Bulletin_21

CLJ Bulletin, Issue 2011, Vol 21

3 June 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 4 (Part 4) 2011

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 164/2011 Federal Roads (West Malaysia) (Amendment) (No 5) Order 2011 18 May 2011 ACT 376

PU(A) 165/2011 Customs (Values) (Crude Petroleum Oil) (No 10) Order 2011 19 May 2011 ACT 235

PU(A) 166/2011 Income Tax (Exemption) (No 3) Order 2011 19 May 2011 ACT 53

PU(A) 167/2011 Income Tax (Deduction For Investment In An Approved Food Production Project) Rules 2011 19 May 2011 ACT 53

PU(A) 168/2011 Factories And Machinery (Exemption To Optimal Chemical (M) Sdn Bhd, Kerteh, Terengganu) Order 2011 20 May 2011 ACT 139

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 251/2011 Notice Under Subsection 24(1) Returns And Statements Of Election Expenses - Pahang 4 May 2011 ACT 5

PU(B) 252/2011 Notice Under Subsection 24(1) Returns And Statements Of Election Expenses - Malacca 4 May 2011 ACT 5

PU(B) 253/2011 Notice Of Designation Of Site As Heritage Site 9 May 2011 ACT 645

PU(B) 254/2011 Notice Of Designation Of Site As Heritage Site 9 May 2011 ACT 645

PU(B) 257/2011 Notice Regarding The Supplementary Electoral Roll For The Fourth Quarter Of The Year 2010 That Has Been Certified 12 May 2011 ACT 19

2. Articles

a) Legal Network Series Articles

1. Findings Of Alternative Dispute Resolution (ADR) Application And Obstacles Towards Active Development Of ADR In The Malaysian Construction Industry** ^{[Read
excerpt]}
By Zulhabri Ismail, Jamalunlaili Abdullah and Rosli Mohamad Zin*

2. Employment Law Matters - Paid Parental Leave Scheme* ^{[Read
excerpt]}
By John Wilson, NSW Law Society

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 680 [HC] PP v. Mohd Azril Nurrasyid Mohamed Jomali

CRIMINAL PROCEDURE: Revision - Application for - Statutory rape - Complainant not keen to proceed with case - Trial judge granting accused discharge not amounting to acquittal - Trial judge disallowing prosecution's application for postponement - Whether trial judge erred in allowing the complainant and complainant's father to dictate outcome of prosecution - Whether decision of trial judge incorrect and improper under s. 323 of the Criminal Procedure Code

[2009] 1 LNS 683 [HC] Papparoti (M) Sdn Bhd v. Roti-Roti International Sdn Bhd & Ors

CIVIL PROCEDURE: Injunction - Interlocutory injunction to restrain passing off of trade mark - Whether serious issues to be tried - Whether material non-disclosure on part of plaintiff - Balance of convenience - Whether damages an adequate remedy

TRADE MARKS: Infringement of - Whether defendants infringed plaintiff's trade mark - Whether plaintiff was owner of trade mark at material time - Whether plaintiff had a right to seek protection against infringement of trade mark - Whether registration gives a right under Trade Mark Act in respect of raw materials used to make buns or bread, such as dough and toppings - Whether defendants' act of manufacturing and/or supplying products amounted to an infringement of plaintiff's trade mark - Likelihood of deception or confusion - Whether marks used by defendant would deceive or cause confusion in course of trade

TRADE MARKS: Passing off - Elements of - Goodwill - Whether there existed any goodwill attached to plaintiff's business in Korea - Whether defendants misrepresented to customer, PappaRoti Korea, that dough and toppings supplied were goods of plaintiff

[2009] 1 LNS 684 [HC] Papparoti (M) Sdn Bhd & Anor v. Patrick Wong Kim Fah @ Vong Kim Fah & Ors

CIVIL PROCEDURE: Anton Piller order - Application to set aside - Claim of theft and diversion of franchise fees and profits - Material parties to claim not made parties to action - Whether there was material non-disclosure by plaintiff - Whether plaintiff disclosed a strong prima facie case - Whether there was a franchising arrangement in place - Whether plaintiff's allegation of theft and diversion of franchise fees and profits substantiated

[2009] 1 LNS 698 [HC] Siew Kin Meng v. Tetuan Nasharuddin, YK Chew & Partners

CIVIL PROCEDURE: Cause of action - Defendant acting for Developer under Sale and Purchase Agreement - Developer not having licence, advertising and sales permit - Effect on plaintiff - Whether defendant owed plaintiff a duty of care - Whether defendant obligated to check and ascertain if Developer had a developer's licence, advertising and sale permit - Whether plaintiff had a cause of action against defendant

LEGAL PROFESSION: Duty of care - Defendant acting for Developer under Sale and Purchase Agreement - Developer not having licence, advertising and sales permit - Effect on plaintiff - Whether defendant owed plaintiff a duty of care - Whether defendant obligated to check and ascertain if Developer had a developer's licence, advertising and sale permit

[2009] 1 LNS 700 [HC] Yuny-Li Home Care Sdn Bhd v. Mohan Raj Ratnam & Ors

CONTRACT: Sale and Purchase of land - Validity - Both parties signing 2^nd Sale & Purchase Agreement - Whether 2^nd agreement valid - Nature of undertaking inserted - Whether an absolute and unqualified undertaking by defendants to obtain consent for transfer or a limited undertaking to apply for consent

CONTRACT: Damages - Measure of damages - Loss based on market value of property at completion date less contract price had contract been concluded - Plaintiff's comparison based on only one transaction - Whether plaintiff's suggested price reasonable

CITATION	TITLE	SUBJECT
[2009] 1 LNS 680 [HC]	PP v. Mohd Azril Nurrasyid Mohamed Jomali	CRIMINAL PROCEDURE: Revision - Application for - Statutory rape - Complainant not keen to proceed with case - Trial judge granting accused discharge not amounting to acquittal - Trial judge disallowing prosecution's application for postponement - Whether trial judge erred in allowing the complainant and complainant's father to dictate outcome of prosecution - Whether decision of trial judge incorrect and improper under s. 323 of the Criminal Procedure Code
[2009] 1 LNS 683 [HC]	Papparoti (M) Sdn Bhd v. Roti-Roti International Sdn Bhd & Ors	CIVIL PROCEDURE: Injunction - Interlocutory injunction to restrain passing off of trade mark - Whether serious issues to be tried - Whether material non-disclosure on part of plaintiff - Balance of convenience - Whether damages an adequate remedy TRADE MARKS: Infringement of - Whether defendants infringed plaintiff's trade mark - Whether plaintiff was owner of trade mark at material time - Whether plaintiff had a right to seek protection against infringement of trade mark - Whether registration gives a right under Trade Mark Act in respect of raw materials used to make buns or bread, such as dough and toppings - Whether defendants' act of manufacturing and/or supplying products amounted to an infringement of plaintiff's trade mark - Likelihood of deception or confusion - Whether marks used by defendant would deceive or cause confusion in course of trade TRADE MARKS: Passing off - Elements of - Goodwill - Whether there existed any goodwill attached to plaintiff's business in Korea - Whether defendants misrepresented to customer, PappaRoti Korea, that dough and toppings supplied were goods of plaintiff
[2009] 1 LNS 684 [HC]	Papparoti (M) Sdn Bhd & Anor v. Patrick Wong Kim Fah @ Vong Kim Fah & Ors	CIVIL PROCEDURE: Anton Piller order - Application to set aside - Claim of theft and diversion of franchise fees and profits - Material parties to claim not made parties to action - Whether there was material non-disclosure by plaintiff - Whether plaintiff disclosed a strong prima facie case - Whether there was a franchising arrangement in place - Whether plaintiff's allegation of theft and diversion of franchise fees and profits substantiated
[2009] 1 LNS 698 [HC]	Siew Kin Meng v. Tetuan Nasharuddin, YK Chew & Partners	CIVIL PROCEDURE: Cause of action - Defendant acting for Developer under Sale and Purchase Agreement - Developer not having licence, advertising and sales permit - Effect on plaintiff - Whether defendant owed plaintiff a duty of care - Whether defendant obligated to check and ascertain if Developer had a developer's licence, advertising and sale permit - Whether plaintiff had a cause of action against defendant LEGAL PROFESSION: Duty of care - Defendant acting for Developer under Sale and Purchase Agreement - Developer not having licence, advertising and sales permit - Effect on plaintiff - Whether defendant owed plaintiff a duty of care - Whether defendant obligated to check and ascertain if Developer had a developer's licence, advertising and sale permit
[2009] 1 LNS 700 [HC]	Yuny-Li Home Care Sdn Bhd v. Mohan Raj Ratnam & Ors	CONTRACT: Sale and Purchase of land - Validity - Both parties signing 2^nd Sale & Purchase Agreement - Whether 2^nd agreement valid - Nature of undertaking inserted - Whether an absolute and unqualified undertaking by defendants to obtain consent for transfer or a limited undertaking to apply for consent CONTRACT: Damages - Measure of damages - Loss based on market value of property at completion date less contract price had contract been concluded - Plaintiff's comparison based on only one transaction - Whether plaintiff's suggested price reasonable

b. CLJ Volume 4 (Part 4) 2011

COURT

COURT OF APPEAL

Malaysia Smelting Corporation Bhd v. Pemungut Duti Setem, Pulau Pinang
Tengku Baharudin Shah, T Selventhiranathan, Abdul Wahab Patail JJCA
(Revenue Law - Stamp duty - Assessment) [2011] 4 CLJ 361 [CA]

RHB Bank v. L & R Holdings Sdn Bhd & Anor
Zaleha Zahari, Jeffrey Tan, Syed Ahmad Helmy JJCA
(Civil Procedure - Injunction - Appeal against) [2011] 4 CLJ 369 [CA]

HIGH COURT

Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
Anantham Kasinather JC
(Civil Procedure; Contract - Pleadings - Agreement - Variation of - Illegality) [2011] 4 CLJ 378 [HC]

Lee Ewe Poh v. Dr Lim Teik Man & Anor
Chew Soo Ho JC
(Civil Law Act; Civil Procedure; Tort - Damages - Invasion of privacy) [2011] 4 CLJ 397 [HC]

Smartframe Sdn Bhd v. Anjung Bahasa Sdn Bhd
Mah Weng Kwai JC
(Company Law - Winding up - Insolvency - Petition) [2011] 4 CLJ 416 [HC]

Syarikat Pembinaan Yeoh Tiong Lay Sdn Bhd v. Nagarajan Sengoden
Lee Swee Seng JC
(Civil Procedure; Words & Phrases - Action - Withdrawal of) [2011] 4 CLJ 433 [HC]

Wiraflor (Malaysia) Sdn Bhd v. Bio Science Capital Sdn Bhd
Varghese George JC
(Company Law - Winding up - Liquidation - Petition) [2011] 4 CLJ 441 [HC]

SUBJECT INDEX

CIVIL LAW ACT

English law - Applicability of English common law in Malaysia - Invasion of privacy rights - Whether an actionable tort in Malaysia - Whether recognised under English common law - Civil Law Act 1956, s. 3
Lee Ewe Poh v. Dr Lim Teik Man & Anor
(Chew Soo Ho JC) [2011] 4 CLJ 397 [HC]

CIVIL PROCEDURE

Action - Withdrawal of - Plaintiff seeking to withdraw its originating summons on date of hearing - Principles applicable - Distinction between "withdrawal" and "discontinuance" - Whether plaintiff ought to be allowed to discontinue its action - Rules of the High Court 1980, O. 21
Syarikat Pembinaan Yeoh Tiong Lay Sdn Bhd v. Nagarajan Sengoden
(Lee Swee Seng JC) [2011] 4 CLJ 433 [HC]

Damages - Invasion of privacy - Whether an actionable wrong - Photographs of private part of female patient taken by surgeon during surgery to facilitate explanation of procedure to patient - Whether violation or invasion of privacy - Whether plaintiff entitled to aggravated or exemplary damages
Lee Ewe Poh v. Dr Lim Teik Man & Anor
(Chew Soo Ho JC) [2011] 4 CLJ 397 [HC]

Injunction - Appeal against - Injunction restraining defendant bank from enforcing securities pledged by plaintiffs to it - Whether there was bona fide serious issue to be tried - Balance of convenience - Whether greater injustice would be done by granting injunction
RHB Bank v. L & R Holdings Sdn Bhd & Anor
(Zaleha Zahari, Jeffrey Tan, Syed Ahmad Helmy JJCA) [2011] 4 CLJ 369 [CA]

Originating summons - Withdrawal of action - Plaintiff seeking to withdraw its originating summons on date of hearing - Principles applicable - Distinction between "withdrawal" and "discontinuance" - Whether plaintiff ought to be allowed to discontinue its action - Rules of the High Court 1980, O. 21
Syarikat Pembinaan Yeoh Tiong Lay Sdn Bhd v. Nagarajan Sengoden
(Lee Swee Seng JC) [2011] 4 CLJ 433 [HC]

Pleadings - Facts not pleaded - Illegality - Issue of illegality of agreement not pleaded - Whether defendants precluded from raising issue of illegality
Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
(Anantham Kasinather JC) [2011] 4 CLJ 378 [HC]

COMPANY LAW

Winding up - Insolvency - Whether company commercially solvent - Failure by company to comply with notice under s. 218 Companies Act 1965 - Rebuttable presumption of insolvency - Onus on company to rebut presumption - Whether sufficient evidence produced to rebut presumption
Smartframe Sdn Bhd v. Anjung Bahasa Sdn Bhd
(Mah Weng Kwai JC) [2011] 4 CLJ 416 [HC]

Winding up - Insolvency - Whether company insolvent - Whether petitioner may prosecute winding up petition notwithstanding tendering of settlement payment by company after presenting of petition - Failure by company to comply with notice under s. 218, Companies Act 1965 - Rebuttable presumption of insolvency - Onus on company to rebut presumption
Wiraflor (Malaysia) Sdn Bhd v. Bio Science Capital Sdn Bhd
(Varghese George JC) [2011] 4 CLJ 441 [HC]

Winding up - Liquidation - Appointment of provisional liquidator - When can power to appoint provisional liquidator be exercised - Threshold test for appointment of provisional liquidator - Whether principal criteria for appointment of provisional liquidator pending hearing of winding up petition had been met
Wiraflor (Malaysia) Sdn Bhd v. Bio Science Capital Sdn Bhd
(Varghese George JC) [2011] 4 CLJ 441 [HC]

Winding up - Petition - Abuse of process - Whether filing of petition despite original judgment being disputed amounts to abuse of process - Whether erroneous calculation of interest rendered
s. 218 notice and petition defective - Whether petition filed for collateral purpose to exert pressure on company
Smartframe Sdn Bhd v. Anjung Bahasa Sdn Bhd
(Mah Weng Kwai JC) [2011] 4 CLJ 416 [HC]

Winding up - Petition - Whether company unable to pay debts - Enforcement of final judgment against company - Whether validity of judgment could be challenged in winding-up court - Whether company had a valid cross-claim - Whether filing of petition amounted to abuse of process - Companies Act 1965, s. 218
Smartframe Sdn Bhd v. Anjung Bahasa Sdn Bhd
(Mah Weng Kwai JC) [2011] 4 CLJ 416 [HC]

Winding up - Petition - Whether petitioner may prosecute winding up petition notwithstanding tendering of settlement payment by company after presenting of petition - Whether company unable to pay debts - Whether statutory demand must be issued in all cases where s. 218(1)(e) is relied on as sole ground for presenting winding up petition - Companies Act 1965, s. 218
Wiraflor (Malaysia) Sdn Bhd v. Bio Science Capital Sdn Bhd
(Varghese George JC) [2011] 4 CLJ 441 [HC]

CONTRACT

Agreement - Variation of - Validity of variation agreement - Written concession agreement varied by a variation agreement removing requirement for government approval - Variation agreement intended to circumvent express prohibition in concession agreement and to mislead government - Whether variation agreement opposed to public policy and consequently illegal
Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
(Anantham Kasinather JC) [2011] 4 CLJ 378 [HC]

Collateral contract - Existence of - Oral agreement - Whether amounted to a collateral contract - Whether defendants privy to oral agreement
Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
(Anantham Kasinather JC) [2011] 4 CLJ 378 [HC]

Illegality - Opposed to public policy - Variation agreement intended to circumvent express prohibition in concession agreement and to mislead government - Whether variation agreement opposed to public policy and consequently illegal
Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
(Anantham Kasinather JC) [2011] 4 CLJ 378 [HC]

Oral agreement - Existence of - Whether amounted to a collateral contract - Whether defendants privy to oral agreement
Dato' Abdul Rahman Dato' Mohammed Hashim & Ors v. Mass Media Interactive Sdn Bhd & Ors
(Anantham Kasinather JC) [2011] 4 CLJ 378 [HC]

REVENUE LAW

Stamp duty - Assessment - Appeal against - Agreement for sale of shares - Whether stamp duty assessed on par value of shares or on purchase price of shares - Stamp Act 1949, ss. 13(1)(b), 33, First Schedule item 32(b)
Malaysia Smelting Corporation Bhd v. Pemungut Duti Setem, Pulau Pinang
(Tengku Baharudin Shah, T Selventhiranathan, Abdul Wahab Patail JJCA) [2011] 4 CLJ 361 [CA]

TORT

Breach of confidence - Cause of action - Photographs of private part of female patient taken by surgeon during surgery to facilitate explanation of procedure to patient - Whether violation or invasion of privacy - Whether an actionable wrong - Whether acceptable medical practice for photographs to be taken in course of surgical procedure - Whether plaintiff entitled to aggravated or exemplary damages
Lee Ewe Poh v. Dr Lim Teik Man & Anor
(Chew Soo Ho JC) [2011] 4 CLJ 397 [HC]

Invasion of privacy - Whether an actionable tort - Principles applicable - Photographs of private part of female patient taken by surgeon during surgery to facilitate explanation of procedure to patient - Whether violation or invasion of privacy - Whether acceptable medical practice for photographs to be taken in course of surgical procedure - Whether plaintiff entitled to aggravated or exemplary damages
Lee Ewe Poh v. Dr Lim Teik Man & Anor
(Chew Soo Ho JC) [2011] 4 CLJ 397 [HC]

Vicarious liability - Principal's liability for agent's wrongful act - Invasion of privacy - Claim for damages - Principles applicable
Lee Ewe Poh v. Dr Lim Teik Man & Anor
(Chew Soo Ho JC) [2011] 4 CLJ 397 [HC]

WORDS & PHRASES

"withdrawal" and "discontinuance" - Distinction between the two - Rules of the High Court 1980, O. 21
Syarikat Pembinaan Yeoh Tiong Lay Sdn Bhd v. Nagarajan Sengoden
(Lee Swee Seng JC) [2011] 4 CLJ 433 [HC]

CASE OF THE WEEK

MOHD ALIAS IBRAHIM v. RHB BANK BHD & ANOR

BANKING: Islamic banking - Shariah Advisory Council - Roles and functions - Sections 56, 57 Central Bank of Malaysia Act 2009 - Court to refer questions concerning Shariah matter to Syariah Advisory Council - Court to be bound by ruling - Whether a usurpation of court's judicial power - Whether Act and ss. 56, 57 valid laws - Whether unconstitutional - Central Bank of Malaysia Act 1958 (Repealed), s. 16 - Central Bank of Malaysia Act 2009, ss. 51, 56, 57 - Federal Constitution, arts. 74, 121(1), 128, Ninth Schedule

BANKING: Islamic banking - Shariah Advisory Council - Roles and functions - Rulings of Shariah Advisory Council - Whether constituting expert opinion - Whether amounting to collective itjihad - Whether not a fatwa - Whether binding on civil courts - Central Bank of Malaysia Act 2009, ss. 56, 57

CONSTITUTIONAL LAW: Courts - Forum for trial - Reference of questions of law - Central Bank of Malaysia Act 2009 and ss. 56, 57 thereof, constitutionality of - Whether to be heard by the High Court or Federal Court - Federal Constitution, arts. 121(1), 128 - Courts of Judicature Act 1964, s. 84

CONSTITUTIONAL LAW: Courts - Judicial power - Judicial power of High Court - Islamic banking and finance - Court to refer questions concerning Shariah matter to Syariah Advisory Council and be bound by its ruling - Whether a usurpation of court's judicial power - Enabling provisions thereof - Whether unconstitutional - Central Bank of Malaysia Act 2009, ss. 56, 57 - Federal Constitution, arts. 121(1), 128 - Courts of Judicature Act 1964, s. 84

ISLAMIC LAW: Banking and Finance - Shariah Advisory Council - Roles and functions - Sections 56, 57 Central Bank of Malaysia Act 2009 - Court to refer questions concerning Shariah matter to Syariah Advisory Council and be bound by its ruling - Whether a usurpation of court's judicial power - Whether unconstitutional - Rulings by Shariah Advisory Council - Whether an expert opinion - Whether a collective itjihad - Whether binding on civil courts - Central Bank of Malaysia Act 1958 (Repealed), s. 16 - Central Bank of Malaysia Act 2009, ss. 51, 56, 57 - Federal Constitution, arts. 74, 121(1), Ninth Schedule

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
PU(A) 164/2011	Federal Roads (West Malaysia) (Amendment) (No 5) Order 2011	18 May 2011	ACT 376
PU(A) 165/2011	Customs (Values) (Crude Petroleum Oil) (No 10) Order 2011	19 May 2011	ACT 235
PU(A) 166/2011	Income Tax (Exemption) (No 3) Order 2011	19 May 2011	ACT 53
PU(A) 167/2011	Income Tax (Deduction For Investment In An Approved Food Production Project) Rules 2011	19 May 2011	ACT 53
PU(A) 168/2011	Factories And Machinery (Exemption To Optimal Chemical (M) Sdn Bhd, Kerteh, Terengganu) Order 2011	20 May 2011	ACT 139