rozario v. Merbok MDF Sdn Bhd
(KN Segara, Abu Samah Nordin, Abdul Wahab Patail JJCA) [2011] 1 CLJ 433 [CA]

TORT

Damages - Defamation - Quantification - Whether general damages in a defamation action should not be quantified and should instead be left at large - Whether decision of Court of Appeal in Skrine & Co v. MBF Capital Bhd & Anor & Other Appeals needs to be reviewed
Dr Mohd Yusof Ismail v. Hj Ismail Mohd Nor
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 1 CLJ 445 [CA]

Defamation - Libel - Absolute privilege - Advocate & solicitor writing letter to court complaining about chambering student having misled court - Chambering student misleading and lying to court about his actual occupation - Whether letter published in connection with judicial proceedings - Whether duty of advocate & solicitor to write the letter - Whether defence of absolute privilege established
S Ashok Kandiah & Anor v. Dato' Yalumallai Muthusamy & Anor
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 1 CLJ 460 [CA]

Defamation - Libel - Fair comment - Advocate & solicitor writing letter to court complaining about chambering student having misled court - Chambering student misleading and lying to court about his actual occupation - Whether letter constituted fair comment on a matter of public interest - Whether comment made in honest belief of its truth - Whether activated by malice - Whether defence of fair comment established
S Ashok Kandiah & Anor v. Dato' Yalumallai Muthusamy & Anor
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 1 CLJ 460 [CA]

Defamation - Libel - Justification - Advocate & solicitor writing letter to court complaining about chambering student having misled court - Chambering student misleading and lying to court about his actual occupation - Whether truth of contents of letter established - Whether defence of justification established
S Ashok Kandiah & Anor v. Dato' Yalumallai Muthusamy & Anor
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 1 CLJ 460 [CA]

Defamation - Libel - Qualified privilege - Advocate & solicitor writing letter to court complaining about chambering student having misled court - Chambering student misleading and lying to court about his actual occupation - Whether duty of advocate & solicitor to write the letter - Whether improper motive in writing letter - Whether defence of qualified privilege established
S Ashok Kandiah & Anor v. Dato' Yalumallai Muthusamy & Anor
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 1 CLJ 460 [CA]

Defamation - Publication of letter - Whether defamatory - Advocate & solicitor writing letter to court complaining about chambering student having misled court - Chambering student misleading and lying to court about his actual occupation - Defences - Truth - Justification - Absolute privilege - Qualified privilege - Whether established
S Ashok Kandiah & Anor v. Dato' Yalumallai Muthusamy & Anor
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 1 CLJ 460 [CA]

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'
Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, James Foong FCJJ) [2011] 1 CLJ 409 [FC]

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
Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, James Foong FCJJ) [2011] 1 CLJ 409 [FC]

Negligence - Independent contractor - Employer not responsible for the torts committed by independent contractor
Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, James Foong FCJJ) [2011] 1 CLJ 409 [FC]

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
Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, James Foong FCJJ) [2011] 1 CLJ 409 [FC]

CASE OF THE WEEK

ONG THEAN CHYE & ORS v. TIEW CHOY CHAI & ANOR

CIVIL PROCEDURE: Locus standi - Action for breach of contract - Agreement a sham and/or illegal agreement - Plaintiffs having no locus standi to sue on such agreement

CONTRACT: Illegality - Contravention of law - Agreement for payment of brokerage commission - Brokers not registered agents under the Valuers, Appraisers and Estate Agents Act 1981 - Fees charged not according to scheduled fees - Agreement for payment of professional fees and charges illegal and/or a sham - Agreement for payment of professional fees and charges unenforceable and void - Stamping of such agreement of no consequence - Valuers, Appraisers and Estate Agents Act 1981, s. 22C(1)(d) - Valuers, Appraisers and Estate Agents Rules 1986, r. 48, sch 7 - Contracts Act 1950, s. 24(a), (b)

CONTRACT: Privity - Brokerage commission - Agreement for commission made between respondents and third appellant - Claim for unpaid commission made against all three appellants - No privity of contract between respondents and the first and second appellants - Claim against first and second respondents frivolous

LAND LAW: Sale of land - Broker's commission - Brokers not registered agents under the Valuers, Appraisers and Estate Agents Act 1981 - Fees charged not according to scheduled fees - Agreement for payment of professional fees and charges illegal and/or a sham - Agreement for payment of professional fees and charges unenforceable and void - Stamping of such agreement of no consequence - Valuers, Appraisers and Estate Agents Act 1981, s. 22C(1)(d) - Valuers, Appraisers and Estate Agents Rules 1986, r. 48, sch. 7 - Contracts Act 1950, s. 24(a), (b)

PROFESSIONS: Valuers, Appraisers and Estate Agents - Estate agency practice - Evidence of - Evidence of system - Single, isolated transaction sufficient where evidence of system established

PROFESSIONS: Valuers, Appraisers and Estate Agents - Professional fees - Claim for payment - Agents not registered agents under the Valuers, Appraisers and Estate Agents Act 1981 - Agents running estate agency practice without authority to practice - Fees charged not according to scheduled fees - Agreement for payment of professional fees and charges illegal and/or a sham - Agreement for payment of professional fees and charges unenforceable and void - Stamping of such agreement of no consequence - Valuers, Appraisers and Estate Agents Act 1981, s. 22C(1)(d) - Valuers, Appraisers and Estate Agents Rules 1986, r. 48, sch 7 - Contracts Act 1950, s. 24(a), (b)

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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 -