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[2018] MYCA 211Court of Appeal

Suit Number: Civil Appeal No. W-02(NCVC)-1913-10/2016  Date of Judgment: 09 July 2018

Contracts & commercial – Contract – Alleged breach of contract – Damages

Contracts & commercial – Principles of construction of contracts and contractual clauses – Whether literal reading of contractual terms appropriate where the terms are not plain

Litigation & court procedure – Appellate intervention – Whether the High Court failed to take into consideration the material evidence before it – Whether the decision of the High Court was plainly wrong – Whether the instant case warranted appellate intervention

Litigation & court procedure – Pleadings – Importance of pleadings in civil litigation

[2018] MYCA 210Court of Appeal

Suit Number: Civil Appeal No. B-02(W)-310-02/2017  Date of Judgment: 04 July 2018

Litigation & court procedure – Emplacement of documents to be utilised at trial in various categories – Legal effect of including a document in Part A of the Bundle of Documents – Whether the placement of a document in Part A meant that the parties agreed to the truth of the contents of the document as opposed to merely the contents of the document – Order 34 Rules 2(2) (d) and (e) of the Rules of Court 2012 and Practice Direction Number 2 of 2014 – Whether the trial court in the instant case erred in holding that the documents placed in Part A required proof of the truth of their contents

Litigation & court procedure – Pleadings – Whether the plaintiff could lead evidence on allegedly defamatory statements at trial which had not been specifically pleaded

[2018] MYCA 208Court of Appeal

Suit Number: Civil Appeal No. W-02(IM)(IPCV)-1261-07/2017  Date of Judgment: 05 July 2018

Litigation & court procedure – Application for a stay of a prohibitory injunction pending the disposal of an application for leave to appeal at the Federal Court – Absence of averment in the supporting affidavit that there was indeed an application for leave to appeal at the Federal Court – Whether the absence of pending proceedings before the Federal Court fatal to the application for a stay

Litigation & court procedure – Stay application – Discretionary powers of the court – Whether the court ought to favour a person who by conduct was perceived to have breached the contractual obligation as well as statutory obligation – Whether a stay application before the Court of Appeal against its own decision could be granted on a nugatory principle – Whether the stay would give rise to any actual prejudice – Whether the court should be slow in granting a stay in a case involving self-induced misconduct (breach of contract as well as statute) and criminal element

[2018] MYCA 207Court of Appeal

Suit Number: Rayuan Sivil No. B-02(NCVC)(W)-487-03/2018  Date of Judgment: 05 July 2018

Litigation & court procedure – Application for a stay of execution pending appeal – Jurisprudence related to stay under sections 44 and 73 of the Courts of Judicature Act 1964 – Whether special circumstances need to be shown before a stay could be granted – Whether minute consideration of allegations of both sides required at the stay application stage – Whether the instant case a fit and proper case for a section 44 stay

[2018] MYCA 206Court of Appeal

Suit Number: Rayuan Sivil No. W-02(IM)(NCVC)-2133-11/2016  Date of Judgment: 04 July 2018

Litigation & court procedure – Cause of action predicated on the tort of maliciously instituting civil proceedings – Application under Order 18 rule 19 of the Rules of Court 2012 to strike out a suit on the ground that it does not disclose any reasonable cause of action

Litigation & court procedure – Application under Order 18 rule 19 of the Rules of Court 2012 – Powers of courts under Order 18 rule 19 – Principles upon which courts act in exercising their summary powers of striking out

Tort – Malicious prosecution – Whether the tort of civil malicious prosecution exists – Whether the tort of malicious prosecution limited to malicious institution of criminal prosecutions – Whether the tort of malicious prosecution available in civil proceedings – Availability of the tort of malicious prosecution in civil claims which constitute special cases of legal process such as malicious presentation of bankruptcy or winding-up petitions

Litigation & court procedure – Whether the instant case plain and obvious for the court to exercise its power of striking out – Whether the court should engage in a minute examination of documents and facts to ascertain a cause of action – Whether the summary process of striking out suitable in the instant case

[2018] MYCA 205Court of Appeal

Suit Number: Civil Appeal No. W-02(A)-130-01/2017   Date of Judgment: 03 July 2018

Professional liability – Legal profession – Disciplinary proceedings against the respondent advocate and solicitor – Complaint dismissed by the Disciplinary Board pursuant to section 103D of the Legal Profession Act 1976 – Appeal to High Court dismissed – Appeal to Court of Appeal

Professional liability – Legal profession – Disciplinary proceedings – Whether the complaint against the respondent solicitor a complaint within the meaning of the section 99 of the Legal Profession Act and the relevant disciplinary rules – Whether the Disciplinary Board should have dismissed the “complaint” in limine under section 100(1)(a) of the Legal Profession Act

Professional liability – Legal profession – Disciplinary proceedings – Whether the High Court in hearing the appeal from the decision of the Disciplinary Board failed to draw proper conclusions from the circumstantial evidence adduced by the appellant – Whether the evidence against the respondent inconclusive – Whether the evidence against the respondent met the required standard of proof – Whether there was an appealable error warranting appellate intervention

[2018] MYCA 204Court of Appeal

Suit Number: Civil Appeal No. W-02(NCVC)(W)-1859-09/2017  Date of Judgment: 11 June 2018

Purchase of house – Sum of RM 280,000 given by the plaintiff to the defendant (with whom he was in a romantic relationship) allegedly as a monetary gift to support the defendant in her purchase of a house – House purchased by and registered in the defendant’s name – Sale of house – Whether the defendant was entitled to the whole proceeds of the sale of house

Agreement between the parties – Whether there was an oral agreement/ understanding that the defendant was to hold the house in trust for the plaintiff – Whether there was an oral agreement/ understanding that the defendant was to pay to the plaintiff 50% of the proceeds of sale of house – Whether the sum of RM 280,000 given by the plaintiff to the defendant as a monetary gift

Trust – Resulting trust – Whether there was a resulting trust and/or constructive trust – Applicability of the presumption of a resulting trust – Rebuttal of the presumption of a resulting trust – Whether the presumption of advancement and/or gift relied on by the defendant to rebut the resulting trust applicable

[2018] MYCA 203Court of Appeal

Suit Number: Rayuan Sivil Nos. W-02(C)(A)–505-03/2017 & W-02(C)(A)-506-03/2017  Date of Judgment: 03 July 2018

Alternative Dispute Resolution – Adjudication – Construction Industry Payment and Adjudication Act 2012

Alternative Dispute Resolution – Adjudication – Whether an adjudicator excluded from considering defences not raised in the Payment Response but raised in the Adjudication Response under section 10 of the Construction Industry Payment and Adjudication Act 2012 – Whether the failure of an adjudicator to consider such defences, if the adjudicator is not excluded from considering such defences, would amount to a breach of natural justice

Alternative Dispute Resolution – Adjudication – Whether the Federal Court decision in View Esteem Sdn Bhd v Bina Puri Holdings Berhad applies in the instant case – Whether the instant case could be distinguished – Applicability of the doctrine of stare decisis – Whether the award of the adjudicator should be set aside

[2018] MYCA 202Court of Appeal

Suit Number: Civil Appeal No. W-02(NCVC)(A)-838-04/2017   Date of Judgment: 24 April 2018

Contracts & commercial – Joint venture agreement – Termination – Whether there was a breach of the Agreement – Guidelines relating to the interpretation of private agreements – Whether the trial court had considered the background factual matrix when interpreting the Agreement – Whether the trial court had erred in relying only on disputing affidavit evidence

[2018] MYCA 201Court of Appeal

Suit Number: Civil Appeal No. W-02(NCC)(A)-1219-07/2017  Date of Judgment: 07 June 2018

Arbitration – Arbitration award – Registration of arbitration award – Section 38 of the Arbitration Act 2005 and Order 69 Rules of Court 2012

Arbitration – Arbitration award – Meaning of “award” within the Arbitration Act 2005 – Whether an “award” means any part of the award as ascertained by the court or the entire award – Whether a court in registering an award under sections 38 and 39 of Arbitration Act 2005 could select the dispositive part of the award and ignore the other parts

Arbitration – Arbitration award – Registration of arbitration award – Whether the registration of an award could be refused on the ground that the registration was an attempt to utilize the findings of the award for ulterior or collateral purpose and not for the purpose of enforcing the award – Whether confidentiality a valid ground against registration of an award as a whole

[2018] MYCA 198Court of Appeal

Suit Number: Rayuan Sivil No. B-02(A)-831-04/2017  Date of Judgment: 11 June 2018

Banking & finance – Loan facility made available by a bank – Landed property as security for the loan – Default in the repayment of the loan – Recovery of debt – Enforcement of the charge over the landed property

Litigation & court procedure – Limitation – When does a cause of action accrue for the purposes of section 21(1) of the Limitation Act 1953 in relation to a proceedings for recovery of a landed property by way of an enforcement of a charge – Construction of sections 21(1) and (5) of the Limitation Act 1953 in the context of section 256 of the National Land Code

Litigation & court procedure – Limitation – Whether proceedings for the recovery of the landed property by way of an order for sale available to the bank after the expiry of twelve years pursuant to section 21(1) of the Limitation Act 1953 – Whether the bank entitled to claim interest on the debt due beyond a period of six years in view of section 21(5) of the Limitation Act 1953

[2018] MYCA 197Court of Appeal

Suit Number: Rayuan Sivil Nos. W-02(NCVC)(A)-433-03/2016 & W-02(NCVC)(A)-434-03/2016  Date of Judgment: 11 June 2018

Real estate – Management fees – Claim by a management corporation of a condominium for management fees against purchasers of condominium units, who purchased those units from a previous owner – Portion of the debt claimed included management fees incurred during the time of the previous owner

Real estate – Management fees – Whether the purchasers liable to pay the outstanding management fees for their respective units prior to their acquisition of those units – Whether the purchasers the successors in title to the respective units – Whether the management corporation could recover outstanding contributions levied under section 45(3) of the Strata Titles Act 1985 from the successors in title – Whether the purchasers of the units from the previous owner could become liable for a service that was performed for the benefit of the previous owner and which they had not had the benefit of

Debt recovery – Filing of proof of debt – Whether the filing of the claim vide the proof of debt form against the previous owner preclude the management corporation from seeking recovery against the purchasers particularly when the debt remains unpaid – Whether the filing of the proof of debt form against the previous owner operate as an estoppel against recovery of the debt from the purchasers given the sections 45(5) and (6) of the Strata Titles Act 1985

Litigation & court procedure – Limitation – Whether limitation would come into play given that the accounts relating to management fees are running accounts

Litigation & court procedure – Whether there was an appealable error that warranted appellate intervention

[2018] MYCA 196Court of Appeal

Suit Number: Civil Appeal No. B-02(A)-1303-07/2017  Date of Judgment: 26 June 2018

Litigation & court procedure – Application for pre-action discovery pursuant to Order 24 Rule 7A of the Rules of Court 2012 – Jurisprudence related to discovery and pre-action discovery – Whether Order 24 rule 7A applies to contracting parties – Whether the jurisprudence advocated by the trial court flawed

Litigation & court procedure – Common law position for pre-action discovery – Norwich Pharmacal Company v Customs and Excise Commissioners

Litigation & court procedure – Application for pre-action discovery – Whether there was an alternative action available to the respondents – Whether it would be an abuse of process for the respondents to seek for a pre-action discovery order – Whether the trial court had failed to consider the salient object and legal history of pre-action discovery order under Order 24 rule 7A – Whether the trial court failed to appreciate that almost all pre-discovery applications in leading cases on the topic were made against third parties and not against contracting parties or parties who have contractual nexus by contract or statute – Whether the trial court had failed to consider the test provided in Order 24 rule 8 in the proper perspective– Whether appellate intervention warranted

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