Category: Current Law Journal

COUNSEL & SOLICITOR:
Lim Kian Leong (Fiona Bodipalar with him) (M/s Bodipalar Ponnudurai De Silva) for the Plaintiff.

HIGH COURT

Appeal – Whether Plaintiff’s action is barred by limitation – S.6 & 22 of the Limitation Act 1953 – Striking Out under O.18 r.19(1)(a)(b)(d) of the Rules of Court 2012 – Inherent Jurisdiction of the Court – Whether there are pleadings alleged to justify the Plaintiff’s claim against the 2nd Defendant as constructive trustee or for lifting the corporate veil – Whether there are facts alleged to justify the Plaintiff’s claim against the 2nd Defendant as constructive trustee or for lifting the corporate veil

COUNSEL & SOLICITOR:
Lim Kian Leong (Lui Kar Yee & Shim Mong Seng with him) (Lim Kian Leong & Co) for the 1^st, 2^nd, 8^th to 12^th and 16^th defendants.

HIGH COURT MALAYA, KUALA LUMPUR

Civil Procedure- Judgements and orders- Setting aside- Setting aside earlier judgement or order in fresh suit- Fraud or collusion- Whether judgement or order obtained by fraud or collusion could be invalidated- Evidence Act 1950, s.44. Striking out action- Double derivative action- Existence of several cause of action- Non-disclosure of any reasonable cause of action after plaintiff filed application for discovery and interrogatories- whether claim can be struck out- Examination on restitutionary remedy at interlocutory stage- Allegation of illegality- Whether trial needed to determine availability of restitutionary remedy- Company law- Derivative action- Fraud on minority- Multiple derivative actions- Commencement of common law derivative action in Malaysia against company incorporated in England-Whether permission of English High Court required before filing suit in Malaysia- Evidence Act 1950, s.57 (1),(b)- Judicial notice- Foreign law- Opinions on English Law.

COUNSEL & SOLICITOR:
Lim Kian Leong (Lim Kian Leong & Co) for the appellants

COURT OF APPEAL (PUTRAJAYA)

Background of facts- The plaintiff was a public listed company in the business of providing telecommunications services under the brand known as Celcom- At the High Court the plaintiff filed a claim against the defendants seeking declarations that the defendants acted in breach of their fiduciary duties to the plaintiff and desired the restitution of various payments as well as the return of two vehicles from the defendants- Plaintiff contended that the payments and benefits paid were not in accordance with the Articles of Association (AA) and in contravention of the law- The first and second defendants filed a counter claim contending that they were entitled to payments based on the principle of quantum meruit taking into consideration their services and achievements that had benefitted the plaintiff- Appeal against decision of High Court in which the learned judge allowed the plaintiff/respondent claim’s suit brought against the first appellant/defendant, second appellant/second defendant and the third appellant/defendant for the return of incentive payments pursuant to the corporate restructuring exercise, the return of the compensation payments and the return of the vehicles transferred to the first and second defendants. The third appellant, however, withdrew his appeal prior to the hearing of this appeal- No cogent basis for this court to intervene in its appellate capacity- No judicial misappreciation or evaluation of the evidence by High Court.

COUNSEL & SOLICITOR:
Terence KM Chan (Lim Kian Leong & Co) for the defendant

INDUSTRIAL COURT MALAYSIA

Case concerns the power of the Industrial Court under Section 29 of the Industrial Relations Act 1967- To order a third party to be joined as a party to the original dispute between the company and the claimant- Where there exist a sufficient factual nexus between the third party and the dispute in question.

COUNSEL & SOLICITOR:
Lim Kian Leong (Lui Kar Yee with him)( Lim Kian Leong & Co) for the defendant.

HIGH COURT MALAYA, SHAH ALAM

Contract- Privity- Shares- Locus Standi- Share Sale Agreement- Reliance on previous cheque issued in respect of sale of shares of other related company- Whether plaintiff was able to establish privity in respect of sale of shares with an agreed price of sale- Whether plaintiff was able to establish payments were due and meant for plaintiff- Recovery of balance purchase price of shares- Dispute as to actual price of total shares- Oral agreement- Whether there was disclosure by plaintiff for sale of shares at price alleged by plaintiff- Whether plaintiff was able to produce a credible witness to corroborate existence of oral agreement in relation to sale of shares at certain price- Evidence- Witness- Credibility- Claims made by liquidator on behalf of wound up company- Personal Knowledge- Adverse inference- -Failure to call material witness- Failure of liquidator to call director who had personal knowledge of affairs of company.

COUNSEL & SOLICITOR:
Lim Kian Leong (Tan Wei Wei & Kenneth VK Liew with him) (Lim Kian Leong & Co) for the defendant.

COURT OF APPEAL ( PUTRAJAYA)

Equity- Fiduciary duty- Breach- Whether fiduciary relationship existed- Appointment of custodian bank by fund manager to safeguard client’s money- Whether custodian was a trustee company- Whether owed a higher duty to ensure assets of fund manager adequately protected- Whether relationship of ‘trusted confidence’ existent between client and AmTrustee- Tort- Vicarious liability- Apportionment of liability- Appointment of custodian bank by fund manager to safeguard client’s money- Whether funds placed with fund manager as ‘custodian’ of client- Whether duty of care owed to client – Breach of duty by custodian bank- Liability of custodian bank towards client- Whether breached duty of care.

COUNSEL & SOLICITOR:
Lim Kian Leong (Zaiurul Farah & Carole Ngu with him) (Lim Kian Leong & Co) for the defendants

HIGH COURT MALAYA, KUALA LUMPUR

Civil Procedure- Want of Prosecution- Striking out action- Application for whether there had been substantial and inexcusable delay in bringing action for trial- Whether fact that the action had now been set down for trial prevented third defendant from making this application- Whether plaintiff’s claim should be struck out against third defendant for want of prosecution- Whether plaintiff allowed his claim to languish inordinately without any justification- Whether the delay in applying to strike out the action under O.18 r.19, was fatal- Whether an application to strike out a claim on ground of abuse could be maintained where there was a valid cause of action- Whether his application to strike out claim under several limbs of O.18 r.19(1) should be allowed.

COUNSEL & SOLICITOR:
For the petitioner – KM Chan (Tan Wei Wei with him); M/s Lim Kian Leong & Co

HIGH COURT

COMPANY LAW: Liquidators – Powers of liquidator – Payment of solicitor’s bills from assets of company – Whether bills must be verified by committee of inspection – Liquidator’s discretion – Whether governed by r. 165 Companies (Winding-Up) Rules 1972 – Whether solicitor’s bills to be taxed when appointment of solicitors was to assist liquidators – Companies Act 1965, ss. 236(1)(e) & 236(2)(a)

COUNSEL & SOLICITOR:
Bagi pihak menuntut – KM Chan; T/n Lim Kian Leong & Co

MAHKAMAH PERUSAHAAN

Suatu rujukan yang dibuat di bawah Seksyen 20(3), Akta Perhubungan Perusahaan 1976 mengenai pembuangan kerja

COUNSEL & SOLICITOR:
For the claimant – Terence KM Chan; M/s Lim Kian Leong & Co

INDUSTRIAL COURT

DISMISSAL: Retrenchment – Redundancy – Claimant retrenched – Claimant refusing an assignment in China – Whether her refusal had been acceptable – Factors to consider – Effect of – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)