CLJ Bulletin, Issue 2008, Vol 11
16 May 2008
CLJ Law MALAYSIA
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| New This Week - | 1. CLJ April (Part 4) 2008 |
| 2. CLJ Supp April (Part 2) 2008 | |
| 3. CLJ May (Part 1) 2008 | |
| 4. CLJ Supp May (Part 1) 2008 |
COURT
COURT OF APPEAL
Dominic Chin Joon Siong v. PP
(Offence under s. 9(2) of the Aviation Offences Act 1984 - Whether sentence of 10 years
imprisonment imposed manifestly excessive) [2008] 2 CLJ
765
Ngu Chu Chiong v. Lina Soo
(Family Law - Maintenance - Variation - Application made seven years after) [2008] 2 CLJ
783
Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Ors
(Tort - Negligence - Liability - Damages caused to plaintiff's land due to collapse of
hill and limestone rock debris from defendants' quarry land) [2008] 2 CLJ
793
HIGH COURT
Irene Fernandez v. Utusan Melayu (M) Sdn Bhd & Anor
(Tort - Defamation - Newspaper publication) [2008] 2 CLJ
814
Re Wisun Soon; Ex P Wong Kok Poh & Anor
(Appeal against - Order for a stay of subsequent presentation of bankruptcy notice)
[2008] 2
CLJ 853
Orix Credit Malaysia Sdn Bhd v. City Motors
(Contract - Agreement - Repurchase/recourse agreement) [2008] 2 CLJ
856
Syed Abdul Rahman Wan Akil v. PP
(Criminal Procedure - Charge - Criminal breach of trust) [2008] 2 CLJ
871
SUBJECT INDEX
CIVIL PROCEDURE
Parties - Government, action against - Whether suit against third defendant vexatious
and frivolous - Whether on the basis of s. 70 of National Land Code plaintiff could sue
third defendant - Whether s. 2(a) of Public Authorities Protection Act 1948 invoked
Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Ors
(Mokhtar Sidin, Azmel Maamor & Zulkefli Makinudin JJCA) [2008] 2 CLJ
793 [CA]
Pleadings - Amendment - Statement of defence - Whether can be made at any stage of
proceeding before pronouncement of decision - Whether unlawful for third defendant to make
application at late stage - Whether trial judge correct to allow amendment
Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Ors
(Mokhtar Sidin, Azmel Maamor & Zulkefli Makinudin JJCA) [2008] 2 CLJ
793 [CA]
Stay of proceedings - Appeal against - Order for a stay of subsequent presentation of
bankruptcy notice unless costs to be paid by judgment creditors to judgment debtor be
taxed and paid - Whether unjust and inappropriate
Re Wisun Soon; Ex P Wong Kok Poh & Anor
(Kang Hwee Gee J) [2008] 2 CLJ
853 [HC]
CONTRACT
Agreement - Repurchase/recourse agreement - Standing master agreement between dealer
and finance company undertook hire purchase transaction where dealer guaranteed hirer's
obligation - Whether 'guarantor' under recourse agreement could seek protection under Hire
Purchase Act 1967 - Whether Hire Purchase Act 1967 applicable to a repurchase agreement
Orix Credit Malaysia Sdn Bhd v. City Motors
(Abdul Aziz Abdul Rahim J) [2008] 2 CLJ
856 [HC]
CRIMINAL PROCEDURE
Charge - Amendment - Whether repeated same offence - Criminal Procedure Code, s.
173(h)(ii) - Whether amendment must be other than offence charged - Criminal Procedure
Code, s. 422
Syed Abdul Rahman Wan Akil v. PP
(Hamid Sultan Abu Backer JC) [2008] 2 CLJ
871 [HC]
Charge - Criminal breach of trust - Allegation of - Whether prosecution failed to prove
accused a government servant - Letter tendered by prosecution to show appellant in
employment of government - Whether ought not have been admitted - Whether there was clear
substantiation to show property/money entrusted to appellant - Penal Code, s. 409
Syed Abdul Rahman Wan Akil v. PP
(Hamid Sultan Abu Backer JC) [2008] 2 CLJ
871 [HC]
Sentence - Appeal against - Accused guilty of offence under s. 9(2) of the Aviation
Offences Act 1984 - Whether sentence of 10 years imprisonment imposed manifestly excessive
- Whether an erroneous exercise of discretion - Whether sentence affirmed
Dominic Chin Joon Siong v. PP
(Low Hop Bing, Zainun Ali & Hasan Lah JJCA) [2008] 2 CLJ
765 [CA]
EVIDENCE
Affidavits - Admissibility - Affidavits of six deponents residing in New Zealand
produced in court through New Zealand detective inspector - Aviation Offences Act 1984, s.
6(1)(b) - Whether reflects intention of Parliament to dispense with attendance of relevant
witnesses for cross examination and designed to cover witnesses not found in Malaysia -
Whether applicable herein - Whether statutory requirements fulfilled
Dominic Chin Joon Siong v. PP
(Low Hop Bing, Zainun Ali & Hasan Lah JJCA) [2008] 2 CLJ
765 [CA]
FAMILY LAW
Children - Maintenance - Variation - Application for maintenance order to be varied -
Application made seven years after alleged need of maintenance - Whether evidence that
petitioner not in real need of money - Whether material change in circumstances proved -
Whether application fall under exception of r. 91(1)(b) of the Divorce and Matrimonial
Proceedings Rules 1980 - Whether respondents agreeable to amount of RM3,000 a month - Non
compliance of rr. 63,65 and 66 of the Divorce and Matrimonial Proceedings Rules 1980 -
Whether High Court Judge erred in his findings - Whether appeal allowed
Ngu Chu Chiong v. Lina Soo
(Zulkefli Makinudin, Suriyadi Halim Omar & Heliliah Mohd Yusof JJCA) [2008] 2 CLJ
783 [CA]
LIMITATION
Cause of action - Claim for loss based on breach of hire purchase agreement - Whether
item 94 of the Sarawak Limitation Ordinance applicable - Period calculated from date of
disposal of vehicle - Whether plaintiff within time - Whether claim against defendants
time barred
Orix Credit Malaysia Sdn Bhd v. City Motors
(Abdul Aziz Abdul Rahim J) [2008] 2 CLJ
856 [HC]
TORT
Defamation - Newspaper publication - Libel - Whether impugned article bore defamatory
meanings alleged by plaintiff - Whether defendants failed to establish defence of
justification - Evidence of malice - Whether defence of fair comment available - Whether
impugned article a piece of responsible journalism - Defence of qualified privilege -
Whether rejected - Whether impugned words in impugned article defamatory of plaintiff -
Whether defendants liable
Irene Fernandez v. Utusan Melayu (M) Sdn Bhd & Anor
(Tee Ah Sing J) [2008] 2 CLJ
814 [HC]
Negligence - Liability - Damages caused to plaintiff's land due to collapse of hill and
limestone rock debris from defendants' quarry land - Trial judge dismissed plaintiff's
application against defendants on grounds collapse occurred when quarry was not in
operation and was due to natural causes - Whether learned judge's conclusion that first
and second defendants could not be held liable to plaintiff both in negligence and
nuisance correct
Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Ors
(Mokhtar Sidin, Azmel Maamor & Zulkefli Makinudin JJCA) [2008] 2 CLJ
793 [CA]
2. CLJ Supp April (Part 2) 2008
COURT
HIGH COURT
Abdul Wahab Jam Jam v. Abdul Wahab Adbullah & Anor
(Road Traffic - Negligence - Motorcyclist colliding into rear of van) [2008] 7 CLJ
741
Alexander John Shek Kwok Bun v. Rich Avenue Sdn Bhd & Anor
(Contract - Construction - Plain and ordinary meaning) [2008] 7 CLJ
754
Dato' Tan Heng Chew v. Tan Kim Hor & Ors
(Civil Procedure - Amendment - Addition of new cause of action) [2008] 7 CLJ
776
Lim Poh Choo v. Absolute Ascend Sdn Bhd
(Company Law - Receivership - Appointment of receiver) [2008] 7 CLJ
810
PP v. Chung Tshun Tin & Ors (No 3)
(Criminal Procedure - Sentence - Deterrent sentence - Dangerous drugs related offences)
[2008] 7
CLJ 822
PP v. Mohammad Arfah Jasmi
(Criminal Procedure - Sentence - Statutory rape) [2008] 7 CLJ
836
SUBJECT INDEX
CIVIL PROCEDURE
Amendment - Addition of new cause of action - Power of court to grant amendment after
expiry of limitation period where effect of amendment will be to add or substitute a new
cause of action - New cause of action must arise out of same or substantially same facts
Dato' Tan Heng Chew v. Tan Kim Hor & Ors
(Abdul Malik Ishak J) [2008] 7 CLJ
776 [HC]
Amendment - Parties - Application for leave to substitute name of law firm with names
of its partners - Plaintiff attempting to amend his statement of claim by pleading
innuendo and seeking to introduce extrinsic facts - Whether will cause detriment and
prejudice to defendants which cannot be compensated by costs - Whether proposed amendments
made issues in controversy clearer - Whether proposed amendments would delay proceedings
further - Whether proposed amendments were a tactical manoeuvre which was an abuse of
court process - Proposed amendments would have nullified mutual concessions and admissions
that parties had made in statement of agreed facts - Whether application for amendment
disallowed
Dato' Tan Heng Chew v. Tan Kim Hor & Ors
(Abdul Malik Ishak J) [2008] 7 CLJ
776 [HC]
Amendment - Pleadings - Principles governing amendments - Whether application to amend
is bona fide - Whether prejudice caused to other side can readily be compensated by costs
- Whether amendments would turn suit from one character into a suit of another and
inconsistent character
Dato' Tan Heng Chew v. Tan Kim Hor & Ors
(Abdul Malik Ishak J) [2008] 7 CLJ
776 [HC]
COMPANY LAW
Receivership - Appointment of receiver - Appointment of receiver by court for
preserving property pending determination of a matter within court's jurisdiction under
Judicature Acts - Appointment made where there is some legal or equitable right that ought
to be protected and there is no other available remedy
Lim Poh Choo v. Absolute Ascend Sdn Bhd
(Ramly Ali J) [2008] 7 CLJ
810 [HC]
Receivership - Appointment of receivers - Company run solely by one shareholder without
any supervision by Board of Directors or other shareholders - Shareholder treating company
as his personal asset - Company heavily in debt - Requirements of Companies Act in respect
of corporate governance ignored - Whether mismanagement may cause company to become
insolvent and go into liquidation - Whether plaintiff will suffer loss if no receivers are
appointed and plaintiff's action succeeds - Whether assets of company in jeopardy -
Whether prima facie case for appointment of receivers made out
Lim Poh Choo v. Absolute Ascend Sdn Bhd
(Ramly Ali J) [2008] 7 CLJ
810 [HC]
Receivership - Duties of receiver - Receiver appointed by court is an officer of court
and is responsible to court - Cannot obey directions of other parties
Lim Poh Choo v. Absolute Ascend Sdn Bhd
(Ramly Ali J) [2008] 7 CLJ
810 [HC]
Shares - Ownership of shares - Section 100 of Companies Act 1965 - Share certificate
shall be prima facie proof of ownership of shares - Whether company not required to
recognize beneficial ownership of shares
Lim Poh Choo v. Absolute Ascend Sdn Bhd
(Ramly Ali J) [2008] 7 CLJ
810 [HC]
CONTRACT
Building contract - Terms - No timeline set in contract for vendor to connect water and
electricity supply - No timeline set in contract for vendor to obtain certificate of
fitness from appropriate authorities - Purchaser obliged to pay entire purchase price
without reciprocal obligation on vendor to deliver vacant possession of property - Whether
terms of contract were absurd - Whether terms did not make any business sense - Court to
amend terms which are absurd - Term amended to provide that vendor shall within 30 months
procure issuance of Certificate of Fitness for Occupation
Alexander John Shek Kwok Bun v. Rich Avenue Sdn Bhd & Anor
(David Wong Dak Wah J) [2008] 7 CLJ
754 [HC]
Construction - Plain and ordinary meaning - Whether court generally gives words in
contract their plain and natural meaning even if it leads to unreasonable result - Whether
contracts must be construed so as to avoid absurdity
Alexander John Shek Kwok Bun v. Rich Avenue Sdn Bhd & Anor
(David Wong Dak Wah J) [2008] 7 CLJ
754 [HC]
Public policy - Intervention by court - Constitutional duty of court to ensure that
dominant party in a standard form agreement does not abuse its position to detriment of
weaker party - Absurd terms - Public policy of ensuring that ordinary consumers are not
burdened with unconscionable terms in standard form contracts - Whether fact that
plaintiff was a qualified solicitor was of no relevance
Alexander John Shek Kwok Bun v. Rich Avenue Sdn Bhd & Anor
(David Wong Dak Wah J) [2008] 7 CLJ
754 [HC]
CRIMINAL PROCEDURE
Sentence - Appeal, against - Appeal by prosecution - Appeal by prosecution purely on
grounds of inadequacy of sentence when there is no demonstrable error in law by trial
judge - Whether wrong in principle for prosecution to appeal
PP v. Mohammad Arfah Jasmi
(Hamid Sultan Abu Backer JC) [2008] 7 CLJ
836 [HC]
Sentence - Statutory rape - Exercise of discretion for sentence for statutory rape
cannot be same as that for rape - Complainant and accused were lovers and complainant
agreed to have sex with accused - Statutory rape an offence of passion committed with
consent of parties - Discretion entirely with court what sentence to be imposed - Whether
minimum sentence of five years imprisonment without whipping is correct
PP v. Mohammad Arfah Jasmi
(Hamid Sultan Abu Backer JC) [2008] 7 CLJ
836 [HC]
Sentence - Dangerous drugs related offences - Possession of 1599.9 grammes of
Methamphetamine - Offence under s. 12(2) of Dangerous Drugs Act 1952 - Accused did not
plead guilty and were found guilty as charged at end of defence case - Weight of drugs
excessive - Sentence of life imprisonment and whipping of 24 strokes
PP v. Chung Tshun Tin & Ors (No 3)
(Hamid Sultan Abu Backer JC) [2008] 7 CLJ
822 [HC]
Sentence - Deterrent sentence - Dangerous drugs related offences - Drugs offences
greatest social menaces faced by nation - Drugs offences are serious offences - Deterrent
sentence to be imposed
PP v. Chung Tshun Tin & Ors (No 3)
(Hamid Sultan Abu Backer JC) [2008] 7 CLJ
822 [HC]
Sentence - Imprisonment for life - Amendments to s. 57 Penal Code - Substitution of
twenty years to thirty years as life imprisonment - Whether amendment affected present
case by virtue of art. 7 of Federal Constitution
PP v. Chung Tshun Tin & Ors (No 3)
(Hamid Sultan Abu Backer JC) [2008] 7 CLJ
822 [HC]
DAMAGES
Personal injuries - Intra-abdominal injury (Ileum perforation and sigmoid-colon
perforation) and compound Grade I Fracture of Right Radius and Right Ulna - Whether
quantum of RM60,000 adequate
Abdul Wahab Jam Jam v. Abdul Wahab Adbullah & Anor
(Mohamed Apandi Ali J) [2008] 7 CLJ
741 [HC]
ROAD TRAFFIC
Licence - Driving motor vehicle without licence - Whether not having a valid driving
license in itself means that driver is negligent - Whether indicates driver not competent
- Motorcyclist admitted guilty for negligence driving under r. 10 - Whether motorcyclist
80% liable for accident
Abdul Wahab Jam Jam v. Abdul Wahab Adbullah & Anor
(Mohamed Apandi Ali J) [2008] 7 CLJ
741 [HC]
Negligence - Motorcyclist colliding into rear of van - Conflicting versions of how
accident happened - Van driver's evidence more consistent as his police report was made on
day of accident whereas motorcyclist's police report was made two months after accident -
No brake marks at scene of accident to support motorcyclist's allegation of sudden braking
by van driver
Abdul Wahab Jam Jam v. Abdul Wahab Adbullah & Anor
(Mohamed Apandi Ali J) [2008] 7 CLJ
741 [HC]
COURT
COURT OF APPEAL
Nagartanam Balaraju v. Ireka Construction Bhd
(Contract - Construction - Deposit paid, whether forfeitable - Terms and conditions)
[2008] 3 CLJ
1
HIGH COURT
Arthur Ponniah Gurubatham & Satu Lagi lwn.Pentadbir Tanah Wilayah Persekutuan
(Pengambilanbalik tanah - Bantahan terhadap award - Permohonan untuk perlanjutan masa)
[2008] 3
CLJ 17
Chinaya Ganggaya v. Sentul Raya Sdn Bhd
(Housing development - Sale and purchase agreement - Terms thereof - Whether statutory
in nature) [2008] 3 CLJ
23
Dynamic Plantations Bhd v. Pentadbir Tanah Daerah Segamat
(Acquisition of land - Objection to award - Whether filed within time stipulated - Land
Acquisition Act 1960, ss. 14, 16, 38(3)(a)) [2008] 3 CLJ
37
Ikatan Innovasi Sdn Bhd v. KACC Construction Sdn Bhd
(Mareva injunction - Application for injunction restraining defendant from removing its
assets pending disposal of arbitration proceedings) [2008] 3 CLJ
48
KMA Marketing Sdn Bhd v. MBf Leasing Sdn Bhd; Kiong Huat Transport & Engineering
Construction & Anor (Third Parties)
(Execution - Stay - Judgment - Winding-up - Special circumstances) [2008] 3 CLJ
66
Lechemanavasagar S Karuppiah v. Dr Thomas Yau Pak Chenk & Anor
(Tort - Medical negligence - Standard of care - Causation - Vicarious liability) [2008] 3 CLJ
76
PP v. Arokiasamy Alphonso
(Penal Code - Section 302 - Murder - Admissibility of confession of accused - Defence
of legal insanity) [2008] 3 CLJ
96
SUBJECT INDEX
CIVIL PROCEDURE
Execution - Stay - Judgment - Winding-up - Special circumstances - Recovery of payment
- Scheme of arrangement - Fruits of litigation theory - Nugatoriness
KMA Marketing Sdn Bhd v. Mbf Leasing Sdn Bhd; Kiong Huat Transport & Engineering
Construction & Anor (Third Parties)
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
66 [HC]
Injunction - Mareva injunction - Application for injunction restraining defendant from
removing its assets pending disposal of arbitration proceedings - Principles applicable -
Serious risk of dissipation - Lack of probity - Whether grant of injunction would be
oppressive to defendant
Ikatan Innovasi Sdn Bhd v. KACC Construction Sdn Bhd
(Abdul Aziz Rahim J) [2008] 3 CLJ
48 [HC]
Judgments and orders - Stay of execution - Winding-up - Special circumstances -
Recovery of payment - Scheme of arrangement - Fruits of litigation theory - Nugatoriness
KMA Marketing Sdn Bhd v. Mbf Leasing Sdn Bhd; Kiong Huat Transport & Engineering
Construction & Anor (Third Parties)
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
66 [HC]
CONTRACT
Construction - Deposit paid, whether forfeitable - Terms and conditions - Procedure for
exercise of right to forfeit - Pleadings - Hire-purchase agreement - Whether appropriation
of security deposit unlawful and void
Nagartanam Balaraju v. Ireka Construction Bhd
(Zaleha Zahari, Kn Segara & Ahmad Maarop JJCA) [2008] 3 CLJ 1
Deposit - Forfeiture - Terms and conditions - Procedure for exercise of right to
forfeit - Pleadings - Hire-purchase agreement - Whether appropriation of security deposit
unlawful and void
Nagartanam Balaraju v. Ireka Construction Bhd
(Zaleha Zahari, Kn Segara & Ahmad Maarop JJCA) [2008] 3 CLJ 1
[CA]
Doctrine of frustration - Applicability - Housing developer - Delay in completion and
delivery of vacant possession - Liability - Whether could plead frustration and attribute
delay to national economic crisis - Contracts Act 1950 s. 57(2)
Chinaya Ganggaya v. Sentul Raya Sdn Bhd
(Hishamudin Mohd Yunus J) [2008] 3 CLJ
23 [HC]
Housing development - Sale and purchase agreement - Terms thereof - Whether statutory
in nature - Condominium unit - Delay in delivery of vacant possession and completion of
common facilities - Whether purchaser entitled to liquidated damages as of right upon
delay - Section 56(3) Contracts Act 1950 - Requirement as to notice - Whether irrelevant -
Housing Developers (Control and Licensing) Act 1966 s. 24 - Housing Developers (Control
and Licensing) Regulations 1989 reg. 11, Schedule H - Contracts Act 1950 ss. 56(3), 57(2)
Chinaya Ganggaya v. Sentul Raya Sdn Bhd
(Hishamudin Mohd Yunus J) [2008] 3 CLJ
23 [HC]
CRIMINAL LAW
Penal Code - Section 302 - Murder - Admissibility of confession of accused - Culpable
homicide - Defence of legal insanity - Whether proven - Whether accused ought to be
acquitted
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
CRIMINAL PROCEDURE
Trial - Admissibility of statement - Whether statement made by accused could be
admitted as a confession - Corroborative evidence - Whether prima facie case made out
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
Trial - Close of prosecution’s case - Whether statement made by accused could be
admitted as a confession - Corroborative evidence - Whether prima facie case made out
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
Trial - Defence - Exceptions 1 and 4 of s. 300 Penal Code - Grave and sudden
provocation - Sudden fight in heat of passion upon a sudden quarrel - Culpable homicide
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
Trial - Defence - Legal insanity - Test applicable - Whether burden of proof discharged
- Expert medical opinion - Absence of motive - Whether there was premeditation - Penal
Code,
s. 84 - Criminal Procedure Code, s. 347
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
Trial - Statement to police - Whether statement made by accused could be admitted as a
confession - Corroborative evidence - Whether prima facie case made out
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
EVIDENCE
Burden of proof - Insanity - Whether accused succeeded in discharging burden of proof -
Expert medical opinion - Absence of motive
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
Confession - Made to a police officer - Whether statement made by accused could be
admitted as a confession - Corroborative evidence - Whether prima facie case made out
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
Expert evidence - Examination of expert on insanity - Absence of evidence in rebuttal -
Assessment of weight of expert’s evidence
PP v. Arokiasamy Alphonso
(Kang Hwee Gee J) [2008] 3 CLJ
96 [HC]
LAND LAW
Acquisition of land - Objection to award - Whether filed within time stipulated -
Whether six-week period should run from date of Land Administrator’s oral award or
written award - Land Acquisition Act 1960, ss. 14, 16, 38(3)(a)
Dynamic Plantations Bhd v. Pentadbir Tanah Daerah Segamat
(Ahmadi Asnawi JC) [2008] 3 CLJ
37 [HC]
TORT
Negligence - Hospital - Medical negligence - Alleged negligence of doctor and staff
during and after operation - Special and general damages - Standard of care - Causation -
Vicarious liability - Reasonable and responsible practice
Lechemanavasagar S Karuppiah v. Dr Thomas Yau Pak Chenk & Anor
(Rohana Yusuf J) [2008] 3 CLJ
76 [HC]
WORDS & PHRASES
"Shall pay immediately" - Clauses 22(2), 24(2), standard sale and purchase
agreement in Schedule H of Housing Developers (Control and Licensing) Regulations 1989 -
Meaning and import - Whether purchaser’s right to be paid LAD automatic once there
was delay by developer
Chinaya Ganggaya v. Sentul Raya Sdn Bhd
(Hishamudin Mohd Yunus J) [2008] 3 CLJ
23 [HC]
UNDANG-UNDANG TANAH
Pengambilanbalik tanah - Bantahan terhadap award - Permohonan untuk perlanjutan masa -
Tempoh masa memfailkan bantahan - Hal keadaan khas - Akta Pengambilanbalik Tanah 1960, ss.
12, 14(1), 16, 38(3)(a), (4)
Arthur Ponniah Gurubatham & Satu Lagi lwn. Pentadbir Tanah Wilayah Persekutuan
(Tengku Maimun H) [2008] 3 CLJ
17 [HC]
COURT
HIGH COURT
Koh Siew Hoon lwn. Bumiputra-Commerce Bank Bhd
(Keterangan - Pengakuan - Pengakuan fakta - Surat pengakuan) [2008] 8 CLJ 1
Mycom Bhd v. Lin Wen Chih & Anor
(Company Law - Winding up - Petition - Opposition to winding up) [2008] 8 CLJ
13
New-West Management Group Sdn Bhd & Anor v. Ng Ah Kow & Anor
(Civil Procedure - Injunction - Interlocutory injunction - Application for) [2008] 8 CLJ
18
Subramaniam Paramasivam v. Malayan Finance Bhd
(Civil Procedure - Transfer - Sessions Court to High Court) [2008] 8 CLJ
52
The New Straits Times, Press (Malaysia) Bhd & Ors v. Ahirudin Attan
(Civil Procedure - Contempt of court - Order of committal, application for) [2008] 8 CLJ
56
Yap Chiang v. Koh Sau Choon & Anor
(Civil Procedure - Summary possession of land - Application for - Locus standi) [2008] 8 CLJ
63
Yong Gye Thiam v. Bong Pin Nyen
(Tort - Negligence - Liability - Appeal against) [2008] 8 CLJ
70
SUBJECT INDEX
CIVIL PROCEDURE
Contempt of court - Order of committal, application for - Whether respondent breached
undertaking given to High Court - Whether respondent’s actions were of such nature
that could be regarded as sub judice or prejudice fair trial of action - Order 52 r. 2(2)
Rules of the High Court 1980 - Whether complied with - Whether applicants failed to
disclose prima facie case of contempt of court
The New Straits Times, Press (Malaysia) Bhd & Ors v. Ahirudin Attan
(Hishamudin Mohd Yunus J) [2008] 8 CLJ
56 [HC]
Counterclaim - Sessions Court - Jurisdiction - Counterclaim exceeding value limit of
Sessions Court’s jurisdiction - Whether Sessions Court would have jurisdiction if
parties come to agreement to confer it pursuant to s. 65(3) and (4) Subordinate Courts Act
1948 - Whether plaintiff’s application to transfer civil suit to High Court premature
Subramaniam Paramasivam v. Malayan Finance Bhd
(Hishamudin Mohd Yunus J) [2008] 8 CLJ
52 [HC]
Injunction - Interlocutory injunction - Application for - Restraining defendants from
passing off trade the name and style similar to plaintiff’s business - Whether
ownership of business between plaintiffs and defendants have passed - Whether agreement
showed goodwill and name transferred to plaintiffs - Provisions of Medical Act 1971 -
Whether prohibits body corporate from owning clinics - Whether sale of business with
goodwill - Whether facts fall within exceptions under s. 28 of Contracts Act 1950 -
Whether restraint or limitation imposed on defendants under agreement reasonable having
regard to nature of business - Balance of convenience - Whether in favour of granting
interlocutory injunction
New-West Management Group Sdn Bhd & Anor v. Ng Ah Kow & Anor
(Ramly Ali J) [2008] 8 CLJ
18 [HC]
Summary possession of land - Application for - Locus standi - Whether plaintiff given
right or title by relevant authority - Whether plaintiff has standing under O. 89 Rules of
the High Court 1980 - Whether plaintiff could maintain a right to possession - Evidence
Act 1950, s. 42
Yap Chiang v. Koh Sau Choon & Anor
(Abdul Wahab Patail J) [2008] 8 CLJ
63 [HC]
Transfer - Sessions Court to High Court - Counterclaim exceeding value limit of
Sessions Court’s jurisdiction - Whether Sessions Court would have jurisdiction if
parties come to agreement to confer it pursuant to s. 65(3) and (4) Subordinate Courts Act
1948 - Whether plaintiff’s application to transfer civil suit to High Court premature
Subramaniam Paramasivam v. Malayan Finance Bhd
(Hishamudin Mohd Yunus J) [2008] 8 CLJ
52 [HC]
COMPANY LAW
Winding up - Petition - Opposition to winding up - Application to restrain respondents
from presenting petition to wind up - Allegation that respondents used irregular order of
High Court - Whether proved - Whether affected validity of intended presentation to wind
up - Whether applicant obliged to pay judgment sum - Whether open to applicant to seek
injunctive order to restrain respondents from presenting winding up petition - Companies
Act 1965, s. 218(1)(e)
Mycom Bhd v. Lin Wen Chih & Anor
(Kang Hwee Gee J) [2008] 8 CLJ
13 [HC]
TORT
Negligence - Liability - Appeal against - Whether Sessions Court Judge correct in
holding appellant liable for negligence in fire that burnt respondent’s house -
Shimuzu Corporation v. Ling Tiang Chuan & Anor - Leong Bee & Co v. Ling Nam Rubber
Works - Reliance of - Whether could exist side by side - Whether Sessions Court Judge
applied correct burden of proof - Whether s. 3(b) of Miri District Council (Prevention of
Fire) By-Laws complied with - Whether there were adequate factors for SCJ to make
inferences on who caused fire - Whether SCJ correct in applying principles of law -
Whether sum awarded for loss of house remained - Whether there were variations of other
costs
Yong Gye Thiam v. Bong Pin Nyen
(David Wong Dak Wah J) [2008] 8 CLJ
70 [HC]
TRADEMARKS
Goodwill - Whether sufficiently established - Restraining defendants from passing off
trade the name and style similar to plaintiff’s business - Whether ownership of
business between plaintiffs and defendants have passed - Whether agreement showed goodwill
and name transferred to plaintiffs - Provisions of Medical Act 1971 - Whether prohibits
body corporate from owning clinics - Whether sale of business with goodwill - Whether
facts fall within exceptions under s. 28 of Contracts Act 1950 - Whether restraint or
limitation imposed on defendants under agreement reasonable having regard to nature of
business - Balance of convenience - Whether in favour of granting interlocutory injunction
New-West Management Group Sdn Bhd & Anor v. Ng Ah Kow & Anor
(Ramly Ali J) [2008] 8 CLJ
18 [HC]
INDEKS PERKARA
KETERANGAN
Pengakuan - Pengakuan fakta - Surat pengakuan - Sama ada jelas dan tidak kabur - Sama
ada surat 6 Januari 1999 (surat tersebut) merupakan pengakuan defendan tidak mengeluarkan
jumlah pinjaman kepada plaintif - Sama ada surat tersebut relevan dengan tuntutan plaintif
terhadap defendan - Sama ada permohonan plaintif untuk memasukkan satu penghakiman
terhadap defendan berasaskan kandungan surat tersebut silap dari seri fakta dan
undang-undang - Kaedah-kaedah Mahkamah Tinggi 1980, A. 27 k. 3
Koh Siew Hoon lwn. Bumiputra-Commerce Bank Bhd
(Azahar Mohamed H) [2008] 8 CLJ 1
[HC]
CASE OF THE WEEK
N/A
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