Legal Network Series

[2009] 1 LNS 1812	OSK CAPITAL SDN BHD v. CHAN WAH LONG	CIVIL PROCEDURE: Summary judgment - Appeal against judgment in plaintiff's favour - Action to recover monies loaned - Whether triable issues raised in appeal - Whether defendant had a defence to the plaintiff's claim CONTRACT: Interest - Construction - S. 8.03 of the facility agreement required plaintiff to give notice of variation of interest rate - Clause 6 of letter of offer silent on such obligation - Whether any inconsistency between these two provisions - Notice of variation of interest rate - Absence of any proof of posting by plaintiff of the notice of variation - Variation to reduce interest rate - Whether absence of notice rendered variation bad - Whether reduction of interest rate benefited defendant - Whether plaintiff barred from claiming lesser interest CONTRACT: Interest - Imposition of default interest - Defendant agreed to pay interest at 18% per annum and late payment interest at additional 2.0% per annum - Whether such interest constituted a penalty, was excessive, unconscionable and irrecoverable under s. 75 of the Contracts Act 1950 - Whether the 12% interest claimed in the O. 14 application was exorbitant and a penalty within s. 75 of the Contracts Act 1950
[2009] 1 LNS 1820	SCANDINAVIAN BUNKERING (SINGAPORE) PTE LTD v. MISC BERHAD	CIVIL PROCEDURE: Summary judgment - Application for - Construction of contract - Defendant's entitlement to carry forward unutilized Marine Fuel Oil (MFO) under bunkering contract (BC) from October to November 2008 at the Meant Platt Bunkerwire price as opposed to the tendered and contracted price of USD 559.80/mt - Whether BC entered into between the parties was intended to be a fixed term, fixed quantity and fixed price contract for the supply of MFO to defendant - Whether nature of the contract not based merely on label attached to heading - Whether borne out by the totality of the terms stated in the Bid Documents and letter of award CIVIL PROCEDURE: Summary judgment - Application for - Triable issues - Whether any triable issues existed on liability that should go for trial - Whether a suitable case to grant summary judgment to plaintiff CONTRACT: Construction of terms of contract - Whether clause 3.3 of Part II of the Bid Documents applied to the bunkering contract to entitle defendant to carry forward unutilized Marine Fuel Oil from October to November 2008 at the market price as opposed to the tendered and contracted price of USD 559.80/mt - Whether clause 3.3 was intended to apply to a fixed term, fixed quantity and fixed price contract CONTRACT: Breach - Termination - Whether there was a breach of contract by defendant when it purported to carry forward the unutilized quantities under two orders for delivery at the market rate contrary to the express terms of the bunkering contract - Whether defendant's termination of the bunkering contract wrongful
[2010] 1 LNS 1900	CHOO AH BENG v. HONG LEONG FINANCE BHD	TORT: Malicious prosecution - Institution of suit by defendant against plaintiff for RM963,939.55 due and owing by plaintiff to defendant as at 22 January 1997 - Summary judgment entered without deducting proceeds of sale from public auction of plaintiff's machinery - Whether constituted an abuse of the legal process that came within malicious prosecution - Whether any ulterior purpose to harm the plaintiff or any ill-will and improper motive shown TORT: Malicious prosecution - Absence of particulars of malice and lack of reason or probable cause - Presentation of bankruptcy notice against plaintiff upon the summary judgment of RM963,939.55 as at 22 January 1997 - Whether the auction sum of RM600,000.00 on 20.4.1999 was taken into account and deducted - Whether any unfair use of power or abuse of legal process - Whether any malicious prosecution by defendant against plaintiff in respect of bankruptcy notice taken out by defendant CIVIL PROCEDURE: Summary judgment - Judgment entered - For "RM963,939.55 as at 22 January 1997" - No dispute or denial by plaintiff that such sum actually due and owing as at the relevant date - Whether any irregularity or impropriety in the judgment being so worded
[2012] 1 LNS 8	VIJAYA KUMARAN KUTTY KRISHNAN NAIR v. CHEN SIEW MAN & ANOR	CONTRACT: Breach - Claim for services rendered - Whether plaintiff could rely on the appointment letter to claim for unpaid salary - Whether plaintiff proved he was entitled to an unpaid salary of RM306,000.00 - Whether plaintiff proved he was entitled to a fee of RM350,000.00 for services rendered to the defendants - Whether plaintiff did carry out works as requested or instructed by 1st defendant - Whether those works were meant to be given free of charge or without any payment - Whether plaintiff should be repaid for whatever sum he had spent on the project CONTRACT: Quantum meruit - Contract for services - Whether plaintiff did carry out work for 1st defendant in trying to get a buyer for the product - Absence of any agreement on fixed amount of allowance or fees to be paid to plaintiff - Whether plaintiff entitled to claim for payment for work he had done - Services rendered - Whether defendants had acknowledged receiving benefit from the services rendered by plaintiff - Whether plaintiff entitled to damages based on quantum meruit
[2012] 1 LNS 19	DERAWAN SDN BHD v. THE SUPERINTENDENT, LANDS AND SURVEYS, BINTULU DIVISION, BINTULU, SARAWAK	LAND LAW: Acquisition of land - Award - Compensation - Contention by Objectors that awards were inadequate - Prima facie case - Whether Objectors satisfied the burden of proof in establishing Awards were inadequate and that the valuation reports could not be relied on - Whether Objectors satisfied the burden of proof that respondent's Awards were flawed by taking into account irrelevant considerations and omitting relevant considerations LAND LAW: Acquisition of land - Award - Compensation - Provisional lease (PL) - Entitlement of PL Holder - Failure to include land value of the subject land of LR2 and LR3 (a) and (b) which were all held under PLs in their respective Awards - Compulsory acquisition of a part of a PL Land after issue of the PL - Whether the Objectors in LR2 and LR3 (a) were entitled to be compensated for the compulsory acquisition of their PL Land made post PL - Whether respondent was correct in not awarding any compensation for the land value for the LR3 (b) PL to the LR3 (b) Objector based on Special Condition (i) (d) LAND LAW: Acquisition of land - Market value - Question of what was fair market value of each of the subject land as at 30 November 2006 - Whether comparables sales method a more appropriate method of land valuation than the investment method - Whether market value of the subject land should be revised CONTRACT: Construction - Special Condition (i)(d) - "upon completion of survey" - Whether meant that post Provisional lease (PL) acquisition could be used to excise any part of the PL Land to make it unavailable provided done before final survey completed for the issue of the Lease - Whether meant that no compensation would be payable for the PL Land which was made unavailable by such excision through the post PL gazette notification made before completion of the survey

CLJ 2013 Volume 5 (Part 8)

COURT

FEDERAL COURT

Datuk M Kayveas v. See Hong Chen & Sons Sdn Bhd & Ors
Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar, Ahmad Maarop, Jeffrey Tan FCJJ
(Civil Procedure; Trusts - Breach of trust - Bare and constructive trust - Whether conduct unconscionable) [2013] 5 CLJ 949 [FC]

COURT OF APPEAL

Mohd Nahar Abu Bakar v. PP
Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Criminal Law; Evidence - Conduct and reaction of accused - Conflicting testimony - Identification parade) [2013] 5 CLJ 977 [CA]

HIGH COURT

Dongguan Elop Metal Product Company Ltd v. Rokonma (M) Sdn Bhd
Yeoh Wee Siam J
(Civil Procedure - Stay of execution - Consent judgment - Special circumstances) [2013] 5 CLJ 995 [HC]

Ho Nim Tsin v. The Director Of Land And Survey Department & Anor
Ravinthran Paramaguru J
(Civil Procedure; Land Law; Limitation - Disposal of action without trial - Acquisition of land - Whether action time barred) [2013] 5 CLJ 1004 [HC]

Moses Bartholomew v. Sivanesan Achalingam & Ors
Hamid Sultan Abu Backer J
(Civil Procedure; Tort - Defamation - Damages - Striking out claim - Whether justified) [2013] 5 CLJ 1013 [HC]

PP v. Pathmanabhan Nalliannen & Ors
Akhtar Tahir J
(Criminal Law; Criminal Procedure - Common intention - Diversity of evidence - Testimony by more than one accused) [2013] 5 CLJ 1025 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Appeal - Appeal to Court of Appeal - Interference with part of judgment of High Court not forming subject of appeal - Whether unjustified - Attributing to High Court's finding of fact which did not exist in grounds of judgment - Whether injustice caused to appellant - Whether appeal to be allowed
Datuk M Kayveas v. See Hong Chen & Sons Sdn Bhd & Ors
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar, Ahmad Maarop, Jeffrey Tan FCJJ) [2013] 5 CLJ 949 [FC]

Disposal of action without trial - Disposal of case on point of law - Action against public authorities - Declaration that compulsory acquisition of land was unlawful - Whether action time barred - Whether action ought to be dismissed - Public Authorities Protection Act 1948, s. 2 - Rules of the High Court 1980, O. 33 rr. 2 & 5
Ho Nim Tsin v. The Director Of Land And Survey Department & Anor
(Ravinthran Paramaguru J) [2013] 5 CLJ 1004 [HC]

Stay of execution - Consent judgment - Application to stay consent monetary judgment - Whether special circumstances shown - Filing of summons to set aside consent judgment - Whether a ground to grant stay - Application for plaintiff to deposit security for costs - Whether perverse and mischievous - Rules of Court 2012, O. 42 r. 13
Dongguan Elop Metal Product Company Ltd v. Rokonma (M) Sdn Bhd
(Yeoh Wee Siam J) [2013] 5 CLJ 995 [HC]

Striking out - Application for - Plaintiff seeking damages for alleged libel - Whether frivolous - Whether impugned article or statements directed against plaintiff - Whether words complained of were defamatory of plaintiff - Whether an abuse of court process - Whether there was justification to strike out plaintiff's case - Jameel v. Dow Jones & Co Inc
Moses Bartholomew v. Sivanesan Achalingam & Ors
(Hamid Sultan Abu Backer J) [2013] 5 CLJ 1013 [HC]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Common intention - Whether established - Whether combination of surrounding circumstances proved ingredients of offence - Diversity of evidence - Whether part of evidence consistent with prosecution's evidence - Whether defence raised reasonable doubt on prosecution's case
PP v. Pathmanabhan Nalliannen & Ors
(Akhtar Tahir J) [2013] 5 CLJ 1025 [HC]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Interested witness - Whether evidence to be viewed with suspicion - Facts and circumstances of case - Whether linked accused to murder - Whether accused person's conduct admissible under s. 8(2) Evidence Act 1950 - Whether accused knew that act of stabbing would cause death - Whether defence an afterthought - Whether witness credible despite not being able to identify accused during identification parade - Whether reasonable doubt arose in prosecution's case
Mohd Nahar Abu Bakar v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 5 CLJ 977 [CA]

CRIMINAL PROCEDURE

Accused - Testimony by more than one accused - Diversity of evidence between accused persons - Whether part of evidence consistent with prosecution's evidence - Whether prosecution confined to parameters of opening statement when leading evidence - Criminal Procedure Code, s. 179(1)
PP v. Pathmanabhan Nalliannen & Ors
(Akhtar Tahir J) [2013] 5 CLJ 1025 [HC]

Prosecution - Undertaking - Whether High Court bound by prosecution's undertaking not to use record of lower court proceedings as evidence - Whether record of lower court proceedings admissible in High Court to show witness was lying - Whether lower court's record corroborated guilt of accused - Evidence Act 1950, s. 11|
PP v. Pathmanabhan Nalliannen & Ors
(Akhtar Tahir J) [2013] 5 CLJ 1025 [HC]

EVIDENCE

Conflicting testimony - Findings of fact of trial judge - Contradicting scenario with regards to defence - Failure to confront factual assertions to prosecution witnesses - Whether defence an afterthought - Whether trial judge made correct findings
Mohd Nahar Abu Bakar v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 5 CLJ 977 [CA]

Identification parade - Failure of witness to identify accused - Identification parade held six years after attack - Whether a factor to consider - Whether identification can be by way of circumstantial evidence - Whether accused stranger to witness - Whether witness's evidence together with other evidence connected accused to crime - Whether witness concocted version of events
Mohd Nahar Abu Bakar v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 5 CLJ 977 [CA]

Relevancy - Conduct and reaction of accused - Whether proved nexus and linked accused to crime - Whether justified necessity for explanation - Whether conduct and reaction challenged during cross-examination - Evidence Act 1950, ss. 8(2) & 9
Mohd Nahar Abu Bakar v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 5 CLJ 977 [CA]

LAND LAW

Acquisition of land - Compulsory acquisition - Declaration that compulsory acquisition of land was unlawful - Land not used for purpose specified for acquisition - Whether there was continuance of injury or damage - Whether action time barred - Public Authorities Protection Act 1948, s. 2
Ho Nim Tsin v. The Director Of Land And Survey Department & Anor
(Ravinthran Paramaguru J) [2013] 5 CLJ 1004 [HC]

LIMITATION

Public Authorities Protection Act - Action against public authorities - Declaration that compulsory acquisition of land was unlawful - Land not used for purpose specified for acquisition - Whether there was continuance of injury or damage - Whether action time barred - Public Authorities Protection Act 1948, s. 2
Ho Nim Tsin v. The Director Of Land And Survey Department & Anor
(Ravinthran Paramaguru J) [2013] 5 CLJ 1004 [HC]

TORT

Defamation - Damages - Exorbitant and unprecedented quantum - Whether justified - Whether publication lacked elements of tort - Whether words complained of were defamatory of plaintiff - Whether an abuse of court process - Striking out claim - Whether justified
Moses Bartholomew v. Sivanesan Achalingam & Ors
(Hamid Sultan Abu Backer J) [2013] 5 CLJ 1013 [HC]

TRUSTS

Breach of trust - Bare and constructive trust - Holding of company shares on trust until loan paid in full - Trustee disposing of shares to third party before full payment made - Whether trustee in breach of trust - Whether conduct unconscionable - Whether constructive trust created when shares transferred out to third party
Datuk M Kayveas v. See Hong Chen & Sons Sdn Bhd & Ors
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Suriyadi Halim Omar, Ahmad Maarop, Jeffrey Tan FCJJ) [2013] 5 CLJ 949 [FC]