Legal Network Series

[2012] 1 LNS 669	SARAWAK COAL RESOURCES SDN BHD v. GENESIS FORCE SDN BHD	CIVIL PROCEDURE: Judgments and orders - Setting aside - Ruling made relating to Enclosures 76 and 88 by High Court Judge - Whether decision of Rhodzariah Bujang J was a nullity on ground she usurped the power and jurisdiction of the Chief Judge of Sabah and Sarawak under s. 20 of the Courts of Judicature Act 1964 in respect of distribution of business - Appeal against decision of Rhodzariah Bujang J dismissed by Court of Appeal - Whether Court of Appeal decision bound the High Court - Whether insubordinate for this High Court to re-open issue and make a contrary decision - Whether necessary for this Court to make a ruling whether decision of Rhodzariah Bujang J was a nullity
[2012] 1 LNS 671	TIMUDA SDN BHD v. AUDREY JENNIFER LYEN	TRUSTS AND TRUSTEES: Constructive trust - Existence of a trust - Reliance on Resolution of Board of directors of plaintiff to prove existence of trust - Whether resolution could constitute evidence that defendant was a trustee of plaintiff - Whether defendant knew or agreed to be a trustee of plaintiff - No evidence adduced by plaintiff that defendant expressly or impliedly agreed to be a trustee for plaintiff in respect of subject matter of suit - Whether there was a trust relationship between plaintiff and defendant
[2012] 1 LNS 680	TAY YONG CHAI v. CHONG JIN KOK	EVIDENCE: Documentary evidence - Admissibility - Unstamped document - Whether promissory note admissible - Whether Court empowered to impound and admit it under the Stamp Act 1949 - Whether cheques and promissory notes could not be stamped after execution unlike other instruments where late payment of duty was allowed - Whether plaintiff's case collapsed due to failure to admit promissory note MONEYLENDERS: Definition of moneylender - Whether legal moneylender - Whether plaintiff indulged in money lending - Whether plaintiff held himself out as carrying on the business of moneylending - Whether transaction in question between the parties was moneylending - Whether moneylending transaction was an incident of another transaction - Whether plaintiff was an unlicensed moneylender - Whether the Court should refuse relief to unlicensed moneylenders like the plaintiff who sought enforcement of inequitable bargains that they had contracted - Whether defendant as borrower who had willingly entered into an illegal moneylending transaction should be permitted to demand for refund of interests already paid
[2012] 1 LNS 681	SINUN BOKUSAI v. PP	CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Whether Sessions Court Judge failed to consider there was no direct evidence that accused caused death of deceased - Whether dying declaration and circumstantial evidence sufficient to implicate accused - Whether all grounds raised by counsel for accused were without merit - Whether accused raised a reasonable doubt - Whether any reason to interfere with Sessions Court Judge's finding that the prosecution had proven its case against accused - Whether in the absence of extenuating circumstances, a binding over was an appropriate sentence for the offence of taking a human life - Whether Sessions Court Judge struck a balance between a deterrent sentence for a violent crime and personal circumstances of the accused - Whether sentence imposed by sessions court should be affirmed
[2012] 1 LNS 1246	TEH KHENG CHUAN v. TAN KEAN LIM & ANOR	CIVIL PROCEDURE: Appeal - Appeal from sessions court - Whether this Court should interfere with finding of facts by Sessions Judge in his decision on liability - Whether Sessions Judge erred in concluding that there was an admission that appellant had collided into rear of 1st Respondent's/1st defendant's motorcycle - Whether Sessions Court judge's failure to draw an adverse inference against 1st Respondent for his failure to give evidence caused a serious miscarriage of justice which justified intervention - Whether Sessions Judge erred in law when he rejected the unrebutted evidence of the appellant and found appellant wholly to blame instead of 1st Respondent - Whether Sessions Judge considered all the evidence and gave each bit its probative value - Whether there was an error in law in the award on quantum

CLJ 2014 Volume 1 (Part 7)

COURT

FEDERAL COURT

AV Asia Sdn Bhd v. Measat Broadcast Network Systems Sdn Bhd
Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Abdull Hamid Embong, Hasan Lah, Zaleha Zahari FCJJ
(Contract - Agreement - Mutual non-disclosure agreement - Breach of) [2014] 1 CLJ 821 [FC]

COURT OF APPEAL

Dr Gun Suk Chyn & Ors v. Kartar Kaur Jageer Singh & Anor
Abdul Malik Ishak, Alizatul Khair Osman, Mohd Zawawi Salleh JJCA
(Tort - Medical negligence - Test for determining duty and standard of care of medical practitioner) [2014] 1 CLJ 838 [CA]

Litus Jau & Anor v. Boustead Pelita Tinjar Sdn Bhd & Ors
Raus Sharif PCA, Ramly Ali, Alizatul Khair Osman JJCA
(Civil Procedure; Native Law And Custom; Limitation - Action - Commencement - Action commenced by way of writ - Whether action should have been commenced by way of judicial review) [2014] 1 CLJ 880 [CA]

HIGH COURT

Amat Loyut & Ors v. Ng Eng Kiat & Ors
Abdul Rahman Sebli J
(Legal Profession - Solicitors - Cost - Personal liability of solicitors for costs) [2014] 1 CLJ 901 [HC]

Jacob And Toralf Consulting Sdn Bhd & Ors v. Siemens Industry Software GmbH & Co Kg & Ors
SM Komathy Suppiah JC
(Arbitration; Civil Procedure - Confidentiality - Documents - Expunging of - Principle of privacy) [2014] 1 CLJ 919 [HC]

ML Breadworks Sdn Bhd v. RHB Bank Bhd
Azizah Nawawi JC
(Banking; Tort - Banking and customer - Forgery - Whether bank entitled to rely on statutory defence under s. 73A of Bills of Exchange Act 1949) [2014] 1 CLJ 931 [HC]

Puncak Niaga (M) Sdn Bhd v. Kerajaan Negeri Selangor
Lee Heng Cheong JC
(Civil Procedure - Originating summons - Striking out - Application for - Suit against public authority) [2014] 1 CLJ 948 [HC]

SUBJECT INDEX

ARBITRATION

Confidentiality - Documents - Second to fifth defendants not party to arbitration proceeding - Documents used in arbitration proceedings between plaintiff and first defendant exhibited in affidavit - Expunging of - Application for - Whether documents produced or created for arbitration were confidential in nature - Principle of privacy - Whether third parties precluded from using documents generated in arbitration proceedings - Whether consent of parties or leave of court obtained
Jacob And Toralf Consulting Sdn Bhd & Ors v. Siemens Industry Software GmbH & Co Kg & Ors
(SM Komathy Suppiah JC) [2014] 1 CLJ 919 [HC]

BANKING

Banking and customer - Forgery - Claim for amount loss due to forgery of signatory's signature on cheques - Loss in sum of RM1,000,373.45 - Forgery detected when balance became insufficient - Whether bank in contractual breach with customer by debiting amount from customer's current account - Whether bank negligent - Whether bank exercised reasonable care and duty in honouring forged cheques - Whether bank entitled to rely on statutory defence under s. 73A of Bills of Exchange Act 1949
ML Breadworks Sdn Bhd v. RHB Bank Bhd
(Azizah Nawawi JC) [2014] 1 CLJ 931 [HC]

Cheques - Forged cheques - Customer's accountant forged cheques and caused loss in sum of RM1,000,373.45 - Whether bank negligent - Whether customer contributorily negligent - Whether customer took necessary steps to supervise and monitor accountant - Whether customer kept track of current account
ML Breadworks Sdn Bhd v. RHB Bank Bhd
(Azizah Nawawi JC) [2014] 1 CLJ 931 [HC]

CIVIL PROCEDURE

Action - Commencement - Native customary rights ('NCR') - Dispute as to issuance of provisional lease to first defendant - Alienation and issuance of provisional lease over part of NCR land by Superintendent of Lands and Surveys Miri Division and State Government of Sarawak - Action commenced by way of writ - Whether action should have been commenced by way of judicial review - Whether private law element more dominant than public law element attached to NCR claims
Litus Jau & Anor v. Boustead Pelita Tinjar Sdn Bhd & Ors
(Raus Sharif PCA, Ramly Ali, Alizatul Khair Osman JJCA) [2014] 1 CLJ 880 [CA]

Affidavits - Expunging of - Application for - Documents used in arbitration proceedings between plaintiff and first defendant exhibited in affidavit - Whether documents produced or created for arbitration confidential in nature - Principle of privacy - Whether third parties precluded from making use of documents generated in arbitration proceedings - Whether consent of parties or leave of court obtained
Jacob And Toralf Consulting Sdn Bhd & Ors v. Siemens Industry Software GmbH & Co Kg & Ors
(SM Komathy Suppiah JC) [2014] 1 CLJ 919 [HC]

Injunction - Interim injunction - Application to restrain respondent from using confidential information for its own commercial gain - Clause in contract stipulating injunctive relief 'may' or 'shall' be appropriate remedy - Whether existence of such clause could fetter jurisdiction and discretion of court - Whether injunctive relief should be granted as of right - Principles and guidelines in American Cyanamid Co v. Ethicon Ltd - Whether rightly considered - Whether there was agreement between parties that damages was not adequate remedy - Whether High Court disentitled from concluding damages as adequate remedy in respect of injuries caused by breaches of agreement
AV Asia Sdn Bhd v. Measat Broadcast Network Systems Sdn Bhd
(Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Abdull Hamid Embong, Hasan Lah, Zaleha Zahari FCJJ) [2014] 1 CLJ 821 [FC]

Originating summons - Striking out - Application for - Suit against public authority - Whether agreements enforceable under Water Services Industry Act 2006 ('WASIA') - Whether ss. 173, 191 WASIA applicable - Whether originating summons an abuse of court process - Rules of the Court 2012, O. 53
Puncak Niaga (M) Sdn Bhd v. Kerajaan Negeri Selangor
(Lee Heng Cheong JC) [2014] 1 CLJ 948 [HC]

Striking out - Application for - Rules of Court 2012 ('ROC'), O. 18 r. 19 - Inherent jurisdiction of court - Suit against public authority - Non-compliance of O. 53 ROC - Whether dispute a matter of public or private law - Whether originating summons an abuse of court process
Puncak Niaga (M) Sdn Bhd v. Kerajaan Negeri Selangor
(Lee Heng Cheong JC) [2014] 1 CLJ 948 [HC]

CONTRACT

Agreement - Mutual non-disclosure agreement - Breach of - Application for interim injunction to restrain respondent from using confidential information for its own commercial gain - Clause in contract stipulating injunctive relief 'may' or 'shall' be appropriate remedy - Whether existence of such clause could fetter jurisdiction and discretion of court - Whether injunctive relief should be granted as of right - Principles and guidelines in American Cyanamid Co v. Ethicon Ltd - Whether rightly considered - Whether there was agreement between parties that damages was not adequate remedy - Whether High Court disentitled from concluding damages as adequate remedy in respect of injuries caused by breaches of agreement
AV Asia Sdn Bhd v. Measat Broadcast Network Systems Sdn Bhd
(Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Abdull Hamid Embong, Hasan Lah, Zaleha Zahari FCJJ) [2014] 1 CLJ 821 [FC]

LEGAL PROFESSION

Solicitors - Cost - Personal liability of solicitors for costs - Whether solicitor and counsel guilty of serious professional misconduct - Costs of entire action - Whether solicitor and counsel to bear personally - Whether role of counsel similar to role of barristers in England - Whether counsel exempted from being personally liable for costs - Rules of Court 2012, O. 59 r. 6(1)
Amat Loyut & Ors v. Ng Eng Kiat & Ors
(Abdul Rahman Sebli J) [2014] 1 CLJ 901 [HC]

LIMITATION

Commencement of action - When action commenced - Native customary rights - Dispute as to issuance of provisional lease to first defendant - Alienation and issuance of provisional lease over part of NCR land by Superintendent of Lands and Surveys Miri Division and State Government of Sarawak - Action instituted nearly 18 years later - Whether action time-barred under Sarawak Limitation Ordinance
Litus Jau & Anor v. Boustead Pelita Tinjar Sdn Bhd & Ors
(Raus Sharif PCA, Ramly Ali, Alizatul Khair Osman JJCA) [2014] 1 CLJ 880 [CA]

Public Authorities Protection Act 1948 - Whether action time-barred - Native customary rights - Dispute as to issuance of provisional lease to first defendant - Alienation and issuance of provisional lease over part of NCR land by Superintendent of Lands and Surveys Miri Division and State Government of Sarawak - Suit brought nearly 20 years after issuance of provisional lease - Whether beyond statutory timeline permitted - Continuing injury or damage - Whether plaintiffs took any action to protect their purported rights - Whether action caught by limitation under s. 2(a)
Litus Jau & Anor v. Boustead Pelita Tinjar Sdn Bhd & Ors
(Raus Sharif PCA, Ramly Ali, Alizatul Khair Osman JJCA) [2014] 1 CLJ 880 [CA]

NATIVE LAW AND CUSTOM

Land dispute - Customary rights over land - Action - Commencement - Alienation and issuance of provisional lease over part of Native Customary Rights ('NCR') land by Superintendent of Lands and Surveys Miri Division and State Government of Sarawak - Action commenced by way of writ - Whether action should have been commenced by way of judicial review - Whether private law element more dominant than public law element attached to NCR claims
Litus Jau & Anor v. Boustead Pelita Tinjar Sdn Bhd & Ors
(Raus Sharif PCA, Ramly Ali, Alizatul Khair Osman JJCA) [2014] 1 CLJ 880 [CA]

TORT

Conversion - Banking and customer - Cheques - Customer's accountant forged cheques and caused loss in sum of RM1,000,373.45 - Forged cheques cleared by bank - Liability of bank - Whether bank liable to make good loss - Bills of Exchange Act 1949, s. 24
ML Breadworks Sdn Bhd v. RHB Bank Bhd
(Azizah Nawawi JC) [2014] 1 CLJ 931 [HC]

Negligence - Medical negligence - Duty of care - Breach - Test for determining duty and standard of care of medical practitioner - Patient became blind after treatment - Whether blindness caused by treatment - Whether diagnosis and treatment proper and reasonable - Whether there had been reasonable disclosure on common side effects of the treatment - Causative link between treatment and injury - Whether proved - Whether medical practitioner liable in negligence when another doctor would have prescribed different medicine or treatment
Dr Gun Suk Chyn & Ors v. Kartar Kaur Jageer Singh & Anor
(Abdul Malik Ishak, Alizatul Khair Osman, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 838 [CA]