Bulletin_36

CLJ Bulletin, Issue 2011, Vol 36

16 September 2011

CLJ Law Malaysia

http://www.cljlaw.com

Introduction:
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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 8) 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 27 August 2011 [PU(B) 463/2011] - Nil -

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

ACT 726 Sustainable Energy Development Authority Act 2011 1 September 2011 [PU(B) 495/2011] - 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 A1311 Local Government (Amendment) Act 2007 1 September 2011 [PU(B) 491/2011] ACT 171

ACT A1312 Street, Drainage and Building (Amendment) Act 2007 1 September 2011 [PU(B) 492/2011] ACT 133

ACT A1313 Town And Country Planning (Amendment) Act 2007 1 September 2011 [PU(B) 493/2011] ACT 172

ACT A1398 Co-Operative College (Incorporation) (Amendment) Act 2011 1 September 2011 [PU(B) 494/2011] ACT 437

ACT A1399 Malaysian Industrial Development Authority (Incorporation) (Amendment) Act 2011 Not Yet In Force ACT 397

ACT A1400 Promotion Of Investments (Amendment) Act 2011 Not Yet In Force ACT 327

ACT A1401 Judges Remuneration (Amendment) Act 2011 Not Yet In Force ACT 45

ACT A1402 Petroleum (Income Tax) (Amendment) Act 2011 30 November 2010 ACT 543

ACT A1403 Securities Commission (Amendment) Act 2011 Not Yet In Force ACT 498

ACT A1404 Valuers, Appraisers And Estate Agents (Amendment) Act 2011 Not Yet In Force ACT 242

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(A) 293/2011 National Speed Limit (Amendment) (No 4) Order 2011 22 August 2011 ACT 333

PU(A) 294/2011 Factories And Machinery (Exemption To Petronas Methanol Labuan Sdn Bhd, Federal Territory Of Labuan) Order 2011 23 August 2011 ACT 139

PU(A) 295/2011 National Heritage (Declaration Of National Heritage) (Historical Object) Order 2011 24 August 2011 ACT 645

PU(A) 296/2011 National Heritage (Declaration Of National Heritage) (Historical Object) (No 2) Order 2011 24 August 2011 ACT 645

PU(A) 297/2011 National Heritage (Declaration Of National Heritage) (Historical Object) (No 3) Order 2011 24 August 2011 ACT 645

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(B) 491/2011 Appointment Of Date Of Coming Into Operation 26 August 2011 ACT A1311

PU(B) 492/2011 Appointment Of Date Of Coming Into Operation 26 August 2011 ACT A1312

PU(B) 493/2011 Appointment Of Date Of Coming Into Operation 26 August 2011 ACT A1313

PU(B) 494/2011 Appointment Of Date Of Coming Into Operation 26 August 2011 ACT A1398

PU(B) 495/2011 Appointment Of Date Of Coming Into Operation 26 August 2011 ACT 726

2. Articles

a) Legal Network Series Articles

1. Perspectives On Court-Annexed Mediation In The Philippines* ^{[Read
excerpt]}
By Eduardo De Los Angeles**, Philippine Mediation Center Office, Philippines

2. Social Media Risks ^{[Read excerpt]}
By Gianna Di Stefano, PII Risk Manager, Law Claims*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 759 [HC] Lee Keen Yong v. Superintendent Of Lands And Surveys Betong Division

LAND LAW: Acquisition of land - Compulsory acquisition - Compensation - Amount considered inadequate by objector - Whether Objector had discharged burden of proving compensation was inadequate

LAND LAW: Acquisition of land - Compensation - Valuation of land - Comparison method - Amount of compensation awarded totally disregarded planning approval given for land - Whether an upward adjustment warranted

[2009] 1 LNS 761 [HC] Kuek Soon Khiong v. Hock Seng Lee Construction Sdn Bhd

CONTRACT: Oral agreement - Existence of oral agreement - Oral agreement purportedly made between parties before execution of subcontract agreement and advance paid to defendant there under - Whether the existence of oral agreement and payment of advance established by plaintiff

EVIDENCE: Adverse inference - Evidence Act 1950, s. 114 (g) - Failure of plaintiff to testify - PW1's testimony unsubstantiated bare allegations - Whether adverse inference could be drawn

CONTRACT: Breach - Damages - Breaches by both parties to subcontract agreement - Proof of damages - Whether plaintiff and/or defendant established their respective damages on a balance of probabilities

[2010] 1 LNS 413 [HC] Projek Tiara (M) Sdn Bhd v. Ferliex D Stanislaus & Ors

CONTRACT: Damages - Liquidated damages - Whether plaintiff allowed to claim damages over and above agreed liquidated damages - Economic crisis, whether falls within meaning of 'other causes beyond developer's control' - Finality of certificate, whether court entitled to look into circumstances behind issuance of certificate

[2010] 1 LNS 432 [HC] Fish & Co Restaurants Pte Ltd v. Revenue Valley Sdn Bhd & Ors

CONTRACT: Damages - Assessment of - Causation, whether defendant's breach of undertakings caused plaintiff's loss - Whether breach must be exclusive cause of loss - Immediate and proximate cause - Period of breach - Compensatory damages - Forensic accounting - Computation - Plaintiff's loss of sales revenue or whether multiplying revenue earned by defendant because of breach - Costs, claim for on indemnity basis under consent judgment - Reasonableness - Contracts Act 1950, s. 74

CONTRACT: Restraint of trade - Consent judgment - To comply with undertakings in settlement deed - Undertakings by defendant/ex-employee not to use plaintiff/ex-employer's trade secrets/recipes - Assessment of damages - Causation - Period of breach - Forensic accounting - Indemnity as to costs under consent judgment

CIVIL PROCEDURE: Costs - Agreement to indemnify - Defendant agreeing to indemnify plaintiff for costs under consent judgment - Whether a matter of interpreting terms of agreement or still subject to judicial discretion and proof - Costs prepared and taxed between solicitor and client - Reasonably incurred - Scale of costs, party and party or solicitor and client - Deduction for overlap - Cost of engaging expert witness - Rules of the High Court 1980, O. 59 rr. 27(2), 28

[2010] 1 LNS 636 [HC] Colliers International Property Consultants (USA) & Anor v. Colliers Jordan Lee And Jaafar (Malaysia)

ARBITRATION: Award - Registration - Appeal to Court of Appeal against decision of High Court registering foreign award - Application for stay of High Court decision - Special circumstances, whether present - Nugatory effect - Whether plaintiff should be denied fruits of its litigation - Substantial losses on part of defendant if stay not granted - Inability of defendant to use trademark pending appeal - Balance of convenience

CIVIL PROCEDURE: Execution - Stay - Appeal to Court of Appeal against decision of High Court registering foreign arbitral award - Application for stay of High Court decision - Special circumstances, whether present - Nugatory effect - Whether plaintiff should be denied fruits of its litigation - Substantial losses on part of defendant if stay not granted - Inability of defendant to use trademark pending appeal - Balance of convenience

CITATION	TITLE	SUBJECT
[2009] 1 LNS 759 [HC]	Lee Keen Yong v. Superintendent Of Lands And Surveys Betong Division	LAND LAW: Acquisition of land - Compulsory acquisition - Compensation - Amount considered inadequate by objector - Whether Objector had discharged burden of proving compensation was inadequate LAND LAW: Acquisition of land - Compensation - Valuation of land - Comparison method - Amount of compensation awarded totally disregarded planning approval given for land - Whether an upward adjustment warranted
[2009] 1 LNS 761 [HC]	Kuek Soon Khiong v. Hock Seng Lee Construction Sdn Bhd	CONTRACT: Oral agreement - Existence of oral agreement - Oral agreement purportedly made between parties before execution of subcontract agreement and advance paid to defendant there under - Whether the existence of oral agreement and payment of advance established by plaintiff EVIDENCE: Adverse inference - Evidence Act 1950, s. 114 (g) - Failure of plaintiff to testify - PW1's testimony unsubstantiated bare allegations - Whether adverse inference could be drawn CONTRACT: Breach - Damages - Breaches by both parties to subcontract agreement - Proof of damages - Whether plaintiff and/or defendant established their respective damages on a balance of probabilities
[2010] 1 LNS 413 [HC]	Projek Tiara (M) Sdn Bhd v. Ferliex D Stanislaus & Ors	CONTRACT: Damages - Liquidated damages - Whether plaintiff allowed to claim damages over and above agreed liquidated damages - Economic crisis, whether falls within meaning of 'other causes beyond developer's control' - Finality of certificate, whether court entitled to look into circumstances behind issuance of certificate
[2010] 1 LNS 432 [HC]	Fish & Co Restaurants Pte Ltd v. Revenue Valley Sdn Bhd & Ors	CONTRACT: Damages - Assessment of - Causation, whether defendant's breach of undertakings caused plaintiff's loss - Whether breach must be exclusive cause of loss - Immediate and proximate cause - Period of breach - Compensatory damages - Forensic accounting - Computation - Plaintiff's loss of sales revenue or whether multiplying revenue earned by defendant because of breach - Costs, claim for on indemnity basis under consent judgment - Reasonableness - Contracts Act 1950, s. 74 CONTRACT: Restraint of trade - Consent judgment - To comply with undertakings in settlement deed - Undertakings by defendant/ex-employee not to use plaintiff/ex-employer's trade secrets/recipes - Assessment of damages - Causation - Period of breach - Forensic accounting - Indemnity as to costs under consent judgment CIVIL PROCEDURE: Costs - Agreement to indemnify - Defendant agreeing to indemnify plaintiff for costs under consent judgment - Whether a matter of interpreting terms of agreement or still subject to judicial discretion and proof - Costs prepared and taxed between solicitor and client - Reasonably incurred - Scale of costs, party and party or solicitor and client - Deduction for overlap - Cost of engaging expert witness - Rules of the High Court 1980, O. 59 rr. 27(2), 28
[2010] 1 LNS 636 [HC]	Colliers International Property Consultants (USA) & Anor v. Colliers Jordan Lee And Jaafar (Malaysia)	ARBITRATION: Award - Registration - Appeal to Court of Appeal against decision of High Court registering foreign award - Application for stay of High Court decision - Special circumstances, whether present - Nugatory effect - Whether plaintiff should be denied fruits of its litigation - Substantial losses on part of defendant if stay not granted - Inability of defendant to use trademark pending appeal - Balance of convenience CIVIL PROCEDURE: Execution - Stay - Appeal to Court of Appeal against decision of High Court registering foreign arbitral award - Application for stay of High Court decision - Special circumstances, whether present - Nugatory effect - Whether plaintiff should be denied fruits of its litigation - Substantial losses on part of defendant if stay not granted - Inability of defendant to use trademark pending appeal - Balance of convenience

b. CLJ Volume 6 (Part 8) 2011

COURT

FEDERAL COURT

Muklis Jafar lwn. PP
Richard Malanjum HB (Sabah & Sarawak), Hashim Yusoff, Zulkefli Makinudin HHMP
(Prosedur Jenayah - Rayuan - Sabitan, terhadap - Sabitan pengedaran dadah berbahaya) [2011] 6 CLJ 849 [FC]

HIGH COURT

Dato' Shazryl Eskay Abdullah v. Merong Mahawangsa Sdn Bhd & Anor (No 3)
VT Singham J
(Contract - Illegality - Public policy - Claim for remuneration) [2011] 6 CLJ 858 [HC]

Kinyo Coating (M) Sdn Bhd v. ICI Paints (Malaysia) Sdn Bhd & Anor
Vazeer Alam Mydin Meera JC
(Civil Procedure; Tort - Striking out - Pleadings - Defamation - Absolute privilege) [2011] 6 CLJ 911 [HC]

Sundra Rajoo v. Mohamed Abd Majed & Anor
Hamid Sultan Abu Backer J
(Arbitration - Arbitrator - Removal of - Application for) [2011] 6 CLJ 923 [HC]

Tan Mooi Sim & Anor v. United Overseas Bank (Malaysia) Bhd & Anor
Hanipah Farikullah JC
(Insurance - Duty of disclosure - Fraud) [2011] 6 CLJ 937 [HC]

Thein Hong Teck & Ors v. TRA Mining (Malaysia) Sdn Bhd & Ors
Hamid Sultan Abu Backer J
(Company Law; Civil Procedure; Words & Phrases - Winding up - Setting aside - Application for - "Partnership" - Companies Act 1965, s. 314) [2011] 6 CLJ 953 [HC]

SUBJECT INDEX

ARBITRATION

Arbitrator - Removal of - Application for - Application for removal of arbitrator by co-arbitrator - Partiality and biasness - Locus standi of applicant/arbitrator - Arbitrator's duty to disclose past and present appointments with claimant - Jurisdiction of court to intervene - Arbitration Act 2005, ss. 8, 14
Sundra Rajoo v. Mohamed Abd Majed & Anor
(Hamid Sultan Abu Backer J) [2011] 6 CLJ 923 [HC]

CIVIL PROCEDURE

Pleadings - Sufficiency of - Defamation - Whether pleadings defective - Whether plaintiff provided sufficient details of publication - Plaintiff did not point out defamatory statements in publication - Whether sufficient - Whether identity of publishee pleaded - Rules of the High Court 1980, O. 18 r. 12 - Whether writ was properly endorsed - Rules of the High Court 1980, O. 78 r. 2
Kinyo Coating (M) Sdn Bhd v. ICI Paints (Malaysia) Sdn Bhd & Anor
(Vazeer Alam Mydin Meera JC) [2011] 6 CLJ 911 [HC]

Setting aside - Application for - Application to set aside order of winding up granted by the court - Whether a 'partnership firm' registered in the business registry could be a subject matter of a winding up order pursuant to s. 314 Companies Act 1965 - Whether winding up order a nullity ab initio and should be set aside - Whether court has jurisdiction to set aside order of concurrent jurisdiction
Thein Hong Teck & Ors v. TRA Mining (Malaysia) Sdn Bhd & Ors
(Hamid Sultan Abu Backer J) [2011] 6 CLJ 953 [HC]

Striking out - Pleadings - Whether details of defamatory report pleaded - Whether identity of publishee pleaded - Whether regurgitating entire report in pleadings sufficient - Whether report was absolute privilege
Kinyo Coating (M) Sdn Bhd v. ICI Paints (Malaysia) Sdn Bhd & Anor
(Vazeer Alam Mydin Meera JC) [2011] 6 CLJ 911 [HC]

COMPANY LAW

Winding up - Setting aside - Application to set aside order of winding up granted by the court - Whether a 'partnership firm' registered in the business registry could be a subject matter of a winding up order pursuant to s. 314 Companies Act 1965 - Whether winding up order a nullity ab initio and should be set aside - Whether court has jurisdiction to set aside order of concurrent jurisdiction
Thein Hong Teck & Ors v. TRA Mining (Malaysia) Sdn Bhd & Ors
(Hamid Sultan Abu Backer J) [2011] 6 CLJ 953 [HC]

CONTRACT

Illegality - Opposed to public policy - Plaintiff assisting defendants in obtaining a government project through the plaintiff's political and government influence - Whether agreement to pay for plaintiff's services opposed to public policy and consequently illegal - Whether consideration and object of agreement was inimical or tainted with illegality or harmful to public welfare - Bare assertion agreement opposed to public policy - Whether insufficient - Contracts Act 1950 s. 24(e)
Dato' Shazryl Eskay Abdullah v. Merong Mahawangsa Sdn Bhd & Anor (No 3)
(VT Singham J) [2011] 6 CLJ 858 [HC]

Privity - Letter of undertaking - Whether letter of undertaking signed by director of company also signed on director's personal behalf - Whether director could disclaim liability on his personal capacity
Dato' Shazryl Eskay Abdullah v. Merong Mahawangsa Sdn Bhd & Anor (No 3)
(VT Singham J) [2011] 6 CLJ 858 [HC]

Terms - Construction of - Entire Agreement Clause - Scope and nature of - Defendants issuing letter of undertaking to remunerate plaintiff for services rendered - Whether letter of undertaking when read in its entirety prevented plaintiff from claiming remuneration
Dato' Shazryl Eskay Abdullah v. Merong Mahawangsa Sdn Bhd & Anor (No 3)
(VT Singham J) [2011] 6 CLJ 858 [HC]

INSURANCE

Duty of disclosure - Fraud - Insurance policy taken by deceased - Administrators of deceased estate claiming secured sum under policy - Deceased did not disclose material facts - Whether defendant could repudiate liability based on such non-disclosure - Whether provision of s. 147(4) Insurance Act 1996 applicable - Whether defendant had to prove fraud by deceased - Whether fraud proved beyond reasonable doubt - Deceased not well versed in English language - Whether deceased understood contents of insurance policy form - Whether questions posed to deceased ambiguous
Tan Mooi Sim & Anor v. United Overseas Bank (Malaysia) Bhd & Anor
(Hanipah Farikullah JC) [2011] 6 CLJ 937 [HC]

TORT

Defamation - Absolute privilege - Whether publication of report protected under s. 11 Defamation Act 1957 - Whether report attracted absolute privilege under common law
Kinyo Coating (M) Sdn Bhd v. ICI Paints (Malaysia) Sdn Bhd & Anor
(Vazeer Alam Mydin Meera JC) [2011] 6 CLJ 911 [HC]

WORDS & PHRASES

"Partnership" - Companies Act 1965, s. 314 - Wording of - Whether provided for 'partnership' per se to be treated as unregistered company - Whether court must endeavour to give significance to every word in an enactment
Thein Hong Teck & Ors v. TRA Mining (Malaysia) Sdn Bhd & Ors
(Hamid Sultan Abu Backer J) [2011] 6 CLJ 953 [HC]

INDEKS PERKARA

PROSEDUR JENAYAH

Rayuan - Sabitan, terhadap - Sabitan pengedaran dadah berbahaya - Rantaian keterangan - Sama ada terputus - Pengecaman dadah - Sama ada terdapat kekeliruan - Sama ada terdapat jumlah berat dadah yang berbeza - Sama ada kes pendakwaan terjejas - Sama ada ketidakadilan berlaku - Sama ada rayuan ditolak
Muklis Jafar lwn. PP
(Richard Malanjum HB (Sabah & Sarawak), Hashim Yusoff, Zulkefli Makinudin HHMP) [2011] 6 CLJ 849 [FC]

CASE OF THE WEEK

ABDUL AZIZ LELA v. PP

CRIMINAL LAW: Penal Code - Section 302 - Murder - Deceased assaulted and burned to death - Circumstantial evidence - Proof by way of DNA profiling of specimen - Poor handling of exhibits and specimen by investigating team - Uncertainty as to who packed and marked exhibits - Whether integrity of specimen and exhibits fatally compromised - Whether there was a break in the chain of evidence - Whether no prima facie case made out against appellant

EVIDENCE: Circumstantial evidence - Murder - Chain of evidence - DNA profiling of blood samples and cigarette butts - Swabs of specimen not properly collected and preserved - No evidence adduced as to who packed, restored and sent butts to chemist - Whether there was a break in the chain of evidence - Whether integrity of specimen and exhibits fatally compromised - Whether no prima facie case made out against appellant

CLJ Bulletin
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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	27 August 2011 [PU(B) 463/2011]	- Nil -
ACT 725	Renewable Energy Act 2011	Not Yet In Force	- Nil -
ACT 726	Sustainable Energy Development Authority Act 2011	1 September 2011 [PU(B) 495/2011]	- Nil -
ACT 727	Food Analysts Act 2011	Not Yet In Force	- Nil -