Majlis Perbandaran Subang Jaya v Laguna De Bay Sdn Bhd Civil Appeal No B /2013 (CA)

Transcription

1 Legal Updates November 2014 Cases Administrative Law Majlis Perbandaran Subang Jaya v Laguna De Bay Sdn Bhd Civil Appeal No B /2013 (CA) Assignment in s 68 National Land Code 1965 (NLC) has nothing to do with government bodies. Parties had not furnished any cases that a s 68 assignment would be applicable also to local authority. Challenge on s 68 NLC and circular issued on grounds of ultra vires doctrine (if any) could not be taken against local authorities in view of s 9 Local Government Act 1976 Laguna De Bay had not made out a case for judicial review on the grounds that terms in sub-licensing agreement were ultra vires its powers; an agreement that is illegal and/or in contravention of the law; acting unreasonably, grossly disproportionate and motivated by factors which are irrelevant The grounds of judgment may be viewed here: For the High Court judgment, see [2014] 7 MLJ 545; [2013] 9 CLJ 899 Penguasa Tempat Tahanan Perlindungan Kamunting, Taiping & Ors v Badrul Zaman P S Md Zakariah [2014] 7 CLJ 533 (CA) Gurcharan Singh Bachittar Singh v Penguasa, Tempat Tahanan Perlindungan Kamunting, Taiping & Ors irrelevant for purpose of claim for damages for false imprisonment or wrongful detention General damages of RM3 million, exemplary damages of RM300,000 awarded to detainee were too high Authorities cited did not support simple linear calculation; appellate court could not agree with HC method of calculation and award of 50% discount on straight line basis Court of Appeal not satisfied there was sufficient justification to award exemplary damages; RM300,000 fair and reasonable for unlawful imprisonment and wrongful detention The judgment may also be viewed here:

2 For the High Court grounds of judgment, see [2011] 1 AMR 606 Or see Arbitration The State Government of Johor Darul Ta zim v Johor Coastal Development Sdn Bhd Civil Appeal No J-01(IM) /2013 (CA) JC erred when he, on his own accord, enlarged the time to comply with the Order; JC should not be astute to find excuses for such failure since obedience to order of the court is the foundation on which its authority is founded: Re Jokai Tea Holdings Ltd followed Johor Coastal had more than sufficient time to comply with the Order, but chose not to do so; JC ought to have ordered a permanent stay of arbitration proceedings without qualification pdf For the High Court grounds of decision, see [2013] 1 LNS * 1024 Banking CIMB Bank Bhd (formerly known as Bumiputra-Commerce Bank Bhd) v Panaron Control Sdn Bhd Civil Appeal No Q /2012 (CA) HC judge s deliberation and conclusions on forged signature on impugned cheques were correct and sustainable in law Trial judge s finding based on comparison of disputed signature with admitted documents sufficient to conclude that all 196 impugned cheques were forgeries, and CIMB ought not to have honoured any of them for payment from plaintiff s account Judge erred in holding that CIMB could not avail itself to defence of knowingly or negligently contributing to forgery as was now available under s 73A Bills of Exchange Act 1949 Trial judge only correct to extent of identifying actual source of predicament faced by Panaron Control in what had happened over the four years forgeries went undetected Proper question was whether Panaron Control culpable in allowing or creating opportunity and space for monthly tank statements to be tampered with, as was the case here

3 Trial court ought to have held that CIMB had established a sufficient defence to Panaron Control s claims within purview of s 73A BEA 1949 and dismissed the action The grounds of judgment may be viewed here: For the High Court judgment, see [2013] 10 CLJ 534 Civil Procedure Tan Tek Sin & Anor v Tetuan Nora Hayati & Associates (sued as a firm) Civil Appeal No W /2014 (CA) Acknowledgment cards disclosed that beneficiaries had in fact acknowledged receipt of bill of costs; once they had received the bill, it was prima facie proof of delivery on Beneficiaries lawyer had set out particulars of legal work done without any sum being shown against each item, bill merely showed lump sum of RM600k representing the costs of all items. This was a special circumstance, which was a ground for the court to exercise its inherent jurisdiction to allow beneficiaries extension of time and to refer the bill for taxation and determination Lawyer did not explain or clarify exorbitant fee of RM600k another special circumstance warranting High Court s exercise of inherent jurisdiction by granting an order for taxation; justice of case required such an order to be made For the High Court grounds of decision, see [2014] 1 LNS 807 For the High Court decision on the S22 Suit, see n-_nora_hayati[1].pdf Company Law Durable Portfolio Sdn Bhd & Anor v Pang Kee Hwi Realty Sdn Bhd & Ors and another appeal Civil Appeal Nos J /2013 and J /2013 (CA) Prima facie right for shareholder to freely transfer his shares; restriction on transfer must be clearly expressed in the articles of association, and it will not be implied by the courts

4 JC erred in construing pre-emption clauses in the same manner as in Loh Eng Leong. Although both that case and current one concerned pre-emption clauses, they were drafted in a completely different way: Loh Eng Leong & Ors v Loh Mu Sen & Sons Sdn Bhd & Anor distinguished Pre-emptive requirement meant to apply in the context of sale of shares only For the High Court grounds of decision, see [2013] 2 AMCR 877; [2013] 1 LNS 929 Contract Balbeer Singh a/l Karam Singh & Ors v Sentul Raya Sdn Bhd [2014] 7 CLJ 461; [2014] 5 MLJ 491; [2014] AMEJ # 0837 (CA) No conflict between s 18 and s 28 Specific Relief Act 1950; s 28 applies where suit only for specific performance, does not apply to restrict s 18 which specifically authorises any person suing for specific performance to seek compensation for its breach, either in addition to, or in substitution for, its performance Condominium unit purchasers entitled to consideration for damages even if prayer for specific performance was dismissed; s 18(5) provides jurisdiction conferred under the section may be exercised notwithstanding that the contract had, as in this case, become incapable of performance The judgment may also be viewed here: For the High Court grounds of decision, see [2013] 1 LNS 98; [2013] 9 MLJ 360; [2013] 4 AMR 353 Kerajaan Malaysia v RHB Insurance Bhd [2014] 11 MLJ 541; [2014] 7 CLJ 782; [2014] 1 AMCR ~ 706; [2014] AMEJ 0277 (HC) Government of Malaysia could not invoke Turquand rule to affix liability on RHB Insurance by reason of fraudulent nature of bond Turquand rule had no application here, nor did doctrine of ostensible authority; RHB Insurance not liable to make payment in the sum of RM10 million Land Law Resolution Alliance Sdn Bhd v Binabaik Sdn Bhd & Anor Civil Appeal No J-

5 /2012 (CA) Clause 3(2) of sale and purchase agreement must be read with cl 3(3) Liability to pay maintenance charges covered by the words all outgoings ; assignee under no legal obligation to pay outstanding maintenance charges Developer s refusal to deliver strata title to assignee amounted to a breach of undertaking given pursuant to consent to assignment Developer only a bare trustee of, and no longer held any beneficial interest in, the property No excuse for developer to refuse to deliver strata title for purposes of having name of successful bidder registered in title Developer holding back on strata title would amount to contravening s 40A Strata Titles Act For the High Court judgment, see [2012] 1 LNS 1314 Legal Profession Bar Malaysia v Mohd Fadli Shuib & Anor Civil Appeal No K /2012 (CA) Right to receive reasoned judgment from court of law is an essential fair trial right in both criminal and non-criminal cases Only in rare and exceptional circumstances should court interfere with discretion exercised by Disciplinary Board in disciplinary decision involving advocate and solicitor Manner in which solicitor managed monies received was wrong and amounted to grave misconduct; further, sum due and owing to stepbrother had been wrongly retained and/or utilised by solicitor Solicitor s conduct fell below standards of integrity, probity and trustworthiness required of advocate and solicitor Hi-Summit Construction Sdn Bhd v Konsortium Lapangan Terjaya Sdn Bhd & Ors [2014] 5 AMR 764 (CA) Warrant to act signed by two out of three directors of Hi-Summit, sufficient

6 authorisation for commencement of action Challenge to authority to act, as a rule, should be made only by way of formal application (by summons or motion), and not made orally from the Bar HC judge erred in equating admission that there was no board of directors resolution with admission that there was no authority to act Judge erred in taking into account views of beneficial owner of the shares, who was not a party to the action and, therefore, had no locus standi in the proceedings The judgment may also be viewed here: For the High Court grounds of decision, see [2011] AMEJ 0077; [2011] 1 LNS 555 Or see pdf AmBank (M) Bhd v Tetuan Abd Gani Che Man (sued as a firm) [2014] 1 LNS 673; [2014] MLJU 619 (CA) Legal firm negligent in advising bank to release loan amount in favour of borrower s solicitors, notwithstanding that a clause in S&P agreement specifically provided purchase price was to be paid to vendor By advising bank to release loan sum to borrower s solicitor, legal firm had acted negligently by giving advice that was clearly contrary to contractual provision, even though it was the firm s opinion that it was safe to do so since demand drafts were to be paid into clients account of borrower s solicitor Legal firm negligent in giving advice to bank that was contrary to contractual provisions, advice that proved detrimental to bank s interests and caused loss of loan sum of RM193,200 The grounds of decision may be viewed here: Revenue Maxis Communications Bhd v Director General of Inland Revenue & Anor Civil Appeal No 01(f) (W) (FC) Equivalent Cash Consideration (ECC) constitutes a perquisite under s 13(1)(a) Income Tax Act 1967 (ITA); question to be decided is on the mechanism to tax such income

7 Benefit arising from Employees Share Option Scheme (ESOS) to Maxis employee considered as perquisite under ITA Both ss 25(1A) and 32(1A) ITA not applicable to determine taxability of payment of ECC; payment of ECC not based on ESOS Words used and intention of Parliament clearly shown in ss 25(1A) and 32(1A) ITA that provisions apply to shares and not to cash payment or ECC (W).pdf For the Court of Appeal judgment, see [2013] 5 MLJ 698; [2013] 1 LNS 292 Or see For the High Court decision, see [2011] 1 LNS 1841; [2012] 7 MLJ 391 Or see 3% pdf Tort Nurasmira Maulat Abd Jaffar & Ors v Ketua Polis Negara & Ors [2014] 1 LNS 1263 (CA) Section 24 Police Act 1967 does not give police any powers to kill; defence of self-defence in reliance of s 24 must fail The grounds of judgment may be viewed here: See also ~ 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

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