Legal Network Series

[2011] 1 LNS 853	SUBRAMANIAM MUNIANDAY v. AMBANK (M) BERHAD	EVIDENCE: Documentary evidence - Transaction slips - Whether respondent's failure in adducing transaction slips in Court fatal to respondent's case - Whether appellant well aware of transactions concerned - Whether only fatal if appellant not aware which transaction involved - Whether transaction slips belonged to MBF Cards (M'sia) Sdn. Bhd. and appellant's remedy if any, was against them CONTRACT: Privity - Whether respondent privy to Card Agreement that regulated relationship between appellant and MBF Cards and bound by its terms - Whether Credit Line Agreement was Agreement that governed the relationship between appellant and respondent - Whether appellant liable to pay respondent any amount disbursed for usage of appellant's Mastercard - Whether appellant liable to pay the outstanding amount under the Credit Line Agreement to respondent CONTRACT: Fraud - Whether respondent was a party to Card Agreement which provided for defence of fraud - Whether defence of fraud could only be brought by appellant against MBF Cards - Whether appellant entitled to raise defence of fraud against respondent - Whether appellant failed to prove fraud
[2011] 1 LNS 866	YEE TECK FAH v. RIATI CHIA SDN BHD	TORT: Defamation - Libellous letter - Whether words complained of in defendant's letter to plaintiff's legal firm was defamatory or capable of a defamatory meaning - Whether issuance of letter made in defendant's capacity as a former client of plaintiff's legal firm - Whether issuance of letter justifiable given plaintiff's blatant failure to keep defendant adequately informed of the outcome and status of his suit - Whether letter intended to injure plaintiff's character, integrity and reputation - Whether brought plaintiff into public scandal, odium and contempt - Letter was for attention of plaintiff's legal assistant and remained in office - Whether any publication to a third party
[2011] 1 LNS 906	PP v. CHAW CHENG KIONG	CRIMINAL LAW: Penal Code - s. 300 - Murder - Whether accused intended to cause deceased's death when he stabbed deceased twice in the chest causing fatal injuries - Whether in the absence of explanation by accused this was murder within meaning of s. 300 (a) of the Penal Code - Whether even if accused's act did not fall under s. 300(a), it fell under s. 300(c) - Whether a prima facie case had been established against accused CRIMINAL PROCEDURE: Defence - Private defence, right of - Accused's defence was defence of right of self preservation - Whether accused entitled to exercise right of private defence - Whether accused had apprehension of such injury to his body as would entitle him to exercise the right - Whether accused was acting in self defence when he killed deceased - Whether accused exceeded right of private defence - Whether accused had every right to take whatever steps and by whatever means within his power to remove threat from his attacker - Whether no offence committed - Penal Code, s. 96 - Whether accused entitled to an acquittal EVIDENCE: Circumstantial evidence - Murder - Whether irresistible and only reasonable inference was that it was accused who caused death of deceased
[2011] 1 LNS 920	AEON CO (M) BHD v. DWITASIK SDN BHD	CONTRACT: Sale and purchase of land - Specific performance - Plaintiff's entitlement to specific performance expressly excluded non-fulfilment of conditions precedent which included any failure to obtain the Development Order - DBKL finally rejected plaintiff's appeal and regarded the Sale and Purchase Agreement as terminated - Whether entire substratum of dispute between the two immediate parties had disappeared CONTRACT: Sale and purchase of land - Contingent contract - Legal effect of failure of the condition precedent to the validity of the Sale and Purchase Agreement - Whether rendered contract as a contingent contract within s. 33(a) of the Contracts Act 1950 - Whether failure of such a condition precedent rendered contract void CONTRACT: Interpretation - Whether defendant was in breach of sale and purchase agreement in relation to failure to procure Development Order - Whether argument taken by plaintiff tantamount to not assigning most appropriate meaning to language of text which the words could legitimately bear - Whether meaning plaintiff sought to advance implausible - Whether effectively required defendant to guarantee issuance of Development Order no matter what the financial consequences or the contractual context
[2011] 1 LNS 940	JUPITER SECURITIES SDN BHD v. PACIFIC & ORIENT INSURANCE CO BERHAD	INSURANCE: Construction of policy - Indemnity - Whether loss sustained by plaintiff was an indemnifiable loss - Whether loss was one of the types of incidents meant to be covered under s. 4 of the Insurance Policy - Whether fidelity insurance was designed to protect the Insured plaintiff against loss incurred as a result of breach of fidelity by its Employee - Whether the dishonest and fraudulent actions of plaintiff's Employee, CSG, caused plaintiff to suffer loss - Whether dishonest or fraudulent acts of CSG were committed with intent to make and resulted in improper financial gain for him - Whether fact there was financial gain at some point coupled with the "manifest intention" to make gain sufficed to meet requirements of s. 4 of the Insurance Policy SECURITIES: Remisier - Whether plaintiff's remisier, CSG, dishonestly and/or fraudulently misused the account of LWC to buy and sell shares without her approval or instructions for his own benefit and to obtain financial gain for himself - Whether CSG used LWC's particulars to open a trading account with plaintiff and thus defrauded plaintiff - Whether using the name of another to open a trading account, trading in the said account and subsequently acting as remisier for such trades amounted to gross dishonest and fraudulent behaviour

CLJ 2013 Volume 8 (Part 7)

COURT

COURT OF APPEAL

Jaafar Mohd Khalid v. Hong Leong Bank Bhd
Abu Samah Nordin, Hishamudin Mohd Yunus, Mohamad Ariff Yusof JJCA
(Tort; Limitation - Negligence - Banks - Accrual of cause of action) [2013] 8 CLJ 869 [CA]

Ketua Pengarah Hasil Dalam Negeri & Anor v. Maxis Communication Bhd
Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA
(Company Law; Revenue Law - Shares - Scheme to offer shares to employees - Whether ss. 25(1A) & 32(1A) Income Tax Act 1967 applicable) [2013] 8 CLJ 883 [CA]

Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur
Mohamed Apandi Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA
(Administrative Law: Constitutional Law; Words & Phrases - Newsletter of Catholic Church - Prohibition from using word 'Allah' in reference to 'God' in Malay version of newsletter - Whether constitutional) [2013] 8 CLJ 890 [CA]

HIGH COURT

Poh Yang Hong v. Ng Lai Yin & Ors
Su Geok Yiam J
(Public Authorities: Land Law - Registrar of titles - Breach of statutory duty) [2013] 8 CLJ 964 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Exercise of discretion - Exercise of discretion by Minister - Publication permit - Imposition of condition in permit - Newsletter of Catholic Church - Prohibition from using word 'Allah' in reference to 'God' in Malay version of newsletter - Whether prohibition reasonable - Whether usage of word would create distrust and disharmony between Muslims and Christians - Whether would disturb even tempo of life within community - Whether would harm public order and safety - Whether Minister had valid factual basis to impose condition - Whether Minister's decision valid and lawful - Whether constitutional - Printing Presses and Publications Act 1984, ss. 6, 12, 26 - Printing Presses and Publications (Licences and Permits) Rules 1984, r. 3, First Schedule - Federal Constitution, arts. 3(1), 11(1), (4) - Interpretation Acts 1948 and 1967, ss. 93, 95
Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur
(Mohamed Apandi Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA) [2013] 8 CLJ 890 [CA]

Judicial review - Exercise of discretion - Exercise of discretion by Minister - Publication permit - Imposition of condition in permit - Power and function of Minister - Whether exercise of discretion reasonable - Whether valid and in accordance with law - Whether offending Wednesbury principles - Printing Presses and Publications Act 1984, ss. 6, 12, 26 - Printing Presses and Publications (Licences and Permits) Rules 1984, r. 3, First Schedule - Federal Constitution arts. 3, 10, 11, 12 - Interpretation Acts 1948 and 1967, ss. 93, 95
Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur
(Mohamed Apandi Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA) [2013] 8 CLJ 890 [CA]

COMPANY LAW

Shares - Dealing by company in its own shares - Scheme to offer shares to employees - Company could not honour obligations due to take over - Employees accepted Equivalent Cash Consideration ('ECC') - Whether ECC payment ordinary cash remuneration - Whether s. 13(1)(a) Income Tax Act 1967 applied - Whether there was vesting of shares the rights to which may be exercised, assigned, released or acquired - Whether ss. 25(1A) & 32(1A) Income Tax Act 1967 applicable
Ketua Pengarah Hasil Dalam Negeri & Anor v. Maxis Communication Bhd
(Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA) [2013] 8 CLJ 883 [CA]

CONSTITUTIONAL LAW:

Fundametal liberties - Freedom of religion - Whether extending only to practices and rituals forming essential and integral part of religion - Newsletter of Catholic Church - Conditions to permit - Prohibition from using word 'Allah' in reference to 'God' in Malay version of newsletter - Whether transgressing respondent's constitutional rights - Whether usage of word would offend sanctity of Islam as religion of Federation - Whether word 'Allah' an integral part of Christianity - Whether decision of Minister constitutional - Federal Constitution, arts. 3(1), 11(1), (4) - Printing Presses and Publications Act 1984, ss. 6, 12, 26 - Printing Presses and Publications (Licences and Permits) Rules 1984, r. 3, First Schedule
Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur
(Mohamed Apandi Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA) [2013] 8 CLJ 890 [CA]

Fundamental liberties - Freedom of religion - Freedom of speech and expression - Whether not absolute in nature - Whether subject to constitutional constraints - Publication of religious materials - Whether must not offend sanctity of Islam as religion of Federation - Whether must not disturb even tempo of life within community - Whether must not harm public order and safety - Federal Constitution, arts. 3(1), 10, 11(1), (4) - Printing Presses and Publications Act 1984, ss. 6, 12, 26 - Printing Presses and Publications (Licences and Permits) Rules 1984, r. 3, First Schedule
Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur
(Mohamed Apandi Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA) [2013] 8 CLJ 890 [CA]

LAND LAW

Sale of land - Registrar of Titles - Breach of statutory duty - Negligence - Failure to maintain true and accurate records of particulars of land - Whether plaintiff suffered loss and damages as a result of second defendant's negligence - Whether second and third defendants could invoke and rely on acts of fraudster to protect themselves from liability - Whether second and third defendants liable for losses suffered by plaintiff - National Land Code, ss. 22, 386 & 434
Poh Yang Hong v. Ng Lai Yin & Ors
(Su Geok Yiam J) [2013] 8 CLJ 964 [HC]

LIMITATION

Accrual of cause of action - Action for negligence - Whether action filed within six years from date of alleged act of negligence - Whether suit premised on fraud - Whether action time-barred - Whether plaintiff could rely on s. 29(a) Limitation Act 1953
Jaafar Mohd Khalid v. Hong Leong Bank Bhd
(Abu Samah Nordin, Hishamudin Mohd Yunus, Mohamad Ariff Yusof JJCA) [2013] 8 CLJ 869 [CA]

PUBLIC AUTHORITIES

Registrar of Titles - Breach of statutory duty - Negligence - Failure to maintain true and accurate records of particulars of land - Whether plaintiff suffered loss and damages as a result of second defendant's negligence - Whether second and third defendants could invoke and rely on acts of fraudster to protect themselves from liability - Whether second and third defendants liable for losses suffered by plaintiff - Whether second and third defendants legally bound to compensate plaintiff - National Land Code, ss. 22, 386 & 434
Poh Yang Hong v. Ng Lai Yin & Ors
(Su Geok Yiam J) [2013] 8 CLJ 964 [HC]

REVENUE LAW

Shares - Scheme to offer shares to employees - Company could not honour obligations due to take over - Employees accepted Equivalent Cash Consideration ('ECC') - Whether ECC payment ordinary cash remuneration - Whether s. 13(1)(a) Income Tax Act 1967 applied - Whether there was vesting of shares the rights to which may be exercised, assigned, released or acquired - Whether
ss. 25(1A) & 32(1A) Income Tax Act 1967 applicable
Ketua Pengarah Hasil Dalam Negeri & Anor v. Maxis Communication Bhd
(Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA) [2013] 8 CLJ 883 [CA]

TORT

Malicious prosecution - Elements of tort - Plaintiff's default as guarantor to repay loan sum - Bankruptcy proceeding - Receiving and adjudicating orders - Annulment and recession - Whether plaintiff prosecuted based on a criminal charge - Tort of malicious civil proceedings - Whether reasonable and probable cause shown - Whether elements of malicious prosecution present
Jaafar Mohd Khalid v. Hong Leong Bank Bhd
(Abu Samah Nordin, Hishamudin Mohd Yunus, Mohamad Ariff Yusof JJCA) [2013] 8 CLJ 869 [CA]

Negligence - Banks - Plaintiff's default as guarantor to repay loan sum - Judgement in default obtained in Sessions Court - Bankruptcy proceeding - Annulment of receiving and adjudicating orders - Whether bank owed plaintiff a duty of care - Whether a commercial relationship existed between bank and plaintiff - Whether bank negligent in processing loan documents - Whether signature in agreement was that of plaintiff - Whether plaintiff could have sued bank for fraud instead of negligence - Whether claim time-barred - Whether plaintiff could rely on s. 29(a) Limitation Act 1953
Jaafar Mohd Khalid v. Hong Leong Bank Bhd
(Abu Samah Nordin, Hishamudin Mohd Yunus, Mohamad Ariff Yusof JJCA) [2013] 8 CLJ 869 [CA]

WORDS & PHRASES

"in peace and harmony" - Federal Constitution, art. 11(3)(1) - Constitutional and historical significance of phrase
Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur
(Mohamed Apandi Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA) [2013] 8 CLJ 890 [CA]

CLJ 2013 Volume 8 (Part 8)

COURT

COURT OF APPEAL

Freescale Semiconductor Malaysia Sdn Bhd v. Edwin Michael Jalleh & Anor
Abdul Wahab Patail, Clement Allan Skinner, Mah Weng Kwai JJCA
(Labour Law - Employment - Dismissal - Sexual harassment) [2013] 8 CLJ 1001 [CA]

Manoharan Malayalam & Anor v. Dato' Seri Mohd Najib Tun Hj Abdul Razak & Ors
Hishamudin Mohd Yunus, Abdul Aziz Rahim, Mohamad Ariff Yusof JJCA
(Civil Procedure - Locus standi - Declaration decree and relief against government) [2013] 8 CLJ 1010 [CA]

HIGH COURT

ABT Construction Sdn Bhd & Anor v. Tribunal Tuntutan Pembeli Rumah & Ors
Varghese George J
(Civil Procedure; Contract; Land Law - Judicial review - Homebuyer Tribunal - Jurisdiction) [2013] 8 CLJ 1020 [HC]

Isuta International Sdn Bhd & Ors v. Mahkamah Perusahaan Malaysia & Anor
Varghese George J
(Administrative Law; Company Law; Words And Phrases - Claim against company under liquidation) [2013] 8 CLJ 1040 [HC]

Mah Siew Seng & Anor v. Seema Development Sdn Bhd & Another Case
Lee Swee Seng JC
(Civil Procedure - Setting aside - Assesment of damages in absence of defendant) [2013] 8 CLJ 1058 [HC]

Positive Well Marketing Sdn Bhd v. OKA Concrete Industries Sdn Bhd
Umi Kalthum Abd Majid J
(Civil Procedure - Cost - Getting-up fee - Whether case involved difficult question of law) [2013] 8 CLJ 1083 [HC]

Shell Malaysia Trading Sdn Bhd v. Pentadbir Tanah Wilayah Persekutuan
Vazeer Alam Mydin JC
(Land Law - Acquisition of land - Compensation - Methods of valuation) [2013] 8 CLJ 1095 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for - Interim award by Industrial Court - Claim by employee against company under liquidation - Whether leave of High Court required - Whether Industrial Court within effects of s. 226(2) and (3) of Companies Act 1965 - Whether liquidators privy to dismissal of employee - Whether liquidators could be added as parties
Isuta International Sdn Bhd & Ors v. Mahkamah Perusahaan Malaysia & Anor
(Varghese George J) [2013] 8 CLJ 1040 [HC]

CIVIL PROCEDURE

Costs - Appeal as to costs - Whether plaintiff incurred unnecessary and unreasonable expert fees by commissioning experts - Whether cheaper experts available - Whether matter highly technical
Positive Well Marketing Sdn Bhd v. OKA Concrete Industries Sdn Bhd
(Umi Kalthum Abd Majid J) [2013] 8 CLJ 1083 [HC]

Costs - Getting-up fee - Appeal to High Court - Whether case complex - Whether involved difficult question of law - Whether Senior Assistant Registrar taken into account correct principles of law - Whether sum allowed reasonable
Positive Well Marketing Sdn Bhd v. OKA Concrete Industries Sdn Bhd
(Umi Kalthum Abd Majid J) [2013] 8 CLJ 1083 [HC]

Judicial review - High Court - Contractor/vendor unlicensed housing developer - Application to quash award of Homebuyer Tribunal - Whether Tribunal had jurisdiction to deal with purchaser's claim - Whether Tribunal's jurisdiction limited to cause of action which arose between home buyer and licensed housing developer - Housing Development (Control and Licensing) Act 1966, s. 16N(2)
ABT Construction Sdn Bhd & Anor v. Tribunal Tuntutan Pembeli Rumah & Ors
(Varghese George J) [2013] 8 CLJ 1020 [HC]

Locus standi - Declaration decree and relief against government - Allegation of violation of Federal Constitution - Whether adverse effect to personal rights must be shown - Federal Constitution, arts. 4, 8 & 12
Manoharan Malayalam & Anor v. Dato' Seri Mohd Najib Tun Hj Abdul Razak & Ors
(Hishamudin Mohd Yunus, Abdul Aziz Rahim, Mohamad Ariff Yusof JJCA) [2013] 8 CLJ 1010 [CA]

Setting aside - Orders of damages - Assessment of damages in absence of defendant - Whether assessment of damages made on merits and evidence - Application to set aside orders or re-hearing of assessment of damages - Delay of six years and three years in filing of applications - Whether orders might be set aside by court - Whether delay inordinate and unexplained - Rules of the High Court 1980, O. 37 r. 2
Mah Siew Seng & Anor v. Seema Development Sdn Bhd & Another Case
(Lee Swee Seng JC) [2013] 8 CLJ 1058 [HC]

COMPANY LAW

Winding up - Claim by employee against company under liquidation - Whether leave of High Court required - Whether Industrial Court within effects of s. 226(2) or (3) Companies Act 1965
Isuta International Sdn Bhd & Ors v. Mahkamah Perusahaan Malaysia & Anor
(Varghese George J) [2013] 8 CLJ 1040 [HC]

CONTRACT

Housing development - Sale and purchase agreement - Interpretation of sale and purchase agreement - Whether Homebuyer Tribunal could rewrite terms of sale and purchase agreement - Whether terms in sale and purchase agreement could be replaced with terms as in Schedule G of the Housing Development (Control and Licensing) Regulations 1989 - Terms on handing over of vacant possession contradicted with Schedule G - Whether Schedule G prevailed against agreement
ABT Construction Sdn Bhd & Anor v. Tribunal Tuntutan Pembeli Rumah & Ors
(Varghese George J) [2013] 8 CLJ 1020 [HC]

LABOUR LAW

Employment - Dismissal - Misconduct - Sexual harassment - Magnitude of misconduct - Whether first respondent took advantage of subordinate - Industrial Court awarded compensation in lieu of reinstatement - Whether Industrial Court exercised jurisdiction fairly - Whether compensation in lieu of reinstatement imposed punishment upon company
Freescale Semiconductor Malaysia Sdn Bhd v. Edwin Michael Jalleh & Anor
(Abdul Wahab Patail, Clement Allan Skinner, Mah Weng Kwai JJCA) [2013] 8 CLJ 1001 [CA]

Housing developers - "Housing development", meaning of - Whether contractor/vendor a "developer" within s. 3 of Housing Development (Control and Licencing) Act 1966 - Whether provisions applied to housing developers who neglected to obtain licence - Whether powers of Tribunal intertwined with provisions of 1966 Act
ABT Construction Sdn Bhd & Anor v. Tribunal Tuntutan Pembeli Rumah & Ors
(Varghese George J) [2013] 8 CLJ 1020 [HC]

Industrial Court - Decision - Sexual harassment in workplace - Whether court exercised jurisdiction fairly - Whether relevant matters considered - Award of - Whether compensation in lieu of reinstatement warranted - Whether award imposed punishment upon company
Freescale Semiconductor Malaysia Sdn Bhd v. Edwin Michael Jalleh & Anor
(Abdul Wahab Patail, Clement Allan Skinner, Mah Weng Kwai JJCA) [2013] 8 CLJ 1001 [CA]

LAND LAW

Acquisition of land - Acquisition by government - Compensation payable in land reference - Interest of sublease - Whether compensation to be based on market value at time of acquisition - Whether premium/rental could be used as basis to calculate value of interest in land - Whether Land Acquisition Act 1960 allowed claims for loss of actual earnings - Land Acquisition Act 1960, s. 12(1), First Schedule, paras. 2(d), 2(e)
Shell Malaysia Trading Sdn Bhd v. Pentadbir Tanah Wilayah Persekutuan
(Vazeer Alam Mydin JC) [2013] 8 CLJ 1095 [HC]

Acquisition of land - Methods of valuation - Whether calculation of market value of land and market value of building and structures correct - Whether cost for removal could be claimed - Whether incurred in discharge of statutory duty
Shell Malaysia Trading Sdn Bhd v. Pentadbir Tanah Wilayah Persekutuan
(Vazeer Alam Mydin JC) [2013] 8 CLJ 1095 [HC]

WORDS AND PHRASES

'Action or proceeding' - Meaning of - Companies Act 1965, s. 226(2), (3)
Isuta International Sdn Bhd & Ors v. Mahkamah Perusahaan Malaysia & Anor
(Varghese George J) [2013] 8 CLJ 1040 [HC]