Bulletin_06

CLJ Bulletin, Vol 2007, Issue 06

23 February 2007

CLJ Law MALAYSIA

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New This Week -	1. CLJ February (Part 2) 2007
	2. CLJ February (Part 3) 2007

1. CLJ February (Part 2) 2007

COURT

COURT OF APPEAL

Dr ST Singam v. Lee Siew Leong
(Landlord and tenant - Recovery of possession) [2007] 1 CLJ 401

Ronald Beadle v. Hamzah HM Saman & Ors
(Civil procedure - Appeal against striking out of suit - Damages for wrongful act of withholding passport) [2007] 1 CLJ 421

HIGH COURT

Marimuthu Velappan v. Abdullah Ismail
(Damages - Loss of dependency - Statutory multiplier - Conflicting judgments by benches of Supreme Court and Court of Appeal - Proper recourse) [2007] 1 CLJ 436

Subramaniyam Subakaran v. PP
(Revision - Non-possession of valid pass - Asylum seeker) [2007] 1 CLJ 470

SUBJECT INDEX

CIVIL LAW ACT

Damages - Fatal accident - Loss of dependency - Number of years’ purchase - Deceased aged 19 years at time of death - Damages quantified by using multiplier of 7 years - Whether improper - Whether number of years’ purchase ought to be 16 - Civil Law Act 1956, ss. 7(3)(iv)(d), 28A(2)(d)(i)
Marimuthu Velappan v. Abdullah Ismail
(VT Singham J) [2007] 1 CLJ 436 [HC]

CIVIL PROCEDURE

Judicial precedent - High Court - Whether bound by decisions of Court of Appeal and Supreme/Federal Court - Conflicting decisions by differing benches of Supreme Court and Court of Appeal - Whether a bench of the Supreme Court had correctly stated the law - Recourse to take
Marimuthu Velappan v. Abdullah Ismail
(VT Singham J) [2007] 1 CLJ 436 [HC]

Striking out - Appeal against striking out of suit - Suit claiming for damages for wrongful act of withholding passport - Whether there were triable issues that warranted full hearing of claim - Income Tax Act 1967, s. 104 - Public Authorities Protection Act 1948, s. 2(a)
Ronald Beadle v. Hamzah HM Saman & Ors
(Richard Malanjum, Hashim Yusoff JJCA & Abdul Wahab Patail J) [2007] 1 CLJ 421 [CA]

CRIMINAL PROCEDURE

Revision - Criminal Procedure Code, s. 323(1) - Revision against decision of magistrate - Non-possession of valid pass - Applicant sentenced to four months’ imprisonment and one stroke of rattan - Whether applicant registered with UNCHR as asylum seeker under 1951 Convention relating to Status of Refugees and 1967 Protocol relating to Status of Refugees - Whether applicant presented himself without delay to authorities and showed good cause for illegal entry - Article 31 of the Convention relating to the Status of Refugees 1951-1967 Protocol 1951 Convention and art. 22 of Convention on Rights of Child - Whether legally binding on Malaysian courts - Article 2 of the 1951 Convention - Immigration Act 1959/63, s. 6(1) & (3) - Whether applicable - Whether court ought to interfere with decision of magistrate
Subramaniyam Subakaran v. PP
(Mohd Sofian Abd Razak JC) [2007] 1 CLJ 470 [HC]

IMMIGRATION

Non-possession of valid pass or permit - Applicant sentenced to four months’ imprisonment and one stroke of rattan - Whether applicant registered with UNCHR as asylum seeker under 1951 Convention relating to Status of Refugees and 1967 Protocol relating to Status of Refugees - Whether applicant presented himself without delay to authorities and showed good cause for illegal entry - Article 31 of the Convention relating to the Status of Refugees 1951-1967 Protocol 1951 Convention and art. 22 of Convention on Rights of Child- Whether legally binding on Malaysian courts - Article 2 of the 1951 Convention - Immigration Act 1959/63, s. 6(1) & (3) - Whether applicable - Whether court ought to interfere with decision of magistrate
Subramaniyam Subakaran v. PP
(Mohd Sofian Abd Razak JC) [2007] 1 CLJ 470 [HC]

LANDLORD AND TENANT

Recovery of possession - Notice to quit - Tenant disregarded notice and continued staying on demised premises - Unrecorded payments made by tenant to landlord - Whether for renewal of tenancy - Whether tenant exercised option to purchase
Dr ST Singam v. Lee Siew Leong
(Siti Norma Yaakob, Ahmad Fairuz & Denis Ong JJCA) [2007] 1 CLJ 401 [CA]

2. CLJ February (Part 3) 2007

COURT

COURT OF APPEAL

Ananda Dharmalingam v. Chantella Honeybee Sargon
(Family law - Children - Custody) [2007] 1 CLJ 481

Cipta Cermat Sdn Bhd v. Perbadanan Kemajuan Negeri Kedah
(Contract - Sale and purchase of land - Breach) [2007] 1 CLJ 498

Ismail Muda v. Danaharta Urus Sdn Bhd
(Land law - Charge - Possession of charged land) [2007] 1 CLJ 517

Lim Cheang Hock & Anor v. Tneh Poay Lan
(Landlord and tenant - Agreement - Construction - Relationship between parties) [2007] 1 CLJ 531

Majlis Perbandaran Pulau Pinang v. Syed Ahmed MM Gouse Mohamed
(Local government - Buildings - Demolition - Compensation) [2007] 1 CLJ 547

Ribaru Bina Sdn Bhd & Anor v. Bakti Kausar Development Sdn Bhd & Anor
(Summary judgment - Leave to defend) [2007] 1 CLJ 552

SUBJECT INDEX

CIVIL PROCEDURE

Injunction - Charge - Default by chargor - Application by chargee to injunct chargor from occupying charged land - Chargee a subsidiary of Pengurusan Danaharta Nasional Berhad - Triable issues - Pengurusan Danaharta Nasional Berhad Act 1998, s. 57(1) - National Land Code, Fifteenth Schedule
Ismail Muda v. Danaharta Urus Sdn Bhd
(Abdul Aziz Mohamad, James Foong & Zaleha Zahari JJCA) [2007] 1 CLJ 517 [CA]

Summary judgment - Leave to defend - Appeal against grant of unconditional leave to defend action - Proper mode of pleading triable issues - Whether there was lack of bona fides - Whether there were triable issues
Ribaru Bina Sdn Bhd & Anor v. Bakti Kausar Development Sdn Bhd & Anor
(Gopal Sri Ram, Suriyadi Halim Omar & Abdull Hamid Embong JJCA) [2007] 1 CLJ 552 [CA]

CONTRACT

Building contract - Claim for monies owing - Issue of payment due under progress payment certificates - Summary judgment - Whether ought to be granted - Whether there were triable issues
Ribaru Bina Sdn Bhd & Anor v. Bakti Kausar Development Sdn Bhd & Anor
(Gopal Sri Ram, Suriyadi Halim Omar & Abdull Hamid Embong JJCA) [2007] 1 CLJ 552 [CA]

Construction - Landlord and tenant - Relationship between parties - Whether one of licensor and licensee or one of landlord and tenant - Exclusive possession of subject property - Tenancy by estoppel - Breach of covenant against subletting
Lim Cheang Hock & Anor v. Tneh Poay Lan
(Gopal Sri Ram, Zaleha Zahari & Heliliah Mohd Yusof JJCA) [2007] 1 CLJ 531 [CA]

Sale and purchase of land - Breach - Claim by plaintiff for damages - Whether defendant acted in breach of contract - Whether there was a concluded contract despite want of a duly executed formal agreement - Whether termination by defendant on ground of plaintiff's failure to pay balance of purchase price lawful - Whether time of essence
Cipta Cermat Sdn Bhd v. Perbadanan Kemajuan Negeri Kedah
(Gopal Sri Ram, Zulkefli Makinudin & Abdull Hamid Embong JJCA) [2007] 1 CLJ 498 [CA]

FAMILY LAW

Children - Custody - Variation of custody order - Whether wife entitled to custody and control of children - Mental state of wife - Estoppel - Children's wishes - Material changes in circumstances - Question of access
Ananda Dharmalingam v. Chantella Honeybee Sargon
(Mokhtar Sidin, Hashim Yusoff & Zulkefli Makinudin JJCA) [2007] 1 CLJ 481 [CA]

LAND LAW

Charge - Possession of charged land - Rights of chargee - Application to take possession of charged land by subsidiary of Pengurusan Danaharta Nasional Berhad - Whether to proceed under the National Land Code - Whether requiring prior approval or order of court - Pengurusan Danaharta Nasional Berhad Act 1998, s. 57(1) - National Land Code, Fifteenth Schedule
Ismail Muda v. Danaharta Urus Sdn Bhd
(Abdul Aziz Mohamad, James Foong & Zaleha Zahari JJCA) [2007] 1 CLJ 517 [CA]

Sale of land - Breach of contract - Claim by plaintiff for damages - Whether defendant acted in breach of contract - Whether there was a concluded contract despite want of a duly executed formal agreement - Whether termination by defendant on ground of plaintiff's failure to pay balance of purchase price lawful - Whether time of essence
Cipta Cermat Sdn Bhd v. Perbadanan Kemajuan Negeri Kedah
(Gopal Sri Ram, Zulkefli Makinudin & Abdull Hamid Embong JJCA) [2007] 1 CLJ 498 [CA]

LANDLORD AND TENANT

Agreement - Construction - Relationship between parties - Whether one of licensor and licensee or one of landlord and tenant - Exclusive possession of subject property - Tenancy by estoppel - Breach of covenant against subletting
Lim Cheang Hock & Anor v. Tneh Poay Lan
(Gopal Sri Ram, Zaleha Zahari & Heliliah Mohd Yusof JJCA) [2007] 1 CLJ 531 [CA]

LOCAL GOVERNMENT

Buildings - Demolition - Compensation - Appeal by local authority against compensation ordered by High Court - House demolished owned by respondent erected on land belonging to another - Whether respondent had a licence coupled with equity - Whether equity satisfied by compensation - Whether respondent denied right to be heard - Whether art. 13(1) Federal Constitution violated - Whether respondent rightly compensated
Majlis Perbandaran Pulau Pinang v. Syed Ahmed MM Gouse Mohamed
(Gopal Sri Ram, Ahmad Fairuz & Denis Ong JJCA) [2007] 1 CLJ 547 [CA]

CASE OF THE WEEK

SEE TEOW CHUAN & ANOR v. YAM TUNKU NADZARUDDIN IBNI TUANKU JAAFAR & ORS

CONTRACT: Specific performance - Contract of service - Specific relief amounting to reinstatement - Resolution passed requiring all executive directors to retire on attaining 55 years of age - Terms of contract - Whether resolution tainted with bad faith - Retrospective effect - Unilateral introduction of a new term into contract - Whether injunction restraining implementation of said resolution a decree of specific performance - Whether declaration that plaintiffs entitled to continue as directors amounted to specific performance of service contract

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