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    CLJ Bulletin, Issue 2015, Vol 11
13 March 2015



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New This Week

1. Cases(s) Of The Week

a) DREAM PROPERTY SDN BHD v. ATLAS HOUSING SDN BHD

2. Latest Cases

a) Legal Network Series

b) CLJ 2015 Volume 2 (Part 4)

3. Articles

a) Legal Network Series Article(s)

4. Legislation Highlights

a) Principal Acts

b) Amending Acts

c) PU(A)

d) PU(B)


CASES(S) OF THE WEEK

DREAM PROPERTY SDN BHD v. ATLAS HOUSING SDN BHD
FEDERAL COURT, PUTRAJAYA
RAUS SHARIF PCA, AHMAD MAAROP FCJ, HASAN LAH FCJ, RAMLY ALI FCJ, AZAHAR MOHAMED FCJ
[APPEAL NO: 02(F)-13-02-2014 (J)]
12 FEBRUARY 2015

CONTRACT: Breach - Sale and purchase agreement (`SPA') - Purchaser failed to pay balance of purchase price within completion date - Automatic termination of SPA - Whether enforceable under s. 56 Contracts Act 1950 - Whether vendor entitled to terminate agreement and recover vacant possession of land - Purchaser built shopping mall on land - Whether land improved and enhanced - Whether purchaser should be awarded restitution - Whether restitution restricted to costs of construction of building or enhancement of market value - Purchaser only liable for breach of contract and not fiduciary duty - Whether purchaser required to account for profit - Whether there was acceptance of interim payment which could revive SPA - Doctrine of unjust enrichment - Whether vendor gained enrichment at purchaser's expense - Whether purchaser entitled to monetary award in sum equivalent to current market value - Whether vendor only entitled to market rent of unimproved land and not for account of profits

CONTRACT: Sale of land - Agreement - Breach - Recovery of vacant possession - Application for - Purchaser failed to pay balance of purchase price within completion date - Automatic termination of SPA - Whether enforceable under s. 56 Contracts Act 1950 - Whether vendor entitled to terminate agreement - Purchaser built shopping mall on land - Whether land improved and enhanced - Whether purchaser should be awarded restitution - Whether restitution restricted to costs of construction of building or enhancement of market value - Purchaser only liable for breach of contract and not fiduciary duty - Whether purchaser required to account for profit - Whether there was acceptance of interim payment which could revive SPA - Doctrine of unjust enrichment - Whether vendor gained enrichment at purchaser's expense - Whether purchaser entitled to monetary award in sum equivalent to current market value - Whether vendor only entitled to market rent of unimproved land and not for account of profits

CONTRACT: Breach - Remedies - Sale and purchase agreement - Purchaser failed to pay balance of purchase price within completion date - Whether vendor entitled to terminate agreement and recover vacant possession - Purchaser built shopping mall on land - Whether land improved and enhanced - Whether purchaser should be awarded restitution - Whether restitution restricted to costs of construction of building or enhancement of market value - Purchaser only liable for breach of contract and not fiduciary duty - Whether purchaser required to account for profit - Whether there was acceptance of interim payment which could revive SPA - Doctrine of unjust enrichment - Whether vendor gained enrichment at purchaser's expense - Whether purchaser entitled to monetary award in sum equivalent to current market value - Whether vendor only entitled to market rent of unimproved land and not for account of profits

LATEST CASES

Legal Network Series

[2014] 1 LNS 217

VASU KRISHNAN v. MALAYSIAN MOTOR INSURANCE POOL

CIVIL PROCEDURE: Appeal - Appeal against decision of sessions court - Civil suit on the accident already pending in Sessions Court - Originating Summons filed by insurers for a declaration that they were not liable to pay plaintiff damages that may be awarded by Sessions Court - Issue where accident occurred a subject of dispute and had yet to be decided in the Sessions Court - Whether insurer's application misconceived and an abuse of the process of court - Whether application premature - Whether a multiplicity of proceedings if this application allowed to co-exist with the personal injury action - Whether tantamount to an abuse of process

[2014] 1 LNS 224

BUKIT KAPAR DEVELOPMENT SDN BHD v. KERAJAAN NEGERI SELANGOR & ANOR

ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - To quash 1st respondent's decision to acquire applicant's land - s. 8 Notice of Intended Acquisition of the Land gazetted on 5.4.2012 - Whether applicant deemed to have had notice of the decision of intended acquisition on 5.4.2011 - Applicant received Forms E & F on 3.8.2012 - Applicant's representatives attended 1st land enquiry on 28.8.2012 - Whether timeline for filing application would have expired on 3.11.2012 or at the latest 28.11.2012 - Whether application for judicial review filed on 13.12.2012 was time barred - Whether the Court had jurisdiction to entertain the application

[2014] 1 LNS 290

PERSEKUTUAN TIONG-HUA JOHOR BAHRU v. LIM KAH CHUAN

CIVIL PROCEDURE: Declaration - Application for - Declaratory order sought whether a public company was qualified to become a member of a registered society within the definition of "society" under s. 2 of the Societies Act 1966 (SA) - Whether concerned the legal character or right of plaintiff in respect of membership in the defendant specifically - Whether general declaratory order sought met requirements of s. 41 Specific Relief Act (SRA) - Whether eligibility for membership dependent on the Rules and Regulations or Constitution governing its operation - Declaration sought purely interpretation of provisions of the law, specifically s. 2 of SA, without reference to any legal character or to any right - Whether a general declaration made without considering defendant's Rules and Regulations or Constitution would contravene s. 41 of the SRA

CIVIL PROCEDURE: Declaration - Discretion to grant declaration - Temporary suspension of plaintiff's membership in defendant's society - Determination whether plaintiff's qualification for membership was affected by its status - Decision yet to be made whether its membership should be revoked - Whether premature for the Court to exercise its discretion to grant the order sought

CIVIL PROCEDURE: Declaration - Alternative remedies to be exhausted - Dispute between plaintiff and defendant pertaining to plaintiff's right to membership in the society - Whether plaintiff must exhaust the statutory avenues and remedies available before seeking declaratory orders from the Court - Whether the Court justified in exercising its discretion under s. 41(1) SRA to make the orders - Whether application premature

[2014] 1 LNS 292

MANIVANNAN NALATAMBY & ANOR v. WONG SIEW LING & ORS

CIVIL PROCEDURE: Appeal - Appeal against decision of Sessions Court - Appeal on liability - Whether any valid grounds for intervention to upset the findings made by Sessions Court Judge (SCJ) - Whether appellants satisfied onus to show that SCJ had seriously misdirected himself - Whether SCJ had seriously erred in his decision on apportionment of liability between the parties - Whether appeal against decision on liability had any merits

CIVIL PROCEDURE: Appeal - Appeal against decision of Sessions Court - Appeal on quantum - Loss of dependency - SCJ relied on oral statement of PW2 without supporting evidence - Whether SCJ wrong in principle and made an erroneous estimate of the multiplicand applicable for the claim of loss of support - Whether SCJ also erred in finding PW2's evidence on this issue unchallenged - Whether a more reasonable award was RM2,500.00 per month on the same multiplier - Whether multiplicand of RM2,500.00 per month was consistent with evidence as to the amount reasonably required for plaintiffs' support

[2014] 1 LNS 294

OCBC BANK (MALAYSIA) BERHAD v. KANG HAI REALTY SENDIRIRAN BERHAD

LAND LAW: Charge - Order for sale - Application for - Alleged fraud against directors of defendant and conspiracy in creation of charge in plaintiff's favour - Absence of proof of fraud and conspiracy - Whether plaintiff's interest in the subject land as Chargee remained indefeasible by virtue of registration of the charge in its favour - S. 340 (1) of the National Land Code 1965 - Whether cause to the contrary shown

COMPANY LAW: Indoor management rule - When applicable - Defendant's Resolution at an EGM consenting to the creation of charge - Alleged that resolution was invalid on the grounds of fraud and conspiracy - Whether plaintiff entitled to rely on the indoor management rule and assume that resolution was valid and defendant's consent to creation of the charge was lawful - Whether defendant came within the exceptions to the indoor management rule

COMPANY LAW: Directors - Authority - Previous directors' consent to the Order declaring their appointment as directors as invalid - Whether the charge could be retrospectively nullified by a Consent Order obtained several years later - Whether an admission that bound plaintiff or rendered the charge invalid - At the time charge was executed, whether directors had ostensible authority to enter into the charge on behalf of defendant - Whether their authority could be retrospectively revoked

CLJ 2015 Volume 2 (Part 4)

COURT

FEDERAL COURT

Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Contract - Breach - Remedies - Sale and purchase agreement - Termination - Whether enforceable under s. 56 Contracts Act 1950 - Whether purchaser should be awarded restitution - Doctrine of unjust enrichment) [2015] 2 CLJ 453 [FC]

COURT OF APPEAL

Airasia Bhd v. Rafizah Shima Mohamed Aris
(Contract; Constitutional Law; International Law - Employment contract - Termination - Validity - Agreement for training programme required respondent to resign upon being pregnant - Whether discriminatory against respondent's rights as married woman) [2015] 2 CLJ 510 [CA]

Fadzil Harun v. Mohd Azrul Md Ariffin & Anor
(Tort; Road Traffic; Damages - Negligence - Road accident - Collision between motorcar and motorcycle) [2015] 2 CLJ 525 [CA]

Network Pet Products (M) Sdn Bhd v. Royal Canin SAS & Anor
(Contract; Tort - Oral agreement - Existence of oral agreement - Whether proven) [2015] 2 CLJ 530 [CA]

HIGH COURT

Agus v. PP
(Criminal Procedure - Confiscation of ship used for smuggling diesel - Application for revision) [2015] 2 CLJ 548 [HC]

Datuk Seri Anwar Ibrahim v. Wan Muhammad Azri Wan Deris
(Tort - Defamation - Libel - Blog published statements alleged to be defamatory to discredit plaintiff) [2015] 2 CLJ 557 [HC]

Mohd Razaly Rahmad v. PP
(Criminal Procedure; Evidence - Identification parade - Whether identification made in ideal circumstances - Turnbull guidelines) [2015] 2 CLJ 574 [HC]

Pelita Rasa Sdn Bhd & Ors v. Theeban Vengadesh Govintarau
(Damages - Measure of damages - Assessment - Whether liability correctly apportioned - Whether damages awarded fair and reasonable) [2015] 2 CLJ 593 [HC]

SUBJECT INDEX

CONSTITUTIONAL LAW

Fundamental liberties - Equal protection - Gender discrimination - Agreement for training programme required respondent to resign upon being pregnant - Whether agreement contravened art. 8 of Federal Constitution - Whether in contravention of Convention on the Elimination of All Forms of Discrimination Against Women
Airasia Bhd v. Rafizah Shima Mohamed Aris
(Zaharah Ibrahim, Mohd Zawawi Salleh, Umi Kalthum JJCA) [2015] 2 CLJ 510 [CA]

Legislation - International law - Convention on Elimination of All Forms of Discrimination Against Women - Whether has force of law in Malaysia - Whether incorporated into domestic law by Act of Parliament
Airasia Bhd v. Rafizah Shima Mohamed Aris
(Zaharah Ibrahim, Mohd Zawawi Salleh, Umi Kalthum JJCA) [2015] 2 CLJ 510 [CA]

CONTRACT

Breach - Remedies - Sale and purchase agreement - Purchaser failed to pay balance of purchase price within completion date - Whether vendor entitled to terminate agreement and recover vacant possession - Purchaser built shopping mall on land - Whether land improved and enhanced - Whether purchaser should be awarded restitution - Whether restitution restricted to costs of construction of building or enhancement of market value - Purchaser only liable for breach of contract and not fiduciary duty - Whether purchaser required to account for profit - Whether there was acceptance of interim payment which could revive SPA - Doctrine of unjust enrichment - Whether vendor gained enrichment at purchaser's expense - Whether purchaser entitled to monetary award in sum equivalent to current market value - Whether vendor only entitled to market rent of unimproved land and not for account of profits
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Raus Sharif PCA, Ahmad Maarop, Hasan Lah, Ramly Ali, Azahar Mohamed FCJJ) [2015] 2 CLJ 453 [FC]

Breach - Sale and purchase agreement ('SPA') - Purchaser failed to pay balance of purchase price within completion date - Automatic termination of SPA - Whether enforceable under s. 56 Contracts Act 1950 - Whether vendor entitled to terminate agreement and recover vacant possession of land - Purchaser built shopping mall on land - Whether land improved and enhanced - Whether purchaser should be awarded restitution - Whether restitution restricted to costs of construction of building or enhancement of market value - Purchaser only liable for breach of contract and not fiduciary duty - Whether purchaser required to account for profit - Whether there was acceptance of interim payment which could revive SPA - Doctrine of unjust enrichment - Whether vendor gained enrichment at purchaser's expense - Whether purchaser entitled to monetary award in sum equivalent to current market value - Whether vendor only entitled to market rent of unimproved land and not for account of profits
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Raus Sharif PCA, Ahmad Maarop, Hasan Lah, Ramly Ali, Azahar Mohamed FCJJ) [2015] 2 CLJ 453 [FC]

Employment contract - Termination - Validity - Agreement for training programme required respondent to resign upon being pregnant - Whether discriminatory against respondent's rights as married woman - Whether agreement contravened art. 8 of Federal Constitution - Whether in contravention of Convention on the Elimination of All Forms of Discrimination Against Women - Whether there was lawful contract between private parties
Airasia Bhd v. Rafizah Shima Mohamed Aris
(Zaharah Ibrahim, Mohd Zawawi Salleh, Umi Kalthum JJCA) [2015] 2 CLJ 510 [CA]

Oral agreement - Existence of oral agreement - Oral agreement of partnership - Whether proven - Commercial relationship of 15 years - Whether characterised as agency simpliciter or de facto partnership - Whether allegation of tort of conspiracy to injure and inducing breach of contract proven
Network Pet Products (M) Sdn Bhd v. Royal Canin SAS & Anor
(Mohamad Ariff Yusof, Mah Weng Kwai, David Wong Dak Wah JJCA) [2015] 2 CLJ 530 [CA]

Sale of land - Agreement - Breach - Recovery of vacant possession - Application for - Purchaser failed to pay balance of purchase price within completion date - Automatic termination of SPA - Whether enforceable under s. 56 Contracts Act 1950 - Whether vendor entitled to terminate agreement - Purchaser built shopping mall on land - Whether land improved and enhanced - Whether purchaser should be awarded restitution - Whether restitution restricted to costs of construction of building or enhancement of market value - Purchaser only liable for breach of contract and not fiduciary duty - Whether purchaser required to account for profit - Whether there was acceptance of interim payment which could revive SPA - Doctrine of unjust enrichment - Whether vendor gained enrichment at purchaser's expense - Whether purchaser entitled to monetary award in sum equivalent to current market value - Whether vendor only entitled to market rent of unimproved land and not for account of profits
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Raus Sharif PCA, Ahmad Maarop, Hasan Lah, Ramly Ali, Azahar Mohamed FCJJ) [2015] 2 CLJ 453 [FC]

Termination - Notice - Adequacy - Non-renewal of distributorship agreement - Commercial relationship of 15 years - Nine months' notice of termination - Whether reasonable - Whether injury caused
Network Pet Products (M) Sdn Bhd v. Royal Canin SAS & Anor
(Mohamad Ariff Yusof, Mah Weng Kwai, David Wong Dak Wah JJCA) [2015] 2 CLJ 530 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Accused person convicted for gang robbery at convenience store - Sentenced to four years imprisonment and one stroke of rotan by Sessions Court - Robbers came in store wearing helmets with visors and fled scene when police arrived - Accused person caught by member of public while two others remained at large - Employees of stores identified accused person through identification parade - Conviction made based on evidence of identification - Whether prosecution proved case beyond reasonable doubt - Whether conviction and sentence safe - Penal Code, ss. 395 & 397
Mohd Razaly Rahmad v. PP
(Collin Lawrence Sequerah JC) [2015] 2 CLJ 574 [HC]

Appeal - Confiscation and forfeiture - Confiscation of ship used for smuggling diesel - Order of Sessions Court Judge - Application for revision - Whether ship could be confiscated only if ship owner was charged and convicted - Whether confiscation wrong in law - Whether stay to keep ship under custody should be allowed - Control of Supplies Act 1961 (Revised 2006), s. 26(1) - Federal Constitution, art. 13
Agus v. PP
(Sabirin Ja'afar JC) [2015] 2 CLJ 548 [HC]

Appeal - Sentence - Appeal against sentence - Accused charged for smuggling diesel - Plea of guilt - Fine of RM100,000 in default six months imprisonment imposed by Sessions Court Judge - Application for revision - Whether High Court could hear application for revision upon affirming sentence during appeal - Failure of prosecution to tender chemist report to ascertain whether oil seized was in fact diesel - Whether conviction a miscarriage of justice
Agus v. PP
(Sabirin Ja'afar JC) [2015] 2 CLJ 548 [HC]

DAMAGES

Apportionment - Joint tortfeasors - Sessions Court finding that motorcycle rider was 70% liable and car driver was 30% liable towards pillion rider - Joint tortfeasor - Whether motorcar driver could claim 70% contribution of damages from motorcycle rider
Fadzil Harun v. Mohd Azrul Md Ariffin & Anor
(Mohd Zawawi Salleh, Idrus Harun, Prasad Sandosham Abraham JJCA) [2015] 2 CLJ 525 [CA]

Measure of damages - Assessment - Claimant climbed on lorry to cover tyres with canvas - Lorry driver moved lorry without prior warning to claimant - Claimant fell on forklift and suffered serious injuries - Claimant became paralysed waist down and wheelchair bound - Claim for compensation - Whether first defendant personally liable in negligence - Whether claimant at all times an employee of third defendant - Appeal against liability and quantum of damages awarded by Sessions Court - Whether liability correctly apportioned - Whether damages awarded fair and reasonable
Pelita Rasa Sdn Bhd & Ors v. Theeban Vengadesh Govintarau
(Lim Chong Fong JC) [2015] 2 CLJ 593 [HC]

EVIDENCE

Identification evidence - Identification parade - Accused person appealed against conviction and sentence for offence of gang robbery - Penal Code, ss. 395 & 397 - Appeal against decision of Sessions Court - Robbers robbed convenience store wearing helmets with visors and fled scene when police arrived - Accused person caught and identified by employees of convenience store as one of the robbers - Sessions Court convicted accused person based on identification by employees - Whether employees had clear view of robbers since they were wearing helmets with visors - Whether identification made in ideal circumstances - Whether prima facie case established - Turnbull guidelines - Whether conviction and sentence safe
Mohd Razaly Rahmad v. PP
(Collin Lawrence Sequerah JC) [2015] 2 CLJ 574 [HC]

INTERNATIONAL LAW

Conventions - Binding effect within Malaysia - Convention on Elimination of All Forms of Discrimination Against women - Whether has force of law in Malaysia - Provisions of international obligations - Whether has any binding effect if it was not expressly incorporated into domestic law by an Act of Parliament
Airasia Bhd v. Rafizah Shima Mohamed Aris
(Zaharah Ibrahim, Mohd Zawawi Salleh, Umi Kalthum JJCA) [2015] 2 CLJ 510 [CA]

ROAD TRAFFIC

Pillion riding - Collision between motorcar and motorcycle - Sessions Court's finding that motorcycle rider was 70% liable and car driver was 30% liable towards pillion rider - Joint tortfeasor - Whether motorcar driver could claim 70% contribution of damages from motorcycle rider
Fadzil Harun v. Mohd Azrul Md Ariffin & Anor
(Mohd Zawawi Salleh, Idrus Harun, Prasad Sandosham Abraham JJCA) [2015] 2 CLJ 525 [CA]

TORT

Defamation - Damages - Libellous statements published on blog to discredit plaintiff - Claim for general and exemplary damages - Whether statements made by blogger defamatory - Whether statements referred to plaintiff - Whether statements were published - Proper amount to be awarded for damages
Datuk Seri Anwar Ibrahim v. Wan Muhammad Azri Wan Deris
(Rosilah Yop JC) [2015] 2 CLJ 557 [HC]

Defamation - Libel - Blog published statements alleged to be defamatory to discredit plaintiff - Demand by plaintiff for retraction of statements, apology and compensation - Failure of blogger to meet plaintiff's demands - Whether blogger received letter of demand - Whether statements made by blogger defamatory - Whether statements referred to plaintiff - Whether statements were published
Datuk Seri Anwar Ibrahim v. Wan Muhammad Azri Wan Deris
(Rosilah Yop JC) [2015] 2 CLJ 557 [HC]

Defamation - Libel - Defences - Blog published statements alleged to be defamatory to discredit plaintiff - Whether statements made by blogger defamatory - Whether statements referred to plaintiff - Whether statements were published - Defences of qualified privilege and fair comment - Whether defendant had proved defences of qualified privilege and fair comment
Datuk Seri Anwar Ibrahim v. Wan Muhammad Azri Wan Deris
(Rosilah Yop JC) [2015] 2 CLJ 557 [HC]

Negligence - Road accident - Collision between motorcar and motorcycle - Sessions Court finding that motorcycle rider was 70% liable while motorcar driver was 30% liable towards pillion rider - Joint tortfeasor - Whether motorcar driver could claim 70% contribution of damages from motorcycle rider - Civil Law Act 1956, s. 10(1)(c)
Fadzil Harun v. Mohd Azrul Md Ariffin & Anor
(Mohd Zawawi Salleh, Idrus Harun, Prasad Sandosham Abraham JJCA) [2015] 2 CLJ 525 [CA]

Passing off - Elements of passing off - Whether established - Whether mark used to create confusion in market - Whether damage to goodwill and reputation proven - Whether identification of mark was throughout with proprietor - Whether proprietor acquiesced use of mark
Network Pet Products (M) Sdn Bhd v. Royal Canin SAS & Anor
(Mohamad Ariff Yusof, Mah Weng Kwai, David Wong Dak Wah JJCA) [2015] 2 CLJ 530 [CA]

ARTICLE

Legal Network Series Article(s)

1. CRITICAL TIME TO LITIGATE RIGHTS* [Read excerpt]
    by: SEAN COSTELLO** [2015] 1 LNS(A) xxii

2. ISLAMIC INTERBANK MONEY MARKET:
    A COMPARATIVE LEGAL STUDY BETWEEN
    MALAYSIA AND SOME NOTABLE JURISDICTIONS
[Read excerpt]
    by: DR. ABDUL AZEEZ MARUF OLAYEMI*, ASSOC. PROF. DR. AZNAN HASAN**,
          ASST. PROF. DR. UZAIMAH IBRAHIM**, PROF. DR. NORASHIMAH MOHD. YASIN**,
          PROF. DR. AHMAD HIDAYAH BUANG***
[2015] 1 LNS(A) xxiv

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title Date coming into force Repealing
ACT 765 Malaysian Airline System Berhad (Administration) Act 2015 20 February 2015 [PU(B) 37/2015] -Nil-
ACT 764 Finance (No. 2) Act 2014 The Income Tax Act 1967 [Act 53] see s 3; The Petroleum (Income Tax) Act 1967 [Act 543] see s 24; The Real Property Gains Tax Act 1976 [Act 169] see s 27 -Nil-
ACT 763 Yayasan Guru Tun Hussein Onn Act 2014 Not Yet In Force -Nil-
ACT 762 Akta Cukai Barang Dan Perkhidmatan 2014 1 Julai 2014 - Bahagian I, II, IV, VI dan xx, ss 10, 11, 17, 18, 33, 34, 35, 36, 37, 40, 44, 50, 56, 59, 61, 64, 65, 69, 71, 72, 73, 74, 75, 80, 81, 82, 83, 85, 86, 87, 92, 93, 95, 96, 97, 99, 100, 101, 102, 103, 104, 105, 107, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 160, 163, 183, 184 dan 197, Jadual Pertama dan Jadual Kedua Akta mula berkuat kuasa; 1 April 2015 - Bahagian IX, XIII, xxi and xxiI, ss 9, 12, 13, 14, 15, 16, 38, 39, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, 57, 58, 60, 62, 63, 66, 67, 68, 70, 84, 88, 89, 90, 91, 94, 98, 106, 108, 109, 110, 122, 154, 155, 156, 157, 158, 159, 161, 162, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195 dan 196, Jadual Ketiga dan Jadual Keempat Akta mula berkuat kuasa [PU(B) 319/2014] -Nil-
ACT 762 Goods And Services Tax Act 2014 1 July 2014 - Parts I, II, IV, VI and xx, ss 10, 11, 17, 18, 33, 34, 35, 36, 37, 40, 44, 50, 56, 59, 61, 64, 65, 69, 71, 72, 73, 74, 75, 80, 81, 82, 83, 85, 86, 87, 92, 93, 95, 96, 97, 99, 100, 101, 102, 103, 104, 105, 107, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 160, 163, 183, 184 and 197, the First Schedule and Second Schedule to the Act; 1 April 2015 - Parts IX, XIII, xxi and xxiI, ss 9, 12, 13, 14, 15, 16, 38, 39, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, 57, 58, 60, 62, 63, 66, 67, 68, 70, 84, 88, 89, 90, 91, 94, 98, 106, 108, 109, 110, 122, 154, 155, 156, 157, 158, 159, 161, 162, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195 and 196, the Third Schedule and Fourth Schedule to the Act [PU(B) 319/2014] -Nil-

Amending Acts

Number Title Date coming into force Principal/Amending Act No
ACT A1481 Quantity Surveyors (Amendment) Act 2015 Not Yet In Force ACT 487
ACT A1480 Architects (Amendment) Act 2015 Not Yet In Force except for paragraphs 3(d) and (p) and section 23 come into operation on 1 June 2015 ACT 117
ACT A1479 Registration Of Engineers (Amendment) Act 2015 Not Yet In Force ACT 138
ACT A1478 Companies Commission Of Malaysia (Amendment) Act 2015 20 February 2015 [PU(B) 45/2015] except sections 9, 10, 11, 13, 14 and 15 ACT 614
ACT A1477 Limited Liability Partnership (Amendment) Act 2015 Not Yet In Force ACT 743

PU(A)

Number Title Date of Publication Date coming into force Principal/Amending Act No
PU(A) 42/2015 Income Tax (Exemption) (Amendment) Order 2015 9 March 2015 1 January 2013 PU(A) 167/2014
PU(A) 41/2015 Medical (Amendment Of Second Schedule) (No. 2) Order 2015 5 March 2015 6 March 2015 ACT 50
PU(A) 40/2015 Income Tax (Exemption) Order 2015 5 March 2015 Year of assessment 2014 ACT 53
PU(A) 39/2015 Customs Duties (Amendment) Order 2015 5 March 2015 10 March 2015 PU(A) 275/2012
PU(A) 38/2015 Members Of Parliament (Remuneration) (Amendment Of First Schedule) Order 2015 4 March 2015 28 September 2001 - subparagraphs 2(a) and (j); 1 January 2009 - subparagraphs 2(b), (c), (d) and (e); 1 January 2012 - subparagraphs 2(f) and (g); 1 January 2014 - subparagraph 2(i) ACT 237

PU(B)

Number Title Date of Publication Date coming into force Principal/Amending Act No
PU(B) 89/2015 Appointment Of Members Of Licensing Board 11 March 2015 15 March 2015 to 14 March 2018 ACT 176
PU(B) 88/2015 Notice Of Contested Election - By-Election Of The State Legislative Assembly Of N. 06 Chempaka For The State Of Kelantan 10 March 2015 11 March 2015 PU(A) 386/1981
PU(B) 87/2015 Notification Of Appointment Of Inspectors 10 March 2015 Specified in column (3) of the Schedule ACT 452
PU(B) 86/2015 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Sarawak 9 March 2015 10 March 2015 up to and including 23 March 2015 PU(A) 293/2002
PU(B) 85/2015 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Sabah 9 March 2015 10 March 2015 up to and including 23 March 2015 PU(A) 293/2002
[2015] 1 LNS(A) xxii AUSTRALIA

CRITICAL TIME TO LITIGATE RIGHTS*

by

SEAN COSTELLO**


Introduction

This year the ACT Human Rights Act celebrates ten years of operation. As Heidi Yates so eloquently notes in these pages, while the Act has achieved much, further legislative amendments are needed for it to reach its potential. However, the experiences of other jurisdictions also suggest that now is the time when the profession and legal system will embrace the Act in its current form, and shape the future law of the ACT. Seminal cases like Ghaidan v. Godin-Mendoza [2004] UKHL 30 in the UK, and R v. Hansen [2007] 3 NZLR 1 in New Zealand, were decided in the second decade of human rights legislation being in operation.

Several recent decisions point to Australian human rights jurisprudence reaching a critical juncture. The ACT and Victoria are grappling with how the courts should interpret legislation consistently with human rights, how ACAT and courts other than the Supreme Court can apply the law, and how human rights jurisprudence, including the assessment of damages, is to interact with common/administrative law.

In the recent decision of LM v. Children's Court [2014] ACTSC 26, Master Mossop of the Supreme Court considered the ability of the Children's Court (and courts other than the Supreme Court) to assess whether a Public Authority has breached its human rights obligations, and the extent of any remedy for a breach. The Court considered if, and how, the Children's Court may assess the actions and decisions of the Director of Public Prosecutions against human rights, regarding the DPP's decision to charge a young offender with a more serious offence after she had pled guilty to a lesser one. The Master agreed in principle that such courts and tribunals could consider HRA compliance, however the Master also raised questions how the court should balance potentially 'unlawful' actions of an authority against alleged criminal conduct, particularly when the remedy sought was a permanent stay of proceedings. The Master confirmed an express power to grant relief under the HRA is given only to the Supreme Court. However, His Honour also suggested that inferior courts and tribunals retain their inherent, statutory or common law jurisdictions to grant remedies, but left open the question as to whether such a remedy may include factors beyond the traditional scope of that remedy. The Master ultimately determined that a permanent stay should not be granted. Until these issues are settled, it is unclear to what extent ACAT and other courts may assess, and remedy, breaches of the HRA.


. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 233 September 2014.

** ACT Human Rights Commission.


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[2015] 1 LNS(A) xxiv MALAYSIA

ISLAMIC INTERBANK MONEY MARKET: A COMPARATIVE LEGAL STUDY BETWEEN MALAYSIA AND SOME NOTABLE JURISDICTIONS

by

DR. ABDUL AZEEZ MARUF OLAYEMI*, ASSOC. PROF. DR. AZNAN HASAN**, ASST. PROF. DR. UZAIMAH IBRAHIM**, PROF. DR. NORASHIMAH MOHD. YASIN**, PROF. DR. AHMAD HIDAYAH BUANG***


1.0 Introduction

The short term instruments of investment are generally required for the purpose of providing liquidity facilities for banks and other financial institutions to manage the mismatch in their liquidity portfolio. The same thing goes for companies that may be in need of money to pay the salaries of their employees or to meet the mismatch of other unexpected expenditures. The government also demands for liquid facilities at a time to meet its liquidity needs for infrastructural development and concurrent expenditures. Money market facilities are made available to bridge these gaps. The maturity period of the facilities ranges from overnight to one year.[1] This paper discusses the Islamic interbank money market, its functions and its instruments. It makes a comparison between the leading countries in the practice of Islamic banking. It therefore, proposes the adoption of the Malaysian framework of the market for the other jurisdictions, due to the fact that it is the most developed market in terms of regulations and availability of instruments. The discussion relies on the framework for guidance on the study.

To start with, in Malaysia, the highest regulatory law of the Islamic money market is the Central Bank of Malaysia Act 2009 (Act 701). The Act provides the developing 'rules and guidelines' for the governing of the operation of Islamic money. It provides in Section 43 (1) that; 'The Bank[2] may issue rules, codes, standards, principles or guidelines for the purposes of regulating, developing, or maintaining orderly conditions or the integrity of the money market,"[3] this provision is paramount and applicable to all money market practices in the country, whether it is Islamic or conventional. It is then obvious from the provision that the Central Bank is the supreme regulator of the Malaysian Islamic money market. Therefore, the issuing of 'rules, codes, standards, principles or guidelines in respect of the Islamic interbank money market, to ensure orderly dealings in the markets and to impose obligations and duties on participants of such markets or any system that is established or operated, including those pursuant to subsection 44(1);[4] that is the issuance or acquisition, holding or disposal of financial instruments in such market, is the sole duty and responsibility of the Malaysian Central Bank (Bank Negara Malaysia). Therefore, the Central Bank is responsible for the operation and functioning of the market. The functions of the market in the banking system are as follows:


. . .

* Correspondent Author: Dr. Abdul Azeez Maruf Olayemi, PhD, MCIArb, Post-Doctoral Research Fellow, IPPP/Depart. Of Shariah and Law, API, University of Malaya, Kuala Lumpur, Malaysia.

** Assoc. Prof. Dr. Aznan Hasan, Asst. Prof. Dr. Uzaimah Ibrahim, Prof. Dr. Norashimah Mohd Yasin, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University, Malaysia.

*** Prof. Dr. Ahmad Hidayah Buang, Depart. Of Shariah and Law, API, University of Malaya, Kuala Lumpur, Malaysia.


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[2015] 1 CLJ(A) i MALAYSIA

TOWARDS AN EFFECTIVE ADMINISTRATION OF THE JUSTICE SYSTEM AND THE JUDGES' EXPECTATION OF LAWYERS

by

YAA TAN SRI DATO' SERI ZULKEFLI AHMAD MAKINUDIN*


Introduction

First and foremost may I take this opportunity to thank the Dean and the academic staffs of Pusat Pengajian Undang-Undang, Kolej Undang-Undang, Kerajaan dan Pengajian Antarabangsa, Universiti Utara Malaysia and the Law Students Society, Universiti Utara Malaysia for inviting me to deliver a lecture on the occasion of this Asian Law Students Association (ALSA) National Conference 2014.

Ladies and Gentlemen,

I would like to put on record here that the invitation to deliver a lecture at this conference was first extended to the Right Honourable Chief Justice, Tun Arifin bin Zakaria. However, due to his busy schedule in the discharge of his official duties he could not make it to this conference. The Right Honourable Chief Justice has requested me to replace him and in this regard he had asked me to convey his utmost apology for not being here and he wishes all of us a successful conference.


. . .

* Chief Judge Of Malaya.
Delivered at the Pusat Pengajian Undang-Undang, Kolej Undang-Undang, Kerajaan dan Pengajian Antarabangsa, Universiti Utara Malaysia on 31 October 2014 on the occasion of the Asian Law Students Association (ALSA) National Conference 2014


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