KIARA EMAS ASIA INDUSTRIES BHD v. TETUAN WONG-CHOOI & MOHD NOR
HIGH COURT MALAYA, SEREMBAN
AHMAD NASFY YASIN JC
[CIVIL SUIT NO: MT2-22-168-2002]
1 JUNE 2011

COMPANY LAW: Suit by company - Negligence claim against solicitor advising company for listing purposes - Non-disclosure of material particulars in prospectus done in listing process - Liability - Whether solicitors engaged in listing exercise or directors of company responsible for issuing prospectus - Whether company suffered losses from relying on defective prospectus - Whether company proper party to sue solicitor - Whether cause of action established against solicitors - Whether causal link established between alleged negligence and losses - Companies Act 1965, ss. 42, 46(2) - Securities Commission Act 1993, s. 57

LEGAL PROFESSION: Duty of care - Negligence - Claim against solicitor advising company for listing purposes - Scope of solicitor's duty advising company in listing exercise - Whether duty pertained to legal expertise only - Companies Act 1965, ss. 42, 46(2) - Securities Commission Act 1993, s. 57

SECURITIES: Securities legislation - Listing requirements - Non-disclosure of material particulars in prospectus issued in listing process - Liability - Whether solicitors engaged in listing exercise or directors of company responsible for issuing prospectus - Whether company suffered losses from relying on defective prospectus - Whether company proper party to sue solicitors - Whether cause of action established against solicitors - Whether causal link established between alleged negligence and losses - Companies Act 1965, ss. 42, 46(2) - Securities Commission Act 1993, s. 57 - KLSE Listing Requirements (2nd Board), ss. 7.40, 7.46, 7.48

Legal Network Series

1	[2009] 1 LNS 1408	Aset Nusantara Sdn Bhd v. Ekran Berhad & Anor	CONTRACT: Collateral contract - Existence of - Plaintiff sought return of Hotel Companies - 1st defendant relying on existence of a collateral contract where consideration for sale of the Hotel Companies was shares in Granite Industries held by Tan Sri Ting - Parties astute businessmen with appropriate legal and technical expertise to draft written agreements - Inclusion of the "entire agreement clause" in agreement - Whether there was a collateral oral contract - Whether parties intended that full terms agreed between them were to be found solely in the written agreement and not elsewhere and that these terms bound them CONTRACT: Terms - Penalty clause - Clause 4.6 of Supplemental Agreement - Position of parties upon breach to furnish required security - Provision for the return of Hotel Companies - Whether clause 4.6 a penalty clause under s. 75 of the Contracts Act 1950 CONTRACT: Public policy - Clause 4.6 of Supplemental Agreement - Position of parties upon breach to furnish required security - Provision for the return of Hotel Companies - Whether contrary to public policy if plaintiff were permitted to reverse a transaction of this nature - Whether clause 4.6 of Supplemental Agreement against public policy CONTRACT: Performance - 1st defendant to settle purchase price of Hotel Companies by assignment of the debt from Tan Sri Ting - Question of who was to obtain required security from Tan Sri Ting - Whether responsibility of plaintiff, 1st defendant or Tan Sri Ting himself - Deed of Assignment executed in escrow, undated and undelivered - Whether 1st defendant had performed its obligations under the Hotel Agreement and Supplemental Agreement COMPANIES AND CORPORATIONS: Directors - Prohibited transactions involving shareholders - Whether clause 4.6 a repurchase of the Hotel Companies by plaintiff prohibited by s. 132G of the Companies Act 1965 - Plaintiff and Tan Sri Ting persons connected to each other through their common shareholding in Granite Industries - Whether these persons held requisite substantial shareholding in Granite Industries for s. 132G to operate - Whether Hotel Companies became part of the assets of 1st defendant to be negotiated for sale or resale to or acquisition by plaintiff - Whether clause 4.6 contravened the Companies Act 1965
2	[2009] 1 LNS 1416	England Optical Group (M) Sd Bhd v. Law Yoon Kuan & Anor	ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - Finding by Industrial Court that first respondent's dismissal was without just cause and excuse - Back wages and compensation ordered - Whether Industrial Court correct in concluding that first respondent was constructively dismissed without just cause and excuse - Whether applicant had showed that Industrial Court had not asked the right questions, or had taken into account irrelevant considerations, or failed to take into account relevant considerations, or had misapplied or misstated any principle of law - Whether any reason to disturb Industrial Court's award
3	[2009] 1 LNS 1420	K-Zaq (M) Sdn Bhd v. Johnson Matthey Public Limited Company & Ors	COMPANIES AND CORPORATIONS: Oppression - Conduct amounting to oppression - Numerous complaints included transfer of shares from HICOM to 2nd and 3rd respondents and resolutions passed at meetings in breach of Joint Venture Agreement (JVA) and Articles - Increase in capital unfavourable to petitioner - Petitioner's shareholding in 4th respondent "diluted" - Whether respondents' conduct departed from standard of fair dealing or fair play - Whether affairs of 4th respondent conducted in a manner oppressive to petitioner, or in disregard of petitioner's interests - Whether any merits in petitioner's complaints
4	[2009] 1 LNS 1422	Ngiao Jong Nian v. Lee Chan Foo & Anor	CIVIL PROCEDURE: Appeal - Appeal to High Court from Sessions Court - Findings of fact by trial judge - Finding that plaintiff fully informed of medical procedure and consented to it - 1st defendant's expert's testimony found to be more credible than plaintiff's - Whether plaintiff's claim against 1st and 2nd defendants correctly dismissed - Whether appellate interference warranted TORT: Negligence - Medical negligence - Partial removal of plaintiff's gall bladder - Explanation of risks - Whether failure to warn plaintiff of risks - Whether proved that plaintiff would not have agreed to operation if he were warned of risk TORT: Negligence - Medical negligence - Presence of bilous fluid in plaintiff's abdomen after procedure - Whether an accepted complication - Whether plaintiff suffered harm or injury as a result of 1st defendant's wrongful acts or omissions
5	[2009] 1 LNS 1425	PP v. Kalaiselvam Krishnan & Anor	CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B(1)(a) - Trafficking in dangerous drugs - 1st accused carried white plastic package containing drugs - Custody, control and knowledge of drugs - Whether 1st accused had mens rea possession of drugs - Mixture of heroin and monoacetylmorphine weighing 204.6 grammes - Whether presumption of trafficking applicable CRIMINAL LAW: Penal Code - S. 34 - Common intention - Whether any direct or inferred evidence of any relationship between 1st and 2nd accused regarding offence they were charged with CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Prima facie case - Possession and trafficking - Whether elements of possession and trafficking sufficiently proved against 1st and 2nd accused - Maximum evaluation of evidence - Whether prosecution established a prima facie case against 1st and 2nd accused as charged CRIMINAL PROCEDURE: Defence - Calling for defence of 1st accused - Line of defence only advanced for the first time when defence called - Whether 1st accused rebutted statutory presumption of trafficking - Whether 1st accused cast a reasonable doubt on the truth of prosecution's case

CLJ Volume 2 (Part 3) 2012

COURT

FEDERAL COURT

Ungku Sulaiman Abd Majid & Anor v. Pengarah Tanah Dan Galian Johor & Anor
Zulkefli Makinudin, Raus Sharif, Abdull Hamid Embong FCJJ
(Land Law; Limitation - Acquisition of land - Redemption executed upon order of Sultan - Law of limitation) [2012] 2 CLJ 273 [FC]

COURT OF APPEAL

Dato' Raja Ideris Raja Ahmad & Ors v. Teng Chang Khim & Ors
Low Hop Bing, Abdul Malik Ishak, Clement Skinner JJCA
(Civil Procedure - Originating summons - Striking out - Whether suitable for summary disposal - Declaration) [2012] 2 CLJ 288 [CA]

Euroma Rubber Ind Sdn Bhd v. United Overseas Bank (M) Bhd
Sulaiman Daud, Abdul Wahab Patail, Zaharah Ibrahim JJCA
(Contract; Banking - Foreign bank - Whether local bank liable to pay seller under terms of contract - Letters of credit) [2012] 2 CLJ 301 [CA]

HIGH COURT

Gu Kien Lee v. Ketua Polis Daerah Kota Kinabalu & Anor
Abdul Rahman Sebli J
(Administrative Law; Police - Duty to investigate - Refusal to investigate reports - Whether unjustified) [2012] 2 CLJ 317 [HC]

Mohd Hanafi Ramly v. PP
John Ko Wai Seng JC
(Criminal Procedure - Charge - Duplicity of offences nullified trial - Whether accused prejudiced) [2012] 2 CLJ 326 [HC]

Southern Acids (M) Bhd v. Standard Chartered Bank Malaysia Bhd
Mah Weng Kwai JC
(Civil Procedure - Forum non conveniens - Whether English Court proper forum to hear plaintiff's action) [2012] 2 CLJ 361 [HC]

Universiti Utara Malaysia v. Mutiara Mohamad & Ors And Another Case
See Mee Chun JC
(Contract; University - Breach - Damages - Agreement sponsoring defendant - Failure to report for work - Whether dismissal valid) [2012] 2 CLJ 378 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for - Mandamus - Detention of applicant's boat - Applicant lodged police reports - Failure of police to conduct investigations - Whether police duty bound to investigate - Whether police can interfere in a private dispute - Specific Relief Act 1950, s. 44(1) - Criminal Procedure Code, s. 120(1)
Gu Kien Lee v. Ketua Polis Daerah Kota Kinabalu & Anor
(Abdul Rahman Sebli J) [2012] 2 CLJ 317 [HC]

BANKING

Documentary credit - Letters of credit - Sale of goods - Payment terms - Agreement to sell goods payable by irrevocable letter of credit at sight - Acceptance of transferable letter of credit by seller in place of irrevocable letter of credit - Whether amounted to abandonment of agreed mode of payment
Euroma Rubber Ind Sdn Bhd v. United Overseas Bank (M) Bhd
(Sulaiman Daud, Abdul Wahab Patail, Zaharah Ibrahim JJCA) [2012] 2 CLJ 301 [CA]

CIVIL PROCEDURE

Declaration - Discretion of court to grant declaration - Originating summons - Prayers for declaratory judgment - Whether proper to strike out if no reasonable cause of action disclosed - Whether court has power to grant declaration even if cause of action did not exist at time of filing application - Specific Relief Act 1950, s. 41 - Rules of the High Court 1980, O. 15 r. 16
Dato' Raja Ideris Raja Ahmad & Ors v. Teng Chang Khim & Ors
(Low Hop Bing, Abdul Malik Ishak, Clement Skinner JJCA) [2012] 2 CLJ 288 [CA]

Stay of action - Forum non conveniens - Parties agreed to English law as governing law of master agreement under which transactions were in dispute - Plaintiff alleging transactions were wagering contracts and void under s. 31 Contracts Act 1950 and s. 26 Civil Law Act 1956 and in breach of relevant notice issued under Exchange Control Act 1953 - Whether English Court proper forum to hear plaintiff's action
Southern Acids (M) Bhd v. Standard Chartered Bank Malaysia Bhd
(Mah Weng Kwai JC) [2012] 2 CLJ 361 [HC]

Originating summons - Striking out - Appeal against - Whether reasonable cause of action disclosed - Rules of the High Court 1980, O. 18 r. 19(1)(a) - Whether court has duty to consider prayers sought - Factors to consider - Whether suitable for summary disposal - Whether weak case was ground for striking out - Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd
Dato' Raja Ideris Raja Ahmad & Ors v. Teng Chang Khim & Ors
(Low Hop Bing, Abdul Malik Ishak, Clement Skinner JJCA) [2012] 2 CLJ 288 [CA]

CONTRACT

Breach - Damages - Claim for - Agreement sponsoring first defendant ('D1') for PhD programme - Terms of - Failure of D1 to sign letter of undertaking and report for work - Whether D1 breached terms of agreement - Disciplinary proceedings leading to dismissal of D1 carried pursuant to Statutory Bodies (Discipline and Surcharge) Act 2000 - Whether plaintiff governed by Universities and University Colleges Act 1971 - Whether dismissal valid - Whether plaintiff is a statutory body or body corporate - Factors to consider - Whether plaintiff's claim allowed
Universiti Utara Malaysia v. Mutiara Mohamad & Ors And Another Case
(See Mee Chun JC) [2012] 2 CLJ 378 [HC]

Liability - Discharge of liability - Claim for goods sold and delivered - Foreign bank issued letter of credit for benefit of purchaser - Whether local bank liable to pay seller under terms of contract - Whether notification of transfer excluded local bank from liability
Euroma Rubber Ind Sdn Bhd v. United Overseas Bank (M) Bhd
(Sulaiman Daud, Abdul Wahab Patail, Zaharah Ibrahim JJCA) [2012] 2 CLJ 301 [CA]

Sale of goods - Payment terms - Agreement to sell goods payable by irrevocable letter of credit at sight - Acceptance of transferable letter of credit by seller in place of irrevocable letter of credit - Whether amounted to abandonment of agreed mode of payment
Euroma Rubber Ind Sdn Bhd v. United Overseas Bank (M) Bhd
(Sulaiman Daud, Abdul Wahab Patail, Zaharah Ibrahim JJCA) [2012] 2 CLJ 301 [CA]

CRIMINAL PROCEDURE

Charge - Duplicity of - Whether duplicity of offences nullified trial - Whether offences of same kind and triable together made duplicity curable - Whether accused prejudiced - Whether proximity of time and place and unity of purpose in offences permitted their joint trial - Whether sentence of lower court adequate - Criminal Procedure Code, ss. 163, 164, 165 & 422 - Evidence Act 1950, ss. 8 & 157
Mohd Hanafi Ramly v. PP
(John Ko Wai Seng JC) [2012] 2 CLJ 326 [HC]

LAND LAW

Acquisition of land - Validity - State Government redeeming land from chettiar to whom land charged - Redemption executed upon order of Sultan - Whether redemption and acquisition valid and lawful - Whether beneficiaries entitled to apply for return of land or compensation from State Government - Redemption effected in 1895 - Law of limitation - Whether had set in - Land Enactment of the State of Johore 1950 (Johore Enactment No. 1), s. 54 - Applicability
Ungku Sulaiman Abd Majid & Anor v. Pengarah Tanah Dan Galian Johor & Anor
(Zulkefli Makinudin, Raus Sharif, Abdull Hamid Embong FCJJ) [2012] 2 CLJ 273 [FC]

LIMITATION

Accrual of cause of action - Acquisition of land - State Government redeeming land from chettiar to whom land charged - Redemption executed 115 years ago in 1895 - Law of limitation - Whether had set in - Whether beneficiaries barred from making any claim on property
Ungku Sulaiman Abd Majid & Anor v. Pengarah Tanah Dan Galian Johor & Anor
(Zulkefli Makinudin, Raus Sharif, Abdull Hamid Embong FCJJ) [2012] 2 CLJ 273 [FC]

POLICE

Duties of police - Duty to investigate - Police reports alleging wrongful detention of property - Whether involving a criminal element - Refusal to investigate on ground complainant could advert to civil claim - Whether unjustified - Whether dutybound to investigate - Criminal Procedure Code, s. 120(1)
Gu Kien Lee v. Ketua Polis Daerah Kota Kinabalu & Anor
(Abdul Rahman Sebli J) [2012] 2 CLJ 317 [HC]

UNIVERSITY

Sponsorship agreement - Requirement to serve university upon return - Failure of first defendant ('D1') to sign letter of undertaking and report for work upon completion of studies - Whether D1 breached terms of agreement - Disciplinary proceedings leading to dismissal of D1 carried pursuant to Statutory Bodies (Discipline and Surcharge) Act 2000 - Whether plaintiff governed by Universities and University Colleges Act 1971 - Whether dismissal valid - Whether plaintiff is a statutory body or body corporate - Factors to consider - Whether plaintiff's claim allowed
Universiti Utara Malaysia v. Mutiara Mohamad & Ors And Another Case
(See Mee Chun JC) [2012] 2 CLJ 378 [HC]

Legal Network Series Articles

Has Equity Had Its Day?^{[Read excerpt]}

By: Lord Neuberger of Abbotsbory, Master of the Rolls [2012] 1 LNS(A) xxi

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