Bulletin_07

CLJ Bulletin, Issue 2012, Vol 7

17 February 2012

http://www.cljlaw.com

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New This Week	1. Case Of The Week
	2. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 1 (Part 5) 2012
	3. Articles
	a) Legal Network Series Articles
	4. Legislation Highlights

CASE OF THE WEEK

NOORFADILLA AHMAD SAIKIN v. CHAYED BASIRUN & ORS

CIVIL PROCEDURE: Locus standi - Declaratory relief - Plaintiff sought to assert rights to legal status - Whether declaration proper form of relief - Whether in line with s. 41 of the Specific Relief Act 1950

CONSTITUTIONAL LAW: Fundamental liberties - Equality before the law - Revocation of appointment on grounds of pregnancy - Whether amounted to gender discrimination - Definition of 'equality' - Whether court could refer to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) - Whether principle of reasonable classification applicable

CONSTITUTIONAL LAW: Interpretation - Equality - Revocation of appointment on grounds of pregnancy - Whether in contravention of plaintiff's rights - Whether defendants acted in violation of art. 8(2) of the Federal Constitution - Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor

2. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 1345 [HC] Taiping Villa Development Sdn Bhd v. Lai Wei Kuan & Anor

CIVIL PROCEDURE: Service - Setting aside - First defendant a Taiwanese - Originating Summons served by way of substituted service - Only one attempt to serve through A.R. registered post - Absence of averment in affidavit regarding deponent's real belief and knowledge on first defendant's possible whereabouts - Whether substituted service order and service should be set aside

CIVIL PROCEDURE: Judgments and orders - Setting aside, application for - Order granted in defendant's absence - Whether order improper, ineffective and became irregular - Whether second defendant had passed away at time order was granted - Whether order should be set aside

[2009] 1 LNS 1354 [HC] PP v. Azizul Abdul Aziz

CRIMINAL LAW: Penal Code - s. 302 - Murder - Proof of essential element of death of deceased caused by accused - Cause of death possibly accidental drowning - No trauma marks whatsoever on body - Whether accused caused death of deceased - Whether a prima facie case had been made out against accused as charged

EVIDENCE: Witness - Hostile witness - Two differing versions of events - Explanation tendered - Earlier investigative statement tallied with sworn testimony in court which completely exonerated accused of any crime - Testimony that witness was pressured to give latter statement - Whether witness was creditworthy

[2011] 1 LNS 142 [HC] Peak Horizon Sdn Bhd v. Wong King Tung

CONTRACT: Breach - Payment of debt - Loan by plaintiff to defendant - Repayment to be by way of deduction of interim claims for payment made by defendant to Hua Feng Construction Group (M) Sdn Bhd for work done - Whether sufficient monies due from Hua Feng Construction Group (M) Sdn Bhd to defendant from which outstanding loan could be fully paid - Whether plaintiff had a cause of action against defendant for recovery of outstanding loan

CONTRACT: Privity - Agreement with third party - Counterclaim for loss and damages - Claim for amount outstanding from Hua Feng Construction Group (M) Sdn Bhd less loan amount - Whether there was privity between plaintiff and defendant in respect of defendant's contract with Hua Feng Construction Group (M) Sdn Bhd

CONTRACT: Unjust enrichment - Essential ingredient - Whether plaintiff had benefitted from the works carried out by defendant - Whether plaintiff was unjustly enriched at expense of the defendant

[2011] 1 LNS 280 [HC] MR Securities Sdn Bhd v. Dr Shaharizuan Shafiei

COMPANIES AND CORPORATIONS: Shares - Transfer of shares - Defendant holding shares in security company upon trust for plaintiff and agreeing to transfer shares as directed - Defendant's employment with plaintiff terminated - Defendant directed to transfer shares to plaintiff's nominee but refusing to do so - Whether trust deed illegal - Whether defendant had valid equitable lien on shares and/or an equitable set-off premised on his claim against plaintiff in the Industrial Court - Whether Ministry of Home Affairs consented to shares being held by new nominees - Whether terms of trust deed gave any right of equitable lien or equitable set-off to defendant - Whether a fit and proper case to be dealt with by way of originating summons

[2011] 1 LNS 450 [HC] Yap Sze Peng v. Great Eastern Life Assurance (Malaysia) Berhad & Anor

LABOUR LAW: Employment - Entitlement of employee - Share Option Scheme - Termination of plaintiff's employment - Effect on employee granted share options - Whether plaintiff's share option remained intact - Whether Chief Executive Officer of 1^st defendant represented to plaintiff that her ESOS would remain vested in her after she had opted for VSS - If so, whether such an assurance could override express terms and effect of Regulation 19 of Regulations of Great Eastern Holdings Executives' Share Option Scheme

CITATION	TITLE	SUBJECT
[2009] 1 LNS 1345 [HC]	Taiping Villa Development Sdn Bhd v. Lai Wei Kuan & Anor	CIVIL PROCEDURE: Service - Setting aside - First defendant a Taiwanese - Originating Summons served by way of substituted service - Only one attempt to serve through A.R. registered post - Absence of averment in affidavit regarding deponent's real belief and knowledge on first defendant's possible whereabouts - Whether substituted service order and service should be set aside CIVIL PROCEDURE: Judgments and orders - Setting aside, application for - Order granted in defendant's absence - Whether order improper, ineffective and became irregular - Whether second defendant had passed away at time order was granted - Whether order should be set aside
[2009] 1 LNS 1354 [HC]	PP v. Azizul Abdul Aziz	CRIMINAL LAW: Penal Code - s. 302 - Murder - Proof of essential element of death of deceased caused by accused - Cause of death possibly accidental drowning - No trauma marks whatsoever on body - Whether accused caused death of deceased - Whether a prima facie case had been made out against accused as charged EVIDENCE: Witness - Hostile witness - Two differing versions of events - Explanation tendered - Earlier investigative statement tallied with sworn testimony in court which completely exonerated accused of any crime - Testimony that witness was pressured to give latter statement - Whether witness was creditworthy
[2011] 1 LNS 142 [HC]	Peak Horizon Sdn Bhd v. Wong King Tung	CONTRACT: Breach - Payment of debt - Loan by plaintiff to defendant - Repayment to be by way of deduction of interim claims for payment made by defendant to Hua Feng Construction Group (M) Sdn Bhd for work done - Whether sufficient monies due from Hua Feng Construction Group (M) Sdn Bhd to defendant from which outstanding loan could be fully paid - Whether plaintiff had a cause of action against defendant for recovery of outstanding loan CONTRACT: Privity - Agreement with third party - Counterclaim for loss and damages - Claim for amount outstanding from Hua Feng Construction Group (M) Sdn Bhd less loan amount - Whether there was privity between plaintiff and defendant in respect of defendant's contract with Hua Feng Construction Group (M) Sdn Bhd CONTRACT: Unjust enrichment - Essential ingredient - Whether plaintiff had benefitted from the works carried out by defendant - Whether plaintiff was unjustly enriched at expense of the defendant
[2011] 1 LNS 280 [HC]	MR Securities Sdn Bhd v. Dr Shaharizuan Shafiei	COMPANIES AND CORPORATIONS: Shares - Transfer of shares - Defendant holding shares in security company upon trust for plaintiff and agreeing to transfer shares as directed - Defendant's employment with plaintiff terminated - Defendant directed to transfer shares to plaintiff's nominee but refusing to do so - Whether trust deed illegal - Whether defendant had valid equitable lien on shares and/or an equitable set-off premised on his claim against plaintiff in the Industrial Court - Whether Ministry of Home Affairs consented to shares being held by new nominees - Whether terms of trust deed gave any right of equitable lien or equitable set-off to defendant - Whether a fit and proper case to be dealt with by way of originating summons
[2011] 1 LNS 450 [HC]	Yap Sze Peng v. Great Eastern Life Assurance (Malaysia) Berhad & Anor	LABOUR LAW: Employment - Entitlement of employee - Share Option Scheme - Termination of plaintiff's employment - Effect on employee granted share options - Whether plaintiff's share option remained intact - Whether Chief Executive Officer of 1^st defendant represented to plaintiff that her ESOS would remain vested in her after she had opted for VSS - If so, whether such an assurance could override express terms and effect of Regulation 19 of Regulations of Great Eastern Holdings Executives' Share Option Scheme

b. CLJ Volume 1 (Part 5) 2012

COURT

FEDERAL COURT

Lau Keen Fai v. Lim Ban Kay & Anor
Zulkefli Makinudin CJ (Malaya), Ahmad Maarop, Hasan Lah FCJJ
(Civil Procedure; Legal Profession - Appeal to Federal Court - Leave to appeal - Appeal from decision of Disciplinary Board) [2012] 1 CLJ 569 [FC]

COURT OF APPEAL

John Lo Thau Fah v. FACB Resorts Bhd
Tengku Baharudin Shah, Mohd Hishamudin Yunus, Azhar Ma'ah JJCA
(Contract - Breach - Action for damages) [2012] 1 CLJ 581 [CA]

HIGH COURT

Behn Meyer International Trading Sdn Bhd v. Premier Design Sdn Bhd
Mah Weng Kwai J
(Company Law; Civil Procedure - Winding-up - Petition - Withdrawal and striking out of petition - Costs) [2012] 1 CLJ 601 [HC]

Danau Suria Mining Sdn Bhd v. Tengku Zaiton Ibni Al Marhum Sultan Abu Bakar
Mohamad Ariff Yusof J
(Equity - Unclean hands - Unconscionable conduct - Agreement between plaintiff miner and defendant mining lease holder) [2012] 1 CLJ 610 [HC]

Ho Hup Construction Company Bhd v. Bukit Jalil Development Sdn Bhd & Ors (No 2)
Mah Weng Kwai JC
(Company Law - Directors - Duties) [2012] 1 CLJ 649 [HC]

Mohd Ali Abdul Majid v. Manokaran Veraya
Has Zanah Mehat JC
(Contract - Sale and purchase of property - Deposit - Forfeiture of) [2012] 1 CLJ 678 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Appeal - Appeal to Federal Court - Notice of appeal - Whether irregular and misconceived - Whether leave must first be obtained for an appeal to be lodged in Federal Court - Whether Court of Appeal's decision not appealable without leave - Courts of Judicature Act 1964, s. 96(a) - Whether s. 103E of the Legal Profession Act 1976 imposes a bar to appellant's right of appeal - Whether appellant given right to three tiers of appeal from High Court to Court of Appeal to Federal Court
Lau Keen Fai v. Lim Ban Kay & Anor
(Zulkefli Makinudin CJ (Malaya), Ahmad Maarop & Hasan Lah FCJJ) [2012] 1 CLJ 569 [FC]

Appeal - Leave to appeal - Whether leave must first be obtained for an appeal to be lodged in Federal Court - Whether Court of Appeal's decision not appealable without leave - Courts of Judicature Act 1964, s. 96(a) - Whether s. 103E of the Legal Profession Act 1976 imposes a bar to appellant's right of appeal - Whether appellant given right to three tiers of appeal from High Court to Court of Appeal to Federal Court
Lau Keen Fai v. Lim Ban Kay & Anor
(Zulkefli Makinudin CJ (Malaya), Ahmad Maarop & Hasan Lah FCJJ) [2012] 1 CLJ 569 [FC]

Costs - Petition for winding-up dismissed - Search results with Department of Insolvency Malaysia showing respondent not wound up when in fact respondent was wound up - Whether official receiver responsible for state of affairs leading to withdrawal of petition - Whether official receiver to bear costs of petitioner - Companies Act 1965, s. 2 - Companies (Winding-Up) Rules 1972, r. 25(3) - Bankruptcy Act 1967, ss. 70, 71, 87(1) - Government Proceedings Act 1956, s. 31(1)
Behn Meyer International Trading Sdn Bhd v. Premier Design Sdn Bhd
(Mah Weng Kwai J) [2012] 1 CLJ 601 [HC]

Jurisdiction - Appeal - Appeal from Disciplinary Board of statutory body - Legal Profession Act 1976, s. 103E - Disciplinary Board not a 'subordinate court' or 'inferior court' - Issue of jurisdiction - Whether arose - Whether appeal against decision of Disciplinary Board a continuation of a judicial process of granting a right of appeal to an appellant right to the Federal Court
Lau Keen Fai v. Lim Ban Kay & Anor
(Zulkefli Makinudin CJ (Malaya), Ahmad Maarop & Hasan Lah FCJJ) [2012] 1 CLJ 569 [FC]

COMPANY LAW

Directors - Duties - Directors authorised company to hand over de facto control and beneficial ownership of major land bank to third party for development - Approval of company in general meeting not obtained - Whether transaction amounted to 'disposal of substantial portion of company's property' - Whether disposal void for breach of s. 132C Companies Act 1965 - Whether directors breached statutory, fiduciary and common law duties
Ho Hup Construction Company Bhd v. Bukit Jalil Development Sdn Bhd & Ors (No 2)
(Mah Weng Kwai JC) [2012] 1 CLJ 649 [HC]

Winding - up - Petition - Withdrawal and striking out of petition - Costs - Search results with Department of Insolvency Malaysia showing respondent not wound up when in fact respondent was wound up - Whether official receiver responsible for state of affairs leading to withdrawal of petition - Whether official receiver to bear costs of petitioner - Companies Act 1965, s. 2 - Companies (Winding-Up) Rules 1972, r. 25(3) - Bankruptcy Act 1967, ss. 70, 71, 87(1) - Government Proceedings Act 1956, s. 31(1)
Behn Meyer International Trading Sdn Bhd v. Premier Design Sdn Bhd
(Mah Weng Kwai J) [2012] 1 CLJ 601 [HC]

CONTRACT

Breach - Action for damages - Failure of respondent to honour terms of contract - Whether respondent liable - Whether counterclaim that contract was invalid null and void valid - Contracts Act 1950, ss. 24, 25, 30, 31, 75 - Civil Law Act 1956, s. 26 - Evidence Act 1950, ss. 91 and 92 - Companies Act 1965, s. 136
John Lo Thau Fah v. FACB Resorts Bhd
(Tengku Baharudin Shah, Mohd Hishamudin Yunus, Azhar Ma'ah JJCA) [2012] 1 CLJ 581 [CA]

Illegality - Sale and purchase agreement - Whether void for illegality - Failure to plead illegality - Whether relevant - Contracts Act 1950, s. 24
Mohd Ali Abdul Majid v. Manokaran Veraya
(Has Zanah Mehat JC) [2012] 1 CLJ 678 [HC]

Limitation - Contractual term - Failure by vendor to exercise option to terminate agreement - Liability to refund deposit - Whether upon refusal to return deposits - Whether purchaser's action for refund time barred
Mohd Ali Abdul Majid v. Manokaran Veraya
(Has Zanah Mehat JC) [2012] 1 CLJ 678 [HC]

Sale and purchase of property - Breach - Resale of property to third party when first agreement still subsisting - Whether vendor failed to comply with termination clause under agreement - Whether vendor breached agreement
Mohd Ali Abdul Majid v. Manokaran Veraya
(Has Zanah Mehat JC) [2012] 1 CLJ 678 [HC]

Sale and purchase of property - Deposit - Forfeiture of - Claim for refund - Whether vendor entitled to forfeit deposit - Whether agreement terminated - Whether failure to terminate according to clause in SPA rendered time for completion enlarged
Mohd Ali Abdul Majid v. Manokaran Veraya
(Has Zanah Mehat JC) [2012] 1 CLJ 678 [HC]

EQUITY

Unclean hands - Unconscionable conduct - Agreement between plaintiff miner and defendant mining lease holder - Plaintiff's signatory to agreement undischarged bankrupt - Fact of bankruptcy concealed from defendant - Signatory pretended to be plaintiff's Managing Director - Deliberate failure by plaintiff to submit mining report for issuance of mining lease - Fundamental breach that nullified agreement - Plaintiff commenced mining without authority - Defendant's signature on Permit to Mine forged - Plaintiff accepted defendant's termination of agreement then sought specific performance - Whether plaintiff entitled to any equitable remedy
Danau Suria Mining Sdn Bhd v. Tengku Zaiton Ibni Al Marhum Sultan Abu Bakar
(Mohamad Ariff Yusof J) [2012] 1 CLJ 610 [HC]

LEGAL PROFESSION

Disciplinary proceedings - Disciplinary Board - Appeal from decision of Disciplinary Board - Right of appeal - Legal Profession Act 1976, s. 103E - Leave to appeal - Whether leave must first be obtained for an appeal to be lodged in Federal Court - Courts of Judicature Act 1964, s. 96(a) - Whether appellant given right to three tiers of appeal from High Court to Court of Appeal to Federal Court
Lau Keen Fai v. Lim Ban Kay & Anor
(Zulkefli Makinudin CJ (Malaya), Ahmad Maarop & Hasan Lah FCJJ) [2012] 1 CLJ 569 [FC]

3. Articles

a) Legal Network Series Articles

1. Commonwealth Magistrates' And Judges' Association Conference ^{[Read
excerpt]}
By The Right The Hon The Lord Judge

2. Parental Responsibility And Children On The Internet: A Way Forward?* ^{[Read
excerpt]}
By Syahirah Abdul Shukor**

4. Legislation Highlights

a) Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 739 Perumahan Rakyat 1Malaysia Act 2012 Not Yet In Force - Nil -

ACT 740 Veterans Act 2012 Not Yet In Force - Nil -

ACT 741 Postal Services Act 2012 Not Yet In Force - Nil -

ACT 742 Finance Act 2012 See sections 3, 26, 30, 32 and 35 of Act 742 respectively - Nil -

ACT 743 Limited Liability Partnerships Act 2012 Not Yet In Force - Nil -

b) Amending Acts

NUMBER
TITLE

DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

ACT A1418 Inland Revenue Board Of Malaysia (Amendment) Act 2012 10 February 2012 (s. 2); Deemed in force 1 November 2011 (s. 3) ACT 533

ACT A1421 Police (Amendment) Act 2012 Not Yet In Force ACT 344

ACT A1422 Criminal Procedure Code (Amendment) Act 2010 (Amendment) Act 2012 Not Yet In Force ACT 593

ACT A1423 Criminal Procedure Code (Amendment) Act 2012 Not Yet In Force ACT 593

ACT A1424 Evidence (Amendment) Act 2012 Not Yet In Force ACT 56

ACT A1425 Standards Of Malaysia (Amendment) Act 2012 Not Yet In Force ACT 549

c) PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(A) 033/2012 Customs (Values) (Palm Kernel) (No 2) Order 2012 30 January 2012 ACT 235

PU(A) 034/2012 Exchange Control (Import And Export) (General) Order 2012 31 January 2012 ACT 17

PU(A) 035/2012 Food (Amendment) Regulations 2012 31 January 2012 ACT 281

PU(A) 036/2012 Wildlife Conservation (Operation Of Zoo) Regulations 2012 31 January 2012 ACT 716

PU(A) 037/2012 Industrial Designs (Amendment) Regulations 2012 15 February 2012 ACT 552

d) PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(B) 030/2012 Declaration Of Alteration Of Port Limits Of Klang Of The Merchant Shipping Ordinance 1952 25 January 2012 ORD 70

PU(B) 031/2012 Notice Of Proposed Revocation Of Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 25 January 2012 ACT 56

PU(B) 032/2012 Appointment Under Subsection 3(1) Of The Notaries Public Act 1959 30 January 2012 ACT 115

PU(B) 033/2012 Appointment Of Lock-Ups To Be Places Of Confinement Of The Prison Act 1995 30 January 2012 ACT 537

PU(B) 034/2012 Returns And Statements Of Election Expenses Of The Election Offences Act 1954 31 January 2012 ACT 5

e) Latest Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

DR 44/2011 Construction Industry Payment and Adjudication Bill 2011 - -

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 739	Perumahan Rakyat 1Malaysia Act 2012	Not Yet In Force	- Nil -
ACT 740	Veterans Act 2012	Not Yet In Force	- Nil -
ACT 741	Postal Services Act 2012	Not Yet In Force	- Nil -
ACT 742	Finance Act 2012	See sections 3, 26, 30, 32 and 35 of Act 742 respectively	- Nil -
ACT 743	Limited Liability Partnerships Act 2012	Not Yet In Force	- Nil -