Legal Updates December 2014 Cases Administrative Law Malaysia Airline System Bhd v Wan Sa adi @ Syed Sa adi Wan Mustafa Civil Appeal No 02(f)-15-04/2013 (N) (FC) Award of Industrial Court restored Industrial Court did not breach requirements of procedural fairness High Court and Court of Appeal had unreasonably and unnaturally extended so as to frustrate the process of law the principles of natural justice No reason to conclude award manifestly unreasonable or that it had committed error of law in Wednesbury unreasonableness sense No merit in steward s complaint that Malaysia Airlines failure to call witnesses who testified during domestic inquiry had deprived him of opportunity to cross-examine them The judgment may be viewed here The Court of Appeal s grounds of decision may be viewed here Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya Books Sdn Bhd & Ors Civil Appeal No W-01-143-04/2013 (CA) HC jurisdiction to hear judicial review application as impugned actions of JAWI dealt with Shariah law Civil court has jurisdiction and power to judicially review improper institution of criminal proceedings when impugned conduct is in fact not criminal in nature; case does not cease to be within its jurisdiction just because there is an Islamic law element General manager could not be subject to and/or be subject of enforcement actions by JAWI; power to punish transgressors of precepts of Islam applies only to persons professing the religion Action against Berjaya Books unlawful as it is a corporate entity incapable of professing a religion JAWI s actions against store manager unreasonable, irrational and tainted with mala fides within meaning of Karam Singh v Menteri Hal Ehwal Dalam Negeri
The judgment may be viewed here and The High Court grounds of judgment may be viewed here or see [2014] 8 CLJ 51; [2014] 1 MLJ 138 Muhamad Juzaili Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors Civil Appeal No N-01-498-11/2012 (CA) Landmark ruling for Muslim transgenders Section 66 Syariah Criminal Enactment 1992 (Enactment 4 of 1992) of Negeri Sembilan inconsistent with Article 5(1) Federal Constitution in that it deprives male Muslims suffering from Gender Identity Disorder of right to live with dignity Also inconsistent with Articles 8(1) and (2), 9(2) and 10(1)(a) Federal Constitution The judgment * may be viewed here ( * Full judgment issued in due course) Postscript: Federal Court will hear Negri Sembilan government s application seeking leave to appeal against Court of Appeal decision on 27 January See http://www.themalaysianinsider.com/malaysia/article/berjaya-books-winscourt-ruling-over-religious-raid-at-borders http://www.themalaymailonline.com/malaysia/article/after-court-rulingborders-manager-urges-end-to-shariah-prosecution http://www.themalaymailonline.com/malaysia/article/islamic-law-is-subjectto-the-federal-constitution-court-of-appeal-says-in http://www.themalaymailonline.com/malaysia/article/ns-governmentsleave-to-appeal-transgender-landmark-ruling-set-for-jan-27 Ketua Polis Negara v Indira Gandhi a/p Mutho Civil Appeal No A-01-365- 09/2014 (CA) Whether order of mandamus ought to be given Burden on husband to show that issue of custody within exclusive jurisdiction of Syariah Court and that civil High Court could not, and should not, make any order on custody of children No petition for dissolution of marriage by wife on the ground that husband had converted to Islam, therefore her civil marriage still subsists
Non-Muslim wife who has not converted to Islam may, upon husband s conversion, apply for custody of children even without filing for dissolution of civil marriage Facts and circumstances in English Court of Appeal case very different from present appeal: R v Commissioner of Police of the Metropolis, ex parte Blackburn distinguished, but may be cited as authority to show applicant for order of mandamus must show sufficient public interest that goes beyond applicant s personal or private interest Inspector General of Police has discretion on execution of process to enforce personal and private right, as opposed to enforcement of public right The grounds of judgment (majority decision) may be viewed here The dissenting judgment per Tengku Maimun Tuan Mat JCA may be viewed here http://www.themalaymailonline.com/malaysia/article/indira-gandhi-caseruling-sets-worrying-precedent-says-lawyer Civil Procedure Dato Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd Civil Appeal No W-02(IM)(NCVC)-994-06/2014 (CA) Party cannot make double claim by filing two separate actions for same relief Court s power under O 14A Rules of Court 2012 is discretionary conditions prescribed in rule 1 cannot be conveniently avoided or sidestepped Artisan Fokus two claims arose from same one and only transaction and were undoubtedly interrelated; instant action was an abuse of the process of the court; North West Water Ltd v Binnie & Partners (a firm) followed The grounds of judgment may be viewed here The High Court decision may be viewed here or see [2013] 1 LNS * 225 RHB Bank Bhd v Malaysian International Trading Corporation Sdn Bhd [2014] 9 CLJ 1086; [2014] AMEJ 1393 (CA) Judgment debtor had no claim on monies in deposit accounts until secured amount discharged Principle of res judicata did not apply No legislation or case law requiring banks like RHB to ascertain source of monies that customers bring in: Chang Yun Tai & Ors v HSBC Bank (M) Bhd & other appeals followed
Trial judge had placed undue importance on Singapore judgment which had no relevance before Court of Appeal Crucial question in garnishee proceeding is simply whether debt due to judgment debtor is actionable at time of application for garnishee order: Kedah Kelang Papan Sdn Bhd v Hansol Sdn Bhd & Anor not followed The grounds of judgment may also be viewed here Contract Inter-Sports Marketing Sdn Bhd v Ng Chin Chai & Anor Civil Appeal No W- 02(NCVC)(W)-834-04/2013 (CA) Whether secretary of Badminton Association of Malaysia had accepted performance of Inter-Sports obligations under marketing agreement by third party, and whether Inter-Sports continued to be liable under that agreement Inconceivable that BAM president unaware that rights previously contracted out to Inter-Sports had been taken over by First Events Promotions (FEP), which then contracted out most of those rights to sponsor Equally inconceivable BAM accepted US$555k from FEP, allowed it and sponsor to run commercial and marketing side of 2007 badminton championship without inquiring what had happened to Inter-Sports and why FEP was in the picture HC judge erred in deciding not to go into how FEP had come into the picture Section 42 Contracts Act 1950 applied BAM had accepted performance of promise from FEP, could not thereafter enforce that promise against Inter-Sports The judgment may be viewed here For the High Court decision, see [2013] 9 MLJ 633 Duta Wajar Sdn Bhd v Pasukhas Construction Sdn Bhd & Anor Civil Appeal No W-02-124-01/2014 (CA) Whether unsigned sub-contract document binds parties Case appeared to indicate time not of the essence of the contract Trial judge had erred in misapprehending evidence and the law when finding that proposed sub-contract agreement, although unsigned by both parties, contained terms of payment on pay-when-paid basis The grounds of judgment may be viewed here For the High Court decision, see [2014] AMEJ # 0531; [2014] 1 LNS 411
Shirley Koh Gek Ngo & Anor v Tanah Emas Bio-Tech (M) Sdn Bhd (formerly known as Gagnar Bio-Tech (M) Sdn Bhd) [2014] 6 MLJ 77; [2014] 2 AMCR ~ 616; [2014] 1 LNS 687 (CA) Whether action in ceasing employment with company breach of principal agreement Judge had failed to consider whether executive director s resignation justified in view of Tanah Emas own breach of obligation to manage finances which ultimately led to company being wound up Company failed for lack of financial support, which triggered premature resignation of executive director, which in turn activated buy-back clause Tanah Emas could not rely on executive director s resignation to invoke buy back clause when her departure was brought about by company s own conduct. No basis to order specific performance or damages in lieu. The judgment may also be viewed here Leisure Farm Corporation Sdn Bhd v Kabushiki Kaisha Ngu & Ors Civil Appeal No W-02(NCC)(W)-541-03/2014 (CA) Scope or extent of matters that can rightfully be pursued under cross-appeal Critical words used...should be varied... specifying the grounds thereof. and to be varied to the extent in Rule 8 and Form 2 respectively of Rules of the Court of Appeal 1994 did not carry a meaning that there could be a total setting aside or review (of the substantive judgment or any findings of the court) Kabushiki Kaisha s failure to be vigilant in applying for extension of time to file proper Notice of Appeal could not be rectified by sneaking in through process of cross-appeal to mount an attack on a material aspect of the judgment of the lower court, which was not the subject of the appeal itself Principle stated in Re Cavandar s Trust lays down rule any cross-appeal must relate directly to appeal brought by appellant; otherwise, there ought to be a separate notice of appeal filed Kabushiki Kaisha precluded from raising any argument that there was no valid and concluded contract as held by trial judge The grounds of decision may be viewed here For the High Court judgment, see [2014] 9 CLJ 639 Oxbridge Height Sdn Bhd v Abdul Razak Mohd Yusof & Anor Civil Appeal No J-02(NCVC)(W)-2725-12/2013 (CA) Appeal allowed in part; Court of Appeal not persuaded developer had established claim for deceit and fraudulent misrepresentation, no basis for extravagant claims for loss of profits and loss of reputation for social undermining to be allowed
Substance of appeal turned on validity of settlement agreement HC judge had erred in assessment of evidence and failed to address course of negotiations and meetings between developer, house buyers and National Housing Department in context of development being a projek sakit which was delayed by force majeure MK Retnam Holdings Sdn Bhd v Bhagat Singh; Sentul Raya Sdn Bhd v Hariram Jayaraman & Ors and other appeals followed The grounds of judgment may be viewed here The High Court judgment (in BM) may be viewed here Bounty Dynamics Sdn Bhd (formerly known as Meda Development Sdn Bhd) v Chow Tat Ming & Ors Civil Appeal No W-02-2133-2011 (CA) Whether case established by evidence of only two unit purchasers as witnesses, although claim was by 176 unit buyers Nothing in sale and purchase agreements (SPAs) to prevent developer from entering into transaction with Maybank Trustees No firm promise by developer to construct food court and theme park and to ensure that these should continue to exist, no matter the economic circumstances Purchasers received delivery of units in the complex that were not structurally or fundamentally different from that promised in SPAs; Balakrishnan Devaraj v Admiral Cove Development Sdn Bhd distinguished Elements of duplicity with regard to order on damages to be assessed; plaintiff not entitled to damages for both misrepresentation and breach of contract The grounds of decision may be viewed here The High Court judgment may be viewed here or see [2014] 2 CLJ 596 Borneo Helicopters Sdn Bhd & Ors v Sabah Air Aviation Sdn Bhd Civil Appeal No S-02-820-04/2012 (CA) Whether management agreement validly terminated by Sabah Air Sabah Air had to comply with two time periods; HC erred in failing to appreciate that management agreement required Sabah Air to give adequate notice to Borneo Helicopters to make good failure, neglect or contravention complained of when this was explicitly stated HC also erred in failing to appreciate Sabah Air had deprived Borneo Helicopters of right to be informed when termination shall take effect Law firm not involved in preparation of MoU between Sabah government and Borneo Helicopters in respect of management takeover of Sabah Air
HC erred in concluding claim for conspiracy established against law firm The grounds of judgment may be viewed here http://dailyexpress.com.my/news.cfm?newsid=88104 For the High Court judgment, see [2012] 5 CLJ 684; [2012] 5 AMR 12 Double Dynasty Sdn Bhd v Sime Darby Industrial Sdn Bhd (formerly known as Tractors Malaysia (1982) Sdn Bhd) [2014] AMEJ 1010; [2014] 1 LNS 997 (CA) Whether claim for indemnity was substantiated with evidence Sime Darby had expressly pleaded claim based on indemnity Trial judge erred in coming to conclusion Sime Darby had established case against buyer Double Dynasty on balance of probabilities The judgment may also be viewed here For the High Court judgment, see [2013] 10 CLJ 702 Foo Yee Construction Sdn Bhd v Vijayan a/l Sinnapan [2014] 8 CLJ 979; [2014] 5 MLJ 660; [2014] 5 MLRA 18; [2014] AMEJ 0725 (CA) Purchaser entitled to order for specific performance Trial judge correct to hold that sale and purchase agreement, building contract agreement were standalone agreements to be construed separately Formula for calculation of damages was fair and reasonable Purchaser ought to have chosen to terminate building contract within reasonable time of due delivery date or, by way of appropriate proceedings in court, elected to treat performance of contract as having been terminated (repudiated) by construction company The grounds of decision may also be viewed here The High Court grounds of judgment may be viewed here Land Law CIMB Investment Bank Bhd (previously known as Commerce International Merchant Bankers Bhd) v Metroplex Holdings Sdn Bhd [2014] 9 CLJ 1012; [2014] 6 MLJ 779; [2014] AMEJ 1411 (FC) Issues pertaining and/or relating to cause to the contrary can only be raised in charge action
Where the dealing is a land charge or lien, not necessary for non-citizen or foreign company to obtain prior approval of state authority for registration and endorsement of charge Kandiah Peter v Public Bank Bhd; Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd and Low Lee Lian v Ban Hin Lee Bank Bhd distinguished Action barred by doctrine of res judicata The judgment may be viewed here The Court of Appeal judgment may be viewed here or see [2013] 8 CLJ 329; [2013] 4 MLJ 520; [2013] 3 AMR 782 The HC grounds of judgment may be viewed here or see [2011] 1 LNS 1506 Yebet Saman & Ors v Foong Kwai Long & Ors Civil Appeal No C-01(NCVC) (A) (W)-416-12/2013 (CA) Appeal raises interesting points of law and fact over tribe s claim to land based on common law and customary rights Nowhere is it provided in Aboriginal Peoples Act 1954 (APA) that it was passed to exclusively deal with their rights. Common law rights of the Semaq Beri can co-exist with APA: Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors followed The judgment may be viewed here http://www.themalaysianinsider.com/malaysia/article/court-affirms-rightsof-orang-asli-in-customary-land-battle Tuan Mat Tuan Ismail v Etiqa Takaful Bhd (formerly known as Takaful Nasional Sdn Bhd) Civil Appeal No D-02(NCVC)(A)-158-01/2013 (CA) Whether charge registered over subject lots was valid Based on definition of takaful in Takaful Act 1984, Etiqa would be a financial institution in wider sense of an institution providing financing Land Office best authority to know if Etiqa was an institution listed in Schedule D to Kelantan Malay Reservations Enactment 1930 or Schedule 26A to Kelantan Land Enactment 1938 Consent for charging of subject lots would satisfy condition in restriction despite SKKPJ (Tanah Merah) Development being named as proposed chargor The judgment may be viewed here
Tort Dato Dr Low Bin Tick v Datuk Chong Tho Chin and other appeals Civil Appeal Nos W-02-18-01/2013, W-02-1662-07/2012, W-02-1700- 07/2012, W-02-1701-07/2012, W-02-1716-07/2012 and W-02-1719- 07/2012 (CA) Former president of Selangor Chin Woo Athletic Association must pay predecessor RM500,000 for defaming him Trial judge did not make any perverse findings of facts in relation to impugned letters Defence of justification not available to LBT Damages award neither excessive nor inadequate, but rate of interest on sums awarded set aside as law applicable at the time orders were made had been amended The grounds of judgment may be viewed here and http://www.thestar.com.my/news/nation/2014/12/03/athlethic-associationpresident-to-pay-another-court-rules/ http://www.thestar.com.my/news/nation/2012/06/27/exchin-woo-head-topay-up/ Vitachem (M) Sdn Bhd v Ing Hua Fu Marine Line Sdn Bhd [2014] 2 AMCR 682; [2014] 6 MLJ 566 (CA) Shipper negligent following explosion that sank vessel Delivery of cargo so fundamentally different from that which shipper contracted to deliver can amount to breach of contract by Vitachem Carrier expected to examine and be familiar with nature and contents of cargo before consenting to loading it on board Trial judge erred in proceeding on premise that stowage was responsibility of shipper when it is settled law that it is responsibility of carrier Not proper for trial judge to draw inferences that Vitachem s cargo was not securely sealed and properly packed or not properly segregated and consequently must have contributed to or caused explosion Reliance on passage set out in judgment was misplaced and the result of misreading of part of decision in The Athanasia Comninos Failure of any senior crew member to give evidence and absence of suitable adjustor s report of incident factored in appellate court s finding that accident might simply have been a case of misfortune
The judgment may also be viewed here For the High Court decision, see [2013] 9 MLJ 825; [2013] 4 CLJ 1120 ~ 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.