Legal Network Series

[2013] 1 LNS 295	DATUK HAJI ABDUL KARIM ABDUL GHANI & ANOR v. M-CON ENGINEERING (M) SDN BHD & ORS	LEGAL PROFESSION: Solicitors - Stakeholders - Duties of a stakeholder - Whether all three conditions fulfilled when 3rd defendant released the documents to 1st defendant - Whether 3rd defendant breached their undertaking and stakeholder duties under the Agreement in respect of the release of documents to 1st defendant - Whether 3rd defendant remained in a neutral position when he acted as a stakeholder – 3rd defendant aware of contractual dispute between plaintiffs and 1st defendant - Whether 3rd defendant should have taken an interpleader proceeding instead of forming a view on the dispute in favour of 1st defendant
[2013] 1 LNS 327	IN RE: KANAWAGI SEPURUMANIAM; EX-PARTE: PENANG PORT COMMISSION	BANKRUPTCY: Notice - Application to set aside - Appeal against dismissal of judgment debtor's application - Whether Bankruptcy Notice invalid in law as interest claimed in notice was time barred under s. 6(3) of the Limitation Act 1953 - Whether bankruptcy notice was invalid as premised on a Court of Appeal judgment which was null and void as it contravened Article 121(1B)(a) of the Federal Constitution - Whether court was bound by the judgment of the Court of Appeal - Whether this court had jurisdiction to ascertain whether a judgment of a superior court was null and void - Whether proper for judgment debtor to attack judgment of the Court of Appeal in order to avoid repercussions arising from bankruptcy notice
[2013] 1 LNS 338	CHEONG KA WANG & ANOR v. TAN CHOEN	CIVIL PROCEDURE: Summary judgment - Application for - Specific performance - Sale and purchase agreement - Whether contract frustrated because of raid by the Customs Dept on the tenant of condominium for a drug offence - Whether defendant raised any triable issue CONTRACT: Frustration - Impossibility - Whether contract frustrated because of the raid by the Customs Dept on the tenant residing at condominium - Whether a real doubt if the sale could be finalised as condominium was implicated in drug bust - Whether drug bust affected proprietary rights of defendant over the property - Whether drug bust made it impossible for defendant to conclude sale of the condominium in accordance with terms of the Sale and Purchase Agreement - Whether condominium could still be sold and vacant possession given
[2013] 1 LNS 339	HAJI AFIFI HAJI HASSAN v. NORMAN DISNEY & YOUNG SDN BHD & ORS	COMPANY LAW: Winding up - Petition - Just and equitable grounds - Elaborate scheme enabled petitioner to own 65% shares of the Company on trust for another - Petitioner a facade of the Company - Whether establishment of such 'Ali Baba' companies against public policy and illegal - Whether agreements unlawful under s. 24(a) and (b) of the Contracts Act 1950 - Whether Company operating in breach of the Registration of Engineers Act 1967 - Whether Court duty bound to address the illegality issue (even if not pleaded), regardless of whether the fraudulent party was the ultimate beneficiary - Whether it was just and equitable to wind up the Company
[2013] 1 LNS 340	INGAT KAWAN (M) SDN BHD v. BOUSTEAD NAVAL SHIPYARD SDN BHD	CIVIL PROCEDURE: Striking out - Writ and statement of claim - Application for - Validity of licence obtained by plaintiff to deal with abandoned LV cables - Whether object of Sales Order No 21 lawful - Whether in contravention of ss. 6 and10 of the Second-Hand Dealers Act 1946 - Whether contract void and unenforceable under ss. 24(a) and 25 of the Contracts Act 1950 - Whether plaintiff's claim for breach of contract sustainable STATUTORY INTERPRETATION: Construction of statutes - Powers under the Act - Second Hand Dealers Act 1946, ss. 6, 10 - Validity of plaintiff's licence to deal with abandoned LV cables located at Lumut, Perak pursuant to contract with defendant - Licence to be issued by the Chief Police Officer of the State of Perak or his delegate - Plaintiff holding licence to conduct such business within Selangor - Whether any licence given was restricted to a particular State - Effect on contract between plaintiff and defendant

CLJ 2013 Volume 9 (Part 8)

COURT

FEDERAL COURT

Ikatan Kelab-Kelab Melayu Negeri Pulau Pinang & Ors v. Yayasan Bumiputra Pulau Pinang & Ors And Another Appeal
Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ
(Civil Procedure - Striking out - Locus standi - Breach of trust and fiduciary duties) [2013] 9 CLJ 941 [FC]

COURT OF APPEAL

The New Straits Times Press (Malaysia) Bhd & Anor v. Admal Sdn Bhd
Hishamudin Mohd Yunus, Alizatul Khair Osman, Anantham Kasinather JJCA
(Trade Marks - Copyright - Infringement of - Joint venture) [2013] 9 CLJ 955 [CA]

HIGH COURT

Bukit Jong Quarry Sdn Bhd v. Dato' Tan Yunn Siong & Ors
Azizah Nawawi JC
(Civil Procedure - Striking out - Application for - Writ of summons and statement of claim - Affidavit in reply) [2013] 9 CLJ 978 [HC]

Glamour Ideals Sdn Bhd v. Ho Hau Wong & Ors
Lee Swee Seng JC
(Land Law; Civil Procedure - Caveat - Removal of - Judgment and orders) [2013] 9 CLJ 986 [HC]

KNM Process Systems Sdn Bhd v. Mission Biofuels Sdn Bhd
Vernon Ong J
(Company Law - Winding-up - Inability to pay debts - Locus standi) [2013] 9 CLJ 1003 [HC]

Pengarah Kastam Dan Eksais Perak & Anor v. Ting Meng Hwa
Ahmad Nasfy JC
(Customs And Excise - Seizure - Vehicle - Classification of vehicle - Damages) [2013] 9 CLJ 1020 [HC]

Petrolium Nasional Bhd (Petronas) v. Khairulniza Md Yasin & Ors
Suraya Othman J
(Contract; Civil Procedure - Limitation of action - Agreement - Loan to finance education) [2013] 9 CLJ 1027 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Affidavits - Affidavit in reply - Application to strike out writ and statement of claim - Opponent's failure to serve affidavit within 14 days - Whether contravened O. 32 r. 13(2)(b) Rules of Court 2012 - Whether affidavit excluded from consideration -
Perbadanan Nasional Insurans Sdn Bhd v. Pua Lai Ong Bukit Jong Quarry Sdn Bhd v. Dato' Tan Yunn Siong & Ors
(Azizah Nawawi JC) [2013] 9 CLJ 978 [HC]

Judgment and orders - Order made by court - Variation of - Application to vary order to include direction for removal of new caveats lodged - Whether court functus officio - Whether court had power to vary order - Whether there was abuse of process
Glamour Ideals Sdn Bhd v. Ho Hau Wong & Ors
(Lee Swee Seng JC) [2013] 9 CLJ 986 [HC]

Limitation of action - When cause of action accrued - Agreement - Loan to finance education - Computation of time - Whether six years limitation started from date of termination from employment or six months from completion of studies - Whether action time barred
Petrolium Nasional Bhd (Petronas) v. Khairulniza Md Yasin & Ors
(Suraya Othman J) [2013] 9 CLJ 1027 [HC]

Locus standi - Commencement of action - Appellants suing respondents for breach of trust and fiduciary duties - Whether appellants had necessary locus standi to initiate action - Whether beneficiary under trust had locus standi to bring action in breach of trust against company limited by guarantee under Companies Act 1965 pursuant to objective of trust - Whether appellants had a share, or was a trustee or director of respondents - Whether appeal dismissed
Ikatan Kelab-Kelab Melayu Negeri Pulau Pinang & Ors v. Yayasan Bumiputra Pulau Pinang & Ors And Another Appeal
(Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2013] 9 CLJ 941 [FC]

Striking out - Appeal against - Locus standi - Action for breach of trust and fiduciary duties - Whether appellants had necessary locus standi to initiate action - Whether beneficiary under trust had locus standi to bring action in breach of trust against company limited by guarantee under Companies Act 1965 pursuant to objective of trust - Whether appellants had a share, or was a trustee or director of respondents - Whether appeal dismissed
Ikatan Kelab-Kelab Melayu Negeri Pulau Pinang & Ors v. Yayasan Bumiputra Pulau Pinang & Ors And Another Appeal
(Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2013] 9 CLJ 941 [FC]

Striking out - Application for - Writ of summons and statement of claim - Whether plaintiff's solicitors lacked authority to act on behalf of plaintiff - Plaintiff's Directors' Circular Resolution authorising commencement of suit passed one year after issue of statement of claim - Whether resolution invalid
Bukit Jong Quarry Sdn Bhd v. Dato' Tan Yunn Siong & Ors
(Azizah Nawawi JC) [2013] 9 CLJ 978 [HC]

COMPANY LAW

Winding-up - Inability to pay debts - Whether proved - Whether there was debts due and owing - Reliance on financial statements - Whether respondent insolvent and unable to pay debts - Whether there were surplus over liabilities - Holding company - Whether able to provide financial support - Whether winding-up petition allowed - Companies Act 1965, ss. 218(1)(e) & 218(2)(c)
KNM Process Systems Sdn Bhd v. Mission Biofuels Sdn Bhd
(Vernon Ong J) [2013] 9 CLJ 1003 [HC]

Winding-up - Locus standi - Meaning of - Contingent or prospective creditor - Whether petitioner a contingent creditor - Whether petitioner had locus to present winding-up petition - Companies Act 1965, s. 217(1)(b)
KNM Process Systems Sdn Bhd v. Mission Biofuels Sdn Bhd
(Vernon Ong J) [2013] 9 CLJ 1003 [HC]

CONTRACT

Agreement - Loan - Education loan - Compulsory service of seven years for loan to be transferred into scholarship - Termination from employment - Whether breach of material clause in loan agreement - Whether repayment of loan due upon termination from employment - Whether amount claimed disbursed for benefit of first defendant
Petrolium Nasional Bhd (Petronas) v. Khairulniza Md Yasin & Ors
(Suraya Othman J) [2013] 9 CLJ 1027 [HC]

CUSTOMS AND EXCISE

Seizure - Vehicle - Classification of vehicle - Import duty paid - Mistake in classifying vehicle as van instead of car - Failure to pay compound - Whether Customs Department made mistake in classification of vehicle - Failure to return seized vehicle - Whether doctrine of estoppel applied - Damages - Value of vehicle - Whether respondent estopped from claiming damages pursuant to s. 132 Customs Act 1967 - Evidence Act 1950, ss. 31 & 115
Pengarah Kastam Dan Eksais Perak & Anor v. Ting Meng Hwa
(Ahmad Nasfy JC) [2013] 9 CLJ 1020 [HC]

LAND LAW

Caveat - Removal of - Caveats lodged by another caveator after court order granted - Application to vary order to include direction for removal of new caveats lodged - Whether court order had been perfected - Whether caveats were lodged to cancel effect of court order - Whether there was abuse of process - Whether caveator had caveatable interest - Whether court order varied
Glamour Ideals Sdn Bhd v. Ho Hau Wong & Ors
(Lee Swee Seng JC) [2013] 9 CLJ 986 [HC]

TRADE MARKS

Copyright - Infringement of - Collaboration between parties to jointly run English spelling competition - Non materialisation into joint venture - Whether NST Spell It Right eligible for copyright protection - Whether NST Spell It Right compilation of existing information widely available in public domain - Whether trial judge took into account 'functional object' behind competitions of this nature - Whether appellants copied NST Spell It Right concept - Whether trial judge erred in applying 'commonplace' test to exclude similarities in both concepts
The New Straits Times Press (Malaysia) Bhd & Anor v. Admal Sdn Bhd
(Hishamudin Mohd Yunus, Alizatul Khair Osman, Anantham Kasinather JJCA) [2013] 9 CLJ 955 [CA]