THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[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

[2018] MYCA 247Court of Appeal

Suit Number: Rayuan Sivil No. A-02(NCVC)(W)-1974-10/2016  Date of Judgment: 24 May 2018

Litigation & court procedure – Application to strike out a claim pursuant to Order 18 Rule 19(1)(a)(b) and (d) of the Rules of Court 2012 – Whether there was a clear and obvious case for striking out – Principles governing the striking out – Whether the claim “obviously unsustainable”, or “frivolous or vexatious” to be struck out

[2018] MYCA 245Court of Appeal

Suit Number: Rayuan Sivil No. W-02(IM)(NCVC)-984-05/2016   Date of Judgment: 16 March 2018

Litigation & court procedure – Application to strike out an amended claim pursuant to Order 18 rule 19(1)(a)(b) or (d) of the Rules of Court 2012

Probate – Contentious probate action – Order 72 of the Rules of Court 2012 – Whether the failure to comply with the mandatory requirements of Order 72 of the Rules of Court 2012 fatal to the probate action – Whether the appellant had failed to comply with the mandatory requirements of Order 72 of the Rules of Court 2012

[2018] MYCA 244Court of Appeal

Suit Number: Civil Appeal No. Q-02(NCVC)(W)-10-01/2016  Date of Judgment: 12 March 2018

Tort – Private nuisance – Smell from the adjoining defendant’s pig farm adversely affecting the sale of residential houses and shophouses developed on the plaintiff’s land – Action for injunctive relief and damages

Tort – Private nuisance – Scope of the tort of private nuisance – Whether the plaintiff entitled to a perpetual injunction to restrain the defendant from continuing with the rearing of pigs on the defendant’s land – Whether damages recoverable

Tort – Private nuisance – Whether the trial court had given undue consideration to the fact that the defendant’s pig farm had pre-existed the plaintiff’s development of the land – Whether the trial court had given due consideration to the current usage of land by the plaintiff in determining whether there was nuisance – Whether the duration of a particular activity a material consideration – Application of “the eggshell skull rule” – Whether appellate intervention warranted

[2018] MYCA 243Court of Appeal

Suit Number: Rayuan Sivil No. W-02(NCC)(W)-439-03/2015  Date of Judgment: 09 March 2018

Contracts & commercial – Share sale agreement between the plaintiff and the second defendant – Loan obtained by the second defendant from the first defendant for the part payment of the purchase price of the shares to the plaintiff – Cheque issued by the first defendant payable to the plaintiff – Subsequent dishonouring of the cheque by the first defendant by stopping payment as instructed by the second defendant – Action by the plaintiff against the first defendant for the non-payment of the cheque – Whether the plaintiff has a cause of action against the first defendant premised on the latter’s dishonouring of a cheque issued to the plaintiff although the cheque was issued in respect of a debt of a third party

Contracts & commercial – Whether there was a contractual relationship between the plaintiff and the first defendant – Whether there was consideration that passed from the plaintiff to the first defendant in return for the value of the cheque issued – Whether there was a relationship between the receipt of the bill and the debt of the third party (second defendant) to constitute valuable consideration – Whether the plaintiff could maintain a cause of action against the first defendant premised on the dishonoured cheque

Banking & Finance – Bill of Exchange – Cheque – Whether the common law requirement of contract that consideration must move from the promisee applies to a valid bill of exchange – Whether the antecedent debt or liability should necessarily be that of the drawer or whether that could be a debt or liability of a third party

[2018] MYCA 242Court of Appeal

Suit Number: Rayuan Jenayah No. W-05(LB)-395-11/2016   Date of Judgment: 02 August 2018

Criminal law – Trafficking in dangerous drugs – Acquittal – Appeal by the prosecution against the acquittal

Criminal law – Whether the trial judge failed to decide that the weight difference of the impugned drugs in the charge and the evidence of the chemist was just an omission that does not amount to an injustice to the accused – Whether the trial judge erred in finding the chain of evidence broken – Whether the trial judge failed to properly appreciate the evidence

[2018] MYCA 241Court of Appeal

Suit Number: Rayuan Sivil No. W-01(A)-486-12/2017   Date of Judgment: 23 July 2018

Administrative law – Judicial review – Section 4 Notice containing the proposed recommendations of the Election Commission’s review of the division of the Federal and State constituencies in Selangor – Judicial review application by Selangor state government to impugn the Section 4 Notice

Constitutional law – Whether the proposed recommendations by the Election Commission violated Article 113(2) read together with paragraphs (c) and (d) of section 2 of the Thirteenth Schedule of the Federal Constitution as they allegedly malapportioned and gerrymandered constituencies in the state of Selangor – Whether the proposed recommendations of the Election Commission subject to judicial review – Whether the complaints of malapportionment and gerrymandering subject to judicial review

Administrative law – Judicial review – Whether the proposed recommendations based on the current electoral rolls as required by section 3 of the Thirteenth Schedule of the Federal Constitution – Whether the complaint that the Election Commission failed to use the ‘current electoral rolls’ justiciable – Whether the information provided by the Election Commission in its proposed recommendations inadequate, and if, whether such inadequate information violated the rules of natural justice and legitimate expectation of the voters, the local authorities and the government of the state

Litigation & court procedure – Whether the appellant state government has the locus standi to make the judicial review application under Order 53 of the Rules of Court 2012

[2018] MYCA 235Court of Appeal

Suit Number: Rayuan Jenayah No. W-06A(SH)-13-12/2016  Date of Judgment: 31 July 2018

Criminal law – Intentional omission to give information relating to terrorist acts – Offence punishable under section 130M of the Penal Code – Conviction – Sentence – Appeal

Criminal law – Whether the appellant had reason to believe that an act of terrorism would be committed – Whether the appellant was legally bound to provide information to the authorities in relation to an act of terrorism – Whether the failure of the prosecution to display a forensic report in respect of the appellant’s social media and telephone account material

[2018] MYCA 234Court of Appeal

Suit Number: Rayuan Jenayah No. B-05(IM)-10-01/2017  Date of Judgment: 31 July 2018

Criminal law – Trafficking in dangerous drugs – Conviction – Sentence – Appeal – Whether conviction safe

Criminal procedure – Whether the trial court failed to adequately consider the appellant's defence of an innocent carrier without knowledge and in holding that the appellant was guilty of wilful blindness – Whether the trial court failed to make a specific finding on the elements of possession and trafficking – Whether appellate intervention warranted

GET J-ALERTS

Search Judgments

Notice: The Promoters of Malaysian Judgments acknowledge the permission granted by the relevant official/ original source for the reproduction of the above/ attached materials. You shall not reproduce the above/ attached materials in whole or in part without the prior written consent of the Promoters and/or the original/ official source. Neither the Promoters nor the official/ original source will be liable for any loss, injury, claim, liability, or damage caused directly, indirectly or incidentally to errors in or omissions from the above/ attached materials. The Promoters and the official/ original source also disclaim and exclude all liabilities in respect of anything done or omitted to be done in reliance upon the whole or any part of the above/attached materials. The access to, and the use of, Malaysian Judgments and contents herein are subject to the Terms of Use.