Category: Malayan Law Journal

COURT OF APPEAL (PUTRAJAYA)
IDRUS HARUN, SURAYA OTHMAN AND STEPHEN CHUNG HIAN GUAN JJCA
APPEAL NO W-02(NCVC)(W)-12-01/2018
4 March 2020

JUDGMENT OF THE COURTINTRODUCTION

[1]  There are two appeals before us which are as follows:

• a)W-02(NCVC)(W)-2614-12/2017 (Appeal No 2614); and
• b)W-02(NCVC)(W)-12-01/2018 (Appeal No 12).

[2]  These two appeals arise from the decision of the Learned Judicial Commissioner (Learned JC), delivered on 29.11.2017 which dismissed the Plaintiff’s claim against the Defendants. The Plaintiff, Mrs Nyo Nyo Aye, had brought this present suit against the Defendants for breach of agreement (retainer) and/or professional negligence in the Defendants’ conduct of the Kuala Lumpur High Court Civil Suit No. S3-22-890-2007 (the 1^st Suit). The Plaintiff had alleged that the Defendants, as her solicitors, had failed to inform and advise her and take the necessary actions which resulted in the 1^st Suit being struck off by the High Court on 24.8.2009. At the end of the trial of this present suit, the Learned JC found the Defendants, as solicitors, were in breach of agreement (retainer) and/or professionally negligent but however dismissed the Plaintiff’s claim on the basis that her claim was time-barred.

[3]  Both the Plaintiff and the Defendants were aggrieved with the decision of the Learned JC and each filed separate appeals contending that the Learned JC was plainly wrong in arriving at the said decision. Appeal No 2614 is the appeal by the Defendants (Kevin Sathiaseelan A/L Ramakrishnan – 1^st Defendant and Messrs Syed Alwi Ng & Co – 2^nd Defendant) against the decision of the Learned JC which held that the Defendants as solicitors were in breach of agreement (retainer) and/or professionally negligent in their duty as the Plaintiff’s solicitor in the the 1^st Suit while Appeal No 12 is the appeal by the Plaintiff (Mrs Nyo Nyo Aye) against the decision of the Learned JC which held that her claim against the Defendants is time barred.

[4]  On the hearing date, by consent of both parties, the Defendants Appeal No 2614 was withdrawn on the agreement that the issues which were raised in Appeal No 2614 can also be raised in Appeal No 12 and that the Plaintiff will not raise any objection if there is any need to file a leave application or an appeal proper to the Federal Court. On that agreement by parties, we struck out Appeal 2614 and proceeded to hear Appeal No 12.

[5]  We then proceeded to hear the appeal, and after taking into consideration the submissions of parties, both oral and written, we were unanimous in our view that there were merits in the Plaintiff’s appeal. We therefore allowed the Plaintiff’s appeal and set aside the decision of the Leaned JC on the issue of limitation. However, we are unanimous that there is no merits in the Defendants’ appeal. We therefore dismissed the Defendants’ appeal and we affirmed the decision of the Learned JC on the issue of the breach of agreement (retainer) and negligence. We then remitted the case to the High Court for assessment of damages. We now provide the reasons for our decision which will constitute the judgment of the court and for ease of reference, parties will be referred to as they were in the High Court.

COURT OF APPEAL (PUTRAJAYA)
ABDUL KARIM ABDUL JALIL, S NANTHA BALAN AND SUPANG LIAN JJCA
RAYUAN SIVIL NO W-02-(NCVC/W)-1259-06/2018, W-02(NCVC)(W)-2580-12/2018 & W-02(NCVC)(W)-2603-12/2018
15 December 2020

JUDGMENT OF THE COURTIntroduction

[1]  The appellant is an advocate and solicitor. He is a partner in the legal firm of Messrs. Azri, Lee Swee Seng & Co. (“the firm”). On 9 August 2012, the respondents filed Kuala Lumpur High Court Suit No. 22 NCVC-943-08/2012 (“Suit 943”) and naming the appellant as the sole defendant. According to the respondents, they intended to purchase a parcel of commercial property in Kuala Lumpur and had engaged the appellant to handle the relevant sale and purchase transaction. The appellant’s position is that the respondents had engaged the firm and it was the firm which handled the conveyancing transaction and was responsible/liable for any purported shortcomings/negligence.

[2]  Leaving aside the question as to whether the respondents had engaged the appellant or the firm, what is indisputable is that ultimately the sale and purchase transaction did not go through. Indeed, it could not go through. For now, it is important to mention that the intervening events are, first, the winding up of the vendor and secondly, the enforcement of a legal charge over the land, and lastly, the sale of the subject land to a third party at a public auction. The appellant says that he had no control over these events. The respondents disagree. We will come back to this issue in the later part of this judgment. The respondents tried to salvage the transaction by putting in a bid at the auction. However, their bid during the auction was unsuccessful and ultimately they were not able to purchase the land. As such, they claim that they suffered loss and damage. The respondents attribute the loss and damage to the appellant’s alleged negligence and mishandling of the conveyancing transaction.

[3]  During cross-examination, the 1^st respondent said (rather crudely) in reference to the appellant’s handling of the sale and purchase transaction that, “He actually screwed up the whole transaction” The respondents therefore sued the appellant for his alleged negligence in respect of the conveyancing transaction.

HIGH COURT (SHAH ALAM)
JULIE LACK, JC
RAYUAN SIVIL NO: BA-12ANCC-56-09/2019
18 March 2020

GROUNDS OF JUDGEMENTIntroduction

This is an appeal against the decision of the Learned Sessions Court Judge delivered on 6 September 2019 whereby the Appellant/Plaintiff’s summary judgment application under Order 14 ROC 2012 was dismissed with costs.

In this judgement the parties will be referred to as they were at the Sessions Court.

HIGH COURT (KUALA LUMPUR)
ONG CHEE KWAN JC
ORIGINATING SUMMONS NO WA-24NCC-92-02 OF 2020
26 October 2020

GROUNDS OF JUDGMENTIntroduction

[1]  In an oppression action by minority shareholders, the Court will need to determine the true or real complaint by the aggrieved party and whether the alleged wrongs are in fact wrongs done on the company for which the more appropriate remedy would be by way of a derivative action by the minority shareholders. There could be instances where the wrongs have features of both corporate wrongs and personal wrongs against the minority shareholder. Under what circumstances would the bringing of an oppression action in such an instance would not be an abuse of the court process? Further, can the Court look at conduct post the oppression action including the manner the legal proceedings are being conducted to determine the likelihood of the oppressive action continuing in the future? These are issues explored in this judgment.

FEDERAL COURT (PUTRAJAYA)
ROHANA YUSUF, PCA, AZAHAR MOHAMED, CJM, ABANG ISKANDAR ABANG HASHIM, CJSS, NALLINI PATHMANATHAN, FCJ AND ABDUL RAHMAN SEBLI, FCJ
CIVIL APPEAL NO : 02(f)-55-06/2019(W), CIVIL APPEAL NO. W-02(NCvC)(A)-2124-10/2018 AND ORIGINATING SUMMONS NO: WA-24NCVC-1237-06/2018
10 August 2020

GROUNDS OF JUDGMENTIntroduction

[1]  The primary question of law for disposal in this appeal relates to the recurrent problem of identifying when a court is rendered functus officio, as opposed to when it retains jurisdiction and/or remains empowered to grant consequential orders, subsequent to the grant of a final judgment or order.

[2]  However, overlying the issue stated above in this appeal, is that of res judicata and issue estoppel, as the present appeal stems from an impeachment suit seeking to set aside orders granted in an earlier suit. This impeachment suit was filed after the grant of final orders in the earlier suit. All avenues of appeal in respect of the earlier suit had also been exhausted.

[3]  The background facts are of significance.

MAHKAMAH TINGGI (KUALA LUMPUR)
MUHAMMAD JAMIL BIN HUSSIN, H
GUAMAN SIVIL NO NA-22NCVCw19-03/2018
23 May 2020

PENGHAKIMAN

[1]  Plaintif pertama dan plaintif kedua adalah pemilik berdaftar tanah yang dikenali sebagai GRN202171 Lot 14538, Pekan Bukit Kepayang, Daerah Seremban, Negeri Sembilan dengan sebuah rumah teres dua tingkat didirikan di atasnya (hartanah tersebut). Plaintif pertama menghadapi masalah kewangan dan memerlukan wang untuk melangsaikan hutang kad kreditnya. Defendan pertama bersetuju untuk memberikan pinjaman wang sebanyak RM150,000.00 kepada plaintif pertama dengan syarat hartanah tersebut adalah sebagai cagaran. Berikutan itu plaintif pertama dan plaintif kedua telah menandatangani dokumen-dokumen yang dipercayai perjanjian pinjaman wang di pejabat Tetuan Katherine Loh) Low & Co. Jumlah pinjaman sebenar diberikan oleh defendan pertama adalah RM1321354.00. Kemudiannya plaintif pertama mendapati hartanah tersebut dipindahmilik atas nama defendan pertama melalui Borang 14A dengan balasan RM210,000.00 di mana defendan kedua menyaksikan tandatangan defendan pertama, plaintif pertama dan plaintif kedua pada Borang 14A itu. Plaintif pertama dan plaintif kedua menafikan tandatangan mereka pada Borang 14A telah disaksikan oleh defendan kedua. Plaintif pertama dan plaintif kedua menyatakan mereka tidak pernah bersetuju untuk menjual hajianah tersebut pada harga RM210,000.00 memandangkan harganya jauh leblh rendah dari harga pasaran. Plaintif pertama dan plaintif kedua memfailkan tindakan ini terhadap defendan pertarna dan defendan kedua memohon relief-relief seperti dalam perenggan 33(a) hingga (r) penyataan tuntutan (ms:19-22 lkatan Pliding yang ditanda A).

HIGH COURT (KUALA LUMPUR)
DATO’ HAJI AKHTAR BIN TAHIR, J
Guaman No. WA-22NCVC-88-02/2020
3 August 2020

JudgmentThe 1^st Defendant’s application

[1]  The Defendant in this case applied (encl 8) for an order under section 10 of the Arbitration Act and or under Order 69 Rule 10 of the Rules of Court 2012 for a stay of proceedings to refer to arbitration.The Plaintiff’s claim

[2]  Although the Statement of Claim in this claim is lengthy and contains facts as well as evidence there are a number of facts which can be gleaned from reading it, in its entirety.

[3]  The Plaintiff was set up as a private limited company under the Ministry of Higher Education to promote Malaysia as an education hub. To achieve this aim the Plaintiff wanted to set up an integrated system to register foreign students.

[4]  The 2^nd to 4^th Defendant’s as the representative of the Plaintiff were tasked with awarding the project to an eligible entity as well as enter into an agreement with the chosen entity.

[5]  In this case it is the main allegation of the Plaintiff is that the 2^nd to 4^th Defendants had conspired with the 1^st Defendant not only by awarding the contract to the 1^st Defendant but also into entering into an invalid and lopsided agreement against the interest of the Plaintiff, the Treasury and the Government.

[6]  The Statement of Claim than details out the facts to support the allegation of the Plaintiff leading to the various reliefs asked for including invalidating the agreement entered with the 1^st Defendant.

HIGH COURT (KUALA LUMPUR)
NADZARIN WOK NORDIN JC
SUIT NO D-22-306 OF 2009
3 November 2020

GROUNDS OF JUDGMENT

(Enclosure 29)

[1]  Before me, the Plaintiff, Loh Meng Keong (Plaintiff) has filed an application under enclosure 29 (Enclosure 29) for inter alia the following:

• a)the 2^nd defendant, one Syed Mustaffa bin Syed Abdullah (D2) be ordered to transfer the property known as Lot A143 held under HS(D) 9547 PT No. 13170 Mukim Bentong, Negeri Pahang (Property) within 7 days from date of order;
• b)D2 be ordered to surrender the Issue Document of Title (IDT) of the Property after the memorandum of transfer has been effected within 14 days of the order;
• c)that a penal notice be endorsed to the Consent Judgment dated 21.5.2010 (Consent Judgment); and
• d)Costs

[2]  The grounds on which Enclosure 29 is based are as follows:

• a)the application is made pursuant to Order 42 Rule 6(2) of the Rules of Court 2012
• b)from 2015 to-date D2 had failed, refused and/or neglected to cause the transfer of the Property to the Plaintiff or his Executors
• c)D2 had taken advantage to delay or not to comply with the Consent Judgment as the Consent judgment did not state a time period for the transfer of the property to the Plaintiff or his Executors.

[3]  Prayer a and b are however now redundant as the said IDT has been surrendered and the parties are making the necessary process for the transfer of the Property to the Plaintiff’s Executor. Accordingly, the Plaintiff is now only seeking for prayers 3 & 5 in Enclosure 29 i.e for a penal notice be endorsed to the Consent Judgment and costs.

HIGH COURT (SHAH ALAM)
WONG KIAN KHEONG J
SIVIL SUIT NO BA-22NCVC-423-07 OF 2017
8 November 2020

JUDGMENT

(After trial)A. Introduction

[1]  This judgment essentially concerns whether –

• (1)a sale of the plaintiff’s (Plaintiff) property in a piece of land (Land) [on which three units of three-storey terrace house (Property) are erected] to the first to fourth defendants (“1^st Defendant” to “4^th Defendant”); and
• (2)the subsequent registration of the transfer of the Land from the Plaintiff to the 1^st to 4^th Defendants (Transfer) under the National Land Code (NLC)

– is genuine or an unlicensed moneylending business which is prohibited by s 5(1) of the Moneylenders Act 1951 (MA). The Plaintiff has alleged in this case that the fifth defendant (5^th Defendant), a practising Advocate and Solicitor (A&S), abetted the 1^st to 4^th Defendants in the commission of an unlicensed moneylending business by disguising it as a sale of the Property.

COURT OF APPEAL (PUTRAJAYA)
UMI KALTHUM, ZABARIAH YUSOF AND HANIPAH FARIKULLAH JJCA
CIVIL APPEAL NO W-02(NCVC)(A)-2124-10 OF 2018
13 November 2019

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