Bulletin_23

CLJ Bulletin, Vol 2005, Issue 23
17 June 2005

Introduction:
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New This Week -

CLJ June (Part 2) 2005

COURT

FEDERAL COURT

Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor
(Leave to appeal - Federal Court - Conditions of appeal) [2005] 2 CLJ 713

COURT OF APPEAL

The Co-operative Central Bank Ltd v. Wan Yuen Lee Enterprise Sdn Bhd
(Judgments and orders - Setting aside order for sale – Allegation of non-service of notice of adjourned hearing) [2005] 2 CLJ 726

HIGH COURT

Institut Teknologi Federal Sdn Bhd v. IIUM Education Sdn Bhd
(Stay pending appeal - Whether appeal if successful would be rendered nugatory if stay not granted) [2005] 2 CLJ 734

Kejutan Holdings Sdn Bhd v. Magnum 4D (Perak) Sdn Bhd & Ors
(Application to strike out names from originating petition and proceedings thereto - Whether parties relevant to proceedings) [2005] 2 CLJ 766

Public Finance Bhd v. Sing Teck Corporation Bhd & Ors
(Charge - Order for sale - Whether to be made subject to charge) [2005] 2 CLJ 783

Sim Kooi Soon v. Malaysia Airline System
(Employment - Constructive dismissal - Demotion) [2005] 2 CLJ 797

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - High Court - Certiorari - Findings of Industrial Court - Whether erroneous - Whether there was valid reason to interfere with decision of award
Sim Kooi Soon v. Malaysia Airline System
(Raus Sharif J) [2005] 2 CLJ 797 [HC]

CIVIL PROCEDURE

Appeal - Leave to appeal - Federal Court - Conditions of appeal - Whether judgment of Court of Appeal raised point of general principle previously not decided by Federal Court - Whether a point of importance upon which further argument and a decision of Federal Court would be to public advantage - Whether intended appeal had prima facie case for success
Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor
(Abdul Malek Ahmad PCA, Alauddin Mohd Sheriff FCJ & Nik Hashim JCA) [2005] 2 CLJ 713 [FC]

Judgments and orders - Setting aside order for sale - Appeal against - Allegation of non-service of notice of adjourned hearing - Whether hearing of originating summons had been adjourned - Rules of the High Court 1980, O. 83 r. 2(1) & (4) - Whether relevant - Whether judge had erred in setting aside order for sale
The Co-operative Central Bank Ltd v. Wan Yuen Lee Enterprise Sdn Bhd
(Hashim Yusoff, Baharudin Shah JJCA & Low Hop Bing J) [2005] 2 CLJ 726 [CA]

Parties - Misjoinder - Application to strike out names from originating petition and proceedings thereto - Whether parties relevant to proceedings - Rules of the High Court 1980, O. 15 r. 6(2)
Kejutan Holdings Sdn Bhd v. Magnum 4D (Perak) Sdn Bhd & Ors
(Ramly Ali J) [2005] 2 CLJ 766 [HC]

Stay - Application for - Stay pending appeal - Appeal against order for removal of private caveat - Whether appeal if successful would be rendered nugatory if stay not granted - Whether existence of special circumstances warranting stay shown
Institut Teknologi Federal Sdn Bhd v. IIUM Education Sdn Bhd
(Abdul Malik Ishak J) [2005] 2 CLJ 734 [HC]

COMPANY LAW

Members’ right - Petition - Alleged acts of oppression and prejudicial conduct - Whether petition should be directed to only members or directors of company in question - Companies Act 1965, s. 181
Kejutan Holdings Sdn Bhd v. Magnum 4D (Perak) Sdn Bhd & Ors
(Ramly Ali J) [2005] 2 CLJ 766 [HC]

CONSTITUTIONAL LAW

Fundamental liberties - Equal protection - Federal Constitution, art. 8 - Equality - Gender discrimination - Whether applies in collective agreements or employment contracts as between two private individuals - Whether protection in art. 8 only available to private individual as against the State - Whether constitutional law remedies available to private individual whose fundamental right has been violated by another private individual - Constitutional law as a branch of public law - Whether constitutional law litigation must necessarily involve the State as a party
Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor
(Abdul Malek Ahmad PCA, Alauddin Mohd Sheriff FCJ & Nik Hashim JCA) [2005] 2 CLJ 713 [FC]

LABOUR LAW

Employment - Constructive dismissal - Demotion - Applicant downgraded from rank of captain to first officer - Whether applicant guilty of gross misconduct and insubordination - Whether respondent entitled to demote applicant - Whether there was acquiescence on applicant’s part - Whether there was merit in claim for constructive dismissal
Sim Kooi Soon v. Malaysia Airline System
(Raus Sharif J) [2005] 2 CLJ 797 [HC]

Employment - Termination of service - On ground of pregnancy as per collective agreement - Whether discriminatory - Whether collective agreement violates fundamental liberties under art. 8 Federal Constitution - Whether collective agreement must conform to tenets of equality under art. 8(1) - Protection against ‘religion, race, descent, place of birth or gender’ discrimination - Whether art. 8(2) applies to collective agreement - Whether contravenes art. 8(2)
Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor
(Abdul Malek Ahmad PCA, Alauddin Mohd Sheriff FCJ & Nik Hashim JCA) [2005] 2 CLJ 713 [FC]

LAND LAW

Caveat - Private caveat - Removal of - Whether caveator had caveatable interest - Whether serious questions to be tried - Whether balance of convenience in favour of caveator
Institut Teknologi Federal Sdn Bhd v. IIUM Education Sdn Bhd
(Abdul Malik Ishak J) [2005] 2 CLJ 734 [HC]

Charge - Rights of chargee - Land ordered sold in execution of judgment against chargor by third party - Order for sale - Whether to be made subject to charge - Order for sale giving chargee same rights agaisnt proceeds of sale as it had against property sold - Whether rights of chargee preserved - Appeal against order for sale - Whether for a collateral purpose - Sarawak Land Code (Cap. 81) ss. 2, 119(1), 132(1), 143, 148 - Rules of High Court 1980 O. 51A
Public Finance Bhd v. Sing Teck Corporation Bhd & Ors
(Clement Skinner J) [2005] 2 CLJ 783 [HC]

CASE OF THE WEEK

MBF INSURANS SDN BHD v. PENANG GARDEN SDN BHD

Insurance: Contractor's All Risk - Indemnity - Collapse of building

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