Legal Network Series

[2012] 1 LNS 332	DANG CHOOI PING v. LIM ENG KOK	FAMILY LAW: Children - Custody - Whether welfare and best interests of children would be safeguarded if children allowed to continue living with defendant/father - Whether wrong for the Court to force them to live with their mother - Whether presumption in s. 88(3) of the Law Reform (Marriage and Divorce) Act 1976 rebutted - Whether plaintiff an unfit parent to have custody, care and control of the children - Whether defendant more suitable parent to have custody, care and control of the children - Whether detrimental to welfare of the children to transfer them from defendant's interim custody to plaintiff
[2012] 1 LNS 335	DOLOMITE READYMIXED CONCRETE SDN BHD v. ZALAM CORPORATION SDN BHD & ORS	CIVIL PROCEDURE: Trial - Submission of no case to answer - Defendants elected to make submission of "no case to answer" to plaintiff's claim at close of plaintiff's case - Whether defendants entitled to call for evidence - Whether principle that defendants' case would stand and fall based on the strength of the submissions did not extend to a situation where there was a counterclaim by defendants against plaintiff - Whether counterclaim was a separate and distinct claim and unconnected to plaintiff's invoices - Whether defendant should be given opportunity to adduce evidence to prove defendants' counterclaim against plaintiff but not to adduce evidence to prove defendants' defence against plaintiff's case EVIDENCE: Adverse inference - Failure to produce material document - 1st defendant's statements of accounts with plaintiff - Whether a crucial document to prove payments made by defendants pertaining to all transactions between parties - Whether attracted presumption of adverse inference - Evidence Act 1950, s. 114(g)
[2012] 1 LNS 351	RE: LEE BUCK GEE; EX-PARTE: CIMB BANK BERHAD	BANKRUPTCY: Notice - Setting aside - Appeal against dismissal of judgment debtor's application to set aside bankruptcy notice - Whether judgment creditor had the requisite locus standi - Whether present judgment creditor substituted original judgment creditor under the vesting orders - Whether judgment debtor was misled or embarrassed by service of the bankruptcy BANKRUPTCY: Act of bankruptcy - Date of commission - Appeal against date taken as the act of bankruptcy by the Senior Assistant Registrar (SAR) - Whether ground raised by judgment debtor fell outside rule 95 of the Bankruptcy Rules 1969 - Judgment Debtor did not file an affidavit in opposition under Rule 95 - Whether act of bankruptcy must be taken as occurring 7 days after service of the bankruptcy notice - Whether wrong to take date of act of bankruptcy as occurring at the date of SAR'S decision
[2012] 1 LNS 352	BARTER FORTUNE SDN BHD v. MAJURAMA DEVELOPMENT SDN BHD	CIVIL PROCEDURE: Judgments and orders - Consent judgment - Application for setting aside - Allegations of mutual common mistake, material and fundamental unilateral mistake, no consensus ad idem, unjust enrichment and fraud - Whether grounds to set aside consent judgment CONTRACT: Mistake - Mutual common mistake and material and fundamental unilateral mistake - Whether plaintiff through its director (PW1) and through its counsel knew of the summary judgment and that CIMB would have to pay if there was no appeal - Whether implausible for plaintiff to contend they were unaware CIMB had paid the RM315k claim when it was negotiating with defendant - Whether there was a mistake and consequently, consensus ad idem CONTRACT: Fraud - Whether there was active concealment or act of deceit by defendant's Chief Financial Controller (DW1) - Whether PW1 and/or his counsel knew of the summary judgment obtained against CIMB and that CIMB would have to pay if there was no appeal - Whether DW1's assumption that they knew was farfetched - Whether DW1 obliged to inform PW1 that CIMB had paid the RM315k claim in the course of discussions for settlement - Whether DW1's silence a fraudulent act CONTRACT: Unjust enrichment - Payment made to another where it was inequitable for recipient to keep it - Whether there was unjust enrichment
[2012] 1 LNS 361	RESAD DILLAH v. PP	CRIMINAL LAW: Anti Corruption Act 1997 - s. 11(a) - Obtaining gratification - Whether appellant received trap money of RM5,500 which money was recovered from him - Whether money was planted by PW16, PW17 and ACA officers - Whether prosecution was obliged to prove whether accused solicited or demanded for gratification - Whether an ingredient of offence under the Anti Corruption Act 1997, s. 11(a) CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Whether there were discrepancies in evidence of prosecution's witnesses - Whether contradictions minor and did not defeat prosecution's case or negate elements of the offence CRIMINAL PROCEDURE: Defence - Denial - Whether appellant's defence was one of pure denial - Whether insufficient to discharge burden of proof under s. 42(1) of the Anti Corruption Act 1997 CRIMINAL PROCEDURE: Appeal - Appeal against sentencing - Whether sentenced passed by Sessions Court judge in line with sentencing principles - Whether Sessions Court judge considered principles of retribution, deterrence and reformation in the assessment of sentence as well as mitigating factors - Whether Sessions Court judge passed sentence based on the proven facts and circumstances - Whether any reason to interfere with Sessions Court judge's decision EVIDENCE: Adverse inference - Failure of prosecution to call witness - Whether prejudiced appellant - Whether fatal to prosecution's case - Whether prosecution able to prove its case against appellant even without Mr. Tee and the mysterious runner

CLJ 2013 Volume 7 (Part 8)

ARTICLE

Transforming Malaysia - The Fight Against Corruption and the Role of the Courts in the Expedition of Corruption Trials
by Justice Tan Sri Dato' Seri Zulkefli Ahmad Makinudin [2013] 7 CLJ i

CASES

COURT

FEDERAL COURT

National Union Of Bank Employees v. Director General Of Trade Unions & Anor
Arifin Zakaria CJ, Raus Sharif PCA, Abdull Hamid Embong, Hasan Lah, Jeffrey Tan FCJJ
(Administrative Law - Judicial review proceedings - Application for extension of time ) [2013] 7 CLJ 957 [FC]

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 - Principles in interpretation of terms) [2013] 7 CLJ 969 [CA]

HIGH COURT

Dr Mohd Adnan Sulaiman & Anor v. Kumpulan Perubatan (Johor) Sdn Bhd
Abdul Rahman Sebli J
(Contract - Joint venture agreement - Fiduciary relationship - Conflict of interest - Damages) [2013] 7 CLJ 1032 [HC]

Mahabuilders Sdn Bhd v. Pentadbir Tanah Johor Bahru & Anor
Gunalan Muniandy JC
(Land Law - Private caveat - Extension - Registrar of Titles - National Land Code, s. 326) [2013] 7 CLJ 1059 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Judicial review proceedings - Delay in filing Form 111B - Application for extension of time - Whether court has discretion to extend time - Cause papers served on parties - Whether filing of Form 111B was mere formality - Whether caused prejudice to parties - Rules of the High Court 1980, O. 3 r. 5, O. 53 r. 4(1)
National Union Of Bank Employees v. Director General Of Trade Unions & Anor
(Arifin Zakaria CJ, Raus Sharif PCA, Abdull Hamid Embong, Hasan Lah, Jeffrey Tan FCJJ) [2013] 7 CLJ 957 [FC]

CONTRACT

Breach - Compensation - Obligation of person enjoying benefit of non-gratuitous act - Whether purchaser in breach of sale and 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] 7 CLJ 969 [CA]

Breach - Damages - Joint venture agreement - Loss of future profits - Whether proved - Whether losses suffered within reasonable contemplation of parties - Expert evidence - Whether rebutted
Dr Mohd Adnan Sulaiman & Anor v. Kumpulan Perubatan (Johor) Sdn Bhd
(Abdul Rahman Sebli J) [2013] 7 CLJ 1032 [HC]

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] 7 CLJ 969 [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] 7 CLJ 969 [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] 7 CLJ 969 [CA]

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] 7 CLJ 969 [CA]

Joint venture - Joint venture agreement - Breach of - Relationship of parties - Whether a fiduciary relationship existed - Whether parties contractually obligated to ensure joint venture objective prospered - Setting up of entity to rival business of joint venture - Whether fundamentally breached joint venture agreement - Conflict of interest - Loss of future profits - Whether proved
Dr Mohd Adnan Sulaiman & Anor v. Kumpulan Perubatan (Johor) Sdn Bhd
(Abdul Rahman Sebli J) [2013] 7 CLJ 1032 [HC]

LAND LAW

Caveat - Private caveat - Application for extension of - Court's power to extend caveat under National Land Code - Whether limited to caveat that is in force - Whether Registrar of Titles had rightly acted within his powers in accordance with provisions of s. 326(1), (1A) & (3) National Land Code to remove caveat - Whether caveat had lapsed and no longer had any effect or validity
Mahabuilders Sdn Bhd v. Pentadbir Tanah Johor Bahru & Anor
(Gunalan Muniandy JC) [2013] 7 CLJ 1059 [HC]

Caveat - Private caveat - Application for extension of - Whether there was binding and enforceable contract to claim title to registered land - Whether plaintiff had requisite interest to be vested with right to enter private caveat - Whether court has power to extend caveat that has been cancelled or removed - Whether caveat had lapsed and no longer had any effect or validity - National Land Code, s. 326(1), (1A), (2) & (3)
Mahabuilders Sdn Bhd v. Pentadbir Tanah Johor Bahru & Anor
(Gunalan Muniandy JC) [2013] 7 CLJ 1059 [HC]