Bulletin_29

CLJ Bulletin, Vol 2004, Issue 29
23 July 2004

Introduction:
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Curent Law Journal July (Part 2) 2004

COURT OF APPEAL

Ata Management Consultants Sdn Bhd v. Makmuran Sdn Bhd
(Company law - Separate legal entity - Veil of incorporation) [2004] 3 CLJ 53

Chung Khiaw Bank (Malaysia) Bhd v. Tio Chee Hing
(Civil procedure - Action - Abuse of process - Application to strike out plaintiff’s originating summons) [2004] 3 CLJ 59

Cygal Bhd v. Bandar Subang Sdn Bhd
(Contract - Building contract - Performance bond - unconditional) [2004] 3 CLJ 67

David Kuok Khoon Hin v. Rose Kuok Kok Hiang
(Civil procedure - Judgments and orders - Whether withdrawal of originating process renders void all orders previously made) [2004] 3 CLJ 73

Malayan Banking Bhd v. PK Rajamani & Anor
(Land law - Charge - Order for sale - Failure to serve of adjourned hearing) [2004] 3 CLJ 79

Md Amin Md Yusof & Anor v. Cityvilla Sdn Bhd
(Civil procedure - Pre-trial case management - Peremptory order - Whether defendants’ counterclaim should be struck out) [2004] 3 CLJ 88

NVJ Menon v. The Great Eastern Life Assurance Company Ltd
(Contract - Construction - Agreement to appoint insurance agent - Whether agent entitled to commission) [2004] 3 CLJ 96

Sheikh Abdul Aziz Sheikh Shukor & Ors v. Sheikh Mustapha Sheikh Shukor & Ors
(Civil procedure - Adjournment - Burden on applicant to provide sufficient material) [2004] 3 CLJ 108

SUBJECT INDEX

CIVIL PROCEDURE

Action - Abuse of process - Application by defendant to strike out plaintiff’s originating summons - Whether plaintiff’s pleaded case in previous suit essentially the same as in present action - Whether judge had carried out careful and searching inquiry into history of litigation between plaintiff and defendant - Whether relevant considerations taken into account - Whether there was exercise of the judicial mind - Whether plaintiff’s originating summons an abuse of process of court - Interest reipublicae ut sit finis litium
Chung Khiaw Bank (Malaysia) Bhd v. Tio Chee Hing
(Gopal Sri Ram, Ahmad Fairuz & Haidar Mohd Noor JJCA) [2004] 3 CLJ 59

Adjournment - Application for - Principles - Whether grant of adjournment entirely within discretion of court - Burden on applicant to provide sufficient material upon which discretion may be exercised in his favour
Sheikh Abdul Aziz Sheikh Shukor & Ors v. Sheikh Mustapha Sheikh Shukor & Ors
(Gopal Sri Ram, Abdul Kadir Sulaiman & Ariffin Zakaria JJCA) [2004] 3 CLJ 108

Judgments and orders - Validity of order - General principles - Whether withdrawal of an originating process renders void all orders previously made under it - Withdrawal of divorce petition by wife - Whether interim maintenance order previously made ceases to have effect - Judge staying husband’s cross-petition on ground of non-compliance with interim maintenance order - Whether order of stay bad
David Kuok Khoon Hin v. Rose Kuok Kok Hiang
(Gopal Sri Ram, Abdul Kadir Sulaiman & Mohd Ghazali Yusoff JJCA) [2004] 3 CLJ 73

Judgments and orders - Peremptory order - Pre-trial case-management directions - Defendants failing to comply with directions of judge to file documents - Whether defendants’ counterclaim should be struck out - Principles and considerations - Whether there is a history of failures to comply with other orders of court - Whether ‘ends of justice’ would be met - Whether default intentional and contumelious - ‘Unless order’, whether an order of the last resort
Md Amin Md Yusof & Anor v. Cityvilla Sdn Bhd
(Mohd Ghazali Yusoff, Nik Hashim JJCA & Low Hop Bing J) [2004] 3 CLJ 88

Pre-trial case management - Directions and orders - Peremptory order - Defendants failing to comply with directions of judge to file documents - Whether defendants’ counterclaim should be struck out - Considerations - Whether plaintiff also failed to comply with directions - Whether there was ‘wholesale disregard’ of rules of court by defendants - Whether non-compliance intentional or contumelious - Ends of justice - Rules of the High Court 1980, O. 34
Md Amin Md Yusof & Anor v. Cityvilla Sdn Bhd
(Mohd Ghazali Yusoff, Nik Hashim JJCA & Low Hop Bing J) [2004] 3 CLJ 88

Striking out - Grounds for - Abuse of process of court - Res judicata - Application by defendant to strike out plaintiff’s originating summons - Whether plaintiff’s pleaded case in previous suit essentially the same as in present action - Whether judge had carried out careful and searching inquiry into history of litigation between plaintiff and defendant - Whether relevant considerations taken into account - Whether there was exercise of the judicial mind - Whether plaintiff’s originating summons an abuse of process of court - Interest reipublicae ut sit finis litium
Chung Khiaw Bank (Malaysia) Bhd v. Tio Chee Hing
(Gopal Sri Ram, Ahmad Fairuz & Haidar Mohd Noor JJCA) [2004] 3 CLJ 59

COMPANY LAW

Separate legal entity - Veil of incorporation - Consultancy contract - Claim for services rendered - Construction of terms of contract, whether in issue
Ata Management Consultants Sdn Bhd v. Makmuran Sdn Bhd
(Gopal Sri Ram, Mohd Saari Yusoff & Alauddin Mohd Sheriff JJCA) [2004] 3 CLJ 53

CONTRACT

Building contract - Performance bond - Bank guarantee for retention sum - Injunction - Application by contractor to restrain principal from demanding/receiving moneys thereunder - Whether performance bond unconditional - Whether a pure on-demand guarantee - Whether terms of building contract incorporated into performance bond and bank guarantee - Whether underlying contract formed part of performance bond - Whether grant of injunction would be inappropriate - Whether would pre-empt ongoing proceedings before arbitrator
Cygal Bhd v. Bandar Subang Sdn Bhd
(Gopal Sri Ram, Arifin Jaka & Augustine Paul JJCA) [2004] 3 CLJ 67

Construction - Agreement to appoint insurance agent - Claim for commission for group scheme insurance policies - Inconsistency between main contract and circular issued by company - Whether agent entitled to overriding commission - Limitation - Whether claim time barred - Whether rule governing limitation replaced by contrary intention
NVJ Menon v. The Great Eastern Life Assurance Company Ltd
(Gopal Sri Ram, Alauddin Mohd Sheriff & Richard Malanjum JJCA) [2004] 3 CLJ 96

FAMILY LAW

Divorce - Petition for divorce - Withdrawal of petition - Effect of withdrawal - Interim maintenance order previously made - Whether still in existence and valid - Whether all orders made pursuant to petition cease to have effect - Judge staying husband’s cross-petition on ground of non-compliance with interim maintenance order - Whether order of stay bad
David Kuok Khoon Hin v. Rose Kuok Kok Hiang
(Gopal Sri Ram, Abdul Kadir Sulaiman & Mohd Ghazali Yusoff JJCA) [2004] 3 CLJ 73

LAND LAW

Charge - Order for sale - Adjourned hearing of summons - Notice - Whether chargee’s duty to serve notice of hearing on chargor - Failure to serve notice of adjourned hearing - Whether fatal - Whether order for sale nullified - Rules of the High Court 1980, O. 83 r. 2(4)
Malayan Banking Bhd v. PK Rajamani & Anor
(Gopal Sri Ram, Abdul Kadir Sulaiman & Alauddin Mohd Sheriff JJCA) [2004] 3 CLJ 79

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