Legal Network Series

[2011] 1 LNS 192	MAHINDER SINGH DULKU v. TRIKKON CONSTRUCTION SENDIRIAN BERHAD & ANOR	CIVIL PROCEDURE: Res judicata - Issue estoppel - Parties - 2nd defendant not parties to the disciplinary proceedings or to appeals to the High Court and Court of Appeal - Whether there was sufficient nexus between 1st and 2nd defendants for doctrine of res judicata/issue estoppel to apply to 2nd defendant - Whether estoppel/res judicata bound both defendants CIVIL PROCEDURE: Estoppel - Issue estoppel - Validity of the Deed of Assignment - Determined by the Disciplinary Board (DB) proceedings and confirmed by the High Court and the Court of Appeal - Whether central issue for determination here was the same as that in the DB proceedings - Whether issue estoppel arose rendering it improper for this court to relitigate issue - Whether High Court decision which was subsequently affirmed by the Court of Appeal had been made with the benefit of all relevant and available evidence CIVIL PROCEDURE: Striking out - Defence and counterclaim - Issue of the validity of the Deed of Assignment - Whether res judicata - Whether a plain and obvious case for disposal by summary process
[2011] 1 LNS 236	CREDIT GUARANTEE CORPORATION MALAYSIA BERHAD v. EVAPAK SDN BHD & ORS	BANKING: Banking and Financial Institutions Act 1989, s. 2(1) - Loan extended by plaintiff to 1st defendant - Contention by defendants that plaintiff was an unlicensed moneylender - Whether plaintiff was carrying on a scheduled business of development Finance business - Whether plaintiff was a scheduled institution under the Banking and Financial Institutions Act 1989 and thus exempt from the Moneylender's Ordinance 1952 CONTRACT: Agency - Fraud - Principal and agent - 3rd defendant was the fully authorised agent of 1st defendant - Fraud perpetrated by 3rd defendant which culminated in plaintiff receiving no benefit - Whether 1st defendant liable for the loan facility granted to it by plaintiff or was it discharged from such liability because of agent's Fraud - Whether 1st defendant could rely on the 'fraudulent' acts of its agent to escape liability for an obligation owed to the plaintiff CONTRACT: Guarantee - Liability of guarantor - Whether 3rd defendant discharged as a guarantor by reason of his resignation as a Director of 1st defendant - Effect of letter from 1stdefendant to 3rd defendant stating he was released as a guarantor in respect of loan facility granted by plaintiff to 1st defendant and indemnifying him for all losses suffered - Whether letter invalid concerning 3rd defendant and plaintiff - Whether 1st defendant could not unilaterally discharge obligations owed to plaintiff - Whether 3rd defendant could seek an indemnity from 1st defendant for losses suffered as a result of fulfilling his obligations as guarantor to plaintiff
[2011] 1 LNS 251	TEOH MENG KEAT & ANOR v. PENNY ANN MONOMOMY DAWSON	TORT: Negligence - Fire - Originated from defendant's unit and spread to and destroyed plaintiffs' adjoining unit - Whether there was any Negligent act or omission by defendant when the fire started from the air conditioning in her bedroom - Whether any Negligence on part of defendant to cause the commencement of the fire or its spreading to plaintiffs' unit - Whether fire was accidental - Whether plaintiffs had proved Negligence of defendant - Whether plaintiffs had failed to prove their case TORT: Negligence - Res ipsa loquitor - Fire - Proof of Negligence - Whether principle of res ipsa loquitor not applicable here - Whether plaintiff still bore burden of proof to establish some Negligent acts or omissions by defendant which caused fire or its spreading
[2011] 1 LNS 394	IKEH LANTAI v. MICHAEL TALIBAN @ MICHAEL JIM & ORS	NATIVE LAW AND CUSTOM: Land dispute - Customary rights over Land - Court orders dated 26 February 1994 and 15 January 2009 - Whether conferred on plaintiff native customary rights over the Land - Court orders related to 1st and not 2nd defendant - Land was registered in 2nd defendant's name but she was not named as defendant - Whether court orders had any legal force so far as 1st and 2nd defendants were concerned - Whether plaintiff's right to occupy said Land could still be disputed by 1st and 2nd defendants NATIVE LAW AND CUSTOM: Land dispute - Customary rights over Land - Whether 1st defendant's late father had acquired native customary rights over the disputed Land before plaintiff occupied the same - Whether issuance of Native Title on Lot 41 in the 1st defendant's name by the 4th defendant was in accordance with the provisions of the Sabah Land Ordinance - Whether plaintiff's claim of native customary rights over said Land was untenable - Whether plaintiff was a trespasser NATIVE LAW AND CUSTOM: Land dispute - Native title - Transfer - 1st defendant's transfer of the title Deed to 2nd defendant - Whether plaintiff had proved that 2nd defendant was a non-native - Whether transfer of Lot 41 to 2nd defendant was ultra vires s. 17(1) of the Sabah Land Ordinance TORT: Negligence - Duty of care - Destruction of plaintiff's House - Letters written by 3rd and 4th defendants concerning security aspect of the demolition by 2nd defendant - 3rd and 4thdefendants did not stop 2nd defendant from dismantling plaintiff's House - Whether 3rd and 4th defendants owed plaintiff a duty of care to ensure that plaintiff's House was not demolished by 2nd defendant - Whether they owed any duty to investigate plaintiff's rights over the Land before issuing said letters in question
[2011] 1 LNS 411	WONG KAU @ WONG KON LIN & ANOR v. COTTAGE HOME SDN BHD	TORT: Trespass to Land - Defendant's creation of a trench, slope along the trench and diversion of a natural stream on plaintiffs' Land into defendant's trench - Whether defendant had encroached on plaintiffs' Land and caused damage and loss to plaintiffs - Whether defendant's trench was created on the plaintiffs' Land or on defendant's side of the Land as contended by defendant - Whether plaintiffs had acquired a valid right of way over an access road located on the defendant's Land - Whether defendant had proved that plaintiffs had wrongfully and unlawfully entered and crossed defendant's Land through access road and were liable for Trespass TORT: Trespass to Land - Damages - Defendant's creation of a trench, slope along the trench and diversion of a natural stream on plaintiffs' Land into defendant's trench - Monetary loss and loss of future Earnings and profits from plaintiffs' fruit trees and plants - Whether plaintiffs had succeeded in proving their losses and Damages

CLJ 2013 Volume 3 (Part 3)

COURT

FEDERAL COURT

AmBank (M) Bhd v. Tan Tem Son & Another Appeal
Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Sulong Matjeraie FCJJ
(Bankruptcy; Civil Procedure; Limitation - Bankruptcy notice - Bankruptcy notice issued more than six years after date of judgment - Whether leave required to issue bankruptcy notice) [2013] 3 CLJ 317 [FC]

COURT OF APPEAL

Geopancar Sdn Bhd v. Visage Engineering Sdn Bhd
Abdul Malik Ishak, Hishamudin Mohd Yunus, Balia Yusof Wahi JJCA
(Contract - Building contract - Claim for work done - Entitlement to balance sum owed for work done) [2013] 3 CLJ 355 [CA]

Jaferi Ipee v. PP
Mohamed Apandi Ali, Anantham Kasinather JJCA, David Wong Dak Wah J
(Criminal Law - Penal Code - Section 302 - Murder - Identification of assailants who caused death of deceased - Turnbull Guidelines) [2013] 3 CLJ 381 [CA]

HIGH COURT

CIMB Bank Bhd v. Abdul Rafi Abdul Rajak & Ors
Vernon Ong J
(Banking; Civil Procedure; Land Law - Banks and banking business - Loan secured by charge - Vesting order) [2013] 3 CLJ 397 [HC]

HMJ Shaharom & KS Wee v. Kumpulan Wang Amanah Pencen
Hamid Sultan Abu Backer J
(Legal Profession - Remuneration - Professional fees) [2013] 3 CLJ 423 [HC]

Komoco Motors Pte Ltd v. Faridah Abdullah
Vernon Ong J
(Contract - Sale and purchase of land - Specific performance) [2013] 3 CLJ 440 [HC]

Paramount Link Sdn Bhd lwn. Rossington Consolidated Sdn Bhd
Yaacob Md Sam H
(Undang-undang Syarikat; Prosedur Sivil - Penggulungan - Kegagalan mematuhi dan menyelesaikan tuntutan di bawah notis statutori s. 218 Akta Syarikat 1965) [2013] 3 CLJ 457 [HC]

Telekom Malaysia Bhd v. Daya Timur Construction Sdn Bhd
Ravinthran Paramaguru JC
(Public Utilities; Tort - Trespass to land - Damage to underground cables - Cables damaged during piling renovation works - Liability for trespass) [2013] 3 CLJ 467 [HC]

SUBJECT INDEX

BANKING

Banks and banking business - Loan secured by charge - Vesting order - Whether valid - Whether s. 50(6) Banking and Financial Institutions Act 1989 and s. 420 National Land Code applicable
CIMB Bank Bhd v. Abdul Rafi Abdul Rajak & Ors
(Vernon Ong J) [2013] 3 CLJ 397 [HC]

BANKRUPTCY

Bankruptcy notice - Setting aside, application for - Bankruptcy notice issued more than six years after date of judgment - Whether leave required to issue bankruptcy notice - Rules of the High Court 1980, O. 46 r. 2(1)(a) - Whether bankruptcy proceeding a writ of execution - Whether failure to obtain leave rendered bankruptcy notice invalid
AmBank (M) Bhd v. Tan Tem Son & Another Appeal
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Sulong Matjeraie FCJJ) [2013] 3 CLJ 317 [FC]

CIVIL PROCEDURE

Execution - Writ of execution - Whether bankruptcy proceeding a writ of execution - Whether leave required to issue bankruptcy notice more than six years after date of judgment - Rules of the High Court 1980, O. 46 r. 2(1)(a)
AmBank (M) Bhd v. Tan Tem Son & Another Appeal
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Sulong Matjeraie FCJJ) [2013] 3 CLJ 317 [FC]

Parties - Locus standi - Vesting order - Legal effect - Whether bank authorised to take over assets and liabilities pursuant to vesting order - Whether plaintiff had locus standi to commence action - Banking and Financial Institutions Act 1989, s. 50(3)
CIMB Bank Bhd v. Abdul Rafi Abdul Rajak & Ors
(Vernon Ong J) [2013] 3 CLJ 397 [HC]

CONTRACT

Building contract - Claim for work done - Entitlement to balance sum owed for work done - Whether delay in completion - Whether failure to prove loss fatal
Geopancar Sdn Bhd v. Visage Engineering Sdn Bhd
(Abdul Malik Ishak, Hishamudin Mohd Yunus Balia Yusof Wahi JJCA) [2013] 3 CLJ 355 [CA]

Damages - Liquidated and ascertained damages - Whether proven by evidence - Whether pleaded - Whether trial judge erred in allowing damages
Geopancar Sdn Bhd v. Visage Engineering Sdn Bhd
(Abdul Malik Ishak, Hishamudin Mohd Yunus Balia Yusof Wahi JJCA) [2013] 3 CLJ 355 [CA]

Sale and purchase of land - Specific performance - Sale and purchase subjected to restriction in interest - Whether conditions complied within stipulated time - Whether sale and purchase agreement existed between parties - Whether enforceable - Whether doctrine of laches and acquiescence applied
Komoco Motors Pte Ltd v. Faridah Abdullah
(Vernon Ong J) [2013] 3 CLJ 440 [HC]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Identification of assailants who caused death of deceased - Turnbull Guidelines - Whether Turnbull Guidelines on identification followed - Identification parade - Whether in accordance with standard and acceptable practice - Whether computerised facial composition had resemblance to appellant - Whether there was doubt as to accuracy of identity of assailant - Whether conviction safe
Jaferi Ipee v. PP
(Mohamed Apandi Ali, Anantham Kasinather JJCA, David Wong Dak Wah J) [2013] 3 CLJ 381 [CA]

LAND LAW

Indefeasibly of title and interest - Fraud - Discharge of charge - Insufficient and void instrument - Whether transfer liable to be set aside - Whether subsequent purchaser bona fide purchaser for valuable consideration - National Land Code s. 340(2)(b), (3)(a)
CIMB Bank Bhd v. Abdul Rafi Abdul Rajak & Ors
(Vernon Ong J) [2013] 3 CLJ 397 [HC]

LEGAL PROFESSION

Remuneration - Professional fees - Vetting of draft agreement - Professional fees for sum of RM1,346,625 - Failure to settle full payment of fees - Whether sum claimed was reasonable - Whether there existed fees agreement - Whether claim for work done exceeded scope of instruction - Whether RM70,000 a reasonable sum
HMJ Shaharom & KS Wee v. Kumpulan Wang Amanah Pencen
(Hamid Sultan Abu Backer J) [2013] 3 CLJ 423 [HC]

LIMITATION

Enforcement of judgment - Bankruptcy proceedings - Limitation period for bringing bankruptcy proceedings - Limitation Act 1953, s. 6(3)
AmBank (M) Bhd v. Tan Tem Son & Another Appeal
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Sulong Matjeraie FCJJ) [2013] 3 CLJ 317 [FC]

PUBLIC UTILITIES

Telecommunications - Underground cables - Damage to underground cables during piling renovation works - Whether defendant negligent - Liability for trespass - Whether telecommunications provider could enter any land for purpose of erecting telecommunications facility - Duty of care - Whether breached - Whether inquiries made about underground cables - Claim for damages
Telekom Malaysia Bhd v. Daya Timur Construction Sdn Bhd
(Ravinthran Paramaguru JC) [2013] 3 CLJ 467 [HC]

TORT

Negligence - Breach of duty - Damage to underground cables - Cables damaged during piling renovation works - Whether defendant breached duty of care by not being reasonable and diligent - Whether inquiries made about underground cables - Whether defendant negligent - Claim for damages
Telekom Malaysia Bhd v. Daya Timur Construction Sdn Bhd
(Ravinthran Paramaguru JC) [2013] 3 CLJ 467 [HC]

Trespass to land - Damage to underground cables - Cables damaged during piling renovation works - Liability for trespass - Whether telecommunications provider could enter any land for purpose of erecting telecommunications facility - Communications and Multimedia Act 1998, s. 215
Telekom Malaysia Bhd v. Daya Timur Construction Sdn Bhd
(Ravinthran Paramaguru JC) [2013] 3 CLJ 467 [HC]

INDEKS PERKARA

PROSEDUR SIVIL

Afidavit - Afidavit menentusahkan petisyen penggulungan - Afidavit tidak ditarikhkan - Sama ada petisyen penggulungan sah - Kaedah-Kaedah Mahkamah Tinggi 1980, A. 18 k. 19(b), (c) - Sama ada petisyen boleh dipertahankan
Paramount Link Sdn Bhd lwn. Rossington Consolidated Sdn Bhd
(Yaacob Md Sam H) [2013] 3 CLJ 457 [HC]

UNDANG-UNDANG SYARIKAT

Penggulungan - Petisyen - Kegagalan mematuhi dan menyelesaikan tuntutan di bawah notis statutori s. 218 Akta Syarikat 1965 - Tuntutan bayaran tertunggak termasuk faedah bayaran lewat - Permohonan untuk membatalkan petisyen - Sama ada terdapat jumlah hutang yang dipertikaikan secara bona fide - Sama ada terdapat penyalahgunaan proses mahkamah untuk mengenakan tekanan dan menyebabkan kerugian yang tidak boleh dipampaskan - Sama ada petisyen boleh dipertahankan
Paramount Link Sdn Bhd lwn. Rossington Consolidated Sdn Bhd
(Yaacob Md Sam H) [2013] 3 CLJ 457 [HC]