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[2018] MYCA 266Court of Appeal

Suit Number: Civil Appeal No. Q-02(IM)(NCVC)-2206-12/2016   Date of Judgment: 08 August 2018

Litigation & court procedure – Application for an order to strike out amended defence and counterclaim – Whether the defence bona fide – Whether the defence frivolous or vexatious and delaying the process

Land law – Native customary rights - Sections 6 and 209 of the Sarawak Land Code

[2018] MYCA 264Court of Appeal

Suit Number: Criminal Appeal No. J-05(M)-113-03/2017   Date of Judgment: 10 July 2018

Criminal law – Murder – Conviction – Death sentence – Appeal – Whether conviction safe

Criminal law – Intention to cause death or to cause injuries which lead to death – Whether the appellant had the intention of causing death or injuries

[2018] MYCA 263Court of Appeal

Suit Number: Appeal Nos. W-02(IM)(NCC)-2038-11/2016 & W-02(IM)(NCC)-2054-11/2016  Date of Judgment: 30 July 2018

Corporate law – Winding up – Proof of debt – Whether the liquidator has rightfully exercised his discretion to admit the proof of debt – Whether the liquidator’s decision accepting the proof of debt unreasonable or absurd

Litigation & court procedure – Locus standi/ Laches – Res judicata/ estoppel – Abuse of process

[2018] MYCA 262Court of Appeal

Suit Number: Rayuan Sivil No. A-02(NCVC)(W)-721-04/2017   Date of Judgment: 25 July 2018

Contracts & commercial – Breach of trust – Whether the second defendant holds the monies in trust for the appellant – Whether the second defendant had committed a breach of trust/ breach of fiduciary duty – Whether there is a conspiracy to defraud

Administrative law – Judicial review – Whether leave should be granted as the Attorney General failed to file an affidavit to oppose the application for leave – Whether the respondent had locus standi – Whether the decision of the Attorney General justiciable – Whether the judicial review proceeding premature

[2018] MYCA 260Court of Appeal

Suit Number: Civil Appeal No. M-02(NCVC)(W)-466-03/2017   Date of Judgment: 19 July 2018

Corporate law – Director – Fiduciary duty – Whether the appellant, as a nominee director, owed any fidelity and or fiduciary duty to the respondent – Whether the trial court had erred when it decided that the appellant had breached his fiduciary duties – Whether the trial judge had erred in awarding general damages to the respondent for breach of duties of fiduciary and fidelity by the appellant

[2018] MYCA 259Court of Appeal

Suit Number: Civil Appeal No. A-02-(IM)(NCVC)-2559-12/2017   Date of Judgment: 19 July 2018

Litigation & court procedure – Consent judgment – Suit to set aside the consent judgment – Application to dismiss the suit to set aside the consent judgment under inherent jurisdiction of the court and/or pursuant to Order 18 rule 19(1)(b) and or (d) of the Rules of Court 2012 on the grounds that the issues raised in the suit have been adjudicated upon and a consent judgment was recorded – Dismissal of application – Appeal

Litigation & court procedure – Consent judgment – Nature of consent judgment – Whether the issues of a case adjudicated when a consent judgment is recorded – Whether res judicata applies to the issues involved in a case that was settled by a consent judgment

Litigation & court procedure – Striking out – Whether the suit to set aside the consent judgment should be struck out – Principles upon which a court exercises its power under any of the four limbs of Order 18 rule 19(1) of the Rules of Court 2012

[2018] MYCA 257Court of Appeal

Suit Number: Civil Appeal No. C-02(NCVC)(W)-1010-05/2017   Date of Judgment: 19 July 2018

Defamation – Libel – Appeal against liability and quantum of damages Defamation – Defence of justification or fair comment – Defence of qualified privilege – Issue of locus standi – Whether there was a positive identification of the respondent

Defamation – Innuendo – Whether the fact that innuendo was not pleaded by the respondent would in any way affect the merit of the claim

Damages – Quantum of damages – Whether the amount justified when considered against the gravity of the accusation, the extent of the publication and the office held by the appellant

[2018] MYCA 255Court of Appeal

Suit Number: Criminal Appeal Nos. B-05(H)-171-05/2016(IRN) & B-05(SH)-175-05/2016(IRN)  Date of Judgment: 02 August 2018

Criminal law – Trafficking in dangerous drugs – Appeal by prosecution – Whether the defence had cast a reasonable doubt on the prosecution’s case – Whether the accused innocent carriers – Whether the accused guilty of wilful blindness

[2018] MYCA 254Court of Appeal

Suit Number: Criminal Appeal No. P-05(SH)-418-11/2016   Date of Judgment: 06 August 2018

Criminal law – Trafficking in dangerous drugs – Appellant found guilty – Appellant a child under the Child Act 2001 – Appellant ordered to be detained in a prison during the pleasure of the Penang Governor – Appeal

Criminal procedure – Whether the trial judge erred in ruling that the prosecution had proven a prima facie case of trafficking against the appellant – Whether the trial judge erred in not invoking section 114(g) presumption against the prosecution for failing to call or offer a material witness – Whether the trial judge failed to appreciate the defence case – Whether conviction safe – Whether appellate intervention warranted

[2018] MYCA 251Court of Appeal

Suit Number: Rayuan Sivil No. W-02(A)-1056-06/2017   Date of Judgment: 30 July 2018

Professional liability – Advocate & solicitor – Appeal by Bar Council against the High Court decision which set aside the Disciplinary Board’s order that struck off the respondent from the Roll of Advocates and Solicitors of the High Court of Malaya and substituted it with an order that suspended the respondent from practice for a period of 3 years

[2018] MYCA 250Court of Appeal

Suit Number: Civil Appeal No. W-02(NCVC)(W)-1734-08/2017   Date of Judgment: 31 July 2018

Corporate law – Fraudulent trading under section 304 of the Companies Act 1965 – Scope of section 304 of the Companies Act 1965 – What constitutes an “intent to defraud” – Standard of proof – Whether the business of the second defendant had been carried out with intent to defraud its creditors

Corporate law – Lifting of the corporate veil – Test – Whether the facts of the instant case justified the lifting of the corporate veil

Damages – Exemplary damages – Whether the plaintiff was entitled to exemplary damages

[2018] MYCA 249Court of Appeal

Suit Number: Rayuan Sivil No. M-02(NCVC)(W)384-03/2015   Date of Judgment: 26 January 2018

Corporate law – Winding up – Liquidator – Proof of debt – Where a housing developer has been wound up and money in the housing development account was paid to a creditor pursuant to a court order in the winding up proceedings, does it preclude or estop the liquidator from rejecting the proof of debt from the creditor – Housing Development (Control and Licensing) Act 1966, Housing Development (Housing Development Account) Regulations 1991

[2018] MYCA 248Court of Appeal

Suit Number: Civil Appeal No. W-02(IM)(NCVC)-2281-11/2017  Date of Judgment: 02 July 2018

International law – Foreign Exclusive jurisdiction clause – Forum non conveniens – Application for a stay of proceedings under Order 12 rule 10(2) of the Rules of Court 2012 – Whether Malaysia the proper forum to determine the dispute and/or the subject matter of the claim – Whether Malaysia the forum which has the most real and substantial connection with the cause of action

Contracts & commercial – Exclusive jurisdiction clause – Whether stay should be granted to give effect to an exclusive jurisdiction clause – Whether stay could be refused in exceptional circumstances – Burden of proof – Whether practical inconvenience a determinative factor – Whether the considerations accepted by the trial court in the instant case sufficient to override the exclusive jurisdiction clause

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