Malaysia: Legal Updates - June 2015

Cases

Administrative Law

Kempas Edible Oil Sdn Bhd v Prabdhial Singh a/l Dardara Singh [2015] 3 AMR 529; [2015] 1 LNS* 241 (CA)

High Court judge erred in allowing application for judicial review to issue writ of certiorari to quash award in favour of employer

  • In examining procedural aspect of decision-making process adopted by employer in arriving at decision to terminate employee, High Court judge had departed from established principles of law as laid down in Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd and another appeal and Dreamland Corporation (M) Sdn Bhd v Choong Chin Sooi
  • Approach taken by Industrial Court consistent with exercise of its function as prescribed by Industrial Relations Act 1967 in having to determine for itself whether employer had established valid reason for employee's dismissal
  • High Court judge in criticising Industrial Court's approach had overlooked fact that if latter had considered itself bound by findings of Sessions Court or guided by those findings, then it would have failed to discharge its function

The judgment may also be viewed here.

Banking

RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2015] 1 AMCR~ 871; [2015] 1 LNS 103 (CA)

Whether claim statute barred under s 6(1) Limitation Act 1953

  • High Court had allowed itself to be led by submissions on accrual of cause of action from issue of notice(s) of demand
  • Error led court to a decision it would not have made had it not been for such error — fit and proper case demanding appellate intervention

The grounds of judgment may also be viewed here

Bankruptcy

Azman Jufri v Medtronic Australasia Pty Ltd and another appeal [2015] 5 CLJ 1026; [2015] 4 AMR 45 (CA)

Whether judgment creditor estopped from amending date of act of bankruptcy

  • Misstatement as to date of act of bankruptcy in creditor's petition did not prejudice judgment debtor. Further, no evidence to show that as at date of act of bankruptcy (30 May 2013), judgment debtor had made any attempt to satisfy judgment debt or that judgment debtor had any counterclaim, set off or cross demand. No substantial injustice caused by error in date of act of bankruptcy. Section 131 Bankruptcy Act 1967 ("BA 1967") could be invoked to regularise creditor's petition.
  • Address relied on by judgment creditor was obtained from National Registration Department of Malaysia. Further, judgment debtor's stand that service of bankruptcy notice and creditor's petition effected at wrong address was contradicted as he had admitted to receiving a letter issued by judgment creditor to the very same address that he contended was the wrong one.
  • No express stipulation to say that requirement to annex petition to verifying affidavit is mandatory. Form 11 prescribed by r 106 Bankruptcy Rules 1969 ("BR 1969") merely adverts to "the petition hereunto annexed". Accordingly, failure to annex petition to verifying affidavit only a formal defect or irregularity, curable within the meaning of s 131 BA 1967 and r 274 BR 1969.
  • Clear stipulation in r 18(1) BR 1969 making it mandatory for application to be filed by summons in chambers. Filing of a notice of application by judgment creditor as opposed to a summons in chambers was a clear breach of mandatory provision. Wrong mode adopted by judgment creditor undermined stratum of application for substituted service itself; consequently, any order obtained must be equally tainted and rendered null and void.

The grounds of judgment may also be viewed here

Malayan Banking Bhd v KM Music Lines Sdn Bhd (in liquidation) Civil Appeal No A-02-274-01-2012 (CA)

Cheque not paid into account

  • High Court had held that there was suppression of evidence, but not explained how it arrived at this conclusion. Also no explanation as to why testimony of one witness could not be relied upon, or to doubt another. Appellate court did not see relevance of who had typed the words "please pay to OKA Concrete" or spelling error.
  • Matter had not been dealt with on its merits, decision was flawed

The grounds of judgment may be viewed here

Civil Procedure

Oh Kang Kuang & Anor v Roebuck Development Sdn Bhd; Allied Alpine (M) Sdn Bhd (Petitioner) [2015] 2 CLJ 1094 (CA)

Leave application not the occasion whether proposed civil suit will succeed, but whether there are relevant triable issues

  • Affidavits before High Court amply demonstrated there were disputed facts being relied upon in proposed civil suit. High Court erred in proceeding to make findings on disputed facts, resulting in application being dismissed. Had the court correctly appreciated that the disputed facts were in relation to appellants' basis in proposed civil suit, and not the application itself, it could not have come to the decision to dismiss leave application.
  • High Court also erred in holding that because all information of borrowers kept by bank or financial institutions was confidential and protected, any release of such information would be in contravention of Banking and Financial Institutions Act 1989 and thus prohibited. Court failed to consider that since account was that of respondent company, liquidator not subjected to the restriction.

The High Court grounds of decision may be viewed here or see [2014] AMEJ 0299

Kenneth Chung Kuo Ting & Anor v John Tsang Shing Chi & Anor [2015] 1 CLJ 346; [2015] 1 AMCR 193 (CA)

Whether judgment could be entered until stay order set aside

  • JC erred in entering judgment based on unclear and equivocal admission allegedly made by directors of sub-contractor company when there was a pending and effective stay order granted earlier to refer matter to arbitration

The grounds of judgment may also be viewed here

Yap Seng Hock v Southern Finance Bhd (formerly known as United Merchant Finance Bhd) [2015] 2 MLJ 675; [2015] 1 LNS 396 (CA)

'No valid document in court' until writ of summons renewed

  • Senior assistant registrar should have taken stock of status of writ of Summons
  • Just because Court of Appeal remitted suit back for case management, there could not be any assumption that writ of summons that had expired need not be renewed: Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor and another appeal (FC)
  • Not only was writ of summons a nullity, no dispute that there had not been any valid service of purported writ of summons. Valid service on appellant was a condition precedent for any subsequent action pursuant on writ of summons.
  • Appellate court appeared to take a different stand from another panel of this court. Not quite clear as to why Court of Appeal did not accede to appellant's motion to order that a valid writ of summons be served on appellant.
  • The fact leave not granted by Federal Court to review dismissal of motion did not mean decision of Court of Appeal had been affirmed: Datuk Syed Kechik bin Syed Mohamed & Anor v The Board of Trustees of The Sabah Foundation & Ors and another application (FC)

The High Court grounds of judgment may be viewed here or see [2013] 1 LNS 523

Malaysia Anak Bang & Ors v Empresa (M) Sdn Bhd & Anor and another appeal [2015] 3 MLRA° 717; [2015] 1 LNS 1735 (CA)

Whether claims and reliefs sought barred by s 2 Public Authorities Protection Act 1948

  • In the light of New Zealand Maori Council v Attorney-General (or Lands Case) and Mabo v Queensland (No 2), interpretation of effect of assumption of sovereignty expressed in Wi Purata v The Bishop of Wellington in the second half of 1870s no longer had a place in the common law
  • No basis to distinguish Director of Forests, Sarawak & Anor v Balare Jabu & Ors and another appeal

The grounds of judgment may also be viewed here

Contract

Jiddi Joned Enterprise Sdn Bhd v Louis K H Wong & Co [2015] 1 MLJ 209; [2014] 2 CLJ 644; [2014] AMEJ# 0986 (CA)

Alternative claim for misrepresentation is a separate cause of action

  • HC erred in overlooking fact that alternative claim for misrepresentation was separate cause of action that sought not the specific damages in claim for retention sum, but for general damages to be assessed for misrepresentation
  • Evidence did not support submission that there was a joint effort to cause financier to release loan. Clearly, appellants were particularly concerned that retention sum was deposited as they faced payment of real property gains tax.

The judgment may also be viewed here

Customs

Mehdi Dadashi Havadaragh v Ketua Pengarah Jabatan Kastam DiRaja Malaysia & Ors [2015] 4 CLJ 607; [2015] AMEJ 320 (CA)

Written notice for return or release of cash monies within one calendar month

  • When any goods are seized, but there is no prosecution arising from such seizure and there is no claim made in respect of those goods within one calendar month, then and only then are the goods "deemed to be forfeited"
  • Appellant did effectively assert he was the owner of seized USD350,000
  • Statement recorded by customs officer who seized the monies satisfied requirement of 'written notice to a senior officer of customs that he claims the same' as set out in sub-section 128(2) Customs Act 1967

The grounds of the majority decision may also be viewed here

Damages

Fadzil Harun v Mohd Azrul Md Ariffin & Anor [2015] 3 AMR 427 (CA)

Claim for contribution from joint tortfeasor

  • Motorist entitled to pursue rights of contribution or indemnity from motorcyclist of up to 70% of damages awarded against pillion rider. As quantum of damages was not disputed, judge erred in law in dismissing motorist's counterclaim.

The judgment may also be viewed here

Labour Law

Tan Poh Thiam v Industrial Court of Malaysia & Anor Civil Appeal No J-01- 414-12-2013 (CA)

Acts or omissions treated as misconduct

  • Allegations, even if true, did not amount to misconduct and warrant dismissal on just cause or excuse
  • Some allegations, even if true, were stale and/or sterile allegations that could be said to have been engulfed by doctrine of condonation
  • Industrial Court had failed to first decide whether complaint and/or charges amounted to misconduct; also failed to do a balancing exercise of the conduct of parties and their respective responsibilities

The grounds of judgment may be viewed here

Land Law

Udiya Chandran a/l Subramaniam v Loo Tak Lam [2015] AMEJ 316; [2015] 1 LNS 104 (CA)

Annulment of transfer of property

  • If a witness is available and appellant could have called but did not, then fair and just to draw an adverse inference. But if he did not know, or could not find the witness, these explained why he did not call and that it was unfair and unjust in the circumstances to draw an adverse inference.
  • Reasoning in High Court grounds of judgment missed forest for the trees
  • Transaction by no means a sale and purchase and a rental back; terms consistent with loan for specific term. This supported appellant's version that it was a loan agreement for 36 months. Registration of a transfer through forms signed in blank, while appellant was led to believe the documents were for a loan, was clearly a fraud.

The grounds of judgment may also be viewed here

Chua Eng Wei & Anor v Liow Eng Keong & Anor [2015] 4 CLJ 1027; [2015] AMEJ 696 (CA)

Whether Forms 14A void pursuant to s 26 Contracts Act 1950

  • Patently clear that transfer was not for monetary consideration but on account of natural love and affection
  • Exception under para (a) of s 26 Contracts Act 1950 did not apply; defendants could not avail themselves of benefit of s 26(a) because they were not near relations
  • Resultant transfer of ownership under Forms 14A liable to be set aside pursuant to sub-sections (2)(b) and (3) of s 340 National Land Code 1965

The grounds of judgment may also be viewed here

Tort

K Siladass (sued as partner of a firm practising under the name K Siladass & Partners) v CIMB Bank Bhd Civil Appeal No W-02(IM) (NCVC)- 1362-08-2014 (CA)

Whether partner of legal firm entitled to pursue second third party proceedings after having agreed to enter consent judgment without admission of liability

  • Only "anomaly" was partner's insistence that the payment was without an admission of liability; effectively accepted responsibility in law for loss suffered by bank, and made good that loss to the extent of RM125k. To that extent, therefore, it was clear that he was effectively "liable" or "responsible in law" to plaintiff in that sum of money.
  • Having accepted such responsibility, he was entitled to seek contribution from CIMB, which was another or joint tortfeasor

The grounds of judgment may be viewed here

The HC grounds of judgment may be viewed here or see [2014] 1 LNS 977

Siew Yaw Jen v Majlis Perbandaran Kajang and another appeal [2015] 5 CLJ 189; [2015] AMEJ 456 (CA)

Whether action barred by limitation; registered proprietor's refusal to construct retaining walls constituted negligence and council estopped from claiming reliefs claimed in action

  • Cause of action for alleged neglect in relation to construction of retaining walls arose in 2001, not when letter of demand was finally issued in October 2010. Claim barred by limitation by date of its filing on 25 October 2011.
  • Appellate court could not see how registered proprietor's refusal to construct retaining walls after council demanded that it do so could form basis of negligence
  • Ample evidence to show council knew of constraints faced by registered proprietor in relation to construction of retaining walls and accepted that an earth slope was an adequate alternative, and hence proceeded to grant Certificate of Fitness for Occupation

The judgment may also be viewed here

Footnotes

~ 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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