The following amending Act came into force on 20 February 2015:

Transcription

1 Legal Updates February 2015 Legislation The following amending Act came into force on 20 February 2015: Companies Commission of Malaysia (Amendment) Act 2015 [Act A1478], except sections 9-11, [PU(B) 45/2015] Cases Administrative Law Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2015] 2 AMR 89 (FC) When did 40-day period under applicable provision start to run Application for judicial review filed outside stipulated time frame; High Court had no jurisdiction to grant leave, application must be dismissed in limine Mere publication in Gazette of notification in Form D under s 8(1) Land Acquisition Act 1960 (LAA) insufficient. For the purpose of O 53 r 3(6) Rules of the High Court 1980, Form E of the LAA could be construed as first communication to Kijal Resort, being the registered proprietor, of decision by State Authority to acquire land in question. Section 18 Interpretation Acts 1948 and 1967 a general provision applicable to interpretation of all relevant written laws The majority judgment may also be viewed here The judgment of Zaleha Zahari FCJ may be viewed here For the Court of Appeal decision, see [2014] 1 CLJ 344; [2014] 1 MLJ 830 Tan Sri Dato Sri Khalid Abu Bakar (DIG) & Ors v Muhammad Farid Muntalib [2015] 1 LNS * 15 (CA) Whether dismissed policeman satisfied requirement that documents sought were relevant to judicial review proceedings Reason advanced for documents not a valid ground for discovery Dismissed policeman had not met requirements stipulated in Yekambaran Marimuthu; Rekapacific Bhd v Securities Commission and Anor and Carlow Kilkeny Radio Ltd v Broadcasting Commission. Failed to show relevance of

2 documents for purpose of judicial review application. For the High Court grounds of decision (BM), see [2014] 1 LNS 1314 Laila Mazlan v Amlife Insurance Bhd & Ors [2015] 1 LNS 77 (CA) Whether there had been a genuine offer of reinstatement to manager If, indeed, it had been a genuine offer of reinstatement, it should have been to restore appellant to former position as general manager (services) with the Human Resources Department put back under her charge. Since this department had been taken away from her charge, no reinstatement in the true sense. The judgment may also be viewed here Mohamad Ilyan Yahya & Ors (suing on behalf of themselves and all other residents of SS19, Subang Jaya, Selangor) v Majlis Perbandaran Subang Jaya & Ors [2015] 2 AMR 145 (CA) Leave to commence judicial review There were arguable issues and application not frivolous Trial judge erred in finding that residents of SS19, Subang Jaya had failed to identify decision to be impugned. It was clear they were challenging decision by local municipal council (SJMC) authorising Malaysian Highway Authority, New Pantai Expressway and/or Road Builder to commence works, and in so doing, contended SJMC had not conformed to requirements under Town and Country Planning Act The judgment may also be viewed here Banking Malayan Banking Bhd v Worthy Builders Sdn Bhd & Ors Civil Appeal No W (CA) Whether relevant assignment deeds and power of attorney will place obligation on bank to act to recover proceeds contractually and/or as fiduciary Cases trial judge relied on had little relevance to facts of case and law on security documents. Proposition or ratio decidendi, if sustained, would result in security documents becoming documents of liability. Assignment notice not in compliance with deed of assignment. Consequently, assignment was bad in law and judgment against Maybank for RM13 million could not be sustained. The grounds of judgment may be viewed here

3 Item Industrial Engineering Sdn Bhd & Ors v Bank Utama (Malaysia) Bhd [2015] 1 CLJ 933; [2014] AMEJ # 1553 (CA) Bank failed to prove conditions precedent adhered to by borrower and guarantors Manner in which counsel for Bank Utama had proceeded to prove case extremely unsatisfactory not diligent in preparing client s case, had lackadaisical attitude and was guilty of indolence Question of denying bank the right to produce documents did not arise; bank had only itself to blame for predicament it had found itself in. Justice was not only to bank, but also to Item Industrial and its guarantors. Objection taken by defendants counsel should have been sustained. Not having obtained leave of court, bank should not have been allowed to introduce additional witnesses as a matter of course, and for such witnesses to refer to documents listed in supplementary bundles filed mid-way through trial also as a matter of course. Evidence led by bank was unsatisfactory. Trial judge should have made a finding that burden of proof had not been discharged and no case for Item Industrial Engineering and its guarantors to answer. The majority judgment may also be viewed here The concurring judgment of Zaleha Zahari JCA (now FCJ) may be viewed here Civil Procedure Mustafa Kamal Abd Hamid v Affin Bank Bhd Civil Appeal No W-02(IM) (CA) Duty to serve writ and statement of claim and file affidavit of service Writ was never served on appellant JC had failed to consider relevant jurisprudence relating to nullity and retainer and, in appellate court s view, judgment stood as a perverse one The grounds of judgment may be viewed here The High Court grounds of judgment may be viewed here or see [2013] 1 LNS 1344 Company Law Devan & Associates (a law firm wholly owned by Devan a/l Narayanan Raman) v TSR Bina Sdn Bhd [2014] 1 LNS 1615 (CA) Whether principle of novus actus interveniens (new intervening act) ought to apply Action by TSR Bina against law firm was untenable

4 Trial judge s non-appreciation of defence of Novus actus interveniens had amounted to misdirection by way of judicial non-direction of evidence that was validly led before her. While the law reports are replete with high authority for saying that decisions so concluded may be set aside, appellate court need only refer to Lee Ing Chin & Ors v Gan Yook Chin & Anor. For the High Court grounds of judgment, see [2013] 1 LNS 590 Intellectual Property Dura-Mine Sdn Bhd v Elster Metering Ltd & Anor [2015] 1 AMR 697; [2015] 1 CLJ 887 (FC) Scope and application of s 42 Copyright Act 1987 Copyright not limited to first or earliest work Elster Metering and George Kent had given complete account of chain of ownership of copyright. More than that, they had shown all modifications of original design were brought about through labour and effort of employees of Elster or its predecessors from whom Elster acquired the copyright. The judgment may also be viewed here The Court of Appeal judgment may be viewed here For the High Court grounds of judgment, see [2011] 3 AMR 538; [2010] 1 LNS 1598; [2010] MLJU 2073 Land Law U R Leisure Resorts Sdn Bhd v Malayan Banking Bhd Civil Appeal No P (CA) Land Administrator s power to refer application for sale to High Court Court of Appeal unable to agree with lower court s interpretation that subsection (3A) of s 265 National Land Code 1965 should be read independently of subsections (2) and (3). If that were so, how did one explain refer the matter to the Court in subsection (3)? These words would only make sense if read together with subsection (3A). It was clear that, with the introduction of subsection (3A), the position did not change: there still must have been two prior unsuccessful sales by Land Administrator before he can lawfully refer the matter to High Court. What the amendment now makes clear is that the High Court cannot, in dealing with the reference, make an order to direct Land Administrator to carry out a sale. Clause 30 of Explanatory Statement to National Land Code (Amendment) Bill 2000 did not contain a full and clear explanation as to purpose of

5 amendments to s 265; the clause had omitted to even mention (let alone explain purpose of) proviso to subsection (3A) Local Government Tenaga Nasional Bhd v Majlis Daerah Hulu Terengganu [2015] 1 AMR 715; [2014] 9 CLJ 149 (FC) Whether there was a new Valuation List for purpose of issuance of Notice of Assessment for year 2005 assessment rates Court of Appeal erred in holding that local authority s letter dated 15 June 2005 could be accepted as evidence that 1999 Valuation List had been extended by state authority Local authority wrong in relying on s 137(2) Local Government Act 1976 (LGA) to justify action in not giving notice under s 141 and in taking the position that 1999 Valuation List was still in force and, for that reason, it was not necessary to give said notice. Section 137(2) should not be read in isolation, but together with ss 137(3) and 141. Local authority entitled to rely on 1999 Valuation List for YA 2005 or thereafter; in breach of s 141(3) LGA by unilaterally relying on 1999 Valuation List The grounds of judgment may be viewed here The Court of Appeal judgment may be viewed here or see [2013] 1 CLJ 744 Tort Ahmad Jaafar Abdul Latiff v Dato Bandar Kuala Lumpur [2015] 1 AMR 521; [2014] 9 CLJ 861 (FC) Extent of local authority s powers under s 101 Local Government Act 1976 Statutory duty on local authority (DBKL) to remove any tree likely to cause danger to public safety: s 101(cc)(i) Local Government Act 1976 (LGA). The words in that section have been drafted so as to impose responsibility on DBKL to act and ensure public roads are kept safe from trees aligned to them. Accident victim had established tree posed a danger to public DBKL s contention that any mishap to road users caused by trees on private land was not within its jurisdiction was unmerited. Under the LGA, DBKL can require owner or occupier to remove or trim the tree, and is not prohibited from entering private land to cut or trim trees that pose a danger to public. Clear abdication of duty on DBKL s part. Despite having a designated unit to carry out regular inspections, no evidence that it inspected site prior to accident.

6 The majority judgment may be viewed here The dissenting judgment per Richard Malanjum CJSS may be viewed here The Court of Appeal decision may be viewed here or see [2013] 3 CLJ 987 Utilities Nikmat Maju Development Sdn Bhd v Tenaga Nasional Bhd [2015] 2 CLJ 305; [2015] AMEJ 95 (CA) Hotel operator led to believe everything in order, only to be later billed more than RM500k Underlying reasoning of allowing Tenaga Nasional s interest to be preserved expeditiously would equally apply under s 38(1) and (3) Electricity Supply Act This conclusion wouldl accord with a harmonious and purposive reading of the subsections in s 38. High Court judge failed to properly consider TNB must still prove commission of a s 37 offence by some party, and also whether, where tampering was done by third party and not hotel operator, what exactly was the loss suffered by TNB and the gain enjoyed by hotel operator For the High Court judgment, see [2013] 1 LNS 416 Tenaga Nasional Bhd v Bright Rims Manufacturing Sdn Bhd [2015] 1 CLJ 521; [2015] AMEJ 44 (CA) Entitlement to recover from customer loss of revenue due to meter tampering Reasoning that customer had proved manifest error upon balance of probabilities was flawed; it was the amount claimed that had to be proved upon a balance of probabilities Failure to appreciate not only that major part of estimate was not shown to be incorrect, but also that alleged inaccuracy was not quantified so that the estimate could be further adjusted to arrive at amount that could be claimed While it was not for the court to calculate the correct amount for an order, neither was it for Tenaga Nasional nor customer to establish by how much estimate was to be corrected The grounds of judgment may also be viewed here For the High Court grounds of decision (BM), see [2011] 8 MLJ 455; [2011] 1 LNS 45 Tenaga Nasional Bhd v AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400; [2014] AMEJ 1398 (CA)

7 Whether conviction for tampering under s 37 Electricity Supply Act 1990 necessary as precondition to claim under s 38(4) Failure to call person who keyed in data as witness should not attract adverse inference; whether or not a particular adverse inference is drawn must necessarily be from the nature, relevance and surrounding circumstances If it is established that a meter had been tampered with and its readings do not reflect actual consumption of electricity, and additional charge or back charge imposed on consumer is not demonstrated to be manifestly unreasonable, excessive or wrong, amount due is proved upon a balance of probabilities Evidence lacking in showing that estimate of 27% was manifestly unreasonable, excessive or wrong The grounds of judgment may also be viewed here ~ All Malaysia Commercial Reports Monthly publication of High Court and appellate court decisions on commercial law # All Malaysia Electronic Judgments Cases which have not been reported in All Malaysia Reports * Legal Network Series Cases available on the Current Law Journal website but which have not been published in CLJ ^ Malayan Law Journal Unreported Cases available on the LexisNexis website but which have not been published in MLJ Malaysian Law Review (Appellate Courts) Cases from the Court of Appeal and the Federal Court Compiled by knowledge@lh-ag.com Lee Hishammuddin Allen & Gledhill. All Rights Reserved. DISCLAIMER: The views and opinions attributable to the editors of this newsletter are not to be imputed to the firm, Lee Hishammuddin Allen & Gledhill. The contents are intended for general information only, and should not be constructed as legal advice or legal opinion. The firm bears no responsibility for any loss that might occur from reliance on information contained in this newsletter. It is sent to you as a client of or a person with whom Lee Hishammuddin Allen & Gledhill has professional dealings. Please do not reproduce, transmit or distribute the contents therein in any form, or by any means, without prior permission from the firm.