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Issue #34/2019
22 August 2019

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New This Week

  1. Case(s) of the Week

    1. RHB ISLAMIC BANK BHD v. AMGENERAL INSURANCE BHD & ORS AND OTHER APPEALS [2019] 7 CLJ 687

    2. VEHENG GLOBAL TRADERS SDN BHD v. AMGENERAL INSURANCE BHD & ANOR AND ANOTHER APPEAL [2019] 7 CLJ 715

    3. EURO CHAUFFEUR (M) SDN BHD v. MOHAMED YUSOFF YAHAKUB [2019] 7 CLJ 775

  2. Latest Cases

    1. Legal Network Series

    2. CLJ 2019 Volume 7 (Part 6)

  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

RHB ISLAMIC BANK BHD v.
AMGENERAL INSURANCE BHD & ORS AND OTHER APPEALS
[2019] 7 CLJ 687
FEDERAL COURT, PUTRAJAYA
ZAHARAH IBRAHIM CJ (MALAYA), DAVID WONG DAK WAH CJ (SABAH & SARAWAK), RAMLY ALI FCJ, BALIA YUSOF WAHI FCJ, ALIZATUL KHAIR OSMAN FCJ
[CIVIL APPEALS NO: 02(f)-35-05-2018(B), 02(f)-36-05-2018(B) & 02(f)-37-05-2018(B)]
13 MAY 2019

Where the insured in a fire insurance policy has mortgaged the assets forming the subject matter of the policy, and the policy in turn adverts to the mortgage and acknowledges the mortgagee clause(s) relevant to the mortgagee’s interest, then, despite any fraud committed by the insured vis-à-vis the policy and the insurer, the mortgagee is still entitled and has the necessary locus to sue for and recover the insurance proceeds from the insurer.

This is because the contract of indemnity between the insurer and the mortgagee exists independently from the contract between the insurer and the insured, and that being so, any finding of fraud as between the insured and the insurer has no bearing on the claim of the mortgagee.

INSURANCE: Fire insurance – Liability – Assignment of insurance proceeds – Fire broke out at insured company’s premises – Insured company assigned insurance proceeds under insurance policy to bank – Bank, mortgagee under insurance policy, claimed for insurance proceeds – Insurer repudiated liability and refused to pay to insured company – Whether insurer liable to pay insurance proceeds under policy – Whether bank had locus standi and right to claim for insurance proceeds – Whether policy made between insurer and insured company only – Whether there was privity of contract between bank and insurer – Whether against public policy for innocent mortgagee to be paid on mortgagee clause when insured company in breach of insurance policy – Whether there was any obligation on mortgagee to comply with terms and conditions of insurance policy

CONTRACT: Privity – Insurance – Fire insurance – Liability – Assignment of insurance proceeds – Fire broke out at insured company’s premises – Insured company assigned insurance proceeds under insurance policy to bank – Bank, mortgagee under insurance policy, claimed for insurance proceeds – Insurer repudiated liability and refused to pay to insured company – Whether insurer liable to pay insurance proceeds under policy – Whether bank had locus standi and right to claim for insurance proceeds – Whether policy made between insurer and insured company only – Whether there was privity of contract between bank and insurer


VEHENG GLOBAL TRADERS SDN BHD v.
AMGENERAL INSURANCE BHD & ANOR AND ANOTHER APPEAL
[2019] 7 CLJ 715
FEDERAL COURT, PUTRAJAYA
ZAHARAH IBRAHIM CJ (MALAYA), DAVID WONG DAK WAH CJ (SABAH & SARAWAK), RAMLY ALI FCJ, BALIA YUSOF WAHI FCJ, ALIZATUL KHAIR OSMAN FCJ
[CIVIL APPEALS NO: 02(F)-36-05-2018 (B) & 02(F)-37-05-2018 (B)]
13 MAY 2019

The standard of proof on a balance of probabilities for fraud cases in civil proceedings as laid down in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd, is applicable to trials concluded pre-Sinnaiyah but judgment thereof is pending and delivered post-Sinnaiyah.

INSURANCE: Fire insurance – Liability – Repudiation – Insured company took fire insurance policies from insurer – Fire broke out at insured company’s premises and insured company claimed for insurance monies under policies – Insurer repudiated liability and refused to pay to insured company – Allegations that fire deliberately caused by insured company – Whether proved – Whether claim under policies deliberately exaggerated and fraudulent and amounted to breach of conditions under policies – Whether there were breaches of fire extinguishing appliances' warranties by insured company in making claim – Whether insured company entitled to monies under policies – Whether insurer liable to pay insurance monies under policy

EVIDENCE: Standard of proof – Civil proceedings – Standard of proof in civil fraud – Insured company took fire insurance policies from insurers – Fire broke out at insured company’s premises and insured company claimed for insurance monies under policies – Insurer repudiated liability and refused to pay to insured company – Allegations that fire deliberately and fraudulently caused by insured company – Standard of proof on balance of probabilities for fraud cases in civil proceedings laid down in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd – Whether standard of proof applicable to trials concluded pre-Sinnaiyah but judgment thereof pending and delivered post-Sinnaiyah


EURO CHAUFFEUR (M) SDN BHD v. MOHAMED YUSOFF YAHAKUB [2019] 7 CLJ 775
HIGH COURT MALAYA, IPOH
ANSELM CHARLES FERNANDIS JC
[CIVIL APPEAL NO: AA-12B-36-08-2017]
21 DECEMBER 2018

A motorist, in claiming for damages for (temporary) loss of use of his car following an accident, is eligible to replace a car of the same class as his damaged car. And, whilst he is under a duty to take adequate steps to mitigate the expenses, the fact that he hires a car from a company who has no licence to operate a car-hire business, offers no defence to the defendant.

DAMAGES: Quantum - Loss of use of vehicle - Claim for - Loss of use of vehicle arose when defendant collided into plaintiff's vehicle - Plaintiff entered into car rental agreement for hire of replacement car with company while damaged vehicle in repair workshop - Plaintiff incurred expenses for hire of replacement car for 172 days amounting to RM430,000 - Whether there was collusion between plaintiff, company and repair workshop to inflate hire sum and length of repair - Whether Bank Negara Guidelines applicable - Whether company had licence under Land Public Transport Act 2010 and Tourism Vehicles Licensing Act 1999 to operate car rental business - Whether agreement between plaintiff and company void

DAMAGES: Mitigation - Loss of use of vehicle - Claim for - Loss of use of vehicle arose when defendant collided into plaintiff's vehicle - Plaintiff entered into car rental agreement for hire of replacement car while damaged vehicle in workshop - Plaintiff incurred expenses for hire of replacement car for 172 days amounting to RM430,000 - Whether plaintiff took adequate steps to mitigate expenses incurred for hire of replacement vehicle - Whether RM77,400 fairer amount to be paid


LATEST CASES

Legal Network Series

[2018] 1 LNS 228

CHAN YONG MEE & ANOR v. SUNRISE TOWERS SDN BHD

CIVIL PROCEDURE: Stay of proceedings - Special circumstances - Application to stay originating summons pending hearing by Strata Management Tribunal - Reference to tribunal only made two years after filing of originating summons - Whether defendant would be prevented from realising fruits of decision made by tribunal - Whether action before tribunal would be rendered nugatory if stay application dismissed - Whether stay application would delay proceedings - Whether there were any special circumstances to enable a stay to be granted

  • For the applicant/defendant - Khaw Veon Szu; M/s Veon Tzu & Kok Thye
  • For respondent/plaintiff - Chan Ai Mei; M/s Phee, Chen & Ung

[2018] 1 LNS 1152

ARJIE SERENIO v. PP

CRIMINAL LAW: Penal Code - s. 300(c) - Murder - Deceased attacked with sledge hammer - Whether deceased could have survived injury - Whether treatment delayed - Whether injuries sustained by the deceased sufficient in the ordinary course of nature to cause death - Whether intention proved beyond reasonable doubt

  • For the appellant - Hamid Ismail; M/s Hamid & Co
  • For the respondent - Mohd Hamzah Ismail; Deputy Public Prosecutor

[2018] 1 LNS 163

PWC CORPORATION SDN BHD v. IREKA ENGINEERING & CONSTRUCTION SDN BHD & OTHER CASE (NO 2)

CONSTRUCTION LAW: Adjudication - Setting aside - Adjudicator accepted claimant's payment claim for work done and rejected respondent's re-measurement of work done - Whether there was breach of natural justice - Whether issue of sufficiency of evidence and weight to be attached to it were matters that may be raised in a setting aside application - Whether adjudicator considered evidence of re-measurement of work done - Whether adjudicator acted in excess of his jurisdiction when he held the certificate of non-completion was not properly issued - Whether adjudicator was in breach of natural justice when he held that he had no jurisdiction to consider set off from another subcontract

CONSTRUCTION LAW: Adjudication - Stay - Special circumstances - Discretion - Whether service of an arbitration notice per se sufficient for granting of stay - Whether there were clear and unequivocal errors in adjudication decision that would justify stay - Whether there were special circumstances to warrant exercise of court's discretion to grant a stay - Construction Industry Payment and Adjudication Act 2012, s. 16

  • For the plaintiff in WA-24C-107-06/2017 and for the defendant in WA-24C-117-07/2017 - CK Oon & Daniel Lau; M/s CK Oon & Co
  • For the defendant in WA-24C-107-06/2017 and for the plaintiff in WA-24C-117-07/2017 - SY Lim & Lai Wen Ching; M/s Azman Davidson & Co

[2018] 1 LNS 137

PP lwn. MOHD NOH AYOB

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap perintah pelepasan dan pembebasan - Rayuan oleh pihak pendakwaan - Pertuduhan di bawah ss. 165 & 511 Kanun Keseksaan ('KK') - Sama ada intipati pertuduhan di bawah s. 165 KK telah dipenuhi - Sama ada anggapan statutori di bawah s. 42(3) Akta Pencegahan Rasuah 1997 adalah terpakai - Sama ada tertuduh wajar dilepaskan dan dibebaskan daripada pertuduhan

PROSEDUR JENAYAH: Pembelaan - Penafian - Pertuduhan di bawah ss. 165 & 511 Kanun Keseksaan - Tertuduh mendakwa meminta wang bertujuan untuk membeli cenderahati bagi peserta mesyuarat - Sama ada pembelaan tertuduh adalah jujur - Sama ada tertuduh berupaya mematahkan anggapan statutori di bawah s. 42(3) Akta Pencegahan Rasuah 1997

  • Bagi pihak perayu - TPR Ahmad Ghazali Muhamad Nadzri; Suruhanjaya Pencegahan Rasuah Malaysia (SPRM)
  • Mewakili Diri Sendiri - Mohd Noh Ayob

[2018] 1 LNS 180

PP lwn. ABU RASHID LAZIM & YANG LAIN

UNDANG-UNDANG JENAYAH: Niat bersama - Pengedaran dadah berbahaya - Tertuduh-tertuduh dilihat berada berdekatan dengan dadah - Sama ada pihak pendakwaan mempunyai tanggungjawab untuk membuktikan kaitan dan nexus tertuduh-tertuduh bersabit dadah-dadah yang dijumpai - Sama ada wujud persetujuan fikiran kesemua tertuduh untuk melakukan kesalahan yang dipertuduhkan - Sama ada persetujuan fikiran boleh dicapai di tempat kejadian

KETERANGAN: Anggapan bertentangan - Kegagalan memanggil saksi penting - Kes pendakwaan - Kegagalan memanggil jiran tertuduh yang memberi rakaman percakapan - Sama ada tawaran saksi kepada pihak pembelaan semata-mata adalah mencukupi - Sama ada saksi perlu dipanggil untuk mematahkan pembelaan yang ditimbulkan tertuduh - Sama ada anggapan bertentangan di bawah s. 114(g) Akta Keterangan 1950 telah dibangkitkan ke atas pihak pendakwaan - Sama ada kegagalan pihak pendakwaan memanggil saksi-saksi yang material telah menyebabkan timbulnya keraguan berkenaan tempat dadah dijumpai

  • Bagi pihak pendakwaan - Azrul Faidz Abdul Razak, Timbalan Pendakwa Raya
  • Bagi pihak OKT1 (peguam lantikan mahkamah) - Charan Singh Katar Singh & Jagdave Singh Kuldeep Singh; T/n Nurul & Charan
  • Bagi pihak OKT2 (peguam lantikan mahkamah) - Khairilazwar Khalil; T/n KK Lee & Co
  • Bagi pihak OKT3 (peguam lantikan mahkamah) - Rajit Singh Tara Singh; T/n Rajit Gill & Co

CLJ 2019 Volume 7 (Part 6)

Where an insured files for an exaggerated claim and subsequently amends pleadings to reduce the claim, the entire claim is liable to be defeated on the ground of bad faith or fraud or fraudulent intent. The insurer would thus be entitled to repudiate liability based on the exaggerated claim. 
ALW Car Workshop Sdn Bhd v. AXA Affin General Insurance Bhd [2019] 7 CLJ 667 [FC]

INSURANCE: Fire insurance - Claim - Claim for losses under policy - Whether claim grossly exaggerated - Whether prima facie presumption arose that insured not acting in good faith - Whether insured intended to defraud insurer - Claim amended before commencement of trial to reflect losses assessed by adjuster - Whether gave rise to inference that insured deliberately and intentionally inflated claim to deceive insurer - Whether intention to deceive established - Whether claim defeated - Whether insurer entitled to repudiate liability - Whether standard of proof on balance of probabilities - Contracts Act 1950, s. 17

 

Zaharah Ibrahim CJ (Malaya), David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Balia Yusof Wahi, Alizatul Khair Osman FCJJ
 

  • For the appellant - GK Ganesan, CC Lam & Sharavenan; M/s Dave Anan
  • For the respondent - Gurmukh Singh & Theebadarshini; M/s Isharidah Ho Chong & Menon

Where the insured in a fire insurance policy has mortgaged the assets forming the subject matter of the policy, and the policy in turn adverts to the mortgage and acknowledges the mortgagee clause(s) relevant to the mortgagee’s interest, then, despite any fraud committed by the insured vis-à-vis the policy and the insurer, the mortgagee is still entitled and has the necessary locus to sue for and recover the insurance proceeds from the insurer.

This is because the contract of indemnity between the insurer and the mortgagee exists independently from the contract between the insurer and the insured, and that being so, any finding of fraud as between the insured and the insurer has no bearing on the claim of the mortgagee. 
RHB Islamic Bank Bhd v. AmGeneral Insurance Bhd & Ors And Other Appeals [2019] 7 CLJ 687 [FC]

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INSURANCE: Fire insurance - Liability - Assignment of insurance proceeds - Fire broke out at insured company's premises - Insured company assigned insurance proceeds under insurance policy to bank - Bank, mortgagee under insurance policy, claimed for insurance proceeds - Insurer repudiated liability and refused to pay to insured company - Whether insurer liable to pay insurance proceeds under policy - Whether bank had locus standi and right to claim for insurance proceeds - Whether policy made between insurer and insured company only - Whether there was privity of contract between bank and insurer - Whether against public policy for innocent mortgagee to be paid on mortgagee clause when insured company in breach of insurance policy - Whether there was any obligation on mortgagee to comply with terms and conditions of insurance policy

CONTRACT: Privity - Insurance - Fire insurance - Liability - Assignment of insurance proceeds - Fire broke out at insured company's premises - Insured company assigned insurance proceeds under insurance policy to bank - Bank, mortgagee under insurance policy, claimed for insurance proceeds - Insurer repudiated liability and refused to pay to insured company - Whether insurer liable to pay insurance proceeds under policy - Whether bank had locus standi and right to claim for insurance proceeds - Whether policy made between insurer and insured company only - Whether there was privity of contract between bank and insurer

Zaharah Ibrahim CJ (Malaya), David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Balia Yusof Wahi, Alizatul Khair Osman FCJJ
 

  • For the appellant - Anad Krishnan, Navamalar Ganesan & Lee Sze Yiing; M/s Anad & Noraini
  • For the 1st & 2nd respondents - Tunku Farik Tunku Ismail, Wong Hok Mun, Tan Sixin, Cheong Pek Peng & Shaun Lee Chee Yoong; M/s Azim, Tunku Farik & Wong
  • For the 3rd respondent - Gopal Sri Ram, Joseph Yeo, Kelvin Ng Seng Huat, Ng Chee Keong, Ooi Tiong Sieng, Magita Hari Mogan, Emily Wong & Ng Jun Wei; M/s Tan Ng & Ong

The standard of proof on a balance of probabilities for fraud cases in civil proceedings as laid down in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd, is applicable to trials concluded pre-Sinnaiyah but judgment thereof is pending and delivered post-Sinnaiyah.
Veheng Global Traders Sdn Bhd v. AmGeneral Insurance Bhd & Anor And Another Appeal [2019] 7 CLJ 715 [FC]

 |

INSURANCE: Fire insurance - Liability - Repudiation - Insured company took fire insurance policies from insurer - Fire broke out at insured company's premises and insured company claimed for insurance monies under policies - Insurer repudiated liability and refused to pay to insured company - Allegations that fire deliberately caused by insured company - Whether proved - Whether claim under policies deliberately exaggerated and fraudulent and amounted to breach of conditions under policies - Whether there were breaches of fire extinguishing appliances' warranties by insured company in making claim - Whether insured company entitled to monies under policies - Whether insurer liable to pay insurance monies under policy

EVIDENCE: Standard of proof - Civil proceedings - Standard of proof in civil fraud - Insured company took fire insurance policies from insurers - Fire broke out at insured company's premises and insured company claimed for insurance monies under policies - Insurer repudiated liability and refused to pay to insured company - Allegations that fire deliberately and fraudulently caused by insured company - Standard of proof on balance of probabilities for fraud cases in civil proceedings laid down in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd - Whether standard of proof applicable to trials concluded pre-Sinnaiyah but judgment thereof pending and delivered post-Sinnaiyah

Zaharah Ibrahim CJ (Malaya), David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Balia Yusof Wahi, Alizatul Khair Osman FCJJ
 

  • For the appellant - Gopal Sri Ram, Joseph Yeo, Kelvin Ng Seng Huat, Ng Chee Keong, Ooi Tiong Sieng, Emily Wong, Magita Hari Mogan & Ng Jun Wei; M/s Tan, Ng & Ong
  • For the respondents - Tunku Farik Tunku Ismail, Wong Hok Mun, Tan Sixin, Cheong Pek Peng & Shaun Lee Chee Yoong; M/s Azim, Tunku Farik & Wong

The transfer of a movable property by an insolvent transferor or person adjudged bankrupt is void. However, a further transfer of the said property by the said transferee to a subsequent transferee is not void for want of title if the subsequent transferee has given valuable consideration and acted ‘in good faith’. 
Yui Chin Song & Ors v. Lee Ming Chai & Ors [2019] 7 CLJ 740 [FC]

COMPANY LAW: Shares - Transfer - Transferors of shares declared bankrupt - Whether transfer of shares by transferors to transferees void by reason of insolvency of transferors - Whether subsequent transferees void for want of title - Whether title or rights on transferred shares passed to and remained with subsequent transferees who had given valuable consideration and had 'acted in good faith' - Whether only Director General of Insolvency entitled to declare transfers of shares void under s. 52 of Bankruptcy Act 1967 - Whether court obliged to exercise its discretion to make declaratory order under s. 41 of Specific Relief Act 1950 - Whether allegations of fraud, forgery and undue influence established - Bankruptcy Act 1967, ss. 3(1)(i), 47(1), 53B(3)

 

Richard Malanjum CJ, Ahmad Maarop PCA, Zaharah Ibrahim CJ (Malaya), Ramly Ali, Alizatul Khair Osman FCJJ
 

  • For the appellants - Gopal Sri Ram, Pramjit Kaur, David Yii, Demien Chan & Khairul Anwar; M/s Mann & Assocs
  • For the 1st to 4th & 6th respondents - GK Ganesan, Cheang Sek Kwan, Lim Fang Say, James Huntzen Ong & Sukhvinder Singh Sidhu; M/s Chan & Assocs
  • For the 5th respondent - Iruthaya Raj; M/s Raj Selva & Co

Where the acquisition of the matrimonial property was by the sole effort of one party and there is no contribution by the other party in the acquisition of or improvements thereof, the other party is not entitled to any beneficial or proprietary rights.
Balakrishnan Kaliappan v. Shameena Nathesan [2019] 7 CLJ 762 [CA]

FAMILY LAW: Divorce - Matrimonial assets - Matrimonial home - Claim for sole right by wife - Whether husband had proprietary rights - Whether house acquired through sole effort of wife - Whether husband contributed in acquisition and improvements of house - Law Reform (Marriage and Divorce) Act 1976, s. 76(5) 

 

David Wong Dak Wah, Zaleha Yusof, Rhodzariah Bujang JJCA
 

  • For the appellant - Amarjeet Singh & Avtar Singh; M/s Avtar  
  • For the respondent - Jennifer Thomas; M/s Jennifer Thomas & Co

A motorist, in claiming for damages for (temporary) loss of use of his car following an accident, is eligible to replace a car of the same class as his damaged car. And, whilst he is under a duty to take adequate steps to mitigate the expenses, the fact that he hires a car from a company who has no licence to operate a car-hire business, offers no defence to the defendant. 
Euro Chauffeur (M) Sdn Bhd v. Mohamed Yusoff Yahakub [2019] 7 CLJ 775 [HC]

DAMAGES: Quantum - Loss of use of vehicle - Claim for - Loss of use of vehicle arose when defendant collided into plaintiff's vehicle - Plaintiff entered into car rental agreement for hire of replacement car with company while damaged vehicle in repair workshop - Plaintiff incurred expenses for hire of replacement car for 172 days amounting to RM430,000 - Whether there was collusion between plaintiff, company and repair workshop to inflate hire sum and length of repair - Whether Bank Negara Guidelines applicable - Whether company had licence under Land Public Transport Act 2010 and Tourism Vehicles Licensing Act 1999 to operate car rental business - Whether agreement between plaintiff and company void

DAMAGES: Mitigation - Loss of use of vehicle - Claim for - Loss of use of vehicle arose when defendant collided into plaintiff's vehicle - Plaintiff entered into car rental agreement for hire of replacement car while damaged vehicle in workshop - Plaintiff incurred expenses for hire of replacement car for 172 days amounting to RM430,000 - Whether plaintiff took adequate steps to mitigate expenses incurred for hire of replacement vehicle - Whether RM77,400 fairer amount to be paid

 

Anselm Charles Fernandis JC
 

  • For the appellant - Cheong Yau Kheong; M/s BH Koh, Soong, Zarin & Partners
  • For the respondent - Selvarajah Nadarajah; M/s Raj Selva & Co

Any custom or usage cannot override the codified provisions of the National Land Code regarding the rights of a registered proprietor of land which are guaranteed under art.13(1) of the Constitution.
Ramachandran Meyappan & Ors v. Chellapan K Kalimuthu & Ors [2019] 7 CLJ 788 [HC]

CIVIL PROCEDURE: Injunction - Interlocutory injunction - Application to restrain fifth defendant from entering land to demolish temple - Whether fifth defendant registered owner of land temple erected on - Whether fifth defendant had rights under ss. 92(1), 2(a) t0 (d) and 340 (1) of National Land Code - Whether there was reasonable cause of action against fifth defendant - Whether court could accept averments in statement of claim regarding fraud, illegality, impropriety and alleged conspiracy - Whether s. 44 of Evidence Act 1950 could be relied on as cause of action to impugn fifth defendant - Whether Hindu custom had force of law - Federal Constitution, arts. 13(1), 160(2) - Whether filing of suit complied with s. 9(c) of Societies Act 1966 - Whether doctrine of res judicata applied - Whether allowing suit to proceed an abuse of court process

CIVIL PROCEDURE: Stay - Stay of execution - Application for - Application to stay all proceedings in suit pending intervention by Attorney General ('AG') to settle amicably all matters regarding temple - Special circumstances - Whether arose - Whether intervention of AG constituted special circumstances to stay suit - Whether allowing stay would occasion injustice - Whether court has threefold duty to ensure just, expeditious and economical disposal of cases - Rules of Court 2012, O. 34 r. 1(1)(b)

CIVIL PROCEDURE: Striking out - Application for - Application to strike out plaintiffs' suit - Whether plaintiffs' suit complied with s. 9(c) of Societies Act 1966 - Whether suit barred by doctrine of res judicata - Whether there was reasonable cause of action - Whether allowing suit to proceed an abuse of court process - Whether striking out application allowed

 

Wong Kian Kheong J
 

  • For the plaintiffs - Vasanthi Arumugam, Rajasekaran Thiyagarajan, Noor Farazidah Ismail & Dinesh Kunasekar; M/s Vas & Co
  • For the 1st defendant - Kirubakaran Karthigasu & Tom Lim Yap Thong; M/s Shui Tai
  • For the 2nd defendant - Megat Abdul Munir & Muhammad Asyraf Abdul Aziz; M/s Zain Megat & Murad
  • For the 3rd & 4th defendants - Nik Haizie Azlin Nabidin; SFC
  • For the 5th defendant - Claudia Cheah Pek Yee & Brenda Chan Qing Wen; M/s Skrine

The requirements for leave to commence a derivative action on behalf of a company under ss. 347 and 348 of the Companies Act 2016 are satisfied once an arguable case is established which warrants further investigation.
Salina Mohamad Sukor v. MVD International Sdn Bhd & Anor [2019] 7 CLJ 807 [HC]

COMPANY LAW: Derivative action - Application for leave - Action on behalf of company by applicant director - Whether applicant proper and lawful complainant - Whether sufficient notice given to all directors of company of intention to initiate derivative proceedings - Whether applicant had shown genuine and honest concern about wrongdoings - Whether applicant presented an arguable case in interest of company - Companies Act 2016, ss. 347 & 348 

 

Vazeer Alam Mydin Meera J
 

  • For the applicant - M/s Jasbeer Nur & Lee
  • For the respondent - M/s Rajan Navaratnam  

ARTICLES

LNS Article(s)

  1. DATO' DR SINGARAVELOO A/L MUTHUSAMY v. KETUA PENGARAH HASIL DALAM NEGERI[1]
    A CASE NOTE*
    [Read excerpt]
    by HANIZA ABDUL GHANI [2019] 1 LNS(A) cv

  2. [2019] 1 LNS(A) cv
    logo
    MALAYSIA

    DATO' DR SINGARAVELOO A/L MUTHUSAMY v. KETUA PENGARAH HASIL DALAM NEGERI[1]
    A CASE NOTE*


    by
    HANIZA ABDUL GHANI

    Facts

    This case concerned a registered specialist medical practitioner ("Doctor") who had incorporated a company in July 2002 to carry on business as medical practitioners and to provide medical services to patients in and/or outside hospitals ("Company").

    Prior to the incorporation of the Company, the Doctor had signed a resident consultant agreement with the owner and operator of a specialist hospital (“Hospital”) to serve as a resident consultant physician (“Contract”).

    This appears to be a common arrangement for specialist medical practitioners (“Specialists”) in Malaysia who are contracted to provide medical consultancy services in specialist hospitals, where all payments due to the Specialists for their services are paid to their companies (“Arrangement”).

    . . .

    * Published with kind permission of M/s Shearn Delamore & Co.


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  3. PROTECTING CHILDREN IN CYBERSPACE - CURRENT LEGISLATIVE APPROACH ON ONLINE SEXUAL GROOMING IN ASEAN COUNTRIES [Read excerpt]
    by Kirama Nasim Manbi Ushama* Juriah Binti Abd. Jalil** [2019] 1 LNS(A) cvi

  4. [2019] 1 LNS(A) cvi
    logo
    MALAYSIA

    PROTECTING CHILDREN IN CYBERSPACE - CURRENT LEGISLATIVE APPROACH ON ONLINE SEXUAL GROOMING IN ASEAN COUNTRIES

    by
    Kirama Nasim Manbi Ushama*
    Juriah Binti Abd. Jalil**

    Abstract

    Today, digital technologies, specifically the Internet play a pivotal role in children's lives which can be both beneficial and detrimental to them. This paper explores the emerging global threat of being sexually groomed by online perpetrators and the legislation governing it. It principally addresses four major issues. Firstly, it provides an overview of the proliferation of the Internet globally and in the Association of South East Asian Nations (ASEAN) region. The sexual grooming of children through the Internet and the various stages involved in the process are then examined, complemented by statistics pertaining to the crime. Subsequently, the international and regional legal framework relating to the crime are reviewed. Lastly, a comparative analysis of the legislative interventions undertaken by each country in the ASEAN region to address the crime is provided, which reveal that most of the countries have inadequate legislation to tackle the problem.

    . . .

    * Ph.D. candidate in Ahmad Ibrahim Kulliyah of Laws at International Islamic University Malaysia. kirama82@gmail.com.

    ** Associates Professor. Ahmad Ibrahim Kulliyah of Laws, International Islamic University Malaysia.juriah@iium.edu.my.


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 813 Departure Levy Act 2019 1 August 2019 - Part I, Part II, Part IV, section 17, section 18, section 31, Part VII, Part VIII except for section 37, Part IX, Part X and Part XI to the Act; 1 September 2019 - Part III, Part V except for sections 17 and 18, Part VI except for section 31, and section 37 to the Act [PU(B) 373/2019] -
ACT 812 Finance Act 2018 The Income Tax Act 1967 [Act 53] see s 3; The Promotion of Investments Act 1986 [Act 327] see s 31; The Stamp Act 1949 [Act 378] see s 63; The Real Property Gains Tax Act 1976 [Act 169] see s 69; The Labuan Business Activity Tax Act 1990 [Act 445] see s 71; The Service Tax Act 2018 [Act 807] see s 83; The Sales Tax Act 2018 [Act 806] see s 91 -
ACT 811 Suruhanjaya Pengangkutan Awam Darat (Dissolution) Act 2018 1 January 2019 [PU(B) 732/2018] -
ACT 810 Subang Golf Course Corporation Act 1968 (Revised 2018) 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1968 as Act of Parliament No 26 of 1968; First Revision - 1993 (Act 509 wef 8 October 1993) -
ACT 809 Pool Betting Act 1967 (Revised 2018) 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1967 as Act of Parliament No 72 of 1967; First Revision - 1989 (Act 384 wef 21 September 1989) -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1601 Fisheries (Amendment) Act 2019 Not Yet In Force ACT 317
ACT A1600 Peaceful Assembly (Amendment) Act 2019 Not Yet In Force ACT 736
ACT A1599 Revision Of Laws (Amendment) Act 2019 1 August 2019 ACT 1
ACT A1598 Consumer Protection (Amendment) Act 2019 Not Yet In Force ACT 599
ACT A1597 Service Tax (Amendment) Act 2019 Not Yet In Force ACT 807

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 209/2019 Customs Duties (Goods Under The Agreement Establishing The Asean � Hong Kong, China Free Trade Area) Order 2019 26 July 2019 1 August 2019 ACT 235
PU(A) 208/2019 Mineral Development (Statistical Returns) Regulations 2019 26 July 2019 5 August 2019 ACT 525
PU(A) 207/2019 Poisons (Amendment Of Poisons List) (No. 3) Order 2019 25 July 2019 26 July 2019 ACT 366
PU(A) 206/2019 Income Tax (Deduction For Payment Of Educational Loan Of Perbadanan Tabung Pendidikan Tinggi Nasional By Employers On Behalf Of Employees) Rules 2019 24 July 2019 Years of assessment 2019 and 2020 ACT 53
PU(A) 205/2019 Income Tax (Exemption) (No. 8) Order 2019 24 July 2019 Year of assessment 2019 ACT 53

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 362/2019 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Selangor 29 July 2019 30 July 2019 PU(A) 293/2002
PU(B) 361/2019 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Pahang 29 July 2019 30 July 2019 PU(A) 293/2002
PU(B) 360/2019 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Perak 29 July 2019 30 July 2019 PU(A) 293/2002
PU(B) 359/2019 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Pulau Pinang 29 July 2019 30 July 2019 PU(A) 293/2002
PU(B) 358/2019 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Terengganu 29 July 2019 30 July 2019 PU(A) 293/2002

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 366 Poisons Act 1952 (Revised 1989) PU(A) 207/2019 26 July 2019 First Schedule
ACT 366 Poisons Act 1952 (Revised 1989) PU(A) 202/2019 24 July 2019 First Schedule
PU(A) 132/2019 Ministers of the Federal Government Order 2019 PU(A) 203/2019 10 May 2018 - subparagraph 2(a); 21 May 2018 - subparagraph 2(b); 8 May 2019 - subparagraphs 2(c) and 2(d) Schedule
PU(A) 381/2016 Employees Provident Fund (Fund Management Institution) Regulations 2016 PU(A) 200/2019 1 August 2019 Schedule
PU(A) 380/2016 Employees Provident Fund (Investment in Fund Management Institution) Rules 2016 PU(A) 199/2019 1 August 2019 Rules 4 and 5

Revoked

Act/Principal No. Title Revoked by In force from
PU(B) 11/2016 Appointment and Revocation of Appointment of Federal Lands Commissioner PU(B) 332/2019 10 July 2019
PU(A) 128/1999 Income Tax (Allowance For Increased Exports) Rules 1999 PU(A) 162/2019 Year of assessment 2016
PU(A) 158/2005 Income Tax (Exemption) (No. 17) Order 2005 PU(A) 161/2019 Year of assessment 2016
PU(A) 125/2018 Ministers of the Federal Government Order 2018 PU(A) 132/2019 On the date of appointment of the persons named in the first column of the Schedule
PU(A) 144/2016 Customs (Anti-Dumping Duties) (No. 2) Order 2016 PU(A) 128/2019 8 May 2019