Bulletin_43

CLJ Bulletin, Issue 2010, Vol 43

5 November 2010

CLJ Law Malaysia

http://www.cljlaw.com

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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 8 (Part 3) 2010

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 362/2010 Advertisements (Federal Territory Of Putrajaya) By-Laws 2002 - Corrigendum 28 October 2010 ACT 171

PU(A) 363/2010 Dental (Amendment Of Second Schedule) Order 2010 28 October 2010 ACT 51

PU(A) 368/2010 Customs (Prohibition Of Exports) (Amendment) Order 2010 1 November 2010 ACT 235

PU(A) 369/2010 Customs (Values) (Palm Oil) (No 44) Order 2010 1 November 2010 ACT 235

PU(A) 370/2010 Customs (Values) (Palm Kernel) (No 11) Order 2010 1 November 2010 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 446/2010 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Padang Besar, Perlis 25 October 2010 ACT 19

PU(B) 462/2010 Appointment Under Section 3 Elections Act 1958 - Batu Sapi, Sabah 26 October 2010 ACT 19

PU(B) 463/2010 Appointment Under Section 3 Elections Act 1958 - Batu Sapi, Sabah 26 October 2010 ACT 19

PU(B) 464/2010 Appointment Under Section 3 Elections Act 1958 - Galas, Kelantan 26 October 2010 ACT 19

PU(B) 465/2010 Appointment Under Section 3 Elections Act 1958 - Galas, Kelantan 26 October 2010 ACT 19

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

DR 31/2010 Fees (Malaysian Meteorological Department) (Validation) Bill 2010 - ACT 209

DR 32/2010 Bank Simpanan Nasional (Amendment) Bill 2010 - ACT 146

DR 33/2010 National Visual Arts Development Board Bill 2010 - ACT 516

2. Articles

a) Legal Network Series Articles

1. The Future Of Civil Mediation ^{[Read
excerpt]}
By Sir Anthony Clarke*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2010] 1 LNS 324 [HC] Hor Wei Kheng & Anor v. Rakyat Corporation Sdn Bhd & Ors

TORT: NEGLIGENCE - Developer failing to deliver vacant possession of building on time - Purchaser suing developer and architects for damages for loss of use - Claim for rental of alternative building - Whether pure economic loss can be claimed - Whether architects negligent - Whether architects owed duty of care to purchaser - Relationship of proximity - Reasonable foreseeability of damage - Fair and reasonable duty of care - Whether delays caused by architect's improper supervision of works - Whether purchaser's remedy lies in contract

TORT: Damages - Economic loss - Whether pure economic loss can be claimed in negligence - Civil Law Act 1956, s. 3 - Public policy and local circumstances - Foreseeability - Fair, just and reasonable

PROFESSIONS: Architects - Liability in tort of negligence to purchaser of building - Developer failing to complete building on time - Eight years' delay in delivery of vacant possession - Whether architects owe duty of care to purchaser - Relationship of proximity - Reasonable foreseeability of damage - Fair and reasonable duty of care - Nature, scope and extent of architect's responsibilities - Whether delays caused by architect's improper supervision of works

[2010] 1 LNS 330 [HC] Kendek Industry Sdn Bhd v. Ecotherm (TFT) Sdn Bhd

TRADEMARKS: Utility innovation - Infringement - Claim by plaintiff/owner of certificate that defendant infringed its UI - Counterclaim by defendant that plaintiff' certificate was not valid - Whether UI claim sufficiently clear, concise, specific and complete - Legal limit of monopoly - Whether vague and inconclusive - 'Notional person skilled in the art' and 'common general knowledge' - Patents Act 1983, ss. 17, 23, 56(2)(b), 57 - Patents Regulations 1986, regs. 12(1)(c), (e), 13(1)

[2010] 1 LNS 331 [HC] Jost Cranes Gmbh & Co KG v. Jost Cranes Sdn Bhd

TRADEMARKS: Registered trademark - Expungement - Application for - Trade Marks Act 1976, s. 45(1)(a) - Whether applicant a person aggrieved under ss. 45 & 46 - Locus standi - Whether applicant has trading interest - Prior commercial interest - First-user rights - Whether applicant is the manufacturer or proprietor - Rights as to design as opposed to manufacturer's trademark rights - Whether manufacturer's rights prevail over importer's or distributor's rights - Whether trademark wrongfully entered in register by respondent

WORDS & PHRASES: 'person aggrieved' - Trade Marks Act 1976, s. 45(1)(a) - Trading interests

[2010] 1 LNS 332 [HC] Muhammad Shukri Abdullah v. CIMB Islamic Bank Berhad

BANKING: Banker and customer - Freezing of account - Application for declaration that freezing of account is null and void and that customer may operate account freely - Account frozen by bank on order of MACC under s. 37(1) Malaysian Anti Corruption Commission Act 2009 - Whether MACC ought to have been joined as a party - Whether s. 37(2) shields bank from any civil or criminal proceedings - Whether necessary for customer to apply to quash s. 37(1) order by way of judicial review

CIVIL PROCEDURE: Declaration - Application for - Declaratory order affecting rights of third parties - Whether such parties should be joined as parties to proceedings - Bank customer's account frozen by bank on order of MACC - Customer applying for declaratory relief against bank - Whether MACC ought to have been joined as a party

[2010] 1 LNS 335 [HC] Rotta Research Laboratorium S.P.A. & Anor v. Ho Tack Sien & Ors

CIVIL PROCEDURE: Discovery - Order for production to court - Rules of the High Court 1980, O. 24 rr. 12, 13 - At any stage of the proceedings, whether includes trial stage - Necessary for disposing fairly of the cause or matter - Whether document sought identified, relevant and in possession of defendant - Whether a fishing expedition by plaintiff - Discretion of court, exercise of - Allegation of theft of pharmaceutical trade secret - Document sought for comparison

CITATION	TITLE	SUBJECT
[2010] 1 LNS 324 [HC]	Hor Wei Kheng & Anor v. Rakyat Corporation Sdn Bhd & Ors	TORT: NEGLIGENCE - Developer failing to deliver vacant possession of building on time - Purchaser suing developer and architects for damages for loss of use - Claim for rental of alternative building - Whether pure economic loss can be claimed - Whether architects negligent - Whether architects owed duty of care to purchaser - Relationship of proximity - Reasonable foreseeability of damage - Fair and reasonable duty of care - Whether delays caused by architect's improper supervision of works - Whether purchaser's remedy lies in contract TORT: Damages - Economic loss - Whether pure economic loss can be claimed in negligence - Civil Law Act 1956, s. 3 - Public policy and local circumstances - Foreseeability - Fair, just and reasonable PROFESSIONS: Architects - Liability in tort of negligence to purchaser of building - Developer failing to complete building on time - Eight years' delay in delivery of vacant possession - Whether architects owe duty of care to purchaser - Relationship of proximity - Reasonable foreseeability of damage - Fair and reasonable duty of care - Nature, scope and extent of architect's responsibilities - Whether delays caused by architect's improper supervision of works
[2010] 1 LNS 330 [HC]	Kendek Industry Sdn Bhd v. Ecotherm (TFT) Sdn Bhd	TRADEMARKS: Utility innovation - Infringement - Claim by plaintiff/owner of certificate that defendant infringed its UI - Counterclaim by defendant that plaintiff' certificate was not valid - Whether UI claim sufficiently clear, concise, specific and complete - Legal limit of monopoly - Whether vague and inconclusive - 'Notional person skilled in the art' and 'common general knowledge' - Patents Act 1983, ss. 17, 23, 56(2)(b), 57 - Patents Regulations 1986, regs. 12(1)(c), (e), 13(1)
[2010] 1 LNS 331 [HC]	Jost Cranes Gmbh & Co KG v. Jost Cranes Sdn Bhd	TRADEMARKS: Registered trademark - Expungement - Application for - Trade Marks Act 1976, s. 45(1)(a) - Whether applicant a person aggrieved under ss. 45 & 46 - Locus standi - Whether applicant has trading interest - Prior commercial interest - First-user rights - Whether applicant is the manufacturer or proprietor - Rights as to design as opposed to manufacturer's trademark rights - Whether manufacturer's rights prevail over importer's or distributor's rights - Whether trademark wrongfully entered in register by respondent WORDS & PHRASES: 'person aggrieved' - Trade Marks Act 1976, s. 45(1)(a) - Trading interests
[2010] 1 LNS 332 [HC]	Muhammad Shukri Abdullah v. CIMB Islamic Bank Berhad	BANKING: Banker and customer - Freezing of account - Application for declaration that freezing of account is null and void and that customer may operate account freely - Account frozen by bank on order of MACC under s. 37(1) Malaysian Anti Corruption Commission Act 2009 - Whether MACC ought to have been joined as a party - Whether s. 37(2) shields bank from any civil or criminal proceedings - Whether necessary for customer to apply to quash s. 37(1) order by way of judicial review CIVIL PROCEDURE: Declaration - Application for - Declaratory order affecting rights of third parties - Whether such parties should be joined as parties to proceedings - Bank customer's account frozen by bank on order of MACC - Customer applying for declaratory relief against bank - Whether MACC ought to have been joined as a party
[2010] 1 LNS 335 [HC]	Rotta Research Laboratorium S.P.A. & Anor v. Ho Tack Sien & Ors	CIVIL PROCEDURE: Discovery - Order for production to court - Rules of the High Court 1980, O. 24 rr. 12, 13 - At any stage of the proceedings, whether includes trial stage - Necessary for disposing fairly of the cause or matter - Whether document sought identified, relevant and in possession of defendant - Whether a fishing expedition by plaintiff - Discretion of court, exercise of - Allegation of theft of pharmaceutical trade secret - Document sought for comparison

b. CLJ Volume 8 (Part 3) 2010

COURT

PP v. Prabu Veeramuthu & Ors
(Sentence - Appeal against sentence - Concurrent or consecutive) [2010] 8 CLJ 257

Sita Raman Ramasamy v. PP
(Penal Code - Section 302 - Appeal against conviction and death sentence) [2010] 8 CLJ 267

Zulkifli Hashim v. Ketua Polis Daerah Barat Daya Balik Pulau, Pulau Pinang & Ors And Another Appeal
(Police - Disciplinary proceedings - Dismissal) [2010] 8 CLJ 276

HIGH COURT

Neil Duncan Gillies & Anor v. Liew Mei Ling & Ors
(Family law - Adoption - Husband and wife applicants were Australian citizens on work pass - Whether "ordinarily resident" under s. 4(3) Adoption Act 1952 to qualify for adoption order) [2010] 8 CLJ 310

Poh Yang Hong v. Ng Lai Yin & Ors
(Public authorities - Registrar of Land Titles - Search certificate, issuance of - Search result certified fraudster as registered proprietor of land) [2010] 8 CLJ 323

Rosdi Hj Zakaria & Anor v. Mohamad Nassir Said
(Succession - Claim to be included in proposed Memorandum of Transfer) [2010] 8 CLJ 335

Saling Lau Bee Chiang & Ors v. Kanawagi Seperumaniam & Ors
(Trusts - Receiver and manager, application for appointment) [2010] 8 CLJ 347

Shamsul Saad v. Tengku Dato' Ibrahim Petra Tengku Indra Petra & Ors
(Company law - Derivative action - Fraud on the minority - Suit against directors) [2010] 8 CLJ 357

SUBJECT INDEX

ADMINISTRATIVE LAW

Public servants - Dismissal of police officer - Dismissal of lance corporal pursuant to disciplinary proceedings - Failure to note in diary and to make police report about gambling raid operation as required by Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 - Whether termination in breach of natural justice - Whether court may interfere with decision of disciplinary authority
Zulkifli Hashim v. Ketua Polis Daerah Barat Daya Balik Pulau, Pulau Pinang & Ors And Another Appeal
(Heliliah Mohd Yusof, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 8 CLJ 276 [CA]

CIVIL PROCEDURE

Jurisdiction - Distribution of estate - Claim to be included in proposed Memorandum of Transfer - Parties of Muslim faith - Whether claim within purview of Syariah Court and not civil court
Rosdi Hj Zakaria & Anor v. Mohamad Nassir Said
(Ravinthran Paramaguru JC) [2010] 8 CLJ 335 [HC]

Striking out - Writ and statement of claim - Application for - Whether statement of claim disclosed reasonable causes of action against 1st to 4th defendants based on allegations of fraud, breaches of fiduciary and statutory duties and negligence - Whether plain and obvious case for striking out statement of claim as disclosing no reasonable cause of action - Whether plaintiff has established a prima facie case of locus standi to maintain present suit - Defendants entered unconditional appearance - Whether they cannot now complain that plaintiff does not have locus standi
Shamsul Saad v. Tengku Dato' Ibrahim Petra Tengku Indra Petra & Ors
(Mah Weng Kwai JC) [2010] 8 CLJ 357 [HC]

Summary application - Purchase of land - Registrar of Land Titles - Search certificate, issuance of - Search result certified fraudster as registered proprietor of land - Claim for compensation for loss of purchase price - Whether Registrar liable - Whether suitable case for summary disposal - Rules of the High Court 1980, O. 14A - National Land Code, ss. 22, 386
Poh Yang Hong v. Ng Lai Yin & Ors
(Lee Swee Seng JC) [2010] 8 CLJ 323 [HC]

COMPANY LAW

Derivative action - Fraud on the minority - Suit against directors - Alleged fraud on the minority - Whether a requirement in a pleading that defendants are in control of Board of Directors of aggrieved company - Whether a requirement for a demand to be made for aggrieved company to seek legal remedies against controlling Directors before a minority shareholder can commence legal proceedings
Shamsul Saad v. Tengku Dato' Ibrahim Petra Tengku Indra Petra & Ors
(Mah Weng Kwai JC) [2010] 8 CLJ 357 [HC]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Appeal against conviction and death sentence - Whether trial judge erred in holding that charge against accused proved beyond reasonable doubt
Sita Raman Ramasamy v. PP
(Low Hop Bing, Abdul Malik Ishak & Wan Adnan Muhamad JJCA) [2010] 8 CLJ 267 [CA]

CRIMINAL PROCEDURE

Sentence - Appeal against sentence - Concurrent or consecutive - Governing principles - One transaction rule and totality principle - Whether exception to rule applied - Penal Code, s. 304
PP v. Prabu Veeramuthu & Ors
(Suriyadi Halim Omar, Hasan Lah & Ahmad Maarop JJCA) [2010] 8 CLJ 257 [CA]

FAMILY LAW

Adoption - Eligibility to apply for adoption order - Husband and wife applicants were Australian citizens on work pass - Whether "ordinarily resident" under s. 4(3) Adoption Act 1952 to qualify for adoption order
Neil Duncan Gillies & Anor v. Liew Mei Ling & Ors
(Yeoh Wee Siam JC) [2010] 8 CLJ 310 [HC]

LAND LAW

Sale of land - Registrar of Land Titles - Search certificate, issuance of - Search result certified fraudster as registered proprietor of land - Whether Registrar liable to purchaser thereof - Whether to compensate purchaser - Whether entitled to any statutory protection - National Land Code, ss. 22, 386
Poh Yang Hong v. Ng Lai Yin & Ors
(Lee Swee Seng JC) [2010] 8 CLJ 323 [HC]

POLICE

Disciplinary proceedings - Dismissal - Dismissal of lance corporal for failure to note in diary and to make police report regarding gambling raid operation - Whether termination in breach of natural justice - Regulations 2(7), 2(46) & 3 of Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970
Zulkifli Hashim v. Ketua Polis Daerah Barat Daya Balik Pulau, Pulau Pinang & Ors And Another Appeal
(Heliliah Mohd Yusof, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 8 CLJ 276 [CA]

PUBLIC AUTHORITIES

Registrar of Land Titles - Breach of statutory duty - Negligence - Search certificate, issuance of - Search result certified fraudster as registered proprietor of land - Whether Registrar liable to purchaser thereof - Whether to compensate purchaser - Whether entitled to any statutory protection - National Land Code, ss. 22, 386
Poh Yang Hong v. Ng Lai Yin & Ors
(Lee Swee Seng JC) [2010] 8 CLJ 323 [HC]

PUBLIC SERVANTS

Dismissal - Dismissal of police officer - Lance corporal dismissed for failing to note in diary and to make police report regarding gambling raid operation - Whether termination in breach of natural justice - Regulations 2(7), 2(46) & 3 of Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970
Zulkifli Hashim v. Ketua Polis Daerah Barat Daya Balik Pulau, Pulau Pinang & Ors And Another Appeal
(Heliliah Mohd Yusof, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 8 CLJ 276 [CA]

SUCCESSION

Distribution of estate - Claim to be included in proposed Memorandum of Transfer - Parties of Muslim faith - Whether claim within purview of Syariah Court and not civil court
Rosdi Hj Zakaria & Anor v. Mohamad Nassir Said
(Ravinthran Paramaguru JC) [2010] 8 CLJ 335 [HC]

TRUSTS

Trusts - Receiver and manager, application for appointment - Whether requirements for appointment satisfied - Whether trust property in jeopardy - Whether also application for injunction to restrain trust assets from being dissipated allowed
Saling Lau Bee Chiang & Ors v. Kanawagi Seperumaniam & Ors
(Vernon Ong Lam Kiat JC) [2010] 8 CLJ 347 [HC]

WORDS & PHRASES

"Ordinarily resident" - Interpretation of - Adoption Act 1952, s. 4(3) - Whether applicant with employment pass "ordinarily resident" under s. 4(3) to qualify for adoption order
Neil Duncan Gillies & Anor v. Liew Mei Ling & Ors
(Yeoh Wee Siam JC) [2010] 8 CLJ 310 [HC]

CASE OF THE WEEK

KUTHUBUL ZAMAN & ANOR v. TJB DEVELOPMENT SDN BHD & ANOR

CONTRACT: Breach - Misrepresentation - Sale of property - Brochure - Oral representation - Brochure and oral representation indicating existence of second access road to property - Failure to build second access thereof - Whether defendant in breach of contract - Representation - Whether a 'warranty collateral to Sale and Purchase Agreement' - Damages

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
PU(A) 362/2010	Advertisements (Federal Territory Of Putrajaya) By-Laws 2002 - Corrigendum	28 October 2010	ACT 171
PU(A) 363/2010	Dental (Amendment Of Second Schedule) Order 2010	28 October 2010	ACT 51
PU(A) 368/2010	Customs (Prohibition Of Exports) (Amendment) Order 2010	1 November 2010	ACT 235
PU(A) 369/2010	Customs (Values) (Palm Oil) (No 44) Order 2010	1 November 2010	ACT 235
PU(A) 370/2010	Customs (Values) (Palm Kernel) (No 11) Order 2010	1 November 2010	ACT 235