Category: Malayan Law Journal

HIGH COURT (KUALA LUMPUR)
NOORIN BADARUDDIN J
PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO WA-25-113- 03/2020
6 July 2021

JUDGMENT

[1]  This is the Applicant’s application for leave which includes a prayer for an extension of time to file leave to commence judicial review against the Respondents (Enclosure 1) wherein the Applicant is moving the Court for a certiorari order to quash the 3^rd Respondent’s Award No.1835 dated 26.6.2019 (the “Award”). The prayers in Enclosure 1 are as follows:

• (1)Bahawa kebenaran diberi kepada Pemohon untuk memohon satu Perintah Certiorari untuk memindahkan ke Mahkamah Yang Mulia ini bagi tujuan membatalkan seluruh keputusan Mahkamah Persekutuan (selepas ini dirujuk sebagai ‘Responden Ketiga’) Awad No. 1835 Tahun 2019 bertarikh 26.6.2019. (“Permohonan”);
• (2)Sekiranya Mahkamah Yang Mulia ini mendapati Permohonan ini difailkan di luar jangka masa yang ditetapkan, bahawa Pemohon diberi suatu perlanjutan masa untuk memfailkan Permohonan ini di bawah Aturan 53 kaedah 3(7) Kaedah Mahkamah 2012 iaitu dari tarikh Permohonan ini difailkan di Mahkamah Yang Mulia ini;
• (3)Suatu perintah bahawa semua prosiding selanjutnya untuk menguatkuasakan atau melaksanakan keputusan Responden Kedua dalam Awad No.1835 Tahun 2019 bertarikh 26.6.2019 dan segala prosiding dalam kes-kes Mahkamah Perusahaan No. 28(6)/4-1138/16, No.1/1-2236/19 dan No. 1/1-2254/19 digantungkan sementara menunggu keputusan muktamad Mahkamah Yang Mulia ini atas permohonan substantive ini;
• (4)Bahawa segala arahan dan perintah yang diperlukan dan berasaskan arahan dan perintah tersebut diberikan;
• (5)Bahawa kos-kos dan Permohonan ini adalah kos-kos di dalam kausa; dan
• (6)Segala relif-relif lain dan selanjutnya yang dianggap patut dan sesuai oleh Mahkamah yang Mulia ini.”

[2]  On 8.9.2020, the 1^st and 2^nd Respondents were allowed by this Court to appear and be heard at the leave stage

COURT OF APPEAL (PUTRAJAYA)
HANIPAH FARIKULLAH AND LAU BEE LAN JJCA
RAYUAN SIVIL NO W-02(NCVC)(W)-413-03/2017
19 August 2021

JUDGMENTIntroduction

[1]  This appeal was brought by the Appellant/Plaintiff against the decision of the learned High Court Judge made on 23/2/2017 dismissing the Appellant/Plaintiff’s claim against the 1^st, 2^nd, 3^rd and 4^th Respondents/1^st, 2^nd, 3^rd and 4^th Defendants with costs of RM400,000.00 on an indemnity basis i.e., RM100,000.00 per Respondent/Defendant.

[2]  We shall refer to the parties as follows: Appellant/Plaintiff as MBB, 1^st to 4^th Respondents/1^st to 4^th Defendants as Sparrows & Arrows, Kopetro, Nga and Liang, respectively.

[3]  This Court had directed that the 2^nd Respondent/2^nd Defendant’s Notice of Motion (Encl. 16a) to adduce fresh evidence be heard and disposed of together with the appeal proper. Having heard and considered the respective parties’ oral and written submissions and the relevant Records of Appeal, we had adjourned the appeal for decision after requesting the parties to parties to submit further on issues which arose at the hearing on 19/6/2020, namely: (i) can a lawyer carrying out his legal duty be found liable for abuse of process?; (ii) can fraud be established if there is no benefit/advantage gained by the perpetrator?; and other issues which arose during the hearing. This is our judgment in respect of the appeal proper and Kopetro’s Notice of Motion (Encl. 16a) to adduce further evidence.

HIGH COURT (KUALA LUMPUR)
LIZA CHAN SOW KENG JC
CIVIL SUIT NO WA-22NCC-623-11 OF 2019
23 December 2021

GROUNDS OF JUDGMENT (2)Introduction

[1]  This Court on 25.8.2021 allowed the 3^rd Defendant (“D3”)’s application in Enclosure (“Enc.”) 135 for discovery against the 1st Defendant (“D1”) and made an Order against D1’s representative for production of all the following documents that are in his possession, custody or power, in the form of exhibit to an affidavit and if not then in his possession, custody or power, when he parted with it and what has become of it within fourteen (14) days from the date of the Order (Enc. 161):

• a.Dr Soraya Kunanayagam’s medical report and diagnosis on the 1st Defendant’s mental state/capacity and matters in respect of his mental state/capacity;
• b.Tengku Mizan Hospital medical reports and diagnosis in regard to the 1st Defendant’s mental state/capacity and matters in respect of his history of dementia and treatment from 2017 till present;
• c.General Hospital Kuala Lumpur’s medical reports and diagnosis in regard to the 1st Defendant’s mental state/capacity and matters in respect of his history of dementia and treatment from 2017 till present;
• d.D1’s Declaration of Trust dated 13.5.2016; and
• e.The Warrant to Act and/or any similar appointment of solicitors executed by D1 in relation to the appointment of D1’s former solicitors, Messrs Thomas Phillip and Messrs Kanesalingam & Co to represent D1.

HIGH COURT (KUALA LUMPUR)
MOHD FIRUZ JAFFRIL J
CIVIL SUIT NO WA-23NCVC-41-06 OF 2020
1 April 2021

JUDGEMENT

(Enc. 11)

[1]  The present application before me deals with the Defendants’ application to strike out the Plaintiff’s Writ and Statement of Claim dated 17.6.2020 pursuant to Order 18 Rule 19 1 (a), (b) and/or (d) of the Rules of Court (ROC) 2012.Brief Facts

[2]  On 8.7.2013, the Plaintiff executed 4 Sale & Purchase Agreements (“SPAs”) to purchase 4 units of bungalows. It was an essential term of the SPAs that the Plaintiff must pay the balance purchase price by 28/11/2014. The plaintiff failed to do so. This led to the termination of the SPAs.

[3]  Based on the matters pleaded by the Plaintiff, it appears that the Plaintiff’s cause of action against the Defendants is based on professional negligence. It is the Plaintiff’s plaint that the Defendants, as the Plaintiff’s solicitors in respect of a sale and purchase transaction of 4 units of bungalows by the Plaintiff from Sunprop Development Sdn Bhd, had failed to advise that the Plaintiff had the right to secure a refund of the redemption sum amounting to RM4,315,129-49 paid under the respective sale and purchase agreements (“SPAs”).

COURT OF APPEAL (PUTRAJAYA)
LAU BEE LAN, RAVINTHRAN AND MOHD SOFIAN JJCA
CIVIL APPEAL W-02(A)-137–01 OF 2020
11 September 2021

Civil Procedure — Bill of costs — Taxation — Law firm (‘plaintiff’) was cited as third party in civil suit — Insurer for plaintiff’s lawyers appointed lawyer in another firm (‘defendant’) to defend plaintiff in suit — Following amicable settlement of suit defendant submitted bill of costs for handling matter to insurer which paid bill without objection and sent same to plaintiff for reimbursement — Plaintiff refused to reimburse on ground bill amount was excessive and unreasonable — Plaintiff applied to High Court to tax bill under s 126 of Legal Profession Act 1976 almost one year after receiving it — Whether plaintiff had right to petition for taxation when it was not the party which appointed defendant — Whether High Court was wrong in allowing bill to be taxed — Whether bill was excessive or unreasonable or devoid of details and explanation of work done — Whether plaintiff breached six-month limitation period in obtaining order for taxation of bill — Whether plaintiff had shown special circumstances to allow court to enlarge time for bill to be taxed

HIGH COURT (KUALA LUMPUR)
LIZA CHAN SOW KENG JC
CIVIL SUIT NO WA-22NCC-623-11 OF 2019
28 October 2021

GROUNDS OF JUDGMENTIntroduction

[1]  Enclosure 135 is the 3^rd Defendant, Puncak Kenangan (M) Sdn Bhd (“Puncak”)’s application for discovery against the 1^st Defendant pursuant to Order 24 Rule 7 of the Rules of Court 2012 (“ROC 2012”).

[2]  On 25th August 2021, the 3^rd Defendant’s application was allowed with costs. This judgment contains the reasons as to why Enclosure 135 was allowed.

HIGH COURT (SHAH ALAM)
CHOO KAH SING J
GUAMAN SIVIL NO BA-22NCC-13-01/2020
3 December 2021

JUDGMENTIntroduction

[1]  The plaintiff’s action centers on the validity of a share transfer transaction involving the 1^st defendant company’s shares which the plaintiff owned. The plaintiff averred that the share transfer form dated 6.6.2008 (hereafter ‘the impugned Form 32A’) that effected the transfer of the plaintiff’s 50% shares in the 1^st defendant company to the 4^th defendant (as transferee) was invalid in law because he did not execute the said transfer form as the transferor.

[2]  The parties have gone through a full trial, and on 26.10.2021, this Court dismissed the plaintiff’s claim against all the defendants. The reasons for the decision of this Court are set out as below.

HIGH COURT (KUALA LUMPUR)
AKHTAR TAHIR J
GUAMAN NO WA-22NCVC-88-02/2020
3 February 2021

JudgmentIntroduction

[1]  The 2^nd and 4^th Defendant applied to strike out the Plaintiff’s claim under Order 18 Rule 19 of the Court Rules 2012 (“the Rules 2012”).The Plaintiff’s Claim

[2]  The Plaintiff’s claim against the 2^nd and 4^th Defendants was principally for a breach of fiduciary duties as Directors of the Plaintiff by entering into a lopsided, untenable and fraudulent agreement with the 1^st Defendant as well as 2 other supplementary agreements with 3^rd parties.

[3]  The Plaintiff was appointed by the Government of Malaysia to register and manage the intake of foreign students to the local Institutes of Learning.

[4]  For this purpose the Plaintiff had entered into an agreement with the 1^st Defendant who had professed to have an expertise in undertaking the project.

[5]  As a result of the agreement executed with the 1^st Defendant not only the Plaintiff but the Treasury of Malaysia and the Government of Malaysia had suffered financial losses as well as loss of opportunities under the project.The Grounds of the 2^nd Defendant’s Application

[6]  The alleged breach of fiduciary duties are alleged to have taken place before the execution of the agreement with the 1^st Defendant which was executed on 1/11/2012 and as this claim was only filed in 2020 it is time barred as any claim for breach of contract is limited to 6 years.

[7]  The allegation of fraud and breach of duties have not been particularized.

[8]  In a judicial review proceedings in Kuala Lumpur High Court under the suit number 25-04-2013 the Plaintiff had taken a stand that the agreement with the 1^st Defendant was valid and enforceable and therefore he is now estopped from questioning the validity of the agreement.The Grounds of the 4^th Defendant’s Application

[9]  There is no cause of action against the 4^th Defendant as he was only appointed on the date of execution of the agreement and therefore had not taken part in any negotiations of the agreement.

[10]  In the judicial review proceeding in the High Court the Plaintiff had taken a stand to support the agreement with the 1^st Defendant and therefore the Plaintiff is now estopped from declaring the agreement as invalid.

[11]  The Plaintiff’s claim is time barred for the same reasons raised by the 2^nd Defendant.

[12]  The Plaintiff has no locus standi to bring this proceedings on behalf of the Treasury and the Government of Malaysia.

[13]  The Statement of Claim lacks particulars especially on the allegation of breach of fiduciary duties.

HIGH COURT (KUALA LUMPUR)
LIZA CHAN SOW KENG JC
SUIT NO WA-22NCC-155-04 OF 2021
23 November 2021

GROUNDS OF JUDGMENTIntroduction

[1]  There are 5 applications before the Court to strike out the Plaintiff’s Writ and Statement of Claim:

1.1 Enclosure (“Enc”) 11 made by the 8th Defendant (“D8”);

1.2 Enc. 15 made by the 1st and 2^nd Defendants (“D1 & D2”);

1.3 Enc. 17 made by the 3^rd to 5^th Defendants (“D3 to D5”);

1.4 Enc. 26 made by the 6th Defendant (“D6”); and

1.5 Enc. 33 made by the 7th Defendant (“D7”).

[2]  All the applications were made pursuant to Order 18 rule 19 (a), (b), and/or (d) of Rules of Courts 2012 (“ROC 2012”) and/or Order 92 rule 4 ROC 2012 and/or the inherent jurisdiction of this Court except for Enc. 26 which was made pursuant to Order 18 rule 19 (a) ROC 2012.

[3]  On 14th October 2021, I had allowed all 5 applications with costs. As the matters were related, it is convenient to deal with all 5 enclosures in one judgment.

HIGH COURT (KUALA LUMPUR)
ONG CHEE KWAN JC
SUIT NO WA-22NCC-284-05 OF 2019
2 September 2021

GROUNDS OF JUDGMENTIntroduction

[1]  The Plaintiff (‘Rich Emerald’) filed this action against the Defendant (‘Engareh’) for unpaid balance sum in respect of goods sold and delivered to Engareh. In turn, Engareh has counterclaimed for refund of part payments made and reimbursement of transportation charges.

[2]  The case turns very much on the finding of facts as to actual terms of the agreement reached between the parties on the purchase of the goods.