Legal Network Series

[2011] 1 LNS 838	SENG YONG ENGINEERING CONSTRUCTION WORKS SDN BHD v. ECOMETRO (M) SDN BHD	CONTRACT: Estoppel - Estoppel by conduct - Failure by defendant to object to invoices admittedly received and partially paid - Whether defendant estopped from contesting validity and correctness of invoices - Whether plaintiff led to believe that invoices were undisputed - Discrepancies in calculation of final sum due and owing - Whether any ground for non-application of estoppel in respect of specific acts or statements CIVIL PROCEDURE: Counterclaim - Defence to counterclaim - No prior notice given by defendant regarding disputed claims until commencement of suit - Whether defendant estopped from asserting claims at this stage - Whether estoppel could be invoked by plaintiff as a defence to counter-claim EVIDENCE: Documentary evidence - Judicial appreciation of - Credibility of oral evidence tested against contemporaneous documents - Invoices issued and acknowledged without any objection being raised - Whether defence's contention of 'double claim' unsustainable - Whether an attempt to contradict or vary written documents
[2011] 1 LNS 1019	AGIBS ENGINEERING & CONSTRUCTION SDN BHD v. PARAGON ADVANCE SOLUTIONS SDN BHD	ARBITRATION: Arbitration Clause - Whether an Arbitration Agreement or Clause existed between the parties - Whether respondent estopped from denying that it had no knowledge of the Arbitration Clause ARBITRATION: Stay of proceedings - Application - Steps taken in proceedings - Whether appellant had taken steps in the proceedings when appellant defended respondent's injunction application ARBITRATION: Stay of proceedings - Application - Dispute - Whether a difference had arisen between the parties ARBITRATION: Stay of proceedings - Principles applicable - Whether all the ingredients under the Arbitration Act 2005, s. 10 had been fulfilled - Whether High Court judge wrong to dismiss appellant's application
[2011] 1 LNS 557	LEONG KIM WAI v. MINATO ENTERPRISE SDN BHD (NO 2)	CIVIL PROCEDURE: Appeal - Appeal from sessions court - Appeal to High Court - Whether Sessions Judge erred in allowing respondent's claim when respondent failed to prove its entitlement to amount claimed - Whether Sessions Judge failed to consider respondent's failure to mitigate their losses and that appellant had never occupied premises LANDLORD AND TENANT: Determination - Repudiation - Appellant never occupied tenanted premises - Whether respondent rented out part of premises to a third party - Whether respondent should have treated the contract as subsisting and sued for damages - Whether respondent entitled to claim for rental and service charges for the entire 3 year tenancy period - Whether respondent should have mitigated their losses
[2011] 1 LNS 1349	CS PETROLEUM (M) SDN BHD v. PUBLIC BANK BERHAD & ANOTHER CASES	BANKING: Cheques - Forged cheques - Whether PW1's signatures on the disputed cheques genuine or forged - Whether elements of forgery proved - Whether plaintiff and/or PW1 and/or PW2 knowingly or negligently contributed to the forged signatures - Whether defendants honoured plaintiff's cheques in good faith - Whether defence under s. 73A of the Bills of Exchange Act 1949 available to defendants EVIDENCE: Expert evidence - Handwriting - Whether DW2 was a gazetted document examiner - Whether any requirement for expert to be gazetted - Attempts to discredit DW2 - Whether any basis for challenge to his credibility - DW3's report challenged on the ground he had not used specimens truly representative of the duration between signing of the specimen card in 1997 and forgery in 2005 - Whether any basis for this challenge
[2011] 1 LNS 1350	HONG LEONG BANK BERHAD & ANOR v. MPC PROPERTIES SDN BHD	LANDLORD AND TENANT: Determination - Expiry by effluxion - Reinstatement of premises upon determination of tenancies - Whether plaintiffs obliged to reinstate premises to their original condition as per original approved layout plans issued by the authorities when premises were designated fit for occupation - Whether Letters of Offer and Tenancy Agreements between the parties required plaintiffs to reinstate premises into a typical office layout plan with fittings and partitions - Whether layout plans attached were of bare units and not of a typical office layout plan - Whether plaintiffs only obliged to restore premises into bare units - Whether plaintiffs prevented from carrying out reinstatement works - Whether defendant prevented plaintiffs from delivering vacant possession

CLJ 2013 Volume 2 (Part 7)

COURT

FEDERAL COURT

Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Zaleha Zahari, Zainun Ali FCJJ
(Constitutional Law; Statutory Interpretation; Word & Phrases - State Legislative Assembly meetings) [2013] 2 CLJ 857 [FC]

Pilecon Realty Sdn Bhd v. Public Bank Bhd & Ors And Other Appeals
Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ
(Bankruptcy; Company Law; - Interest on debt) [2013] 2 CLJ 893 [FC]

Tio Chee Hing v. United Overseas Bank (Malaysia) Bhd
Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari, Jeffrey Tan FCJJ
(Civil Procedure - Appeal to Federal Court - Preliminary objection - Decision of Director of Land and Survey - Land Ordinance (Sabah Cap 68), s. 41) [2013] 2 CLJ 910 [FC]

COURT OF APPEAL

Chia Meng Leng v. PP
Hishamudin Mohd Yunus, Azahar Mohamed, Alizatul Khair JJCA
(Criminal Procedure; Evidence - Trial - Impeachment - Facts of two cases closely inter-related) [2013] 2 CLJ 926 [CA]

Goo Sing Kar v. Dato' Lim Ah Chap & Ors
Abdul Malik Ishak, Clement Skinner JJCA, Mohamad Ariff Yusof J
(Civil Procedure; Damages - Assessment of damages - Injunctions - Setting aside) [2013] 2 CLJ 936 [CA]

HIGH COURT

Alarm & Automation Supplies (M) Sdn Bhd v. Control Point Technology Sdn Bhd & Ors
Hanipah Farikullah JC
(Copyright; Civil Procedure - Contempt of court - Order of committal - Infringement of copyright) [2013] 2 CLJ 961 [HC]

MMP Communications Sdn Bhd v. Flyfirefly Sdn Bhd
Lee Swee Seng JC
(Contract - Formation - Concluded contract - Parties collaborated to publish magazine subject to execution of formal contract) [2013] 2 CLJ 971 [HC]

PP v. Tay Kok Wah
Mohd Yazid Mustafa J
(Criminal Law; Evidence: Penal Code - Section 302 - Murder) [2013] 2 CLJ 990 [HC]

SUBJECT INDEX

BANKRUPTCY

Interest - Interest on debt - Winding up of company - Whether interest payable to bank ceased to accrue after date company was wound up - Whether security not realised within six months of winding up order - Whether bank failed to meet statutory limit of six months under s. 8(2A) Bankruptcy Act 1967
Pilecon Realty Sdn Bhd v. Public Bank Bhd & Ors And Other Appeals
(Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 2 CLJ 893 [FC]

CIVIL PROCEDURE

Appeal - Appeal to Federal Court - Preliminary objection - Appeal to High Court in relation to decision of Director of Land and Survey - Dismissal of appeal by High Court and Court of Appeal - Whether High Court heard matter in exercise of its original jurisdiction - Whether High Court merely acting in its appellate jurisdiction - Preconditions for leave to appeal to Federal Court - Whether satisfied - Whether application for leave to appeal to Federal Court to be struck out - Courts of Judicature Act 1964, s. 96(a) - Land Ordinance (Sabah Cap 68), s. 41
Tio Chee Hing v. United Overseas Bank (Malaysia) Bhd
(Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari, Jeffrey Tan FCJJ) [2013] 2 CLJ 910 [FC]

Contempt of court - Order of committal - Infringement of copyright - Judgment and order to make full disclosure and delivery of all information, materials documents and relevant infringing copies - Whether judgment and order properly served - Whether judgment and order vague and ambiguous - Whether there was breach of terms of judgment and order - Whether breach proven beyond reasonable doubt - Whether application for committal and writ of sequestration premature and baseless - Whether there was credible evidence to prove that respondents had knowledge or were advised of the nature or contents of the judgment and order - Liability for contempt
Alarm & Automation Supplies (M) Sdn Bhd v. Control Point Technology Sdn Bhd & Ors
(Hanipah Farikullah JC) [2013] 2 CLJ 961 [HC]

Damages - Assessment of damages - Appeal against - Undertaking to pay damages in relation to four interim injunctions that were subsequently set aside - Injunctions obtained by deceit and bordering on fraudulent conduct - Liability for losses directly caused by injunctions - Whether sum awarded as damages warranted in special circumstances of case - Whether quantification of damages in accordance with established principles
Goo Sing Kar v. Dato' Lim Ah Chap & Ors
(Abdul Malik Ishak, Clement Skinner JJCA, Mohamad Ariff Yusof J) [2013] 2 CLJ 936 [HC]

Injunctions - Setting aside - Damages - Assessment of - Undertaking to pay damages in relation to four interim injunctions that were subsequently set aside - Injunctions obtained by deceit and bordering on fraudulent conduct - Liability for losses directly caused by injunctions - Whether sum awarded as damages warranted in special circumstances of case - Whether quantification of damages in accordance with established principles
Goo Sing Kar v. Dato' Lim Ah Chap & Ors
(Abdul Malik Ishak, Clement Skinner JJCA, Mohamad Ariff Yusof J) [2013] 2 CLJ 936 [HC]

CONTRACT

Formation - Concluded contract - Parties collaborated to publish magazine subject to execution of formal contract - Collaboration terminated after several issues of magazine published - Whether parties knew at outset that neither could claim against the other if collaboration was terminated any time before execution of formal contract - Whether allowing claim tantamounted to court writing contract for parties - Whether claim for damages proven
MMP Communications Sdn Bhd v. Flyfirefly Sdn Bhd
(Lee Swee Seng JC) [2013] 2 CLJ 971 [HC]

COMPANY LAW

Winding up - Disposition of property - Proceeds of sale of property utilised for payment of redemption sum to bank and balance to other creditors - Whether interest payable to bank ceased to accrue after date company was wound up - Whether s. 8(2A) Bankruptcy Act 1967 applicable to secured creditors in winding up situation - Whether bank failed to meet statutory limit of six months under s. 8(2A) Bankruptcy Act 1967 - Whether bank entitled to any interest - Civil Law Act 1956, s. 4(1) & (2) - Companies Act 1965, s. 291(1) & (2)
Pilecon Realty Sdn Bhd v. Public Bank Bhd & Ors And Other Appeals
(Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 2 CLJ 893 [FC]

CONSTITUTIONAL LAW

State Assemblyman - State Legislative Assembly meetings - Attendance - Failure of State Assemblyman to attend 5th Meeting of First Session and subsequent 1st Meeting of Second Session thereof - Whether having absented from 'two consecutive meetings' of the Assembly - Whether in breach of s. 51 of Kedah Constitution - Whether causing relevant state seat to fall vacant - Constitution of the State of Kedah arts. 2, 39, 51, 53
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Zaleha Zahari, Zainun Ali FCJJ) [2013] 2 CLJ 857 [FC]

COPYRIGHT

Infringement - Infringement copy - Parties running same business of alarm security systems and its components - Judgment and order to make full disclosure and delivery of all information, materials documents and relevant infringing copies - Judgment and order not complied with - Whether judgment and order properly served - Whether judgment and order vague and ambiguous - Whether there was breach of terms of judgment and order - Whether breach proven beyond reasonable doubt
Alarm & Automation Supplies (M) Sdn Bhd v. Control Point Technology Sdn Bhd & Ors
(Hanipah Farikullah JC) [2013] 2 CLJ 961 [HC]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Accused broke into victim's house to commit theft - Victim suffocated to death - Accused's semen found on victim's bed sheet - Whether accused physically present in victim's bedroom - Prosecution's case based on circumstantial evidence - Whether prima facie case established - Whether case proven beyond reasonable doubt - Probability of accused's defence
PP v. Tay Kok Wah
(Mohd Yazid Mustafa J) [2013] 2 CLJ 990 [HC]

CRIMINAL PROCEDURE

Trial - Impeachment - Facts of two cases closely inter-related - Whether impeachment of witness' testimony in other case could be relied upon in present case - Whether findings in earlier case undermined credibility of witness in present case - Whether prejudicial evidence in earlier case could be imported to present case to make adverse findings against accused
Chia Meng Leng v. PP
(Hishamudin Mohd Yunus, Azahar Mohamed, Alizatul Khair JJCA) [2013] 2 CLJ 926 [CA]

Trial - Joint trial - Facts of two cases closely inter-related - Whether ought to have been tried together
Chia Meng Leng v. PP
(Hishamudin Mohd Yunus, Azahar Mohamed, Alizatul Khair JJCA) [2013] 2 CLJ 926 [CA]

DAMAGES

Assessment - Appeal against - Undertaking to pay damages in relation to four interim injunctions that were subsequently set aside - Injunctions obtained by deceit and bordering on fraudulent conduct - Liability for losses directly caused by injunctions - Whether sum awarded as damages warranted in special circumstances of case - Whether quantification of damages in accordance with established principles
Goo Sing Kar v. Dato' Lim Ah Chap & Ors
(Abdul Malik Ishak, Clement Skinner JJCA, Mohamad Ariff Yusof J) [2013] 2 CLJ 936 [CA]

EVIDENCE

Admissibility of evidence - Opinion and belief - Offence of drug trafficking - Frightful expression of accused - Whether evidence relevant - Whether matter of perception - Whether failure to substantiate evidence rendered evidence inadmissible
Chia Meng Leng v. PP
(Hishamudin Mohd Yunus, Azahar Mohamed, Alizatul Khair JJCA) [2013] 2 CLJ 926 [CA]

Adverse inference - Failure of defence to call material witnesses - Corroboration - Accomplice evidence - Mutual friend who introduced accused to victim not called to testify and to corroborate contention that victim knew of and were friends with accused - Burden of calling witnesses to corroborate testimony - Alleged accomplices not called to counter testimony of witness
PP v. Tay Kok Wah
(Mohd Yazid Mustafa J) [2013] 2 CLJ 990 [HC]

Circumstantial evidence - Murder - Prosecution's case based on circumstantial evidence - Accused's fingerprints found on window pane of crime scene - Accused's semen stain found on victim's bed sheet - Whether prima facie case established based on circumstantial evidence - Whether case proven beyond reasonable doubt
PP v. Tay Kok Wah
(Mohd Yazid Mustafa J) [2013] 2 CLJ 990 [HC]

STATUTORY INTERPRETATION

Constitution - Constitution of the State of Kedah - Section 51 - Interpretation of words "two consecutive meetings" therein - State Legislative Assembly meetings - Failure of State Assemblyman to attend two meetings thereof - Effect and consequence - Whether causing relevant state seat to fall vacant - Constitution of the State of Kedah ss. 2, 39, 51, 53
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Zaleha Zahari, Zainun Ali FCJJ) [2013] 2 CLJ 857 [FC]

Interpretation of acts - Intention of legislature - Bankruptcy Act 1967, s. 8(2A) - Whether applicable to secured creditors in winding up situation - Whether secured creditor given timeline of six months failing which they are not entitled to interest
Pilecon Realty Sdn Bhd v. Public Bank Bhd & Ors And Other Appeals
(Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 2 CLJ 893 [FC]

WORD & PHRASES

"two consecutive meetings" - Article 51, Constitution of the State of Kedah - Meaning and import
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Zaleha Zahari, Zainun Ali FCJJ) [2013] 2 CLJ 857 [FC]

Legal Network Series Article

1. INTELLECTUAL PROPERTY
    Trade Descriptions Act 2011 ^{[Read excerpt]}
    by: Sharon Chien [2013] 1 LNS(A) xx

Principal Acts

Amending Acts

PU(A)

PU(B)