Legal Network Series

[2013] 1 LNS 203	DATO' SUHAIMI IBRAHIM & ORS v. HI-SUMMIT CONSTRUCTION SDN BHD & ANOR; KONSORTIUM LAPANGAN TERJAYA SDN BHD & ORS (INTERVENERS)	COMPANY LAW: Oppression - Oppression of minority - Proceedings on behalf of a Company - Plaintiffs in control of the Board - Whether plaintiffs genuinely aggrieved minority who should be granted leave under s. 181A of Companies Act 1965 - Plaintiffs failure to maintain proper records of the Company to deny 2nd defendant's rights to be registered as the owner of 60% Shares - Whether plaintiffs came to court with clean hands - Whether plaintiffs had reasonable basis to deny 2nd defendant's rights affirmed by orders of the Court of Appeal and the Federal Court - Whether application motivated by collateral purpose to circumvent the decision of the High Court to strike out plaintiff's suit - Whether granting plaintiffs leave would circumvent and remove the basis of the High Court's decision
[2013] 1 LNS 222	YII CHING HUAT v. OH TIAM SING & ORS	EVIDENCE: Standard of proof - Fraud, deceit and misrepresentation core issues - Whether plaintiff proved his case beyond reasonable doubt against D1 to D8 - Based on a balance of probabilities, whether plaintiff could prove his case against all 8 defendants for misrepresentation, deceit, fraud, concealment and various causes of action pleaded TRUSTS AND TRUSTEES: Duties - Scope and extent of duties as trustee - Breach of trust - D1 holding plaintiff's shares in D6 on trust - Not bound by any terms of a trust or Trust Deed - Whether any obligation on D1 to act as a trustee to plaintiff and inform him of the actual financial status of D6 - D2 acted to redeem the CRPS based on the instructions and agreement of plaintiff and other beneficiaries under a Trust Deed - Whether D2 breached his duties as a trustee under the Trust Deed or as a simple or bare trustee in equity COMPANY LAW: Directors - Duties - Breach of fiduciary duties - Whether a Director of a Company owed a fiduciary duty to company shareholders - Status of plaintiff as a shareholder in doubt - Whether D1, as a Company Director of D3 to D8, owed a fiduciary duty to plaintiff - Whether D1's duty as Director was to exercise his powers for the interest of the company or shareholders - Whether question of D1 owing plaintiff a fiduciary duty as shareholder of D3 and D6 relevant
[2013] 1 LNS 227	ALPHATRANS ELECTRONIC MARKETING v. BCM ELECTRONICS CORP SDN BHD	EVIDENCE: Documentary evidence - Admissibility of - Non-production of 'originals' not accounted for by defendant - ID-D1 appeared to be a computer printout - Whether requirements of s. 90A of the Evidence Act 1950 complied with to make document 'admissible' - Maker not called for ID-D4 and ID-D5 - Whether totally impracticable or impossible to secure attendance of maker in court to give direct evidence - Whether ID-D1, ID-D3, ID-D4 and ID-D5 were admissible as evidence CONTRACT: Goods sold and delivered - Claim for non payment - Existence of a condition that the component-parts were to be 'original TDK-parts' - Whether condition was expressly imposed by defendant in respect of parts ordered - Whether existence of such a condition when plaintiff placed the orders was deducible from any contemporaneous document to suggest it was to be an 'implied' term of transaction between the parties - Whether there was breach of condition or warranty by plaintiff when they sold and delivered the component parts as ordered by defendant - Whether reasons put forward by defendant for non payment valid
[2013] 1 LNS 272	PP v. WINDI LESTARI & ORS	CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Prosecution case - Prima facie case - Whether prosecution discharged burden of showing that all elements of the offence had been established - Whether 3 accused persons had joint custody, care and control of the dangerous drugs and power of disposal over the same - Whether 3 accused persons had knowledge of drugs which were concealed in 3 plastic packages in 2 bags - Whether 3 accused persons were trafficking in said drugs pursuant to their common intention as provided in s. 34 of the Penal Code - Whether there was a sufficient case for all 3 accused persons to answer which if unrebutted or unexplained would warrant their convictions for drug trafficking - Whether prosecution succeeded in establishing a prima facie case against all 3 accused persons CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Defence – 1st and 2nd accused claiming to be drug mules without knowledge – 3rd accused claiming she did not know 1st and 2nd accused and had nothing to do with the haversack in which drugs were found - Whether fact that the housekeeping staff of the Winsin Hotel had access to the 2 rooms where the 2 bags were kept cast a doubt on prosecution's case as to guilt of 3 accused persons - Whether defence of each of 3 accused persons considered separately and together cast a doubt on the prosecution case - Whether prosecution succeeded in proving the charge against all 3 accused persons beyond reasonable doubt
[2013] 1 LNS 274	PP v. ANUAR ABD AZIZ	CRIMINAL PROCEDURE: Appeal - Appeal against acquittal - Whether prosecution proved that respondent was a fund manager's representative for C8 without a licence issued by the SC as mandated by s. 15B(b) of the Securities Industry Act 1983 - Whether trial judge's conclusion that "there was no evidence adduced by the prosecution to show that accused ever managed the fund of KATMB" was correct and based on definition of the words "a fund manager's representative" in s. 2 of the Securities Industry Act 1983 - Whether prosecution failed to establish a prima facie case against respondent as per the charge - Whether there was any appealable error by trial judge CRIMINAL PROCEDURE: Appeal - Appeal against acquittal - Grounds of appeal - Attempt by appellant to introduce a new ground of appeal - Whether an appellant must state each and every ground which he is relying on to persuade and convince the appellate court that trial judge erred - Whether failing that, he would be shut out from relying on such ground during the hearing of his appeal - Whether appellant could raise grounds not raised in his petition of appeal during hearing of his appeal STATUTORY INTERPRETATION: Construction of statutes - Conjunctive or disjunctive - Definition of "fund manager's representative" - Whether definition a conjunctive definition as Parliament used the word "and" to connect both ingredients - Whether prosecution must prove both ingredients of definition on a prima facie basis at the close of the prosecution case STATUTORY INTERPRETATION: Construction of statutes - Penal statute - Construction of a penal provision in a statute - Whether definitions of "fund manager" and "fund manager's representative" in s. 2 of the Securities Industry Act 1983 to be given its ordinary literal meaning - Whether wordings used by Parliament must be strictly construed - Plain reading of "fund manager's representative" - Whether by its very definition of the 3 words, a person must perform functions of a fund manager, namely, the management of a portfolio of securities for the purpose of investment - Whether soliciting and obtaining funds merely a preliminary function of a fund manager's representative and not the primary function - Whether a person who did not manage a portfolio of securities for a client/investor could be said to have acted as a fund manager's representative

CLJ 2013 Volume 9 (Part 7)

ARTICLE

The Importance Of Grooming And Etiquette For Lawyers by YAA Tan Sri Dato' Seri Zulkefli Ahmad Makinudin [2013] 9 CLJ i

COURT

FEDERAL COURT

Badan Pengurusan Bersama Paradesa Rustika v. Sri Damansara Sdn Bhd
Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop FCJJ
(Land Law - Management property - Whether Commissioner of Buildings lacked jurisdiction to make decision on sum claimed) [2013] 9 CLJ 813 [FC]

Conlay Construction Sdn Bhd v. Perembun (M) Sdn Bhd
Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Ahmad Maarop, Zainun Ali FCJJ
(Civil Procedure; Jurisdiction - Appeal - Interference by appellate court) [2013] 9 CLJ 828 [FC]

PECD Bhd (In Liqudation) v. AmTrustee Bhd
Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Ahmad Maarop, Zainun Ali FCJJ
(Trusts - Quistclose trusts - Factors in support - Whether purpose for which monies were raised capable of fulfillment) [2013] 9 CLJ 841 [FC]

COURT OF APPEAL

Dato' Vijay Kumar Natarajan v. UOL Credit Sdn Bhd
Abdul Wahab Patail, Clement Skinner JJCA, Mohamad Ariff Yusof J
(Company Law; Civil Procedure - Damages - Whether damages should run up to date of judgment or until date of return of goods detained) [2013] 9 CLJ 874 [CA]

Firdaus Aziz Abdullah v. PP
Abdul Wahab Patail, Zaharah Ibrahim, Mohamad Ariff Yusof JJCA
(Arms & Explosives - Application to seek return of shotgun and license under s. 53 Arms Act 1960) [2013] 9 CLJ 886 [CA]

HIGH COURT

Laguna De Bay Sdn Bhd v. Majlis Perbandaran Subang Jaya
Vernon Ong J
(Administrative Law - Whether local authority had properly exercised discretionary powers - National Land Code, s. 68) [2013] 9 CLJ 899 [HC]

Ustaz Akmal Hj Kamaruddin v. Dato' Mohamad Daud Mohd Yusoff & Anor
Abdul Rahman Sebli J
(Election; Words & Phrases - Application for declaration that election was void - Allegation of corrupt practice) [2013] 9 CLJ 924 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Exercise of administrative powers - Local authority - Ultra vires - Whether local authority had properly exercised discretionary powers - Whether sub-licence agreement valid pursuant to s. 68 of National Land Code
Laguna De Bay Sdn Bhd v. Majlis Perbandaran Subang Jaya
(Vernon Ong J) [2013] 9 CLJ 899 [HC]

Local authority - Revenue - Local Government Act 1976 - Provisions of - Whether imposition of 25% rental rate permitted source of revenue under Local Government Act 1976 and by-laws governing local authorities - Whether contravened s. 68 of the National Land Code
Laguna De Bay Sdn Bhd v. Majlis Perbandaran Subang Jaya
(Vernon Ong J) [2013] 9 CLJ 899 [HC]

ARMS & EXPLOSIVES

Arms Act - Seizures and forfeitures - Shotgun and firearms licence seized - Application to seek return of shotgun and license under s. 53 Arms Act 1960 - Circumstances in which shotgun obtained - Whether by "dubious and surreptitious means" - Duplicate licenses for firearms given while shotgun in possession of police - Whether power to issue and renew licenses must be under Arms Act 1960 and not under the repealed Sabah and Sarawak (Executive Powers) (Shotguns) Order 1977 - Arms Licensing Regulations 1961, reg. 6 - Requirement of - Whether application should be allowed
Firdaus Aziz Abdullah v. PP
(Abdul Wahab Patail, Zaharah Ibrahim, Mohamad Ariff Yusof JJCA) [2013] 9 CLJ 886 [CA]

CIVIL PROCEDURE

Amendment - Appellate stage - Amendment to counterclaim - Court of Appeal allowed amendment rejected by High Court - Whether High Court dealt in sufficient depth in rejection of amendment - Whether High Court delivered correct decision on amendment - Whether Court of Appeal right in reversing decision of High Court on amendment
Conlay Construction Sdn Bhd v. Perembun (M) Sdn Bhd
Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Ahmad Maarop, Zainun Ali FCJJ) [2013] 9 CLJ 828 [FC]

Appeal - Interference by appellate court - Whether trial judge had dealt with all issues raised - Uncertainty in grounds of decision of Court of Appeal - Whether Court of Appeal applied correct principle of appellate interference - Whether appellate interference warranted
Conlay Construction Sdn Bhd v. Perembun (M) Sdn Bhd
Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Ahmad Maarop, Zainun Ali FCJJ) [2013] 9 CLJ 828 [FC]

CIVIL PROCEDURE

Damages - Interest - Wrongful detention of shares - Allegation that shares had been transferred to another account for repayment of third party debt - Claim for return of shares by shareholder - Assessment of damages - Whether damages should run up to date of judgment or until date of return of goods detained - Whether pre-judgment interest should be awarded
Dato' Vijay Kumar Natarajan v. UOL Credit Sdn Bhd
(Abdul Wahab Patail, Clement Skinner JJCA, Mohamad Ariff Yusof J) [2013] 9 CLJ 874 [CA]

COMPANY LAW

Shares - Wrongful detention of shares - Allegation that shares had been transferred to another account for repayment of third party debt - Claim for return of shares by shareholder - Whether shares wrongfully withheld - Claim for direct and consequential losses - Whether damages must be assessed for actual period where shares were wrongly retained until judgment date - Whether pre-judgment interest should be granted
Dato' Vijay Kumar Natarajan v. UOL Credit Sdn Bhd
(Abdul Wahab Patail, Clement Skinner JJCA, Mohamad Ariff Yusof J) [2013] 9 CLJ 874 [CA]

ELECTION

Petition - Amendment - Application for declaration that election was void - Allegation of corrupt practice - Whether amendment would cause injury to respondent which could not be compensated by costs - Whether petitioner was attempting to alter identities of electors - Whether amendment goes to root of petition and not merely clerical error - Whether amendment allowed
Ustaz Akmal Hj Kamaruddin v. Dato' Mohamad Daud Mohd Yusoff & Anor
(Abdul Rahman Sebli J) [2013] 9 CLJ 924 [HC]

Petition - Declaration - Void election - Application for declaration that election was void - Allegation of corrupt practice - Preliminary objection - Whether petition satisfied mandatory requirements of Election Petition Rules 1954 - Failure to state facts and grounds relied on to sustain relief sought - Whether petition defective - Whether there was non-compliance with election laws in drafting of petition - Electoral roll - Whether could be challenged - Whether petition struck out - Election Offences Act 1954, s. 32(a), 32(b)
Ustaz Akmal Hj Kamaruddin v. Dato' Mohamad Daud Mohd Yusoff & Anor
(Abdul Rahman Sebli J) [2013] 9 CLJ 924 [HC]

Petition - Service - Whether petition should be served personally by petitioner - Whether word "personally" in r. 15(1)(a) Election Petition Rules 1954 refers to respondent - Whether advocate duly appointed by petitioner can effect service - Whether service to be effected on respondent personally
Ustaz Akmal Hj Kamaruddin v. Dato' Mohamad Daud Mohd Yusoff & Anor
(Abdul Rahman Sebli J) [2013] 9 CLJ 924 [HC]

LAND LAW

Management property - Common property - Joint management body (JMB), establishment of - Claim for monies from developer of condominium responsible for collection of monthly maintenance and sinking fund charges - Whether developer as defined in s. 16 of the Building and Common Property (Maintenance and Management) Act 2007 ('the Act') required to open Building Maintenance Account ('BMA') when vacant possession has been delivered before commencement of Act - Whether Act came into operation more than seven years after units delivered to purchasers - Whether provisions of the Act has retrospective effect - Whether developer required to deposit all monies from purchasers for purposes of maintenance and management of common property and sinking funds pursuant to s. 21 of the Act - Sum claimed part of sinking funds kept by developer under deed of mutual covenant entered into by respondent and purchasers before commencement of the Act - Whether Commissioner of Buildings lacked jurisdiction under s. 16(5) of the Act to make decision on sum claimed
Badan Pengurusan Bersama Paradesa Rustika v. Sri Damansara Sdn Bhd
(Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop FCJJ) [2013] 9 CLJ 813 [FC]

Strata title - Joint management body (JMB), establishment of - Claim for monies from developer of condominium responsible for collection of monthly maintenance and sinking fund charges - Whether developer as defined in s. 16 of the Building and Common Property (Maintenance and Management) Act 2007 ('the Act') required to open Building Maintenance Account ('BMA') when vacant possession has been delivered before commencement of the Act - Whether Act came into operation more than seven years after units delivered to purchasers - Whether provisions of the Act has retrospective effect - Whether developer required to deposit all monies from purchasers for purposes of maintenance and management of common property and sinking funds pursuant to s. 21 of the Act - Sum claimed part of sinking funds kept by developer under deed of mutual covenant entered into by respondent and purchasers before commencement of the Act - Whether Commissioner of Buildings lacked jurisdiction under
s. 16(5) of the Act to make decision on sum claimed
Badan Pengurusan Bersama Paradesa Rustika v. Sri Damansara Sdn Bhd
(Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop FCJJ) [2013] 9 CLJ 813 [FC]

JURISDICTION

Court of Appeal - Appellate interference - Test for - Whether broadened to include issues stated in broad and general grounds - Whether error allegedly committed by trial judge identified - Whether trial judge plainly wrong - Whether appellate interference warranted
Conlay Construction Sdn Bhd v. Perembun (M) Sdn Bhd
Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Ahmad Maarop, Zainun Ali FCJJ) [2013] 9 CLJ 828 [FC]

TRUSTS

Quistclose trusts - Factors in support - Whether purpose for which monies were raised (primary trust) capable of fulfillment - Whether trustee entitled to enforce primary trust though itself not provider or payor of trust funds - Whether trustee acquired beneficial interest in trust funds - Concept of primary and secondary trusts propounded in Barclays Bank Ltd v. Quistclose Investments Ltd - Whether relevant - Whether concept accepted in later case of Twinsectra Ltd v. Yardley & Others
PECD Bhd (In Liqudation) v. AmTrustee Bhd
(Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Ahmad Maarop Zainun Ali FCJJ) [2013] 9 CLJ 841 [FC]

WORDS & PHRASES

"Personally" - Election Petition Rules 1954, r. 15(1)(a) - Meaning of - Service of election petition - Whether petition should be served personally by petitioner - Whether word "personally" refers to respondent - Whether advocate duly appointed by petitioner can effect service - Whether service to be effected personally on respondent
Ustaz Akmal Hj Kamaruddin v. Dato' Mohamad Daud Mohd Yusoff & Anor
(Abdul Rahman Sebli J) [2013] 9 CLJ 924 [HC]