DOCSLIB.ORG

Journal Malaysian Judiciary

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Journal Malaysian Judiciary JOURNAL JOURNAL OF THE MALAYSIAN JUDICIARY MALAYSIAN THE OF JOURNAL OF THE MALAYSIAN JUDICIARY July 2021 Barcode July 2021 ISSN 0127-9270 JOURNAL OF THE MALAYSIAN JUDICIARY July 2021 JOURNAL OF THE MALAYSIAN JUDICIARY MODE OF CITATION Month [Year] JMJ page ADMINISTRATIVE SERVICE Publication Secretary, Judicial Appointments Commission Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya www.jac.gov.my Tel: 603-88803546 Fax: 603-88803549 2021 © Judicial Appointments Commission, Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya, Malaysia. All rights reserved. No part of this publication may be reproduced or transmitted in any material form or by any means, including photocopying and recording, or storing in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication, without the written permission of the copyright holder, application for which should be addressed to the publisher. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Views expressed by contributors in this Journal are entirely their own and do not necessarily reflect those of the Malaysian Judiciary, Judicial Appointments Commission or Malaysian Judicial Academy. Whilst every effort has been taken to ensure that the information contained in this work is correct, the publisher, the editor, the contributors and the Academy disclaim all liability and responsibility for any error or omission in this publication, and in respect of anything or the consequences of anything done or omitted to be done by any person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication. ISSN 0127-9270 (bi-annually) Published by Judicial Appointments Commission Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya, Malaysia. Editing, design and layout by THE MALAYSIAN JUDICIAL ACADEMY CHAIRMAN The Rt. Hon. Tun Tengku Maimun binti Tuan Mat Chief Justice MEMBERS The Rt. Hon. Tan Sri Rohana binti Yusuf President of the Court of Appeal The Rt. Hon. Tan Sri Dato’ Sri Azahar bin Mohamed Chief Judge of Malaya The Rt. Hon. Dato’ Abang Iskandar bin Abang Hashim Chief Judge of Sabah and Sarawak Justice Datuk Seri Haji Mohd Zawawi bin Salleh Judge of the Federal Court Justice Datuk Nallini Pathmanathan Judge of the Federal Court Justice Datuk Vernon Ong Lam Kiat Judge of the Federal Court SECRETARY Mr. Qalam Zainuddin bin Sani Secretary, Judicial Appointments Commission PUBLICATION COMMITTEE OF THE MALAYSIAN JUDICIAL ACADEMY MANAGING EDITOR Justice Datuk Nallini Pathmanathan Judge of the Federal Court MEMBERS Justice Dato’ Zabariah binti Mohd. Yusof Judge of the Federal Court Justice Dato’ Lee Swee Seng Judge of the Court of Appeal Justice Darryl Goon Siew Chye Judge of the Court of Appeal Justice Mohd. Nazlan bin Mohd. Ghazali Judge of the High Court of Malaya Mr. Qalam Zainuddin bin Sani Secretary, Judicial Appointments Commission Ms. Adibah Al-Husna binti Abdul Rahim Deputy Secretary, Judicial Appointments Commission SECRETARY Dr. Noradura binti Hamzah Judicial and Legal Officer PANEL OF REFEREES Justice Belinda Ang Judge of the Supreme Court Singapore Justice See Kee Oon Judge of the Supreme Court Singapore Justice Prateek Jalan Judge of the High Court of Delhi India Justice Mark Leeming Judge of the Court of Appeal of the Supreme Court of New South Wales Australia David Pittaway QC Head of Hailsham Chambers, London United Kingdom Professor Leong Wai Kum National University of Singapore Singapore Associate Professor Low Chee Keong CUHK Business School Hong Kong PREFACE Legal scholarship requires evolution. Rather like Zeno’s paradox, the classical mathematical theory that postulates that motion is an illusion, in that you can never reach an end-point, the law is always approaching, but never reaching consistency. It continually evolves, adopting new principles to meet the necessities of the times, and the present state of things, while retaining its old principles from history which have not been shed.1 It is this transformation of ideas in the law which evidences the evolution of legal scholarship. In its own distinct style, the Journal of the Malaysian Judiciary encourages and makes contribution to such legal evolution in the context of the continually evolving Malaysian common law. It fosters the scrutiny and review of seemingly self-sufficient theories of law. Our learned and knowledgeable contributors have examined and analysed a varied range of legal subjects, which are both stimulating and of topical interest. These articles range from the insightful analyses in contract law questioning, inter alia, the seemingly settled position relating to implied terms in Justice Wong Kian Kheong’s treatise, and the ever-challenging law of restitution with its nexus to section 71 of the Contracts Act 1950 in Low Weng Tchung’s discourse, to the consideration of the timeless issue of the right to counsel under the Federal Constitution with its varied complexities and permutations by Justice Wan Ahmad Farid bin Wan Salleh. Of considerable topical and practical importance is the article by Justice Wong Hok Chong on the law relating to committal proceedings in civil contempt. This is a complex issue fraught with technical matters of procedure apart from the difficulties of the substantive law. His treatment of the subject is skillful and thorough, giving the reader an up-to-date account of the subject, which is easy to comprehend. It will undoubtedly be of substantial use for reference. The law relating to insurance and indemnity for directors is comprehensively and meticulously explained in the context of the Companies Act 2016 and contrasted with the previous position under the former Companies Act 1965 by Justice Quay Chew Soon. It provides the reader with a complete digest on the subject. 1 See article entitled “Oliver Wendell Holmes Jr and the Darwinian Common Law Paradigm” by Allen Mendenhall in the European Journal of Pragmatism and American Philosophy, December 2015. viii Preface July [2021] JMJ Datuk Dr. Prasad Abraham, former Judge of the Federal Court, who is the present Deputy Director of the Asian International Arbitration Centre, has favoured us with an edifying article reviewing recent decisions in our courts, and advocating the use of section 37(6) of the Arbitration Act 2005 in appropriate cases, as an alternative to a less interventionist approach by the courts. Recent developments in the common law, in relation to tortious claims by secondary victims in the United Kingdom, constitute the subject matter of the article by our overseas referee, David Pittaway QC, who is renowned for his expertise in this area. The article is co-authored by Thomas Crockett and points to the seemingly endless problem the English Judiciary has grappled with, in an attempt to find a just and workable classification of the “control measures” for secondary victim claims, which properly balance the competing interests of society. In the area of constitutional law, we have the benefit of an article from Dr. Gan Chee Keong, Senior Federal Counsel in the legal division of the Ministry of Domestic Trade and Consumer Affairs. It explores the range of constitutional rights and remedies provided for in relation to fundamental rights in India, and as such, presents an informative and useful study which serves to stimulate and provoke debate on the comparative position in our jurisdiction. Readers will no doubt enjoy the invigorating and novel contribution from Justice Faizah Jamaludin and Dato’ Mohammad Faiz Azmi, which underscores the evolution of the law into areas like climate change. The contributors undertake a fascinating journey through this subject on both a national and an international level before relating it to our corporate governance principles (more particularly in relation to directors’ duties) and highlighting the need for specific legislation in this regard. In this our 12th edition, we, the Editorial Committee, are both grateful and appreciative of the contributions made by our contributors. The time and effort they dedicated, is evident from the quality of their legal writing. It was a considerable pleasure to curate this series of articles. On behalf of the Editorial Committee Nallini Pathmanathan CONTENTS When Can a Contractual Term be Implied? Justice Wong Kian Kheong ..................................................................................1 A Social Licence to Operate: The Impact of Climate Change on Directors’ Duties in Malaysia Justice Dato’ Faizah Jamaludin and Dato’ Mohammad Faiz Azmi ..................24 The Right to Counsel under Article 5(3) of the Federal Constitution: The Continuing Saga Revisited Justice Wan Ahmad Farid bin Wan Salleh .........................................................54 Indemnity and Insurance for Directors and Officers Justice Quay Chew Soon ....................................................................................78 Committal Proceedings: Civil Contempt Justice Wong Hok Chong .................................................................................109 A Balancing Act: Advocating for Section 37(6) of the Arbitration Act 2005 Datuk Dr Prasad Sandosham Abraham ..........................................................132 Secondary Victim Claims: A Failure of Common Law or Common Sense? David Pittaway QC and Thomas Crockett ......................................................145 Constitutional Remedies in India: Salient Features and Impacts of
Load more

Recommended publications
  • 09 Lim Index.Indd 142 5/16/08 3:10:49 PM Index 143
    INDEX 1982 Federal election, 82 Anwar Ibrahim, 66, 69, 109 1994 Sabah State elections, 81 Anti-Corruption Agency, 62 Asek bin Pintar, 96 A Assistant Residents, 21 ABC system, 84–86, 99–100, 120 Association for the Relief of A. G. Sahari, Datuk Haji, 106 Calamity, 36 Abell, Anthony (Sir), 57 Abdilah Hassan, 80 B Abdul Rahman (Tunku), see Tunku Bajau, 16 Abdul Rahman hostility with Kadazan-Dusun Abdul Razak (Tun), see Tun Abdul communities, 18 Razak Bank Islam Malaysia, 69 Aceh, 12 Bank Kerjasama Rakyat, 62 Adat rituals, 113 Banten, 12 Administration of Muslim Law Barisan Nasional, 1, 6, 53 Enactment, 109 constitutional amendments, 54 Advisory Council for Native Affairs expulsion of USNO from, 77–78 (ACNA), 31 Basel Church, 30 membership, 32, 34 BERJAYA administration, 63, 68 Affendi Stephen, Haji, 80 developmentalist approach to Ahmad Raffae, Pangiran Haji, 50 Islamization, 122 Alcock, Rutherford (Sir), 20, 39 economic transformation under, Aliuddin, A.K., 63 82–86 Amanah Saham Nasional, 120 failing to live up to multiracial Amanah Saham Rakyat Sabah, 89, pledges, 122 99 financial allocation for Islamic Amanah Saham Rakyat, 89 activities, 107 Amanah Saham Tun Hj Datu Islamization drive, 120 Mustapha, 88 political economy, 84–86 Angkatan Belia Islam (ABIM), 69 setting up of training courses, 94 142 09 Lim Index.indd 142 5/16/08 3:10:49 PM Index 143 BERJAYA Corporate Governance C institutional expansion of, Chartered Company Territory, 39 87–89 China BERJAYA party, 7, 56 education curriculum, 30 1981 State Elections, 78 China Borneo Company,
    [Show full text]
  • (Incorporated in Malaysia) (Company No
    (Incorporated in Malaysia) (Company No. 3907-W) [This page is intentionally left blank] CONTENTS 2 Corporate Information 3 - 5 Profile of Board of Directors 6 Group Financial Highlights 7 - 9 Chairman’s Statement 10 - 13 Audit and Risk Management Committee Report 14 - 16 Statement On Corporate Governance 17 Statement On Internal Control 18 - 54 Financial Statements 55 List of Properties/Material Contracts 56 Statement of Directors’ Shareholdings 57 - 59 Statistics of Shareholdings 60 - 62 Notice of Annual General Meeting Form of Proxy CORPORATE INFORMATION BOARD OF DIRECTORS AUDITORS Tan Sri Datuk Amar Chong Siew Fai Ernst & Young - Chairman Chartered Accountants Level 23A, Menara Milenium Chan Kien Sing Jalan Damanlela Mark Wee Liang Yee Pusat Bandar Damansara Robert Yong Kuen Loke 50490 Kuala Lumpur Derek Chin Chee Seng Lim Meng Kwong REGISTERED OFFICE Heng Kiah Choong John Ko Wai Seng 11th Floor, Menara Berjaya (Alternate Director to Mark Wee Liang Yee) KL Plaza, 179 Jalan Bukit Bintang 55100 Kuala Lumpur SECRETARIES Tel: 03-2935 8888 Fax: 03-2935 8043 Su Swee Hong (MAICSA No. 0776729) Wong Pooi Cheong (MAICSA No. 0782043) PRINCIPAL BANKERS AUDIT AND RISK MANAGEMENT COMMITTEE United Overseas Bank (Malaysia) Berhad Bumiputra-Commerce Bank Berhad Tan Sri Datuk Amar Chong Siew Fai - Chairman/Independent Non-Executive Director STOCK EXCHANGE LISTING Chan Kien Sing Main Board of Kuala Lumpur Stock Exchange - Non-Independent/Non-Executive Director STOCK SHORT NAME Heng Kiah Choong - Independent Non-Executive Director MATRIX (3239) SHARE REGISTRARS PLACE OF INCORPORATION AND DOMICILE Berjaya Registration Services Sdn Bhd Malaysia Lot C1-C3, Block C 2nd Floor, KL Plaza 179 Jalan Bukit Bintang 55100 Kuala Lumpur Tel: 03-2145 0533 Fax: 03-2145 9702 MATRIX INTERNATIONAL BERHAD Incorporated in Malaysia (Company No.
    [Show full text]
  • Journal Malaysian Judiciary
    JOURNAL JOURNAL OF THE MALAYSIAN JUDICIARY MALAYSIAN THE OF JOURNAL OF THE MALAYSIAN JUDICIARY January 2018 January 2018 Barcode ISSN 0127-9270 JOURNAL OF THE MALAYSIAN JUDICIARY January 2018 JOURNAL OF THE MALAYSIAN JUDICIARY MODE OF CITATION Month [Year] JMJ page ADMINISTRATIVE SERVICE Publication Secretary, Judicial Appointments Commission Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya www.jac.gov.my Tel: 603-88803546 Fax: 603-88803549 2018 © Judicial Appointments Commission, Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya, Malaysia. All rights reserved. No part of this publication may be reproduced or transmitted in any material form or by any means, including photocopying and recording, or storing in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication, without the written permission of the copyright holder, application for which should be addressed to the publisher. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Views expressed by contributors in this Journal are entirely their own and do not necessarily reflect those of the Malaysian Judiciary, Judicial Appointments Commission or Malaysian Judicial Academy. Whilst every effort has been taken to ensure that the information contained in this work is correct, the publisher, the editor, the contributors and the Academy disclaim all liability and responsibility for any error or omission in this publication, and in respect of anything or the consequences of anything done or omitted to be done by any person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication.
    [Show full text]
  • INDIGENOUS GROUPS of SABAH: an Annotated Bibliography of Linguistic and Anthropological Sources
    INDIGENOUS GROUPS OF SABAH: An Annotated Bibliography of Linguistic and Anthropological Sources Part 1: Authors Compiled by Hans J. B. Combrink, Craig Soderberg, Michael E. Boutin, and Alanna Y. Boutin SIL International SIL e-Books 7 ©2008 SIL International Library of Congress Catalog Number: 2008932444 ISBN: 978-155671-218-0 Fair Use Policy Books published in the SIL e-Books series are intended for scholarly research and educational use. You may make copies of these publications for research or instructional purposes (under fair use guidelines) free of charge and without further permission. Republication or commercial use of SILEB or the documents contained therein is expressly prohibited without the written consent of the copyright holder(s). Series Editor Mary Ruth Wise Volume Editor Mae Zook Compositor Mae Zook The 1st edition was published in 1984 as the Sabah Museum Monograph, No. 1. nd The 2 edition was published in 1986 as the Sabah Museum Monograph, No. 1, Part 2. The revised and updated edition was published in 2006 in two volumes by the Malaysia Branch of SIL International in cooperation with the Govt. of the State of Sabah, Malaysia. This 2008 edition is published by SIL International in single column format that preserves the pagination of the 2006 print edition as much as possible. Printed copies of Indigenous groups of Sabah: An annotated bibliography of linguistic and anthropological sources ©2006, ISSN 1511-6964 may be obtained from The Sabah Museum Handicraft Shop Main Building Sabah Museum Complex, Kota Kinabalu, Sabah,
    [Show full text]
  • K a N D U N G a N
    PARLIMEN KESEMBILAN Ninth Parliament PENGGAL KEEMPAT Fourth Session MESYUARAT PERTAMA First Meeting Jilid IV Bil. 22 Hari Rabu 6 Mei 1998 K A N D U N G A N JAWAPAN-JAWAPAN MULUT BAGI PERTANYAAN-PERTANYAAN (Ruangan ) RANG UNDANG-UNDANG: Rang Undang-undang Dadah Berbahaya (Pindaan) 1998 (Ruangan ) Rang Undang-undang Tatacara Mal Mahkamah Syariah (Wilayah-Wilayah Persekutuan) 1997 (Ruangan ) Rang Undang-undang Kerja (Pindaan) 1998 (Ruangan ) USUL: Waktu Mesyuarat dan Urusan Dibebaskan Daripada Peraturan Mesyuarat (Ruangan ) 2 AHLI-AHLI DEWAN RAKYAT Yang Berhormat Tuan Yang di-Pertua, Tan Sri Dato’ Mohamed Zahir bin Haji Ismail, P.M.N., S.P.M.K., D.S.D.K. J.M.N. Yang Amat Berhormat Perdana Menteri dan Menteri Dalam Negeri, Dato’ Seri Dr. Mahathir bin Mohamad, D.K.I., D.U.K., S.S.D.K., S.S.A.P., S.P.M.S., S.P.M.J., D.P., D.U.P.N., S.P.N.S., S.P.D.K., S.P.C.M., S.S.M.T., D.U.N.M., P.I.S. (Kubang Pasu) Yang Amat Berhormat Timbalan Perdana Menteri dan Menteri Kewangan, Dato’ Seri Anwar bin Ibrahim, D.U.P.N., S.S.A.P., S.S.S.A., D.G.S.M., S.P.N.S., S.P.D.K., D.M.P.N. (Permatang Pauh) Yang Berhormat Menteri Pengangkutan, Dato’ Seri Dr. Ling Liong Sik, D.G.S.M., S.P.M.P., D.P.M.S., D.P.M.P. (Labis) “ Menteri Kerja Raya, Dato’ Seri S. Samy Vellu, S.P.M.P., S.P.M.J., D.P.M.S., P.C.M., A.M.N.
    [Show full text]
  • Volume 30, 1999
    BORNEO RESEARCH BULLETIN ISSN: 0006-7806 VOL 30 PAGE NOTES FROM THE EDITOR I MEMORIALS Roland (Ro) Bewsher, 0.B E Bill Smythies Tuton Kaboy RESEARCH NOTES A Bridge to the Upper World: Sacred Language of the Ngaju: Jani Sri Kuhnt-Saptodewo A Note on Native Land Tenure in Sarawak: M. B. Hooker State Law and lban Land Tenure. a Response to Hooker: Reed L. Wadley Conservation and the Orang Sungal of the Lower Sugut, Sabal?: Preliminary Notes: Lye Tuck-Po and Grace Wong Education and Research on Sustainable Land Use and Natural Resource Management: a New Danish- Malaysian University Program: Ole Mertz el al. Wet Rice Cultivation and the Kayanic Peoples of East Kalimantan: Some Possible Factors Explaining their Preference for Dry Rice Cult~vation:Mika Okushima Dayak Kings among Malay Sultans: Stephanus Djuweng The Kingdom of Ulu Are in Borneo's H~story:a Comment: Bernard Sellato The Brooke-Sarawak Archive at Rhodes House Library, Oxford: Bob Reece Papers of the Brookes of Sarawak Kept in Rhodes House Library, Oxford: P.A. Empson FIFTH BIENNIAL MEETINGS BRIEF COMMUNICATIONS ANNOUNCEMENTS BORNEO NEWS BOOK REVIEWS, ABSTRACTS AND BIBLIOGRAPHY The Borneo Researclr Bulletin is published by the Borneo Research Council. Please address all inquiries and contributions for publication to Clifford Sather, Editor, Borneo Research Bulletin, Cultural Anthropology, P.O. Box 59, FIN-00014 University of Helsinki, FINLAND.Single issues are available at US $20.00. I BOI-neoReseal-ch Bulletin Vol. 30 Vol. 30 Borneo Research Bulletin contributions to this superb collection, and, as an anthropologist, I would note that the held on 10-14 July 2000 at Crowne Plaza Riverside Hotel, Kuching, Sarawalc.
    [Show full text]
  • PP V. MUHAMMAD RASID HASHIM HIGH COURT
    424 Current Law Journal [2011] 3 CLJ PP A v. MUHAMMAD RASID HASHIM HIGH COURT MALAYA, SHAH ALAM B ABANG ISKANDAR J [CRIMINAL TRIAL NO: 45-31-2006] 15 NOVEMBER 2009 CRIMINAL LAW: Penal Code - Sections 302 and 376 - Murder and C rape - Circumstantial evidence - Deceased raped and murdered - Whether prosecution established prima facie case - Whether defence raised reasonable doubt - Whether circumstantial evidence suggested or lent support to inference of guilt - Keys to deceased apartment found on accused - Accused trying to escape arrest by police - Accused seen standing D near deceased apartment - Accused DNA found on murder weapon and on deceased - Injuries suffered by deceased not self-inflicted and were defensive wounds - Whether lies perpetrated by accused corroborated his guilty mind - Whether injuries sustained by deceased led to inference of non-consensual sexual intercourse - Whether absence of fingerprint evidence E inconsequential EVIDENCE: Circumstantial evidence - Conduct - Accused charged with murder and rape - Whether conduct of accused amounted to unequivocal evidence of guilty state of mind - Proper inference to be drawn from F conduct of accused - Whether evidence of such conduct admissible under s. 8 of Evidence Act 1950 EVIDENCE: Circumstantial evidence - Securing conviction of - Consideration of evidence in its entirety - Murder and rape - Whether led to conclusion that accused and no one else had raped and murdered G victim EVIDENCE: Fingerprint evidence - Charge of murder and rape - Presence of evidence of positive mixed DNA profile match-up between accused and deceased - Whether absence of physical fingerprints of accused H inconsequential The deceased (‘Siti Zawiah’) was supposed to return to Kelantan in the evening of 9 March 2006 after having stayed a few days with her friends Nur Hanani (SP3) and Zalina (SP4) at their I apartment in Rawang, Selangor.
    [Show full text]
  • Imagereal Capture
    Five ‘May Day for Justice’1 H P. Lee ’ High among men's finer traits is their love of justice. Through history’s tornadoes and fitful gusts its flame has kept alive. Sometimes spluttering and flickering, sometimes waxing, sometimes waning, it has always been a reminder that men may look for a determination of their rights to a principle mightier than might alone. — C. G. Weeramantiy, Law in Crisis, at p.vii. On 8 August 1988, Tun Salleh Abas, the Lord President of Malaysia (the highest judicial officer of the land) was effectively ‘removed’ from office. In common parlance, he was ‘sacked’. His removal was made pursuant to the recommendation of a special Tribunal appointed purportedly in accordance with the provisions of the Malaysian Constitution. To the observer (who is unfamiliar with Malaysian politics) and to some Malaysian citizens (confronted with a govern­ ment controlled media), the removal seemed above board: there had been scrupulous adherence to the Constitution of Malaysia. May Day For Justice is the anguished account by Tun Salleh of the convulsion which occurred in the Malaysian judiciary and which resulted in his removal. The account preserves for posterity the shamefulness of the whole saga. It is the harrowing story of a man of simple roots and highest integrity being brought down by a web of lust for political power, greed for self-advancement and plain timidity in the face of a ferocious assault by the Executive on judicial independence. * * t Tun Salleh Abas with K. Das, May Day For Justice Magnus Books, Kuala Lumpur, 1989. * Associate Professor, Faculty of Law, University of Melbourne.
    [Show full text]
  • COURT of APPEAL, MALAYSIA Coram Bintulu Development
    COURT OF APPEAL, MALAYSIA Bintulu Development Authority - vs - Coram Pilecon Engineering Bhd ABDUL KADIR SULAIMAN, JCA ARIFIN ZAKARIA, JCA NIK HASHIM NIK AB. RAHMAN, JCA 23 FEBRUARY 2007 Judgment of the Court Nik Hashim JCA BACKGROUND 1. The arbitrator, Tan Sri Datuk Amar Chong Siew Fai (the former Chief Judge of Sabah and Sarawak) at the request of the appellant and the respondent, referred by way of case stated pursuant to section 22(1)(a) of the Arbitration Act 1952 (the Act) five questions of law for the determination of the High Court. The five questions posed and the answers given by the learned judge as reported in (2004) 5 MLJ 449 are as follows: (1) Whether or not a dispute or difference had arisen between the appellant and the respondent; No. (2) If the answer to (1) above is in the affirmative was there a reference of the dispute or difference by the respondent to the Engineer for a decision?; As the answer to (1) above is „No‟, this question does not arise for consideration. (3) If the answer in (2) above is in the negative can the arbitration be proceeded with and continued further?; Notwithstanding that question (2) was not answered, the answer is „Yes‟ in view of the answer to questions (4) and (5). (4) Alternatively whether the arbitrator has been validly appointed by the parties pursuant to the Letter of Appointment dated the 12 December 2001; Yes. (5) In the further alternative whether the appellant in view of their conduct as stated in the statement of agreed facts is now entitled to dispute the validity of the arbitration proceedings.
    [Show full text]
  • Gurbachan Singh S/O Bagawan Singh & Ors V Vellasamy S/O Pennusamy
    Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors and other appeals (Richard Malanjum CJ [2015] 1 MLJ (Sabah and Sarawak)) 773 A Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals B FEDERAL COURT (PUTRAJAYA) — CIVIL APPEAL NOS 02(f)-58–09 OF 2013 (A), 02(f)-59–09 OF 2013 (A), 02(f)-60–09 OF 2013 (A) AND 02(f)-61–09 OF 2013 (A) C RICHARD MALANJUM CJ (SABAH AND SARAWAK), AHMAD MAAROP, HASAN LAH, ZALEHA ZAHARI AND RAMLY ALI FCJJ 27 NOVEMBER 2014 D Legal Profession — Duties — Client — Dispute over estate land — Allegation that respondent had agreed to purchase land and had made deposit payments — Solicitor bid for land under own name and succeeded — Claim that land was his and transferred ownership into new company — Solicitor informed purchasers that he was not their solicitor — Suggested purchasers to buy back their portions of E estate land — Solicitor-client relationship — Whether to be determined only by reference to retainer — Whether fiduciary entitled to restitution — Whether court entitled to lift corporate veil of company in order to do justice This appeal involved a dispute between clients (‘the respondents’) and their F erstwhile solicitor, the first and second appellants. The subject matter was over an estate land which the respondents claimed to have agreed to purchase and had made some deposit payments. An auction was scheduled and the purchasers became aware that the estate land was going to be put up for sale by tender.
    [Show full text]
  • Sinnaiyah & Sons Sdn Bhd V Damai Setia Sdn
    Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ (Richard Malanjum CJ (Sabah and Sarawak)) 1 A Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd FEDERAL COURT (PUTRAJAYA) — CIVIL APPEAL NO 02(f)–72–10 B OF 2013 (A) RICHARD MALANJUM CJ (SABAH AND SARAWAK), ABDULL HAMID EMBONG, HASAN LAH, ABU SAMAH AND RAMLY ALI FCJJ 10 AUGUST 2015 C Civil Procedure — Fraud — Standard of proof in civil action — Restatement of the law by Federal Court — Whether standard of proof of fraud in civil claims was on balance of probabilities — Whether that standard did not vary even if fraud D alleged was criminal in nature or serious or bore serious consequences — Whether three previous decisions of Federal Court where different standards of proof were applied no longer good law — Whether instant judgment only applicable to present and future cases and could not be used to set aside or review past decisions involving fraud in civil claims E The Federal Court was called upon in the instant appeal to once and for all declare the standard of proof applicable when fraud was alleged in a civil claim in view of conflicting decisions on the point in the past. Acknowledging the uncertainty in the present state of the law and acceding to the request of the F parties herein to revisit the subject, the Federal Court reviewed several leading cases on the point both in Malaysia and in other common law jurisdictions before restating the law on the subject and, in the process, declaring three of its previous decisions on the point as being no longer the law in this country.
    [Show full text]
  • Chapter 3 Contempt of Court in Malaysia
    CORE Metadata, citation and similar papers at core.ac.uk Provided by Durham e-Theses Durham E-Theses THE CONTEMPT POWER: A SWORD OR A SHIELD? A STUDY OF THE LAW AND PRACTICE OF CONTEMPT OF COURT IN MALAYSIA. MOHD-SHERIFF, SHUKRIAH How to cite: MOHD-SHERIFF, SHUKRIAH (2010) THE CONTEMPT POWER: A SWORD OR A SHIELD? A STUDY OF THE LAW AND PRACTICE OF CONTEMPT OF COURT IN MALAYSIA., Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/536/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 THE CONTEMPT POWER: A SWORD OR A SHIELD? – A STUDY OF THE LAW AND PRACTICE OF CONTEMPT OF COURT IN MALAYSIA. SHUKRIAH MOHD SHERIFF A DOCTORAL THESIS SUBMITTED TO DURHAM UNIVERSITY IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY (LAW) 2010 Dedication To my dearest parents: The Late Dato’ Hj.
    [Show full text]