CLJ Bulletin, Issue 2011, Vol 10

18 March 2011

CLJ Law Malaysia

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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 2 (Part 3) 2011

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1. Legislation Highlights

Principal Acts

NUMBER

TITLE

DATE COMING INTO FORCE

REPEALING

ACT 715 Land Public Transport Act 2010 31 January 2011 [P.U. (B) 43/2011] - Nil -
ACT 718 Agensi Inovasi Malaysia Act 2010 Not Yet In Force - Nil -
ACT 721 International Islamic Liquidity Management Corporation Act 2011 25 October 2010 - Nil -
ACT 722 Fees (Malaysian Meteorological Department (Validation) Act 2011 28 January 2011 - Nil -
ACT 723 Price Control And Anti-Profiteering Act 2011 Not Yet In Force - Nil -
ACT 724 National Visual Arts Development Board Act 2011 Not Yet In Force - Nil -

Amending Acts

NUMBER

TITLE

DATE COMING INTO FORCE

AMENDING

ACT A1387 Malaysian Timber Industry Board (Incorporation) (Amendment) Act 2010 Not Yet Inforce ACT 105
ACT A1388 Supply Act 2011 31 December 2010 - Nil -
ACT A1389 Bank Simpanan Nasional (Amendment) Act 2011 24 February 2011 [P.U. (B) 79/2011] ACT 146
ACT A1390 Moneylenders (Amendment) Act 2011 Not Yet Inforce ACT 400
ACT A1391 Road Transport (Amendment) Act 2011 31 January 2011 [P.U. (B) 37/2011] ACT 333

PU(A)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL ACT NO

PU(A) 058/2011 Proclamation By His Majesty The Yang Di-Pertuan Agong, By The Grace Of Allah, Supreme Head Of The States And Territories Of Malaysia 24 February 2011 ACT 000
PU(A) 059/2011 Proclamation By His Majesty The Yang Di-Pertuan Agong, By The Grace Of Allah, Supreme Head Of The States And Territories Of Malaysia 24 February 2011 ACT 000
PU(A) 060/2011 Weights And Measures (Amendment) Regulations 2010 - Corrigendum 24 February 2011 ACT 71
PU(A) 061/2011 Customs (Values) (Crude Petroleum Oil) (No 4) Order 2011 24 February 2011 ACT 235
PU(A) 062/2011 Customs (Values) (Palm Oil) (No 9) Order 2011 28 February 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL ACT NO

PU(B) 084/2011 Appointment Under Section 3 - Melaka 25 February 2011 ACT 19
PU(B) 085/2011 Appointment Under Section 3 - Melaka 25 February 2011 ACT 19
PU(B) 086/2011 Polling Districts, Polling Centres And Polling Hours - Kuala Krau, Pahang 25 February 2011 ACT 19
PU(B) 087/2011 Appointment Of Date Of Coming Into Operation 28 February 2011 ACT A1386
PU(B) 088/2011 Notice To Third Parties 28 February 2011 ACT 613

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2. Articles

a) Legal Network Series Articles

1. The Role Of Receiver Of Wreck In Managing Historic Wreck Under The Merchant Shipping Ordinance 1952* [Read excerpt]
By Mahmud Zuhdi Mohd Nor

2. Forensic Science And Human Rights: The Challenges* [Read excerpt]
By The Hon Sir Jack Beatson FBA**

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT
[2009] 1 LNS 464 [HC] Lim Nui Hui v. Superintendent Of Lands And Surveys Kuching Division, Sarawak

LAND LAW: Acquisition of land - Compulsory acquisition - Compensation - Objector dissatisfied with valuation for compensation assessed by respondent - Whether market value at the date of publication of s. 47 or s. 48 notification to be considered - Land registered in 1984 but alienated before the s. 47 notification was made in 1973 - Whether doctrine of estoppel applicable - Whether estoppel able to displace s. 60 of the Land Code - Whether award by respondent inadequate

[2009] 1 LNS 465 [HC] Chong Miaw Lee v. Superintendent Of Lands And Surveys Kuching Division & Anor

ADMINISTRATIVE LAW: Judicial review - Application for - Order of mandamus directing 1st respondent to issue the individual documents of title to the said land - Representation made in 1st respondent's letter that payment of RM1,192.00 was for the registration and preparation of documents of title upon subdivision of the said land - Whether appropriate for court to invoke the concept of legitimate expectation - Whether 2nd respondent aggrieved by issuance of new documents of title

[2009] 1 LNS 470 [HC] Alliance Bank Malaysia Berhad v. Mangium Sawmill Sdn Bhd & Ors

CONTRACT: Guarantee - Conclusive evidence clause - Whether plaintiff's claim discloses a cause of action - Dispute on sum claimed - Certificate of indebtedness tendered in court - Whether defendants successful in challenging certificate - Judgment in default against borrower not set aside - Whether tantamount to an admission which is conclusive and binding on 2nd, 3rd and 4th defendants - Whether liability of 2nd, 3rd, and 4th defendants established

CONTRACT: Guarantee - Demand guarantee - Whether plaintiff's claim preceded by demands in accordance with the joint and several Guarantees - Acknowledgement receipt of AR Registered post not produced - Whether letter of demand to 3rd defendant sent to wrong address - Mistake by clerk at post office - Effect on letter of demand - Whether deeming provision applies

[2009] 1 LNS 558 [HC] Hisniaga Jaya Sdn Bhd v. Dua Masa Construction Sdn Bhd & Anor

CIVIL PROCEDURE: Injunction - Interim injunction - Plaintiff seeking to restrain 1st defendant from making a demand on the performance bond issued by 2nd defendant and 2nd defendant from making payment to 1st defendant until disposal of action against defendants - Whether any serious issues to be tried

CIVIL PROCEDURE: Injunction - Damages - Whether damages an adequate remedy - Plaintiff's action a monetary claim - Plaintiff's financial capacity to pay damages in doubt - Whether plaintiff in a position to honour its undertaking as to damages

CIVIL PROCEDURE: Injunction - Balance of convenience - Whether in 1st defendant's favour - Whether plaintiff will suffer irreparable damage - Whether any special circumstances to warrant injunction

CONTRACT: Performance bond - On demand bond - Liability - 1st defendant required to make demand accompanied by supporting documents - Whether 1st defendant fulfilled the requirements in performance bond - Whether demand valid - Whether 2nd defendant obliged to make payment to 1st defendant

[2009] 1 LNS 844 [HC] OMX Marketing Sdn Bhd v. Thialan Letchumanan & Ors

TRADE MARKS: Passing off - Dispute over originator of trademark OMX or OM-X - Whether originated from the Japanese principal or plaintiff - Claim that name OMX or OM-X already in the market before plaintiff was formed - Use of OM-X in Japanese principal's letterhead - Box carrying the logo OM-X and product called OHHIRA MOUNTAIN EXTRACT manufactured by Japanese principal sold as early as 1988 - Whether consistent with defendants' claim that OM-X trademark was already in use as early as 1988

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b. CLJ Volume 2 (Part 3) 2011

COURT

COURT OF APPEAL

Kwong Yik Bank Bhd v. Kwan Chew Holdings Sdn Bhd
Denis Ong, Mohd Noor Ahmad, Hashim Yusoff
(Civil Procedure - Action - Limitation - Whether action statute barred) [2011] 2 CLJ 269 [CA]

Malayan Nurses Union v. Syarikat Perniagaan Cuepacs Bhd & Anor
Sulong Matjeraie, Kang Hwee Gee, Clement Skinner
(Civil Procedure; Land Law; Company Law; Words & Phrases - Purchase of property - Specific performance - Vendor went into liquidation - Rights of purchaser and chargee) [2011] 2 CLJ 280 [CA]

HIGH COURT

Alam Maritim (M) Sdn Bhd v. Lembaga Hasil Dalam Negeri Malaysia
Aziah Ali
(Administrative Law; Revenue Law - Certiorari - Income tax - Whether respondent could impose income tax on Singapore non-resident companies) [2011] 2 CLJ 290 [HC]

AmFinance Bhd v. Datuk Lim Suh Hua
Zura Yahya
(Banking; Civil Procedure; Contract; Land Law - Loan - Purchase of property from developer - Assignment - Rights of purchaser under SPA assigned to lender - Whether tripartite relationship created) [2011] 2 CLJ 301 [HC]

Ng Ah Nya lwn. Bumiputra-Commerce Leasing Sdn Bhd
Nurmala Salim
(Kebankrapan - Ketua Pengarah Insolvensi - Kuasa untuk membeku wang caruman KWSP si bankrap) [2011] 2 CLJ 313 [HC]

P & A Systech Sdn Bhd v. YAB Dato' Seri Mahdzir Khalid, Menteri Besar Kedah Darul Aman & Anor
See Mee Chun
(Tort - Defamation - Defence of justification) [2011] 2 CLJ 318 [HC]

Playboy Enterprises International Inc v. Zillion Choice Sdn Bhd & Anor
Azahar Mohamed
(Agency; Trade Marks - Infringement of trade marks - Authority of agent) [2011] 2 CLJ 329 [HC]

Rachel Mathews v. Basf (M) Sdn Bhd & Anor
Mohamad Ariff Yusof
(Labour Law - Industrial Court - Finding domestic inquiry flawed but ruling dismissal justified - Whether decision sustainable) [2011] 2 CLJ 354 [HC]

Uni Asia General Insurance Bhd v. Norashikin Uzir
Hadhariah Syed Ismail
(Insurance; Civil Procedure - Theft of motorcar - Liability of insurer) [2011] 2 CLJ 360 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Certiorari - Application to quash respondent's decision that applicant was obliged to deduct withholding tax on payment of charter fees made to Singapore non-resident companies - Whether Singapore enterprise was carrying on business in Malaysia through a permanent establishment - Whether art. IV of Double Taxation Agreement applicable - Whether there was legal basis for respondent to impose income tax on Singapore non-resident companies
Alam Maritim (M) Sdn Bhd v. Lembaga Hasil Dalam Negeri Malaysia
(Aziah Ali J) [2011] 2 CLJ 290 [HC]

AGENCY

Authority of agent - Ostensible authority - No representation given by principal suggesting apparent authority granted to individual - No situation created by principal conferring any authority on the individual - No evidence to establish third party's reasonable belief that individual conferred with apparent authority by principal - Individual not an agent having apparent or ostensible authority
Playboy Enterprises International Inc v. Zillion Choice Sdn Bhd & Anor
(Azahar Mohamed J) [2011] 2 CLJ 329 [HC]

BANKING

Securities for advances - Loan agreement - Default in repayment - Delay of over five years in lender commencing action against borrower - Whether breach of banker's obligation
AmFinance Bhd v. Datuk Lim Suh Hua
(Zura Yahya JC) [2011] 2 CLJ 301 [HC]

Securities for advances - Loan agreement - Default in repayment - Loan granted for borrower to purchase property from developer - Whether lender should make claim against developer - Whether privity of contract between lender and developer - Whether assignment of property to lender under deed of assignment created tripartite relationship
AmFinance Bhd v. Datuk Lim Suh Hua
(Zura Yahya JC) [2011] 2 CLJ 301 [HC]

CIVIL PROCEDURE

Action - Limitation - Issue of - Application to recover outstanding overdraft due - Accrual of cause of action - Limitation Act 1953, s. 26(2) - Whether applicable - Whether action statute barred by virtue of s. 6(1)(a) Limitation Act 1953
Kwong Yik Bank Bhd v. Kwan Chew Holdings Sdn Bhd
(Denis Ong, Mohd Noor Ahmad, Hashim Yusoff JJCA) [2011] 2 CLJ 269 [CA]

Execution - Judgment and order - Specific performance - Whether order for specific performance a form of writ of execution - Application for leave to enforce judgment and issue execution 11 years after obtaining judgment and order - Whether judgment had lapsed - Whether application incompetent - Whether to be dismissed - Rules of High Court 1980, O. 46 rr. 1, 2
Malayan Nurses Union v. Syarikat Perniagaan Cuepacs Bhd & Anor
(Sulong Matjeraie, Kang Hwee Gee, Clement Skinner JJCA) [2011] 2 CLJ 280 [CA]

Judgment - Uncertainty - Alternative prayers in statement of claim allowed by Sessions Judge - Uncertainty as to which of two alternative claims plaintiff entitled to - Whether judgment defective and bad in law - Whether should be set aside
Uni Asia General Insurance Bhd v. Norashikin Uzir
(Hadhariah Syed Ismail JC) [2011] 2 CLJ 360 [HC]

Judgment and Orders - Enforceability - Whether judgment obtained by house buyer against developer can be enforced by lender
AmFinance Bhd v. Datuk Lim Suh Hua
(Zura Yahya JC) [2011] 2 CLJ 301 [HC]

Preliminary question - Rules of the High Court 1980, O. 33 - Limitation - Issue of - Application to recover outstanding overdraft due - Whether action statute barred by virtue of s. 6(1)(a) Limitation Act 1953 - Whether Judicial Commissioner correct in dismissing appellant's claim
Kwong Yik Bank Bhd v. Kwan Chew Holdings Sdn Bhd
(Denis Ong, Mohd Noor Ahmad, Hashim Yusoff JJCA) [2011] 2 CLJ 269 [CA

COMPANY LAW

Liquidation - Liquidator, duties of - Sale of charged property - Vendor went into liquidation and did not deliver vacant possession to purchaser - Charge not registered by chargee bank - Whether charge rendered void - Order of court against vendor for specific performance of sale - Whether liquidator duty bound to repay chargee bank in order to redeem property - Whether liquidator may avoid Order - Whether reasons for avoidance of Order reasonable - Companies Act 1965, s. 108(1), (2)
Malayan Nurses Union v. Syarikat Perniagaan Cuepacs Bhd & Anor
(Sulong Matjeraie, Kang Hwee Gee, Clement Skinner JJCA) [2011] 2 CLJ 280 [CA]

CONTRACT

Breach - Agreement - Sale and purchase agreement - Termination of agreement by purchaser alleging construction not completed on time - Termination done before expiry of completion date - Wrongful and premature termination of agreement
AmFinance Bhd v. Datuk Lim Suh Hua
(Zura Yahya JC) [2011] 2 CLJ 301 [HC]

Loan - Default in repayment - Assignment - Loan granted for borrower to purchase property from developer - Whether lender should make claim against developer - Whether privity of contract between lender and developer - Whether assignment of property to lender under deed of assignment created tripartite relationship
AmFinance Bhd v. Datuk Lim Suh Hua
(Zura Yahya JC) [2011] 2 CLJ 301 [HC]

Privity of contract - Assignment - Loan granted for borrower to purchase property from developer - Whether lender should make claim against developer - Whether privity of contract between lender and developer - Whether assignment of property to lender under deed of assignment created tripartite relationship
AmFinance Bhd v. Datuk Lim Suh Hua
(Zura Yahya JC) [2011] 2 CLJ 301 [HC]

INSURANCE

Motor insurance - Loss or theft of motorcar - Insurer repudiating liability to indemnify - Exclusion clauses - Broken-down car left unattended without proper precautions being taken to prevent further loss or damage - No reasonable precautions to safeguard vehicle from loss or damage - Broken-down car left at open car park for five to seven days - Whether insured's conduct facilitated theft of car
Uni Asia General Insurance Bhd v. Norashikin Uzir
(Hadhariah Syed Ismail JC) [2011] 2 CLJ 360 [HC]

LABOUR LAW

Industrial Court - Award of dismissal - Judicial review - Industrial Court found domestic inquiry process flawed but ruling that dismissal was justified - Whether decision sustainable - Whether had properly applied law to facts of case - Whether applicant truly guilty of gross misconduct
Rachel Mathews v. Basf (M) Sdn Bhd & Anor
(Mohamad Ariff Yusof J) [2011] 2 CLJ 354 [HC]

LAND LAW

Assignment - Deed of Assignment - Rights, titles and interests of purchaser under Sale and Purchase Agreement assigned to lender - Whether purchaser must obtain lender's consent to institute action against developer for breach of SPA
AmFinance Bhd v. Datuk Lim Suh Hua
(Zura Yahya JC) [2011] 2 CLJ 301 [HC]

Charge - Unregistered charge - Purchase of property under charge - Vendor wound-up and went into liquidation - Rights and protection of chargee vis--vis purchaser of property - Whether charge rendered void - Whether chargee bank enjoyed indefeasibility of title - Whether entitled to be paid monies secured under charge - Whether charge one of equitable charge - Duties of liquidator under circumstances thereof - National Land Code, s. 340 - Companies Act 1965, s. 108(1), (2)
Malayan Nurses Union v. Syarikat Perniagaan Cuepacs Bhd & Anor
(Sulong Matjeraie, Kang Hwee Gee, Clement Skinner JJCA) [2011] 2 CLJ 280 [CA]

REVENUE LAW

Income tax - Obligation to deduct withholding tax - Whether applicant duty bound to make or deduct any withholding tax in relation to charter fees made to Singaporean non-resident companies - Whether Singapore enterprise was carrying on business in Malaysia through a permanent establishment - Whether art. IV of Double Taxation Agreement applicable - Whether there was legal basis for respondent to impose income tax on Singapore non-resident companies
Alam Maritim (M) Sdn Bhd v. Lembaga Hasil Dalam Negeri Malaysia
(Aziah Ali J) [2011] 2 CLJ 290 [HC]

TORT

Defamation - Defamatory statements - Defence - Justification - Whether needed to be specifically pleaded - Plea that "words complained of were true in substance and in fact" - Whether amounted to plea of justification - Suit against State Government - Vicarious liability - Maker of statements not cited as co-defendant - Whether State Government not capable of alleged defamation
P & A Systech Sdn Bhd v. YAB Dato' Seri Mahdzir Khalid, Menteri Besar Kedah Darul Aman & Anor
(See Mee Chun JC) [2011] 2 CLJ 318 [HC]

TRADE MARKS

Registered trade mark - Action for infringement - Goods distributed by licensee not approved for trade mark use by licensor - Goods not subject to licensor's stringent quality control approval process - No implied or express waiver of process - Unapproved goods of licensee bearing licensor's trade mark - Licensee's goods counterfeit - Infringement of licensor's trade mark established against licensee
Playboy Enterprises International Inc v. Zillion Choice Sdn Bhd & Anor
(Azahar Mohamed J) [2011] 2 CLJ 329 [HC]

WORDS & PHRASES

"any contract or application for repayment of money secured by a charge" - Section 108 Companies Act 1965 - Whether conferring chargee right to be paid immediately money secured under a charge
Malayan Nurses Union v. Syarikat Perniagaan Cuepacs Bhd & Anor
(Sulong Matjeraie, Kang Hwee Gee, Clement Skinner JJCA) [2011] 2 CLJ 280 [CA]

"writ of execution" - Order 46 r. 1 Rules of High Court 1980 - Whether to include order for specific performance
Malayan Nurses Union v. Syarikat Perniagaan Cuepacs Bhd & Anor
(Sulong Matjeraie, Kang Hwee Gee, Clement Skinner JJCA) [2011] 2 CLJ 280 [CA]

INDEKS PERKARA

KEBANKRAPAN

Ketua Pengarah Insolvensi - Kuasa-kuasa - Pembekuan wang caruman - Pembekuan wang caruman Kumpulan Wang Simpanan Pekerja (KWSP) - Sama ada KPI berhak membekukan wang caruman si bankrap setelah wang dibayar keluar oleh KWSP kepada si bankrap - Sanksi - Sanksi kepada si bankrap untuk mengambil tindakan guaman - Sama ada hal budibicara KPI- Akta Kebankrapan 1967, ss. 24(4), 38(1)(a) - Akta Kumpulan Wang Simpanan Pekerja 1991, s. 51
Ng Ah Nya lwn. Bumiputra-Commerce Leasing Sdn Bhd
(Nurmala Salim PK) [2011] 2 CLJ 313 [HC]

^^

CASE OF THE WEEK

SUGU NADARAJA v. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS

PREVENTIVE DETENTION: Detention order - Detention under Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Habeas corpus - Deputy Minister issued detention order under s. 4(1) Ordinance relying on a report by non-designated police officer - No report as envisaged under s. 3(3) Ordinance - Validity of detention order - Procedural non-compliance in appellant's detention - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3(3), 4(1)

CRIMINAL PROCEDURE: Habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969, detention under - Deputy Minister issued detention order under s. 4(1) Ordinance relying on a report by non-designated police officer - No report as envisaged under s. 3(3) Ordinance - Validity of detention order - Procedural non-compliance in appellant's detention - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3(3), 4(1)

CONSTITUTIONAL LAW: Fundamental liberties - Preventive detention - Detention under Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Deputy Minister issued detention order under s. 4(1) Ordinance relying on a report by non-designated police officer - No report as envisaged under s. 3(3) Ordinance - Validity of detention order - Procedural non-compliance in appellant's detention - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3(3), 4(1)


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