Legal Updates May 2013 Cases Administrative Law Wong Kin Hoong & Anor (suing for themselves and on behalf of all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Director General of the Department of Environment & Anor Civil Appeal No 01-1-01-2012 (FC) Principle in Mersing Omnibus and Ravindran still good law http://kehakiman.gov.my/directory/judgment/file/01-1-01- For the Court of Appeal decision, see [2012] 4 AMR 330 or www.kehakiman.gov.my/directory/judgment/file/w-01-152_tahun_2009.pdf For the High Court grounds of decision, see [2011] 4 AMR 274; [2010] MLJU^ 1032 See also http://thestar.com.my/news/story.asp?file=/2012/9/7/courts/11985575&sec =courts Arbitration TNB Fuel Services Sdn Bhd v China National Coal Group Corp Civil Appeal No B-02(IM)-2499-10-2012 (CA) Trial judge erred in not considering application for injunction on the basis of s 9(5) Arbitration Act 2005; failed to appreciate balance of convenience was also in favour of fuel supplier http://kehakiman.gov.my/directory/judgment/file/b-02(im)-2499-10- Bankruptcy Pilecon Realty Sdn Bhd v Public Bank Berhad & Ors and another appeal [2013] 3 MLJ 1; [2013] 2 CLJ 893 (FC)
Bank failed to meet statutory limit of six months to sell charged property and therefore not entitled to interest http://kehakiman.gov.my/directory/judgment/file/02-71_&_72-2011(w).pdf Civil Procedure Taiwan Chief Precision Technology Sdn Bhd (formerly known as Li Yo Electronics Sdn Bhd) v Tenaga Nasional Berhad Civil Appeal No J- 02(NCvC)-3148-12-2011 (CA) Sufficient evidence to show absence of any basis for amount of revenue loss to be calculated from February 2010 www.kehakiman.gov.my/directory/judgment/file/j-02%28ncvc%29-3148- 12-2011.pdf For the High Court grounds of decision, see [2011] MLJU 975 Ma Boon Lan v UOB Kay Hian Pte Ltd (previously known as Kay Hian Pte Ltd) and another appeal Civil Appeal No Q-02(IM)-2017-2011 (CA) JC erred in deciding service out of jurisdiction on UOB Kay Hian was defective http://kehakiman.gov.my/directory/judgment/file/q-02(im)-2017-2011.pdf For the High Court ruling, see [2011] MLJU 1233 Huawei Tech Investment Co Limited v Transition Systems (M) Sdn Bhd Civil Appeal No W-02(NCC)(W)-388-02-2012 (CA) Trial judge ought to have struck out respondent s claim in second suit summarily under doctrine of res judicata http://kehakiman.gov.my/directory/judgment/file/w-02(ncc)(w)-388-02- See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235; [2013] 3 AMR 385 (CA) Statement of claim not appropriate to be struck out under O 18 r 19(1)(a) Rules of the High Court 1980
www.kehakiman.gov.my/directory/judgment/file/b-02%28im%29-588-03- Tenaga Nasional Bhd v Claybricks & Tiles Sdn Bhd [2013] 3 MLJ 279 (CA) Not an obviously unsustainable case to be struck out summarily pursuant to O 14A RHC 1980 www.kehakiman.gov.my/directory/judgment/file/w- 02%28IM%29%28NCVC%29-2467-09-2011.pdf For the High Court grounds of decision, see [2011] MLJU 976 (BM) Companies and Corporations Lim Eng Chuan Sdn Bhd v United Malayan Banking Corp & Anor [2013] 3 MLJ 161 (FC) Winding-up order against borrower did not vitiate or revoke power of attorney granted to bank in the debenture www.kehakiman.gov.my/directory/judgment/file/02%28f%29-78-12-2011%28b%29.pdf For the Court of Appeal decision, see [2011] 1 MLJ 486 For the High Court grounds of decision, see [2005] 4 MLJ 172; [2005] 1 CLJ 271 Contract Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd Civil Appeal No A- 02(NCVC)(W)-1174-05-2012 (CA) Findings of trial judge were against weight of evidence www.kehakiman.gov.my/directory/judgment/file/a- 02%28NCVC%29%28W%29-1174-05- For the High Court grounds of decision, see [2012] 2 AMCR ~ 555 Dream Property Sdn Bhd v Atlas Housing Sdn Bhd Civil Appeal No J-02-3018-12-2011 (CA) Purchaser entitled to recover costs of construction of mall; claim for
compensation met the three conditions required http://kehakiman.gov.my/directory/judgment/file/j-02-3018-12-2011.pdf For the High Court grounds of decision, see [2007] 1 AMR 105; [2007] 8 MLJ 639 Bina Jati Sdn Bhd v Globe Engineering Sdn Bhd [2013] 3 AMR 1; [2012] MLJU 1501 (CA) Payment from the owner was a condition precedent to main contractor s obligation to make payment to sub-contractor Asiapools (M) Sdn Bhd v IJM Construction Sdn Bhd followed http://kehakiman.gov.my/directory/judgment/file/w-02-1129-2010.pdf For the High Court grounds of judgment, see [2010] LNS * 279; [2010] MLJU 311 Tieh Boon Tuck v Evonne Lee Pei Chen & Anor Civil Appeal No W- 02(NCVC)(W)-2087-09-2012 (CA) Trial judge erred in not granting order for specific performance http://kehakiman.gov.my/directory/judgment/file/w-02(ncvc)(w)-2087-09- Geopancar Sdn Bhd v Visage Engineering Sdn Bhd [2013] 3 CLJ 355; [2013] 1 AMR 582; [2012] MLJU 1323 (CA) Failure of main contractor to prove alleged loss held to be fatal Lee Chin Huat & Anor v Choo Keng Hee & Anor [2013] 3 MLJ 94 (CA) Title deed wrongly released by solicitors to housing development firm, which refused to return it; solicitors should honour undertaking by refunding purchase price with interest to the purchasers http://kehakiman.gov.my/directory/judgment/file/j%e2%80%9302-1899_tahun_2009.pdf Insurance
AXA Affin Assurance Berhad v MTD Construction Sdn Bhd Civil Appeal No W-02-1600-2011 (CA) Insurer failed to discharge burden of proving slope failures and landslips were due to faulty design Liability of insurer to indemnify main contractor reduced to 50% of losses payable to the latter The grounds of judgment may be viewed here: http://kehakiman.gov.my/directory/judgment/file/w-02-1600-2011.pdf For the High Court grounds of decision, see [2011] 2 AMCR 681 American International Assurance Co Ltd v Nadarajan a/l Subramaniam Civil Appeal No W-02-2987-2010 (CA) Insured not of utmost good faith (uberrimae fidei) when he informed insurer that he was earning an estimated annual income of RM150,000 when he was only making RM50,000 Beneficiary failed to show insured had died as the result of an accident http://kehakiman.gov.my/directory/judgment/file/w-02-2987-2010.pdf For the High Court grounds of decision, see [2010] MLJU 1775 Partnership Tai Foong Lam v Hamdi Abdullah & Ors [2013] 3 MLJ 72; [2013] 2 AMR 50; [2012] 1 LNS 923 (CA) No agreement that goodwill of Abdullah Chan was to be divided between partners Tort Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd Civil Appeal No P-02-544-2011 (CA) Registered proprietor s claim for damages should not be allowed as no evidence was led to show how it came to the figure Issues of negligence and vicarious liability were never pleaded yet considered by High Court http://kehakiman.gov.my/directory/judgment/file/p-02-544-2011.pdf
Jee Nyen Chong & Ors v Chong Jit Leong & Ors Civil Appeal No Q-02-2822- 2011/2012 (CA) Pleadings not bad in law for stating impugned articles in their entirety http://kehakiman.gov.my/directory/judgment/file/q-02-2822.pdf For the High Court ruling, see http://malaysianlaw.my/attachments/s-22-228-10- III_Chong_Jit_LeongvJee_Nyen_Chong_62159.pdf UNITED KINGDOM Property Day & Anor v Hosebay Ltd and another appeal [2013] 3 MLRA 165; [2012] UKSC 41 (SC) Building wholly used for commercial purposes is not reasonably called a house See also www.supremecourt.gov.uk/decidedcases/docs/uksc_2010_0147_judgment.pdf http://ukscblog.com/case-comment-day-v-hosebay-ltd-howard-de-walden-vlexgorge and www.forsters.co.uk/cmsfiles/pdf/nrr_sj_property_231012.pdf www.manches.com/content/resources/files/siobhan%20jones%20article%20 NLJ%281%29.pdf For the Court of Appeal decision, see www.bailii.org/ew/cases/ewca/civ/2010/748.html See also http://links.cecollect.com/811/1515/7536_cm1_req%20article%203.pdf#pa ge=1
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