Legal Network Series

[2013] 1 LNS 108	ASSOCIATED PAN MALAYSIA v. PENGARAH UKUR DAN PEMETAAN SELANGOR; WESTWOOD DEVELOPMENT SDN BHD (PROPOSED INTERVENER) & ANOTHER CASE	CIVIL PROCEDURE: Intervention - Application for - To intervene in judicial review proceedings against Respondent 1 and 2 - Any person who desires to be heard in opposition to the application - Whether proposed intervener showed it desired to be heard in said proceeding - Any person who appeared to the Judge to be a proper person to be heard by the Court - Whether proposed intervener had direct interest over the matter - Whether 'may be heard' in O. 53 r. 8 of the Rules of the High Court 1980 conferred a discretionary power on the Judge in deciding whether to allow application - Whether Court must look at whole facts and circumstances to determine if it should allow application to intervene in addition to issue on direct interest - Whether judicial review proceeding was proper forum to address dispute regarding survey plans - Whether related to core issue whether decision by respondents was administratively sound and lawfully made - Whether dispute should be determined at a proper trial - Whether applications should be dismissed
[2013] 1 LNS 128	BULVINDER SINGH ARJAN SINGH & SATU LAGI lwn. HANIM MANSOR LABELAK & SATU LAGI	GANTI RUGI: Kemalangan maut - Liabiliti - Kemalangan maut di lorong kecemasan - Sama ada simati mempunyai alasan yang sah untuk menunggang dilorong kecemasan - Sama ada kemalangan berpunca daripada tindakan responden memberhentikan kereta di lorong kecemasan atau daripada tindakan si mati menunggang motosikal secara laju GANTI RUGI: Kemalangan maut - Tuntutan gantirugi - Kehilangan tanggungan - Sama ada ibupaba simati berhak menuntut ganti rugi kehilangan tanggungan - Sama ada ibubapa simati dapat membuktikan sumber pendapatan simati sebenar bagi tujuan tuntutan ganti rugi kehilangan tanggungan LALULINTAS JALAN: Kecuaian - Penemuan kecuaian - Penggunaan lorong kecemasan - Kewujudan keadaan kecemasan - Sama ada tindakan membetulkan tali ikatan kerusi bayi adalah suatu kecemasan yang mewajarkan responden memasuki dan memberhentikan keretanya di lorong kecemasan - Sama ada responden mempunyai alasan yang sah untuk menggunakan lorong kecemasan berbanding dengan simati
[2013] 1 LNS 161	NEW HOONG FATT AUTO SUPPLIES SDN BHD & ANOR v. EAGLE EYES AUTO LAMPS CENTRE SDN BHD & ANOTHER APPEAL	CIVIL PROCEDURE: Costs - Appeal - Against decision of Senior Assistant Registrar in awarding RM70,000.00 as getting up fee - Whether trial involved different issues of law and fact in respect of the two suits - Whether issues that required determination were complex - Whether issues raised were also novel when considered within the context of the automotive replacement parts and automotive replacement accessories industry - Whether specialised knowledge and experience of intellectual property law was required - Whether subject matter in both suits was of significant importance to both plaintiffs and defendant - Whether outcome of suit would have had a huge bearing on the automotive replacement accessories market
[2013] 1 LNS 185	VELL PAARI SAMY VELLU v. DATO' PARDIP KUMAR KUKREJA & ANOR	CIVIL PROCEDURE: Locus standi - Want of authority - Plaintiff did not hold any Letters of Administration in respect of deceased's estate - Plaintiff moving the court in her capacity as a 'beneficiary' to deceased's estate - Whether Syariah Court Order and Small Estates Distribution Order vested plaintiff with power to institute proceedings on behalf of and/or for benefit of deceased's estate - Whether plaintiff should and could have obtained a Small Estates Administration Order under s. 13 of the Small Estate Distribution Act 1955 - Whether plaintiff demonstrated she had sufficient locus standi to pursue case for estate of deceased CIVIL PROCEDURE: Jurisdiction - High Court - Defendants' registration as co-proprietors of land pursuant to an Order of Court dated 02.08.2006 in Saman Pemula No. 24-1652-2005 - Had plaintiff brought action properly in capacity as Administrator to deceased's estate, whether the High Court could review Order of a concurrent High Court - Whether High Court had jurisdiction to determine and declare whether doctrine of survivorship under a joint-tenancy situation could apply to Muslim estates
[2013] 1 LNS 190	ROBERT LEFORT & ANOR v. GILL & TANG	CONTRACT: Sale and purchase of shares - Terms - Governing law - No express choice of law clause - Whether implied choice of system of law by reference to which contract was made to be inferred from terms of the contract or surrounding circumstances was US laws - Whether system of law which the transaction had the closest and most real connection was US laws EVIDENCE: Witness - Expert witness - Witness herself admitted she was not an expert - Whether a liberal interpretation should be given to s. 45 of the Evidence Act 1950 - Whether it was for the Court to determine on the witness' testimony whether she was indeed an expert within meaning of s. 45 of the Evidence Act - Whether so-called concession by witness that she was not an expert in cross-examination had to be viewed in the whole context - Witness gave her opinion based on sound grounds and supported by basic facts which were unchallenged - Whether opinion and views of witness were relevant facts and admissible INSURANCE: Construction of policy - Indemnity - Scope of insurance policy - Whether services rendered fell within ambit of Malaysian legal practice as transaction involved US laws - Whether 1st defendant was acting within his capacity as an Advocate and Solicitor of Malaya - Whether 1st defendant was acting within ambit of Professional Indemnity Insurance policy - Whether 2nd and 3rd defendants liable to indemnify 1st defendant as the Court had found 1st defendant liable to plaintiffs TORT: Negligence - Professional negligence - Whether 1st defendant was in breach of its duty to exercise all due professional care, skill, negligence in carrying out plaintiffs' instructions for the sale of the Shares - Whether plaintiffs had proven their claim of negligence against 1st defendant - Whether there was a breach of duty of care - Whether 1st defendant's conduct was in breach of the standard of skill and care expected of a legal practitioner

CLJ 2014 Volume 5 (Part 1)

COURT

COURT OF APPEAL

Abdul Aziz Ismail v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA)
(Criminal Procedure; Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking) [2014] 5 CLJ 1 [CA]

Malaysia Airline System Bhd v. Wan Sa'adi Wan Mustafa
Clement Skinner, Zaharah Ibrahim, Mah Weng Kwai JJCA
(Administrative Law; Labour Law - Employment - Dismissal - Sexual harassment - Right to fair trial) [2014] 5 CLJ 10 [CA]

Mat Shuhaimi Shafiei v. PP
Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Constitutional Law - Validity of impugned legislation - Whether Attorney General had adopted selective prosecution in deciding to prosecute appellant) [2014] 5 CLJ 22 [CA]

The State Government Of Sarawak & Ors v. Teo Soo Chuan
Abdul Wahab Patail, Hamid Sultan Abu Backer, Varghese George JJCA
(Land Law - Easement - Whether easement extinguished by effluxion of time) [2014] 5 CLJ 68 [CA]

HIGH COURT

Perisai Wira Sdn Bhd v. Harum Minat Sdn Bhd & Ors
Mary Lim J
(Contract; Company Law; Civil Procedure - Formation - Agreement - Elements for formation of agreement) [2014] 5 CLJ 88 [HC]

Siti Puyoh v. Rashidah Salam
Douglas Cristo Primus Sikayun JC
(Tort; Damages - Liability - Quantum of damages - Severe eye injury and monocular blindness) [2014] 5 CLJ 104 [HC]

Smart Renovation Sdn Bhd lwn. Jaireh Sdn Bhd; Smart Reader Worldwide Sdn Bhd (Pihak Ketiga)
Che Mohd Ruzima Ghazali PK
(Prosedur Sivil; Undang-Undang Syarikat - Prosiding pihak ketiga - Notis pihak ketiga - Penyingkapan tirai pemerbadanan) [2014] 5 CLJ 116 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application for - Application to quash decision of Industrial Court - Industrial Court dismissed claim for sexual harassment - Whether Industrial Court committed errors of law - Whether justified in excluding respondent from 'in camera' proceedings in Industrial Court
Malaysia Airline System Bhd v. Wan Sa'adi Wan Mustafa
(Clement Skinner, Zaharah Ibrahim, Mah Weng Kwai JJCA) [2014] 5 CLJ 10 [CA]

CIVIL PROCEDURE

Pleadings - Facts not pleaded - Whether function of court to improve on parties' plea or case
Perisai Wira Sdn Bhd v. Harum Minat Sdn Bhd & Ors
(Mary Lim J) [2014] 5 CLJ 88 [HC]

COMPANY LAW: Resolutions - Specific performance - Claim for - Sale of company together with its assets - Reliance on resolution as agreement - Whether elements of offer, acceptance and consideration present - Whether resolution capable of being an agreement - Contents of resolution - Whether elements for formation of agreement present - Whether resolution contained intention to create legal relationship - Whether remedy of specific performance available
Perisai Wira Sdn Bhd v. Harum Minat Sdn Bhd & Ors
(Mary Lim J) [2014] 5 CLJ 88 [HC]

CONSTITUTIONAL LAW

Legislation - Validity of impugned legislation - Presumption in favour of constitutionality - Whether presumption applied - Whether Attorney General had adopted selective prosecution in deciding to prosecute appellant - Whether s. 4(1)(c) of Sedition Act 1948 restricted person's right to freedom of speech and expression - Whether s. 4(1)(c) inconsistent with art. 10 of Federal Constitution - Whether reasonableness test offended - Whether s. 4(1)(c) violated equality provision in art. 8(1) of Federal Constitution - Whether offended proportionality test
Mat Shuhaimi Shafiei v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 5 CLJ 22 [CA]

CONTRACT

Formation - Agreement - Elements for formation of agreement - Whether satisfied - Company resolution for sale of company together with its assets - Specific performance - Whether resolution capable of being an agreement - Price of subject matter - Whether determined - Whether there was consensus ad idem - Whether there was intention to create legal relationship - Whether damages in lieu of specific performance granted - Contracts Act 1950, s. 66
Perisai Wira Sdn Bhd v. Harum Minat Sdn Bhd & Ors
(Mary Lim J) [2014] 5 CLJ 88 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Conviction and sentence - Appeal against - Whether prima facie case established - Whether there was proper evaluation of evidence - Whether trial judge correct in arriving at findings of fact - Whether defence rebutted presumption of trafficking - Principle enunciated in Mohamad Radhi Yaakob v. PP - Whether applied
Abdul Aziz Ismail v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2014] 5 CLJ 1 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Accused person convicted for offence of trafficking in drugs - Sentenced to death - Whether prima facie case established - Whether there was proper evaluation of evidence - Whether trial judge correct in arriving at findings of fact - Whether defence rebutted presumption of trafficking - Principle enunciated in Mohamad Radhi Yaakob v. PP - Whether applied - Dangerous Drugs Act 1952, s. 39B(1)(a)
Abdul Aziz Ismail v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2014] 5 CLJ 1 [CA]

DAMAGES

Personal injuries - Special Damages - Severe eye injury and monocular blindness - Whether award substantiated by medical reports - Whether error occasioned by trial judge - Whether element of overlapping arose for monocular blindness and pain and suffering
Siti Puyoh v. Rashidah Salam
(Douglas Cristo Primus Sikayun JC) [2014] 5 CLJ 104 [HC]

LABOUR LAW

Employment - Dismissal - Sexual harassment by leading steward against crew - Domestic inquiry - Right to fair trial - Cross-examination conducted 'in camera' - Whether there was procedural impropriety in proceedings before Industrial Court - Whether respondent accorded fair hearing
Malaysia Airline System Bhd v. Wan Sa'adi Wan Mustafa
(Clement Skinner, Zaharah Ibrahim, Mah Weng Kwai JJCA) [2014] 5 CLJ 10 [CA]

LAND LAW

Easement - Extinguishment of - Breach of terms of easements - Easement granted over 50 years ago now used by general public as access road - Whether easement terminated or ceased - Whether State Government liable to compensate respondent for loss of use and enjoyment of servient tenement
The State Government Of Sarawak & Ors v. Teo Soo Chuan
(Abdul Wahab Patail, Hamid Sultan Abu Backer, Varghese George JJCA) [2014] 5 CLJ 68 [CA]

Easement - Extinguishment of - Whether easement extinguished by effluxion of time - Easement granted without limitation of time
The State Government Of Sarawak & Ors v. Teo Soo Chuan
(Abdul Wahab Patail, Hamid Sultan Abu Backer, Varghese George JJCA) [2014] 5 CLJ 68 [CA]

Easement - Right of way - Obligation to maintain and repair right of way - Obligation on grantees
The State Government Of Sarawak & Ors v. Teo Soo Chuan
(Abdul Wahab Patail, Hamid Sultan Abu Backer, Varghese George JJCA) [2014] 5 CLJ 68 [CA]

TORT

Damages - Liability - Quantum of damages - Bursting of tyre from lorry - Severe eye injury and monocular blindness - Special and general damages - Appeal against - Award for pain and suffering - Whether there was overlap of damages awarded - Whether appellant liable against respondent
Siti Puyoh v. Rashidah Salam
(Douglas Cristo Primus Sikayun JC) [2014] 5 CLJ 104 [HC]

Negligence - Duty of care - Failure to exercise care - Whether lorry in roadworthy condition - Whether tyres underwent routine checks - Whether appellant owed duty of care to respondent
Siti Puyoh v. Rashidah Salam
(Douglas Cristo Primus Sikayun JC) [2014] 5 CLJ 104 [HC]

Negligence - Res ipsa loquitur - Application of maxim - Failure to plead - Whether respondent precluded from relying on maxim during trial
Siti Puyoh v. Rashidah Salam
(Douglas Cristo Primus Sikayun JC) [2014] 5 CLJ 104 [HC]

INDEKS PERKARA

PROSEDUR SIVIL

Prosiding pihak ketiga - Notis pihak ketiga - Permohonan pengenepian - Peruntukan pengeluaran notis pihak ketiga - Sama ada dipenuhi - Sama ada kegagalan memenuhi peruntukan mewajarkan pengenepian notis pihak ketiga - Kaedah-Kaedah Mahkamah 2012, A. 16 k. 1
Smart Renovation Sdn Bhd lwn. Jaireh Sdn Bhd; Smart Reader Worldwide Sdn Bhd (Pihak Ketiga)
(Che Mohd Ruzima Ghazali PK) [2014] 5 CLJ 116 [HC]

UNDANG-UNDANG SYARIKAT

Penyingkapan tirai pemerbadanan - Entiti berasingan - Justifikasi untuk penyingkapan tirai pemerbadanan - Sama ada wujud keadaan istimewa - Sama ada wujud elemen penipuan
Smart Renovation Sdn Bhd lwn. Jaireh Sdn Bhd; Smart Reader Worldwide Sdn Bhd (Pihak Ketiga)
(Che Mohd Ruzima Ghazali PK) [2014] 5 CLJ 116 [HC]

ARTICLE

Legal Network Series Article(s)

1. IT'S JUST NOT CRICKET!
    HOTEL SEX IN THE COURSE OF EMPLOYMENT* ^{[Read excerpt]}
    by: JOHN WILSON** [2014] 1 LNS(A) xlii

2. LAW OF NEGLIGENCE - DUTY OF CARE
    - DOES SUCH DUTY ENCOMPASS A NON-DELEGABLE DUTY TO TAKE CARE? ^{[Read excerpt]}
    by: KANCHANA CHANDRAN*, KALPANA CHANDRAN** [2014] 1 LNS(A) xliii

LEGISLATION HIGHLIGHTS

Principal Acts

Number	Title	Date coming into force	Repealing
ACT 761	Finance Act 2014	See s 3 for the Income Tax Act; s 33 for the Stamp Act; s 36 for the Petroleum (Income Tax) Act; s 44 for the Real Property Gains Tax Act and s 50 for the Labuan Business Activity Tax Act	-Nil-
ACT 760	Fees (Department Of Museums Malaysia) (Validation) Act 2014	1 January 1991 to 11 June 2012	-Nil-
ACT 759	Islamic Financial Services Act 2013	30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9	-Nil-
ACT 758	Financial Services Act 2013	30 June 2013 [PU(B) 276/2013] - except s 129 and Schedule 9	-Nil-
ACT 757	Strata Management Act 2013	Not Yet In Force	-Nil-

Amending Acts

Number	Title	Date coming into force	Principal/Amending Act No
ACT A1460	Prison (Amendment) Act 2014	3 April 2014	ACT 537
ACT A1459	Prevention Of Crime (Amendment And Extension) Act 2014	2 April 2014	ACT 297
ACT A1457	Dangerous Drugs (Amendment) Act 2014	15 February 2014	ACT 234
ACT A1458	Supply Act 2014	1 January 2014
ACT A1456	Legal Profession (Amendment) Act 2013	Not Yet In Force	ACT 166

PU(A)

Number	Title	Date of Publication	Date coming into force	Principal/Amending Act No
PU(A) 147/2014	Local Speed Limit (Federal Roads) (West Malaysia) (Amendment) (No. 2) Order 2014	30 May 2014	1 June 2014	PU(A) 462/1991
PU(A) 146/2014	Federal Roads (Private Management) (Collection Of Tolls) (Guthrie Corridor Expressway) (No. 2) (Amendment) Order 2014	29 May 2014	1 January 2012	PU(A) 298/2005
PU(A) 145/2014	Federal Roads (Private Management) (Collection Of Tolls) (South Klang Valley Expressway) (Amendment) Order 2014	28 May 2014	1 January 2012	PU(A) 309/2013
PU(A) 144/2014	Anti-Money Laundering And Anti-Terrorism Financing (Invocation Of Part Iv) Order 2014	27 May 2014	28 May 2014	ACT 613; ACT 731
PU(A) 143/2014	Anti-Money Laundering And Anti-Terrorism Financing (Amendment Of Second Schedule) Order 2014	27 May 2014	28 May 2014	ACT 613

PU(B)

Number	Title	Date of Publication	Date coming into force	Principal/Amending Act No
PU(B) 220/2014	Notice Of Contested Election By-Election Of The Dewan Rakyat Of P. 076 Telok Intan For The State Of Perak	14 May 2014	15 May 2014	ACT 19
PU(B) 219/2014	Notice Under Subsection 70(2)	15 May 2014	Specified in column (3) of the First Schedule	ACT 333
PU(B) 218/2014	Notice Under Subregulation 11(5A) - Polling Hours	15 May 2014	16 May 2014	PU(A) 386/1981
PU(B) 217/2014	Notification Of Place Of Refuge Under Subsection 42(1)	15 May 2014	16 May 2014	ACT 670
PU(B) 216/2014	Notification Of Values Of Crude Petroleum Oil Under Section 12	15 May 2014	15 May 2014 to 28 May 2014	ACT 235; PU(A) 275/2012

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