Bulletin_32

CLJ Bulletin, Issue 2011, Vol 32

19 August 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 6 (Part 3) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 723 Price Control And Anti-Profiteering Act 2011 1 April 2011 [PU(B) 146/2011] - Nil -

ACT 724 National Visual Arts Development Board Act 2011 Not Yet In Force - Nil -

ACT 725 Renewable Energy Act 2011 Not Yet In Force - Nil -

ACT 726 Sustainable Energy Development Authority Act 2011 Not Yet In Force - Nil -

ACT 727 Food Analysts Act 2011 Not Yet In Force - Nil -

Amending Acts

NUMBER
TITLE

DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

ACT A1393 Merchant Shipping (Amendment And Extension) Act 2011 Not Yet In force ORD 70/1952

ACT A1394 Merchant Shipping (Oil Pollution) (Amendment) Act 2011 Not Yet In force ACT 515

ACT A1395 Arbitration (Amendment) Act 2011 1 July 2011 [PU(B) 342/2011] ACT 646

ACT A1396 Supplementary Supply (2011) Act 2011 22 July 2011 ACT A1388

ACT A1397 Kootu Funds (Prohibition) (Amendment) Act 2011 Not Yet In Force ACT 28

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 265/2011 Customs (Values) (Palm Oil) (No 32) Order 2011 8 August 2011 ACT 235

PU(A) 266/2011 Poisons (Amendment Of Poisons List) (No 3) Order 2011 8 August 2011 ACT 366

PU(A) 267/2011 Immigration (Exemption) (Asylum Seekers) Order 2011 8 August 2011 ACT 155

PU(A) 268/2011 Passport (Exemption) (Asylum Seekers) Order 2011 8 August 2011 ACT 150

PU(A) 269/2011 Passport (Exemption) (Asylum Seekers) Order 2011 10 August 2011 ACT 118

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 414/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Batu 8 August 2011 ACT 56/1965

PU(B) 415/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Batu 8 August 2011 ACT 56/1965

PU(B) 416/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Batu 8 August 2011 ACT 56/1965

PU(B) 417/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 8 August 2011 ACT 56/1965

PU(B) 418/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 8 August 2011 ACT 56/1965

2. Articles

a) Legal Network Series Articles

1. The Use Of Non-Verbal Communication In Mediation* ^{[Read
excerpt]}
By Ronald S. Tolentino**

2. Blocking Bullies In Your Workplace* ^{[Read excerpt]}
By Kriss Will, Kriss Will Consulting

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 1687 [HC] Nagendaran Kaliappan & Anor v. Citibank Berhad & Anor

BANKING: Securities for advances - Assignment creating equitable mortgage - Bank auctioning off property without order of court - Whether sufficient to rely on facility agreement, assignment and power of attorney - Whether bank obliged to require assignor to take a transfer of title to property and then create a statutory charge in favour of bank upon issuance of separate document of title - Whether deed of assignment absolute - Whether subsequent purchaser acquired indefeasible title - Whether there was mala fide to deprive subsequent purchaser of protection afforded by s. 340 National Land Code 1965 - Whether plaintiff/assignor deprived of property in contravention of art. 13 Federal Constitution

LAND LAW: Assignment - Assignment creating equitable mortgage - Bank auctioning off property without order of court - Whether sufficient to rely on facility agreement, assignment and power of attorney - Whether bank obliged to require assignor to take a transfer of title to property and then create a statutory charge in favour of bank upon issuance of separate document of title - Whether deed of assignment absolute - Whether subsequent purchaser acquired indefeasible title - Whether there was mala fide to deprive subsequent purchaser of protection afforded by s. 340 National Land Code 1965 - Whether plaintiff/assignor deprived of property in contravention of art. 13 Federal Constitution

LAND LAW: Mortgage - Equitable mortgage - Bank auctioning off property without order of court - Whether sufficient to rely on facility agreement, assignment and power of attorney - Whether deed of assignment absolute

[2009] 1 LNS 1688 [HC] Primercon Sdn Bhd v. TH Technologies Sdn Bhd

ARBITRATION: Procedure - Step in the proceedings - Stay of proceedings - Whether right to arbitration waived - Arbitration Act 2005, s. 10

CONTRACT: Building contract - Claim for work done - Moiety of retention sum not released to plaintiff/sub-contractor - Remedial work completed to satisfaction of defendant/main-contractor - No defence on the merits

CIVIL PROCEDURE: Arbitration - Recourse to, whether available - Step in the proceedings, whether taken - Defendant having filed unconditional appearance, defence and counterclaim - Stay of proceedings, whether had been applied for - Right to arbitration, whether waived - Arbitration Act 2005, s. 10

[2009] 1 LNS 1690 [HC] Indah Water Konsortium Sdn Bhd v. Dynawell Corporation (M) Sdn Bhd

CONTRACT: Claim for services rendered - Arrears unpaid - Plaintiff/provider claiming for arrears of sewerage charges - Defendant/hotelier refusing to pay on ground of non-service - Whether plaintiff provided any evidence of actual amount in arrears - Whether burden under s. 101 Evidence Act 1950 discharged - Defendant counterclaiming for damages and loss of profits - Overflow of sludge from blocked sewerage pipes - Proof of damage and loss, whether sufficient - Cost of remedial work by independent contractor, inconclusiveness as to whether remedial work done was on private or public sewerage lines

LOCAL GOVERNMENT: Sewerage - Charges - Claim for arrears of sewerage charges by Indah Water Konsortium - Defendant/hotelier refusing to pay on ground of non-service - Evidence of amount allegedly in arrears, whether provided - Whether burden under s. 101 Evidence Act 1950 discharged - Defendant counterclaiming for damages and loss of profits - Overflow of sludge from blocked sewerage pipes - Proof of damage and loss, whether sufficient - Cost of remedial work by independent contractor, inconclusiveness as to whether remedial work done was on private or public sewerage lines - Sewerage Services Act 1993

[2009] 1 LNS 1692 [HC] Keytrade Sdn Bhd v. Bumiputra Commerce Bank Bhd

BANKING: Credit facilities - Banker's acceptance - Supplementary facility agreement to convert overdue bills into term loan - Plaintiff alleging defendant/bank failing to convert banker's acceptance into term loan - Whether a breach of supplementary agreement - Whether plaintiff failed to settle non-performing bills - Whether repayment of non-performing bills a condition precedent to conversion - Distinction between overdue and non-performing banker's acceptance

CIVIL PROCEDURE: Res judicata - Issues, similarity of - Previous judgment holding plaintiff could not challenge order vesting defendant/bank's rights, title and interest in plaintiff's banking facilities to Pengurusan Danaharta Nasional Berhad - Pengurusan Danaharta Nasional Berhad Act 1998, ss. 14, 15 - Whether plaintiff could seek to set aside vesting order in present suit

[2009] 1 LNS 1694 [HC] EXPO Holdings Sdn Bhd v. Saujana Triangle Sdn Bhd
CONTRACT: Building contract - Breach - Developer failing to complete project within contracted time - Whether purchaser entitled to liquidated damages - Whether purchaser entitled to set-off balance of purchase price against liquidated damages payable - Whether supplementary agreement for car park formed part of statutory agreement - Housing Development (Control & Licensing) Act 1966 - Consumer protection, intention of parliament and statutory interpretation - Whether purchaser liable for service charges and sinking fund - Whether plaintiff's action properly commenced in the High Court

CITATION	TITLE	SUBJECT
[2009] 1 LNS 1687 [HC]	Nagendaran Kaliappan & Anor v. Citibank Berhad & Anor	BANKING: Securities for advances - Assignment creating equitable mortgage - Bank auctioning off property without order of court - Whether sufficient to rely on facility agreement, assignment and power of attorney - Whether bank obliged to require assignor to take a transfer of title to property and then create a statutory charge in favour of bank upon issuance of separate document of title - Whether deed of assignment absolute - Whether subsequent purchaser acquired indefeasible title - Whether there was mala fide to deprive subsequent purchaser of protection afforded by s. 340 National Land Code 1965 - Whether plaintiff/assignor deprived of property in contravention of art. 13 Federal Constitution LAND LAW: Assignment - Assignment creating equitable mortgage - Bank auctioning off property without order of court - Whether sufficient to rely on facility agreement, assignment and power of attorney - Whether bank obliged to require assignor to take a transfer of title to property and then create a statutory charge in favour of bank upon issuance of separate document of title - Whether deed of assignment absolute - Whether subsequent purchaser acquired indefeasible title - Whether there was mala fide to deprive subsequent purchaser of protection afforded by s. 340 National Land Code 1965 - Whether plaintiff/assignor deprived of property in contravention of art. 13 Federal Constitution LAND LAW: Mortgage - Equitable mortgage - Bank auctioning off property without order of court - Whether sufficient to rely on facility agreement, assignment and power of attorney - Whether deed of assignment absolute
[2009] 1 LNS 1688 [HC]	Primercon Sdn Bhd v. TH Technologies Sdn Bhd	ARBITRATION: Procedure - Step in the proceedings - Stay of proceedings - Whether right to arbitration waived - Arbitration Act 2005, s. 10 CONTRACT: Building contract - Claim for work done - Moiety of retention sum not released to plaintiff/sub-contractor - Remedial work completed to satisfaction of defendant/main-contractor - No defence on the merits CIVIL PROCEDURE: Arbitration - Recourse to, whether available - Step in the proceedings, whether taken - Defendant having filed unconditional appearance, defence and counterclaim - Stay of proceedings, whether had been applied for - Right to arbitration, whether waived - Arbitration Act 2005, s. 10
[2009] 1 LNS 1690 [HC]	Indah Water Konsortium Sdn Bhd v. Dynawell Corporation (M) Sdn Bhd	CONTRACT: Claim for services rendered - Arrears unpaid - Plaintiff/provider claiming for arrears of sewerage charges - Defendant/hotelier refusing to pay on ground of non-service - Whether plaintiff provided any evidence of actual amount in arrears - Whether burden under s. 101 Evidence Act 1950 discharged - Defendant counterclaiming for damages and loss of profits - Overflow of sludge from blocked sewerage pipes - Proof of damage and loss, whether sufficient - Cost of remedial work by independent contractor, inconclusiveness as to whether remedial work done was on private or public sewerage lines LOCAL GOVERNMENT: Sewerage - Charges - Claim for arrears of sewerage charges by Indah Water Konsortium - Defendant/hotelier refusing to pay on ground of non-service - Evidence of amount allegedly in arrears, whether provided - Whether burden under s. 101 Evidence Act 1950 discharged - Defendant counterclaiming for damages and loss of profits - Overflow of sludge from blocked sewerage pipes - Proof of damage and loss, whether sufficient - Cost of remedial work by independent contractor, inconclusiveness as to whether remedial work done was on private or public sewerage lines - Sewerage Services Act 1993
[2009] 1 LNS 1692 [HC]	Keytrade Sdn Bhd v. Bumiputra Commerce Bank Bhd	BANKING: Credit facilities - Banker's acceptance - Supplementary facility agreement to convert overdue bills into term loan - Plaintiff alleging defendant/bank failing to convert banker's acceptance into term loan - Whether a breach of supplementary agreement - Whether plaintiff failed to settle non-performing bills - Whether repayment of non-performing bills a condition precedent to conversion - Distinction between overdue and non-performing banker's acceptance CIVIL PROCEDURE: Res judicata - Issues, similarity of - Previous judgment holding plaintiff could not challenge order vesting defendant/bank's rights, title and interest in plaintiff's banking facilities to Pengurusan Danaharta Nasional Berhad - Pengurusan Danaharta Nasional Berhad Act 1998, ss. 14, 15 - Whether plaintiff could seek to set aside vesting order in present suit
[2009] 1 LNS 1694 [HC]	EXPO Holdings Sdn Bhd v. Saujana Triangle Sdn Bhd	CONTRACT: Building contract - Breach - Developer failing to complete project within contracted time - Whether purchaser entitled to liquidated damages - Whether purchaser entitled to set-off balance of purchase price against liquidated damages payable - Whether supplementary agreement for car park formed part of statutory agreement - Housing Development (Control & Licensing) Act 1966 - Consumer protection, intention of parliament and statutory interpretation - Whether purchaser liable for service charges and sinking fund - Whether plaintiff's action properly commenced in the High Court

a. CLJ Volume 6 (Part 3) 2011

COURT

COURT OF APPEAL

AmBank (M) Bhd v. Luqman Kamil Mohammed Don
Sulaiman Daud, Azhar Ma'ah JJCA, Azahar Mohamed J
(Banking; Civil Procedure; Contract - Banking facilities agreement - Pleadings - Guarantee) [2011] 6 CLJ 277 [CA]

Integrated Technologies Distribution Sdn Bhd v. Patimas Computer Systems Sdn Bhd
KN Segara, Hishamudin Mohd Yunus JJCA, Azahar Mohamed J
(Civil Procedure - Summary judgment - Rules of the High Court 1980, O. 14, O. 42 r. 12) [2011] 6 CLJ 289 [CA]

HYT Food Industries Sdn Bhd v. Elken Sdn Bhd
Hadhariah Syed Ismail JC
(Contract; Evidence - Oral agreement - Breach - Adverse inference - Documentary evidence) [2011] 6 CLJ 295 [HC]

Nature's Grace Medicine Sdn Bhd & Satu Lagi lwn. Pihak Berkuasa Kawalan Dadah & Yang Lain
Mohd Zawawi Salleh H
(Undang-Undang Pentadbiran - Certiorari dan mandamus) [2011] 6 CLJ 307 [HC]

Ng Wu Hong v. Abraham Verghese TV Abraham & Ors
Ravinthran Paramaguru JC
(Civil Procedure; Company Law; Tort - Action - Auditors - Damages - Negligence) [2011] 6 CLJ 322 [HC]

Nike Sales Malaysia Sdn Bhd v. Jabatan Kastam Diraja Malaysia & Ors
Mohamad Ariff Yusof JC
(Customs And Excise - Valuation of goods - Royalties) [2011] 6 CLJ 352 [HC]

SUBJECT INDEX

BANKING

Banks and banking business - Banking facilities agreement - Claim by appellant bank against guarantor - Appellant's case pleaded upon a trust receipt facility - Whether appellant departed from its pleaded case - Actual or contingent debt - Whether guarantor effectively discharged from any liability
AmBank (M) Bhd v. Luqman Kamil Mohammed Don
(Sulaiman Daud, Azhar Ma'ah JJCA, Azahar Mohamed J) [2011] 6 CLJ 277 [CA]

CIVIL PROCEDURE

Action - Limitation - Breach of duty of care - CEO of company suing company's auditors for breach of duty of care - Cause of action falling under item 19 Limitation Ordinance of Sarawak - Whether claim time barred
Ng Wu Hong v. Abraham Verghese TV Abraham & Ors
(Ravinthran Paramaguru JC) [2011] 6 CLJ 322 [HC]

Cause of action - Whether cause of action arising - Auditors retained by company to carry out audit - Whether company's CEO may personally sue company's auditors for breach of contract or in negligence
Ng Wu Hong v. Abraham Verghese TV Abraham & Ors
(Ravinthran Paramaguru JC) [2011] 6 CLJ 322 [HC]

Pleadings - Parties to action bound by own pleadings - Claim by appellant bank against guarantor - Appellant's case pleaded upon a trust receipt facility - Whether appellant departed from its pleaded case
AmBank (M) Bhd v. Luqman Kamil Mohammed Don
(Sulaiman Daud, Azhar Ma'ah JJCA, Azahar Mohamed J) [2011] 6 CLJ 277 [CA]

Summary judgment - Appeal against - Whether there were triable issues - Failure to provide services - Interest on judgment debts - Whether not a plain and obvious case for summary judgment - Rules of the High Court 1980, O. 14, O. 42 r. 12
Integrated Technologies Distribution Sdn Bhd v. Patimas Computer Systems Sdn Bhd
(KN Segara, Hishamudin Mohd Yunus JJCA, Azahar Mohamed J) [2011] 6 CLJ 289 [CA]

COMPANY LAW

Auditors - External auditor - Scope of duty of company's auditors - Whether duty is merely to provide independent report to shareholders on company's performance - Whether auditors owe a duty to check accuracy of management accounts and to detect fraud - Whether auditors owe a duty to company's CEO - Companies Act 1965, s. 172
Ng Wu Hong v. Abraham Verghese TV Abraham & Ors
(Ravinthran Paramaguru JC) [2011] 6 CLJ 322 [HC]

CONTRACT

Breach - Damages - Refusal to accept delivery of goods - Cost of raw and packaging materials - Loss of profit - General and special damages - Whether respondent liable to pay damages for losses suffered by appellant
HYT Food Industries Sdn Bhd v. Elken Sdn Bhd
(Hadhariah Syed Ismail JC) [2011] 6 CLJ 295 [HC]

Guarantee - Demand for payment - Banking facilities agreement - Claim by appellant bank against guarantor - Appellant's case pleaded upon a trust receipt facility - Whether appellant departed from its pleaded case - Actual or contingent debt - Whether guarantor effectively discharged from any liability
AmBank (M) Bhd v. Luqman Kamil Mohammed Don
(Sulaiman Daud, Azhar Ma'ah JJCA, Azahar Mohamed J) [2011] 6 CLJ 277 [CA]

Oral agreement - Existence of oral agreement - Proof of - Whether sufficient evidence of oral agreement existed - Whether oral representation created a mutual understanding between parties
HYT Food Industries Sdn Bhd v. Elken Sdn Bhd
(Hadhariah Syed Ismail JC) [2011] 6 CLJ 295 [HC]

CUSTOMS AND EXCISE

Customs duty - Customs valuation - Royalties - Interpretation of regs. 4 and 5 of Customs (Rules of Valuation) Regulations 1999 - International obligations of Malaysia - Malaysia signatory to WTO Valuation Agreement - Interpretation of Advisory Opinions of the Technical Committee on Customs Valuation established under the agreement - Whether payment of royalties specifically addressed - Overriding test - Whether importer had obligation to pay royalties to purchase goods
Nike Sales Malaysia Sdn Bhd v. Jabatan Kastam Diraja Malaysia & Ors
(Mohamad Ariff Yusof JC) [2011] 6 CLJ 352 [HC]

Customs duty - Valuation of goods - Royalties - Whether royalties to be included in valuation - Whether a valid adjustment item - Whether a condition of sale for export - Customs (Rules of Valuation) Regulations 1999, regs. 4, 5(1)(a)(iv)
Nike Sales Malaysia Sdn Bhd v. Jabatan Kastam Diraja Malaysia & Ors
(Mohamad Ariff Yusof JC) [2011] 6 CLJ 352 [HC]

Customs duty - Valuation of goods - Sale for export to Malaysia - Whether payment of royalties a pre-condition of sale - Whether non-payment of royalties prevented sale - Consideration of economic and legal relationship underlying business transaction flow - Customs (Rules of Valuation) Regulations 1999,
regs. 4, 5(1)(a)(iv)
Nike Sales Malaysia Sdn Bhd v. Jabatan Kastam Diraja Malaysia & Ors
(Mohamad Ariff Yusof JC) [2011] 6 CLJ 352 [HC]

EVIDENCE

Adverse inference - Failure to call witness - Proof of oral representation - Burden of proof upon whom - Whether trial judge erred in law and in fact - Whether trial judge was correct to invoke adverse inference by virtue of Evidence Act 1950, s. 114(g)
HYT Food Industries Sdn Bhd v. Elken Sdn Bhd
(Hadhariah Syed Ismail JC) [2011] 6 CLJ 295 [HC]

Documentary evidence - Admissibility of - Document relied upon as proof of fact pleaded - Handwritten note purportedly made by respondent's witness - Contrast with purchase order - Whether note contradicted purchase order - Whether respondent could rely on note as proof that its order could be adjusted or reduced if sale was not good - Whether trial judge erred by relying on note
HYT Food Industries Sdn Bhd v. Elken Sdn Bhd
(Hadhariah Syed Ismail JC) [2011] 6 CLJ 295 [HC]

TORT

Damages - Remoteness - CEO of company suing company's auditors for breach of duty of care - Claim for loss of emoluments, stock options and employment benefits - Whether losses not foreseeable, too remote and highly speculative
Ng Wu Hong v. Abraham Verghese TV Abraham & Ors
(Ravinthran Paramaguru JC) [2011] 6 CLJ 322 [HC]

Negligence - Duty of care, whether arising - Whether company's auditors owe a duty of care to company's CEO - Whether company's CEO may claim against company's auditors for losses caused by negligent audit
Ng Wu Hong v. Abraham Verghese TV Abraham & Ors
(Ravinthran Paramaguru JC) [2011] 6 CLJ 322 [HC]

INDEKS PERKARA

UNDANG-UNDANG PENTADBIRAN

Semakan kehakiman - Certiorari dan mandamus - Permohonan untuk - Keputusan Biro Kawalan Farmaseutikal Kebangsaan membatalkan pendaftaran produk kapsul herba kerana mengandungi bahan Sibutramine - Sama ada tindakan dan keputusan responden dilaksanakan selaras dengan undang-undang - Sama ada terdapat "illegality", "irrationality" atau "procedural impropriety" pada keputusan responden - Sama ada produk kapsul tersebut patut dihantar ke luar negara untuk penganalisaan semula
Nature's Grace Medicine Sdn Bhd & Satu Lagi lwn. Pihak Berkuasa Kawalan Dadah & Yang Lain
(Mohd Zawawi Salleh H) [2011] 6 CLJ 307 [HC]

CASE OF THE WEEK

JOSEPH PAULUS LANTIP v. LIAN KEE CHU & ORS

NATIVE LAW AND CUSTOM: Land dispute - Dealings of native titles - First defendant's status as a native established by a certificate obtained from Sabah Native Court - Whether there was no challenge to validity of certificate - Whether dealings in contravention of ss. 17(1) and 64(1) Sabah Land Ordinance

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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 723	Price Control And Anti-Profiteering Act 2011	1 April 2011 [PU(B) 146/2011]	- Nil -
ACT 724	National Visual Arts Development Board Act 2011	Not Yet In Force	- Nil -
ACT 725	Renewable Energy Act 2011	Not Yet In Force	- Nil -
ACT 726	Sustainable Energy Development Authority Act 2011	Not Yet In Force	- Nil -
ACT 727	Food Analysts Act 2011	Not Yet In Force	- Nil -