CLJ Bulletin, Issue 2011, Vol 39
7 October 2011
CLJ Law Malaysia
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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 7 (Part 3) 2011 |
Principal Acts
NUMBER TITLE
DATE COMING INTO FORCE
REPEALING
ACT 728 Malaysian Quarantine And Inspection Services Act 2011 Not Yet In Force - Nil - ACT 729 National Sports Institute Act 2011 16 September 2011 [PU(B) 503/2011] - Nil - ACT 730 Trade Descriptions Act 2011 Not Yet In Force - Nil - ACT 731 Money Services Business Act 2011 Not Yet In Force - Nil - ACT 732 National Wages Consultative Council Act 2011 23 September 2011 [PU(B) 507/2011] - Nil - Amending Acts
NUMBER TITLE
DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO
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 ACT A1405 International Organizations (Privileges And Immunities) (Amendment) Act 2011 Not Yet In Force ACT 485 ACT A1406 Capital Markets And Services (Amendment) Act 2011 Not Yet In Force ACT 671 ACT A1407 Lembaga Pembangunan Industri Pembinaan Malaysia (Amendment) Act 2011 Not Yet In Force ACT 520 PU(A)
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL / AMENDING ACT NO
PU(A) 325/2011 Income Tax (Exemption) (No 5) Order 2011 21 September 2011 ACT 53 PU(A) 326/2011 Customs (Values) (Crude Petroleum Oil) (No 19) Order 2011 22 September 2011 ACT 235 PU(A) 327/2011 Entertainment (Federal Territory Of Kuala Lumpur) (Declaration) Order 2011 23 September 2011 ACT 493 PU(A) 328/2011 Customs (Values) (Palm Oil) (No 39) Order 2011 26 September 2011 ACT 235 PU(A) 329/2011 Double Taxation Relief (The Government Of The Republic Of South Africa) (Amendment) Order 2011 27 September 2011 ACT 53 & ACT 543 PU(B)
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL / AMENDING ACT NO
PU(B) 512/2011 Notice Regarding The Supplementary Electoral Roll For The Second Quarter Of The Year 2011 That Has Been Certified - Pahang & Terengganu 28 September 2011 ACT 19 PU(B) 513/2011 Amendment Of Notice Of Intention To Designate Site As Heritage Site 29 September 2011 ACT 645 PU(B) 514/2011 Appointment Of Lock-Ups To Be Places Of Confinement 29 September 2011 ACT 537 PU(B) 515/2011 Special Direction Of The Minister 29 September 2011 ACT 621 PU(B) 516/2011 Special Direction Of The Minister 29 September 2011 ACT 621
a) Legal Network Series Articles
1. Lawyers' Resistance To Mediation: Evolution And Adaptation* [Read
excerpt]
By Prof Archie Zariski**
2. Discharge Of Charge After Full Settlement Of Debt [Read
excerpt]
By Kevin Kam Soon Aun*
CITATION TITLE SUBJECT [2009] 1 LNS 767 [HC] DML-MRP Resources (M) Sdn Bhd v. Global Minerals (Sarawak) Sdn Bhd CIVIL PROCEDURE: Originating summons - Setting aside - Intitulement of applicant's Originating Summons placing reliance on two statutes conjunctively and alternatively - Arbitration Act 1952, s. 27 and/or Arbitration Act 2005, s. 38 - Whether an abuse of process of court rendering Originating Summons liable to be struck out
[2009] 1 LNS 774 [HC] Thian Khiong Khiong v. Fashion Arcade 2000 Sdn Bhd LAND LAW:
LAND LAW: Caveats - Removal of, application for - Opposition to - Plaintiff only beneficial owner of half share of property pursuant to a Sale and Purchase Agreement - Whether plaintiff had locus standi to make application
[2010] 1 LNS 252 [HC] United Development Company Sdn Bhd v. The State Government Of Sabah & Anor LAND LAW: Acquisition of land - Purpose for which land needed - Developing "Skim Penempatan Semula" - Land not developed after 31 years from acquisition - State Government identifying land for "Taman Kekal Pengeluaran Makanan" - Whether compulsory acquisition of land ultra vires section 3, Land Acquisition Ordinance and/or Article 13, Federal Constitution
LAND LAW: Acquisition of land - Purpose for which land needed - Agreement void for illegality - Whether defendants acted mala fide by not putting land to use for specified purpose it was acquired - Whether State Government acted in bad faith - Whether plaintiff still owner of land and if not, whether plaintiff entitled to possession of land by paying or refunding to defendants RM1 million without interest - Whether defendants liable to pay plaintiff further compensation and/or damage
[2010] 1 LNS 258 [HC] Hong Leong Bank Berhad v. Tetuan Lee & Lim CIVIL PROCEDURE: Bill of Costs - Taxation - Order for taxation of bill of costs - Petition to be filed within six months from delivery of bill - Petition filed on 10 June 2009 - Two different dates of receipt - Whether more reasonable to conclude receipt date as per exhibit LL.2 - Petitioner's rubber stamp exhibited - Whether petition out of time - Time of the essence - No provision in Legal Profession Act 1976 for extension or enlargement of time in respect of petition under Section 126(1)
[2010] 1 LNS 271 [HC] The University Of Nottingham In Malaysia Sdn Bhd v. YB Menteri Sumber Manusia & Anor LABOUR LAW:
COURT
COURT APPEAL
Dato' Seri Anwar Ibrahim v. PP
Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA
(Criminal Procedure; Criminal Law - Appeal - Dismissal of recusal application - Whether appealable - Penal Code - Section 377B - Stay of proceedings - Pending outcome of proposed appeal) [2011] 7 CLJ 253 [CA]Hj Salleh Hj Janan v. Financial Information Services Sdn Bhd
Abu Samah Nordin, Hishamudin Mohd Yunus, Syed Ahmad Helmy JJCA
(Tort - Libel in enquiry reports on appellant's credit and financial standing) [2011] 7 CLJ 287 [CA]HIGH COURT
Ipmuda Bhd v. Bakitan Sdn Bhd & Ors
Hanipah Farikullah JC
(Contract; Sale Of Goods - Goods sold and delivered - Claim for payment - Damages) [2011] 7 CLJ 297 [HC]Lim Hung Wang & Ors v. PP
Zawawi Salleh J
(Criminal Procedure - Application to review finding on prima facie case) [2011] 7 CLJ 318 [HC]Luking Uding & Ors v. Superintendent Of Lands And Surveys Kota Samarahan Division & Ors
Linton Albert J
(Native Law And Custom; Evidence - Customary rights - Conflicting expert evidence) [2011] 7 CLJ 342 [HC]Malaysian Airline System Bhd v. Yong Chong Hee & Anor
Hadhariah Syed Ismail JC
(Contract; Damages - Measure of damages - Assessment) [2011] 7 CLJ 360 [HC]Robert Linggi v. The Government Of Malaysia
David Wong Dak Wah J
(Civil Procedure; Constitutional Law - Locus standi - Removal of the power of appointment of judicial commissioners - Article 122AB Federal Constitution - Section 37 Judicial Appointments Commission Act 2009) [2011] 7 CLJ 373 [HC]SUBJECT INDEX
CIVIL PROCEDURE
Locus standi - Breach of Federal Constitution - Whether plaintiff had locus standi to litigate perceived breach of Federal Constitution by legislature - Challenging amendments made to Federal Constitution on matters pertaining appointment, removal and suspension of judges - Whether plaintiff had locus standi
Robert Linggi v. The Government Of Malaysia
(David Wong Dak Wah J) [2011] 7 CLJ 373 [HC]CONSTITUTIONAL LAW
Judges - Appointment, removal and suspension - Whether removal of the power of appointment of judicial commissioners of the High Court of Sabah and Sarawak by the Yang di-Pertua Negeri is null and void - Constitution (Amendment) Act 1994 - Amendments introduced without consent of Yang di-Pertua Negeri - Whether new art. 122AB of the Federal Constitution null and void - Whether setting up of Judicial Appointments Commission is unconstitutional - Federal Constitution, arts. 122A(3)(4), 161E(2)(b)
Robert Linggi v. The Government Of Malaysia
(David Wong Dak Wah J) [2011] 7 CLJ 373 [HC]Legislation - Amendment - Whether only Parliament can make or amend laws - Whether the Prime Minister may amend any law by way of gazette - Whether s. 37 of the Judicial Appointments Commission Act 2009 null and void
Robert Linggi v. The Government Of Malaysia
(David Wong Dak Wah J) [2011] 7 CLJ 373 [HC]CONTRACT
Contractual terms - Express terms - Airline pilot, training course for - Obligations of parties under contract - Alleged wrongful termination of training course - Burden of proof - Whether on first respondent pilot
Malaysian Airline System Bhd v. Yong Chong Hee & Anor
(Hadhariah Syed Ismail JC) [2011] 7 CLJ 360 [HC]Goods sold and delivered - Claim for payment - Whether goods sold in accordance to purchase orders - Whether goods delivered undersized - Whether plaintiff in breach of contract - Whether counterclaim for damages allowed - Sale of Goods Act 1957, ss. 13, 59
Ipmuda Bhd v. Bakitan Sdn Bhd & Ors
(Hanipah Farikullah JC) [2011] 7 CLJ 297 [HC]Terms - Acceptance of offer - Airline pilot, training course for - Agreement - Alleged breach - First respondent agreed to remain in service with appellant for three years from date training commenced - First respondent resigned after five months - Whether liable for breach - Interpretation of terms and conditions - Calculation of three-year period - Whether trial judge wrongly interpreted terms of contract
Malaysian Airline System Bhd v. Yong Chong Hee & Anor
(Hadhariah Syed Ismail JC) [2011] 7 CLJ 360 [HC]CRIMINAL LAW
Penal Code - Section 377B - Offence of committing carnal intercourse against the order of nature - Conduct of judge in trial - Pre judgment and biasness alleged by accused - Whether established - Whether trial judge right in dismissing accused's application to recuse judge - Whether trial judge's ruling in dismissing application appealable - Courts of Judicature Act 1964, s. 3 - Penal Code, s. 377B
Dato' Seri Anwar Ibrahim v. PP
(Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA) [2011] 7 CLJ 253 [CA]CRIMINAL PROCEDURE
Appeal - Appeal against trial judge's dismissal of recusal application - Whether trial judge's ruling in dismissing application appealable - Courts of Judicature Act 1964, s. 3 - Penal Code, s. 377B
Dato' Seri Anwar Ibrahim v. PP
(Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA) [2011] 7 CLJ 253 [CA]Judge - Application to recuse trial judge - Pre judgment and biasness - Whether judge made a conclusive finding of beyond reasonable doubt proved by prosecution before calling for defence - Penal Code, s. 377B
Dato' Seri Anwar Ibrahim v. PP
(Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA) [2011] 7 CLJ 253 [CA]Trial - Close of prosecution's case - Prima facie case proved - Defence called - Application by accused to review finding on prima facie case - Doubt in identity of drug exhibits alleged - Whether break in chain of evidence as to movement of exhibits - Whether court had power to review prima facie finding under s. 180 CPC - Whether exceptional circumstances for review shown
Lim Hung Wang & Ors v. PP
(Zawawi Salleh J) [2011] 7 CLJ 318 [HC]Trial - Stay of proceedings - Oral application for stay pending outcome of proposed appeal - Whether special circumstances warranted stay - Whether proposed appeal operated as stay
Dato' Seri Anwar Ibrahim v. PP
(Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA) [2011] 7 CLJ 253 [CA]DAMAGES
Measure of damages - Assessment - Airline pilot, training course for - Agreement - Alleged breach by 1st respondent pilot - Whether liable to pay 150% of liquidated sum as agreed - Whether appellant airline to be compensated for benefits enjoyed by 1st respondent - Trial judge requested appellant to prove actual damages - Whether actual damages incapable of being assessed or proven - Whether trial judge erred in fact and law - Contracts Act 1950, s. 75
Malaysian Airline System Bhd v. Yong Chong Hee & Anor
(Hadhariah Syed Ismail JC) [2011] 7 CLJ 360 [HC]EVIDENCE
Expert evidence - Conflicting expert evidence - Analysis of aerial photographs to determine native customary land - Both expert witnesses came to different conclusions - Whether expert witnesses labouring under any constraints - Whether expert witnesses gave reasoned analysis
Luking Uding & Ors v. Superintendent Of Lands And Surveys Kota Samarahan Division & Ors
(Linton Albert J) [2011] 7 CLJ 342 [HC]NATIVE LAW AND CUSTOM
Land dispute - Customary rights over land - Provisional lease extended to plaintiffs' land - Whether plaintiffs acquired land under native customary rights - Whether strictures of Land Code (Cap 81) Sarawak 1958 applicable - Whether plaintiffs able to prove land acquired under native customary rights - Whether testimony of witnesses supported plaintiffs' claim - Whether inclusion of plaintiffs' land in provisional lease deprived their rights to property - Whether provisional lease null and void
Luking Uding & Ors v. Superintendent Of Lands And Surveys Kota Samarahan Division & Ors
(Linton Albert J) [2011] 7 CLJ 342 [HC]SALE OF GOODS
Damages - Goods not according to specification - Right to reject lost and remedy confined to damages - Sale of Goods Act 1957, ss. 13, 59
Ipmuda Bhd v. Bakitan Sdn Bhd & Ors
(Hanipah Farikullah JC) [2011] 7 CLJ 297 [HC]Goods sold and delivered - Claim for price of goods supplied to defendant - Whether goods sold in accordance to specifications in purchase orders - Whether counterclaim for damages allowed - Sale of Goods Act 1957, ss. 13, 59
Ipmuda Bhd v. Bakitan Sdn Bhd & Ors
(Hanipah Farikullah JC) [2011] 7 CLJ 297 [HC]TORT
Defamation - Libel in enquiry reports - Reports provided by respondent credit agency to financial institutions on appellant's credit and financial standing - Reports stating appellant still a bankrupt when in fact he was discharged as a bankrupt - Whether reports defamatory of appellant - Whether defence of justification available - Whether respondent duty bound to provide correct and complete information - Whether High Court erred in dismissing appellant's claim for damages for libel
Hj Salleh Hj Janan v. Financial Information Services Sdn Bhd
(Abu Samah Nordin, Hishamudin Mohd Yunus, Syed Ahmad Helmy JJCA) [2011] 7 CLJ 287 [CA]
CASE OF THE WEEK
YONG TENG HING v. WALTON INTERNATIONAL LTD; PENDAFTAR CAP DAGANG, MALAYSIA (INTERESTED PARTY)
CIVIL PROCEDURE: Appeal - Appeal to Federal Court - Application for leave to appeal against decision of Court of Appeal - Matter originating from decision of Registrar of Trade Marks - Whether High Court exercised original or appellate jurisdiction when it heard appeal - Whether application for leave within s. 96(a) Courts of Judicature Act 1964 - Propriety of decision in Koperasi Jimat Cermat dan Pinjaman Keretapi Bhd v. Kumar Gurusamy - Rules of the High Court 1980, O. 55 r. 13 - Trade Marks Act 1976, ss. 28(5), 83(4)
CIVIL PROCEDURE: Jurisdiction - Federal Court - Appellate jurisdiction of Federal Court to hear appeal - Matter originating from decision of Registrar of Trade Marks - Whether High Court exercised original or appellate jurisdiction when it heard appeal - Whether application for leave to appeal to Federal Court within s. 96(a) Courts of Judicature Act 1964 - Propriety of decision in Koperasi Jimat Cermat dan Pinjaman Keretapi Bhd v. Kumar Gurusamy - Rules of the High Court 1980, O. 55 r. 13 - Trade Marks Act 1976, ss. 28(5), 83(4)
TRADE MARKS: Registration - Opposition - Decision of Registrar of Trade Marks dismissing opposition - Appeal dismissed by High Court but allowed on appeal to Court of Appeal - Appeal to Federal Court and jurisdiction of Federal Court to hear appeal as matter originated from decision of Registrar of Trade Marks - Propriety of decision in Koperasi Jimat Cermat dan Pinjaman Keretapi Bhd v. Kumar Gurusamy - Courts of Judicature Act 1964, s. 96(a) - Rules of the High Court 1980, O. 55 r. 13 - Trade Marks Act 1976, ss. 28(5), 83(4)
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