Legal Network Series

[2012] 1 LNS 277	MANJEET SINGH SANTOKH SINGH v. CPA AUSTRALIA LTD & ORS	CIVIL PROCEDURE: Pleadings - Statement of claim - 2 declaratory orders sought for in application not prayed for in statement of claim - Whether plaintiff allowed to expand scope of relief not covered by original pleadings - Whether Statement of Claim must state specifically the relief or remedy which plaintiff claimed - Rules of the High Court 1980, O. 18 r. 15(1) CIVIL PROCEDURE: Injunction - Application for - Whether plaintiff could seek an injunction against 2nd defendant when no relief or declaration was sought against 2nd defendant - Whether there must be a pre-existing cause of action - Whether a right to obtain an interlocutory injunction is a cause of action and can stand on its own
[2012] 1 LNS 278	MOHD SAUPI HJ PAKEH AMIN & ANOR v. RUSHDI AMINUDDIN	CIVIL PROCEDURE: Judgments and orders - Application to amend - To reflect defendant's correct name as appeared in the National Registration Department - Defendant appeared in person and defended suit against him -Whether there was error in the person of the defendant sued - Whether any issue of mistaken identity - Whether application properly made pursuant to the Rules of the High Court 1980, O. 20 r. 11 - Whether application was necessary to correct error in defendant's name so as to express the Court's intention when judgment was given against defendant
[2012] 1 LNS 284	CITIBANK BERHAD v. SUSAN MOY MEI SUM	LAND LAW: Charge - Order for sale - Application to set aside - Cause to the contrary - Whether typographical error in title number in Form 16D tantamount to "cause to the contrary" - Whether a fundamental and/or fatal defect as order for sale was obtained based on the correct property
[2012] 1 LNS 286	VISAGE ENGINEERING SDN BHD v. GEOPANCAR SDN BHD	CIVIL PROCEDURE: Limitation - Defendant raising defence of time bar against plaintiff's claim - Whether plaintiff's cause of action arose when defendant, a supporting creditor, was substituted as a petitioner - Whether plaintiff's action time-barred TORT: Malicious prosecution – Defendant’s winding-up petition against plaintiff subsequently struck out - Whether plaintiff's action citing want of reasonable and probable cause and malice sustainable - Whether mere allegation of abuse of process of court a sufficient element to succeed - Whether requirement to make out a case of tort of abuse of process of court was high - Whether mere dismissal of winding-up petition or suit on the ground of abuse of process would attract said tort - Whether plaintiff made out a case as pleaded - Whether plaintiff proved any real loss and damage
[2012] 1 LNS 303	MALAYSIAN INDUSTRIAL DEVELOPMENT FINANCE BERHAD v. ARAHEKTAR BINA SDN BHD & ORS	CIVIL PROCEDURE: Summary judgment - Application for - Hire purchase agreement - Whether any triable issues raised to justify plaintiff's claim going for trial - Whether defendants could use principle of res judicata in the broader sense of issue estoppel to deny plaintiff's claim and thus deny plaintiff of its summary judgment application - Whether a proper case for summary judgment CIVIL PROCEDURE: Res judicata - Issue estoppel - Issues, similarity of - Defence of a conspiracy to defraud was in substance basis of defendants' claims in the 2008 Suit which had failed - Whether defendants should be allowed to raise same defence in present action - Whether to allow plaintiffs to raise same issues again would be to offend principle of res judicata - Whether defendants should be allowed to relitigate same issue

CLJ 2014 Volume 3 (Part 1)

COURT

FEDERAL COURT

CIMB Bank Bhd v. Maybank Trustees Bhd & Other Appeal
Arifin Zakaria CJ, Raus Sharif PCA, Abdull Hamid Embong, Suriyadi Halim Omar, Ahmad Maarop FCJJ
(Company Law; Contract; Securities - Lifting of corporate veil - Issuance of public Islamic bonds for financing of government contracts) [2014] 3 CLJ 1 [FC]

Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd
Raus Sharif PCA, Hashim Yusof, Abdull Hamid Embong, Hasan Lah, Jeffrey Tan FCJJ
(Contract - Collateral contract - Whether void for want of consideration - Contracts Act 1950, s. 26) [2014] 3 CLJ 73 [FC]

COURT OF APPEAL

Lim Kiang Chai v. PP
Hishamudin Mohd Yunus, Abdul Wahab Patail, Balia Yusof Wahi JJCA
(Criminal Law; Evidence - Criminal Procedure Code, s. 113 - Statement - Cautioned statement - Admissibility) [2014] 3 CLJ 102 [CA]

Segamat Consolidated Sdn Bhd v. Pegawai Kewangan Negeri Johor
Ramly Ali, Anantham Kasinather, Mohd Zawawi Salleh JJCA
(Land Law; Civil Procedure - Acquisition of land - Total sum paid to land owner exceeded amount awarded - Action to recover overpaid sum) [2014] 3 CLJ 115 [CA]

HIGH COURT

Sia Chiu Chuan lwn. Jabatan Kastam Di Raja Malaysia & Yang Lain
Abdul Karim Jalil PK
(Undang-Undang Pentadbiran; Perkataan & Istilah - Semakan kehakiman - Permohonan - Sama ada semakan kehakiman di luar jangka masa - Kaedah-Kaedah Mahkamah 2012, A. 53 k. 3(6)) [2014] 3 CLJ 126 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Parties - Proper parties to be sued, whether - Land acquisition by State Authority for construction of road - Total sum paid to land owner exceeded amount awarded - Action to recover overpaid sum - Application under s. 33 of Government Proceedings Act 1956 for recovery of overpaid sum - State Financial Officer cited as party - Whether party in which judgment was based
Segamat Consolidated Sdn Bhd v. Pegawai Kewangan Negeri Johor
(Ramly Ali, Anantham Kasinather, Mohd Zawawi Salleh JJCA) [2014] 3 CLJ 115 [CA]

COMPANY LAW

Lifting of corporate veil - Whether corporate veil should be lifted - Issuance of public Islamic bonds for financing of government contracts - Bond-issuer fraudulently making off with redemption monies due to bondholders - Whether corporate veil to be lifted to make directors of bond issuer liable
CIMB Bank Bhd v. Maybank Trustees Bhd & Other Appeal
Arifin Zakaria CJ, Raus Sharif PCA, Abdull Hamid Embong, Suriyadi Halim Omar, Ahmad Maarop FCJJ) [2014] 3 CLJ 1 [FC]

CONTRACT

Collateral contract - Existence of - Whether established - Whether void for want of consideration - Contracts Act 1950, s. 26 - Whether relationship between parties gave rise to fiduciary duty to account - Whether duty to account absent under common law - Whether lifting of corporate veil justified in absence of any evidence of fraud
Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd
(Raus Sharif PCA, Hashim Yusof, Abdull Hamid Embong, Hasan Lah, Jeffrey Tan FCJJ) [2014] 3 CLJ 73 [FC]

Exemption clause - Effectiveness - Bond-issuer fraudulently made off with redemption monies due to bondholders causing latter to hold bonds facility agent and trustee company liable for loss - Whether facility agent and trustee negligent in causing loss to bondholders - Whether lead arranger entitled to exclude liability arising from Information Memorandum
CIMB Bank Bhd v. Maybank Trustees Bhd & Other Appeal
(Arifin Zakaria CJ, Raus Sharif PCA, Abdull Hamid Embong, Suriyadi Halim Omar, Ahmad Maarop FCJJ) [2014] 3 CLJ 1 [FC]

CRIMINAL LAW

Murder - Conviction and sentence - Appeal against - Whether appellant rider of motorcycle used by gunman in fatal shooting of deceased - Whether appellant in cautioned statement confessed to being hired to murder deceased - Cautioned statement - Admissibility of - Whether cautioned statement voluntarily made - Whether there was oppressive conduct by police officers involved in interrogation - Whether there was independent corroboration of cautioned statement - Whether conviction sustainable - Criminal Procedure Code, s. 113
Lim Kiang Chai v. PP
(Hishamudin Mohd Yunus, Abdul Wahab Patail, Balia Yusof Wahi JJCA) [2014] 3 CLJ 102 [CA]

EVIDENCE

Statement - Cautioned statement - Admissibility - Whether appellant in cautioned statement confessed to being hired to murder deceased - Whether cautioned statement voluntarily made - Whether there was oppressive conduct by police officers involved in interrogation - Whether there was independent corroboration of cautioned statement - Whether cautioned statement should not have been admitted by trial judge
Lim Kiang Chai v. PP
(Hishamudin Mohd Yunus, Abdul Wahab Patail, Balia Yusof Wahi JJCA) [2014] 3 CLJ 102 [CA]

LAND LAW

Acquisition of land - Acquisition by State Authority - Development and construction of road - Total sum paid to land owner exceeded amount awarded - Action to recover overpaid sum - Application under s. 33 of Government Proceedings Act 1956 for recovery of overpaid sum
Segamat Consolidated Sdn Bhd v. Pegawai Kewangan Negeri Johor
(Ramly Ali, Anantham Kasinather, Mohd Zawawi Salleh JJCA) [2014] 3 CLJ 115 [CA]

SECURITIES

Bonds - Public Islamic bonds - Issuance of public Islamic bonds for financing of government contracts - Bond-issuer fraudulently made off with redemption monies due to bondholders causing latter to hold bonds facility agent and trustee company liable for loss - Whether facility agent and trustee negligent in causing loss to bondholders - Duty of lead arranger - Duty of trustee - Responsibility for verifying information in Information Memorandum - Whether trustee may claim indemnity against bond issuer
CIMB Bank Bhd v. Maybank Trustees Bhd & Other Appeal
(Arifin Zakaria CJ, Raus Sharif PCA, Abdull Hamid Embong, Suriyadi Halim Omar, Ahmad Maarop FCJJ) [2014] 3 CLJ 1 [FC]

INDEKS PERKARA

UNDANG-UNDANG PENTADBIRAN

Semakan kehakiman - Certiorari - Permohonan - Deklarasi - Sama ada semakan kehakiman di luar jangka masa - Sama ada terdapat merit dalam semakan kehakiman - Kaedah-Kaedah Mahkamah 2012, A. 53 k. 3(6)
Sia Chiu Chuan lwn. Jabatan Kastam Di Raja Malaysia & Yang Lain
(Abdul Karim Jalil PK) [2014] 3 CLJ 126 [HC]

PERKATAAN & ISTILAH

"diberitahu kepada pemohon" - Kaedah-Kaedah Mahkamah 2012, A. 53 k. 3(6) - Sama ada kegagalan menyampaikan maklumat melucutkan dan memudaratkan hak pemohon
Sia Chiu Chuan lwn. Jabatan Kastam Di Raja Malaysia & Yang Lain
(Abdul Karim Jalil PK) [2014] 3 CLJ 126 [HC]

CLJ 2014 Volume 3 (Part 2)

FEDERAL COURT

Tan Chee Hoe & Sons Sdn Bhd v. Code Focus Sdn Bhd
Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Abu Samah Nordin, Ramly Ali FCJJ
(Contract; Civil Procedure - Waiver - Conditions precedent - Sale and purchase agreement) [2014] 3 CLJ 141 [FC]

Teng Chang Khim & Ors v. Dato' Raja Ideris Raja Ahmad & Ors
Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ
(Constitutional Law - Parliamentary privilege - State Assembly) [2014] 3 CLJ 173 [FC]

COURT OF APPEAL

Ooi Choo Hock v. PP
Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Criminal Law - Dangerous drugs - Trafficking - Exclusivity of possession) [2014] 3 CLJ 239 [CA]

HIGH COURT

Toh Pee Heng & Anor v. Malaysian Assurance Alliance Bhd & Anor
Lau Bee Lan J
(Insurance - Fire insurance - Consequential loss insurance - Liability) [2014] 3 CLJ 272 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Damages - Contract, breach of - Sale and purchase agreement - Contract performed in manner prohibited by statute - Whether void and unenforceable - Breach of terms thereof - Whether not amenable to order for damages - Defendant ordered to pay damages to be assessed or in lieu of assessment agreed liquidated damages as per void agreement - Whether devoid of legal basis
Tan Chee Hoe & Sons Sdn Bhd v. Code Focus Sdn Bhd
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 3 CLJ 141 [FC]

Interest - Interest payable on refund - Interest payable on refund of money paid under void contract - Calculation - Effective date for calculation of interest - Whether to take effect from date action was commenced at first instance - Whether inappropriate to award interest from date before institution of action
Tan Chee Hoe & Sons Sdn Bhd v. Code Focus Sdn Bhd
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 3 CLJ 141 [FC]

CONSTITUTIONAL LAW

Legislature - Parliamentary privilege - Resolution passed by majority members of state Legislative Assembly to create Select Committee on Competence, Accountability and Transparency (SELCAT) and determining its composition, powers and workings - Whether privileged - Whether formation of SELCAT and/or proceedings null and void and of no effect - Whether acts of state Legislative Assembly may be impeached or questioned in court - Resolution of SLA establishing SELCAT with the composition, powers and workings as passed in the resolution and internal proceedings of SELCAT pursuant to that resolution - Whether justiciable - Federal Constitution, arts. 63(1) & 72(1)
Teng Chang Khim & Ors v. Dato' Raja Ideris Raja Ahmad & Ors
(Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 3 CLJ 173 [FC]

Legislature - State Assembly - Proceedings in State Assembly - Whether court barred from questioning validity of proceedings - Resolution passed by majority members of state Legislative Assembly to create Select Committee on Competence, Accountability and Transparency (SELCAT) and determining its composition, powers and workings - Whether privileged - Whether formation of SELCAT and/or proceedings null and void and of no effect - Whether acts of state Legislative Assembly may be impeached or questioned in court - Resolution of SLA establishing SELCAT with the composition, powers and workings as passed in the resolution and internal proceedings of SELCAT pursuant to that resolution - Whether justiciable - Federal Constitution, arts. 63(1) & 72(1)
Teng Chang Khim & Ors v. Dato' Raja Ideris Raja Ahmad & Ors
(Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 3 CLJ 173 [FC]

CONTRACT

Void contract - Formation - Effect - Sale and purchase agreement - Sale of shares and substantial assets of company - Shareholders' approval for sale waived by parties - Whether contravening s. 132 Companies Act 1965 - Whether parties had 'actual notice' of contravention - Whether not entitled to exception to 'void' rule - Whether contract void and not voidable - Benefits paid and received under contract - Whether to be restored - Contracts Act 1950, s. 66 - Companies Act 1965,
s. 132C & 132C(3)
Tan Chee Hoe & Sons Sdn Bhd v. Code Focus Sdn Bhd
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 3 CLJ 141 [FC]

Waiver - Conditions precedent - Sale and Purchase agreement - Sale of shares and substantial assets of company - Shareholders' approval for sale - Whether waived by parties - Whether offending s. 132C Companies Act 1965 - Mandatory statutory requirements - Whether could not be waived by contracting parties - Whether waiver void - Whether agreement invalidated - Claims based on terms of agreement - Whether unsustainable - Contracts Act 1950, s. 24 - Companies Act 1965, s. 132C & 132C(3)
Tan Chee Hoe & Sons Sdn Bhd v. Code Focus Sdn Bhd
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 3 CLJ 141 [FC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Sections 39B(1)(a) & 12(2) - Trafficking in dangerous drugs - Possession - Conviction and sentence - Appeal against - Whether there was exclusivity of possession - Rejection of witness's statutory declaration as evidence - Whether occasioned a serious miscarriage of justice - Whether appellate interference warranted - Discrepancies as to gross weight of drugs - Whether established - Whether there was serious doubt as to identity of drug exhibits - Whether there was a prima facie case - Whether proviso to s. 60(1) Courts of Judicature Act 1964 invoked
Ooi Choo Hock v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 3 CLJ 239 [CA]

EVIDENCE

Witness - Conflicting evidence - Consequential loss - Claim for losses suffered - Method of computation - Whether claim allowed
Toh Pee Heng & Anor v. Malaysian Assurance Alliance Bhd & Anor
(Lau Bee Lan J) [2014] 3 CLJ 272 [HC]

INSURANCE

Fire insurance - Consequential loss insurance - Liability - Whether plaintiff indemnified under insurance policy - Whether insurer liable - Whether plaintiff suffered consequential loss in business due to fire
Toh Pee Heng & Anor v. Malaysian Assurance Alliance Bhd & Anor
(Lau Bee Lan J) [2014] 3 CLJ 272 [HC]

Fire insurance - Consequential loss policy - Whether there was consequential loss incurred - Claim for losses suffered - Method of computation - Whether customary approach used in loss adjusting
Toh Pee Heng & Anor v. Malaysian Assurance Alliance Bhd & Anor
(Lau Bee Lan J) [2014] 3 CLJ 272 [HC]