TUAN HJ ZULKIFLI HJ HUSSAIN & ORS v. IOI CORPORATION BHD & ORS
HIGH COURT MALAYA, KUALA LUMPUR
NALLINI PATHMANATHAN J
[SUIT NO: D4-22-438-2003]
20 MAY 2011

SECURITIES: General mandatory offer - Control of more than 33% of shares in company - Defendants acquired more than 33% shares in company but failed to carry out mandatory general offer - Breach of rule 34 of the Malaysian Code on Take-Overs and Mergers 1987 ('Code') - Whether breach of statutory duty gave plaintiff minority shareholders cause of action in tort against defendants for damages - Whether Code read with ss. 33A(9) & (10) of the Securities Commission Act 1993 conferred cause of action on plaintiffs - Whether plaintiffs suffered loss due to breach of statutory duty

Legal Network Series

[2009] LNS 1 1566	MOHD ASRI ISMAIL & ANOR v. FADZIL PUTEH	CIVIL PROCEDURE: Appeal - Appeal against decision of Sessions Court - Appeal to High Court - Defendants found wholly liable for road accident - Whether trial judge misdirected herself on facts and law in finding plaintiff blameless - Whether both plaintiff and defendants equally liable for accident TORT: Negligence - Road accident - Contributory negligence - SP1 negligent in failing to ensure his stationary lorry left on an unlit stretch of road was visible to other road users - Plaintiff riding at 40 km per hour on road shoulder - Headlight on low beam despite poor visibility - Whether plaintiff liable for contributory negligent
[2010] LNS 1 712	KULAI EDIBLE OILS REFINERY SDN BHD & ANOR v. LIM TIAN HUAT & ORS	COMPANIES AND CORPORATIONS: Winding up - Suit by company - First plaintiff wound-up - No consent from Liquidator to continue with proceeding - Whether leave of court necessary before first plaintiff could continue with actions against defendants - If so, whether first plaintiff's action should be struck out CIVIL PROCEDURE: Judgments and orders - Consent order - Second plaintiff alleging second defendant acted without authority and consent of first plaintiff in entering consent order - Whether 2nd defendant authorised by first plaintiff to enter Consent Order - Whether onus on second plaintiff to prove allegation - Whether second defendant entered Consent Order upon the directions of third defendant - Whether third defendant was agent of first plaintiff when consent order was entered COMPANIES AND CORPORATIONS: Resolutions - Resolution purportedly appointing second defendant as solicitors of first plaintiff - Whether Resolution null and void and of no effect as not signed by directors of company - No police report made by second plaintiff or any of the directors for fraud - Whether second plaintiff proved beyond reasonable doubt that Resolution was forged
[2010] LNS 1 1598	ELSTER METERING LIMITED & ANOR v. DURA-MINE SDN BHD	COPYRIGHT: Infringement - Allegation of - Plaintiff claiming copyright over artistic works - Whether copyright subsisted over plaintiff's drawings - Whether plaintiffs copyright owners of drawings - Whether sufficient effort and skill expended to make drawings original in character - Whether the defendant's PD9 TRP water meters of an original design and/or independently created - Substantial similarities between 2 drawings of both parties - Whether there was infringement of copyright by defendant CIVIL PROCEDURE: Injunction - Application for - To restrain defendant from infringing 1st plaintiff's copyright in drawings - Whether an infringement of copyright established - Whether plaintiffs entitled to injunction and damages
[2011] LNS 1 372	FAUZI ISMAIL v. CIMB BANK BERHAD	CONTRACT: Building contract - Progress payments - Construction of plaintiff's bungalow abandoned - Whether defendant negligently released 90% of loan sum to contractor - When disbursements should be made - Whether upon receipt of Architect's Certificate of Commencement or Architect's Certificate of Completion - Whether defendant in breach of its contractual obligations in making progress payments to contractor upon receipt of Architect's Certificate of Commencement - Whether plaintiff nevertheless obliged to make payments to defendant in line with terms of Facility Agreement CONTRACT: Building contract - Agreement to construct house - Responsibility for obtaining planning approval - Whether plaintiff obliged to obtain planning approval from Municipal Authority - Whether defendant obliged to make site visits before releasing any loan disbursements to contractor CONTRACT: Breach - Building contract - Disbursement before planning approval - Existence of Waiver clause - Approval subsequently obtained - Whether defendant in breach of its contractual obligations in making disbursements before receipt of planning approval - Whether plaintiff obliged to make payments to defendant in compliance with terms of Facility Agreement CIVIL PROCEDURE: Limitation - Omission or negligence of defendant in disbursing progress payments to contractor in breach of its contractual obligations to plaintiff - Whether plaintiff's claim barred by limitation
[2011] LNS 1 519	FIRST YIELD SDN BHD v. ALL PERSONS IN OCCUPATION OF THE LAND HELD UNDER PROVISIONAL LEASE NO. 076290036 AND PROVISIONAL LEASE NO. 07622148 AT MILE 36, SG MEMANJANG SIMPANG JALAN BELURAN, SANDAKAN, SABAH	LAND LAW: Possession - Recovery of - Plaintiff registered owner of lands - Defendants found in occupation - Whether defendants had licence or consent to occupy plaintiff's land - Whether defendants trespassers - Whether defendants had any right or interest or just cause to deny plaintiff possession of lands NATIVE LAW AND CUSTOM: Land dispute - Titled land - Defendants' claim to Native Customary Right - Not proved that defendants had established such rights before Collector of Land Revenue or that their claim had been dealt with by Collector of Land Revenue - Alienated land with land titles already issued - Whether defendants were natives of Sabah within the meaning of Section 2(1) (a) of the Interpretation (Definition of Native) Ordinance and had 'Native Customary Right' and interests to claim ownership of land

CLJ 2012 Volume 4 (Part 2)

COURT

FEDERAL COURT

Hoslan Hussin v. Majlis Agama Islam Wilayah Persekutuan
Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar FCJ, Zaleha Zahari JCA
(Civil Procedure - Contempt of court - Whether acts of contemnor interfered with course of justice) [2012] 4 CLJ 193 [FC]

COURT OF APPEAL

Lembaga Jurukur Tanah Semenanjung Malaysia v. Tuan Hj Maidin Hj Manap
Zaleha Zahari, Sulong Matjeraie, T Selventhiranathan JJCA
(Professions; Words & Phrases - Land surveyors - Payment of fees - Method of) [2012] 4 CLJ 207 [CA]

Tan Ong Keong v. PP
Sulaiman Daud, Syed Ahmad Helmy, Abdul Wahab Patail JJCA
(Criminal Law - Dangerous Drugs Act 1952 - Trafficking - Conviction and sentence - Appeal against) [2012] 4 CLJ 223 [CA]

HIGH COURT

Kunasekaran Renggaga v. ASP Heisham Harun, Ketua Balai Polis Bukit Sentosa & Ors
Hadhariah Syed Ismail JC
(Police; Tort - Tortious liabilities - Negligence - Duty of care - Death of suspect in lock-up) [2012] 4 CLJ 237 [HC]

Lai Ban Guan v. Chan Phaik Boi & Ors
See Mee Chun JC
(Evidence; Tort; Civil Procedure - Expert evidence - Forged signatures - Conspiracy to defraud) [2012] 4 CLJ 255 [HC]

Malaysia Building Society Bhd v. Merit Aim Sdn Bhd & Anor; Cameron Mall Sdn Bhd & Anor (Interveners)
Lee Swee Seng JC
(Land Law - Charge - Order for sale - Chargor in liquidation) [2012] 4 CLJ 269 [HC]

RHB Bank Bhd v. Kwantas Oil Sdn Bhd & Anor
Hamid Sultan Abu Backer J
(Banking - Banks and banking business - Forward foreign exchange contracts (FFECs) - Whether defendants failed to honour FFECs) [2012] 4 CLJ 292 [HC]

SUBJECT INDEX

BANKING

Banks and banking business - Forward foreign exchange contracts (FFECs) - FFECs transactions by telephone - Plaintiff bank made tape recordings of transactions - Whether defendants failed to honour FFECs - Failure of defendants to dispute officer's voice in recording at earliest opportunity - Whether defendants' subsequent denial of officer's voice an afterthought and lacking bona fides
RHB Bank Bhd v. Kwantas Oil Sdn Bhd & Anor
(Hamid Sultan Abu Backer J) [2012] 4 CLJ 292 [HC]

CIVIL PROCEDURE

Contempt of court - Contempt proceedings - Deliberate attack on judges by throwing slippers towards bench - Contempt on face of the court - Gravity of offence - Whether stiff custodial sentence warranted
Hoslan Hussin v. Majlis Agama Islam Wilayah Persekutuan
(Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar FCJ, Zaleha Zahari JCA) [2012] 4 CLJ 193 [FC]

Contempt of court - Contempt proceedings - Whether acts of contemnor interfered or tended to interfere with course of justice - Whether elements of contempt fully set out for contemnor to show cause - Whether contemnor given opportunity to be heard - Whether contemnor gave sufficient explanations
Hoslan Hussin v. Majlis Agama Islam Wilayah Persekutuan
(Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar FCJ, Zaleha Zahari JCA) [2012] 4 CLJ 193 [FC]

Pleadings - Parties bound by pleadings - Defendants asserted in defence that documents signed on a certain date - Whether defendants allowed to subsequently contend documents signed on different date
Lai Ban Guan v. Chan Phaik Boi & Ors
(See Mee Chun JC) [2012] 4 CLJ 255 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Conviction and sentence - Appeal against - Failure to question chemist whether drugs a form of methamphetamine prohibited under First Schedule to Dangerous Drugs Act 1952 - Defence in Shukri Mohamad v. PP - Whether applicable
Tan Ong Keong v. PP
(Sulaiman Daud, Syed Ahmad Helmy, Abdul Wahab Patail JJCA) [2012] 4 CLJ 223 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking- Conviction and sentence - Appeal against - Identity of drugs - Whether variations in description of exhibits created a doubt as to identity - Whether substance found in the bag and substance submitted to Chemistry Department for analysis proven to be the same
Tan Ong Keong v. PP
(Sulaiman Daud, Syed Ahmad Helmy, Abdul Wahab Patail JJCA) [2012] 4 CLJ 223 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Conviction and sentence - Appeal against - Knowledge - Whether appellant proved to have knowledge of contents in the bag as proscribed substance - Whether appellant failed to raise any doubt on prosecution's case
Tan Ong Keong v. PP
(Sulaiman Daud, Syed Ahmad Helmy, Abdul Wahab Patail JJCA) [2012] 4 CLJ 223 [CA]

EVIDENCE

Expert evidence - Handwriting - Forged signatures - Whether expert's evidence conclusive proof of forgery - Whether expert's evidence corroborated plaintiff's claim
Lai Ban Guan v. Chan Phaik Boi & Ors
(See Mee Chun JC) [2012] 4 CLJ 255 [HC]

LAND LAW

Charge - Order for Sale - Chargor in liquidation - Whether charged property could be sold by private treaty after abortive auctions - Amount due to chargee under Order for Sale almost thrice redemption sum it quoted to facilitate private sale - Whether chargee's acceptance of smaller sum would adversely affect other creditors and contributories - Whether amounted to compromise or arrangement requiring sanction of court - Whether property should be auctioned according to procedure prescribed in National Land Code - Companies Act 1965, s. 236 - National Land Code, ss. 257, 266, 267A
Malaysia Building Society Bhd v. Merit Aim Sdn Bhd & Anor; Cameron Mall Sdn Bhd & Anor (Interveners)
(Lee Swee Seng JC) [2012] 4 CLJ 269 [HC]

POLICE

Tortious liabilities - Negligence - Duty of care - Police - Death of suspect in lock-up - Suspect found hanged with sarong cloth - Whether suicide or foul play - Suspect not monitored when in lock-up - Police lock-up Rules not followed - Whether defendants negligent and liable for damages - Whether defendants owed suspect duty of care - Whether duty of care only arose if suspect suicide-risk - Whether government vicariously liable for suspect's death - Identity and negligence of particular officer(s) responsible for suspect's death not established - Whether fatal - Government Proceedings Act 1956, ss. 5 & 6
Kunasekaran Renggaga v. ASP Heisham Harun, Ketua Balai Polis Bukit Sentosa & Ors
(Hadhariah Syed Ismail JC) [2012] 4 CLJ 237 [HC]

PROFESSIONS

Land surveyors - Payment of fees - Method of - Regulation 99(2), (3)(a), (b), (4) and (5) of the Licensed Land Surveyors Regulations 1959 - Whether ultra vires the powers conferred by s. 21 of the Licensed Land Surveyors Act 1958 - Whether Regulation enabling Land Surveyors Board to retain one percent of fees for administrative purposes valid and of full legal effect
Lembaga Jurukur Tanah Semenanjung Malaysia v. Tuan Hj Maidin Hj Manap
(Zaleha Zahari, Sulong Matjeraie, T Selventhiranathan JJCA) [2012] 4 CLJ 207 [CA]

TORT

Conspiracy - Conspiracy to defraud - Agreement to act in concert - Whether D3 conspired with D1 in forging plaintiff's signature - Whether conspiracy proven by plaintiff
Lai Ban Guan v. Chan Phaik Boi & Ors
(See Mee Chun JC) [2012] 4 CLJ 255 [HC]

Duty of care - Professional negligence - Company secretaries - Duties and obligations - Failure to verify signature prior to transfer of shares - Whether company secretaries negligent
Lai Ban Guan v. Chan Phaik Boi & Ors
(See Mee Chun JC) [2012] 4 CLJ 255 [HC]

Negligence - Duty of care - Police - Death of suspect in lock-up - Suspect found hanged with sarong cloth - Whether suicide or foul play - Suspect not monitored when in lock-up - Police Lock-up Rules not followed - Whether defendants negligent and liable for damages - Whether defendants owed suspect duty of care - Whether duty of care only arose if suspect suicide-risk - Whether government vicariously liable for suspect's death - Identity and negligence of particular officer(s) responsible for suspect's death not established - Whether fatal - Government Proceedings Act 1956, ss. 5 & 6
Kunasekaran Renggaga v. ASP Heisham Harun, Ketua Balai Polis Bukit Sentosa & Ors
(Hadhariah Syed Ismail JC) [2012] 4 CLJ 237 [HC]

WORDS & PHRASES

"after purpose under this Act" - Section 21(2)(c), Licensed Land Surveyors Act 1958 - Scope of
Lembaga Jurukur Tanah Semenanjung Malaysia v. Tuan Hj Maidin Hj Manap
(Zaleha Zahari, Sulong Matjeraie, T Selventhiranathan JJCA) [2012] 4 CLJ 207 [CA]

"regulate the practice - Section 21(2)(b), Licensed Land Surveyors Act 1958 - Meaning and purpose
Lembaga Jurukur Tanah Semenanjung Malaysia v. Tuan Hj Maidin Hj Manap
(Zaleha Zahari, Sulong Matjeraie, T Selventhiranathan JJCA) [2012] 4 CLJ 207 [CA]

Legal Network Series Articles

1. IS THE FAMILY JUSTICE SYSTEM IN NEED OF REVIEW? ^{[Read excerpt]}
    BY: SIR NICHOLAS WALL [2012] 1 LNS(A) xxxix

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