CLJ Bulletin, Issue 2008, Vol 15
20 June 2008
CLJ Law MALAYSIA
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| New This Week - | 1. CLJ June (Part 2) 2008 |
| 2. CLJ June (Part 3) 2008 |
ARTICLE
Mitigation Plea: A Constituent Element In Sentencing Process by Subash Ramasamy [2008] 3 CLJ xiii
COURT
COURT OF APPEAL
IBS Bookservice AG Basel v. Mawaddah Enterprise Sdn Bhd
(Record of appeal - Filing out of time - Identical applications made before sessions
court and High Court) [2008] 3 CLJ
557
R Thangaratnam Vythilingam v. Vinayagamoorthy Rajaratnam & Ors
(Land law - Transfer - Validity of - Transfer of property to grandson when mother only
consented to transfer of property to son) [2008] 3 CLJ
570
Shencourt Sdn Bhd v. Perumahan NCK Sdn Bhd
(Counterclaim - Application for leave to proceed with counterclaim after winding-up of
company) [2008] 3 CLJ
582
HIGH COURT
IEV International Pty Ltd v. Sadacharamani Govindasamy; Registrar of Patents
(Interested Party)
(Patents - Infringement - Anticipation and novelty) [2008] 3 CLJ
593
Pengurusan Danaharta Nasional Bhd v. Astron Ltd
(Private caveat - Application for removal by Pengurusan Danaharta Nasional Sdn Bhd
('Danaharta') [2008] 3 CLJ
614
PP v. Sim, Odita, Muhammad Architects Sdn Bhd
(Copyright - Offences - Section 41(1)(d) Copyright Act 1987) [2008] 3 CLJ
623
SUBJECT INDEX
CIVIL PROCEDURE
Appeal - Record of appeal - Filing out of time - Identical applications made before
sessions court and High Court - Whether High Court judge erred in allowing application
when application before sessions court was dismissed - Applicant did not withdraw High
Court application despite undertaking given before sessions court - Whether appeal against
High Court decision should be allowed in the circumstances - Subordinate Courts Rules
1980, O. 49 r. 6(2), (3)
IBS Bookservice AG Basel v. Mawaddah Enterprise Sdn Bhd
(Zaleha Zahari, KN Segara & Ahmad Maarop JJCA) [2008] 3 CLJ
557 [CA]
Appeal - Record of appeal - Filing out of time application - Proper forum application
to be made - Whether High Court or sessions court - Subordinate Courts Rules 1980, O. 49
r. 6(3)
IBS Bookservice AG Basel v. Mawaddah Enterprise Sdn Bhd
(Zaleha Zahari, KN Segara & Ahmad Maarop JJCA) [2008] 3 CLJ
557 [CA]
Counterclaim - Application for leave to proceed with counterclaim after winding-up of
company - Whether counterclaim could be dealt with by company's liquidators - Whether
counterclaim should be heard in suit against company - Companies Act 1965, s. 263(2)
Shencourt Sdn Bhd v. Perumahan NCK Sdn Bhd
(Gopal Sri Ram, Mohd Ghazali Yusoff & Zulkefli Makinudin JJCA) [2008] 3 CLJ
582 [CA]
COMPANY LAW
Winding-up - Counterclaim - Application for leave to proceed with counterclaim after
winding-up of company - Whether counterclaim could be dealt with by company's liquidators
- Whether counterclaim should be heard in suit against company - Companies Act 1965, s.
263(2)
Shencourt Sdn Bhd v. Perumahan NCK Sdn Bhd
(Gopal Sri Ram, Mohd Ghazali Yusoff & Zulkefli Makinudin JJCA) [2008] 3 CLJ
582 [CA]
COPYRIGHT
Offences - Section 41(1)(d) Copyright Act 1987 - Possession of infringing copies of
computer programs during subsistence of copyright - Appeal against acquittal and discharge
- Whether actual possession proved - Whether use for business purposes - Whether original
copies tendered for comparison purposes - Whether opportunity for tampering existed -
Whether break in the chain of evidence
PP v. Sim, Odita, Muhammad Architects Sdn Bhd
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
623 [HC]
LAND LAW
Caveat - Private caveat - Application for removal by Pengurusan Danaharta Nasional Sdn
Bhd ('Danaharta') - Whether Danaharta an aggrieved party - Whether Danaharta estopped from
seeking removal of caveat under s. 327 National Land Code having failed in application
under s. 326 of same - Whether caveator had a caveatable interest - Whether Danaharta had
a right ad rem obtained earlier than interest of caveator
Pengurusan Danaharta Nasional Bhd v. Astron Ltd
(Abdul Wahab Patail J) [2008] 3 CLJ
614 [HC]
Transfer - Validity of - Transfer of property to grandson when mother only consented to
transfer of property to son - Whether son was authorised to transfer property to his son
when he was only authorised to transfer property to himself - Whether authority given was
a gift from a mother to her son - Whether son was entitled to have property transferred to
anyone he nominated
R Thangaratnam Vythilingam v. Vinayagamoorthy Rajaratnam & Ors
(Abdul Aziz Mohamad FCJ, James Foong & Zaleha Zahari JJCA) [2008] 3 CLJ
570 [CA]
PATENTS
Infringement - Anticipation and novelty - Whether there was anticipation by prior art -
Whether alleged inventions obvious to person having ordinary skill in the art - Whether
any technical advancement or improvement - Whether any novelty - Patents Act 1983, ss. 11,
14 and 15
IEV International Pty Ltd v. Sadacharamani Govindasamy; Registrar of Patents
(Interested Party)
(Ramly Ali J) [2008] 3 CLJ
593 [HC]
TRUSTS
Transfer of property - Validity of - Transfer of property to grandson when mother only
consented to transfer of property to son - Whether son was authorised to transfer property
to his son when he was only authorised to transfer property to himself - Whether authority
given was a gift from a mother to her son - Whether son was entitled to have property
transferred to anyone he nominated
R Thangaratnam Vythilingam v. Vinayagamoorthy Rajaratnam & Ors
(Abdul Aziz Mohamad FCJ, James Foong & Zaleha Zahari JJCA) [2008] 3 CLJ
570 [CA]
COURT
COURT OF APPEAL
Antah Schindler Sdn Bhd v. Ssangyong Engineering & Construction Co Ltd
(Building contract - Claim for work done - 'Pay when paid' clause) [2008] 3 CLJ
641
Che Minah Remeli v. Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors
(Application to recuse judge - Criterion for application) [2008] 3 CLJ
653
Mega Sakti Sdn Bhd v. Wong Wai Hoi & Ors & Another Appeal
(Affidavits - Authority to affirm) [2008] 3 CLJ
674
Pembangunan Cahaya Tulin Sdn Bhd & Ors v. Citibank Bhd
(Whether present panel of Court of Appeal had jurisdiction to amend an order made by
differently constituted panel of Court of Appeal) [2008] 3 CLJ
685
Rabiah Lip & Ors v. Bukit Lenang Development Sdn Bhd & Other Appeals
(Formation - Subject to contract - Sale and purchase agreement for land) [2008] 3 CLJ
692
HIGH COURT
Chockalingam KMS Kumarappan Chettiar v. Aziz Hj Asahari
(Moneylenders - Accounts - Statement of - Moneylenders Act 1951, s. 18(1), (2)) [2008] 3 CLJ
725
TS Sambanthamurthi v. AJ Dason & Ors
(Damages - Breach - Asessment) [2008] 3 CLJ
732
SUBJECT INDEX
CIVIL LAW ACT
Damages - Interest, award - Assessment - Appeal against - Damages awarded based on
losses suffered resulting from breach of a revocation agreement between parties - Whether
revocation agreement invalid and unenforceable
TS Sambanthamurthi v. AJ Dason & Ors
(Hishamudin Yunus J) [2008] 3 CLJ
732 [HC]
CIVIL PROCEDURE
Affidavits - Admissibility - Striking out of scandalous, irrelevant or otherwise
oppressive affidavits - Deponent not having personal knowledge of facts - Blanket
statement by deponent that facts were obtained from records which he had access to without
specific details of records given - Courts to demand stricter adherence to rules of
evidence where credibility of affidavit is under scrutiny - Whether flaw in affidavit goes
to heart of matter or merely an irregularity
Mega Sakti Sdn Bhd v. Wong Wai Hoi & Ors & Another Appeal
(Mokhtar Sidin, Zulkefli Makinudin & Suriyadi Halim Omar JJCA) [2008] 3 CLJ
674 [CA]
Affidavits - Authority to affirm - Whether deponent of affidavit had authority to
affirm affidavit on behalf of appellants - Deponent not an appellant - Purported letter of
authorization from appellants exhibited in deponent's affidavit - Whether sufficient -
Whether any secondary authentication of deponent's authority required - No affidavits
filed by appellants to confirm deponent's authority - Whether flaw in affidavit goes to
heart of matter or merely an irregularity
Mega Sakti Sdn Bhd v. Wong Wai Hoi & Ors & Another Appeal
(Mokhtar Sidin, Zulkefli Makinudin & Suriyadi Halim Omar JJCA) [2008] 3 CLJ
674 [CA]
Appeal - Evidence, evaluation of - No admissible evidence on record - Affidavit in
support of original application declared defective and inadmissible - Whether appellate
court precluded from going into merit of appeal
Mega Sakti Sdn Bhd v. Wong Wai Hoi & Ors & Another Appeal
(Mokhtar Sidin, Zulkefli Makinudin & Suriyadi Halim Omar JJCA) [2008] 3 CLJ
674 [CA]
Judge - Application to recuse judge - Criterion for application - Applicant to
establish reasons justifying disqualification of judge - Whether there is reasonable
apprehension of bias based on serious grounds - Inquiry to be based entirely on facts of
case - Application to recuse all Muslim judges from sitting on panel - Whether litigants
may dictate religious faith of judges - Impartiality of all judges irrespective of race or
religion or gender is to be presumed - Presumption of judicial impartiality - Application
for recusal must be filed supported by relevant affidavits
Che Minah Remeli v. Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors
(Zaleha Zahari, Abdul Malik Ishak & Abu Samah Nordin JJCA) [2008] 3 CLJ
653 [CA]
Judgments and orders - Amendment of order - Whether present panel of Court of Appeal
had jurisdiction to amend an order made by differently constituted panel of Court of
Appeal - Whether application to amend misconceived - Rules of the High Court 1980, O. 42
r. 8
Pembangunan Cahaya Tulin Sdn Bhd & Ors v. Citibank Bhd
(Zaleha Zahari, Suriyadi Halim Omar & Sulong Matjeraie JJCA) [2008] 3 CLJ
685 [CA]
Jurisdiction - Court - Whether present panel of Court of Appeal had jurisdiction to
amend an order made by differently constituted panel of Court of Appeal - Whether
application to amend misconceived - Rules of the High Court 1980, O. 42 r. 8
Pembangunan Cahaya Tulin Sdn Bhd & Ors v. Citibank Bhd
(Zaleha Zahari, Suriyadi Halim Omar & Sulong Matjeraie JJCA) [2008] 3 CLJ
685 [CA]
Summary judgment - Leave to sign judgment - Whether court can lay down terms on issue
of enforceability of summary judgment
Antah Schindler Sdn Bhd v. Ssangyong Engineering & Construction Co Ltd
(Mokhtar Sidin, Suriyadi Halim Omar & Zainun Ali JJCA) [2008] 3 CLJ
641 [CA]
Summary judgment - Triable issues - Whether any substantial dispute of facts or law -
Whether 'pay when paid' clause in contract for installation of lifts in building denied
sub-contractor of right to sue for a judgment sum - Whether triable issue
Antah Schindler Sdn Bhd v. Ssangyong Engineering & Construction Co Ltd
(Mokhtar Sidin, Suriyadi Halim Omar & Zainun Ali JJCA) [2008] 3 CLJ
641 [CA]
CONTRACT
Building contract - Claim for work done - 'Pay when paid' clause - Contract for
installation of lifts in building - Works completed by sub-contractor and certified by
architect's certificate - Claim for payment by sub-contractor against main contractor -
Whether main contractor only liable to pay sub-contractor upon receiving payment from
employer - Whether 'pay when paid' clause merely imposes a time limit for payment -
Whether 'pay when paid' clause imposes any restriction over sub-contractor's rights to
claim for payment against main contractor
Antah Schindler Sdn Bhd v. Ssangyong Engineering & Construction Co Ltd
(Mokhtar Sidin, Suriyadi Halim Omar & Zainun Ali JJCA) [2008] 3 CLJ
641 [CA]
Damages - Breach - Assessment - Appeal against - Damages awarded based on losses
suffered resulting from breach of a revocation agreement between parties - Whether
revocation agreement invalid and unenforceable
TS Sambanthamurthi v. AJ Dason & Ors
(Hishamudin Yunus J) [2008] 3 CLJ
732 [HC]
Damages - Interest - Assessment - Appeal against - Damages awarded based on losses
suffered resulting from breach of a revocation agreement between parties - Whether
revocation agreement invalid and unenforceable
TS Sambanthamurthi v. AJ Dason & Ors
(Hishamudin Yunus J) [2008] 3 CLJ
732 [HC]
Formation - Subject to contract - Sale and purchase agreement for land - Whether valid
contract exists - receipts issued to purchasers upon payment of advance payments for
purchase of land - Receipts containing statement that certain steps need be taken
including survey and acceptance of an offer - Receipts referred to an offer by purchaser -
No agreement concluded as it was still subject to contract
Rabiah Lip & Ors v. Bukit Lenang Development Sdn Bhd & Other Appeals
(Tengku Baharudin Shah, Zaleha Zahari & Heliliah Mohd Yusof JJCA) [2008] 3 CLJ
692 [CA]
EQUITY
Property, equitable interest in - Proprietory estoppel - Claim of proprietory estoppel
by squatters - Whether any representation made by registered proprietor to induce
squatters to remain in occupation of lands - Whether any right to equitable relief
Rabiah Lip & Ors v. Bukit Lenang Development Sdn Bhd & Other Appeals
(Tengku Baharudin Shah, Zaleha Zahari & Heliliah Mohd Yusof JJCA) [2008] 3 CLJ
692 [CA]
EVIDENCE
Presumption - Adverse inference - Evidence Act 1950, s. 114(g) - Failure by plaintiff
to produce a witness - Whether presumption of adverse inference to be invoked - Sufficient
documentary evidence tendered by plaintiff to proof its case - Absence of any gap in
plaintiff's evidence - Presumption of adverse inference not to be invoked
Rabiah Lip & Ors v. Bukit Lenang Development Sdn Bhd & Other Appeals
(Tengku Baharudin Shah, Zaleha Zahari & Heliliah Mohd Yusof JJCA) [2008] 3 CLJ
692 [CA]
LAND LAW
Estoppel - Proprietory estoppel - Claim of proprietory estoppel by squatters - Houses
constructed by squatters without any encouragement from registered proprietor of land -
Whether extended occupation of land by squatters gives rise to any legitimate expectation
- National Land Code, s. 206(3) - Whether s. 206(3) applicable - Whether squatters
established an in personam equity (estoppel) creating a binding obligation coupled with a
right to equitable relief
Rabiah Lip & Ors v. Bukit Lenang Development Sdn Bhd & Other Appeals
(Tengku Baharudin Shah, Zaleha Zahari & Heliliah Mohd Yusof JJCA) [2008] 3 CLJ
692 [CA]
Indefeasibility of title and interests - Fraud - Whether transfer of land was
fraudulent - Nature of notice or knowledge which may be taken into account for purposes of
assessing what constitutes good faith - Whether constructive fraud existed - Standard of
proof of fraud beyond reasonable doubt - Whether title defeasible
Rabiah Lip & Ors v. Bukit Lenang Development Sdn Bhd & Other Appeals
(Tengku Baharudin Shah, Zaleha Zahari & Heliliah Mohd Yusof JJCA) [2008] 3 CLJ
692 [CA]
MONEYLENDERS
Accounts - Statement of - Whether must be recorded in Bahasa Malaysia or English -
Whether must be tendered or produced in court - Moneylenders Act 1951, s. 18(1), (2)
Chockalingam KMS Kumarappan Chettiar v. Aziz Hj Asahari
(Zainal Adzam Ghani J) [2008] 3 CLJ
725 [HC]
CASE OF THE WEEK
ANTAH SCHINDLER SDN BHD v. SSANGYONG ENGINEERING & CONSTRUCTION CO LTD
CONTRACT: Building contract - Claim for work done - ‘Pay when paid’ clause - Contract for installation of lifts in building - Works completed by sub-contractor and certified by architect’s certificate - Claim for payment by sub-contractor against main contractor - Whether main contractor only liable to pay sub-contractor upon receiving payment from employer - Whether ‘pay when paid’ clause merely imposes a time limit for payment - Whether ‘pay when paid’ clause imposes any restriction over sub-contractor’s rights to claim for payment against main contractor
CIVIL PROCEDURE: Summary judgment - Triable issues - Whether any substantial dispute of facts or law - Whether ‘pay when paid’ clause in contract for installation of lifts in building denied sub-contractor of right to sue for a judgment sum - Whether triable issue
CIVIL PROCEDURE: Summary judgment - Leave to sign judgment - Whether court can lay down terms on issue of enforceability of summary judgment
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