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CLJ Bulletin, Issue 2015, Vol 36
04 September 2015


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New This Week

1. Case(s) of the Week

  1. LEMBAGA MINYAK SAWIT MALAYSIA v. ARUNAMARI PLANTATIONS SDN BHD & ORS AND ANOTHER APPEAL [2015] 7 CLJ 149

  2. TEO CHENG HUA v. KER MIN CHOO & ORS [2015] 7 CLJ 328

2. Latest Cases

  1. Legal Network Series

  2. CLJ 2015 Volume 7 (Part 2)

  3. CLJ 2015 Volume 7 (Part 3)

3. Articles

  1. LNS Article(s)

4. Legislation Highlights

  1. Principal Acts

  2. Amending Acts

  3. PU(A)

  4. PU(B)

  5. Legislation Alert


CASE(S) OF THE WEEK

LEMBAGA MINYAK SAWIT MALAYSIA v.
ARUNAMARI PLANTATIONS SDN BHD & ORS AND ANOTHER APPEAL
[2015] 7 CLJ 149
FEDERAL COURT, PUTRAJAYA
RAUS SHARIF PCA, ABDULL HAMID EMBONG FCJ, SURIYADI HALIM OMAR FCJ, HASAN LAH FCJ, ZAINUN ALI FCJ
[CIVIL APPEALS NO: 01(f)-4-03-2013(W) & 01(f)-5-03-2013(W)]
9 JULY 2015

CONSTITUTIONAL LAW: Legislation - Validity of impugned legislation - Minister of Plantation, Industries and Commodities issued Malaysian Palm Oil Board (CESS) (Oil Palm Fruit) Order 2007 (2007 Order) under s. 35 of Malaysian Palm Oil Board Act 1998 ('Act') - Collection of cess via 2007 Order - Respondents challenged validity of 2007 Order - Whether 2007 Order was ultra vires Federal Constitution - Whether s. 35 was valid tax statute - Whether s. 35 empowered Minister to impose cess via subsidiary legislation - Whether s. 35 contravened art. 96 of Federal Constitution - Whether imposition of cess on class of parties was a form of discrimination - Whether there was nexus between basis of classification and object of law - Whether collection of cess for purposes of subsidising price of cooking oil was within purpose of Act


TEO CHENG HUA v. KER MIN CHOO & ORS [2015] 7 CLJ 328
COURT OF APPEAL, PUTRAJAYA
MOHD ZAWAWI SALLEH JCA, IDRUS HARUN JCA, BADARIAH SAHAMID JCA
[CIVIL APPEAL NO: J-02(IM)-512-03-2014]
02 JUNE 2015

CIVIL PROCEDURE: Contempt of court - Interference with due administration of justice - Filing of second Form 75 under s. 281 Companies Act 1965 and second statutory declaration by liquidator - Whether contents of first Form 75 altered - Whether credible explanation furnished for alterations - Whether amounted to tampering with documentary evidence - Whether actions connected to litigation against liquidator - Whether interference with proper administration of justice - Whether constituted contempt of court


LATEST CASES

Legal Network Series

[2011] 1 LNS 1195

WAN SHAHRIMAN WAN SULEIMAN v. ESSO MALAYSIA BERHAD

CONTRACT: Breach - Agreement - Whether defendant in breach of the terms of the 2001 Agreement

CONTRACT: Formation - Agreement - Alleged License Agreement - Whether a valid, binding and enforceable contract existed between the parties

CONTRACT: Licence to occupy premises - Breach - Defendant took possession of petrol station when plaintiff abroad - Actual nature and purport of agreement - Whether agreement created relationship of landlord and tenant or that of licensor and licensee - Intention of parties - Whether plaintiff's occupation of land was pursuant to license granted by defendant for non exclusive right to operate station - Whether s. 7 of Specific Relief Act 1950 applicable - Whether plaintiff had a right to enter property once license was withdrawn

[2013] 1 LNS 1165

BRG POLO HAUS SDN BHD & LAGI SATU lwn. BLAY INTERNATIONAL (M) SDN BHD & YANG LAIN

PROSEDUR SIVIL: Sapina - Pengenepian - Permohonan pengenepian sapina - Kesahihan pengeluaran sapina - Pemohon adalah seorang bankrap - Sama ada sapina yang telah dikeluarkan oleh seorang yang bankrap adalah sah

PROSEDUR SIVIL: Sapina - Pengenepian - Permohonan pengenepian sapina - Kewujudan fakta baru - Res judicata - Sama ada prinsip res judicata terpakai untuk menghalang pengeluaran sapina ke atas seseorang sebagai saksi untuk isu yang belum dibicarakan

[2014] 1 LNS 451

PP lwn. MOHD SAIFUDDIN MOHD YUSOP

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Jenayah pengedaran dadah - Kepentingan awam - Sama ada hukuman yang telah dikenakan setimpal - Sama ada faktor kepentingan awam merupakan faktor utama - Sama ada berat dadah memainkan peranan dalam penentuan hukuman

PROSEDUR JENAYAH: Mitigasi - Peringanan hukuman - Kesalahan pengedaran dadah - Pengakuan bersalah - Keinsafan tertuduh - Sama ada hukuman terhadap tertuduh wajar dikurangkan berikutan pengakuan bersalah tertuduh - Sama ada terdapat faktor dan keadaan sekitar berkaitan perbuatan kesalahan yang mewajarkan hukuman yang ringan

[2014] 1 LNS 725

PP v. KARTHI GOPAL

CRIMINAL LAW: Dangerous drugs - Trafficking - Possession - Custody or control - Accessibility by others - Knowledge - Whether accused had exclusive possession of drugs - Whether knowledge per se is sufficient to constitute possession

EVIDENCE: Admissibility - Conduct of accused - Conduct of accused at time of arrest - Whether conduct of accused at time of arrest is admissible as evidence - Whether accused has duty to explain his conduct

[2014] 1 LNS 827

ASEAMBANKERS MALAYSIA BERHAD & ORS v. TEOH CHYN CHOON & ANOR

BANKING: Securities for advances - Guarantee - Liability of guarantor as principal debtorsWhether liability of guarantor is independent of any security or surety granted under facility - Whether creditor entitled to recover their legal remedies against guarantor without first availing their legal remedies against borrower or any other surety or against any security

CIVIL PROCEDURE: Summary judgment - Triable issues - Action to recover money loaned - Recovery action against guarantor - Liability of guarantor as principal debtor - Whether cause of action against guarantor is independent of any security or surety granted under facility - Whether decision of creditor to exercise their legal remedies against guarantor without first availing their legal remedies against borrower or any other surety or against any security was a triable issue

EVIDENCE: Proof of - Debt - Certificate of indebtedness - Conclusive evidence - Undisputed certificate of indebtedness - Whether an undisputed certificate of indebtedness is conclusive evidence to prove debt


CLJ 2015 Volume 7 (Part 2)

COURT

FEDERAL COURT

Lembaga Minyak Sawit Malaysia v. Arunamari Plantations Sdn Bhd & Ors And Another Appeal
(Constitutional Law - Validity of impugned legislation - Whether there was nexus between basis of classification and object of law) [2015] 7 CLJ 149 [FC]

COURT OF APPEAL

Dr Syed Azman Syed Ahmad Nawawi & Ors v. Dato' Seri Hj Ahmad Said
(Civil Procedure; Tort - Defamation - Defences - Qualified privilege - Whether compliance with O. 78 r. 3(3) of the Rules of Court 2012 mandatory) [2015] 7 CLJ 180 [CA]

Kempas Edible Oil Sdn Bhd v. Prabdhial Singh Dardara Singh
(Administrative Law; Labour Law - Industrial court - Dispute over wrongful dismissal - Whether Industrial Court failed to take into account relevant matters) [2015] 7 CLJ 203 [CA]

Lynawati Abdullah v. Abang Sukori Abang Hj Gobil & Anor
(Administrative Law; Civil Procedure - Judicial review - Native customary rights land - Whether decision of Native Court of Appeal amenable to judicial review by High Court) [2015] 7 CLJ 219 [CA]

Profil Saujana (M) Sdn Bhd v. Azabar Holdings
(Contract - Sale and purchase of land - Dispute as to payment of purchase price) [2015] 7 CLJ 230 [CA]

HIGH COURT

JJ Raj v. Dato' Edward John Lawrence & Ors
(Civil Procedure - Capacity to sue - First defendant diagnosed with dementia) [2015] 7 CLJ 238 [HC]

Plastech Industries System Sdn Bhd v. N & C Resources Sdn Bhd & Ors
(Civil Procedure - Contempt of court - Committal proceedings - Discrepancies in documents attached to affidavits of compliance of judgment) [2015] 7 CLJ 252 [HC]

PP v. Induk Harapan Sdn Bhd & Ors
(Criminal Law; Customs And Excise - Money laundering - Evading customs duties - Monies obtained as result of money laundering) [2015] 7 CLJ 266 [HC]

PP v. Yeoh Oon Theam
(Criminal Law; Criminal Procedure - Giving false evidence - Penal Code - Section 199 - Elements to be proved) [2015] 7 CLJ 270 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application for - Native customary rights land - Land acquired by State Government of Sarawak - Dispute over ownership of land and compensation - Native Court of Appeal held that applicant was not rightful owner of land - Application for judicial review to quash decision of Native Court of Appeal - Whether decision of Native Court of Appeal amenable to judicial review by High Court - Rules of Court 2012, O. 53
Lynawati Abdullah v. Abang Sukori Abang Hj Gobil & Anor
(Mohd Hishamudin Yunus, David Wong Dak Wah, Umi Kalthum Abdul Majid JJCA) [2015] 7 CLJ 219 [CA]

Judicial review - Certiorari - High Court allowed order of certiorari to quash award by Industrial Court - Appeal against - Whether Industrial Court acted within scope of its jurisdiction - Whether Industrial Court bound by a Sessions Court decision in acquitting respondent from any corrupt offences - Whether proceedings before Sessions Court relevant to proceedings before Industrial Court - Whether High Court erred and departed from established principles of law - Whether approach taken by Industrial Court consistent with exercise of its functions - Industrial Relations Act 1967, s. 30(5)
Kempas Edible Oil Sdn Bhd v. Prabdhial Singh Dardara Singh
(Mohd Hishamudin Yunus, Hamid Sultan Abu Backer, Umi Kalthum Abdul Majid JJCA) [2015] 7 CLJ 203 [CA]

CIVIL PROCEDURE

Action - Capacity to sue - First defendant diagnosed with dementia - Commencement of legal proceedings against first defendant - First defendant declared as 'mentally disordered person', 'patient' and 'person under disability' under O. 76 of Rules of Court 2012 (ROC) - Litigation representative - Leave to maintain and continue proceedings against first defendant through first defendant's litigation representative pursuant to O. 76 r. 1A ROC - Grounds of application - Whether same guiding principles for leave application under O. 53 ROC ought to be adopted
JJ RAJ v. Dato' Edward John Lawrence & Ors
(Suraya Othman J) [2015] 7 CLJ 238 [HC]

Appeal - Appellate interference - Trial court misdirecting itself and applying wrong principles of law - Whether appellate interference justified
Dr Syed Azman Syed Ahmad Nawawi & Ors v. Dato' Seri Hj Ahmad Said
(Lim Yee Lan, Varghese George, Nallini Pathmanathan JJCA) [2015] 7 CLJ 180 [CA]

Contempt of court - Committal proceedings - Discrepancies in documents attached to affidavits of compliance of judgment - Whether documents were suppressed - Whether there was interference in administration of justice - Whether amounted to contempt of court - Whether warranted committal order - Rules of Court 2012, O. 52
Plastech Industries System Sdn Bhd v. N & C Resources Sdn Bhd & Ors
(Azizah Nawawi J) [2015] 7 CLJ 252 [HC]

Judicial review - High Court - Powers of High Court - Dispute over ownership of land and compensation - Native Court of Appeal held that applicant was not rightful owner of land - Application for judicial review to quash decision of Native Court of Appeal - Whether decision of Native Court of Appeal amenable to judicial review by High Court - Rules of Court 2012, O. 53
Lynawati Abdullah v. Abang Sukori Abang Hj Gobil & Anor
(Mohd Hishamudin Yunus, David Wong Dak Wah, Umi Kalthum Abdul Majid JJCA) [2015] 7 CLJ 219 [CA]

Pleadings - Pleading material facts - Whether sufficient particulars of malice pleaded to displace the defence of qualified privilege in defamation suit
Dr Syed Azman Syed Ahmad Nawawi & Ors v. Dato' Seri Hj Ahmad Said
(Lim Yee Lan, Varghese George, Nallini Pathmanathan JJCA) [2015] 7 CLJ 180 [CA]

CONSTITUTIONAL LAW

Legislation - Validity of impugned legislation - Minister of Plantation, Industries and Commodities issued Malaysian Palm Oil Board (CESS) (Oil Palm Fruit) Order 2007 (2007 Order) under s. 35 of Malaysian Palm Oil Board Act 1998 ('Act') - Collection of cess via 2007 Order - Respondents challenged validity of 2007 Order - Whether 2007 Order was ultra vires Federal Constitution - Whether s. 35 was valid tax statute - Whether s. 35 empowered Minister to impose cess via subsidiary legislation - Whether s. 35 contravened art. 96 of Federal Constitution - Whether imposition of cess on class of parties was a form of discrimination - Whether there was nexus between basis of classification and object of law - Whether collection of cess for purposes of subsidising price of cooking oil was within purpose of Act
Lembaga Minyak Sawit Malaysia v. Arunamari Plantations Sdn Bhd & Ors And Another Appeal
(Raus Sharif Pca, Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah, Zainun Ali FCJJ) [2015] 7 CLJ 149 [FC]

CONTRACT

Sale and purchase of land - Agreement - Validity of - Dispute as to payment of purchase price - Whether usual conveyancing practice that vendor would only release original title deeds and original copy of memorandum of transfer to purchaser on full settlement of purchase price - Whether vendor completed necessary acts to divest itself of beneficial interest in land
Profil Saujana (M) Sdn Bhd v. Azabar Holdings
(Abdul Wahab Patail, Linton Albert, Badariah Sahamid JJCA) [2015] 7 CLJ 230 [CA]

CRIMINAL LAW

Giving false evidence - Penal Code - Section 199 - Accused affirming false affidavit and statutory declaration - Elements to be proved - Whether accused had reasons to believe that contents were untrue - Whether failure to attach exhibits in charge fatal to prosecution's case - Whether statutory declaration was defective and fell outside ambit of s. 199 of Penal Code - Considerations for sentencing for offence under s. 199 of Penal Code
PP v. Yeoh Oon Theam
(Wong Teck Meng JC) [2015] 7 CLJ 270 [HC]

Money laundering - Offences of money laundering - Anti-Money Laundering and Terrorist Financing Act 2001, s. 4(1) ('Act') - Evading customs duties - Monies obtained as result of money laundering - Application by public prosecutor to forfeit monies seized under Act - 12-month period prescribed in s. 56(1) of Act - Whether compliance of time period mandatory
PP v. Induk Harapan Sdn Bhd & Ors
(Stephen Chung J) [2015] 7 CLJ 266 [HC]

CRIMINAL PROCEDURE

Sentencing - Concurrent or consecutive - Offence of giving false evidence - Offences committed on different times, dates and for different purposes - Offences not committed in same transaction - Whether consecutive sentences should be imposed
PP v. Yeoh Oon Theam
(Wong Teck Meng JC) [2015] 7 CLJ 270 [HC]

Sentencing - Principles - Offence of giving false evidence - Whether public interest demands custodial sentence
PP v. Yeoh Oon Theam
(Wong Teck Meng JC) [2015] 7 CLJ 270 [HC]

CUSTOMS AND EXCISE

Forfeiture - Forfeiture of monies seized - Application for - Monies obtained as result of money laundering - Whether application for forfeiture filed outside the 12-month period required - Whether there was no application for extension of time - Whether application competent - Anti-Money Laundering and Anti-Terrorism Financing Act 2001, s. 56(1)
PP v. Induk Harapan Sdn Bhd & Ors
(Stephen Chung J) [2015] 7 CLJ 266 [HC]

LABOUR LAW

Industrial court - Dispute over wrongful dismissal - Whether Industrial Court failed to take into account relevant matters - Whether Industrial Court acted within scope of its jurisdiction - Whether Industrial Court bound by Sessions Court decision in acquitting respondent from any corrupt offences - Whether proceedings before Sessions Court irrelevant to the proceedings before the Industrial Court - Whether High Court had erred and departed from established principles of law - Whether approach taken by Industrial Court consistent with exercise of its functions - Industrial Relations Act 1967, s. 30(5)
Kempas Edible Oil Sdn Bhd v. Prabdhial Singh Dardara Singh
(Mohd Hishamudin Yunus, Hamid Sultan Abu Backer, Umi Kalthum Abdul Majid JJCA) [2015] 7 CLJ 203 [CA]

TORT

Defamation - Defences - Qualified privilege - Whether malice proven to displace defence - Whether sufficient particulars of malice pleaded - Whether compliance with O. 78 r. 3(3) of the Rules of Court 2012 mandatory - Whether actual or express malice established
Dr Syed Azman Syed Ahmad Nawawi & Ors v. Dato' Seri Hj Ahmad Said
(Lim Yee Lan, Varghese George, Nallini Pathmanathan JJCA) [2015] 7 CLJ 180 [CA]


CLJ 2015 Volume 7 (Part 3)

COURT

COURT OF APPEAL

CIMB Bank Bhd v. Veeran Ayasamy (Wakil Diri Kepada Letchimi Muthusamy, Si Mati)
(Civil Procedure; Land Law - Fraud - Conspiracy to defraud - Sale of land and house) [2015] 7 CLJ 289 [CA]

Datuk Bandar Kuala Lumpur v. Badan Peguam Malaysia
(Local Government - Legislation - By-Law - Whether license required to put up banners) [2015] 7 CLJ 301 [CA]

Everise Sprint (M) Sdn Bhd v. Minister Of Finance, Malaysia & Anor
(Revenue Law - Statutory Interpretation - Sales tax - Remission of) [2015] 7 CLJ 309 [CA]

Muthiah Meenakshi v. Tan Chu Eng & Ors
(Land Law - Transfer - Void instruments - Power of attorney) [2015] 7 CLJ 318 [CA]

Teo Cheng Hua v. Ker Min Choo & Ors
(Civil Procedure - Contempt of court - Interference with due administrationof justice) [2015] 7 CLJ 328 [CA]

HIGH COURT

Bellajade Sdn Bhd v. CME Group Bhd & Anor
(Contract - Tenancy agreement - Rent - Default in payment) [2015] 7 CLJ 343 [HC]

Majlis Perbandaran Seberang Perai v. Pengurusan Danaharta Nasional Berhad; Ascort Frontier Sdn Bhd (Third Party)
(Local Government - Rates - Arrears of assessment - Claim for) [2015] 7 CLJ 354 [HC]

PP v. Boon Fui Yan
(Criminal Law; Criminal Procedure - Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Section 12 - Accused charged and convicted for trafficking in persons for purpose of exploitation by way of forced labour) [2015] 7 CLJ 374 [HC]

Suraya Amdah v. Ketua Setiausaha Kementerian Kesihatan Malaysia & Anor
(Administrative Law - Judicial review - Certiorari - Application for) [2015] 7 CLJ 403 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application for - Applicant terminated from pursuing nursing course due to allegation of misconduct - Challenging decision of Disciplinary Committee and Appeal Committee - Whether there was any breach of natural justice and procedural unfairness - Composition of Disciplinary Committee and Appeal Committee - Whether there was any danger of biasness - Whether applicant came within definition of 'public servant' - Whether could claim protection under s. 135(2) Federal Constitution
Suraya Amdah v. Ketua Setiausaha Kementerian Kesihatan Malaysia & Anor
(Collin Lawrence Sequerah JC) [2015] 7 CLJ 403 [HC]

CIVIL PROCEDURE

Contempt of court - Interference with due administration of justice - Filing of second Form 75 under s. 281 Companies Act 1965 and second statutory declaration by liquidator - Whether contents of first Form 75 altered - Whether credible explanation furnished for alterations - Whether amounted to tampering with documentary evidence - Whether actions connected to litigation against liquidator - Whether interference with proper administration of justice - Whether constituted contempt of court
Teo Cheng Hua v. Ker Min Choo & Ors
(Mohd Zawawi Salleh, Idrus Harun, Badariah Sahamid JJCA) [2015] 7 CLJ 328 [CA]

Fraud - Conspiracy to defraud - Allegations of - Sale of land and house - Purchaser paid full purchase price but land not transferred - Allegation that issue document of title destroyed in fire - Discovery that land transferred to another - Land charged to bank as security for loan - Allegations of fraud and/or conspiracy by bank - Whether particulars of fraud and/or conspiracy against bank pleaded - Whether fraud and/or conspiracy proved - National Land Code, s. 340(2)
CIMB Bank Bhd v. Veeran Ayasamy (Wakil Diri Kepada Letchimi Muthusamy, Si Mati)
(Mohd Hishamudin Yunus, Lim Yee Lan, Mohd Zawawi Salleh JJCA) [2015] 7 CLJ 289 [CA]

CONTRACT

Tenancy agreement - Rent - Default in payment - Claim to recover arrears in rental - Tenancy agreement provided that premise could be used for commercial purpose - Discovery of express condition of title for lands on which property was located to be used only as residential purpose during land search - Assignment of benefit under tenancy agreement to bank - Default of rental by tenant - Whether owner of property had locus to commence claim - Whether tenancy agreement contravened express condition of title - Whether tenancy agreement illegal and void ab initio - Whether guarantor liable under guarantee agreement for arrears in rental under tenancy agreement - Whether tenant entitled to recover payments of rental previously - Contracts Act 1950, s. 66
Bellajade Sdn Bhd v. CME Group Bhd & Anor
(Azizul Azmi Adnan JC) [2015] 7 CLJ 343 [HC]

CRIMINAL LAW

Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Section 12 - Accused charged and convicted for trafficking in persons for purpose of exploitation by way of forced labour - Appeal against conviction and sentence - Prima facie case - Whether established - Whether accused involved in movement and conveyance of the trafficked persons into Malaysia - Whether there was need to prove coercion - Whether there was misapplication of s. 16 of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Whether trial judge erred by misdirecting himself on ingredients of offence - Failure to take into account evidence showing victims willingly agreed to work for accused - Whether there was miscarriage of justice - Credibility of witnesses - Whether trial judge had accepted allegations of victims without first evaluating credibility of witnesses - Failure to call co-workers - Presumption under s. 114(g) of the Evidence Act 1950 - Whether invoked - Whether trial judge properly exercised maximum evaluation of prosecution's evidence - Whether trial judge failed to appreciate defence of accused - Whether accused created reasonable doubt in prosecution's case
PP v. Boon Fui Yan
(Mairin Idang JC) [2015] 7 CLJ 374 [HC]

CRIMINAL PROCEDURE

Appeal - Conviction and sentence, against - Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, s. 12 - Accused charged for trafficking in persons for purpose of exploitation by way of forced labour - Prima facie case - Whether established - Whether accused involved in movement and conveyance of the trafficked persons into Malaysia - Whether there was need to prove coercion - Whether there was misapplication of s. 16 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Whether trial judge erred by misdirecting himself on ingredients of offence - Failure to take into account evidence showing victims willingly agreed to work for accused - Whether there was miscarriage of justice - Credibility of witnesses - Whether trial judge had accepted allegations of victims without first evaluating credibility of witnesses - Failure to call co-workers - Presumption under s. 114(g) of Evidence Act 1950 - Whether invoked - Whether trial judge properly exercised maximum evaluation of prosecution's evidence - Whether trial judge failed to appreciate defence of accused - Whether accused created reasonable doubt in prosecution's case
PP v. Boon Fui Yan
(Mairin Idang JC) [2015] 7 CLJ 374 [HC]

LAND LAW

Transfer - Fraud - Sale of land and house - Purchaser paid full purchase price but land not transferred - Allegation that issue document of title destroyed in fire - Discovery that land transferred to another - Land charged to bank as security for loan - Allegations of fraud and/or conspiracy by bank - Whether transfer of land and subsequent execution of charge defeasible - Whether allegations of fraud and/or conspiracy proved - National Land Code, s. 340(2)
CIMB Bank Bhd v. Veeran Ayasamy (Wakil Diri Kepada Letchimi Muthusamy, Si Mati)
(Mohd Hishamudin Yunus, Lim Yee Lan, Mohd Zawawi Salleh JJCA) [2015] 7 CLJ 289 [CA]

Transfer - Void instruments - Power of attorney - Whether land fraudulently transferred by deceased's purported power of attorney - Indian citizen holding power of attorney - Whether s. 433F of National Land Code permits a foreign national holding power of attorney to transfer landed property in Malaysia - Requirements of s. 68 Evidence Act 1950 and s. 3 Power of Attorneys Act 1949 - Whether established - Whether transfer void for breach of s. 433F
Muthiah Meenakshi v. Tan Chu Eng & Ors
(Hamid Sultan Abu Backer, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA) [2015] 7 CLJ 318 [CA]

LOCAL GOVERNMENT

Legislation - By-Law - Removal of banners at respondent's premises - Whether banners for commercial purpose - Whether license required to put up banners - Interpretation of By-Laws - Whether Advertisements (Federal Territory) By-Laws 1982 applied both to commercial and non-commercial advertisements - Whether definition of 'advertisement' in By-Laws included banners - Whether By-Laws worded ambiguously - Whether ambiguity encouraged selective enforcement by appellants
Datuk Bandar Kuala Lumpur v. Badan Peguam Malaysia
(Abdul Wahab Patail, Azahar Mohamed, Hamid Sultan Abu Backer JJCA) [2015] 7 CLJ 301 [CA]

Rates - Arrears of assessment - Claim for - Whether plaintiff could recover arrears in assessment from defendant pursuant to ss. 146 and 147 of Local Government Act 1976 ('LGA') - Whether defendant registered proprietor of property - Whether plaintiff could rely on ss. 156 and 160(5) of LGA to establish its claim for arrears in assessment against defendant - Whether defendant liable to pay arrears under LGA - Whether a disclosed claim under s. 14(3) of Pengurusan Danaharta Nasional Berhad Act 1998 - Whether defendant's right to claim against third party arose - Whether third party liable to indemnify defendant against payment of any arrears
Majlis Perbandaran Seberang Perai v. Pengurusan Danaharta Nasional Berhad; Ascort Frontier Sdn Bhd (Third Party)
(Nordin Hassan JC) [2015] 7 CLJ 354 [HC]

REVENUE LAW

Sales tax - Remission of - Application for remission of import duties and taxes - Demand on appellant and another company for same short-paid taxes - Whether absurd and unjust to impose liability on two parties at the same time - Whether appellant was 'importer' - Whether decision of respondents tainted with illegality - Customs Act 1967, s. 14A - Sales Tax Act 1972, s. 33
Everise Sprint (M) Sdn Bhd v. Minister Of Finance, Malaysia & Anor
(Abdul Wahab Patail, Linton Albert, Rohana Yusuf JJCA) [2015] 7 CLJ 309 [CA]

STATUTORY INTERPRETATION

Taxing statute - Strict construction - Demand on two parties for same short-paid taxes - Whether created ambiguity and serious doubt as to liability under law - Whether absurd and unjust to impose liability on both parties at the same time
Everise Sprint (M) Sdn Bhd v. Minister Of Finance, Malaysia & Anor
(Abdul Wahab Patail, Linton Albert, Rohana Yusuf JJCA) [2015] 7 CLJ 309 [CA]


ARTICLES

LNS Article(s)

  1. THE HIGH COURT DECIDES WHEN DOES A BUILDER OWE A SUBSEQUENT OWNER A DUTY OF CARE?* [Read excerpt]
    CHRISTOPHER KERIN+ JAMES QIAN+ [2015] 1 LNS(A) lxx

  2. [2015] 1 LNS(A) lxx
    logo
    AUSTRALIA

    THE HIGH COURT DECIDES
    WHEN DOES A BUILDER OWE A SUBSEQUENT OWNER A DUTY OF CARE?*


    CHRISTOPHER KERIN+
    JAMES QIAN+

    On 8 October 2014, the High Court handed down its decision in Brookfield Multiplex Ltd v. Owners Corporation Strata Plan 61288 & Anor [2014] HCA 36, which curtails the rights of apartment owners to sue builders in negligence.

    As previously reported in the December 2013 edition of Ethos,[1] the case involved a long-running dispute between the appellant builder, Brookfield, and the respondent owners corporation with respect to building defects in the common property of a commercial building, The Mantra Chatswood Hotel, run as a serviced apartment business.

    At first instance in the NSW Supreme Court in The Owners − Strata Plan No. 61288 v. Brookfield Australia Investments Ltd [2012] NSWSC 1219, McDougall J held that the appellant did not owe a duty of care to the respondent to take reasonable care to avoid a reasonably foreseeable economic loss to the respondent in having to make good the consequences of latent defects in the common property caused by the building’s defective design and/or construction.

    . . .

    * Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 234 December 2014.

    + Kerin Benson Lawyers


    Please subscribe to cljlaw or login for the full article.
  3. SEPARATION ANXIETY: LIVING SEPARATE AND APART, LIVING TOGETHER YET LIVING APART - WHEN IS A SEPARATION A SEPARATION FOR PURPOSES OF DIVORCE* [Read excerpt]
    DISTRICT JUDGE JEN KOH** [2015] 1 LNS(A) lxxii

  4. [2015] 1 LNS(A) lxxii
    logo
    SINGAPORE

    SEPARATION ANXIETY: LIVING SEPARATE AND APART, LIVING TOGETHER
    YET LIVING APART - WHEN IS A SEPARATION A SEPARATION FOR PURPOSES OF DIVORCE*


    DISTRICT JUDGE JEN KOH**

    Introduction

    Section 95 of the Women's Charter (Cap 353) sets out the sole ground for divorce in Singapore; namely that the marriage has broken down irretrievably. The applying party relies on one or more of five facts as set out in s. 95 to prove this irretrievable breakdown.

    This article deals with the last two facts: the fact that the parties to a marriage have lived separate and apart from one another for a period of either three years or four years immediately preceding the presentation of the writ for divorce.

    The difference in the last two facts is that the reliance on a separation period of three years requires the consent of the other party. This pre-supposes that parties have an agreement to present a writ on this fact.

    . . .

    * This article was originally published in the (April/2012) issue of the Singapore Law Gazette (www.lawgazette.com.sg), the official publication of the Law Society of Singapore, published by LexisNexis. Reproduced with permission.

    ** Subordinate Courts (Family and Juvenile Division)


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 770 Special Measures Against Terrorism In Foreign Countries Act 2015 15 June 2015 [PU(B) 250/2015] -
ACT 769 Prevention of Terrorism Act 2015 1 September 2015 [PU(B) 345/2015] -
ACT 768 Technologists and Technicians Act 2015 1 August 2015 [PU(B) 286/2015] -
ACT 767 Public Sector Home Financing Board Act 2015 1 July 2015 [PU(B) 265/2015] except Parts IV, V, VI and VIII; 24 August 2015 [PU(B) 335/2015] - Parts V and VI -
ACT 766 Netting of Financial Agreements Act 2015 30 March 2015 [PU(B) 131/2015] -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1499 Capital Markets and Services (Amendment) Act 2015 Not Yet In Force ACT 671
ACT A1498 Consumer Protection (Amendment) Act 2015 Not Yet In Force ACT 599
ACT A1497 Civil Aviation (Amendment) Act 2015 Not Yet In Force ACT 3
ACT A1496 Retirement Fund (Amendment) Act 2015 Not Yet In Force ACT 662
ACT A1495 Police (Amendment) Act 2015 Not Yet In Force ACT 344

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 195/2015 Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 2015 28 August 2015 29 August 2015 ACT 127
PU(A) 194/2015 Federal Roads (Private Management) (Collection of Tolls) (Western Kuala Lumpur Traffic Dispersal Scheme Highway-Kerinchi Link and Damansara Link) (Amendment) (No. 2) Order 2015 27 August 2015 1 September 2015 PU(A) 274/2001
PU(A) 193/2015 Federal Roads (Private Management) (Collection of Tolls) (Damansara-Puchong Highway) (Amendment) (No. 2) Order 2015 27 August 2015 1 September 2015 PU(A) 27/1999
PU(A) 192/2015 Federal Roads (Private Management) (Collection of Tolls) (South Klang Valley Expressway) (Amendment) (No. 2) Order 2015 27 August 2015 1 September 2015 PU(A) 309/2013
PU(A) 191/2015 Federal Roads (Private Management) (Collection of Tolls) (Cheras-Kajang Highway) (Amendment) (No. 2) Order 2015 27 August 2015 1 September 2015 PU(A) 15/1999

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 339/2015 Exemption From Paragraphs 5(1)(a), (b), (c), (d) and (e) 27 August 2015 10 August 2015 to 30 August 2015 ACT 206
PU(B) 338/2015 Exemption From Subsection 3(2) 27 August 2015 10 August 2015 to 30 August 2015 ACT 206
PU(B) 337/2015 Notice of Extension of Time Period For Making Preliminary Determination 26 August 2015 27 August 2015 until 25 September 2015 ACT 504
PU(B) 336/2015 Notice of Extension of Time Period For Making Preliminary Determination 26 August 2015 27 August 2015 until 25 September 2015 ACT 504
PU(B) 335/2015 Appointment of Date of Coming Into Operation 24 August 2015 24 August 2015 ACT 767

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 537 Prison Act 1995 ACT A1486 1 September 2015 [PU(B) 346/2015] Section 7
ACT 297 Prevention of Crime Act 1959 (Revised - 1983) ACT A1484 1 September 2015 [PU(B) 347/2015] Long title, sections 2, 3, 4, 7B, 9, 15, 15A, 19A, 19C, 19E, 19F, 19G, 21 and 23
PU(A) 231/2011 Federal Roads (Private Management) (Collection of Tolls) (Senai-Pasir Gudang-Desaru Expressway) Order 2011 PU(A) 189/2015 1 October 2015 First Schedule
PU(A) 298/2005 Federal Roads (Private Management) (Collection of Tolls) (Guthrie Corridor Expressway) (No. 2) Order 2005 PU(A) 190/2015 1 September 2015 First Schedule
PU(A) 12/2007 Federal Roads (Private Management) (Collection of Tolls) (Butterworth Outer Ring Road) Order 2007 PU(A) 188/2015 1 September 2015 First Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(B) 487/2014 Appointment and Revocation of Appointment of Registrar of Fishermen's Associations PU(B) 322/2015 Appointment - 18 May 2015; Revocation of Appointment - 4 April 2015
PU(A) 13/2015 Federal Roads (East Coast Expressway-Phase 2) Order 2015 PU(A) 157/2015 14 July 2015
PU(B) 319/1999 Designation of Immigration Depot PU(B) 249/2015 15 June 2015
PU(A) 292/2005 Malaysian National Archives (Fees) Regulations 2005 PU(A) 84/2015 11 May 2015
PU(B) 48/2015 Notification Under Paragraph 3(1)(e) PU(B) 153/2015 9 April 2015