Legal Updates June 2014 Legislation The following Act and amending Act have been published in the Federal Gazette: 1. Goods and Services Act 2014 [Act 762] An Act to provide for the imposition and collection of goods and services tax These two Acts will be repealed: Sales Tax Act 1972 [Act 64] Service Tax Act 1975 [Act 151] 2. Corrosive and Explosive Substances and Offensive Weapons (Amendment) Act 2014 [Act A1463] An Act to amend the Corrosive and Explosive Substances and Offensive Weapons Act 1958 Cases Bankruptcy Dato Ramesh a/l Rajaratnam v Datin Zaleha Abd Rahman & Ors [2014] 5 CLJ 669; [2014] AMEJ # 0658 (CA) Facts of Al-Rashidy Kassim & Ors v Rosman Roslan and that of present case have no resemblance to attract special circumstances concept JC wrong to rely on Kosma Palm Oil Mill Sdn & Ors v Koperasi Serbausaha Makmur Bhd in application of special circumstances concept The grounds of judgment may also be viewed here: http://www.kehakiman.gov.my/directory/judgment/file/w-03%28im%29-161-09-2013.pdf For the High Court judgment, see [2014] 7 MLJ 192; [2013] 7 CLJ 468 Civil Procedure Yam Kong Seng & Anor v Yee Weng Kai [2014] 6 CLJ 285; [2014] AMEJ 0748; [2014] MLJU^ 476 (FC)
Clear judicial admission of debt owed Electronic message such as SMS, with all the attributes of s 8 Electronic Commerce Act 2006 (ECA) present, was as good as in writing Legal requirement for a signature was fulfilled as sender was adequately identified; electronic signature means any letter, character, number, sound or other symbol or any combination created in an electronic form adopted by a person as a signature: s 5 ECA Abdul Manaf Mohd Ghows & Ors v Nusantara Timur Sdn Bhd distinguished http://www.kehakiman.gov.my/directory/judgment/file/02-22-05-2013(w).pdf For the Court of Appeal decision, see [2013] 4 CLJ 493; [2013] 2 MLJ 575 Or see http://www.kehakiman.gov.my/directory/judgment/file/w-02-2935-2010.pdf For the High Court grounds of judgment, see http://kl.kehakiman.gov.my/sites/kl.kehakiman.gov.my/attachments/s3-22- 273-2008.pdf Contract Boustead Naval Shipyard Sdn Bhd v Dynaforce Corporation Sdn Bhd [2014] 5 CLJ 533; [2014] AMEJ 0644 (CA) Exhibits taken collectively or individually did not create any assignment at all, and were far from perfect Elements of legal assignment not fulfilled; serious uncertainties with regard to nature of and parties to the assignment Terang Tanah Sdn Bhd & Anor v Chong Choy Lin Civil Appeal No W-02-2703-11/2012 (CA) Sale and purchase agreement (SPA) terminated when purchaser rejected options offered, and had instead demanded compensation With termination of the SPA, purchaser could no longer invoke and rely on its terms to claim liquidated damages Allowing award of liquidated damages and one for general damages to be assessed tantamount to granting purchaser double relief Purchaser not entitled to claim for liquidated damages whether calculated up to date of termination of SPA or to date of expiry of 24 months from date of SPA in addition to general damages
The grounds of judgment may be viewed here: http://www.kehakiman.gov.my/directory/judgment/file/w-02-2703-11-2012.pdf Bank Islam Malaysia Bhd v Aquasix Corporation Sdn Bhd & Ors [2014] 3 MLJ 812; [2014] 3 MLRA 449 (CA) Pleaded case different from that presented in court Issue of waiver should not be raised and considered by court judge in determining plaintiffs claim against defendant Judge erred in concluding defendant had already waived condition precedent The grounds of judgment may also be viewed here: http://www.kehakiman.gov.my/directory/judgment/file/s-02-69-01-2012.pdf PKNS Engineering & Construction Bhd v Global Inter-Dream (M) Sdn Bhd and another appeal [2014] AMCR ~ 883; [2014] 1 LNS 381; [2014] AMEJ 0504 (CA) Trial judge erred in first finding that PKNS unit owed a duty to produce Method Statement of works and that failure to do so was the cause behind main subcontractor s delay in completing project including showroom unit Main sub-contractor had to prove but failed that termination of its contract was unlawful because it ought to have been granted extension of time to complete project Trial judge erred in the reasons advanced in judgment leading to the finding that it was the conduct of PKNS unit that caused main sub-contractor to be behind schedule http://www.kehakiman.gov.my/directory/judgment/file/b-02(ncvc)(w)- 1642-07-2013.pdf Tan Sri Halim Saad v Tan Sri Nor Mohamed Yakcop & Ors [2014] AMCR 978; [2014] 4 CLJ 232 (HC) Cause of action of fraud untenable, tycoon had no basis to rely on s 29 Limitation Act 1953 See also http://www.themalaysianinsider.com/malaysia/article/court-strikes-outtycoon-halim-saads-rm2-billion-suit-against-government-kh
Intellectual Property Vision Cast Sdn Bhd & Anor v Dynacast (Melaka) Sdn Bhd & Ors Civil Appeal No J-02-3157-12/2011 (CA) Trial judge s observations and conclusions were without proper and sufficient appreciation of totality of evidence before court Had omitted or overlooked agreed 12 months extent of any restraint between the parties if at all that was enforceable and valid Had misdirected herself on relevant law governing controversy between parties Incomprehensible how trial judge could have reached conclusion that there had been poaching of customers Trial judge right in holding mere calling of a witness from agency not sufficient to prove ownership of copyright to images/photographs in question The grounds of decision may be viewed here: http://www.kehakiman.gov.my/directory/judgment/file/j-02-3157-12-2011.pdf Lee Chye Yen (t/a Ebiz Solution Network ) v EoneNet.Com Sdn Bhd [2014] 3 MLRA 468; [2014] AMEJ 0217; [2013] MLJU 1429; [2013] 1 LNS * 1241 (CA) Judge erred in admitting statutory declaration tendered under s 42 Copyright Act 1987 and in allowing company s claim against sisters http://www.kehakiman.gov.my/directory/judgment/file/w-02-ipcv-w-203-01-2013.pdf Land Law The State Government of Sarawak & Ors v Teo Soo Chuan [2014] 5 CLJ 68; [2014] 4 MLJ 114; [2014] AMEJ 0226 (CA) Deeds signified grantor had granted a right of way in the nature of an easement to the grantees and their successors in title Right of way was granted over whole of Lot 27 for as long as dominant tenements needed it Only right reserved by grantor over Lot 27 was a right of way for himself and all others lawfully using the same from time to time Quality of the right of way as improved benefited all parties
http://www.kehakiman.gov.my/directory/judgment/file/q-01-676-11-2011.pdf For the High Court decision, see [2012] 7 CLJ 777 Or see http://www.commonlii.org/my/cases/mysshc/2011/334.html Maybank Islamic Bhd lwn Azirairil Jahabarsadiqe Abdul Rahman [2014] 3 MLJ 635; [2014] 3 MLRA 477; [2014] 1 LNS 129 (MR) HC judge erred in setting aside public auction that had been carried out Also failed to consider and scrutinise HC order as well as sale declaration that clearly stated where the auction was to be conducted, ie at the High Court compound in line with s 6 Auction Sales Enactment FMS Cap 81 (No 2 of 1929) The judgment (in BM) may also be viewed here: http://www.kehakiman.gov.my/directory/judgment/file/c-02-954-2011.pdf Moneylending Lo Ga Lung v Diong Ching Diung [2014] 3 MLRA 565; [2014] 1 LNS 390 (CA) Trial judge had misconstrued s 3 Moneylenders Ordinance (Sarawak) (Cap 114) to extent of rendering debt documents as void, when in fact s 3 only has the limited effect of prohibiting admissibility of the impugned debt documents as evidence in court http://www.kehakiman.gov.my/directory/judgment/file/q-02-2816-11-2011.pdf Tort RHB Bank Bhd v Moon Trading Sdn Bhd [2014] 5 CLJ 443 (CA) HC erred in allowing claim for defamation against RHB when it was Citibank, and not RHB, that published the defamatory statement; RHB could not be held vicariously liable for statement, nor was it liable for defamation just by entering wrong code Wrong for High Court to equate RHB as master and Citibank as RHB s servant, and, consequently, find RHB vicariously liable Words complained of did not have the meaning ascribed by Moon Trading either in its pleading or in its evidence; words not reasonably capable of bearing a meaning defamatory of Moon Trading
http://www.kehakiman.gov.my/directory/judgment/file/w-02-615-03-2012.pdf For the High Court decision, see [2012] 6 MLJ 271 ~ 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 2014. 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.