Bulletin_39

CLJ Bulletin, Vol 2004, Issue 39
1 October 2004

Introduction:
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New This Week - CLJ October (Part 1) 2004

SUBJECT INDEX

CIVIL PROCEDURE

Appeal - Appeal to Court of Appeal - Memorandum of Appeal - Whether Court of Appeal in deciding appeal confined to grounds raised in Memorandum of Appeal - Whether Court of Appeal may make such orders as the High Court ought to have made
Masjaya Trading Sdn Bhd v. Kedah Cement Sdn Bhd
(Gopal Sri Ram, Mokhtar Sidin & Abdul Kadir Sulaiman JJCA) [2004] 4 CLJ 18 CA

Appeal - Evidence, evaluation of - Trial court failing to test defendant’s evidence against the probabilities of the case - No assessment of defendant’s evidence - Trial court failing to have regard to burden upon defendant - Whether trial court misdirected itself on the facts - Whether trial court failed to draw proper inferences - Whether appellate interference warranted
Loo Hon Kong v. Loo Kim Lim
(Gopal Sri Ram, Abdul Kadir Sulaiman & Ariffin Jaka JJCA) [2004] 4 CLJ 1 CA

Appeal - Fact, findings of - Findings of fact by trial court unsupported by evidence - Whether appellate interference warranted
Loo Hon Kong v. Loo Kim Lim
(Gopal Sri Ram, Abdul Kadir Sulaiman & Ariffin Jaka JJCA) [2004] 4 CLJ 1 CA

Appeal - Fresh evidence - Appeal from High Court to Court of Appeal - Evidence not available and non-existent at time of trial - Whether application ought to be allowed - Rules of the Court of Appeal 1994, r. 7 - Courts of Judicature Act 1964, s. 69
Sin Heap Lee-Marubeni Sdn Bhd v. Yip Shou Shan
(Mokhtar Sidin, Mohd Saari Yusoff & Abdul Aziz Mohamad JJCA) [2004] 4 CLJ 35 CA

Appeal - Interference by appellate court - Case not properly presented through ineptitude or error of counsel - Whether appellate intervention appropriate
Masjaya Trading Sdn Bhd v. Kedah Cement Sdn Bhd
(Gopal Sri Ram, Mokhtar Sidin & Abdul Kadir Sulaiman JJCA) [2004] 4 CLJ 18 CA

Damages - Exemplary damages - Assessment and award of - Conduct of parties - Whether a relevant consideration
Sin Heap Lee-Marubeni Sdn Bhd v. Yip Shou Shan
(Mokhtar Sidin, Mohd Saari Yusoff & Abdul Aziz Mohamad JJCA) [2004] 4 CLJ 35 CA

Estoppel - Plea of - Estoppel not expressly raised in pleaded case - All relevant facts on which estoppel may be raised pleaded - Whether sufficient to raise estoppel without express plea
Masjaya Trading Sdn Bhd v. Kedah Cement Sdn Bhd
(Gopal Sri Ram, Mokhtar Sidin & Abdul Kadir Sulaiman JJCA) [2004] 4 CLJ 18 CA

CONTRACT

Breach - Implied term - Implied obligation in contract to terminate upon giving reasonable notice - Contract terminated by defendant without giving any notice - Defendant calling for tender and awarding contract in question to third party - Whether such conduct amounted to an absolute refusal by defendant to perform its part of the contract - Whether such conduct by defendant an unlawful repudiation of the contract
Masjaya Trading Sdn Bhd v. Kedah Cement Sdn Bhd
(Gopal Sri Ram, Mokhtar Sidin & Abdul Kadir Sulaiman JJCA) [2004] 4 CLJ 18 CA

Estoppel - Estoppel by convention - Whether applicable on the facts
Masjaya Trading Sdn Bhd v. Kedah Cement Sdn Bhd
(Gopal Sri Ram, Mokhtar Sidin & Abdul Kadir Sulaiman JJCA) [2004] 4 CLJ 18 CA

Terms - Exclusivity - Whether term as to exclusivity of services rendered may be introduced into contract by conduct of parties subsequent to the making of the contract
Masjaya Trading Sdn Bhd v. Kedah Cement Sdn Bhd
(Gopal Sri Ram, Mokhtar Sidin & Abdul Kadir Sulaiman JJCA) [2004] 4 CLJ 18 CA

Terms - Implied terms - Contract failing to provide for determination - Whether court may imply term that such contract is terminable on reasonable notice - Whether court merely exercising powers of interpretation by doing so
Masjaya Trading Sdn Bhd v. Kedah Cement Sdn Bhd
(Gopal Sri Ram, Mokhtar Sidin & Abdul Kadir Sulaiman JJCA) [2004] 4 CLJ 18 CA

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 12(2) - 13.75kg of heroin - Accused originally charged under s. 39B - Pleaded guilty to amended charge under s. 12(2) after close of defence - Trial judge imposing maximum sentence of life imprisonment under s. 39A(2) - No discount given for pleading guilty - Whether sentence imposed by trial judge tenable - Whether trial judge can refuse to give discount on sentence
Tia Ah Leng v. PP
(Mokhtar Sidin, Denis Ong & KC Vohrah JJCA) [2004] 4 CLJ 77 CA

CRIMINAL PROCEDURE

Sentence - Plea of guilty as mitigating factor - Discount on sentence - Accused originally charged under s. 39B Dangerous Drugs Act 1952 - Pleaded guilty to amended charge under s. 12(2) after close of defence - Trial judge imposing maximum sentence of life imprisonment under s. 39A(2) - No discount given for pleading guilty - Whether sentence imposed by trial judge tenable - Whether trial judge can refuse to give discount on sentence - Principles of sentencing in drug-offences
Tia Ah Leng v. PP
(Mokhtar Sidin, Denis Ong & KC Vohrah JJCA) [2004] 4 CLJ 77 CA

LAND LAW

Ownership - Beneficial ownership - Plaintiff and defendant brothers - Purchase price for land fully paid by plaintiff - Land registered in defendant’s name - Whether beneficial ownership of land vested in the plaintiff - Whether resulting trust in favour of plaintiff created
Loo Hon Kong v. Loo Kim Lim
(Gopal Sri Ram, Abdul Kadir Sulaiman & Ariffin Jaka JJCA) [2004] 4 CLJ 1 CA

Ownership - Illegal transaction - Recoverability of property the subject matter of an illegal transaction - Whether owner may sue and recover property if he does not have to rely upon the illegality to support his claim
Loo Hon Kong v. Loo Kim Lim
(Gopal Sri Ram, Abdul Kadir Sulaiman & Ariffin Jaka JJCA) [2004] 4 CLJ 1 CA

TORT

Damages - Trespass to land - Assessment and quantum of - Whether exemplary damages to be awarded
Sin Heap Lee-Marubeni Sdn Bhd v. Yip Shou Shan
(Mokhtar Sidin, Mohd Saari Yusoff & Abdul Aziz Mohamad JJCA) [2004] 4 CLJ 35 CA

Trespass to land - Locus standi - Trespass caused before owner became registered proprietor of land - No evidence that previous owner consented to the trespass - Whether trespass a continuing trespass - Whether right to sue for trespass established
Sin Heap Lee-Marubeni Sdn Bhd v. Yip Shou Shan
(Mokhtar Sidin, Mohd Saari Yusoff & Abdul Aziz Mohamad JJCA) [2004] 4 CLJ 35 CA

TRUSTS

Resulting trust - Categories of - Whether closed - Whether new categories may be admitted - Plaintiff and defendant brothers - Purchase price for land fully paid by plaintiff - Land registered in defendant’s name - No evidence of plaintiff intending to make gift of the land to defendant - Whether presumption of advancement in favour of defendant created
Loo Hon Kong v. Loo Kim Lim
(Gopal Sri Ram, Abdul Kadir Sulaiman & Ariffin Jaka JJCA) [2004] 4 CLJ 1 CA

Resulting trust - Presumption of advancement - Plaintiff and defendant brothers - Purchase price for land fully paid by plaintiff - Land registered in defendant’s name - No evidence of plaintiff intending to make gift of the land to defendant - Whether presumption of advancement in favour of defendant created
Loo Hon Kong v. Loo Kim Lim
(Gopal Sri Ram, Abdul Kadir Sulaiman & Ariffin Jaka JJCA) [2004] 4 CLJ 1 CA

CASE OF THE WEEK

Wong Siew Choong Sdn Bhd v. Anvest Corporation Sdn Bhd
Federal Court
Land acquisition – Contract – Frustration – Specific performance – Beneficial ownership – Vendor and trusteeship - Specific Relief Act 1950, s. 13

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