Bulletin_12

CLJ Bulletin, Vol 2007, Issue 12

6 April 2007

CLJ Law MALAYSIA

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New This Week -	1. CLJ April (Part 1) 2007
	2. CLJ Supp April (Part 1) 2007

1. CLJ April (Part 1) 2007

COURT

COURT OF APPEAL

Andrew Christopher Chuah Choong Eng Chuan v. Ooi Woon Chee & Anor
(Company law - Winding up - Proof of debts - Decision by liquidators to reject appellant's proof of debt of loans to company) [2007] 2 CLJ 405

Bintulu Development Authority v. Pilecon Engineering Bhd
(Arbitration - Agreement - Reference of dispute - Referral by arbitrator by way of case stated to High Court for determination of questions of law - Arbitration Act 1952, s. 22(1)(a)) [2007] 2 CLJ 422

LSSC Development Sdn Bhd v. Thomas Iruthayam & Anor
(Building contract - Breach - Defendant supplied plaintiff with a defective house out of time - Termination of contract by plaintiff - Rescission - Contracts Act 1950, ss. 40, 56(1)) [2007] 2 CLJ 434

Saravanan Thangathoray v. Subshini Rajasingam & Another Appeal
(Family law - Children - Custody - Hindu couple separated and wife filed petition for divorce - Husband converted himself and their elder child to Islam - Wife sought injunction restraining husband from commencing or continuing with proceedings regarding marriage or children of marriage in Syariah Court) [2007] 2 CLJ 451

SUBJECT INDEX

ARBITRATION

Agreement - Reference of dispute - Referral by arbitrator by way of case stated to High Court for determination of questions of law - Whether judge had answered said questions erroneously - Appointment of arbitrator - Whether valid - Ad hoc agreement - Mistake - Estoppel - Arbitration Act 1952, s. 22(1)(a)
Bintulu Development Authority v. Pilecon Engineering Bhd
(Abdul Kadir Sulaiman, Arifin Zakaria & Nik Hashim JJCA) [2007] 2 CLJ 422 [CA]

Arbitrator - Appointment - Whether valid - Referral by arbitrator by way of case stated to High Court for determination of questions of law - Whether judge had answered said questions erroneously - Ad hoc agreement - Mistake - Estoppel - Arbitration Act 1952, s. 22(1)(a)
Bintulu Development Authority v. Pilecon Engineering Bhd
(Abdul Kadir Sulaiman, Arifin Zakaria & Nik Hashim JJCA) [2007] 2 CLJ 422 [CA]

CIVIL PROCEDURE

Injunction - Jurisdiction to grant, scope of - Hindu couple separated and wife filed petition for divorce - Husband converted himself and their elder child to Islam - Wife sought injunction restraining husband from commencing or continuing with proceedings regarding marriage or children of marriage in Syariah Court - Whether High Court had jurisdiction to grant interlocutory relief sought - Law Reform (Marriage and Divorce) Act 1976, s. 51 - Specific Relief Act 1950, s. 54(b) - Administration of Islamic Law (Federal Territories) Act 1993,
s. 46(2)(b)(i) - Federal Constitution, arts. 3(1), 121(1), (1A) - Islamic Family Law (Federal Territories) Act 1984, s. 46(2)
Saravanan Thangathoray v. Subshini Rajasingam & Another Appeal
(Gopal Sri Ram, Suriyadi Halim Omar & Hasan Lah JJCA) [2007] 2 CLJ 451 [CA]

COMPANY LAW

Winding up - Liquidator - Decision by liquidators to reject appellant's proof of debt of loans to company - Whether appellant failed to prove that loans taken by company - Whether money received for benefit of third parties - Whether liquidators acted arbitrarily and without good reasons - Whether there was privity of contract between appellant and third parties
Andrew Christopher Chuah Choong Eng Chuan v. Ooi Woon Chee & Anor
(Abdul Kadir Sulaiman, Richard Malanjum & Augustine Paul JJCA) [2007] 2 CLJ 405 [CA]

Winding up - Proof of debts - Decision by liquidators to reject appellant's proof of debt of loans to company - Whether appellant failed to prove that loans taken by company - Whether money received for benefit of third parties - Whether liquidators acted arbitrarily and without good reasons - Whether there was privity of contract between appellant and third parties
Andrew Christopher Chuah Choong Eng Chuan v. Ooi Woon Chee & Anor
(Abdul Kadir Sulaiman, Richard Malanjum & Augustine Paul JJCA) [2007] 2 CLJ 405 [CA]

CONSTITUTIONAL LAW

Courts - Jurisdiction - High Court and Syariah Court - Hindu couple separated and wife filed petition for divorce - Husband converted himself and their elder child to Islam - Wife sought injunction restraining husband from commencing or continuing with proceedings regarding marriage or children of marriage in Syariah Court - Whether High Court had jurisdiction to grant interlocutory relief sought - Law Reform (Marriage and Divorce) Act 1976, s. 51 - Specific Relief Act 1950, s. 54(b) - Administration of Islamic Law (Federal Territories) Act 1993, s. 46(2)(b)(i) - Federal Constitution, arts. 3(1), 121(1), (1A) - Islamic Family Law (Federal Territories) Act 1984, s. 46(2)
Saravanan Thangathoray v. Subshini Rajasingam & Another Appeal
(Gopal Sri Ram, Suriyadi Halim Omar & Hasan Lah JJCA) [2007] 2 CLJ 451 [CA]

CONTRACT

Building contract - Breach - Defendant supplied plaintiff with a defective house out of time - Termination of contract by plaintiff - Rescission - Whether there was total failure of consideration - Right to recover damages - Whether defendant refused to perform contract in its entirety - Whether defendant's breach went to root of contract - Whether plaintiff's termination of contract unlawful - Contracts Act 1950, ss. 40, 56(1)
LSSC Development Sdn Bhd v. Thomas Iruthayam & Anor
(Gopal Sri Ram, Zaleha Zahari & Zainun Ali JJCA) [2007] 2 CLJ 434 [CA]

Privity - Agency - Decision by liquidators to reject appellant's proof of debt of loans to company - Whether money received for benefit of third parties - Whether company acted only as agent for third parties to knowledge of appellant - Whether there was privity of contract between appellant and third parties - Contracts Act 1950, s. 183
Andrew Christopher Chuah Choong Eng Chuan v. Ooi Woon Chee & Anor
(Abdul Kadir Sulaiman, Richard Malanjum & Augustine Paul JJCA) [2007] 2 CLJ 405 [CA]

FAMILY LAW

Children - Custody - Hindu couple separated and wife filed petition for divorce - Husband converted himself and their elder child to Islam - Wife sought injunction restraining husband from commencing or continuing with proceedings regarding marriage or children of marriage in Syariah Court - Whether High Court had jurisdiction to grant interlocutory relief sought - Law Reform (Marriage and Divorce) Act 1976, s. 51 - Specific Relief Act 1950, s. 54(b) - Administration of Islamic Law (Federal Territories) Act 1993, s. 46(2)(b)(i) - Federal Constitution, arts. 3(1), 121(1), (1A) - Islamic Family Law (Federal Territories) Act 1984, s. 46(2)
Saravanan Thangathoray v. Subshini Rajasingam & Another Appeal
(Gopal Sri Ram, Suriyadi Halim Omar & Hasan Lah JJCA) [2007] 2 CLJ 451 [CA]

ISLAMIC LAW

Jurisdiction - Syariah Court - Hindu couple separated and wife filed petition for divorce - Husband converted himself and their elder child to Islam - Wife sought injunction restraining husband from commencing or continuing with proceedings regarding marriage or children of marriage in Syariah Court - Whether High Court had jurisdiction to grant interlocutory relief sought - Law Reform (Marriage and Divorce) Act 1976, s. 51 - Specific Relief Act 1950, s. 54(b) - Administration of Islamic Law (Federal Territories) Act 1993, s. 46(2)(b)(i) - Federal Constitution, arts. 3(1), 121(1), (1A) - Islamic Family Law (Federal Territories) Act 1984, s. 46(2)
Saravanan Thangathoray v. Subshini Rajasingam & Another Appeal
(Gopal Sri Ram, Suriyadi Halim Omar & Hasan Lah JJCA) [2007] 2 CLJ 451 [CA]

LAND LAW

Housing developers - Breach of building contract - Defendant supplied plaintiff with a defective house out of time - Termination of contract by plaintiff - Rescission – Whether there was total failure of consideration - Right to recover damages - Whether defendant refused to perform contract in its entirety - Whether defendant's breach went to root of contract - Whether plaintiff's termination of contract unlawful - Contracts Act 1950, ss. 40, 56(1)
LSSC Development Sdn Bhd v. Thomas Iruthayam & Anor
(Gopal Sri Ram, Zaleha Zahari & Zainun Ali JJCA) [2007] 2 CLJ 434 [CA]

STATUTORY INTERPRETATION

Constitution - Principles of interpretation - Hindu couple separated and wife filed petition for divorce - Husband converted himself and their elder child to Islam - Wife sought injunction restraining husband from commencing or continuing with proceedings regarding marriage or children of marriage in Syariah Court - Whether High Court had jurisdiction to grant interlocutory relief sought - Law Reform (Marriage and Divorce) Act 1976, s. 51 - Specific Relief Act 1950, s. 54(b) Administration of Islamic Law (Federal Territories) Act 1993, s. 46(2)(b)(i) - Federal Constitution, arts. 3(1), 121(1), (1A) - Islamic Family Law (Federal Territories) Act 1984, s. 46(2)
Saravanan Thangathoray v. Subshini Rajasingam & Another Appeal
(Gopal Sri Ram, Suriyadi Halim Omar & Hasan Lah JJCA) [2007] 2 CLJ 451 [CA]

2. CLJ Supp April (Part 1) 2007

COURT

HIGH COURT

A Karunathan Arunasalam v. Pentadbir Tanah Daerah Petaling
(Land law - Acquisition of land - Compensation - Adequacy of) [2007] 7 CLJ 497

Abric Project Management Sdn Bhd v. Palmshine Plaza Sdn Bhd & Anor
(Company law - Winding up - Liquidator - Duties and responsibilities) [2007] 7 CLJ 516

KMA Marketing Sdn Bhd v. MBf Leasing Sdn Bhd
(Contract - Letter of undertaking - Breach) [2007] 7 CLJ 552

Mansor Meyon v. PP
(Criminal procedure - Sentence - Appeal against - Concurrent or consecutive) [2007] 7 CLJ 561

PP lwn. Noor Hafidah Yeop Mat Isa & Yang Lain
(Prosedur jenayah - Hukuman - Kesetimpalan) [2007] 7 CLJ 570

Subashini Rajasingam v. Saravanan Thangathoray
(Civil procedure - Injunction - Ex parte injunction) [2007] 7 CLJ 584

SUBJECT INDEX

CIVIL PROCEDURE

Injunction - Ex parte injunction - Injunction in effect a stay of proceedings in Syariah Court - Dissolution of marriage - Husband's conversion to Islam - Subject matter of petitioner's application - Whether matters expressly provided for in the laws conferring jurisdiction on Syariah Court - Whether Muslim husband subject to jurisdiction of Syariah Court - Islamic Family Law (Federal Territories) Act 1984, s. 46(2) - Injunction in effect a stay of proceedings in Syariah Court - Whether disallowed - Specific Relief Act 1950, s. 54(b) - Whether injunctions set aside
Subashini Rajasingam v. Saravanan Thangathoray
(Aziah Ali JC) [2007] 7 CLJ 584 [HC]

COMPANY LAW

Winding up - Liquidator - Duties and responsibilities - Power to sell - Whether liquidator empowered to sell property - Companies Act 1965, s. 236(2)(c) - Whether authority of court required - Companies Act 1965, s. 236(1) - Conduct of liquidator - Whether reasonable and bona fide in searching for best price for land - Whether liquidator had capacity to enter a sale of said land - Companies Act 1965, s. 228(a) - Legal title not vested in liquidator prior to sale - Whether there was necessity to vest title of property - Whether second respondent a bona fide purchaser for valuable consideration - Issue of non filing and proof of debt - Whether irrelevant and misplaced - Whether applicant failed to establish sufficient prima facie case against liquidator - Whether interference of court warranted - Balance of justice - Whether against setting aside sale of land - Whether applicant aggrieved by decision of liquidator
Abric Project Management Sdn Bhd v. Palmshine Plaza Sdn Bhd & Anor
(Ramly Ali J) [2007] 7 CLJ 516 [HC]

Winding up - Liquidator - Sale of land by liquidator - Setting aside - Application for - Power to sell - Whether liquidator empowered to sell property - Companies Act 1965, s. 236(2)(c) - Whether court sanction required prior to sale - Companies Act 1965, 236(1) - Whether sale of land grossly undervalue - Whether liquidator had capacity to enter a sale of said land - Companies Act 1965, s. 228(a) - Legal title not vested in liquidator prior to sale - Whether there was necessity to vest title of property - Whether second respondent a bona fide purchaser for valuable consideration - Issue of non filing and proof of debt - Whether irrelevant and misplaced - Whether applicant failed to establish sufficient prima facie case against liquidator - Whether interference of court warranted - Balance of justice - Whether against setting aside sale of land - Whether applicant aggrieved by decision of liquidator
Abric Project Management Sdn Bhd v. Palmshine Plaza Sdn Bhd & Anor
(Ramly Ali J) [2007] 7 CLJ 516 [HC]

CONTRACT

Letter of undertaking - Breach - Disbursement of balance of purchase price of vehicles - Admissibility of plaintiff's letter endorsed with defendant's confirmation - Evidence Act 1950,
s. 32, 73A - Whether letter of undertaking valid - Whether defendant's defence without merit - Whether defendant discharged from its liability to plaintiff - Whether defendant's contentions unsustainable - Whether plaintiff established its case on a balance of probabilities
KMA Marketing Sdn Bhd v. MBf Leasing Sdn Bhd
(Linton Albert J) [2007] 7 CLJ 552 [HC]

CRIMINAL PROCEDURE

Sentence - Appeal against - Concurrent or consecutive - Exercise of court's discretion - Facts and circumstances - Totality principle - Aggregate sentence - Whether manifestly excessive - Whether sentences reduced
Mansor Meyon v. PP
(Jeffrey Tan J) [2007] 7 CLJ 561 [HC]

JURISDICTION

Dissolution of marriage - Husband's conversion to Islam - Ex parte injunction - Application for - Subject matter of petitioner's application - Whether matters expressly provided for in the laws conferring jurisdiction on Syariah Court - Whether Muslim husband subject to jurisdiction of Syariah Court - Islamic Family Law (Federal Territories) Act 1984, s. 46(2) - Injunction in effect a stay of proceedings in Syariah Court - Whether disallowed - Specific Relief Act 1950, s. 54(b) - Whether injunctions set aside
Subashini Rajasingam v. Saravanan Thangathoray
(Aziah Ali JC) [2007] 7 CLJ 584 [HC]

LAND LAW

Acquisition of land - Compensation - Adequacy of - Determination - Material date for assessment of market value of subject property - Injurious affection - Whether compensation awarded for 'injurious affection' - Whether subject property valued as land with industrial potential - Calculation of market value and injurious affection - Land Acquisition Act 1960, ss. 40A(2) and 40D
A Karunathan Arunasalam v. Pentadbir Tanah Daerah Petaling
(Zaleha Zahari J) [2007] 7 CLJ 497 [HC]

Charge - Sale of land - Setting aside - Application to set aside sale of land by liquidator - Power to sell - Whether liquidator empowered to sell property - Companies Act 1965, s. 236(2)(c) - Whether court sanction required prior to sale - Companies Act 1965, 236(1) - Whether sale of land grossly undervalue - Whether liquidator had capacity to enter a sale of said land - Companies Act 1965, s. 228(a) - Legal title not vested in liquidator prior to sale - Whether there was necessity to vest title of property - Whether second respondent a bona fide purchaser for valuable consideration - Issue of non filing and proof of debt - Whether irrelevant and misplaced - Whether applicant failed to establish sufficient prima facie case against liquidator - Whether interference of court warranted - Balance of justice - Whether against setting aside sale of land - Whether applicant aggrieved by decision of liquidator
Abric Project Management Sdn Bhd v. Palmshine Plaza Sdn Bhd & Anor
(Ramly Ali J) [2007] 7 CLJ 516 [HC]

INDEKS PERKARA

PROSEDUR JENAYAH

Hukuman - Kesetimpalan - Kanun Keseksaan, ss. 109, 302 - Pengakuan salah - Faktor kepentingan awam - Faktor-faktor mitigasi - Hukuman penjara 7 1/2 tahun ke atas tertuduh 1 dan sebelas tahun untuk tertuduh 2 dan 3 - Sama ada munasabah, wajar tidak melampau dan tidak terlalu ringan
PP lwn. Noor Hafidah Yeop Mat Isa & Yang Lain
(Mohd Azman Husin PK) [2007] 7 CLJ 570 [HC]

CASE OF THE WEEK

YOKE SAN & ORS v. PENTADBIR TANAH, WILAYAH PERSEKUTUAN KUALA LUMPUR & ORS

LAND LAW: Acquisition of land - Compensation - Injurious affection - Acquired land includes service road and parking bays utilised by building owners running businesses alongside - Whether building owners injuriously affected by acquisition - Whether building owners entitled to share in compensation awarded to registered proprietor of acquired land

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