CLJ Bulletin, Issue 2010, Vol 25
25 June 2010
CLJ Law MALAYSIA
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| New This Week | 1. Legislation Highlights |
| 2. Articles | |
| a) Legal Network Series Articles | |
| 3. CLJ Volume 5 (Part 4) 2010 |
Principal Acts
NUMBER TITLE DATE COMING INTO FORCE REPEALING
ACT 707 Labuan Limited Partnerships And Limited Liability Partnerships Act 2010 11 February 2010 [PU(B) 61/2010] ACT 565 ACT 708 Strategic Trade Act 2010 Not Yet In Force - Nil - ACT 712 Competition Act 2010 Not Yet In Force - Nil - ACT 713 Competition Commission Act 2010 Not Yet In Force - Nil - ACT 714 Suruhanjaya Pengangkutan Awam Darat Act 2010 3 June 2010 [PU(B) 262/2010] - Nil - PU (A)
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL ACT NO PU(A) 178/2010 Price Control (Fixing Of Maximum Price) (No 2) Order 2010 27 May 2010 ACT 235 PU(A) 179/2010 Price Control (Fixing Of Maximum Price) (No 3) Order 2010 31 May 2010 ACT 201 PU(A) 180/2010 Control Of Supplies (Controlled Articles) (No 2) Order 2010 31 May 2010 ACT 384 PU(A) 181/2010 Double Taxation Relief (The Government Of The Republic Of Senegal) Order 2010 31 May 2010 ACT 384 PU(A) 182/2010 Double Taxation Relief (The Government Of The Kingdom Of The Netherlands) (Amendment) Order 2010 31 May 2010 ACT 384 PU (B)
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL ACT NO PU(B) 263/2010 Special Direction Of The Minister 10 June 2010 ACT 621 PU(B) 264/2010 Special Direction Of The Minister 10 June 2010 ACT 621 PU(B) 265/2010 Appointment Of Assistant Controllers Of Trade Descriptions 10 June 2010 ACT 87 PU(B) 266/2010 Declaration Of Non-Smoking Area 10 June 2010 ACT 281 PU(B) 267/2010 Notice Of Completion Of Assumption Of Control (Koperasi Bekas Polis Malaysia Berhad) 10 June 2010 ACT 502
a) Legal Network Series Articles
1. NSW Laws Of Succession* [Read
excerpt]
By Caroline Gage, Genealogy Unit, NSW Trustee & Guardian
2. Improved Protection Of Disability Rights: Disability Discrimination Act 1992 Amended* [Read
excerpt]
By Bronwyn Byrnes, Lawyer, Australian Human Rights Commission
COURT
FEDERAL COURT
Dato' Seri Anwar Ibrahim v. Perdana Menteri Malaysia & Anor
(Dismissal of Minister - Whether at discretion of Prime Minister - Whether reference to Yang di Pertuan Agong a mere formality) [2010] 5 CLJ 369
COURT OF APPEAL
Magendran Mohan v. PP
(Murder - Circumstantial evidence - Inference of guilt) [2010] 5 CLJ 390
Sean O'Casey Patterson v. Chan Hoong Poh & Ors And Another Appeal
(Adoption - Registration of Adoption Act 1952 - Whether Act applicable to Muslims) [2010] 5 CLJ 409
Sik Hong Photo Sdn Bhd v. Ch'ng Beng Choo
(Contract - Sale and purchase of property - Fundamental breach - Whether seller could rescind agreement and recover property) [2010] 5 CLJ 427
HIGH COURT
Dato' Vijay Kumar Natarajan v. Choy Kok Mun
(Tort - Breach of confidence - Whether requiring more than mere agreement that information be kept confidential) [2010] 5 CLJ 443
Sivarasa K Rasiah v. Director Of Immigration Sarawak & Ors
(Immigration - Prohibition against entry - Application for certiorari) [2010] 5 CLJ 461
Wong Yew Loy v. Ketua Pengarah Pertubuhan Keselamatan Sosial
(Social security - Claim for injury benefits - "Place of residence or stay" - Meaning of) [2010] 5 CLJ 467
Yee Ah Fern v. Alliance Bank Malaysia Bhd
(Charge Annexure - Overdraft facility - Whether chargor liable for borrower's default after unlawful increment of overdraft facility) [2010] 5 CLJ 475
SUBJECT INDEX
CIVIL PROCEDURE
Res judicata - Issue estoppel - Same issues canvassed by plaintiff in charge action proceeding - Plaintiff did not appeal against sale order - Whether res judicata can be invoked by defendant - Whether order for sale a final judgment or decree
Yee Ah Fern v. Alliance Bank Malaysia Bhd
(Hishamudin Mohd Yunus J) [2010] 5 CLJ 475 [HC]
Statement of claim - Pleadings failed to plead material facts - Omission could not be rectified by adducing evidence
Dato' Vijay Kumar Natarajan v. Choy Kok Mun
(Hishamudin Mohd Yunus J) [2010] 5 CLJ 443 [HC]
CONSTITUTIONAL LAW
Executive - Dismissal of Minister - Revocation of appellant's appointment as Deputy Prime Minister and Minister of Finance by Prime Minister - Whether any legal provision as to how to effect a revocation of ministerial appointment - Whether revocation of the appellant's appointment to be conveyed to the appellant personally by the Yang di Pertuan Agong - Whether sufficient for Yang di Pertuan Agong to gazette an Order under s. 2 of the Ministerial Functions Act 1969 - Ministerial Functions Act 1969, s. 2
Dato' Seri Anwar Ibrahim v. Perdana Menteri Malaysia & Anor
(Alauddin Mohd Sheriff PCA, Mohd Ghazali Yusoff & Abdull Hamid Embong FCJJ) [2010] 5 CLJ 369 [FC]
Executive - Dismissal of Minister - Revocation of appellant's appointment as Deputy Prime Minister and Minister of Finance by Prime Minister - Whether prior approval of Yang di-Pertuan Agong required - Whether dismissal valid - Federal Constitution, art. 43(5)
Dato' Seri Anwar Ibrahim v. Perdana Menteri Malaysia & Anor
(Alauddin Mohd Sheriff PCA, Mohd Ghazali Yusoff & Abdull Hamid Embong FCJJ) [2010] 5 CLJ 369 [FC]
Yang di-Pertuan Agong - Roles and functions of - Yang di-Pertuan Agong's role in the appointment to and revocation of ministerial office, whether limited - Whether power to appoint and revoke ministerial appointments at Prime Minister's discretion - Whether reference to Yang di-Pertuan Agong in art. 43(5) of Federal Constitution merely a formality - Federal Constitution, art. 43(5)
Dato' Seri Anwar Ibrahim v. Perdana Menteri Malaysia & Anor
(Alauddin Mohd Sheriff PCA, Mohd Ghazali Yusoff & Abdull Hamid Embong FCJJ) [2010] 5 CLJ 369 [FC]
CONTRACT
Breach - Acquiescence and waiver - Breach of property sale and purchase agreement - Purchaser delaying completion - Whether delay was acquiesced or waived by seller
Sik Hong Photo Sdn Bhd v. Ch'ng Beng Choo
(Low Hop Bing, Kang Hwee Gee & Azhar Ma'ah JJCA) [2010] 5 CLJ 427 [CA]
Breach - Damages - Plaintiff lost property that he charged to defendant as security for overdraft given by defendant to plaintiff's brother - Whether defendant breached cl. 7 of Charge Annexure in increasing borrower's overdraft facility - Whether consent of chargor obtained - Whether plaintiff liable for borrower's default after unlawful increment of overdraft facility
Yee Ah Fern v. Alliance Bank Malaysia Bhd
(Hishamudin Mohd Yunus J) [2010] 5 CLJ 475 [HC]
Breach - Property sale and purchase agreement - Failure by purchaser to settle consideration for purchase of property - Total failure of consideration - Whether fundamental breach of contract - Whether seller could rescind agreement and recover property - Whether parties to be restored to original position before contract - Contracts Act 1950, s. 40
Sik Hong Photo Sdn Bhd v. Ch'ng Beng Choo
(Low Hop Bing, Kang Hwee Gee & Azhar Ma'ah JJCA) [2010] 5 CLJ 427 [CA]
Breach - Remedies - Rescission, right of - Whether contract may be rescinded in cases of total failure of consideration
Sik Hong Photo Sdn Bhd v. Ch'ng Beng Choo
(Low Hop Bing, Kang Hwee Gee & Azhar Ma'ah JJCA) [2010] 5 CLJ 427 [CA]
Sale and purchase of property - Time of essence - Delay in completion - Failure of consideration - Whether purchaser could rescind agreement - Sections 40, 56(1) Contracts Act 1950 - Whether to be read conjunctively
Sik Hong Photo Sdn Bhd v. Ch'ng Beng Choo
(Low Hop Bing, Kang Hwee Gee & Azhar Ma'ah JJCA) [2010] 5 CLJ 427 [CA]
Uncertainty - Terms - Sale and purchase of property - Consideration payable by way of transfer of shares in company at an undetermined date - Whether contract void for uncertainty - Whether attracting remedy of restitution or compensation - Contracts Act 1950, ss. 30, 66
Sik Hong Photo Sdn Bhd v. Ch'ng Beng Choo
(Low Hop Bing, Kang Hwee Gee & Azhar Ma'ah JJCA) [2010] 5 CLJ 427 [CA]
CRIMINAL LAW
Penal Code - Section 302 - Murder - Circumstantial evidence - Whether prosecution established prima facie case - Whether defence raised reasonable doubt - Whether circumstantial evidence suggested or lent support to inference of guilt
Magendran Mohan v. PP
(Tengku Baharudin Shah, Wan Adnan Muhamad & Sulong Matjeraie JJCA) [2010] 5 CLJ 390 [CA]
EVIDENCE
Burden of proof - Forgery of signature - Defendant claimed signature on letter was plaintiff's - Burden on defendant to prove on a balance of probabilities - Court will not make inference that signature must be plaintiff's just because plaintiff's name written below alleged signature - Evidence Act 1950, s. 103
Yee Ah Fern v. Alliance Bank Malaysia Bhd
(Hishamudin Mohd Yunus J) [2010] 5 CLJ 475 [HC]
FAMILY LAW
Children - Adoption - Adoption under Registration of Adoption Act 1952 - Whether requirements for adoption satisfied - Whether consent of natural parents obtained - Wrong person named as father in birth certificate of child - Registrar can rely on information regarding parents contained in birth certificate of child - Whether child was maintained and educated by adopters before adoption - Whether proper to dislodge child from adopters - Whether requirements of s. 6 of Registration of Adoption Act 1952 satisfied
Sean O'Casey Patterson v. Chan Hoong Poh & Ors And Another Appeal
(Tengku Baharudin Shah, Wan Adnan Muhamad & Azhar Ma'ah JJCA) [2010] 5 CLJ 409 [CA]
Children - Adoption - Muslims - Whether Registration of Adoption Act 1952 applicable to Muslims - Adoption Act 1952 to be read and interpreted independently of Registration of Adoptions Act 1952 - Nothing to bar application of Registration of Adoption Act 1952 to Muslims
Sean O'Casey Patterson v. Chan Hoong Poh & Ors And Another Appeal
(Tengku Baharudin Shah, Wan Adnan Muhamad & Azhar Ma'ah JJCA) [2010] 5 CLJ 409 [CA]
Marriage - Validity of - Bride already legally married to another person - Whether marriage void - Law Reform (Marriage and Divorce) Act 1976, ss. 5, 6
Sean O'Casey Patterson v. Chan Hoong Poh & Ors And Another Appeal
(Tengku Baharudin Shah, Wan Adnan Muhamad & Azhar Ma'ah JJCA) [2010] 5 CLJ 409 [CA]
IMMIGRATION
Prohibition against entry - Entry without pass or permit - West Malaysian Member of Parliament refused entry into State of Sarawak - Certiorari, application for leave - Whether there was an arguable case - Whether leave to be granted - Immigration Act 1959/63, ss. 59A, 66(1), 67
Sivarasa K Rasiah v. Director Of Immigration Sarawak & Ors
(Linton Albert J) [2010] 5 CLJ 461 [HC]
LABOUR LAW
Employment - Social security - Insured person - Claim for injury benefits - Injuries sustained in road accident while travelling from family home in Perak to living quarters provided by employer in Selangor - Whether an employment injury which could be deemed to arise out of and in the course of employment - Whether family home "a place of residence or stay" - Employees' Social Security Act 1969, ss. 2 , 24, 84, 91
Wong Yew Loy v. Ketua Pengarah Pertubuhan Keselamatan Sosial
(Lau Bee Lan J) [2010] 5 CLJ 467 [HC]
TORT
Breach of confidence - Cause of action - Whether plaintiff pleaded reason for wanting information to be kept confidential - No particulars on relationship between plaintiff and defendant - Whether information had necessary quality of confidence - Whether transaction personal in nature - Whether there was invasion of privacy
Dato' Vijay Kumar Natarajan v. Choy Kok Mun
(Hishamudin Mohd Yunus J) [2010] 5 CLJ 443 [HC]
Breach of confidence - Grounds for claim - Required more than recipient's agreement that information be kept confidential - Information to be of a nature that courts have recognized its confidentiality and accorded judicial protection - Court to consider reason for wanting confidentiality - Reason must be pleaded and must be acceptable to court looking at whole circumstances of case objectively - Expectation for information to be kept confidential must be reasonable or rational
Dato' Vijay Kumar Natarajan v. Choy Kok Mun
(Hishamudin Mohd Yunus J) [2010] 5 CLJ 443 [HC]
WORDS & PHRASES
"a place of residence or stay" - Section 24(1)(a) Employees' Social Security Act 1969 - Interpretation - Whether connoting permanency or frequency in insured person's travels from abode to place of work
Wong Yew Loy v. Ketua Pengarah Pertubuhan Keselamatan Sosial
(Lau Bee Lan J) [2010] 5 CLJ 467 [HC]
CASE OF THE WEEK
DEVELOPMENT & COMMERCIAL BANK BHD & ORS v. LOKE THEEN FATT
BANKRUPTCY: Discharge - Discharge of bankrupt - Whether discharge proper as bankrupt paid only 2% of outstanding debt - Whether bankrupt committed an offence under Bankruptcy Act 1967 and discharge could not be allowed under s. 33(4) of same - Whether report by Director General of Insolvency flawed - Bankruptcy Act 1967, s. 33 - Bankruptcy Rules 1969, r. 194
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