Bulletin_09

CLJ Bulletin, Issue 2011, Vol 9

11 March 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 2 (Part 1) 2011
	c) CLJ Volume 2 (Part 2) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 715 Land Public Transport Act 2010 31 January 2011 [P.U. (B) 43/2011]

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

ACT 721 International Islamic Liquidity Management Corporation Act 2011 25 October 2010 - Nil -

ACT 722 Fees (Malaysian Meteorological Department (Validation) Act 2011 28 January 2011 - Nil -

ACT 723 Price Control And Anti-Profiteering Act 2011 Not Yet In Force - Nil -

ACT 724 National Visual Arts Development Board Act 2011 Not Yet In Force - Nil -

Amending Acts

NUMBER

TITLE

DATE COMING INTO FORCE

AMENDING

ACT A1374 Tourism Vehicles Licensing (Amendment) Act 2010 31 January 2011 [P.U. (B) 47/2011] ACT 594

ACT A1376 Commercial Vehicles Licensing Board (Amendment) Act 2010 31 January 2011 [P.U. (B) 44/2011] ACT 334

ACT A1381 Consumer Protection (Amendment) Act 2010 1 February 2011 [P.U. (B) 48/2011] ACT 599

ACT A1386 Children And Young Persons (Employment) (Amendment) Act 2010 1 March 2011 [P.U. (B) 87/2011] 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 -

ACT A1389 Bank Simpanan Nasional (Amendment) Act 2011 24 February 2011 [P.U. (B) 79/2011] ACT 146

ACT A1390 Moneylenders (Amendment) Act 2011 Not Yet Inforce ACT 400

ACT A1391 Road Transport (Amendment) Act 2011 31 January 2011 [P.U. (B) 37/2011] ACT 333

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 053/2011 Entertainments Duty (Exemption) (No 5) Order 2011 17 February 2011 ACT 103

PU(A) 054/2011 Entertainments Duty (Exemption) (No 6) Order 2011 17 February 2011 ACT 103

PU(A) 055/2011 Entertainments Duty (Exemption) (No 7) Order 2011 17 February 2011 ACT 103

PU(A) 056/2011 Entertainments Duty (Exemption) (No 8) Order 2011 17 February 2011 ACT 103

PU(A) 057/2011 Customs (Values) (Palm Oil) (No 8) Order 2011 21 February 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 079/2011 Appointment Of Date Of Coming Into Operation 24 February 2011 ACT A1389

PU(B) 080/2011 Appointment Of Chief Syariah Judge 24 February 2011 ACT 505

PU(B) 081/2011 Appointment Of Judges Of The Syariah Appeal Court 24 February 2011 ACT 505

PU(B) 082/2011 Appointment Of Judges Of The Syariah High Court 24 February 2011 ACT 505

PU(B) 083/2011 Appointment Of Judges Of The Syariah Subordinate Court 24 February 2011 ACT 505

2. Articles

a) Legal Network Series Articles

1. Mediation - An Integral Part Of Our Litigation Culture ^{[Read
excerpt]}
By Lord Clarke Of Stone-Cum-Ebony, Master Of The Rolls*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 418 [HC] PP v. Heng Cheng Ming

CRIMINAL LAW: Dangerous drugs Act 2952 - Section 39B(1)(a) - Statutory presumption of trafficking - First packet of drugs was handed over by accused at risk item room - Three other packets rolled in socks worn by accused - No break in the chain of possession between the first and the second discovery - Accused's claim that drugs were not found on his person in direct conflict with the testimonies of prosecution witnesses - Whether any evidence that that prosecution witnesses fabricated evidence against the accused - Whether accused able to rebut presumption of trafficking

CRIMINAL PROCEDURE: Exhibits - Evidence - Discrepancies in contents of police report and evidence of exact place PW4 put the three plastic packets after he found them - Whether discrepancies cast doubts on the identity of the exhibits seized - Whether discrepancy went to the root of the matter and indicative of falsehood

[2009] 1 LNS 425 [HC] Low Siew Ley v. Low Teck Choon

LAND LAW: Title - Indefeasibilty of title - Omission by Land Office to include Registrar's Caveat entered in 1964 on titles prohibiting any transfer of 3/5 of 4 pieces of land - Plaintiff solely registered as owner of 4 pieces of land in 2000 - Defendant/Land Administrator rectifying land titles to reflect prohibition in Registrar's Caveat - Indefeasibility of plaintiff's titles affected - Plaintiff's application to reinsert name in documents of titles as the sole registered owner of 4 pieces of land - Whether defendant's powers limited to making minor corrections only - Whether defendant's actions ultra vires

[2009] 1 LNS 444 [HC] PP v. Sahlan

CRIMINAL PROCEDURE: Sentence - Culpable homicide not amounting to murder - Accused snatching SP2's handbag - Attempt by deceased to apprehend accused - Fatal stab wound to the heart during struggle - Accused an Indonesian national without work permit - Guilty plea - Apology to deceased's family and the court in mitigation - No previous convictions - Consideration of public interest - Whether maximum sentence warranted

[2009] 1 LNS 455 [HC] Chong Su Mee @ Esther v. CH & Sons Development Sdn Bhd & Anor

CONTRACT: Breach - Claim for services rendered - Claim for work done as the 1^st defendant's architect - Whether any enforceable contract between 1^st defendant and plaintiff - Breach of the relevant rules of the Architects Rules 1996 - Whether contract rendered void - Whether plaintiff was appointed by the 2^nd defendant - Plaintiff dealt directly with the 1^st defendant - Evidence of collaboration between plaintiff and 2^nd defendant - Whether sufficient to imply plaintiff was engaged by 2^nd defendant - 1^st defendant refusing to pay plaintiff for her services - Whether plaintiff entitled to damages

[2009] 1 LNS 461 [HC] HHQ-MAC (Sarawak) Sdn Bhd v. Sin Foon Foh Trading Sdn Bhd & Anor

CONTRACT: Breach - Sale of Stockpile Agreement - Conflicting evidence of the witnesses and the documents relied on by the plaintiff - Whether sufficient to establish that the limestone stockpile belonged to the plaintiff or that plaintiff was deemed to be the beneficial owner of all limestone extracted

TORT: Conversion - Contract for sale of goods - Sale and Purchase of Machinery Agreement executed by plaintiff and the 1^st defendant - Plaintiff claiming machinery wrongfully detained by 1^st and 2^nd defendants - 1^st defendant claiming machinery were gifts and that the 1^st defendant entered into the Sale and Purchase of Machinery Agreement on that basis - Whether the gifts or items in the Sale and Purchase of Machinery Agreement a condition precedent envisaged under proviso (c) of Section 92 of the Evidence Act 1950

CITATION	TITLE	SUBJECT
[2009] 1 LNS 418 [HC]	PP v. Heng Cheng Ming	CRIMINAL LAW: Dangerous drugs Act 2952 - Section 39B(1)(a) - Statutory presumption of trafficking - First packet of drugs was handed over by accused at risk item room - Three other packets rolled in socks worn by accused - No break in the chain of possession between the first and the second discovery - Accused's claim that drugs were not found on his person in direct conflict with the testimonies of prosecution witnesses - Whether any evidence that that prosecution witnesses fabricated evidence against the accused - Whether accused able to rebut presumption of trafficking CRIMINAL PROCEDURE: Exhibits - Evidence - Discrepancies in contents of police report and evidence of exact place PW4 put the three plastic packets after he found them - Whether discrepancies cast doubts on the identity of the exhibits seized - Whether discrepancy went to the root of the matter and indicative of falsehood
[2009] 1 LNS 425 [HC]	Low Siew Ley v. Low Teck Choon	LAND LAW: Title - Indefeasibilty of title - Omission by Land Office to include Registrar's Caveat entered in 1964 on titles prohibiting any transfer of 3/5 of 4 pieces of land - Plaintiff solely registered as owner of 4 pieces of land in 2000 - Defendant/Land Administrator rectifying land titles to reflect prohibition in Registrar's Caveat - Indefeasibility of plaintiff's titles affected - Plaintiff's application to reinsert name in documents of titles as the sole registered owner of 4 pieces of land - Whether defendant's powers limited to making minor corrections only - Whether defendant's actions ultra vires
[2009] 1 LNS 444 [HC]	PP v. Sahlan	CRIMINAL PROCEDURE: Sentence - Culpable homicide not amounting to murder - Accused snatching SP2's handbag - Attempt by deceased to apprehend accused - Fatal stab wound to the heart during struggle - Accused an Indonesian national without work permit - Guilty plea - Apology to deceased's family and the court in mitigation - No previous convictions - Consideration of public interest - Whether maximum sentence warranted
[2009] 1 LNS 455 [HC]	Chong Su Mee @ Esther v. CH & Sons Development Sdn Bhd & Anor	CONTRACT: Breach - Claim for services rendered - Claim for work done as the 1^st defendant's architect - Whether any enforceable contract between 1^st defendant and plaintiff - Breach of the relevant rules of the Architects Rules 1996 - Whether contract rendered void - Whether plaintiff was appointed by the 2^nd defendant - Plaintiff dealt directly with the 1^st defendant - Evidence of collaboration between plaintiff and 2^nd defendant - Whether sufficient to imply plaintiff was engaged by 2^nd defendant - 1^st defendant refusing to pay plaintiff for her services - Whether plaintiff entitled to damages
[2009] 1 LNS 461 [HC]	HHQ-MAC (Sarawak) Sdn Bhd v. Sin Foon Foh Trading Sdn Bhd & Anor	CONTRACT: Breach - Sale of Stockpile Agreement - Conflicting evidence of the witnesses and the documents relied on by the plaintiff - Whether sufficient to establish that the limestone stockpile belonged to the plaintiff or that plaintiff was deemed to be the beneficial owner of all limestone extracted TORT: Conversion - Contract for sale of goods - Sale and Purchase of Machinery Agreement executed by plaintiff and the 1^st defendant - Plaintiff claiming machinery wrongfully detained by 1^st and 2^nd defendants - 1^st defendant claiming machinery were gifts and that the 1^st defendant entered into the Sale and Purchase of Machinery Agreement on that basis - Whether the gifts or items in the Sale and Purchase of Machinery Agreement a condition precedent envisaged under proviso (c) of Section 92 of the Evidence Act 1950

b. CLJ Volume 2 (Part 1) 2011

COURT

FEDERAL COURT

Abdul Salam Husin v. Majlis Angkatan Tentera & Anor
Ariffin Zakaria, Richard Malanjum, James Foong
(Armed Forces; Constitutional Law - Cancellation of commission as lieutenant - Right to be heard before dismissal) [2011] 2 CLJ 1 [FC]

Tan See Siong & Anor v. Herman Ando
Alauddin Mohd Sheriff, James Foong, Heliliah Mohd Yusof
(Civil Procedure - Leave to appeal - Application for - Whether s. 96(a) Courts of Judicature Act 1964 fulfilled) [2011] 2 CLJ 16 [FC]

COURT OF APPEAL

Everise Hectares Sdn Bhd v. Citibank Bhd
Abdul Malik Ishak, Hishamuddin Mohd Yunus, Kang Hwee Gee
(Civil Procedure - Amendment - Application to add second defendant company and prevent it from taking possession of auctioned land) [2011] 2 CLJ 25 [CA]

Ishak Hj Shaari v. PP
Low Hop Bing, Hishamudin Mohd Yunus, Zaharah Ibrahim
(Criminal Procedure - Courts - Jurisdiction - Court of Appeal - Whether Court of Appeal is conferred with "review jurisdiction") [2011] 2 CLJ 46 [CA]

HIGH COURT

Ketua Pengarah Hasil Dalam Negeri v. Labuan Ferry Corporation Sdn Bhd
Mohamed Apandi Ali
(Revenue Law - Income tax - Exemption - Vessels not registered under Merchant Shipping Ordinance 1952) [2011] 2 CLJ 95 [HC]

MMN Bina Sdn Bhd v. Felda Properties Sdn Bhd
Varghese George
(Contract; Banking - Bank guarantee - Demand on guarantee - Whether unconscionable) [2011] 2 CLJ 100 [HC]

Morgan Stanley Emerging Markets Inc v. Metroplex Bhd
Anantham Kasinather
(Company Law; Contract - Novation - Effect of) [2011] 2 CLJ 110 [HC]

Wilson Parking (M) Sdn Bhd v. JW Marriott Hotel, Kuala Lumpur & Ors
Zura Yahya
(Contract - Agreement - Wrongful eviction of plaintiff from managing car park in hotel) [2011] 2 CLJ 136 [HC]

SUBJECT INDEX

ARMED FORCES

Appeal - Cancellation of commission as lieutenant - Right to be heard - Whether right available before Armed Forces Council makes recommendation to Yang di-Pertuan Agong - Armed Forces Act 1972, s. 9 - Federal Constitution, 135(1), (2)
Abdul Salam Husin v. Majlis Angkatan Tentera & Anor
(Ariffin Zakaria CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), James Foong FCJ) [2011] 2 CLJ 1 [FC]

BANKING

Performance bonds - Beneficiary's right - Call on bond - Whether unconscionable - Whether ground for allowing restraining order - Whether unconscionable act proved on facts
MMN Bina Sdn Bhd v. Felda Properties Sdn Bhd
(Varghese George JC) [2011] 2 CLJ 100 [HC]

CIVIL PROCEDURE

Amendment - Parties - Application to add second defendant company and prevent it from taking possession of auctioned land - Bona fides of application - Delay in filing - Earlier dismissed injunction application - Whether amendment a tactical manoeuvre to obtain injunction dismissed
Everise Hectares Sdn Bhd v. Citibank Bhd
(Abdul Malik Ishak, Hishamuddin Mohd Yunus Kang Hwee Gee JJCA) [2011] 2 CLJ 25 [CA]

Amendment - Parties - Application to add second defendant company and prevent it from taking possession of auctioned land - Issues raised - Whether similar to issues raised in earlier injunction application that was dismissed - Whether res judicata principles applicable
Everise Hectares Sdn Bhd v. Citibank Bhd
(Abdul Malik Ishak, Hishamuddin Mohd Yunus Kang Hwee Gee JJCA) [2011] 2 CLJ 25 [CA]

Appeal - Appeal to Federal Court - Leave to appeal - Application for - Whether provision of s. 96(a) Courts of Judicature Act 1964 fulfilled - Whether application dismissed
Tan See Siong & Anor v. Herman Ando
(Alauddin Mohd Sheriff PCA, James Foong, Heliliah Mohd Yusof FCJJ) [2011] 2 CLJ 16 [FC]

COMPANY LAW

Petition - Application to strike out - Whether petitioner a creditor for purposes of s. 217(1)(b) Companies Act 1965
Morgan Stanley Emerging Markets Inc v. Metroplex Bhd
(Anantham Kasinather J) [2011] 2 CLJ 110 [HC]

CONSTITUTIONAL LAW

Fundamental liberties - Right to be heard before dismissal - Whether no such right accorded before dismissal for member of armed forces - Armed Forces Act 1972, s. 9 - Federal Constitution, 135(1), (2)
Abdul Salam Husin v. Majlis Angkatan Tentera & Anor
(Ariffin Zakaria CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), James Foong FCJ) [2011] 2 CLJ 1 [FC]

CONTRACT

Agreement - Car Park Management Agreement - Wrongful eviction of plaintiff from managing car park in hotel - Allegation of - Whether second defendant bound by terms of the contract between plaintiff and first defendant - Whether agreement a positive covenant - Whether could be enforced on second defendant - Whether there was privity of contract - Whether person could not be made liable upon a contract unless he was a party to it
Wilson Parking (M) Sdn Bhd v. JW Marriott Hotel, Kuala Lumpur & Ors
(Zura Yahya JC) [2011] 2 CLJ 136 [HC]

Assignment - Validity - Whether assignment intended as an alternative to novation - Whether novation the only mode of transfer contemplated by parties
Morgan Stanley Emerging Markets Inc v. Metroplex Bhd
(Anantham Kasinather J) [2011] 2 CLJ 110

Guarantee - Bank guarantee - Demand on guarantee - Whether unconscionable - Whether ground for allowing restraining order - Whether unconscionable act proved on facts
MMN Bina Sdn Bhd v. Felda Properties Sdn Bhd
(Varghese George JC) [2011] 2 CLJ 100 [HC]

Novation - Effect of - Whether original contract extinguished and replaced with another - Whether consent of debtor required - Whether failed novation releases parties' obligations under original contract
Morgan Stanley Emerging Markets Inc v. Metroplex Bhd
(Anantham Kasinather J) [2011] 2 CLJ 110 [HC]

CRIMINAL PROCEDURE

Courts - Jurisdiction - Court of Appeal - Inherent powers of Court of Appeal - Whether limited to matters pertaining to practice and procedure in same proceedings only - Whether could be invoked to confer "review jurisdiction" on Court of Appeal
Ishak Hj Shaari v. PP
(Low Hop Bing, Hishamudin Mohd Yunus, Zaharah Ibrahim JJCA) [2011] 2 CLJ 46 [CA]

Courts - Jurisdiction - Court of Appeal - Whether Court of Appeal may re-open, re-hear and review its prior decisions - Whether Court of Appeal is conferred with "review jurisdiction" - Federal Constitution art. 121(1B) - Courts of Judicature Act 1964 s. 50(1) - Rules of the High Court, 1980 O. 92 r. 4
Ishak Hj Shaari v. PP
(Low Hop Bing, Hishamudin Mohd Yunus, Zaharah Ibrahim JJCA) [2011] 2 CLJ 46 [CA]

REVENUE LAW

Income tax - Exemption - Vessels not registered under Merchant Shipping Ordinance 1952 - Whether tax payer entitled to claim for tax exemption under s. 54A(1) Income Tax Act 1967 - Merchant Shipping Ordinance 1952, s. 12(4) - Income Tax Act 1967, s. 54(6)
Ketua Pengarah Hasil Dalam Negeri v. Labuan Ferry Corporation Sdn Bhd
(Mohamed Apandi Ali J) [2011] 2 CLJ 95 [HC]

c. CLJ Volume 2 (Part 2) 2011

COURT

FEDERAL COURT

Tan Mooi & Ors v. Tengku Mohd Saad & Ors And Other Appeals
Arifin Zakaria, Raus Sharif, Abdull Hamid Embong
(Evidence - Hearsay - Statement made in ordinary course of business) [2011] 2 CLJ 145 [FC]

Kaliammal Sinnasamy v. Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors
Zainun Ali, Abdul Wahab Patail, Clement Skinner
(Civil Procedure; Constitutional Law; Islamic Law - Jurisdiction - Courts) [2011] 2 CLJ 165 [CA]

Subramanyah AJ Karuppiah v. Bank Negara Malaysia
Low Hop Bing, Ramly Ali, T Selventhiranathan
(Administrative Law; Civil Procedure; Constitutional Law; Employment; Labour Law; Public Servants - Dismissal from service) [2011] 2 CLJ 178 [CA]

AXA Affin General Insurance Bhd v. Mitsui Sumitomo Insurance (Malaysia Bhd)
Tengku Maimun
(Insurance; Shipping - Marine insurance - Contribution, claim for) [2011] 2 CLJ 196 [HC]

Gurcharan Singh Karnal Singh v. Mninder Kaur Piara Singh
Suraya Othman
(Family Law; Words & Phrases - Divorce - Domicile) [2011] 2 CLJ 204 [HC]

Izzap Ltd v. Sanmaru Overseas Marketing Sdn Bhd & Anor
Abdul Aziz Abdul Rahim
(Company Law - Members' rights - Oppression of minority - Suit against director) [2011] 2 CLJ 220 [HC]

Ke Seng Enterprise Sdn Bhd v. Lembaga Pembangunan Perumahan Dan Bandar
Abdul Rahman Sebli
(Contract; Land Law - Building contract - Termination - Housing developers) [2011] 2 CLJ 228 [HC]

Malaysian Philharmonic Orchestra v. Arne Walter Neckelmann
Aziah Ali
(Administrative Law; Employment; Labour Law - Judicial review - Constructive dismissal) [2011] 2 CLJ 238 [HC]

Semantan Estates (1952) Sdn Bhd v. Kerajaan Malaysia
Zura Yahya
(Land Law - Trespass - Acquisition of land) [2011] 2 CLJ 257 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Dismissal from service - Dismissal of Bank Negara Malaysia temporary worker - Worker subject to BNM contract of employment - Whether worker a public officer - Whether protection and benefits under Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980 applicable - Federal Constitution, art. 132
Subramanyah AJ Karuppiah v. Bank Negara Malaysia
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 2 CLJ 178 [CA]

Judicial review - Certiorari - Industrial Court - Failure of Industrial Court to properly consider totality of evidence and relevant facts - Whether Industrial Court erred in finding that employee was constructively dismissed
Malaysian Philharmonic Orchestra v. Arne Walter Neckelmann
(Aziah Ali J) [2011] 2 CLJ 238 [HC]

Public servants - Dismissal of Bank Negara Malaysia temporary worker - Worker subject to BNM contract of employment - Whether worker a public officer - Whether protection and benefits under Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980 - Federal Constitution, art. 132
Subramanyah AJ Karuppiah v. Bank Negara Malaysia
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 2 CLJ 178 [CA]

CIVIL PROCEDURE

Appeal - New points, introduction of - In what circumstances may such points be raised - Raising of new point would result in allowing new line of defence or plea without hearing fresh evidence - Prejudicial to opponent - New point not allowed
Subramanyah AJ Karuppiah v. Bank Negara Malaysia
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 2 CLJ 178 [CA]

Jurisdiction - Conflict of jurisdiction between High Court and Syariah Court - Wife of deceased seeking declarations that deceased a Hindu at time of death and his conversion to Islam void - Syariah Court order stating that deceased a Muslim - Jurisdiction of High Court to adjudicate upon matter - Syariah Court the court of competent jurisdiction in deciding status of a person as a Muslim - Order of court of competent jurisdiction - Appearance of parties before Syariah Court - Person who is not subject to compulsive authority of Syariah Court not precluded from seeking relief in Syariah Court - Federal Constitution, art. 121(1A)
Kaliammal Sinnasamy v. Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors
(Zainun Ali, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 2 CLJ 165 [CA]

Jurisdiction - Matters relating to Islamic religion - Wife of deceased seeking declarations that deceased a Hindu at time of death and his conversion to Islam void - Syariah Court order stating that deceased a Muslim - Jurisdiction of High Court to adjudicate upon matter - Syariah Court the court of competent jurisdiction in deciding status of a person as a Muslim - Order of court of competent jurisdiction - Appearance of parties before Syariah Court - Person who is not subject to compulsive authority of Syariah Court not precluded from seeking relief in Syariah Court - Federal Constitution, art. 121(1A)
Kaliammal Sinnasamy v. Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors
(Zainun Ali, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 2 CLJ 165 [CA]

COMPANY LAW

Directors - Suit against director - Conduct of company's Managing Director - Breach of fiduciary duty - Oppression - Companies Act 1965, s. 181
Izzap Ltd v. Sanmaru Overseas Marketing Sdn Bhd & Anor
(Abdul Aziz Abdul Rahim J) [2011] 2 CLJ 220 [HC]

Members' rights - Petition under Companies Act 1965, s. 181 - Oppression - Whether conduct of company's Managing Director prejudicial to interests of minority shareholder - Whether Managing Director breached fiduciary duty to company
Izzap Ltd v. Sanmaru Overseas Marketing Sdn Bhd & Anor
(Abdul Aziz Abdul Rahim J) [2011] 2 CLJ 220 [HC]

Oppression - Oppression of minority - Whether conduct of company's Managing Director prejudicial to interests of minority shareholder - Companies Act 1965, s. 181
Izzap Ltd v. Sanmaru Overseas Marketing Sdn Bhd & Anor
(Abdul Aziz Abdul Rahim J) [2011] 2 CLJ 220 [HC]

CONSTITUTIONAL LAW

Courts - Jurisdiction - Matters relating to Islamic religion - Wife of deceased seeking declarations that deceased a Hindu at time of death and his conversion to Islam void - Syariah Court order stating that deceased a Muslim - Jurisdiction of High Court to adjudicate upon matter - Syariah Court the court of competent jurisdiction in deciding status of a person as a Muslim - Order of court of competent jurisdiction - Appearance of parties before Syariah Court - Person who is not subject to compulsive authority of Syariah Court not precluded from seeking relief in Syariah Court - Federal Constitution, art. 121(1A)
Kaliammal Sinnasamy v. Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors
(Zainun Ali, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 2 CLJ 165 [CA]

Public servants - Dismissal of Bank Negara Malaysia temporary worker - Worker subject to BNM contract of employment - Whether worker a public officer - Whether protection and benefits under Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980 applicable to worker - Federal Constitution, art. 132
Subramanyah AJ Karuppiah v. Bank Negara Malaysia
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 2 CLJ 178 [CA]

CONTRACT

Building contract - Termination - Failure by plaintiff to obtain approval for plans from relevant authorities - Construction of terms of agreement - Due diligence - Inordinate delay - Plaintiff's covenant to obtain approval for plans not conditional upon or subject to simultaneous performance by defendant of its covenants - Defendant's counterclaim for loss and damage proven on balance of probabilities
Ke Seng Enterprise Sdn Bhd v. Lembaga Pembangunan Perumahan Dan Bandar
(Abdul Rahman Sebli JC) [2011] 2 CLJ 228 [HC]

EMPLOYMENT

Contract of employment - Misconduct - Re-designation of employee - Whether employer may impose a lesser punishment than that provided for in contract of employment
Malaysian Philharmonic Orchestra v. Arne Walter Neckelmann
(Aziah Ali J) [2011] 2 CLJ 238 [HC]

Contract of service - Termination of services - Dismissal of Bank Negara Malaysia temporary worker - Worker subject to BNM contract of employment - Right to mitigate before punishment - Whether worker afforded chance to make representation - Whether rules of natural justice could be invoked - Whether termination justified - Whether worker entitled to relief of reinstatement
Subramanyah AJ Karuppiah v. Bank Negara Malaysia
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 2 CLJ 178 [CA]

EVIDENCE

Hearsay - Statement made in ordinary course of business - Whether statement by deceased to his attorney relating to management buy-out and transfer of shares were statements made in ordinary course of business - Words "in the ordinary course of business" in s. 32(1)(b) of Evidence Act 1950 to be given a broad and liberal connotation
Tan Mooi & Ors v. Tengku Mohd Saad & Ors And Other Appeals
(Arifin Zakaria CJ (Malaya), Raus Sharif, Abdull Hamid Embong FCJJ) [2011] 2 CLJ 145 [FC]

FAMILY LAW

Divorce - Domicile - Recognition of divorce granted by court in United States of America to dissolve a Malaysian marriage - Whether petitioner domiciled in America at time of granting of divorce - Whether petitioner had abandoned Malaysian domicile - Presumption of domicile under Law Reform (Marriage & Divorce) Act 1976, s. 3(2) - Burden of establishing domicile on petitioner
Gurcharan Singh Karnal Singh v. Mninder Kaur Piara Singh
(Suraya Othman J) [2011] 2 CLJ 204 [HC]

Divorce - Foreign divorce - Foreign decree of divorce to dissolve a Malaysian marriage - Common law principles applicable - Whether divorce granted by court of parties' domicile - Divorce granted by court in United States of America - Whether petitioner domiciled in America at time of granting of divorce - Burden of establishing domicile on petitioner
Gurcharan Singh Karnal Singh v. Mninder Kaur Piara Singh
(Suraya Othman J) [2011] 2 CLJ 204 [HC]

INSURANCE

Goods policy - Payment of claims - Marine Cargo Policies - Contribution, claim for - Double insurance - Construction of insurance policies - Difference in scope and interests insured - Incidental overlap will not by itself constitute double insurance - Issue of contribution did not arise as double insurance not proven
AXA Affin General Insurance Bhd v. Mitsui Sumitomo Insurance (Malaysia Bhd)
(Tengku Maimun J) [2011] 2 CLJ 196 [HC]

Marine insurance - Loss of cargo - Payment by insurers - Contribution, claim for - Double insurance - Construction of insurance policies - Difference in scope and interests insured - Incidental overlap will not by itself constitute double insurance - Issue of contribution did not arise as double insurance not proven
AXA Affin General Insurance Bhd v. Mitsui Sumitomo Insurance (Malaysia Bhd)
(Tengku Maimun J) [2011] 2 CLJ 196 [HC]

ISLAMIC LAW

Jurisdiction - High Court and Syariah Court, conflict of jurisdiction - Wife of deceased seeking declarations that deceased a Hindu at time of death and his conversion to Islam void - Syariah Court order stating that deceased a Muslim - Jurisdiction of High Court to adjudicate upon matter - Syariah Court the court of competent jurisdiction in deciding status of a person as a Muslim - Order of court of competent jurisdiction - Appearance of parties before Syariah Court - Person who is not subject to compulsive authority of Syariah Court not precluded from seeking relief in Syariah Court - Federal Constitution, art. 121(1A)
Kaliammal Sinnasamy v. Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors
(Zainun Ali, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 2 CLJ 165 [CA]

LABOUR LAW

Employment - Constructive dismissal - Re-designation of employee - Whether employee constructively dismissed - Whether amounting to dismissal without just cause or excuse - Whether employee's acts amounted to misconduct - Industrial Relations Act 1967, s. 20
Malaysian Philharmonic Orchestra v. Arne Walter Neckelmann
(Aziah Ali J) [2011] 2 CLJ 238 [HC]

Employment - Termination - Validity - Dismissal of Bank Negara Malaysia temporary worker - Whether plaintiff a public officer - Whether fair hearing accorded before termination - Whether employment relationship governed by contract between parties
Subramanyah AJ Karuppiah v. Bank Negara Malaysia
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 2 CLJ 178 [CA]

LAND LAW

Acquisition of land - Award - Validity of - Failure of Collector of Land Revenue to comply with relevant provisions of Land Acquisition Enactment - Failure of Collector to conduct enquiry - Estoppel - Res judicata - No unjust enrichment - Wrongful possession of land
Semantan Estates (1952) Sdn Bhd v. Kerajaan Malaysia
(Zura Yahya JC) [2011] 2 CLJ 257 [HC]

Acquisition of land - Validity of acquisition - Failure of Collector of Land Revenue to comply with relevant provisions of Land Acquisition Enactment - Failure of Collector to conduct enquiry - Award made in relation to land invalid - Estoppel - Res judicata - No unjust enrichment - Wrongful possession of land
Semantan Estates (1952) Sdn Bhd v. Kerajaan Malaysia
(Zura Yahya JC) [2011] 2 CLJ 257 [HC]

Housing developers - Building contract - Termination of agreement - Failure by plaintiff to obtain approval for plans from relevant authorities - Construction of terms of agreement - Due diligence - Inordinate delay - Plaintiff's covenant to obtain approval for plans not conditional upon or subject to simultaneous performance by defendant of its covenants - Defendant's counterclaim for loss and damage proven on balance of probabilities
Ke Seng Enterprise Sdn Bhd v. Lembaga Pembangunan Perumahan Dan Bandar
(Abdul Rahman Sebli JC) [2011] 2 CLJ 228 [HC]

Trespass - Unlawful occupation - Failure of Collector of Land Revenue to comply with relevant provisions of Land Acquisition Enactment - Failure of Collector to conduct enquiry - Award made in relation to land invalid - Estoppel - Res judicata - No unjust enrichment - Wrongful possession of land
Semantan Estates (1952) Sdn Bhd v. Kerajaan Malaysia
(Zura Yahya JC) [2011] 2 CLJ 257 [HC]

PUBLIC SERVANTS

Dismissal - Dismissal of Bank Negara Malaysia temporary worker - Worker subject to BNM contract of employment - Whether worker a public officer - Whether protection and benefits under Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980 applicable to worker - Federal Constitution, art. 132
Subramanyah AJ Karuppiah v. Bank Negara Malaysia
(Low Hop Bing, Ramly Ali, T Selventhiranathan JJCA) [2011] 2 CLJ 178 [CA]

SHIPPING

Marine insurance - Goods policy - Loss of cargo - Payment by insurers - Contribution, claim for - Double insurance - Construction of insurance policies - Difference in scope and interests insured - Incidental overlap will not by itself constitute double insurance - Issue of contribution did not arise as double insurance not proven
AXA Affin General Insurance Bhd v. Mitsui Sumitomo Insurance (Malaysia Bhd)
(Tengku Maimun J) [2011] 2 CLJ 196 [HC]

WORDS & PHRASES

Domicile - Meaning of - Law Reform (Marriage & Divorce) Act 1976, s. 3(2)
Gurcharan Singh Karnal Singh v. Mninder Kaur Piara Singh
(Suraya Othman J) [2011] 2 CLJ 204 [HC]

CASE OF THE WEEK

MALAYAN NURSES UNION v. SYARIKAT PERNIAGAAN CUEPACS BHD & ANOR

CIVIL PROCEDURE: Execution - Judgment and order - Specific performance - Whether order for specific performance a form of writ of execution - Application for leave to enforce judgment and issue execution 11 years after obtaining judgment and order - Whether judgment had lapsed - Whether application incompetent - Whether to be dismissed - Rules of High Court 1980, O. 46 rr. 1, 2

LAND LAW: Charge - Unregistered charge - Purchase of property under charge - Vendor wound-up and went into liquidation - Rights and protection of chargee vis-à-vis purchaser of property - Whether charge rendered void - Whether chargee bank enjoyed indefeasibility of title - Whether entitled to be paid monies secured under charge - Whether charge one of equitable charge - Duties of liquidator under circumstances thereof - National Land Code, s. 340 - Companies Act 1965, s. 108(1), (2)

COMPANY LAW: Liquidation - Liquidator, duties of - Sale of charged property - Vendor went into liquidation and did not deliver vacant possession to purchaser - Charge not registered by chargee bank - Whether charge rendered void - Order of court against vendor for specific performance of sale - Whether liquidator duty bound to repay chargee bank in order to redeem property - Whether liquidator may avoid Order - Whether reasons for avoidance of Order reasonable - Companies Act 1965, s. 108(1), (2)

WORDS & PHRASES: "writ of execution" - Order 46 r. 1 Rules of High Court 1980 - Whether to include order for specific performance

WORDS & PHRASES: "any contract or application for repayment of money secured by a charge" - Section 108 Companies Act 1965 - Whether conferring chargee right to be paid immediately money secured under a charge

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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 715	Land Public Transport Act 2010	31 January 2011 [P.U. (B) 43/2011]
ACT 718	Agensi Inovasi Malaysia Act 2010	Not Yet In Force	- Nil -
ACT 721	International Islamic Liquidity Management Corporation Act 2011	25 October 2010	- Nil -
ACT 722	Fees (Malaysian Meteorological Department (Validation) Act 2011	28 January 2011	- Nil -
ACT 723	Price Control And Anti-Profiteering Act 2011	Not Yet In Force	- Nil -
ACT 724	National Visual Arts Development Board Act 2011	Not Yet In Force	- Nil -