Bulletin_39

CLJ Bulletin, Vol 2005, Issue 39
7 October 2005

Introduction:
To get the most out of this law bulletin join CLJ Law Online now - http://www.cljlaw.com/?page=subscription
Feel free to forward this to your colleagues. Get this bulletin as email by going to http://www.cljlaw.com/?page=bulletinsubscribe

New This Week -	1. CLJ October (Part 1) 2005
	2. CLJ Supp October (Part 1) 2005

1. CLJ October (Part 1) 2005

COURT

FEDERAL COURT

Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (KL) Sdn Bhd
(Civil procedure - Execution - Garnishee proceedings) [2005] 4 CLJ 1

Chan Yock Cher v. Chan Teong Peng
(Civil procedure - Jurisdiction - Federal Court – Inherent jurisdiction and powers of court) [2005] 4 CLJ 29

COURT OF APPEAL

Federal Flour Mills Bhd v. Fima Palmbulk Services Sdn Bhd & Another Appeal
(Arbitration - Award - Judicial interference with) [2005] 4 CLJ 47

Nik Omar Nik Man v. Bank Simpanan Nasional
(Labour law - Employment - Termination of service) [2005] 4 CLJ 66

Zakiah Ishak v. Majlis Daerah Hulu Selangor
(Contract - Employment contract - Termination - Whether a 'dismissal' under guise of 'termination') [2005] 4 CLJ 77

HIGH COURT

K Anandaraj Krishnasamy v. Dato' Dr Vijayasingam & Anor
(Civil procedure - Discovery - Inspection of documents) [2005] 4 CLJ 86

SUBJECT INDEX

ARBITRATION

Arbitrator - Notes of arbitrator - Trivial error in arbitrators' notes of proceedings - Whether sufficient ground for court to interfere with award
Federal Flour Mills Bhd v. Fima Palmbulk Services Sdn Bhd & Another Appeal
(Denis Ong JCA, Arifin Zakaria & Nik Hashim FCJJ) [2005] 4 CLJ 47 [CA]

Award - Judicial interference with - Whether fact that arbitrator may have drawn wrong inference from the facts a sufficient ground for court's intervention
Federal Flour Mills Bhd v. Fima Palmbulk Services Sdn Bhd & Another Appeal
(Denis Ong JCA, Arifin Zakaria & Nik Hashim FCJJ) [2005] 4 CLJ 47 [CA]

Award - Setting aside - Circumstances in which court may set aside award - Whether court may set aside award wholly on the ground of misunderstanding or misapprehension of facts by the arbitrator
Federal Flour Mills Bhd v. Fima Palmbulk Services Sdn Bhd & Another Appeal
(Denis Ong JCA, Arifin Zakaria & Nik Hashim FCJJ) [2005] 4 CLJ 47 [CA]

Award - Setting aside - Issue raised for first time before High Court in application to set aside award - No leave of court sought - Whether party ought to be allowed to raise such issue before High Court
Federal Flour Mills Bhd v. Fima Palmbulk Services Sdn Bhd & Another Appeal
(Denis Ong JCA, Arifin Zakaria & Nik Hashim FCJJ) [2005] 4 CLJ 47 [CA]

CIVIL PROCEDURE

Appeal - Facts, finding of - Approach of appellate court
Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (Kl) Sdn Bhd
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad FCJ & PS Gill FCJ) [2005] 4 CLJ 1 [FC]

Appeal - Parties - Claim by insured against insurer dismissed - Appeal by insured against insurer withdrawn - Whether third party having no locus standi in claim between insured and insurer could lodge and maintain appeal
Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (Kl) Sdn Bhd
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad FCJ & PS Gill FCJ) [2005] 4 CLJ 1 [FC]

Discovery - Inspection of documents - Application made by way of originating summons - Power to order discovery of facts and documents under s. 25 Courts of Judicature Act 1964 read with para. 14 in Schedule to same - Principles applicable - Rules of the High Court 1980, O. 24 r. 1(1)
K Anandaraj Krishnasamy v. Dato' Dr Vijayasingam & Anor
(Low Hop Bing J) [2005] 4 CLJ 86 [HC]

Discovery - Inspection of documents - Application made by way of originating summons in reliance on Norwich Pharmacal principle - Purpose of a Norwich Pharmacal order - Whether plaintiff satisfied conditions for grant of a Norwich Pharmacal order - Whether application baseless and devoid of merits
K Anandaraj Krishnasamy v. Dato' Dr Vijayasingam & Anor
(Low Hop Bing J) [2005] 4 CLJ 86 [HC]

Execution - Garnishment - Claim under insurance policy - Insured not serious in pursuing claim - Evidence of fraudulent claim - Whether there was a debt owed by insurer to insured - Third party having valid claim against insured - Whether third party could garnish debt owed by insurer to insured
Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (Kl) Sdn Bhd
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad FCJ & PS Gill FCJ) [2005] 4 CLJ 1 [FC]

Execution - Garnishee proceedings - Garnishee proceedings ordered converted into writ action by judge in chambers - Judge acting on own motion - No application to convert garnishee proceedings - Whether judge correct in making such order
Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (Kl) Sdn Bhd
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad FCJ & PS Gill FCJ) [2005] 4 CLJ 1 [FC]

Jurisdiction - Federal Court - Inherent jurisdiction and powers of court - Application under r. 137 Rules of the Federal Court 1995 for judgment to be set aside and for appeal to be reheard - Applicant challenged correctness of judgment on its merits - Principles applicable - Whether application ought to be granted
Chan Yock Cher v. Chan Teong Peng
(Ahmad Fairuz CJ, Abdul Hamid Mohamad & Pajan Singh Gill FCJJ) [2005] 4 CLJ 29 [FC]

Parties - Locus standi - Claim by third party on insurance policy - Third party not a beneficiary or nominee to such policy - Third party merely judgment creditor of insured - Insured uninterested in pursuing claim against insurer - Whether Public Trustee could be appointed to sue on behalf of insured - Whether Public Trustee's approval of third party's statement of claim constituted third party's authority to sue on the policy - Whether third party had locus standi to commence action - Whether third party had locus standi to claim under the policy
Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (Kl) Sdn Bhd
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad FCJ & PS Gill FCJ) [2005] 4 CLJ 1 [FC]

Parties - Locus standi - Insurance policy between insurer and insured - Third party making claim on such policy - Third party not a beneficiary or nominee to such policy - Third party merely judgment creditor of insured - Whether third party had locus standi to make such claim
Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (Kl) Sdn Bhd
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad FCJ & PS Gill FCJ) [2005] 4 CLJ 1 [FC]

EVIDENCE

Documentary evidence - Admissibility - Whether consideration of document's admissibility synonymous to consideration of the truth of contents of the document
Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (Kl) Sdn Bhd
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad FCJ & PS Gill FCJ) [2005] 4 CLJ 1 [FC]

Hearsay - Document - Admissibility v. truth of contents - Failure to object, effect of
Capital Insurance Bhd v. Cheong Heng Loong Goldsmiths (Kl) Sdn Bhd
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad FCJ & PS Gill FCJ) [2005] 4 CLJ 1 [FC]

CONTRACT

Employment contract - Termination - Whether a 'dismissal' under guise of 'termination' - Whether giving 24-hour notice and one month's salary within contractual right of employer - Whether employee must be afforded opportunity of being heard - Whether motive for termination relevant - Whether allegations of misconduct turned termination into a dismissal - Whether employee had legitimate expectation of serving out contract - Whether notice short
Zakiah Ishak v. Majlis Daerah Hulu Selangor
(Gopal Sri Ram, Abdul Aziz Mohamad & Arifin Zakaria JJCA) [2005] 4 CLJ 77

Sale of Goods - Merchantable quality - 'Good merchantable quality', definition of - Rejected goods subsequently sold at lower price to different buyer - Whether fact of subsequent sale an indication of 'good merchantable quality'
Federal Flour Mills Bhd v. Fima Palmbulk Services Sdn Bhd & Another Appeal
(Denis Ong JCA, Arifin Zakaria & Nik Hashim FCJJ) [2005] 4 CLJ 47 [CA]

LABOUR LAW

Employment - Termination of service - Whether appellant a probationary or confirmed employee - Whether termination valid and proper - Whether a colourable exercise of power - Whether appellant ought to be reinstated
Nik Omar Nik Man v. Bank Simpanan Nasional
(Mokhtar Sidin JCA, Arifin Zakaria & Nik Hashim FCJJ) [2005] 4 CLJ 66 [CA]

WORDS & PHRASES

'Good merchantable quality'
Federal Flour Mills Bhd v. Fima Palmbulk Services Sdn Bhd & Another Appeal
(Denis Ong JCA, Arifin Zakaria & Nik Hashim FCJJ) [2005] 4 CLJ 47 [CA]

^top

2. CLJ Supp October (Part 1) 2005

COURT

HIGH COURT

Jennifer Patricia Thomas v. Calvin Martin Victor David
(Family law - Children - Custody) [2005] 7 CLJ 133

Lau Yuen Kheong & Ors v. Masterwheel Engineering Supplies
(Civil procedure - Execution - Writ of seizure and sale) [2005] 7 CLJ 148

OCBC Bank (Malaysia) Berhad v. Hotel Rasa Sayang Sdn Bhd
(Land law - Charge - Order for sale) [2005] 7 CLJ 157

Re Amran Ahmad, ex p MBf Finance Bhd
(Bankruptcy - Receiving and adjudication orders – Appeal against) [2005] 7 CLJ 172

Syarikat Raspand v. Government Of The State Of Sabah
(Trade and industry - Forestry - Seizure of logs by Sabah Forestry Department) [2005] 7 CLJ 179

Yong Kon Fatt v. Indah Water Konsortium Sdn Bhd
(Civil procedure - Affidavits - Need to reply specifically to allegations) [2005] 7 CLJ 193

SUBJECT INDEX

BANKRUPTCY

Receiving and adjudication orders - Appeal against - Grounds - Service - Whether creditor’s petition properly served - Identity card number of judgment debtor not correctly stated - Whether there was injustice caused - Change of name of judgment creditor - Whether changed the identity of judgment creditor - Companies Act 1965, s. 23(6) - Failure to cite new name of judgment creditor in documents filed - Companies Act 1965, s. 121(1A) - Whether a defect that could invalidate proceeding in bankruptcy - Bankruptcy Act 1967, s. 131 - Change of judgment debtor’s address - Whether there was notification from the judgment debtor himself
Re Amran Ahmad, ex p Mbf Finance Bhd
(Jeffrey Tan J) [2005] 7 CLJ 172 [HC]

CIVIL PROCEDURE

Appeal - Appeal from Subordinate Court to High Court - Courts of Judicature Act 1964, s. 28(1) - Value of subject matter below RM10,000 - Question of law raised - Whether claim under Sewerage Services Act 1993 read with Sewerage Services (Charges) Regulations 1994 without particulars on mode/basis of calculation stated is valid or proper in law
Yong Kon Fatt v. Indah Water Konsortium Sdn Bhd
(VT Singham J) [2005] 7 CLJ 193 [HC]

Affidavits - Need to reply specifically to allegations - Failure to file reply - Effect
Yong Kon Fatt v. Indah Water Konsortium Sdn Bhd
(VT Singham J) [2005] 7 CLJ 193 [HC]

Execution - Writ of seizure and sale - Goods seized - Notices filed stating claimants as owners of goods seized - Hearing of interpleader summons - Dismissal of said notices and further barring of claimants from filing fresh notices by trial judge - Whether trial judge erred - Subordinate Courts Rules 1980, O. 13 r. 5(2)(a), O. 53 r. 11 - Abuse of process of court - Prevention of - Whether there was evidence supporting claimants’ title to the goods seized
Lau Yuen Kheong & Ors v. Masterwheel Engineering Supplies
(Low Hop Bing J) [2005] 7 CLJ 148 [HC]

Interpleader summons - Hearing of - Power of court - Whether trial judge correctly proceeded to determine issue under O. 13 r. 5(2)(a) of the Subordinate Courts Rules 1980 - Dismissal of notices stating claimants as owner of goods seized - Further barring claimants from filing fresh notices - Whether properly and correctly given by court - Whether served avowed purpose of preventing abuse of the process of court - Subordinate Courts Rules 1980, O. 53 r. 11 - Subordinate Courts Act 1948, s. 69
Lau Yuen Kheong & Ors v. Masterwheel Engineering Supplies
(Low Hop Bing J) [2005] 7 CLJ 148 [HC]

Interpleader summons - Writ of seizure and sale - Goods seized - Notices filed stating claimants as owners of goods seized - Dismissal of said notices and further barring of claimants from filing fresh notices by trial judge - Whether trial judge erred - Subordinate Courts Rules 1980, O. 13 r. 5(2)(a), O. 53 r. 11 - Abuse of process of court - Prevention of - Whether there was evidence supporting claimants’ title to the goods seized
Lau Yuen Kheong & Ors v. Masterwheel Engineering Supplies
(Low Hop Bing J) [2005] 7 CLJ 148 [HC]

Judgment - Reserved judgment - Magistrate’s Court - Interlocutory application - Whether Magistrate required to give grounds for dismissing defendant’s striking out application
Yong Kon Fatt v. Indah Water Konsortium Sdn Bhd
(VT Singham J) [2005] 7 CLJ 193 [HC]

Pleadings - Statement of claim - Particulars and basis of calculation of sewerage services allegedly provided not stated - Whether claim unsustainable in law
Yong Kon Fatt v. Indah Water Konsortium Sdn Bhd
(VT Singham J) [2005] 7 CLJ 193 [HC]

FAMILY LAW

Children - Custody - Joint custody - Principles in granting custody - Welfare of children - Wishes of parent/parents - Guardianship of Infants Act 1961, s. 5
Jennifer Patricia Thomas v. Calvin Martin Victor David
(Low Hop Bing J) [2005] 7 CLJ 133 [HC]

Financial obligations - Maintenance payments - Assessment of - Law Reform (Marriage and Divorce) Act 1976 - Circumstances of the parties
Jennifer Patricia Thomas v. Calvin Martin Victor David
(Low Hop Bing J) [2005] 7 CLJ 133 [HC]

Injunction - Injunction against molestation - Application for - Principles to be applied - Procedural step taken by wife to obtain certificate from conciliatory body under s. 106 of the Law Reform (Marriage and Divorce) Act 1976 - Whether sufficient - Whether constitutes pendency of matrimonial proceedings - Law Reform (Marriage and Divorce) Act 1976, s. 103
Jennifer Patricia Thomas v. Calvin Martin Victor David
(Low Hop Bing J) [2005] 7 CLJ 133 [HC]

Restraining order - Domestic violence - Protection orders sought - Essential requirements - Whether satisfied - Domestic Violence Act 1994, s. 13 - Whether wife can rely on s. 5 of Domestic Violence Act 1994 - Ouster order - Whether granted - Domestic Violence Act 1994, s. 6
Jennifer Patricia Thomas v. Calvin Martin Victor David
(Low Hop Bing J) [2005] 7 CLJ 133 [HC]

LAND LAW

Charge - Order for sale - Application for - Demands for payments of the facilities - Whether recovery of both overdraft and revolving credit facilities precluded by proviso to s. 254(3) of the National Land Code ‘NLC’ - Differences found in Form 16D of the NLC and amended originating summons - Whether defendant prejudiced or misled - Claim for legal fees - Whether plaintiff entitled to an order for sale even though amended originating summons included legal fees and valuation fees - Whether appropriate statutory notices as stipulated in the NLC given by plaintiff - Whether plaintiff complied with all procedural requirements prescribed by O. 83 of Rules of the High Court 1980 - Whether defendant failed to establish any valid ground that would constitute cause to the contrary for purposes of s. 256(3) of the NLC
OCBC Bank (Malaysia) Berhad v. Hotel Rasa Sayang Sdn Bhd
(Azahar Mohamed JC) [2005] 7 CLJ 157 [HC]

Charge - Order for sale - Cause to the contrary - Whether established - National Land Code, s. 256(3)
OCBC Bank (Malaysia) Berhad v. Hotel Rasa Sayang Sdn Bhd
(Azahar Mohamed JC) [2005] 7 CLJ 157 [HC]

TRADE AND INDUSTRY

Forestry - Seizure of logs by Sabah Forestry Department - Whether wrongful and done in gross negligence - Logs originated from Indonesia - Whether Sabah Forestry Department had jurisdiction or power to seize logs not originated from Sabah - Whether defendant could seek protection under ss. 37 and 40 of the Forest Enactment 1968 (Sabah) - Liability of defendant- Quantum of damages - Whether plaintiff entitled to damage to extent of exact value of impugned logs seized
Syarikat Raspand v. Government Of The State Of Sabah
(Sulong Matjeraie J) [2005] 7 CLJ 179 [HC]

Import and export - Seizure of logs by Sabah Forestry Department - Whether wrongful and done in gross negligence - Logs originated from Indonesia - Whether Sabah Forestry Department had jurisdiction or power to seize logs not originated from Sabah - Whether defendant could seek protection under ss. 37 and 40 of the Forest Enactment 1968 (Sabah) - Liability of defendant - Quantum of damages - Whether plaintiff entitled to damage to extent of exact value of impugned logs seized
Syarikat Raspand v. Government Of The State Of Sabah
(Sulong Matjeraie J) [2005] 7 CLJ 179 [HC]

^top

CASE OF THE WEEK

KERAJAAN NEGERI SELANGOR & ORS v. SAGONG TASI & ORS

LAND LAW: Acquisition of land - Compensation - Customary land

CLJ Bulletin
To Subscribe/Unsubscribe go to http://www.cljlaw.com/?page=bulletinsubscribe