Bulletin_49

CLJ Bulletin, Vol 2004, Issue 49
10 December 2004

Introduction:
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New This Week - CLJ December (Part 1) 2004

COURT

COURT OF APPEAL

Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors
(Evidence - Appeal - Interfering with findings of fact - Testing oral testimony against contemporaneous documents) [2004] 4 CLJ 613

Lim Kuoh Wee v. Rimba Muda Timber Trading
(Tort - Conversion - Chattels - Whether mistake a defence - Whether property in chattels can pass under illegal contracts) [2004] 4 CLJ 617

P Santhirasegaram v. The Board Of Trustees Of The Athi Eeswaran Temple
(Constitutional law - Courts - Judicial power - Whether only federal laws can mould powers and jurisdiction of court) [2004] 4 CLJ 624

Tneu Beh v. Tanjong Kelapa Sawit Sdn Bhd & Ors
(Receiver - Appointment - Affidavit of fitness not filed) [2004] 4 CLJ 629

HIGH COURT

Nan Tun v. John Ahwang Panggau
(Civil procedure - Plaintiff and counsel absent - Adjournment refused - Case dismissed - Application to restore writ) [2004] 4 CLJ 636

Re Mohamad Supardi Md Noor; ex p Public Finance Bhd
(Hire-purchase - Ownership - Whether property of financier or hirer) [2004] 4 CLJ 646

SUBJECT INDEX

CIVIL PROCEDURE

Absence of plaintiff and his counsel - Adjournment refused - Case dismissed - Action struck out - Application to restore writ of summons - Rules of the High Court 1980, O. 35 r. 2(1) - Judicial exercise of discretionary power - Whether judge was right in refusing plaintiff’s request for adjournment and in striking out plaintiff’s action - Unexpected resignation of counsel having charge of plaintiff’s action - No resident advocate in firm - Plaintiff’s failure to comply with case-management directions - Prejudice to defendant - Disrespect to court
Nan Tun v. John Ahwang Panggau
(Lau Bee Lan JC) [2004] 4 CLJ 636 [HC]

Adjournment - Application for - Principles and considerations - Plaintiff requesting adjournment one day before trial - Facsimile of letter seeking adjournment sent to court on eve of trial day - Whether request for adjournment made too late - Delay and prejudice to defendant - Disrespect to court
Nan Tun v. John Ahwang Panggau
(Lau Bee Lan JC) [2004] 4 CLJ 636 [HC]

Appeal - Fact, findings of - Interference by appellate court - When may appellate court disturb factual findings of trial court - Whether findings based on credibility of witnesses - Whether findings supported by the evidence - Whether trial judge committed error of law - Whether oral testimony of witnesses tested against contemporaneous documents - Recovery of loan - Whether bank breached loan agreement or duty of care
Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors
(Gopal Sri Ram, Abdul Kadir Sulaiman & Hashim Yusoff JJCA) [2004] 4 CLJ 613 [CA]

Jurisdiction - High Court - Regulation of powers of High Court - Whether only federal laws can mould powers and jurisdiction of court - Whether state enactments have same capacity - Whether state enactment that purports to oust civil jurisdiction of court is valid - Selangor Enactment No. 8 of 1941, s. 12 - Federal Constitution, art. 121(1) - Whether High Court had jurisdiction to hear suit brought by trustees of Hindu temple against defendant
P Santhirasegaram v. The Board Of Trustees Of The Athi Eeswaran Temple
(Gopal Sri Ram, Ahmad Fairuz & Denis Ong JJCA) [2004] 4 CLJ 624 [CA]

Receiver - Appointment - Appeal against - Affidavit of fitness not filed in support of application for appointment - Whether learned judge erred in appointing receiver - Rules of the High Court 1980, O. 30
Tneu Beh v. Tanjong Kelapa Sawit Sdn Bhd & Ors
(Denis Ong, Hashim Yusoff & Nik Hashim JJCA) [2004] 4 CLJ 629 [CA]

CONSTITUTIONAL LAW

Courts - Judicial power - Jurisdiction and powers of High Court - Regulation of - Whether only federal laws can mould powers and jurisdiction of court - Whether state enactments have same capacity - Whether state enactment that purports to oust jurisdiction of court is valid - Selangor Enactment No. 8 of 1941, s. 12 - Federal Constitution, art. 121(1) - Whether High Court had jurisdiction to hear suit brought by trustees of Hindu temple against defendant
P Santhirasegaram v. The Board Of Trustees Of The Athi Eeswaran Temple
(Gopal Sri Ram, Ahmad Fairuz & Denis Ong JJCA) [2004] 4 CLJ 624 [CA]

EVIDENCE

Appeal - Interfering with findings of fact - When may appellate court disturb factual findings of trial court - Whether findings based on credibility of witnesses - Whether findings supported by the evidence - Whether trial judge committed error of law - Whether oral testimony of witnesses tested against contemporaneous documents - Recovery of loan - Whether bank breached loan agreement or duty of care
Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors
(Gopal Sri Ram, Abdul Kadir Sulaiman & Hashim Yusoff JJCA) [2004] 4 CLJ 613 [CA]

HIRE-PURCHASE

Bankruptcy - Financier filed creditor’s petition against hirer - Petition did not state car under hire purchase as security or its value - Whether car was debtor’s property to state as security held by creditor - Whether debtor’s option to purchase was "property" under s. 2 Bankruptcy Act 1967 - Whether creditor was an unsecured creditor - Bankruptcy Act 1967, ss. 2, 5(2), 48(1)(b)(i) - Hire Purchase Act 1967, s. 2
Re Mohamad Supardi Md Noor; ex p Public Finance Bhd
(Zulkefli Ahmad Makinudin J) [2004] 4 CLJ 646 [HC]

Hire-purchase agreement - Option to purchase - Whether ‘property’ under s. 2 Bankruptcy Act 1967
Re Mohamad Supardi Md Noor; ex p Public Finance Bhd
(Zulkefli Ahmad Makinudin J) [2004] 4 CLJ 646 [HC]

Ownership - Motor vehicle under hire-purchase - Car registration card - Endorsement of ‘ownership claim’ in financier’s favour - Whether endorsement indicates car is security for debt due and owing from hirer - Bankruptcy Act 1967, ss. 2, 5(2), 48(1)(b)(i) - Hire Purchase Act 1967, s. 2
Re Mohamad Supardi Md Noor; ex p Public Finance Bhd
(Zulkefli Ahmad Makinudin J) [2004] 4 CLJ 646 [HC]

Ownership - Motor vehicle under hire-purchase - Whether property of financier or hirer - Bankruptcy Act 1967, ss. 2, 5(2), 48(1)(b)(i) - Hire Purchase Act 1967, s. 2
Re Mohamad Supardi Md Noor; ex p Public Finance Bhd
(Zulkefli Ahmad Makinudin J) [2004] 4 CLJ 646 [HC]

TORT

Conversion - Chattels - Action against defendant for selling off plaintiff’s timber - Whether mistake or inadvertence on defendant’s part is a defence - Whether plaintiff can maintain action in conversion - Whether plaintiff has good title to timber - Whether contracts giving plaintiff ownership of timber illegal - Whether property in chattels can pass under illegal contracts - Tort of trespass, whether established
Lim Kuoh Wee v. Rimba Muda Timber Trading
(Gopal Sri Ram, Mokhtar Sidin JJCA & Raus Sharif J) [2004] 4 CLJ 617 [CA]

CASE OF THE WEEK

THAM KOK ONN v. PERWIRA HABIB BANK MALAYSIA BERHAD

Limitation Act 1953, s.6(3) - Leave to issue writ of execution - Rules of the High Court 1980, O.46 r.2(1)(a)

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