| Print this page | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Issue #49/2025
04 December 2025
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Subscribe now to make the most of this legal bulletin and have full access to judgments and other documents. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
New This Week
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
CASE SPOTLIGHTS
PROPNEX REALTY SDN BHD v. Non-compliance with r. 92(1) of the Valuers, Appraisers and Estate Agents Rules 1986 would not render an estate agency contract non-existent. This is aligned with the law of contract which does not require that a contract must be in writing for it to be valid and enforceable, as its existence could be implied from the conduct of the parties and the circumstances of the case. CIVIL PROCEDURE: Appeal - Judgments - Appeals against judgment of High Court - High Court found no estate agency contract existed between estate agency and client - High Court ordered client to pay estate agency for estate agency services rendered by way of quantum meruit, since estate agency was effective cause of sale of property - Whether High Court decision plainly wrong - Whether non-compliance with r. 92(1) of Valuers, Appraisers and Estate Agents Rules 1986 rendered estate agency contract non-existent - Whether estate agency contract must be in writing for it to be valid and enforceable CONTRACT: Agreement - Estate agency contract - Estate agency claimed for professional fees for estate agency services rendered to client with respect to sale of property - High Court ordered client to pay estate agency by way of quantum meruit since estate agency was effective cause of sale of property - Whether estate agency contract must be in writing to be valid and enforceable - Valuers, Appraisers and Estate Agents Rules 1986, r. 92(1) JUDICIAL QUOTES“Principles of interpretation of contract have moved from a rigid literal grammatical and internal linguistic consideration to that of a purposive reading based on the factual matrix of facts within the context of the transaction in question as representing the reading of the relevant clauses of the contract as a whole. No contracts are made nor come into existence in a vacuum. It has a setting that is captured in the recital with words having its proper shade in its colour borne out from its context and its proper scope in its contours being evident in the whole context of the contract. Applying what has been variously called the contextual, harmonious and business common sense approach, we are more than satisfied that the meaning of the date of the approval of “building plans” cannot stretch to that of the date of the last approval of “building plans” for the purpose of determining the 42 months to deliver vacant possession even though pedantically and definition-wise "building plans" would include “all amendments, alterations and modifications to the building plans”. Thus, where the grammatical meaning of the definition of “building plans” would be wide enough to cover even all and any including the last approved building plans, the context does not admit it for the purpose of determining the time for delivery of vacant possession which is to run from the date of the first approval of the building plans.” - Per Lee Swee Seng FCJ in Icon City Development Sdn Bhd v. Lee Kean Hwa & Ors [2025] 10 CLJ 867 LATEST CASESLegal Network Series
CLJ 2025 Volume 10 (Part 3) For a breach to have the effect of entitling an innocent party to terminate a contract, it must be either: (i) a breach of condition; (ii) a sufficiently serious breach of an innominate/intermediate term; or (iii) a repudiation of the contract. The legal principles governing the award of restitutionary remedies have no application in determining whether a contract should be terminated for breach. A claim for restitution is available when there is a total failure of consideration. The applicable test for total failure of consideration is not whether the promisee has received a specific benefit but rather whether the promisor has performed any part of the contractual duties in respect of which payment is due. CONTRACT
CONTRACT: Agreement - Assignment agreement - Assignor purchased four lands from developer - Assignment of four lands from assignor to assignee under assignment agreement - Breach by assignee's subsequent, unilateral sale and purchase agreement with developer for only three parcels at significantly higher price - Validity and enforceability of assignment of rights under earlier sale and purchase agreement - Whether assignee's unconscionable conduct barred claim for restitution against assignor CONTRACT: Agreement - Sale and purchase agreement - Breach - Restitution - Assignor entered sale and purchase agreements for purchase of four lands from developer - Assignment of four lands from assignor to assignee under assignment agreement - Breach by assignee's subsequent, unilateral sale and purchase agreement with developer for only three parcels at significantly higher price - Claim for return of money paid - Applicable test for total failure of consideration - Whether focus on promisor's performance of contractual duties or whether promisee received specific benefit - Whether assignor had performed contractual duties under assignment agreement - Whether assignee entitled to restitution - Whether Berjaya Times Square Sdn Bhd v. M-Concept Sdn Bhd good law
Abdul Rahman Sebli CJ (Sabah & Sarawak)
Where there is ambiguity in the terms of an agreement, the law would necessarily pave a path for the parties to look at and consider the factual matrix surrounding the agreements so as to shed light to reasonably ascertain the parties' actual intent and mutual covenant. In this case, regarding whether the developer has breached its contractual covenant under the Developer Interest-Bearing Scheme ('DIBS'), the developer's own conduct of continuing to service the progressive interest payment jived perfectly with the purchasers' narrative that the parties have always understood and agreed that the DIBS period is not limited to the 48 months' 'contract period' to deliver vacant possession. Supported by numerous documents from the financiers and even the developer's own signed acknowledgment, the developer is contractually required to bear progressive interest under the DIBS scheme up until the delivery of the vacant possession proper (beyond the 48 months' contract period in case of delays). CONTRACT
CONTRACT: Agreement - Construction - Developer Interest-Bearing Scheme ('DIBS') - Ambiguity of terms - Determination on term 'construction period' - Whether construed as limited to 48 months period to deliver vacant possession or to cover entire period of time taken to fully construct and develop parcels and deliver vacant possession - Whether DIBS scheme covered entire period of construction until delivery of vacant possession - Whether DIBS period limited to 48 months' contract period - Whether estoppel lay in benefit of purchasers to bar developers from negating its previous admissions by conduct - Whether developer contractually required to bear progressive interest under DIBS until delivery of vacant possession proper
Hashim Hamzah JCA
While every person has the right to profess and practise the religion of his choice, it is not within the jurisdiction of the civil court to interfere with the jurisdiction of the Syariah Court and civil court would respect the powers and jurisdiction of the Syariah Court under the State List of the Ninth Schedule of the Federal Constitution. Hence, the civil court, having determined that the present matter raised, ie, renunciation, fell within the exclusive jurisdiction of the Syariah Court, would not proceed to adjudicate on the matter. CONSTITUTIONAL LAW
CONSTITUTIONAL LAW: Courts - Civil and Syariah courts - Jurisdiction - Plaintiff of indigenous Jakun tribe - Determination of interpretation of 'persons professing the religion of Islam' - Whether question of fact to be proven by plaintiff who sought declaration - Whether plaintiff's conversion corroborated by entry in Daftar Rekod Muallaf Negeri Pahang - Plaintiff raised by convert mother alone - Whether plaintiff's mother entitled to convert plaintiff even without custody order - Whether matter related to renunciation - Whether fell under jurisdiction of Syariah Court - Administration of Islamic Law Enactment 1991 (Pahang) (En 3/1991), ss. 2, 2(1)(b), (d) & 103 - Federal Constitution, art. 12(4) CONSTITUTIONAL LAW: Jurisdiction - Civil court - Plaintiff of indigenous Jakun tribe - Determination of interpretation of 'persons professing the religion of Islam' - Whether question of fact to be proven by plaintiff who sought declaration - Whether plaintiff's conversion corroborated by entry in Daftar Rekod Muallaf Negeri Pahang - Plaintiff raised by convert mother alone - Whether plaintiff's mother entitled to convert plaintiff even without custody order - Whether matter related to renunciation - Whether fell under jurisdiction of Syariah Court - Administration of Islamic Law Enactment 1991 (Pahang) (En 3/1991), ss. 2, 2(1)(b), (d) & 103 - Federal Constitution, art. 12(4)
Che Mohd Ruzima Ghazali JCA
Where a court is asked to consider the legal validity of a statutory provision or its application, and the matter involves public interest or fiscal implications affecting the State, the general presumption is that any judicial declaration of invalidity should operate prospectively, that is, only from the date of the judgment forward. This approach upholds the principles of legal certainty and fairness, ensuring that parties who acted in reliance on the law as it stood at the relevant time are not unfairly prejudiced by subsequent judicial developments. Judicial declarations of invalidity, particularly when applied retroactively, have the potential to disrupt legal relationships and expectations, thereby creating confusion and injustice. ADMINISTRATIVE LAW | REVENUE LAW
ADMINISTRATIVE LAW: Judicial review - Application for - Constitutionality of s. 4C of Income Tax Act 1967 - Compensation received by landowner for acquisition of lands subjected to tax - Case of Wiramuda (M) Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri declaring s. 4C unconstitutional - Whether ruling made by Wiramuda applied retrospectively - Whether landowner entitled to refund of taxes - Whether there were exceptional and compelling considerations - Whether judicial declarations of unconstitutionality or invalidity should operate prospectively REVENUE LAW: Income tax - Compensation - Compensation received by landowner for acquisition of lands subjected to tax - Constitutionality of s. 4C of Income Tax Act 1967 - Case of Wiramuda (M) Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri declaring s. 4C unconstitutional - Whether ruling made by Wiramuda applied retrospectively - Whether landowner entitled to refund of taxes - Whether there were exceptional and compelling considerations - Whether judicial declarations of unconstitutionality or invalidity should operate prospectively
Shahnaz Sulaiman J
A disciplinary decision may be liable to be set aside if it is tainted by excessive and unexplained delay, which may be construed as condonation of the misconduct which formed the basis of such disciplinary decisions. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Public officer - Dismissal - Prolonged absenteeism by public officer earlier in career - No disciplinary action taken for seven years - Public officer re-established self as dedicated and high-performer - Public officer promoted and awarded - Sudden issuance of show cause letter on prolonged absenteeism after seven years - Public officer dismissed from services - Whether delay in initiating disciplinary action rendered decision unfair and unlawful - Whether prolonged inaction amounted to condonation - Whether disciplinary process complied with principles of natural justice and procedural fairness - Whether punishment of dismissal proportionate to alleged misconduct ADMINISTRATIVE LAW: Judicial review - Certiorari - Challenge against decision to dismiss public officer - Prolonged absenteeism by public officer earlier in career - No disciplinary action taken for seven years - Public officer re-established self as dedicated and high-performer - Public officer promoted and awarded - Sudden issuance of show cause letter on prolonged absenteeism after seven years - Public officer dismissed from services - Whether delay in initiating disciplinary action rendered decision unfair and unlawful - Whether prolonged inaction amounted to condonation - Whether disciplinary process complied with principles of natural justice and procedural fairness - Whether punishment of dismissal proportionate to alleged misconduct
Moses Susayan JC
Moneylending transactions and agreements are governed primarily by the Moneylenders Act 1951 ('MLA'). Hence, such transactions must comply with the provisions stipulated under the MLA. Any contravention would render the agreements void and unenforceable. More so, where the interest rate, which has been specifically spelt out to not exceed 18% per annum under s. 17A(1) of the MLA, must be strictly complied with. Any interest rate that is over and above the statutory limit, would render the loan agreement null and the void. The court would not lend its hand to legalise such transactions. MONEYLENDERS
MONEYLENDERS: Moneylending transaction - Loan with interests - Legality of moneylending agreements - Challenge against enforceability of moneylending agreements - Whether interests of 24% per annum and 3.5% per month exorbitant - Whether interests exceeded 18% per annum permitted under s. 17 of Moneylenders Act 1951 - Whether lender's ledger account showed sham entries - Whether agreements valid and enforceable MONEYLENDERS: Moneylending transaction - Loan with interests - Whether lender sought borrower via agent - Whether third-party acted as 'agent or canvasser' for lender - Whether third-party received valuable consideration by way of commission - Whether third-party acted as lender's agent - Whether moneylending agreements contravened s. 27A(1) of Moneylenders Act 1951 - Whether agreements valid and enforceable
Ong Chee Kwan J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|