Legal Network Series

[2013] 1 LNS 754	DAVI THANGAVALU lwn. CLEANCARE CHEMICAL PRODUCTS MARKETING SDN BHD	JUALAN BARANGAN: Salah respresentasi - Barangan gagal menepati piawaian - Sama ada pembekalan barangan adalah berkualiti dan telah mengikut piawaian yang ditetapkan - Sama ada terdapat aduan atau bantahan daripada defendan terhadap kualiti barangan yang telah dibekalkan KETERANGAN: Pengakuan - Keberhutangan - Sama ada kewujudan perjanjian penyelesaian merupakan pengakuan keberhutangan - Sama ada pemberian cek-cek lewat tarikh merupakan pengakuan keberhutangan KETERANGAN: Keterangan dokumen - Penerimaan - Penerimaan dokumen sebagai keterangan di dalam kes sivil - Sama ada kesahihan dokumen boleh diterima tanpa kehadiran pembuat - Sama ada pembuat dokumen harus dipanggil untuk memberi keterangan apabila dokumen asal telah hilang - Sama ada alasan sebab ketidakhadiran pembuat dokumen telah dijelaskan - Sama ada s. 73A Akta Keterangan 1950 terpakai
[2013] 1 LNS 1182	PEMBINAAN SINTOK SDN BHD v. FBS BINA SDN BHD	COMPANY LAW: Winding up - Stay of order - Application for - No appeal against winding-up order - Whether respondent could apply for the stay pursuant to s. 243(1) of the Companies Act 1965 - Whether only the liquidator, creditor and contributory could do so - No evidence by respondent's creditors, contributories and liquidator on their attitude towards stay of the winding-up - Whether the Court justified in refusing the application in limine - Whether stay should be refused
[2013] 1 LNS 1399	YB DATO' PADUKA HUSAM MUSA v. YB DATO' NOZULA MAT DIAH & ORS	TORT: Defamation - Libel - Publication of defamatory statements by 1st and 2nd defendants and two defamatory news articles by 3rd defendant - Whether the 1st and 2nd news articles were defamatory of plaintiff - Whether plaintiff succeeded in proving all the essential ingredients of the tort of libel TORT: Defamation - Defences - Justification - What must 3rd defendant justify – 1st and 2nd defendants each made a public apology to plaintiff – 3rd defendant only published an unconditional apology after the respective public apologies published by 1st and 2nd defendants - Whether 3rd defendant could rely on defence of justification - Whether requirements under s. 8 of the Defamation Act 1957 were fulfilled by 3rd defendant TORT: Defamation - Defences - Qualified privilege - Whether matter of public interest - Whether steps taken to gather and publish information were responsible and fair - Whether 3rd defendant could rely on defence of qualified privilege on the ground that the words in 2 news articles were matters of public interest - Plaintiff did not plead malice against 3rd defendant - Whether failure of plaintiff to file and serve a reply on the 3rd defendant was fatal to plaintiff's claim TORT: Defamation - Damages - Whether the 2 news articles injured plaintiff's reputation and/or credibility as a politician - Whether plaintiff entitled to damages – 3rd defendant only apologized to plaintiff (17) months after the plaintiff filed suit - Whether plaintiff entitled to an award for aggravated damages – 2nd news article was printed on the front page of the Berita Harian newspaper - Whether an irresistible inference could be drawn by the court that 3rd defendant had published it for the purpose of gaining pecuniary advantage - Whether plaintiff also entitled to an award for exemplary damages
[2014] 1 LNS 109	LEE TECK LIN v. ALLEN LEONG @ LEONG YEW TUCK & ORS	CONTRACT: Sale and purchase of land - Sale and purchase agreement - Consideration - No evidence that the sum of RM130,000.00 was paid to plaintiff by 1st defendant - Whether the Sale and Purchase Agreement and the Supplementary Agreement entered between plaintiff and 1st defendant were void for want of consideration - Contracts Act 1950, s. 26 TORT: Negligence - Banker and customer - Redemption of land - Whether 1st defendant negligent by allowing redemption of land without plaintiff's consent – 1st defendant unaware of any impropriety with regard to sale of the property except for change in solicitors handling redemption transaction - Whether release of documents after redemption was proper in the ordinary course of business - As sale and purchase agreement was void for want of consideration, whether 1st defendant should return the redemption sum to 1st defendant - Whether the prior loan agreement between plaintiff and 1st defendant should be reinstated and status quo remain
[2014] 1 LNS 193	LO MAN HENG v. NAKAMICHI CORPORATION BHD	COMPANY LAW: Winding up - Petition - Disputed debt - Application to strike out petition - Amount claimed not based on a judgment - Whether petition was based on a bona fide disputed debt - Whether respondent established a prima facie dispute on the sum claimed by petitioner in the statutory demand - Whether issue of respondent's insolvency relevant - Collateral purpose - Respondent initiated Suit 519 against inter alia, the petitioner and suit was pending - Whether present petition was an abuse of the process of the Court - Whether winding up petition was initiated for the benefit of the creditors or to stifle Suit 519 against petitioner and his family members - Whether there was a genuine and serious cross claim against the petitioner in Suit 519

CLJ 2014 Volume 8 (Part 4)

COURT

COURT OF APPEAL

Azmer Mustafa v. PP
Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Criminal Law; Evidence - Trafficking in dangerous drugs - Conflicting testimonies - Failure to call material witness) [2014] 8 CLJ 413 [CA]

Chandran G Nair & Ors v. Affin Bank Bhd
Mohamad Ariff Yusof, Mah Weng Kwai, David Wong Dak Wah JJCA
(Legal Profession; Evidence - Duty of care - Negligence) [2014] 8 CLJ 434 [CA]

Teh Swee Lip v. Jademall Holdings Sdn Bhd
Ramly Ali, David Wong Dak Wah, Mohd Zawawi Salleh JJCA
(Contract - Breach - Oral agreement - Whether formal agreement signed) [2014] 8 CLJ 451 [CA]

HIGH COURT

John Andrew Malthouse v. Cyril Steven & Ors
Ravinthran Paramaguru J
(Civil Procedure - Damages - Assessment of damages) [2014] 8 CLJ 461 [HC]

Lau Pick Huong v. Soh Huang Siah
Mairin Idang JC
(Civil Procedure - Judgments and orders - Default judgment - Service) [2014] 8 CLJ 488 [HC]

Lee Aik Chong v. Perdana Merchant Bankers Bhd
Hasnah Mohammed Hashim J
(Bankruptcy - Discharge - Application for - Importance of Director General of Insolvency's report) [2014] 8 CLJ 509 [HC]

Lynawati Abdullah v. Abang Sukori Abang Hj Gobil & Ors
Rhodzariah Bujang J
(Native Law And Custom; Civil Procedure - Jurisdiction of court - Certiorari) [2014] 8 CLJ 527 [HC]

Molly Margrete Andrew Gomez v. Tan Suat Ching & Anor
Zaleha Yusof J
(Legal Profession - Misconduct) [2014] 8 CLJ 536 [HC]

SUBJECT INDEX

BANKRUPTCY

Discharge - Application for - Dismissal of application - Appeal against order - Importance of Director General of Insolvency's ('DGI') report - Whether complete and reliable report - Whether DGI considered offence committed by bankrupt - Delay in submitting statement of affairs - Whether dividend declared was sufficient - Whether court considered interest of public and commercial morality - Bankruptcy Act 1967, ss. 16(2)(a), 31 & 33(3)
Lee Aik Chong v. Perdana Merchant Bankers Bhd
(Hasnah Mohammed Hashim J) [2014] 8 CLJ 509 [HC]

CIVIL PROCEDURE

Certiorari - Application for leave - Application for certiorari against decision of Native Court of Appeal to High Court - Native Court of Appeal held applicant non-native and could not acquire any right over land - Whether High Court vested with power to review decision of Native Court of Appeal - Decision in Haji Laugan Tarki bin Mohd Noor v. Mahkamah Anak Negeri Penampang - Whether binding
Lynawati Abdullah v. Abang Sukori Abang Hj Gobil & Ors
(Rhodzariah Bujang J) [2014] 8 CLJ 527 [HC]

Damages - Assessment of damages - Plaintiff shot in head by auxiliary policeman - Survived but suffered serious brain injury - Damages assessed by Deputy Registrar - Award of general damages - Whether excessive - Whether consistent with awards in other cases
John Andrew Malthouse v. Cyril Steven & Ors
(Ravinthran Paramaguru J) [2014] 8 CLJ 461 [HC]

Judgments and orders - Default judgment - Judgment in default served by way of prepaid registered post - Whether should have been served on defendant's solicitors - Whether proper service
Lau Pick Huong v. Soh Huang Siah
(Mairin Idang JC) [2014] 8 CLJ 488 [HC]

Judgments and orders - Default judgment - Setting aside, of - Appeal against - Application six days out of time - Whether court failed to consider reasons for delay - Whether service of writ regular - Irregular judgment - Whether judgment served on defendant - Whether application for setting aside allowed - Rules of Court 2012, O. 42 r. 13
Lau Pick Huong v. Soh Huang Siah
(Mairin Idang JC) [2014] 8 CLJ 488 [HC]

Pleadings - Statement of claim - Writ and statement of claim served by way of prepaid registered post - Whether should have been served on defendant's solicitors - Whether service regular - Whether judgment in default liable to be set aside
Lau Pick Huong v. Soh Huang Siah
(Mairin Idang JC) [2014] 8 CLJ 488 [HC]

Rules of court - Non-compliance - Application to set aside judgment in default - Non-compliance with rules on procedure on filing application - Whether curable - Rules of Court 2012, O. 1A
Lau Pick Huong v. Soh Huang Siah
(Mairin Idang JC) [2014] 8 CLJ 488 [HC]

Service - Post, service by - Presumption of service - Service of judgment in default by prepaid registered post - Pos Malaysia website showing status of delivery as "still attempting to deliver" - Whether presumption of service rebutted - Whether judgment served - Interpretation Acts 1948 and 1967, s. 12
Lau Pick Huong v. Soh Huang Siah
(Mairin Idang JC) [2014] 8 CLJ 488 [HC]

CONTRACT

Breach - Oral agreement - Joint venture agreement for development of land - Whether there was termination of agreement between original developer and deceased - Whether there was oral agreement allowing respondent to take over project - Failure to call pivotal witness - Evidence Act 1950, s. 114(g) - Whether invoked - Correspondences showed parties still negotiating terms and conditions of agreement - Whether formal agreement signed
Teh Swee Lip v. Jademall Holdings Sdn Bhd
(Ramly Ali, David Wong Dak Wah, Mohd Zawawi Salleh JJCA) [2014] 8 CLJ 451 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Sequence of events - Location of drugs - Whether there were conflicting testimonies - Whether appellant's defence considered - Whether non-production of material witness gave rise to adverse inference under s. 114(g) of Evidence Act 1950 - Whether exhibits tendered were in relation to charge - Whether there was a mix up of exhibits - Whether storekeeper should have been called as witness
Azmer Mustafa v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 8 CLJ 413 [CA]

EVIDENCE

Admissibility - Non-calling of maker of evidence - Recovery of debt - Certificate of indebtedness - Whether sum proven - Maker of certificate of indebtedness not called - Whether maker of certificate either dead or unfit by reason of his bodily or mental condition to attend as witness - Whether certificate sufficient to prove measure of loss - Evidence Act 1950, s. 73A(1)
Chandran G Nair & Ors v. Affin Bank Bhd
(Mohamad Ariff Yusof, Mah Weng Kwai, David Wong Dak Wah JJCA) [2014] 8 CLJ 434 [CA]

Adverse inference - Failure to call material witness - Trafficking in dangerous drugs - Key witness - Failure to tender witness statement under s. 112 of Criminal Procedure Code - Whether failure crippled prosecution's case - Whether non-production of witness gave rise to adverse inference - Evidence Act 1950, s. 114(g)
Azmer Mustafa v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 8 CLJ 413 [CA]

LEGAL PROFESSION

Duty of care - Negligence - Solicitors appointed to commence civil proceedings for recovery of money - Failure to file proof of debt within time permitted - Lapse of time - Claim by client for loss of opportunity to recover monies due and owing - Whether solicitors negligent
Chandran G Nair & Ors v. Affin Bank Bhd
(Mohamad Ariff Yusof, Mah Weng Kwai, David Wong Dak Wah JJCA) [2014] 8 CLJ 434 [CA]

Misconduct - Acting in a manner unbefitting of an advocate and solicitor - Continuing to appear for client after instructed otherwise - Whether contrary to s. 94(3)(n) & (o) of Legal Profession Act 1976
Molly Margrete Andrew Gomez v. Tan Suat Ching & Anor
(Zaleha Yusof J) [2014] 8 CLJ 536 [HC]

NATIVE LAW AND CUSTOM

Jurisdiction of court- Certiorari - Land dispute - Native Court of Appeal decided that first respondent was rightful owner of lands - Applicant held to be a non-native and could not acquire any right over lands - Application for certiorari against decision of Native Court of Appeal to High Court - Whether High Court vested with power to review decision of Native Court of Appeal - Decision in Haji Laugan Tarki bin Mohd Noor v. Mahkamah Anak Negeri Penampang - Whether binding
Lynawati Abdullah v. Abang Sukori Abang Hj Gobil & Ors
(Rhodzariah Bujang J) [2014] 8 CLJ 527 [HC]

ARTICLE

Legal Network Series Article(s)

1. PENGGUNAAN TEKNOLOGI MODEN SEBAGAI QARINAH
    DALAM PENSABITAN NASAB: SATU KAJIAN UMUM
    MENURUT UNDANG-UNDANG KETERANGAN ISLAM* ^{[Read excerpt]}
    oleh: WAN ABDUL FATTAH BIN WAN ISMAIL** [2014] 1 LNS(A) cvi

2. SETTING ASIDE STATUTORY DEMANDS*
    A walk in the park, or along the precipice? ^{[Read excerpt]}
    by: MARCUS HASSALL** [2014] 1 LNS(A) cvii

LEGISLATION HIGHLIGHTS

Principal Acts

Number	Title	Date coming into force	Repealing
ACT 763	Yayasan Guru Tun Hussein Onn Act 2014	Not Yet In Force	-Nil-
ACT 762	Goods And Services Tax Act 2014	1 July 2014 - Parts I, II, IV, VI and XVI, ss 10, 11, 17, 18, 33, 34, 35, 36, 37, 40, 44, 50, 56, 59, 61, 64, 65, 69, 71, 72, 73, 74, 75, 80, 81, 82, 83, 85, 86, 87, 92, 93, 95, 96, 97, 99, 100, 101, 102, 103, 104, 105, 107, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 160, 163, 183, 184 and 197, the First Schedule and Second Schedule to the Act; 1 April 2015 - Parts IX, XIII, XVII and XVIII, ss 9, 12, 13, 14, 15, 16, 38, 39, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, 57, 58, 60, 62, 63, 66, 67, 68, 70, 84, 88, 89, 90, 91, 94, 98, 106, 108, 109, 110, 122, 154, 155, 156, 157, 158, 159, 161, 162, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195 and 196, the Third Schedule and Fourth Schedule to the Act [PU(B) 319/2014]	-Nil-
ACT 761	Finance Act 2014	See s 3 for the Income Tax Act; s 33 for the Stamp Act; s 36 for the Petroleum (Income Tax) Act; s 44 for the Real Property Gains Tax Act and s 50 for the Labuan Business Activity Tax Act	-Nil-
ACT 760	Fees (Department Of Museums Malaysia) (Validation) Act 2014	1 January 1991 to 11 June 2012	-Nil-
ACT 759	Islamic Financial Services Act 2013	30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9	-Nil-

Amending Acts

Number	Title	Date coming into force	Principal/Amending Act No
ACT A1468	Promotion Of Investments (Amendment) Act 2014	See section 1(1) to 1(33) of the Act	ACT 327
ACT A1467	Anti-Money Laundering And Anti-Terrorism Financing (Amendment) Act 2014	8 August 2014 - s 78 only; 1 September 2014 except ss 22 and 26 - 1 October 2014 [PU(B) 400/2014]	ACT 613
ACT A1466	Supplementary Supply (2014) Act 2014	25 July 2014	-Nil-
ACT A1465	Private Higher Educational Institutions (Amendment) Act 2014	25 July 2014	ACT 555
ACT A1464	Price Control And Anti-Profiteering (Amendment) Act 2014	1 September 2014 [PU(B) 399/2014]	ACT 723

PU(A)

Number	Title	Date of Publication	Date coming into force	Principal/Amending Act No
PU(A) 280/2014	Price Control And Anti-Profiteering (Determination Of Maximum Price) (No. 5) Order 2014	17 October 2014	18 October 2014 to 27 October 2014	ACT 723
PU(A) 279/2014	Control Of Supplies (Controlled Articles) (No. 5) Order 2014	17 October 2014	18 October 2014 to 27 October 2014	ACT 122
PU(A) 278/2014	Dental (Reduction Of Public Service Period) Order 2014	17 October 2014	18 October 2014	ACT 51
PU(A) 277/2014	Dental (Exemption Of Public Service Period) Order 2014	17 October 2014	18 October 2014	ACT 51
PU(A) 276/2014	Customs (Provisional Anti-Dumping Duties) Order 2014	16 October 2014	17 October 2014 to 13 February 2015	ACT 504; ACT 235

PU(B)

Number	Title	Date of Publication	Date coming into force	Principal/Amending Act No
PU(B) 441/2014	Reservation Of Land For Public Purpose For Lot 38966 Mukim Batu	10 October 2014	11 October 2014	ACT 56/1965
PU(B) 440/2014	Reservation Of Land For Public Purpose For Lot 66792 Mukim Batu	10 October 2014	11 October 2014	ACT 56/1965
PU(B) 439/2014	Reservation Of Land For Public Purpose For Lot 41806 Mukim Petaling	10 October 2014	11 October 2014	ACT 56/1965
PU(B) 438/2014	Reservation Of Land For Public Purpose For Lot 201114 Mukim Setapak	10 October 2014	11 October 2014	ACT 56/1965
PU(B) 437/2014	Reservation Of Land For Public Purpose For Lot 201113 Mukim Setapak	10 October 2014	11 October 2014	ACT 56/1965

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