Author: Robin

Ape Electrical Sdn Bhd v Chandra Segar a/l L Marullamulth & Anor and another appeal [2022] MLJU 2251

Robin

COURT OF APPEAL (PUTRAJAYA)
YAACOB MD SAM, RAVINTHRAN PARAMAGURU AND GUNALAN MUNIANDY JJCA
CIVIL APPEAL NOS B-02(NCVC)(W)-1785-09 OF 2018 AND B-02(NCVC)(W)-1786-09 OF 2018
21 September 2022

GROUNDS OF JUDGMENTINTRODUCTION

[1]  Before us are 2 appeals which, for convenience we would refer to as Appeal No. 1785 and Appeal No. 1786 (“1st and 2nd Appeals”). The 1st Appeal is by the 1st Defendant (“D1”) in the civil suit heard by the Learned Judicial Commissioners (“LJC”) in the Shah Alam High Court whereas the 2nd Appeal is by the Plaintiffs (“P1 and P2”) in the same civil suit. The Appellant (D1) in the 1st Appeal is dissatisfied with the LJC’s decision to allow the Plaintiffs’ claim against him and dismiss his counter-claim whereas the Appellants (P1 and P2) in the 2nd Appeal are dissatisfied with the LJC’s decision to invoke S.66 of the Contracts Act, 1950 and consequentially, to order restitution to the original positions 3 pieces of landed properties that originally belonged to the Plaintiffs that were the subject of the suit before the High Court (“the Subject Properties”).

Professor Emeritus Dr Azman bin Awang & Anor v FSBM CTech Sdn Bhd & Anor [2021] MLJU 2227

Robin

HIGH COURT (KUALA LUMPUR)
ADLIN ABDUL MAJID JC
SUIT NO WA-22NCC-310-07 OF 2017
26 September 2021

Lim Kian Leong (Alvin Oh Seong Yew and Jessica Chong Een Min with him) (Sia Siew Mun & Co) for the plaintiffs.
Wong Rhen Yen (Vincent Lim and Emily Wong with him) (Dennis Nik & Wong) for the defendants.

JUDGMENT

(Assessment of Damages)A. Introduction

[1]  The Plaintiffs applied for assessment of damages following a judgment obtained against the Defendants on 28 August 2018 (“Judgment”).

[2]  The court awarded general damages of RM200,000 to the Plaintiffs. The reasons for this decision are as set out below.

Decision

[43]  In coming to this decision, a clear distinction was required to be made between special damages and general damages. It is not disputed that special damages have not been pleaded by the Plaintiffs, and the issue that has come before the court is only on the assessment of general damages, which is clearly ordered in the Judgment.

[44]  The Plaintiffs had set out a list of losses sustained by the Plaintiffs, which they claimed should guide the court in the assessment of damages. The Plaintiffs also claimed damages arising from emotional distress and loss of reputation.

[45]  However, I find that the losses listed fall within the category of special damages, which have not been pleaded. Notwithstanding the fact that these special damages have not been pleaded, I did in any event consider each category of losses set out by the Plaintiffs, to guide me in the assessment of damages claimed. Even then, I found that these damages were not sufficiently proven.

[46]  In relation to damages arising from emotional distress and loss of reputation, I also find that these damages have not been proven.

[47]  I have however taken into account the hardship suffered by the Plaintiff in dealing with Suit No. 1017 and the Fraudulent Trading Action. In this regard, I granted an amount of RM200,000, which I consider to be a fair and reasonable sum of general damages to the Plaintiffs.

Ranjeet Singh Sidhu v Zavarco Bhd and another appeal [2021] MLJU 1196

Robin

COURT OF APPEAL (PUTRAJAYA)
MOHAMAD ZABIDIN MOHD DIAH, HADHARIAH SYED ISMAIL AND LEE HENG CHEONG JJCA
RAYUAN SIVIL NO W-02(NCVC)(W)-1026-05/2018 AND W-02(NCVC)(W)-1040-05/2018
15 July 2021

GROUNDS OF JUDGMENT

[RAYUAN SIVIL NO: W-02(NCVC)(W)-1040-05/2018]

[1]  This Appeal, W-02(NCVC)(W)-1040-05/2018 (“Appeal 1040”), is an appeal from Kuala Lumpur High Court Suit No. 22NCVC- 498-10/2014 (“High Court Suit 498”) and is heard together with Appeal, W-02(NCVC)(W)-1026-05/2018 (“Appeal 1026”), an appeal from Kuala Lumpur High Court Suit No.22NCVC-634- 11/2014 (“High Court Suit 634”).

[2]  High Court Suit 634 is a claim by Ranjeet Singh Sidhu against Zavarco Berhad and there is a counterclaim by Zavarco Berhad against Ranjeet Singh Sidhu. Whilst High Court Suit 498 is a claim by Zavarco PLC, which is Zavarco Berhad’s ultimate holding company against the Ranjeet Singh Sidhu and 3 other individuals namely Loo Seng Kit, Amrit Kaur A/P Manjeet Singh and Hirofumi Ouchi.

[3]  Both Suits are tried together before the learned High Court Judge (“the learned High Court Judge”) who decided as follows: –

HIGH COURT SUIT 634

(i) Dismissing Ranjeet Singh Sidhu’s Claim for Unpaid Advances of RM21,071,008.00; and

(ii) Allowing Zavarco Berhad’s Counterclaim for RM29,412,470.64.

HIGH COURT SUIT 498

(i) Allowing Zavarco PLC’s claim (Zavarco Berhad’s ultimate holding company) against Ranjeet Singh Sidhu, Loo Seng Kit, Amrit Kaur A/P Manjeet Singh and Hirofumi Ouchi for the sum of RM12,069,570.16.

The Experiences of a Dinosaur in the Age of Zoom

Robin

by LIM KIAN LEONG

First, a bit of context.

  • I started chambering in 1982 and was called to the Bar in 1983.
  • In 1982, law firms did not have fax machines or emails.
  • If you wanted to call overseas you had to make the call through a Telekom operator.
  • There were no word processors. We put pen to paper or dictated while our secretaries typed.
  • “Cut and Paste” was done with a scissors, paper and glue.
  • There were no handphones, no Internet, no desktops, no laptops.
  • All submissions were put orally. Written submissions were never done.
  • If Authorities were required, a list had to be furnished to court in advance so that the actual law reports and textbooks could be obtained from the court library and placed in racks in court for judges to read

Fast forward to 16th March 2020. The Prime Minister announced that the Movement Control Order (‘MCO’) was to begin on 18th March 2020. Offices were compelled to close.

One of my partners suggested to me that we should have a lawyers’ meeting by Zoom since we could no longer have physical meetings. My reaction was to ask, “What is Zoom?”.

At first the MCO was for one week so I thought maybe we could KIV the Zoom thing. I also didn’t want to have a virtual meeting that didn’t come with savoury snacks, which were always the highlight of our face-toface
office meetings.

Then the MCO was extended…… Realising that I had to find some way to “meet” my lawyers, I asked how much it would cost and what equipment was required for Zoom. When the answer was “it’s free for 45 mins and can be done on existing handphone, tab, laptop or desktop computer” I gave the go ahead.

At the first office Zoom meeting I heard the phrase “you have to unmute”. I heard it many times that day, but nobody heard me as I didn’t know how to unmute. By the 2nd Meeting I had learned how to unmute.

At first Zoom were meant to be temporary just to keep in touch with our staff. We all expected to go back to “normal” pretty soon.

The Honourable Chief Justice of Malaysia, YAA Tun Tengku Maimun Tuan Mat, as well as Her Ladyship’s predecessor, YAA Tan Sri Richard Malanjum had long been proponents of embracing technology including video technology. Like many if not most “old” lawyers, I had read their various statements on the matter, but my attitude was “it’s good for the young lawyers to learn all this technology stuff but nothing will change until after I retire so no need for me to strain”.

Yet despite efforts to ignore it, technology was inexorably creeping up on me.

Sometime ago, the Courts had introduced this thing called “e-filing”. In “Philadelphia Story”, Tom Hanks, had filed an important court pleading by e-filing but somehow it hadn’t reached the court’s electronic register and that failure was used as a reason to sack him when the real reason was that he had AIDS. Ever since then, I had decided never to trust e-filing. I was vaguely aware that it was going on in my office, but I don’t really remember when we started e-filing or even when we could no longer file the old-fashioned way. It was only during the MCO that suddenly I realised that e-filing had become an essential tool. We couldn’t go on without e-filing. Now, we all had to file documents like Tom Hanks.

Then, there was “e-review”. I can’t remember when the courts introduced it. One day I saw one of my young lawyers “playing” with her handphone when she was meant to be assisting me in a trial. I leaned over to reprimand her, and she whispered that she was “doing an e-review” in another court. I pretended to understand and whispered back “ok, carry on” then forgot about it.

One morning during lockdown, the Court of Appeal live streamed a matter over video. I remember watching with mixed feelings one of which was horror. Horror because I realised that if I was ever to do a video hearing,
I would have to learn how to angle the camera properly. I wasn’t convinced. Maybe we could just wait it out. Just in case I started watching interviews on CNN and Sky News to see how they did it.

Truth be told I never paid much attention to this electronic stuff going on in the background around me but then when MCO became CMCO and we were allowed to go back to office, everything changed.

That was when the proverbial penny dropped.

Around that time, while working through SOPs to re-open our office, we
realised that our lawyers could avoid exposure to the virus and yet still
“appear” in court if we made video available to them in the office. This
was a huge realisation. We had strict office SOPs and “WFH” rotation but
the weakness in the system was we still had to “go to court”. Suddenly
providing Zoom “court” facilities to keep our lawyers safe made sense.

We realised that e-review wasn’t simply about lawyers being able to sit in
one court while handing a CM in another court or not having to drive to
Putra Jaya, Jalan Duta or Shah Alam every morning for routine matters.
Most important, our lawyers didn’t have to be exposed to Covid outside
the office.

Somehow, it all began to make sense.

Being completely ignorant as to how to “set up”, I did the sensible thing,
which was to call my son, Toby, and ask him to handle it. Apart from being a lawyer himself, he is an avid video gamer and You Tuber. Sure enough, he knew exactly what to do and better still, knew how to do it on a shoestring MCO budget. Before long we had three Conference Rooms set up with giant TV screens, cameras and microphones.

Since the court has started offering video hearings, we have grabbed the opportunity to conduct hearings at every level and of every type across the country – all from the safety and comfort of our Conference Rooms. Our first full trial with overseas witnesses has just been fixed. Exciting times ahead!

If there’s one piece of advice I would give to anyone handling litigation by video it would be to set up with a big screen with a proper microphone and camera. Speaking for myself, conducting a hearing and meetings via a big screen with a separate camera and mic compared with doing so via a laptop is as different as night and day. Screen sharing documents on a big screen is no longer a test of eyesight. Moving the camera on its stand enables 3 people to appear on screen sitting around a conference table socially distanced instead of cramped round a laptop breathing on each other. Most important the right camera angle is no problem.

I find that it helps to get in the right frame of mind that our conference rooms are a short walk down a corridor to a section cut off from the main office. The short walk helps generate the “feeling” of “going to court”. I can even carry a bag if a want to. It feels we are leaving the office and going to court and somehow this feels “right”.

By the way, it may also surprise some that I have not had an inperson
meeting with anyone since the MCO started in March 2020. That’s 2020 not 2021. This is the same person who didn’t know what Zoom was last year.

Since the first MCO, our SOP has been not to have face to face meetings in our office or any clients’ offices. We have not changed that SOP. I have had countless productive meetings by Zoom from my home, my office, my car and my patio. Yesterday I moved seamlessly from a Zoom hearing in Putrajaya, to Zoom meetings all over Malaysia and overseas all on the same one day without leaving my office. I never realised how convenient all this technology actually was!

The other day I had a hearing fixed in another state. My opponent had insisted on fixing a physical hearing. As the day approached, I realised that I was actually angry that my opponent was insisting….. he was substantially younger than me but somehow had not “read the memo”. The thought of having to go to the police station to get a letter of permission and then waking up at 6 am to drive outstation filled me not just with dread but actual anger. Why did a fellow lawyer insist on putting us all in danger and also wasting our time? Then two days before the hearing, my associate told me that it had been converted to a video hearing. Under the new rules, following the CJM’s circular, the Judge had exercised discretion to refix all civil matters by Zoom. I have to admit that I let out a small cheer and anger was replaced by relief and even a little happiness. Happiness at a video hearing. It seemed right that the hearing should be by video. The world was suddenly a better place. Was I finally a part of the Zoom Age? Stranger things have happened.

For one case which was carrying on before the MCO we needed 14 packing boxes and a lorry to take the documents to court. The case has been jammed as the only remaining witnesses are locked down overseas.
Our case will now soon proceed by Zoom with the witnesses testifying by Zoom from a secure location in their own countries where incidentally lockdown was just extended due to the “4th wave”. The boxes will be
“transported” by trolly down the corridor to our video room instead of to Court in a lorry.

Of course video hearings are “not the same”. A real litigator goes to court. A real litigator doesn’t sit in the office. But recently I read an interview given by Datuk Seri Gopal Seri Ram. If anyone should be fighting against video hearings it should be Datuk Seri GSR, the consummate court room lawyer. But in his interview, Datuk Seri GSR not only said he has conducted video hearings, but he even went on to say that he enjoys the fact he can do them from the comfort of his office. Somehow reading those words coming from one of the great court lawyers made me feel good. It may still be possible to be a litigator from the comfort of an office. Of course, it is not the same but who’s to say it won’t be better?

In my office building we have a small café that makes great coffee. I can do a case with the aroma of freshly brewed coffee wafting around while sitting in my comfy office chair. No comfy chairs or coffee in court.

And finally, after a long day “in court” all I have to do is close my laptop, turn off the giant screen in front of me and take the short walk down the corridor back to my office. No boxes, bags, or long drive through a jam.
It’s not the same. Its better.

Maybe this dinosaur might put off extinction for a while.

Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 2 MLJ 208

Robin

COUNSEL & SOLICITOR:      

Terence KM Chan (Bryan Goh with him)(Lim Kian Leong & Co) for the respondent.

COURT OF APPEAL (PUTRAJAYA)

Civil Procedure — Judgments and orders — Consequential orders — Whether High Court had inherent jurisdiction/power to grant consequential orders to give effect to its earlier judgment — Whether consequential orders necessary to achieve justice or prevent abuse of process of court — Whether consequential orders particularly useful in providing justice to a party faced with an opponent bent on defying whatever judgment or order pronounced by the court — Whether in such cases the court’s exercise of its inherent power to grant consequential orders did not breach the principle of functus officio or amount to altering or varying the terms of a final judgment — Whether consequential orders often necessary to ‘work out’ the initial judgment so as to give effect to it.

Malayan Banking Bhd v Perbadanan Kemajuan Negeri Selangor & Anor [2019] 12 MLJ 552

Robin

COUNSEL & SOLICITOR:

Tan Keng Teck (Tobias Lim with him)(Lim Kian Leong & Co) for the second respondent.

HIGH COURT (SHAH ALAM) Contract — Breach — Breach of undertaking — Plaintiff argued that first defendant breached written undertaking in failing to forward title of property to plaintiff — Whether first defendant breached written undertaking — Whether first defendant caused damages to plaintiff.

Legal Profession — Duty of care — Negligence — Whether second defendant as firm of solicitors negligent in mistakenly transferred property to third defendant — Whether second defendant could not be held liable as fraudulent act of third defendant broke chain of causation.

Limitation — Accrual of cause of action — When cause of action accrued — Threat to plaintiff’s right to register charge on land — Whether plaintiff’s action statute-barred — Limitation Act 1953 ss 6, 9 & 29.

Hasnul Hanis bin Badrul (t/a in the name and style of ATS Agency Enterprise) v Allianz General Insurance Co (M) Bhd [2019] 8 MLJ 747

Robin

COUNSEL & SOLICITOR:

Tan Keng Teck (Foo Siew Yin with him)(Lim Kian Leong & Co) for the defendant.  

HIGH COURT (KUALA LUMPUR)

Contract — Damages — Termination of contract of agency — Plaintiff insurance agent of defendant — Defendant terminated agency agreement — Whether agency agreement could be terminated pursuant to the agreement by giving 14 working days’ written notice and without having to assign any reason therefore — When plaintiff first had notice of notice to terminate — Effective date of termination — Whether agency agreement wrongfully terminated — Whether plaintiff entitled to loss of commission, loss of reputation, loss of opportunity, loss of future earnings, aggravated damages and exemplary damages.

TRA Mining (M) Sdn Bhd v Thien Hong Teck & Ors and another appeal [2019] 1 MLJ 212

Robin

COUNSEL & SOLICITOR:

Lim Kian Leong (Alvin Oh Seong Yew, Foo Siew Yin and Goh Gin Jhen with him)(Sia Siew Mun & Co) for the respondents.

FEDERAL COURT (PUTRAJAYA) Partnership — Assignment of share in partnership — Power of attorney — Partner absolutely assigned his rights, title and interests in partnership shares to company and executed power of attorney (‘PA’) in favour of company’s director — Partner later became bankrupt — Whether absolute nature of assignment allowed assignee through the PA holder to become partner in bankrupt partner’s place in the partnership — Whether nothing in the deed of assignment or the PA allowed the assignee or PA holder to become partner — Whether fact that the other existing partners were given notice of the assignment and the PA did not mean they had in any way consented to accept assignee as partner — Whether existing partners had locus standi to sue assignee for infringing their legal rights and interests.

Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd and another appeal [2018] 2 MLJ 177

Robin

COUNSEL & SOLICITOR:

Lim Kian Leong (Tan Wei Wei, Chris Lim Su Heng, Nur Khidmah bt Huzaisham and Colin Liew with him)(Chris Lim Su Heng) Civil Appeal Nos 02(f)-7-03 of 2016 (W) and 02(f)-8-03 of 2016 (W) for the respondent.

FEDERAL COURT (PUTRAJAYA)

Company Law — Directors — Duties — Directors’ duties to act in best interest of company in divestments company’s shareholding — Whether directors acted in breach of statutory duties as set out in s 132(1) of the Companies Act 1965 — Whether there was dishonest assistance in various breaches of duty owed — Whether there was conspiracy by lawful and/or unlawful means to injure company vide divestments — Whether there were acts or omissions that caused company to suffer loss and damage in relation to divestments — Whether directors in breach of fiduciary, statutory or common law duties — Whether directors failed to act in best interest of company — Whether such failure caused losses and damages to company.

TAN POH YEE v. CAIRNHILL HOTEL (M) SDN BHD (Consolidated With Case No. 28(6)/4-1141/16 By Court Order Vide Interim Award No. 1780 Of 2017 Dated 12 December 2017) [2019] 3 ILR 549

Robin

COUNSEL & SOLICITOR:

Terence KM Chan (Bryan Goh with him)(Lim Kian Leong & Co) for the second claimant.  

INDUSTRIAL COURT (KUALA LUMPUR)


DISMISSAL: Constructive dismissal – Claimants, amongst other things, having their belongings forcibly removed from their offices and denied access to it – Whether it had amounted to a fundamental breach which had gone to the root of their Contracts of Employment – Factors to consider – Evidence adduced – Effect of – Company’s defence – Whether could be accepted – Whether it had justified the claimants walking out of their employment and claiming constructive dismissal.

EVIDENCE: Documentary evidence – Whether the claimants had been Employees of the Company – Factors to consider – Evidence adduced – Effect of – Whether they had been dismissed by it.