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CLJ Bulletin, Issue 2013, Vol 36 06 September 2013 Print this page 
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New This Week
1. Cases Of The Week
a) DREAM PROPERTY SDN BHD v. ATLAS HOUSING SDN BHD
b) SERAC ASIA SDN BHD v. SEPAKAT INSURANCE BROKERS SDN BHD
c) PP lwn. MOHD ZAIDI MOHD RADZI & SATU LAGI [2013] 1 SMC 268
2. Latest Cases
3. Articles
4. Legislation Highlights
c) PU(A)
d) PU(B)
DREAM PROPERTY SDN BHD v. ATLAS HOUSING SDN BHD
COURT OF APPEAL, PUTRAJAYA
ABU SAMAH NORDIN JCA, ANANTHAM KASINATHER JCA, MOHAMAD ARIFF YUSOF JCA
[CIVIL APPEAL NO: J-02-3018-12-2011]
14 MAY 2013
CONTRACT: Breach - Compensation - Obligation of person enjoying benefit of non-gratuitous act - Whether purchaser in breach of sale of purchase agreement may nevertheless claim costs of improvements done on land from vendor - Whether purchaser liable to pay vendor for use and occupation of land - Unjust enrichment - Pre-conditions for right of compensation - Contracts Act 1950, s. 71
CONTRACT: Breach - Remedies - Sale and purchase agreement - Agreement terminated due to purchaser's failure to pay balance purchase price - Purchaser let into possession of land before completion - Whether vendor entitled to terminate agreement, forfeit deposit and recover vacant possession of land - Whether purchaser liable to pay vendor for use and occupation of land
CONTRACT: Breach - Repudiatory breach - Effect of repudiatory breach - Whether innocent party entitled to treat contract as terminated - Test for determining whether repudiatory breach accepted by innocent party
CONTRACT: Breach - Sale and purchase agreement - Purchaser failing to pay balance purchase price within completion date - Time of essence - Whether repudiatory breach - Whether vendor entitled to terminate agreement, forfeit deposit and recover vacant possession of land - Purchaser let into possession of land before completion - Whether purchaser liable to pay vendor for use and occupation of land - Whether purchaser may claim cost of improvements done on land from vendor - Contracts Act 1950, s. 71
CONTRACT: Interpretation - Principles in interpretation of terms - Reasonableness and commerciality
SERAC ASIA SDN BHD v. SEPAKAT INSURANCE BROKERS SDN BHD
FEDERAL COURT, PUTRAJAYA
RAUS SHARIF PCA, RICHARD MALANJUM CJ (SABAH & SARAWAK), ABDULL HAMID EMBONG FCJ, ZALEHA ZAHARI FCJ, ZAINUN ALI FCJ
[CIVIL APPEAL NO: 02(i)-60-08-2012(W)]
27 JUNE 2013
CIVIL PROCEDURE: Appeal - Law, question of - Party seeking to impeach judgment on allegation of fraud - Whether judgment regularly obtained - Whether judgment could be struck out ex debito justitiae only in exceptional circumstances - Whether court functus officio once regularly obtained judgment perfected - Whether impeachment of judgment could be made vide affidavit evidence - Whether party seeking to impeach on fraud must file fresh action
CIVIL PROCEDURE: Striking out - Application for - Party seeking to impeach judgment on allegation of fraud - Whether court was functus officio in relation to judgment - Whether impeachment of judgment could be made vide affidavit evidence - Whether party seeking to impeach on fraud must file fresh action
INSURANCE: Insurance broker - Liability under a policy - Claim against professional insurance broker for failure to arrange proper insurance coverage - Whether cause of action arose in contract or tort - Whether insurer broker could be liable under insurance policy - Whether insurance broker owed duty of care to assured
INSURANCE: Insurance broker - Liability under a policy - Insurable interest - Whether assured has insurable interest - Whether insurable interest could be established by ownership, possession or direct relationship to subject matter of insurance - Whether insurable interest need be shown for action under tort of negligence
TORT: Negligence - Professional negligence - Claim against professional insurance broker for failure to arrange proper insurance coverage - Whether cause of action arose in contract or tort - Whether insurer broker could be liable under insurance policy - Whether insurance broker owed duty of care to assured
PP lwn. MOHD ZAIDI MOHD RADZI & SATU LAGI [2013] 1 SMC 268 
MAHKAMAH SESYEN, JOHOR BAHRU
MOHAMAD HALDAR ABDUL AZIZ HS
[KES TANGKAP NO: 61-20-11-2011]
31 DISEMBER 2012
PROSEDUR JENAYAH: Hukuman - Kesetimpalan - Rompakan berkumpulan - Hukuman lapan tahun penjara dan sebatan rotan sebanyak lima kali - Sama ada munasabah dan berpatutan - Sama ada wajar dan adil di sisi undang-undang - Kanun Keseksaan, s. 395
UNDANG-UNDANG JENAYAH: Kanun Keseksaan - Seksyen 395 - Rompakan berkumpulan - Pembelaan tertuduh - Sama ada tidak berasas dan tidak logik - Kegagalan tertuduh mengemukakan notis alibi di bawah s. 402A Kanun Tatacara Jenayah - Keterangan saksi-saksi tertuduh - Sama ada direka semata-mata untuk melindungi tertuduh - Sama ada mahkamah berwaspada dalam menerima keterangan saksi berkepentingan - Sama ada kes dibuktikan melampaui keraguan munasabah - Sama ada hukuman yang dijatuhkan berpatutan
JUDICIAL QUOTES
YONG TENG HING v. WALTON INTERNATIONAL LTD; PENDAFTAR CAP DAGANG, MALAYSIA (INTERESTED PARTY) [2011] 7 CLJ 401
[1] Issue: Whether a tribunal such as the Registrar of Trade Marks is an “Inferior Court” that could be categorised as a “Subordinate Court” pursuant to s. 3 of the Courts of Judicature Act 1964; and whether the High Court when hearing an appeal from such a tribunal is hearing it in its original or appellate jurisdiction.
“The statutory provisions and case laws clearly did not stipulate that the Registrar of Trade Marks was a subordinate court or an inferior court. The general rule was that only the Sessions Courts and the Magistrate’s Courts constituted the subordinate or inferior courts. When the High Court heard appeals from tribunals as appeals from the subordinate courts, the exception to the general rule applied as that approach was taken due to the clear provision dictated in the governing legislation. In the present case, there was no express provision in the Trade Marks Act 1976 stipulating as such. It was also not provided for in s. 3 of the Courts of Judicature Act 1964 that the Registrar of Trade Marks was a subordinate court. There should therefore be no question of the Registrar’s decision coming before the High Court as an appeal similar to a decision of the Sessions Court or the Magistrate’s Court. When the High Court heard an appeal from the decision of the Registrar of Trade Marks under s. 28(5) of the Trade Marks Act 1976, it was exercising its original jurisdiction” per Richard Malanjum CJ (Sabah & Sarawak) in Yong Teng Hing v. Walton International Ltd; Pendaftar Cap Dagang, Malaysia (Interested Party) [2011] 7 CLJ 401.
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Legal Network Series
SIVANESWARA VS NATHAN v. PAN CENTURY EDIBLE OILS SDN BHD & ORS & ANOTHER CASE
CONTRACT: Breach - Breach amounting to repudiation - Whether plaintiff was asked to participate in a kickback arrangement in the company and was given an ultimatum - Whether employer's conduct constituted a repudiation of plaintiff's contract of employment - Whether plaintiff accepted the repudiation
CONTRACT: Employment contract - Breach - Constructive dismissal - Whether plaintiff's employer's conduct amounted to a breach of contract which entitled plaintiff to resign - Whether plaintiff was right in treating himself as constructively dismissed by his employer
TORT: Defamation - Letter stated that plaintiff had been absent from work and was not authorized to handle any transaction on company's behalf - Whether defendants entitled to inform their clients of situation company was facing at that time - Whether letters published by defendants to third parties in the oil palm industry were defamatory against plaintiff - Whether letters merely reflected the state of affairs between plaintiff and the company - Whether defendants successfully raised defence of justification and qualified privilege - Whether any conspiracy on the part of defendants - Whether publication of the letters by defendants was a justifiable act
THREE V MARKETING (M) SDN BHD v. CUN HING TRADING (M) SDN BHD & ORS
INTELLECTUAL PROPERTY: Industrial design - Ownership of the industrial design - Whether plaintiff was the lawful owner of the design shape and configuration of plaintiff's MY03-00515 - Whether plaintiff had the locus standi to sue for infringement
INTELLECTUAL PROPERTY: Industrial design - Infringement of - Plaintiff's MY03-00515 and unlawful interference of trade - Whether plaintiff's MY03-00515 was a method or principle of construction and therefore not an Industrial Design by definition - Whether plaintiff's MY03-00515 was not "new" or unique in its features of shape and configuration - Whether the shape and configuration of plaintiff's MY03-00515 clothes dryer differed from the prior disclosed clothes dryer as depicted in D46, D14, D48 and D55 - Overall similarities existing - Whether plaintiff's MY03-00515 clothes dryer was a variant of clothes dryers commonly found and used in the market - Whether defendants successfully challenged plaintiff's MY03-00515 for lack of newness
ECO USAHA SDN BHD v. AJR SINAR CORPORATION SDN BHD
CONTRACT: Breach - Payment of debt - Money purportedly advanced by plaintiff to defendant in respect of failed joint venture agreement - Whether plaintiff made an advance of RM255,846.40 to the defendant as requested - Defendant claiming advances, if made, were by Masenang Sdn Bhd and not by plaintiff - Whether advances made was a matter between plaintiff and one Lee Thien Fook who had no authority to bind defendant - Whether the use of Masenang Sdn Bhd to make advances to defendant affected plaintiff's claim - Whether implicit that it was plaintiff who had advanced the money - Whether Lee Thien Fook was acting on behalf of defendant - Whether defendant's defence lacked merit
CIVIL PROCEDURE: Trial - Case management - Duty of counsel in case management - Plaintiff's bundle of documents admitted and marked as evidence as to the existence and authenticity only - Defendants counsel did not respond objecting to documents - Objection made on day of the trial - Whether tardiness in the preparation for a trial inexcusable - Whether failure to raise objection to the documents despite ample opportunity to do so amounted to raising no objection to the existence and authenticity of the documents
KURNIA INSURANS (MALAYSIA)BERHAD v. LEE TECK KUIN & ORS
COMPANY LAW: Winding-up - Petition - Insurance company - Plaintiff was defendant's insurer - Whether a winding-up petition under s. 218 could be brought against an insurance company - Whether other situations provided under the different provisions of s. 218 also applied equally to an insurance company - Whether the party who had obtained judgment against the insured could bring winding-up proceedings against the insurance company without having recourse to a recovery action under s. 96 of the Road Transport Act 1987 - Whether the issuance of the s. 218 notice purportedly based on the judgment obtained by defendants was good and enforceable in law as against the plaintiff
COMPANY LAW: Winding up - Insurance company - Solvency of company - Whether plaintiff was ready, willing and able to pay judgment sum to respondent's solicitors as stakeholders - Whether plaintiff was a solvent company
STATUTORY INTERPRETATION: Construction of statutes - Duty of insurer to satisfy judgments against persons insured in respect of third party notice - "subject to this section" in s. 96(1) of the Road Transport Act 1987 - Whether imperative that insurers be given the right to avail itself of the defences provided in the subsection if situation warranted insurer to do so - Whether it gave an automatic right to the party who obtained judgment to enforce that judgment against the insurer - Whether there was any direct judgment against an insurance company in a personal injury claim
AFFIN BANK BERHAD v. SHAHAROM KAMARUDDIN & ORS
ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Finding that 1st and 2nd respondents were terminated without just cause or excuse - Finding that applicant failed to comply with the Business Transfer Agreement and Vesting Order by offering 1st and 2nd respondents terms of employment less favourable to their previous terms and conditions of employment - Whether Industrial Court erred in its finding that applicant unilaterally varied the terms and conditions of employment of the 1st and 2nd respondents when it offered one year contracts contrary to their previous contracts of employment with Affin-ACF - Whether Industrial Court erred in finding that applicant's conduct towards 1st and 2nd respondents was inequitable - Whether Industrial Court took irrelevant factors into consideration and failed to consider relevant factors - Whether Industrial Court's findings were perverse
CIVIL PROCEDURE: Judgments and orders - Vesting order - Breach - "any existing agreement to which AACF was a party to ..." - Whether would include the employment contracts between Affin-ACF and the 1st and 2nd respondents - Whether 1st and 2nd respondents could expect to retire upon attaining the age of 60 years under their previous contracts - Whether by offering one year contracts and refusing to grant any renewal, applicant deprived 1st and 2nd respondents of their right to livelihood which they had expected to enjoy till aged 60 years
CLJ 2013 Volume 6 (Part 5)
COURT
COURT OF APPEAL
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
Abu Samah Nordin, Anantham Kasinather, Mohamad Ariff Yusof JJCA
(Contract - Breach - Compensation - Repudiatory breach) [2013] 6 CLJ 541 [CA]Lim Boon Kiak v. Affin Bank Bhd
Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA
(Bankruptcy; Civil Procedure - Creditor's petition - Service on solicitors - Whether solicitors had authority to accept service ) [2013] 6 CLJ 579 [CA]PP v. Ismail Abd Wahab
Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA
(Civil Procedure - Appeal - Notice of appeal - Whether filed within time) [2013] 6 CLJ 588 [CA]HIGH COURT
Dr Christian Jurgen Kaul & Anor v. Meru Valley Resort Bhd
Lee Swee Seng JC
(Contract - Terms - Implied terms - Deed of mutual covenants) [2013] 6 CLJ 597 [HC]Pelantar Agresif (M) Sdn Bhd v. Projek Lebuhraya Usahasama Bhd; Lembaga Lebuhraya Malaysia (Third Party)
Lau Bee Lan J
(Tort - Trespass to land - Continuing trespass - Claim for reliefs) [2013] 6 CLJ 620 [HC]Sundaresan Ramanathan Chettiar & Anor v. Gopal Krishnan DN Samy
Varghese George J
(Contract - Formation - Concluded contract - Assessment of damages in lieu of order for specific performance) [2013] 6 CLJ 634 [HC]WB Fresh Coconut Supplier Sdn Bhd v. Gan Boon Wah & Anor
Teo Say Eng J
(Trade Marks - Infringement of - Likelihood of deception and confusion) [2013] 6 CLJ 659 [HC]SUBJECT INDEX
BANKRUPTCY
Creditor's petition - Setting aside - Service of - Creditor's petition served on appellant's solicitors - Whether solicitors had authority to accept service of documents - Whether mandatory for creditor's petition to be served personally on judgment debtor - Failure to comply with rr. 109 & 110 Bankruptcy Rules 1969 - Whether fatal or mere irregularity
Lim Boon Kiak v. Affin Bank Bhd
(Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA) [2013] 6 CLJ 579 [CA]CIVIL PROCEDURE
Appeal - Notice of appeal - Whether filed within time - Whether there was application to condone delay - Whether the Rules of the Court of Appeal 1994 must be complied with - Discretion of court to extend time to file notice of appeal - Whether could not be sustained in light of art. 5(1) Federal Constitution - Criminal Procedure Code, s. 307 - Courts of Judicature Act 1964, s. 51
PP v. Ismail Abd Wahab
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 6 CLJ 588 [CA]Judgments and orders - Judgment in default - Setting aside - Application for - Whether there were merits in application to set aside
Lim Boon Kiak v. Affin Bank Bhd
(Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA) [2013] 6 CLJ 579 [CA]CONTRACT
Breach - Compensation - Obligation of person enjoying benefit of non-gratuitous act - Whether purchaser in breach of sale of purchase agreement may nevertheless claim costs of improvements done on land from vendor - Whether purchaser liable to pay vendor for use and occupation of land - Unjust enrichment - Pre-conditions for right of compensation - Contracts Act 1950, s. 71
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Abu Samah Nordin, Anantham Kasinather, Mohamad Ariff Yusof JJCA) [2013] 6 CLJ 541 [CA]Breach - Remedies - Sale and purchase agreement - Agreement terminated due to purchaser's failure to pay balance purchase price - Purchaser let into possession of land before completion - Whether vendor entitled to terminate agreement, forfeit deposit and recover vacant possession of land - Whether purchaser liable to pay vendor for use and occupation of land
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Abu Samah Nordin, Anantham Kasinather, Mohamad Ariff Yusof JJCA) [2013] 6 CLJ 541 [CA]Breach - Repudiatory breach - Effect of repudiatory breach - Whether innocent party entitled to treat contract as terminated - Test for determining whether repudiatory breach accepted by innocent party
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Abu Samah Nordin, Anantham Kasinather, Mohamad Ariff Yusof JJCA) [2013] 6 CLJ 541 [CA]Breach - Sale and purchase agreement - Purchaser failing to pay balance purchase price within completion date - Time of essence - Whether repudiatory breach - Whether vendor entitled to terminate agreement, forfeit deposit and recover vacant possession of land - Purchaser let into possession of land before completion - Whether purchaser liable to pay vendor for use and occupation of land - Whether purchaser may claim cost of improvements done on land from vendor - Contracts Act 1950, s. 71
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Abu Samah Nordin, Anantham Kasinather, Mohamad Ariff Yusof JJCA) [2013] 6 CLJ 541 [CA]Formation - Concluded contract - Whether parties agreed on essential terms, mutual risks and obligations to form valid binding contract - Whether agreement to execute formal contract merely expressed desire on manner transaction agreed upon would be performed - Approach taken in assessing damages payable in lieu of order for specific performance - Specific Relief Act 1950, s. 18
Sundaresan Ramanathan Chettiar & Anor v. Gopal Krishnan DN Samy
(Varghese George J) [2013] 6 CLJ 634 [HC]Interpretation - Principles in interpretation of terms - Reasonableness and commerciality
Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd
(Abu Samah Nordin, Anantham Kasinather, Mohamad Ariff Yusof JJCA) [2013] 6 CLJ 541 [CA]Terms - Implied terms - Deed of mutual covenants - Whether buyer of property in resort-style residential area bound to sign deed of mutual covenants with developer - Whether covenants in agreement between developer and original purchaser bound subsequent purchasers - Whether necessary for orderly communal living and maintenance of common facilities and services - Whether developer could refuse supply of services if deed of mutual covenants not signed
Dr Christian Jurgen Kaul & Anor v. Meru Valley Resort Bhd
(Lee Swee Seng JC) [2013] 6 CLJ 597 [HC]TORT
Trespass to land - Continuing trespass - Claim for reliefs - Unipole erected on plaintiff's land - Whether constituted trespass - Construction of motorcycle lane and concrete dividers - Whether encroached on plaintiff's land - Whether infringed on plaintiff's right as owner - Whether plaintiff given exclusive use and enjoyment of land - National Land Code, s. 44(1) - Whether defendant generated income from trespass - Whether defendant entitled to rely on equitable defences
Pelantar Agresif (M) Sdn Bhd v. Projek Lebuhraya Usahasama Bhd; Lembaga Lebuhraya Malaysia (Third Party)
(Lau Bee Lan J) [2013] 6 CLJ 620 [HC]TRADE MARKS
Infringement of - Likelihood of deception and confusion - Whether alleged infringing trade mark identical or similar to plaintiffs' trade mark - Imperfect recollection test - Application of - Whether consumer would be deceived - Whether interlocutory injunction should be granted
WB Fresh Coconut Supplier Sdn Bhd v. Gan Boon Wah & Anor
(Teo Say Eng J) [2013] 6 CLJ 659 [HC]
CLJ 2013 Volume 6 (Part 6)
COURT
FEDERAL COURT
Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd
Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zaleha Zahari, Zainun Ali FCJJ
(Civil Procedure; Insurance; Tort - Insurance broker - Liability under policy - Professional negligence) [2013] 6 CLJ 673 [FC]COURT OF APPEAL
Bahram Nikkhouyabgram Nayeb v. PP
Mohamed Apandi Ali, Linton Albert, Aziah Ali JJCA
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(2) - Trafficking) [2013] 6 CLJ 702 [CA]Boy Dicor Estanda lwn. PP
Ramly Ali, Clement Skinner, Abdul Aziz Rahim HHMR
(Prosedur Jenayah; Undang-undang Jenayah - Pembunuhan - Pembelaan - Rayuan - Kecacatan atau ketaksahan) [2013] 6 CLJ 724 [CA]Goh Wee Khian & Ors v. PP
Azahar Mohamed, Balia Yusof Wahi, Lim Yee Lan JJCA
(Criminal Law; Evidence - Murder - Penal Code, s. 302 - Common intention) [2013] 6 CLJ 737 [CA]HIGH COURT
Mas Anita Abdullah v. Lew Wai Koung (No 2)
Yeoh Wee Siam J
(Civil Procedure; Land Law - Writ of summons - Writ of possession - Tenancy - Forfeiture of tenancy) [2013] 6 CLJ 782 [HC]Sawarn Singh Mehar Singh v. RHB Insurance Bhd
Mary Lim J
(Insurance - Insurance clause - Construction of - Circumstances of deceased's death - Whether covered under insurance policy) [2013] 6 CLJ 790 [HC]SUBJECT INDEX
CIVIL PROCEDURE
Appeal - Law, question of - Party seeking to impeach judgment on allegation of fraud - Whether judgment regularly obtained - Whether judgment could be struck out ex debito justitiae only in exceptional circumstances - Whether court functus officio once regularly obtained judgment perfected - Whether impeachment of judgment could be made vide affidavit evidence - Whether party seeking to impeach on fraud must file fresh action
Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd
(Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zaleha Zahari, Zainun Ali FCJJ) [2013] 6 CLJ 673 [FC]Striking out - Application for - Party seeking to impeach judgment on allegation of fraud - Whether court was functus officio in relation to judgment - Whether impeachment of judgment could be made vide affidavit evidence - Whether party seeking to impeach on fraud must file fresh action
Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd
(Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zaleha Zahari, Zainun Ali FCJJ) [2013] 6 CLJ 673 [FC]Writ of summons - Writ of possession - Vacant possession of premises - Judgment for vacant possession obtained by landlord - Premises locked - Notice served before re-entry of premises - Landlord took vacant possession of premises by way of s. 234(2) of National Land Code - Whether writ of possession required by landlord to recover vacant possession of premises - Whether court order required - Rules of Court 2012, O. 45 r. 3
Mas Anita Abdullah v. Lew Wai Koung (No 2)
(Yeoh Wee Siam J) [2013] 6 CLJ 782 [HC]CRIMINAL LAW
Dangerous Drugs Act 1952 - Section 39B(2) - Trafficking in 1,465g methamphetamine - Drugs found in appellant's jacket while exiting from Kuala Lumpur International Airport - Discrepancies between search list and acknowledgement of receipt of exhibits by investigating officer - Whether jacket belonged to another co-passenger - Whether sufficient rebuttal evidence adduced by prosecution - Whether knowledge of drugs proven - Whether presumption under s. 37(da) correctly wrongly invoked - Whether conviction safe
Bahram Nikkhouyabgram Nayeb v. PP
(Mohamed Apandi Ali, Linton Albert, Aziah Ali JJCA) [2013] 6 CLJ 702 [CA]Murder - Penal Code, s. 302 - Appeal against conviction and sentence - Appellants convicted for murder of first appellant's girlfriend - Whether common intention proven - Whether postscript of judgment showed elements of prejudice and biasness - Whether prosecution led two sets of conflicting evidence - Whether trial judge adequately considered evidence - Whether intention to kill proven
Goh Wee Khian & Ors v. PP
(Azahar Mohamed, Balia Yusof Wahi, Lim Yee Lan JJCA) [2013] 6 CLJ 737 [CA]Penal Code - Section 302 - Murder - Common intention - Whether proven - Whether common intention to commit crime actually committed or crime commonly intended proven - Vicarious or constructive liability for same offence - Whether absence of elements to establish constructive liability a serious error - Whether error curable in absence of miscarriage of justice
Goh Wee Khian & Ors v. PP
(Azahar Mohamed, Balia Yusof Wahi, Lim Yee Lan JJCA) [2013] 6 CLJ 737 [CA]EVIDENCE
Circumstantial evidence - Murder - Whether sufficient circumstantial evidence that injuries led to death of deceased - Whether contradictions in evidence intended - Whether there was unity of purpose and meeting of minds - Penal Code, s. 302
Goh Wee Khian & Ors v. PP
(Azahar Mohamed, Balia Yusof Wahi, Lim Yee Lan JJCA) [2013] 6 CLJ 737 [CA]INSURANCE
Insurance broker - Liability under a policy - Claim against professional insurance broker for failure to arrange proper insurance coverage - Whether cause of action arose in contract or tort - Whether insurer broker could be liable under insurance policy - Whether insurance broker owed duty of care to assured
Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd
(Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zaleha Zahari, Zainun Ali FCJJ) [2013] 6 CLJ 673 [FC]Insurance broker - Liability under a policy - Insurable interest - Whether assured has insurable interest - Whether insurable interest could be established by ownership, possession or direct relationship to subject matter of insurance - Whether insurable interest need be shown for action under tort of negligence
Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd
(Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zaleha Zahari, Zainun Ali FCJJ) [2013] 6 CLJ 673 [FC]Insurance clause - Construction of - Whether subject to same rules of construction as any other written contract - Circumstances of deceased's death - Whether covered under insurance policy - Whether bodily injury sustained by accidental, violent, external and visible means caused death of deceased - Whether bodily injury sustained was direct cause of deceased's death
Sawarn Singh Mehar Singh v. RHB Insurance Bhd
(Mary Lim J) [2013] 6 CLJ 790 [HC]LAND LAW
Tenancy - Forfeiture of tenancy - Powers of re-entry - Vacant possession of premises - Judgment for vacant possession obtained by landlord - Premises locked - Notice served before re-entry of premises - Landlord took vacant possession of premises by way of s. 234(2) of National Land Code - Whether writ of possession required by landlord to recover vacant possession of premises - Whether court order required - Modes of enforcement of judgment for possession of immovable property
Mas Anita Abdullah v. Lew Wai Koung (No 2)
(Yeoh Wee Siam J) [2013] 6 CLJ 782 [HC]TORT
Negligence - Professional negligence - Claim against professional insurance broker for failure to arrange proper insurance coverage - Whether cause of action arose in contract or tort - Whether insurer broker could be liable under insurance policy - Whether insurance broker owed duty of care to assured
Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd
(Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zaleha Zahari, Zainun Ali FCJJ) [2013] 6 CLJ 673 [FC]INDEKS PERKARA
PROSEDUR JENAYAH
Rayuan - Kecacatan atau ketaksahan - Dakwaan ketidakupayaan untuk memplid - Sama ada menyebabkan prosiding perbicaraan tidak sah dan terbatal - Sama ada perayu memahami pertuduhan - Sama ada ketidakupayaan dibuktikan - Sama ada perayu memahami dan mengikuti prosiding sehingga selesai
Boy Dicor Estanda lwn. PP
(Ramly Ali, Clement Skinner, Abdul Aziz Rahim HHMR) [2013] 6 CLJ 724 [CA]UNDANG-UNDANG JENAYAH
Pembunuhan - Pembelaan - Pembelaan tidak waras akal - Sama ada perayu mengetahui tindakannya semasa kejadian - Sama ada perayu hilang ingatan semasa kejadian - Sama ada pembelaan dibuktikan atas imbangan kebarangkalian - Kanun Keseksaan, ss. 84 & 302
Boy Dicor Estanda lwn. PP
(Ramly Ali, Clement Skinner, Abdul Aziz Rahim HHMR) [2013] 6 CLJ 724 [CA]Pembunuhan - Pembelaan - Pembelaan tidak waras akal - Perbezaan antara "legal insanity" dan "medical insanity" - Sama ada relevan dalam pentafsiran pembelaan insanity - Sama ada hanya "legal insanity" yang perlu dipenuhi - Kanun Keseksaan, ss. 84 & 302
Boy Dicor Estanda lwn. PP
(Ramly Ali, Clement Skinner, Abdul Aziz Rahim HHMR) [2013] 6 CLJ 724 [CA]Pembunuhan - Rayuan - Pembelaan tidak waras akal - Sama ada pembelaan dibuktikan atas imbangan kebarangkalian - Sama ada kesemua unsur pertuduhan dibuktikan - Sama ada sabitan dan hukuman betul dan sah - Sama ada sabitan selamat - Kanun Keseksaan, ss. 84 & 302
Boy Dicor Estanda lwn. PP
(Ramly Ali, Clement Skinner, Abdul Aziz Rahim HHMR) [2013] 6 CLJ 724 [CA]ARTICLELegal Network Series Article
1. PROMISE TO SUPPLY A SERVICE NOW GST TAXABLE
COMMISSIONER OF TAXATION V. QANTAS AIRWAYS LTD* [Read excerpt]
by: GEORGIE ROGERS** [2013] 1 LNS(A) lvi2. SIXTH LECTURE IN THE CIVIL LITIGATION COSTS REVIEW
IMPLEMENTATION PROGRAMME [Read excerpt]
by: LORD JUSTICE JACKSON* [2013] 1 LNS(A) lviiLEGISLATION HIGHLIGHTSPrincipal Acts
Number Title Date coming into force Repealing ACT 759 Islamic Financial Services Act 2013 30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9 -Nil- ACT 758 Financial Services Act 2013 30 June 2013 [PU(B) 276/2013] - except s 129 and Schedule 9 -Nil- ACT 757 Strata Management Act 2013 Not Yet In Force -Nil- ACT 756 Traditional And Complementary Medicine Act 2013 Not Yet In Force -Nil- ACT 755 Finance Act 2013 See s 3 for the Income Tax Act; s 41 for the Stamp Act; s 47 for the Petroleum (Income Tax) Act and s 55 for the Real Property Gains Tax Act -Nil- Amending Acts
Number Title Date coming into force Principal/Amending Act No ACT A1452 Animals (Amendment) Act 2013 20 August 2013 ACT 647 ACT A1451 Perbadanan Kemajuan Filem Nasional Malaysia (Amendment) Act 2013 1 April 2013 [PU(B) 89/2013] ACT 244 ACT A1450 Strata Titles (Amendment) Act 2013 Not Yet In Force ACT 318 ACT A1449 Industrial Designs (Amendment) Act 2013 1 July 2013 [PU(B) 86/2013] ACT 552 ACT A1448 Central Bank Of Malaysia (Amendment) Act 2013 8 February 2013 [PU(B) 44/2013] ACT 701 PU(A)
Number Title Date of Publication Date coming into force Principal/Amending Act No PU(A) 280/2013 Factories And Machinery (Exemption To Malaysia LNG Sdn Bhd, Bintulu, Sarawak) Order 2013 3 September 2013 4 September 2013 ACT 139 PU(A) 279/2013 Safeguards (Agreement On Trade In Goods Of The Framework Agreement On Comprehensive Economic Co-Operation Between The Association Of Southeast Asian Nations And China (Safeguard Measure)) Regulations 2013 2 September 2013 2 September 2013 ACT 657 PU(A) 278/2013 Environmental Quality (Control Of Petrol And Diesel Properties) (Amendment) Regulations 2013 2 September 2013 See reg 1(2) and (3) of this Regulations ACT 127 PU(A) 277/2013 Consumer Protection (Certificate Of Conformance And Conformity Mark Of Safety Standards) (Amendment) Regulations 2013 2 September 2013 1 September 2014 ACT 599 PU(A) 276/2013 Consumer Protection (Safety Standards For Primary Batteries) Regulations 2013 2 September 2013 1 September 2014 ACT 599 PU(B)
Number Title Date of Publication Date coming into force Principal/Amending Act No PU(B) 366/2013 Notice To Third Parties 4 September 2013 5 September 2013 ACT 613 PU(B) 365/2013 Notice Regarding The Supplementary Electoral Roll For The Second Quarter Of The Year 2013 That Has Been Certified 30 August 2013 31 August 2013 PU(A) 293/2002 PU(B) 364/2013 Appointment Of Date Of Coming Into Operation 30 August 2013 1 September 2013 ACT A1439 PU(B) 363/2013 Notice Regarding The Principal Electoral Roll Of The Year 2012 That Has Been Re-Certified 29 August 2013 30 August 2013 PU(A) 293/2002 PU(B) 362/2013 Notice Regarding The Supplementary Electoral Roll For The Fourth Quarter Of The Year 2012 (No. 5) That Has Been Certified 28 August 2013 29 August 2013 PU(A) 293/2002 To view previous issues of the CLJ Bulletin, Click here
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