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[2018] MYFC 27Federal Court

Suit Number: Civil Appeal Nos. 02(f)-8-02/2018(W) & 02(f)-7-02/2018(W)  Date of Judgment: 31 October 2018

Arbitration - Application of the Arbitration Act 2005 - Whether section 42 of the Arbitration Act 2005 automatically applies to an arbitration governed by the laws of Malaysia notwithstanding that one or more parties to the arbitration may be foreign

[2018] MYFC 26Federal Court

Suit Number: Rayuan Sivil No. 02(f)-108/10/2017(J)  Date of Judgment: 31 October 2018

Tort – Trespass – Whether an action in trespass maintainable in law where the period of the alleged trespass is the same for which a stay order of the High Court was in force in respect of the subject land – Whether an action in trespass maintainable against Tenaga Nasional Berhad for supply of electricity to the occupants of the subject land if the occupants are in unlawful occupation of the subject land

Duty of Tenaga Nasional Berhad to supply electricity – Exceptions to such duty – Sections 24(1) and 24(5) of the Electricity Supply Act 1990

[2018] MYFC 22Federal Court

Suit Number: Rayuan Sivil No. 02(f)-137-11/2017(P)  Date of Judgment: 24 September 2018

Insurance – Motor insurance – Motor policy holder obtaining insurance cover from an insurer in respect of an accident that had already occurred – Effective date of the insurance policy – Whether effective date the date of cover or the time of issuance of cover – Whether retrospective cover could be given to the policy in breach of section 141 of the Insurance Act 1996

[2018] MYFC 20Federal Court

Suit Number: Civil Appeal No. 01-37-08/2017(P)  Date of Judgment: 16 August 2018

Administrative law – Judicial review – Whether the appellant has the constitutional right to appeal to the Appeal Board against the decision of the Suruhanjaya Perkhidmatan Awam Malaysia under Article 144(5B)(ii) of the Federal Constitution – Whether in view of Article 132(1)(c) of the Federal Constitution, the appellant ought not to be dismissed from public service without being given a reasonable opportunity of being heard which includes the right of appeal as provided by Article 144(5B)(ii) of the Federal Constitution and Regulation 14 of the Public Services and Disciplinary Board Regulation 1933

Constitutional law – Articles 132(1)(c) and 144(5B)(ii) of the Federal Constitution

[2018] MYFC 19Federal Court

Suit Number: Civil Appeal Nos. 02(i)-49-07/2015(W) & 02(i)-50-07/2015(W)  Date of Judgment: 08 August 2018

Partnership – Whether a partner, who entered a partnership pursuant to an assignment can on the true construction of section 33 of the Partnership Act 1961 be deemed a partner for the purposes of ascertaining the number of partners under subsection 314(2) of the Companies Act 1965

[2018] MYFC 18Federal Court

Suit Number: Civil Appeal Nos. 02(f)-29-03/2017(W), 01(f)-14-05/2017(W) & 01(f)-15-05/2017(W)  Date of Judgment: 28 March 2018

Litigation & court procedure – Striking out application under Order 18 rule 19 of the Rules of Court 2012 – Test for striking out

[2018] MYFC 17Federal Court

Suit Number: Civil Appeal No. 01(f)-21-09/2014(W)  Date of Judgment: 05 April 2018

Litigation & court procedure – Jurisdiction of courts – Whether a court has discretion to allow a question of law raised for the first time on appeal in view of the clear words of a statute ousting the jurisdiction of the courts in respect of a specific matter – Rules 18(1) and 18(2), Rules of the Court of Appeal 1994

Statutory interpretation – Legal effect to be given to subsection 8B(1) and section 8C of the Internal Security Act 1960 – Whether on a true construction of subsection 8B(1) and section 8C of the Internal Security Act 1960, the court has jurisdiction to award damages for the tort of false imprisonment against the Minister of Home Affairs

[2018] MYFC 16Federal Court

Suit Number: Civil Appeal No. 01(f)-27-09/2016(M)  Date of Judgment: 07 June 2018

Tort – False imprisonment – Damages for false imprisonment – Whether damages for false imprisonment could be awarded for detention under an order of a magistrate under section 117 of the Criminal Procedure Code

Tort – False imprisonment – Whether the arrest was lawful – Whether the detention under the remand orders was valid – Whether section 117 remand order could be challenged by a collateral proceeding – Protection to police under section 32 of the Police Act 1967 – Award of exemplary damages

[2018] MYFC 15Federal Court

Suit Number: Rayuan Sivil No. 02(f)-18-02/2015(A)  Date of Judgment: 15 May 2018

Contracts & commercial – Whether the contractual relationship between the dealer and the consumer superseded by the Hire Purchase Agreement as stated in the Federal Court case of Ahmad Ismail v Malaya Motor Company [1973] 2 MLJ 66

Consumer law – Whether section 32 of the Consumer Protection Act 1999 and/or section 16 of the Sale of Goods Act 1957 apply to make the dealer liable to the consumer

[2018] MYFC 14Federal Court

Suit Number: Civil Appeal No. 01(f)-9-04/2017(W)  Date of Judgment: 07 May 2018

Intellectual property law – Trade mark – Challenge of trade mark registration before the Registrar of Trade Marks – Appeal to the High Court – Further appeal to the Court of Appeal – Leave to appeal to the Federal Court

Litigation & court procedure – Right of appeal to the Federal Court – Conditions for an appeal to lie to the Federal Court – Section 96 of the Courts of Judicature Act – Test for the purposes of section 96(a) of the Courts of Judicature Act – Scope and meaning of “original jurisdiction” and “appellate jurisdiction”

Litigation & court procedure – Whether the High Court in exercising its powers under sections 28(5), (6) and (7) of the Trade Marks Act 1976 acting in its original jurisdiction or appellate jurisdiction – Whether the present appeal meet the statutory condition for an appeal to the Federal Court under section 96(a) of the Courts of Judicature Act

[2018] MYFC 13Federal Court

Suit Number: Criminal Appeal No. 05-209-10/2015  Date of Judgment: 17 May 2018

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal

Criminal law – Whether the prosecution failed to prove exclusive possession – What amounts to exclusive possession – Whether an adverse inference pursuant to section 114(g) of the Evidence Act 1950 should be invoked against the prosecution for its failure to call or explain the non-calling of material witnesses – Whether the courts below failed to apply and/or applied improperly the Radhi direction in response to the appellant’s defence that there was a real trafficker and that he was a mere possessor – Whether there was misdirection on the part of the trial court in the application of presumptions under the Dangerous Drugs Act 1952

[2018] MYFC 12Federal Court

Suit Number: Civil Appeal Nos. 03(f)-2-04/2017(W), 03(f)-3-01/2017(W) & 03(f)-4-01/2017(W)  Date of Judgment: 03 May 2018

Litigation & court procedure – Judgment entered against the judgment debtor – Judgment Debtors Summons (JDS) proceedings initiated by the judgment creditor under Debtors Act 1957 – Order directing the judgment debtor to make, amongst others, payments on the original judgment debt by instalments – Default by judgment debtor – Filing of a Bankruptcy Notice founded on the original judgment against the judgment debtor – Whether the order for instalment payments under the JDS proceedings constitutes a variation or modification of the original judgment – Whether the Bankruptcy Notice founded on the original judgment valid – Application of Montgomery & Co v de Blumes [1898] 2 QB 420 and Re HA Pereira [1932] MLJ 112

[2018] MYFC 11Federal Court

Suit Number: Civil Appeal No. 02(f)-76-07/2017(J)  Date of Judgment: 17 May 2018

Real Estate – Dispute on a piece of land between the original registered owner and a subsequent holder of interest – Both parties affected by the fraud of a third party – Whether the subsequent holder of interest (chargee bank) was entitled to raise the shield of indefeasibility under section 340 of the National Land Code 1965

Contracts & commercial – Solicitor and client relationship – Law of agency – Whether knowledge on the part of a solicitor of claims which amount to encumbrances over a piece of land could be imputed back to his client for the purposes of section 340(3) of the National Land Code 1965 – Whether the principle in Doshi v Yeoh Tiong Lay [1975] 1 MLJ 85 that the doctrine of constructive notice does not apply to the Torrens system in that an agent (solicitor)’s knowledge of fraud cannot be imputed to his client, was correct in law – Whether the solicitor’s knowledge acquired in a previous or different transaction could be imputed to his client – Whether the principle in Doshi was applicable only where there was fraud on the part of the agent – Whether the principle in Doshi was applicable in cases where the agent was not complicit in the fraud

Section 340(3) of the National Land Code – Proper construction of the requirement of “good faith” in the context of a purchaser falling within Section 340(3) – Meaning of Purchaser – Concept of indefeasibility – Deferred indefeasibility

Real estate – Whether the defendant was a purchaser in good faith falling within section 340(3) of the National Land Code – Whether the charge indefeasible

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