Bulletin_51

CLJ Bulletin, Issue 2010, Vol 51

31 December 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 9 (Part 6) 2010

1. Legislation Highlights

Principal Acts

NUMBER TITLE DATE COMING INTO FORCE
REPEALING

ACT 711 Whistleblower Protection Act 2010 15 December 2010 [P.U.(B) 537/2010] - Nil -

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 378/2010 Customs (Values) (Palm Oil) (No 45) Order 2010 8 November 2010 ACT 235

PU(A) 381/2010 Customs (Values) (Palm Oil) (46) Order 2010 15 November 2010 ACT 235

PU(A) 382/2010 Communications And Multimedia (Universal Service Provision) (Amendment) Regulations 2010 15 November 2010 ACT 588

PU(A) 383/2010 Dental (Amendment Of Second Schedule) (No 2) Order 2010 18 November 2010 ACT 51

PU(A) 384/2010 Customs (Values) (Crude Petroleum Oil) (No 23) Order 2010 18 November 2010 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 486/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 4 November 2010 ACT 56/1965

PU(B) 487/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 4 November 2010 ACT 56/1965

PU(B) 488/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 4 November 2010 ACT 56/1965

PU(B) 489/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 4 November 2010 ACT 56/1965

PU(B) 490/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Petaling 4 November 2010 ACT 56/1965

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

DR 24/2010 Malaysia Deposit Insurance Corporation Bill 2010 - -

2. Articles

a) Legal Network Series Articles

1. The Financial Crisis: The Role Of Law And Regulation ^{[Read
excerpt]}
By Lord Justice Thomas*

2. The Legal & Medical Interface - Can Therapeutic Jurisprudence Improve Competency/Capacity Assessment Methodologies? ^{[Read
excerpt]}
By Kelly Pursuer, Phd Student, University Of New England*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 275 [HC] Connell Bros Company Limited v. Vintage Tiles Industries Sdn Bhd

BANKRUPTCY: Interest - Calculation of interest - Rate to be awarded - Interest of 1.5% per month awarded on judgment debt - Liquidator admitted interest of 6% per annum on petitioner creditor's proof of debt, applying s. 291(2) Companies Act 1965 read together with s. 43(6) Bankruptcy Act 1967 - Whether correct application of law

BANKRUPTCY: Interest - Calculation of interest on dividends - Provision of funds by a third party to pay respondent's debts - Whether any bearing on interest to be awarded on creditor's proof of debt - Bankruptcy Act s. 43(6)

COMPANIES AND CORPORATIONS: Winding up - Stay of proceedings - Proper party to apply for stay - s. 243(1) Companies Act 1965

[2009] 1 LNS 279 [HC] Pan Malaysian Equities Berhad v. Lim Chon Ying

SECURITIES: Margin account - Forced sale of shares - Plaintiff sued for shortfall - Defendant claimed purchase of shares not authorised - Whether any defence to action

SECURITIES: Margin account - Forced sale of shares - Plaintiff sued for shortfall - Defendant counterclaimed for the monies that he would have received if the plaintiff had forced-sold at a date earlier than the date when the shares were in fact sold - Whether plaintiff under obligation to force sell at a particular time

CONTRACT: Terms - Variation - Notification - Claim that interest rates had been varied without notice - Whether agreement provided for mode of notification or deeming provision - Whether notification made

[2009] 1 LNS 287 [HC] Onestop Software Solutions (M) Sdn Bhd & Anor v. Masteritec Sdn Bhd & Ors

CIVIL PROCEDURE: Injunction - Interlocutory injunction, application for - Infringement of copyright and breach of fiduciary duties and confidential information - Principles to be applied in granting injunction

CIVIL PROCEDURE: Discovery - Notice to produce - Infringement of copyright in computer software - Application for interlocutory injunction - Defendants filed notice to produce source codes and demo CD - Principles of discovery

COPYRIGHT: Infringement - Test for infringement - Application for interlocutory injunction to restrain infringement of 2^nd plaintiff's copyright in computer software - Whether serious issues to be tried

COPYRIGHT: Computer programs - Infringement - Application for interlocutory injunction to restrain infringement of 2^nd plaintiff's copyright in computer software - Whether serious issues to be tried

[2009] 1 LNS 296 [HC] Victory Avenue MFG (M) Sdn Bhd v. Matsushita Electronic Devices (M) Sdn Bhd

CONTRACT: Breach - Breach amounting to repudiation - Failure to install machine by stipulated date - No response by defendant to letters from plaintiff for discussion - Termination of contract for non-performance two years after initial breach - Whether delay in termination amounted to acceptance of breach by defendant - Whether defendant justified in treating non-performance by plaintiff as repudiation of contract

CONTRACT: Terms - Oral representations - Alleged oral promise to extend contract - Contract not renewed - Whether oral promise proven - Whether breach of contract

CIVIL PROCEDURE: Pleadings - Parties to action bound by own pleadings - Failure of plaintiff to install machine by stipulated date - Termination of contract for non-performance two years after initial breach - Failure of plaintiff to plead waiver of fundamental term - Whether plaintiff entitled to rely on waiver to support claim

EVIDENCE: Witness - Credibility -Test to be applied in determining credibility of witnesses

[2009] 1 LNS 298 [HC] Desa Samudra Sdn Bhd v. Autoways Construction Sdn Bhd & Ors; Another Case

CONTRACT: Building contract - Termination - Clause in PAM Conditions of Contract provided that contract automatically terminated upon 1^st defendant making a composition or arrangement with his creditors pursuant to Companies Act, s. 176 - Termination by plaintiff of 1^st defendant contractor disputed - Whether by disputing termination, 1^st defendant remained as main contractor and in charge of worksite - Whether contractor ought to have and remained in possession until he had accepted the termination and handed over the site

CONTRACT: Building contract - Sub-contract - Termination of 1^st defendant contractor - Whether 1^st defendant could authorise the defendants as sub-contractors to enter upon the worksite and remove their equipment and materials - Whether other defendants as sub-contractors had independent right of entry

CONTRACT: Oral agreement - Existence of oral agreement - Termination of contractor - Sub-contractors alleged agreement made with plaintiff to continue on site - Whether oral contract formed - Whether sub-contractors had independent right of entry

CIVIL PROCEDURE: Pleadings - Necessity for express pleadings - Plaintiff claimed defendants trespassed upon the contract worksite and removed/destroyed goods and equipment - No particulars as to individual persons involved and goods/equipment damaged or removed - Whether claim could succeed

TORT: Trespass - Trespass to land - Authorisation given to defendants to carry out work on plaintiff's land - Termination of 1^st defendant contractor - Whether 1^st defendant could authorise the defendants as sub-contractors to enter upon the worksite and remove their equipment and materials - Whether other defendants as sub-contractors had independent right of entry

CITATION	TITLE	SUBJECT
[2009] 1 LNS 275 [HC]	Connell Bros Company Limited v. Vintage Tiles Industries Sdn Bhd	BANKRUPTCY: Interest - Calculation of interest - Rate to be awarded - Interest of 1.5% per month awarded on judgment debt - Liquidator admitted interest of 6% per annum on petitioner creditor's proof of debt, applying s. 291(2) Companies Act 1965 read together with s. 43(6) Bankruptcy Act 1967 - Whether correct application of law BANKRUPTCY: Interest - Calculation of interest on dividends - Provision of funds by a third party to pay respondent's debts - Whether any bearing on interest to be awarded on creditor's proof of debt - Bankruptcy Act s. 43(6) COMPANIES AND CORPORATIONS: Winding up - Stay of proceedings - Proper party to apply for stay - s. 243(1) Companies Act 1965
[2009] 1 LNS 279 [HC]	Pan Malaysian Equities Berhad v. Lim Chon Ying	SECURITIES: Margin account - Forced sale of shares - Plaintiff sued for shortfall - Defendant claimed purchase of shares not authorised - Whether any defence to action SECURITIES: Margin account - Forced sale of shares - Plaintiff sued for shortfall - Defendant counterclaimed for the monies that he would have received if the plaintiff had forced-sold at a date earlier than the date when the shares were in fact sold - Whether plaintiff under obligation to force sell at a particular time CONTRACT: Terms - Variation - Notification - Claim that interest rates had been varied without notice - Whether agreement provided for mode of notification or deeming provision - Whether notification made
[2009] 1 LNS 287 [HC]	Onestop Software Solutions (M) Sdn Bhd & Anor v. Masteritec Sdn Bhd & Ors	CIVIL PROCEDURE: Injunction - Interlocutory injunction, application for - Infringement of copyright and breach of fiduciary duties and confidential information - Principles to be applied in granting injunction CIVIL PROCEDURE: Discovery - Notice to produce - Infringement of copyright in computer software - Application for interlocutory injunction - Defendants filed notice to produce source codes and demo CD - Principles of discovery COPYRIGHT: Infringement - Test for infringement - Application for interlocutory injunction to restrain infringement of 2^nd plaintiff's copyright in computer software - Whether serious issues to be tried COPYRIGHT: Computer programs - Infringement - Application for interlocutory injunction to restrain infringement of 2^nd plaintiff's copyright in computer software - Whether serious issues to be tried
[2009] 1 LNS 296 [HC]	Victory Avenue MFG (M) Sdn Bhd v. Matsushita Electronic Devices (M) Sdn Bhd	CONTRACT: Breach - Breach amounting to repudiation - Failure to install machine by stipulated date - No response by defendant to letters from plaintiff for discussion - Termination of contract for non-performance two years after initial breach - Whether delay in termination amounted to acceptance of breach by defendant - Whether defendant justified in treating non-performance by plaintiff as repudiation of contract CONTRACT: Terms - Oral representations - Alleged oral promise to extend contract - Contract not renewed - Whether oral promise proven - Whether breach of contract CIVIL PROCEDURE: Pleadings - Parties to action bound by own pleadings - Failure of plaintiff to install machine by stipulated date - Termination of contract for non-performance two years after initial breach - Failure of plaintiff to plead waiver of fundamental term - Whether plaintiff entitled to rely on waiver to support claim EVIDENCE: Witness - Credibility -Test to be applied in determining credibility of witnesses
[2009] 1 LNS 298 [HC]	Desa Samudra Sdn Bhd v. Autoways Construction Sdn Bhd & Ors; Another Case	CONTRACT: Building contract - Termination - Clause in PAM Conditions of Contract provided that contract automatically terminated upon 1^st defendant making a composition or arrangement with his creditors pursuant to Companies Act, s. 176 - Termination by plaintiff of 1^st defendant contractor disputed - Whether by disputing termination, 1^st defendant remained as main contractor and in charge of worksite - Whether contractor ought to have and remained in possession until he had accepted the termination and handed over the site CONTRACT: Building contract - Sub-contract - Termination of 1^st defendant contractor - Whether 1^st defendant could authorise the defendants as sub-contractors to enter upon the worksite and remove their equipment and materials - Whether other defendants as sub-contractors had independent right of entry CONTRACT: Oral agreement - Existence of oral agreement - Termination of contractor - Sub-contractors alleged agreement made with plaintiff to continue on site - Whether oral contract formed - Whether sub-contractors had independent right of entry CIVIL PROCEDURE: Pleadings - Necessity for express pleadings - Plaintiff claimed defendants trespassed upon the contract worksite and removed/destroyed goods and equipment - No particulars as to individual persons involved and goods/equipment damaged or removed - Whether claim could succeed TORT: Trespass - Trespass to land - Authorisation given to defendants to carry out work on plaintiff's land - Termination of 1^st defendant contractor - Whether 1^st defendant could authorise the defendants as sub-contractors to enter upon the worksite and remove their equipment and materials - Whether other defendants as sub-contractors had independent right of entry

b. CLJ Volume 9 (Part 6) 2010

COURT

FEDERAL COURT

Dato' Seri Anwar Ibrahim v. PP
(Decision of trial judge - Whether appealable) [2010] 9 CLJ 625

COURT OF APPEAL

Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor
(Receivership - Winding up, effect of) [2010] 9 CLJ 637

Mayban Allied Bhd v. Kenneth Godfrey Gomez & Anor And Another Appeal
(Estoppel - Consent judgment) [2010] 9 CLJ 702

Razali Samani v. PP
(Trafficking in dangerous drugs - Credibility of police witnesses) [2010] 9 CLJ 714

HIGH COURT

Abd Rahim Abd Rahman & Ors v. DMD Industries Sdn Bhd & Ors; Kamariyah Hamdan & Ors (Third Parties)
(Execution - Stay) [2010] 9 CLJ 724

Nam Fatt Corporation Bhd & Anor v. Petrodar Operating Co Ltd & Anor
(Jurisdiction - Forum conveniens) [2010] 9 CLJ 732

United Overseas Bank (Malaysia) Bhd v. Mok Hue Huan & Anor
(Interest on debts - Claim for) [2010] 9 CLJ 764

Yong Chou Chen v. Ling Ming Sing
(Trial - Conduct of proceedings) [2010] 9 CLJ 777

SUBJECT INDEX

ARBITRATION

Stay of proceedings - Mandatory stay - Principles applicable - Right to apply - Step taken in proceedings - Defendant filing unconditional appearance and affidavit in reply to ad-interim injunction - Whether defendant had taken a step in proceedings - Whether defendant deprived of right to invoke s. 10 Arbitration Act 2005 for mandatory stay
Nam Fatt Corporation Bhd & Anor v. Petrodar Operating Co Ltd & Anor
(Lee Swee Seng JC) [2010] 9 CLJ 732 [HC]

BANKING

Banks and banking business - Loan agreement - Claim for interest on debt - Contract of guarantee and indemnity - Whether plaintiff could claim interest against guarantor after principal debtor wound up - Whether contract void and unenforceable - Bankruptcy Act 1967, s. 8(2A) - Civil Law Act 1956, s. 4(1) - Contracts Act 1950, s. 24(b)
United Overseas Bank (Malaysia) Bhd v. Mok Hue Huan & Anor
(Mohd Zawawi Salleh J) [2010] 9 CLJ 764 [HC]

BANKRUPTCY

Interest - Interest on debts - Claim for - Contract of guarantee and indemnity - Whether plaintiff could claim interest against guarantor after principal debtor wound up - Whether contract void and unenforceable - Bankruptcy Act 1967, s. 8(2A) - Civil Law Act 1956, s. 4(1) - Contracts Act 1950, s. 24(b)
United Overseas Bank (Malaysia) Bhd v. Mok Hue Huan & Anor
(Mohd Zawawi Salleh J) [2010] 9 CLJ 764 [HC]

CIVIL PROCEDURE

Absence of party - Continuation of trial - Whether sessions court judge could proceed with trial in the absence of 2nd defendant and/or his counsel - Rules of the High Court 1980, O. 35 r. 1(2)
Yong Chou Chen v. Ling Ming Sing
(Zulkifli Bakar J) [2010] 9 CLJ 777 [HC]

Adjournment - Refusal - Appeal against decision of sessions court judge disallowing application for adjournment - Unfettered discretion of judge whether to grant adjournment - Whether judge exercised his discretion correctly
Yong Chou Chen v. Ling Ming Sing
(Zulkifli Bakar J) [2010] 9 CLJ 777 [HC]

Appearance - Failure by one party to appear - Whether sessions court judge could proceed with trial in the absence of 2nd defendant and/or his counsel - Rules of the High Court 1980, O. 35 r. 1(2)
Yong Chou Chen v. Ling Ming Sing
(Zulkifli Bakar J) [2010] 9 CLJ 777 [HC]

Estoppel - Consent judgment - Parties reaching compromise - Plaintiff withdrawing action without liberty to file afresh - Defendants withdrawing counterclaim - Consent judgment striking out action entered pursuant to such compromise - Plaintiff later filing identical second action - Effect of such consent judgment - Whether plaintiff estopped from commencing second action - Whether plaintiff's second action ought to be struck out and/or dismissed
Mayban Allied Bhd v. Kenneth Godfrey Gomez & Anor And Another Appeal
(Zainun Ali, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 9 CLJ 702 [CA]

Execution - Stay - Application for an order for stay of execution of a High Court judgment pending disposal of appeal to Court of Appeal - Whether order for stay of execution merited - Special circumstances - Rules of the High Court 1980, O. 55 r. 12
Abd Rahim Abd Rahman & Ors v. DMD Industries Sdn Bhd & Ors; Kamariyah Hamdan & Ors (Third Parties)
(Umi Kalthum Abd Majid JC) [2010] 9 CLJ 724 [HC]

Injunction - Temporary injunction - Ad-interim injunction - Application to set aside - Whether serious questions shown - Whether question raised frivolous or vexatious - Whether ad-interim injunction to remain until inter partes hearing of interim injunction
Nam Fatt Corporation Bhd & Anor v. Petrodar Operating Co Ltd & Anor
(Lee Swee Seng JC) [2010] 9 CLJ 732 [HC]

Interest - Debt - Claim for - Contract of guarantee and indemnity - Whether plaintiff could claim interest against guarantor after principal debtor wound up - Whether contract void and unenforceable - Bankruptcy Act 1967, s. 8(2A) - Civil Law Act 1956, s. 4(1) - Contracts Act 1950, s. 24(b)
United Overseas Bank (Malaysia) Bhd v. Mok Hue Huan & Anor
(Mohd Zawawi Salleh J) [2010] 9 CLJ 764 [HC]

Judgments and orders - Consent judgment - Parties reaching compromise - Plaintiff withdrawing action without liberty to file afresh - Defendants withdrawing counterclaim - Consent judgment striking out action entered pursuant to such compromise - Plaintiff later filing identical second action - Effect of such consent judgment - Whether plaintiff estopped from commencing second action - Whether second action was res judicata - Whether consent judgment capable of giving rise to res judicata - Whether court ought to give effect to the consent judgment - Whether plaintiff's second action ought to be struck out and/or dismissed
Mayban Allied Bhd v. Kenneth Godfrey Gomez & Anor And Another Appeal
(Zainun Ali, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 9 CLJ 702 [CA]

Judgments and orders - Stay of execution - Application for an order for stay of execution of a High Court judgment pending disposal of appeal to Court of Appeal - Whether order for stay of execution merited - Special circumstances - Rules of the High Court 1980, O. 55 r. 12
Abd Rahim Abd Rahman & Ors v. DMD Industries Sdn Bhd & Ors; Kamariyah Hamdan & Ors (Third Parties)
(Umi Kalthum Abd Majid JC) [2010] 9 CLJ 724 [HC]

Jurisdiction - Filing of unconditional appearance and affidavit in reply to ad-interim injunction - Whether amounted to submission to jurisdiction
Nam Fatt Corporation Bhd & Anor v. Petrodar Operating Co Ltd & Anor
(Lee Swee Seng JC) [2010] 9 CLJ 732 [HC]

Jurisdiction - Forum conveniens - Proper forum for case to be tried - Whether Malaysian or Sudan courts - Sudanese law to be proper law of contract - Whether Malaysia nevertheless natural forum for trying action - Whether prayers in writ had real and substantial connection with Malaysia - Whether unjust to compel plaintiffs to sue in Sudan
Nam Fatt Corporation Bhd & Anor v. Petrodar Operating Co Ltd & Anor
(Lee Swee Seng JC) [2010] 9 CLJ 732 [HC]

Limitation of action - Contract - Limitation period - Whether six years from date of accrual of cause of action - Limitation Act 1953, s. 6(1)(a)
Mayban Allied Bhd v. Kenneth Godfrey Gomez & Anor And Another Appeal
(Zainun Ali, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 9 CLJ 702 [CA]

Res judicata - Abuse of process of court - Parties reaching compromise - Plaintiff withdrawing action without liberty to file afresh - Defendants withdrawing counterclaim - Consent judgment striking out action entered pursuant to such compromise - Plaintiff later filing identical second action - Effect of such consent judgment - Whether second action was res judicata - Whether plaintiff's second action an abuse of court's process - Whether plaintiff's second action ought to be struck out and/or dismissed
Mayban Allied Bhd v. Kenneth Godfrey Gomez & Anor And Another Appeal
(Zainun Ali, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 9 CLJ 702 [CA]

Service - Foreign defendant - Service of writ of summons abroad - Whether O. 11 Rules of the High Court 1980 complied with - Whether service constituted good service of notice of writ
Nam Fatt Corporation Bhd & Anor v. Petrodar Operating Co Ltd & Anor
(Lee Swee Seng JC) [2010] 9 CLJ 732 [HC]

Trial - Adjournment - Appeal against decision of sessions court judge disallowing application for adjournment - Unfettered discretion of judge whether to grant adjournment - Whether judge exercised his discretion correctly
Yong Chou Chen v. Ling Ming Sing
(Zulkifli Bakar J) [2010] 9 CLJ 777 [HC]

Trial - Conduct of proceedings - Whether sessions court judge could proceed with trial in the absence of 2nd defendant and/or his counsel - Rules of the High Court 1980, O. 35 r. 1(2)
Yong Chou Chen v. Ling Ming Sing
(Zulkifli Bakar J) [2010] 9 CLJ 777 [HC]

Writ of summons - Setting aside - Service - Foreign defendant - Service of writ of summons abroad - Setting aside - Whether O. 11 Rules of the High Court 1980 complied with - Whether service constituted good service of notice of writ
Nam Fatt Corporation Bhd & Anor v. Petrodar Operating Co Ltd & Anor
(Lee Swee Seng JC) [2010] 9 CLJ 732 [HC]

COMPANY LAW

Receivership - Winding up, effect of - Effect of winding up on secured creditor's rights to dispose property - Effect of winding up on irrevocable power of attorney granted by company to bank to deal with property - Whether company competent to create irrevocable power of attorney in favour of creditor - Whether such power of attorney survived the winding up - Power of Attorney Act 1949, ss. 3, 6, First Sch
Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor
(Low Hop Bing, Hishamudin Mohd Yunus & Zaharah Ibrahim JJCA) [2010] 9 CLJ 637 [HC]

Winding up - Disposition of property - Property of company charged to bank under provisions of the National Land Code - Bank also conferred power to sell property through irrevocable power of attorney in debenture - Property sold by bank after company wound up by third party - Whether such sale by bank void - Whether such sale subject to s. 223 of Companies Act 1965 - Whether bank merely exercising right to security - Whether bank obliged to deliver property to company - Whether bank obliged to restore property to company - Whether irrevocable power of attorney in favour of bank nullified by winding up order - Companies Act 1965, ss. 223, 300(1)(b)(ii), 305(1) - Power of Attorney Act 1949, ss. 3, 6
Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor
(Low Hop Bing, Hishamudin Mohd Yunus & Zaharah Ibrahim JJCA) [2010] 9 CLJ 637 [CA]

Winding up - Disposition of property - Scope and effect of s. 223 of Companies Act 1965 - Whether s. 223 designed to protect unsecured creditors - Whether s. 223 preserves the rights of secured creditors - Companies Act 1965, s. 223
Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor
(Low Hop Bing, Hishamudin Mohd Yunus & Zaharah Ibrahim JJCA) [2010] 9 CLJ 637 [CA]

CONTRACT

Guarantee - Guarantee and indemnity - Claim for interest on debt - Whether plaintiff could claim interest against guarantor after principal debtor wound up - Whether contract void and unenforceable - Bankruptcy Act 1967, s. 8(2A) - Civil Law Act 1956, s. 4(1) - Contracts Act 1950, s. 24(b)
United Overseas Bank (Malaysia) Bhd v. Mok Hue Huan & Anor
(Mohd Zawawi Salleh J) [2010] 9 CLJ 764 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - 888.56 grams of cannabis - Appeal by accused against conviction and sentence - Defence of accused - Whether raised a reasonable doubt on prosecution's case - Credibility of police witnesses - Statutory presumption of trafficking under s. 37(da) - Whether rebutted by accused - Whether trial judge appreciated defence case properly - Whether conviction warranted
Razali Samani v. PP
(Suriyadi Halim Omar, Hasan Lah & Ahmad Maarop JJCA) [2010] 9 CLJ 714 [CA]

CRIMINAL PROCEDURE

Appeal - Decision of trial judge - Whether appealable - Whether trial judge's ruling a "decision" as defined in s. 3 Courts of Judicature Act 1964 - Ruling made by trial court in the course of a trial - Whether right of aggrieved party compromised
Dato' Seri Anwar Ibrahim v. PP
(Arifin Zakaria CJ (Malaya), James Foong & Raus Sharif FCJJ) [2010] 9 CLJ 625 [FC]

Defence - Explanation by accused - Trafficking in cannabis, appeal against conviction and sentence - Existence of another person who brought cannabis into accused's car - Credibility of police witnesses - Whether accused's defence failed to raise any reasonable doubt that accused in possession of cannabis found in his car - Whether trial judge appreciated defence case properly - Dangerous Drugs Act 1952, ss. 37(da), 39B(1)(a)
Razali Samani v. PP
(Suriyadi Halim Omar, Hasan Lah & Ahmad Maarop JJCA) [2010] 9 CLJ 714 [CA]

EVIDENCE

Witness - Police as - Credibility of police witnesses - Whether trial judge correct in accepting their evidence
Razali Samani v. PP
(Suriyadi Halim Omar, Hasan Lah & Ahmad Maarop JJCA) [2010] 9 CLJ 714 [CA]

LAND LAW

Charge - Sale of land - Land charged to chargor under provisions of the National Land Code 1965 - Land also subject to power of sale conferred by irrevocable power of attorney in debenture in favour of chargor - Whether chargor obliged to comply with provisions for judicial sale under National Land Code - Whether provisions of Pt 16 Ch 3 of the National Land Code applicable - National Land Code 1965, Part 16, Ch 3
Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor
(Low Hop Bing, Hishamudin Mohd Yunus & Zaharah Ibrahim JJCA) [2010] 9 CLJ 637 [CA]

Sale of land - Validity - Sale of company's land by bank acting under an irrevocable power of attorney in debenture - Land also charged to bank under provisions of the National Land Code 1965 - Whether bank could sell land without resorting to procedure under the National Land Code 1965 - Whether provisions of Pt 16 Ch 3 of the National Land Code applicable - National Land Code 1965, Part 16, Ch 3
Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor
(Low Hop Bing, Hishamudin Mohd Yunus & Zaharah Ibrahim JJCA) [2010] 9 CLJ 637 [CA]

LIMITATION

Accrual of cause of action - Contract - Action based on contract -Whether six years from date of accrual of cause of action - Limitation Act 1953, s. 6(1)(a)
Mayban Allied Bhd v. Kenneth Godfrey Gomez & Anor And Another Appeal
(Zainun Ali, Hishamudin Mohd Yunus & Ramly Ali JJCA) [2010] 9 CLJ 702 [CA]

WORDS & PHRASES

"decision" - Courts of Judicature Act 1964, s. 3 - Definition of
Dato' Seri Anwar Ibrahim v. PP
(Arifin Zakaria CJ (Malaya), James Foong & Raus Sharif FCJJ) [2010] 9 CLJ 625 [FC]

'purchaser' - Power of Attorney Act 1949, s. 6(1)(a)
Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor
(Low Hop Bing, Hishamudin Mohd Yunus & Zaharah Ibrahim JJCA) [2010] 9 CLJ 637 [CA]

CASE OF THE WEEK

UEM GROUP BHD v. GENISYS INTEGRATED ENGINEERS PTE LTD & ANOR

CIVIL PROCEDURE: Appeal - Evaluation of evidence - Witness - Case depended largely on oral evidence - Documentary evidence tendered requiring explanation by material witnesses - Trial judge's conclusion that sole witness for respondent not a witness of truth - Whether reasonable and proper judicial appreciation of evidence - Whether appellate court erred in reversing findings of trial judge by referring to inadmissible documents

CIVIL PROCEDURE: Appeal - Fact, findings of - Credibility of witnesses - Decision of trial judge - Weight to be given - Amenability to appellate interference - Whether findings of credibility could be severed from documentary evidence - Finding on witness's credibility based on demeanour not to be ordinarily disturbed at appellate stage

CIVIL PROCEDURE: Appeal - Interference by appellate court - Questions of fact and credibility based on demeanour of witness - Whether appellate court should be slow to interfere

COMPANY LAW: Members' rights - Petition under Companies Act 1965, s. 181 - Remedies - Company insolvent - Whether petition sustainable - Whether winding up of company justified - Whether order for majority shareholder to buy out shares of minority shareholder justified

EVIDENCE: Witness - Credibility of - Evaluation of evidence of witness based on demeanour - Whether appellate court should be slow to interfere

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 711	Whistleblower Protection Act 2010	15 December 2010 [P.U.(B) 537/2010]	- Nil -