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CPC TUTORIAL CASE SUMMARY 1ST WEEK (O. 14A + )
CASE : KERAJAAN NEGERI KELANTAN v. PETROLIAM NASIONAL BERHAD
&
OTHER APPEALS
FEDERAL COURT, PUTRAJAYA
SUMMARY 1. By agreements known as the Kelantan Petroleum
Agreement
and the Kelantan Grant executed on 9 May 1975 between the
State Government of Kelantan (plaintiff) and Petroliam
Nasional Berhad (Petronas), a company conferred with the
rights and powers as spelt out in the Petroleum Development
Act 1974 (PDA), the plaintiff and Petronas agreed that:
(i) Petronas would have exclusive, perpetual and
irrevocable right to explore for and exploit petroleum
lying in the offshore of the State of Kelantan; and
(ii) Petronas would make cash payments to the plaintiff in
the form of a yearly sum amounting to 5% of the value
of petroleum won and saved thereof.
2. It was not in dispute that the Kelantan Grant was executed
in
the form provided by the Schedule to ss. 2 and 4 of the PDA,
and indeed represented the Vesting Deed so referred to in
the
Act.
3. The plaintiff alleged that Petronas has failed to make the
cash
payments as promised, and in the event, averring breach of
contract, unfair discrimination, constitutional breach and
estoppel, claimed for specific performance of the
agreements.
4. The facts also showed that, pursuant to the suit, the
Government
of Malaysia, who claimed to have exclusive rights to all
petroleum won by Petronas in the continental shelf off the
coast
of Kelantan, successfully applied for leave to intervene and
was
named the second defendant in the suit.
5. Be that as it may, on 10 February 2011, the plaintiff served
a
notice on Petronas to produce documents which they alleged
were relevant to their claim and to the issue of Petronas
liability
under the agreements. These include the agreements and
grants
as executed between Petronas and other State Governments
under the PDA, documents pertaining to areas of petroleum
won
and obtained offshore Kelantan, production-sharing
agreements
as executed by Petronas with contractors in respect of
Kelantans petroleum production areas, documents on the
production and payments made between Malaysia and Thailand
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relating to the Malaysia-Thailand Joint Authority and
accounts
of royalty payments as was paid by Petronas to the Federal
Government in respect of petroleum production areas for the
states of Kelantan, Sabah, Sarawak and Terengganu
respectively.
6. Petronas did not however oblige, and the plaintiff hence
filed an
application for discovery of the documents under O. 24 Rules
of the High Court 1980 (RHC). In retort, Petronas and the
second defendant thereafter by separate applications applied
to
the High Court for the disputes to be resolved by way of
determination of certain questions of law pursuant to O. 14A
and/ or O. 33 r. 2 of the RHC.
7. On 7 October 2011, the High Court dismissed the
plaintiffs
discovery application on the grounds that the documents
sought
to be disclosed were either not determinative of Petronass
liability under the agreements, not relevant to the core issue
of
whether the plaintiff was entitled to petroleum won in the
continental shelf off the coast of Kelantan, or not in the
possession or control of Petronas.
8. The learned judge then went on to hear the O. 14A
applications
and, on 18 January 2012, allowed the same. It was the view
of
the learned judge, upon the authority of the Court of Appeal
in
Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu, that
the determination of the core issue aforesaid could be
deduced
merely from the construction of documents thereby making a
full trial unnecessary.
ISSUES The plaintiff applied for and having been granted leave
to appeal
posed the following questions of law for the determination of
the
Federal Court, namely:
(i) whether, the applicable test for an O. 14A application
as
propounded in the Terengganu case still applies;
(ii) Whether the O. 14A procedure as adopted by the courts
below
was (in)appropriate; and
(iii)Whether the courts below were correct in relying on O. 24
rr. 4
and 8 of the RHC when dismissing the discovery application
at
that stage of the proceeding, and in any case, whether the
O.
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14A applications should only be determined after the parties
had
completed discovery of the documents.
ARGUMENT FOR
P AND D
APPELLANT/ PLAINTIFF
The plaintiff claimed that the defendant has failed to give
consideration
and also the obligations pursuant PDA and related documents.
Among
them, Petronas has failed to provide a description of the
activities to
find petroleum and petroleum production from the offshore
Kelantan.
Kelantan also stated that Petronas has failed to make cash
payments for
petroleum offshore obtained in Kelantan. The plaintiff's claim
is made
on the basis of the following, namely Petronas has breached
the
agreement in Clause 8 and Clause 13 of the Federal
Constitution,
discrimination is unfair (unfair discrimination) and estoppel.
Kelantan
Government requested that the Court grant an order specific
performance and an examination of accounts and disclosure to
determine the full payment to the plaintiff on petroleum that
has been
issued, obtained or possessed, and an order for all future cash
payments
paid to the plaintiff pursuant to the terms of the agreement and
PDA.
DEFENDANT
Legal issues brought by Petronas are:
1. Is the plaintiff entitled to petroleum obtained in basic
continental
shelf as defined by the Continental Shelf Act 1966 in
offshore
Kelantan before and up to the enactment of the PDA; and
before
and up to the agreement dated March 22, 1975;
2. Whether the plaintiff put any rights to the petroleum
obtained in
the continent as the agreement dated 22 Mac1975;
3. Whether the plaintiff is entitled to payment under section 4
of the
PDA to the petroleum obtained in basic continental offshore
Kelantan;
4. Whether the doctrine of estoppel applies to the Petronas;
5. Whether the testimony by lawmakers in Parliament or any
other
person involved in the drafting PDA, in terms of government
policy and / or destination PDA acceptable in terms of law
in
determining the goals PDA, and if applicable the same there
is
evidence to determine intent and Parliament as enshrined in
the
provisions of the PDA.
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The Malaysian government also raised the question same like
Petronas.
ANY PRINCIPLE/
TEST/
DEFINITION OF
ANY TERMS
Order 14
JUDGEMENT The appeals were dismissed by the Court of Appeal.
GROUND OF
JUDGEMENT
1. The Court of Appeal in the Terengganu case did not lay down
a
hard and fast rule on the application of O. 14A. The decision
in
the Terengganu case merely stated some of the relevant
factors
which should be considered in dealing with an application
under
O. 14A and they are not meant to be exhaustive.
2. The position of the law in an O. 14A application is that,
where
there were serious disputes of facts involved, it is
inappropriate
and unsuitable to have recourse to an O. 14A procedure. In
contrast, the Court of Appeal in the Terengganu case, after
scrutinising the pleadings, concluded that the issues raised
were
purely legal issues based on the construction of documents
which are suitable to be determined by the O. 14A procedure.
3. In this case, the core issue as per the pleadings which was
based
on the breach of contract cause of action is whether the
plaintiff
has any rights over petroleum won and saved in the
continental
shelf off its coast. This core issue has been sufficiently
addressed in the proposed questions or issues of law pursuant
to
O. 14A, and it is clear that the outcome of the plaintiffs
claim
rested entirely on the determination of this core issue.
Such
determination, further, will be decisive as to the plaintiffs
other
causes of action (unfair discrimination, constitutional
breaches
and estoppel) considering that they are grounded on the
underlying presumption that the plaintiff has the rights
over
petroleum located in the continental shelf off its coast.
4. The plaintiffs case with regards to its rights over
petroleum
won and saved in the continental shelf off its coast is based
on
the Kelantan Petroleum Agreement and the Kelantan Grant
which were entered pursuant to the provisions of the PDA.
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Clearly, this was a question of law which could be resolved
by
reference and interpretation of the relevant legislations
and
contractual documentations without having to go for a full
trial
of the action. It is trite that where the question of
construction
is a dominant feature of a case, the court should proceed to
determine that issue and it is sufficient if substantial
matters
thereof can be disposed of. In the present case, the
pleadings
have made reference to various legislations which were
comprehensive and sufficient for the determination of the
legal
questions involved, to the exclusion of the oral evidence of
witnesses. The construction of these agreements did not
require
the testimony of witnesses as the terms of the agreement were
a
mandatory reflection of the statutory provisions of the PDA
where effect must be given to such provisions.
5. The main concern here was the exercise of the discretion of
the
learned High Court Judge in making the order that the action
proceeded by way of O. 14A, as later confirmed by the Court
of
Appeal. The issue for this courts consideration was
therefore
whether the High Court and the Court of Appeal decided the
matter correctly and in accordance with the principles for
such
exercise.
6. The learned High Court Judge had considered the material
facts
before her as disclosed in the pleadings. The learned judge
also
noted the similarities of the arguments raised before her
with
that of the Terengganu case, and had substantially relied on
the
reasoning of the Court of Appeal in that case, and further,
had
correctly identified the differences in the application of
facts
between the two cases before concluding that this was a
proper
case to be determined under O. 14A. There was no error or
misdirection whether in the application of principle or in law
on
the part of the learned judge. There was no reason or
justification for this courts interference, and consequently
the
second question posed was answered in the negative.
7. As for the discovery issue in the first appeal, the
documents
sought were not only very extensive, but irrelevant to the
core
issue. The documents sought only relate to the issue of
quantum
of damages and went nowhere towards establishing the issue
of
liability in the case. In the circumstances, in view of the O.
14A
applications herein, the learned judge was correct in
holding
that discovery was not necessary at that stage of the
proceedings. The learned judges decision in dismissing
discovery at that stage of proceedings was in line with the
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underlying principle under O. 24 r. 4 which underscored that
the
discovery process was predicated on the issues involved in a
particular case. It followed that, in this case, the
determination
of the core issue in the O. 14A applications had rightly
been
decided to precede the discovery. It followed further that
the
exercise of discretion by the learned judge in the matter was
in
accordance with principles which did not justify this courts
interference.
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PETROLEUM NASIONAL BHD V. KERAJAAN NEGERI TERENGGANU &
ANOTHER APPEAL
[2003] 4 CLJ 337
MOHD NOOR AHMAD, RICHARD MALANJUM AND HASHIM YUSOFF JJCA
CIVIL APPEAL NOS W-01-62 OF 2002 AND W-01-65 OF 2002
SUMMARY OF
FACTS
1. On 22 July 1975, the Government of the State of Terengganu
(the
plaintiff), by the then Menteri Besar, signed a vesting
instrument, vesting
on the first defendant the ownership, rights, powers, liberties
and
privileges of exploring, exploiting, winning and obtaining
petroleum.
2. On the same date an agreement was entered into by both
parties whereby
it was agreed that in consideration of the vesting instrument,
the first
defendant shall make payments in the form of a yearly sum
amounting to
the equivalent of 5% of the value of petroleum won and saved in
the State
of Terengganu and sold by the first defendant, its agent or
contractors.
3. Accordingly payments were made until March 2000 when the
first
defendant ceased to make such payment. The plaintiff brought
this action
against both the defendants based on several causes of action as
set out in
its statement of claim wherein the plaintiff sought several
reliefs.
4. After the close of the pleadings, the first and second
defendants filed
summons in chambers (SIC) seeking leave of the court for the
determination of several preliminary issues of law under O 14A
and O33
of the Rules of the High Court 1980.
ISSUES
1. The question before the court was whether the issues of both
facts and law
arising in the instant case could be appropriately dealt with
under O 14A
and O33 R2 of the RHC.
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DEFENDANTS
ARGUMENT
Defendants contended that the court is perfectly able to
elucidate the provisions
of the constitutions, agreements, statutes and conventions
without the aid of
extrinsic or oral evidence. It is the defendants contention that
these questions or
issues if determined one way or the other will be decisive of
the matter before the
court.
PLAINTIFFS
ARGUMENT
The plaintiff strenuously resisted the defendants application.
Myriad question of
law fall for determination. They include novel and difficult
legal questions. Such
questions cannot be answered in isolation or in a vacuum; they
can only be
properly determined after evidence, both documentary and viva
voce, are adduced
and facts emerge at trial. Hence, it is vital for the factual
matrix to evolve and
develop before an attempt is made to determine legal
questions.
JUDGMENT
Held, allowing the defendants' appeal with costs:
(1) The primary issue in the suit was whether the plaintiff had,
at any time,
sovereign rights over petroleum in the continental shelf
adjacent to the
coast of Terengganu. This primary issue was contained in the
first three
questions posed in the defendants' applications. All the
questions were
purely questions of law. If the answer to the first question was
in the
plaintiff's favour, the answers to the second and third
questions should also
be in the plaintiff's favour. Hence, the answers would be
decisive of the
main or a substantive part of the suit.
Therefore, what remained to be done was the determination of
liability in damages
and its assessment, if any, against the defendants since each of
the defendants had
made a concession not to contest the plaintiff's claim should
the questions be
answered in the plaintiff's favour. On the other hand, if the
answer to the first
question was against the plaintiff, the subsequent two questions
would suffer the
same fate and consequently, its action was doomed to fail
because without the
said right the plaintiff had nothing to vest in the first
defendant and hence, would
not be entitled to the payments under the principal agreement.
Therefore, the
determination of the threshold issues as preliminary issues
would be decisive of
the whole litigation or essentially the main part of the suit.
This would result in a
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substantial saving of time and cost as it would significantly
cut down the costs
and time involved in pre-trial preparation or in connection with
the trial proper.
(2) The High Court judge had merely considered the pleadings and
the
submissions of the parties and concluded that this case was far
from being
plain and simple because it raised a number of complex legal
issues. The
High Court judge did not identify and make proper appraisal of
the
material facts pleaded which were obviously undisputed or which
should
not have been disputed. Had he done so he would have been able
to
appreciate the facts and the magnitude of the case better and
would have
arrived at an appropriate conclusion and finding. Hence, his
exercise of
discretion was incorrect. In any case, even if the case appeared
to be or
was complicated, it did not mean that the court must shun away
from
considering the applicability of O 14A and O 33 r 2 of the RHC
in relation
to the questions of law which were clear and definite.
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BATO BAGI & ORS V. KERAJAAN NEGERI SARAWAK & ANOTHER
APPEAL
Summary of Facts
1. Appellants in this case are natives of Sarawak and having
native customary rights over
the land that they were residing.
2. Their native customary rights over the land were also
extinguished. They claimed that
the extinguishment violated their rights under art. 5 and 13 of
the Federal Constitution.
3. The appellants in Bato Bagi were contending that the
extinguishment of their native
rights was void because it violated their fundamental rights
under Article 5, 8, 13 and
153 of the Federal Constitution as well as Article 39(1) and
39(2) of the Constitution of
Sarawak.
4. They were asking the court to declare sec 5(3) and 5(4) of
the Sarawak Land Code as
unconstitutional and that the extinguishment of their native
customary rights was invalid
and void and alternatively they prayed for adequate compensation
and damages.
5. The case proceeded under Order 14A of the Rules of High Court
(RHC). The High
Court judge was of the view that the case was suitable for
disposal under Order 14A
without the need for the matter to be ventilated through full
trial. The Court of Appeal
affirmed the decision of High Court.
6. Both Bato Bagi and Jalang urge this court to remit the case
back for a full trial with
witnesses and evidence.
Issue:
1. Whether s. 5(3) & (4) of the Sarawak Land Code relating
to the extinguishment were
ultra vires art. 5 of the Federal Constitution read with art. 13
of the Federal Constitution.
2. Whether the High Court were correct in disposing of both
matters by way of Order 14A
or equivalent in order to decide on the constitutionality of the
impugned sections
Plaintiff Arguments Their cases should be remitted to the High
Court for full
trial on the ground that O. 14A RHC 1980 was not the
proper mode of trial in determining the constitutionality
of ss. 5(3), 5(4) & 15(1) of the Code. Further, they
sought
to raise issues pertaining to their loss of livelihood,
their
entitlement to pre-acquisition hearings and the propriety
of the compensation awarded as no guidelines were
provided.
Defendant Arguments The matters were never pleaded and raised
inthe courts
below. Further, the leave question had not been framed
with the contemplation of such issues and neither were
they decided by the courts below. The only remaining
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issue is whether the native customary rights can be
extinguished via the impugned sections
Courts decision and reasoning 1. The appeal was dismissed by the
Court.
2. If Bato Bagi is not happy with the compensation
offered to them, they should have asked for it to
be arbitrated. During that arbitration they could
have raised all the issues regarding eg, loss of their
Farms, burial grounds and other matters affecting
their livelihood.
3. There is no need for this case to be sent back for
trial. As it is almost over ten years have lapsed
since 1997 of their rights over the land was
extinguished vide the Land Direction
(Extinguishment of Native Customary Rights).
4. The considerations that the arbitrator could take
would be wider than if the law had provided the
guidelines. If either party is unhappy they can
always go for judicial review (see O. 53 of Rules
of the High Court 1980). If it can be shown that
the High Court had erred then they could take the
matter higher.
5. As far as ss. 5(3) and (4) of the Code are
concerned,other issues such as failure to provide
proper notice of extinguishment of such rights
were not pleaded and therefore is unfair to the
other party. To allow the appellants to reopen the
issues on the facts of this case would giving
opportunity to every party who has not pleaded his
case properly to ask the appellate court for a retrial
on new issues.
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CIMB BANK BHD v. GAN TEOW HOOI & ORS
[2012] 9 CLJ
Summary of
Facts
The respondents had entered into a sale and purchase
agreement
with Paragon Nova Sdn Bhd (the vendor) to purchase a vacant
land at the price of RM125,000. Concurrently, the
respondents
also entered into a construction agreement with Atlaw
Housing
Sdn Bhd (the contractor) to build a two and a half storey
house on the vacant land at the price of RM200,000 which was
to be paid in accordance with the third schedule of the
construction agreement. The respondents applied for a
housing
loan in the sum of RM280,000 and this was approved by the
appellant. The agreement stipulated that RM100,000 was to be
released to the vendor for the purchase of vacant land while
RM180,000 was for the building or construction price to the
contractor. A loan agreement between the appellant and the
respondents was executed and the loan sum of RM 100,000 was
released to the vendor for the purchase of vacant land while
the
balance sum of RM180,000 was released to the contractor,
pursuant to cl. 2 of the Third Schedule of the construction
agreement. Since there was no notice of completion of work sent
to the
appellant, the sum of RM180,000 was not released to the
contractor. The respondents defaulted in the repayment of
the
loan as stipulated in an express term of the loan agreement
and
several notices of demand were issued to the respondents. The
respondents
lodged a police report against the vendor and contractor, on the
basis that
they did not have license
as housing developer. The Local Government and Housing Ministry
issued
a letter informing them they are in the process of investigating
the said
project. The appellant subsequently sent a notice of demand
claiming for
the total loan amount which was released to the respondents
inclusive of the
accrued interest. However no payment was made by them. The
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appellant then filed the writ of summons against the
respondents.
Issue(s) Whether sale and purchase agreement and construction
agreement void ab
initio.
Order and
Rules
Order 14A
Plaintiffs
Arguments
It was the appellants case that firstly it was never a
contracting party to
those agreements. The duty to verify the legality of the two
agreements was
therefore not imposed on the appellant either by statute or
under the loan
agreement.
In any case, it was the appellants contention that the loan
agreement entered into between the appellant and respondents
is
lawful and enforceable since it is not a prohibited
transaction
under s. 24 of the Contracts Act 1950.
Defendants
Arguments
It is the respondents case that both the sale and purchase
agreement and construction agreement were void ab initio
since
the vendor/contractor do not have licence as housing
developer.
The appellant was under a duty to verify the legality of the
sale and purchase
agreement and construction agreement. It is also the respondents
position
that the loan agreement is void and was therefore not
enforceable against
them.
Courts
Decision
The court allows the appeal.
The said loan agreement was valid even if
the sale and purchase agreement and construction agreement
was illegal and void. Even if there was non-compliance with
the Housing Development (Control and Licensing) Act 1966
for failing to obtain the required license as housing
developer,
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it would not render the sale and purchase agreement and or
the construction agreement as null and void. The loan sum had
been released
at the respondents request and at all material times, there was
no instruction
from the respondent borrowers to stop the progressive release of
the loan.
Relying on such representation by the respondents, the appellant
was under
no duty to further verify the legality of the sale and purchase
agreement and
construction agreement. The principle of estopped applies. The
respondents
did not take either of these courses of action, and as such,
must be
deemed to have affirmed the legality of the agreements. In
any
case too, it would be unjust and inequitable to allow the
respondents to raise the issue of illegality after seven of
years
the sale and purchase agreement and construction agreement
having been executed.
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PENTADBIR TANAH DAERAH, PONTIAN & ORS V OSSONS VENTURES
SDN
BHD
CASE SUMMARY P is the registered proprietor of two lots of land
and has
granted power of attorney to a company called Pedoman
Gading to act as Ps attorney.
Pursuant to Pedoman Gadings application, D issued a
letter dated 6th August 1998 to convey the State Councils
approval for the lands to be surrendered and re-alienated to
Pedoman Gading for 99 years.
Pedoman Gading failed to complete the sale and purchase
agreement and on 30th November 2000, P terminated the
sale and purchase agreement with Pedoman Gading.
Subsequently, D refused to acknowledge the
abovementioned approval and instead in 2002 D acquired
both lands from P.
For acquisition of both lands, D paid a sum of RM615,528.
P is dissatisfied with the amount compensation and filed
his action on 5th February 2003 and applied for a
declaration under O14A of Rules of High Court with
respect to the letter dated 6th August 1998.
High Court granted Ps application.
D appeal to the Court of Appeal.
ISSUE Whether or not the declaratory order which extended the
lease 99
years was contrary to the law and a nullity
PLAINTIFFS
ARGUMENT
(RESPONDENT)
P was the registered proprietor of the both lands which in
the declaration sought.
Thus the declaration sought was that the D had approved
Ps said lands for an extension of 99 years for development.
DEFENDANTS
ARGUMENT
(APPELLANT)
The declaration of the lease 99 years is contrary to law and
a nullity since the court lack of jurisdiction to make such
order.
DECISION Dismissing the appeal.
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Though the prayers in the statement of claim did not
specifically pray for the declaration as made by the High
Court, the High Court has power to make the declaration
because O14AR2 empowers the court to make such
order or judgment as it thinks just upon the
determination of the question of construction of a
document arising in the cause or matter.
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DREAM PROPERTY SDN BHD V ATLAS HOUSING SDN BHD
[2008] 2 MLJ 812
COURT OF APPEAL (PUTRAJAYA)
ZULKEFLI JCA, LOW HOP BING JCA AND ZAINUN ALI JCA
Summary of Facts
1. P agreed to sell to the D a piece of land and the D agreed to
purchase the same subject
to the terms and conditions as agreed by the parties. One of the
terms and conditions of
the agreement provided that, P shall be given nine months from
the date of the agreement
to relocate a Chinese school built on the property ('the
school') in order to hand over
vacant possession of the property to the D. It was also a term
of the agreement that, from
the date the P confirms in writing that vacant possession of the
property is ready to be
delivered to the D and upon inspection and confirmation by the
D, the D shall have four
months to settle the balance purchase price to the P.
2. P claimed that vacant possession of the school, hence the
property, was delivered to the
D on 21 November 2005. However, the D contended that vacant
possession of the school
was not delivered to the D on 21 November 2005, but instead on28
February 2006. P
proceeded to file an action against the D in the court below,
and in its action, P claimed
against the D, inter alia:
a) a declaration that vacant possession of the property had been
delivered by P to the D
on 21 November 2005; and
b) a declaration that the D had failed to pay to P the balance
purchase price and the
interest for the extended period on or before 21 May 2006, and
therefore, the deposit
of 10% of the purchase price paid by the D was forfeited by
P.
3. P thereafter filed an application under O 14A of the Rules of
the High Court 1980 for the
court to determine the date of delivery of vacant possession of
the school to the D. The
D opposed P's O 14A application, inter alia, on the ground that
there was a dispute as to
the material facts which was evident from the parties'
affidavits and therefore the action
was not suitable to be determined under O 14A of the RHC. It was
also the D's contention
that P's O 14A application had failed to satisfy the
prerequisites of O 14A of the RHC
for the action to be determined under the order. The learned
judicial commissioner
decided that the issue on the date of delivery of vacant
possession of the property was
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suitable to be determined under O 14A of the RHC, and proceeded
to allow P's O 14A
application. D appealed.
Issue:
The issue was whether the date when vacant possession was to be
given to the D is a question
of fact, or was it a question of law or construction as
envisaged under O 14A?
Held :
Majority dismissing the D's appeal with costs:
Appellants Arguments
(Defendant)
1. No question of law is discernible from the pleadings
and so it was not suitable for determination under O
14A.
2. The scrutiny of the pleadings reveals that material
facts are disputed and so O 14A is inapplicable,
Respondents Arguments
(Plaintiff)
1. P was not invoking the 'question of law' provisions
under O 14A, but has actually relied on the alternative
limb pertaining to 'construction of document'.
2. Ps prayer stated no doubt that the plaintiff is seeking
a construction of document. Thus it is allowed under
Order 14 A r 1(1).
Courts decision and
reasoning [Para Number or
Page Number ]
1. Ps application came within the ambit of the
'construction of document' which is expressly
provided in O 14A r 1(1) (Page 15 Para 42)
2. The affidavits filed bear testimony to the unequivocal
factual events. The court is competent to identify the
material facts pleaded and conclude that they should
not have been disputed at all or otherwise. (Page 25
Para 137)
3. Clearly the plaintiff's O 14A application was
appropriate since the question of the construction of
relevant clauses pertaining to vacant possession in the
agreement was a central feature of the dispute
between the parties
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(Dissenting)
1. Ps prayer (1) it is for a determination on a question
of fact and should be determined in a full trial, not to
be determined summarily under the O 14A of the
RHC procedure.
2. No question of law framed or a specific question on
the construction of the agreement forwarded by P to
the court for consideration. This is apparent in the
plaintiff's O 14A application. (page 10 para 5)
3. The affidavits filed by the D in opposing the plaintiff's
O 14A application, clearly shown that there is a
serious dispute as to the material facts vis-a-vis the
date of delivery of vacant possession of the said
school to the D. (Page 11 para 7 )
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LEKAZ CONSTRUCTIONS SDN BHD V. KOP PETROLEUM SDN BHD;
HSBC BANK MALAYSIA BHD (INTERVENER)
HIGH COURT MALAYA, KUALA LUMPUR
JAMES FOONG J
Summary of Facts
1. The defendant has entered into an agreement with Esso
Production Malaysia Inc. in
respect to certain engineering works to be carried out in
Terengganu.
2. The plaintiff claimed there were breaches committed by the
defendant in the said
agreement. Therefore, the plaintiff served letter of demand to
the defendant demanding
for rectification within 7 days from the date of the said
letter. The defendant refused to
comply and a writ was served against him.
3. The defendant contended that, in the agreement under cl.
10.2, 30 days notice is
required to be given to the defendant to rectify any breach.
4. Therefore, the plaintiff appeal against the decision of the
Senior Assistant Registrar in
allowing the defendants application in encl. 24, to dismiss the
plaintiffs claim against
defendant by virtue of O. 14A of the Rules of High Court.
Issue:
1. Whether O. 14A of the RHC can be used to strike out the
plaintiffs claim?
Courts decision 1. The primary purpose and objective of this
procedure
under O. 14A RHC is not to provide a process to strike
out pleadings or an action or defence. Instead, the
court need to determine the question of law or
construction of document before decide to dismiss the
entire cause or matter or make judgment as it think
just.
2. There is no question of law framed or a particular
question on the construction of document forwarded
to the court for consideration.
3. The appeal was allowed.
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DATUK DR AWANG ADEK HUSSIN v. THE EDGE COMMUNICATIN SDN BHD
&
YANG LAIN
MAHKAMAH TINGGI MALAYA, SHAH ALAM
ZALEHA YUSOF H
Summary of Facts
5. The Edge Financial Daily telah menyiarkan satu laporan
prosiding Parlimen yang
mengfitnah Plaintif.
6. Defendan-defendan menegaskan bahawa memandangkan
perkataan-perkataan dalam
artikel secara tidak sengaja dikaitkan dengan plaintif, maka
pembetulan telah dibuat dan
dicetak serta permohonan maaf secara peribadi telah ditulis dan
oleh yang demikian,
sekiranya dan setakat mana yang perlu, defendan-defendan akan
bergantung kepada s.
10 Akta Fitnah 1957 bagi mitigasi atau penghapusan ganti
rugi.
Issue:
1. Sama ada pergantungan defendan-defendan kepada peruntukan s.
10 Akta Fitnah
1957 adalah suatu pengakuan liability terhadap tuntutan
plaintif?
2. Sama ada pergantungan defendan-defendan terhadap surat
permohonan maaf kepada
plaintif dan pembetulan serta permohonan maaf yang diterbitkan
dalam The Edge
Financial Daily merupakan pengakuan liability.
3. Sekiranya permohonan maaf dan pergantungan kepada s. 10 Akta
Fitnah 1957 adalah
suatu pengakuan liabiliti, sama ada defendan-defendan boleh
memohon
penghapusan ganti rugi di bawah s. 10 Akta Fitnah 1957 sedangkan
peruntukan
tersebut hanya membenarkan pengurangan ganti rugi.
Courts decision and reasoning 4. Skop A. 14A dan A. 33 k. 2 KKMT
1980 ialah
bertujuan mempercepatkan pelupusan sesuatu
tindakan di peringkat interlokutori bagi menjimatkan
masa dan kos. Apa yang penting adalah tidak wujud
sebarang pertikaian fakta material yang memerlukan
sesuatu tindakan itu dibicarakan secara penuh.
-
5. Mahkamah berpendapat bahawa artikel yang
diterbitkan yang bertajuk Ascot given preference due
to its experience, says MOF oleh defendan
sememangnya fitnah. Ini kerana 2 minggu sebelum
artikel ini disiarkan, YAB Perdana Menteri telah
menyatakan pendirian lessen judi sports betting
tidak akan dikeluarkan oleh kerajaan kepada Ascot
Sports Sdn Bhd.
6. Mahkkamah turut berpendapat bahawa permohonan
maaf yang dibuat oleh defendan bahawa artikel yang
ditulis itu adalah salah dan dibuat secara cuai tanpa
usul periksa adalah merupakan satu pengakuan
liabiliti secara tidak langsung oleh defendan.
Tambahan lagi, s. 10 Akta Fitnah hanya
membenarkan pengurangan ganti rugi, bukan
penghapusan ganti rugi.
7. Membenarkan tuntutan plaintif.
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THEIN HONG TECK & ORS V MOHD AFRIZAN BIN HUSAIN AND
ANOTHER
APPEAL [2012] 2 MLJ 299
FEDERAL COURT (PUTRAJAYA)
RAUS SHARIF PCA, AHMAD MAAROPAND HASAN LAH FCJJ
Summary of Facts
1. The first, second, third and fifth plaintiffs were partners
in a partnership known as ARCI
Enterprise while the fourth plaintiff was the administrator of
the estate of a deceased
partner of the partnership.
2. First defendant's filed suit for the sum of RM6,157,121.57
owed to it by the partnership.
While this suit was still pending, the first defendant filed a
creditor's petition seeking to
wind up the partnership for the very same amount of
RM6,157,121.57. The court
granted the winding up order and appointed the second defendant
as the liquidator of
the partnership. The plaintiffs then filed a suit to set aside
the winding up order and the
appointment of the second defendant as the liquidator of the
partnership. The first and
second defendants sought to strike off the plaintiffs' writ of
summons and statement of
claim. The HC judge hearing the plaintiffs' suit treated the
entire matter of the suit as
disposed of under O 14A of the 1980 RHC upon the determination
of whether the
winding up order could be set aside by this court on the ground
that it was a nullity ab
initio.
3. The HC judge set aside the winding up order and the
appointment of the second
defendant as the liquidator and dismissed the application to
strike off the plaintiffs' suit.
The first and second defendants appealed to the Court of Appeal
against that decision,
while the plaintiffs cross-appealed to have their writ of
summons and statement of claim
reinstated.
4. The Court of Appeal disagreed with the High Court judge and
held that the partnership
could be wound up under Part X of the Companies Act 1965 ('the
Act') by virtue of the
definition of 'unregistered company' in s 314(1) of the Act. The
order with regard to O
14A was therefore set aside.
5. However, the Court of Appeal upheld the High Court judge's
decision to dismiss the
first and second defendants' application to strike off the
plaintiffs' suit. The Court of
Appeal also allowed the plaintiffs' cross-appeal.Plaintiff cross
appeal to set aside the
winding up order and appointment of Second D as liquidator.
Issue:
1. Whether O14A suitable in determining the applicability of s
314 of the Companies Act
1965 to partnership?
2. Whether the appeal to set aside the HC judgment regarding the
winding up order and
appointment of second D as liquidator can be granted?
-
Appalentss
Arguments
1. Plaintiffs' contention that it would be absurd for a
partnership
registered under the Partnership Act 1961 ('the PA') to also
be
categorized as an unregistered company pursuant to s 314 of
the
Act.
2. Even if the Court of Appeal was right in holding that the
partnership was an unregistered company under s 314 of the
Act,
it did not fulfill the requirement of s 314 of the Act in that
it did
not comprise of more than five partners when the winding up
petition was presented.
3. Alternatively the plaintiffs submitted that even if the Court
of
Appeal was right in holding that the partnership was an
unregistered company under s 314 of the Act, it did not
fulfill
the requirement of s 314 of the Act in that it did not comprise
of
more than five partners when the winding up petition was
presented.
Defendants
Arguments
1. seek to have the plaintiffs' writ of summons and statement
of
claim struck out under O 18 r 19(1)(b) and (d) of the Rules
of
the High Court 1980.
Courts decision and
reasoning
Dismissing the appeals with costs
1. This court was in agreement with the Court of Appeal's
interpretation of s 314(1) of the Act. It was found that the
words
of s 314(1) of the Act were clear and unambiguous and ought
to
be given their literal interpretation.
2. The provisions of the PA, in particular s 40 and 41, only
dealt
with the voluntary winding up of a partnership by the
partners
themselves and no other. A creditor could not make an
application under the PA to wind up a partnership. As such,
s
314 of the Act was applicable in a situation where a
creditor
sought a remedy against an insolvent partnership which had
more than five members. Therefore a partnership with more
than
five members was an unregistered company and could be wound
up under Part X of the Act by virtue of the definition of
unregistered company ins 314(1) of the Act.
3. However, the facts of the case is not clear on whether
the
partnership had only five members at the time of the
presentation of the winding up petition. In fact this issue as
to
the number of members of the partnership at the material
time
could only be determined in a full trial.
-
4. It was trite law that O 14A of the RHC could only be
resorted
to if there was no dispute by the parties as to the relevant
facts,
or the court concluded that the material facts were not in
dispute.
In the present case there were serious disputed facts
involved
and these issues of fact were interwoven with the legal
issues
raised. As such, the Court of Appeal was correct in finding
that
O 14A of the RHC was not suitable for the purpose of
determining the applicability of s 314 of the Act to the
partnership in the present case .Federal Court agrees with
COA
with the finding that O 14A is not suitable for the purpose
of
determining the applicability of s 314 of the Act to the
partnership.
-
Summary of Facts
1. Appellant (Savant-Asia Sdn Bhd) filed a winding up petition
against the Respondent
(Sunway PMI-Pile) for the amount of debt owed.
2. Before the hearing date, the Respondent had already tendered
a cheque to the appellant for
the exact amount claimed and the cheque was cleared on 11 May
1999.
3. However, on 12 May 1999, the winding up petition was
published in The Star newspaper
and this consequently caused the Respondent to bring an action
for libel against the Appellant
on account of advertising the petition after the debt had been
fully settled.
4. The Appellant with his solicitor applied under 0. 14 and/or
0. 33 rr 2 and 5 of the RHC 1980
for the issue of absolute/qualified privilege raised in the
pleading to be tries as
PRELIMINARY ISSUE.
Issue:
Whether this case is suitable for determination under O 14A of
the Rules of the High Court
1980.
Appellant Arguments They contended that they were merely acting
in their
course of duties to publish the said advertisement as
according to r 24 of the Company (Winding Up) Rules it
was mandatory for them to advertise the petition.
Respondent Arguments Alleged that there was malicious intent on
the part of the
appellant in advertising the petition.
Courts decision and reasoning
[Para Number or Page Number ]
High Courts decision: [Para 10]
1. Dismissed the appellants applications on the ground
that since there is an allegation by the respondent of
malicious intent on the part of the appellant, which the
appellant deny (hence there is a dispute on a material
fact).
Court of Appeal:
Same decision with High Court.
Federal Court decision:
1. Leave to appeal was granted by the Federal Court on
the question [whether, where a winding up petition on
grounds of presumed insolvency under s 218(1)(e) of
the Companies Act 1965 has been filed and served on
Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd
[2009] 5 MLJ
754
-
a respondent and the respondent pays the sum stated
in the petition to the petitioner, the petitioner is
excused from advertising the petition and
surreptitiously keeps the money for himself to the
exclusion of the other creditors and subsequently
withdrawing the petition.]
2. The answer to this issue is negative since winding up
proceeding is a class action, therefore there is a need for
it to be advertised as provided in r 24 of the Rules.
3. Advertisement of the petition is a mandatory
requirement in a winding up proceeding and it cannot be
dispensed with.
4. This was a fit and proper case to be decided under O
14A of the RHC. The outcome of the claim by the
respondent rested entirely on the answer to the question
posed which purely involved the application of the facts,
which were not in dispute.
-
Summary of Facts
1. The Plaintiffs (Sin Hai Estate) prayed for damages against
the Defendants (Lim Jit Kian)
based on defamation.
2. Pursuant to O. 14A of the RHC 1980, Defendants 1 to 19
sought, an order to determine
whether or not the words complained of were capable of bearing
the meaning attributed to them
in the statement of claim, and if not, a consequential order
that the Plaintiffs claim be dismissed
and judgment entered for Defendants 1 to 19.
3. The learned registrar had held that the words used in the
statement of claim were not
defamatory, and pursuant to O. 14A, struck out the Plaintiffs
writ and statement of claim.
4. Against that decision, the Plaintiffs appealed.
Issue:
Whether this is an appropriate case for court to invoke O. 14A
Rules of the High Court 1980.
Plaintiff Arguments Plaintiffs submitted that this was not an
appropriate case
for the court to invoke O. 14A as there should be a full
trial.
Defendant Arguments Defendants submitted for the suitability of
disposing of
this action by way of a single issue of law as formulated
ie, can the plaintiffs rightly say that they have been
defamed by defendants 1 to 19 as stated in the plaintiffs
statement of claim. It was contended that the words
contained in the plaintiffs statement of claim were not
defamatory in the legal sense and so the very substratum
of action had collapsed.
Courts decision and reasoning
[Para Number or Page Number ]
8. Allowing the appeal, setting aside the order of the
learned registrar and reinstating the plaintiffs
writ and statement of claim.
9. The facts and circumstances as pleaded in the
plaintiffs statement of claim and the law applicable
to a particular cause of action must be given due and
careful consideration in order to determine the
question of law.
10. The actual meanings of these words in the averments
(as stated in Para 33) were in effect matters of
Sin Hai Estate Bhd & Ors v. Lim Jit Kim & Ors [2007] 7
CLJ 443
-
controversy which must perforce be determined after
a full trial having regard to the ingredients of
defamation and the defences thereto. The aforesaid
question formulated for defendants 1 to 19 could not
be appropriately dealt with or determined under either
O. 14A or O. 33 r. 2. There was no merit in the
application of defendants 1 to 19.
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NEWACRES SDN BHD V.SRI ALAM SDN BHD [1991] 3 CLJ (REP) 321
FACT OF THE CASE
- This is an appeal against the judgment given by High Court
dismissing the appellant's
application to dismiss the respondent's action commenced by
Originating Summons
- The appellant in this case had applied to dismiss the
respondent's action against them
on two grounds: (a)that the respondent was suing for payment of
money while the
contract was being performed; (b) that the respondent had not
referred the dispute
between the parties to arbitration.
ISSUES
1. Whether learned judge was wrong in dismissing the appellants
objections,
purporting to act under O 18 r 19 of the Rules of the High Court
1980 because of the
delay on the part of the appellant in making the application to
strike out the suit
APPELLANTS ARGUMENT
1. learned judge was wrong in dismissing the appellants
objections, purporting to act
under O 18 r 19 of the Rules of the High Court 1980 because of
the delay on the part
of the appellant in making the application to strike out the
suit.
2. under O 18 r 19 the application should be made as early as
possible and should not
be made at a very late stage, particularly at a stage when the
case was ready for trial.
3. The learned judge was wrong in holding that the appellant was
relying on s 6 of the
Arbitration Act 1952 (Act 93) on the question of arbitration
when the learned judge
said: '...if the defendants wish to have the matter referred to
arbitration they should
do so before taking any steps in the proceeding.
4. Learned counsel also complained that the learned judge was
wrong in holding that
the respondent had a cause of action in fiduciary duty without
regard to the true nature
of the claim of the respondent as was evident from the
Originating Summons
5. The proposition advanced by learned counsel for the appellant
is that a party to a
contract cannot go to court while a contract is being carried
out and ask for payment
without provision in the contract for him to do so.
6. The appellant argued that the respondent is not entitled to
any payment because there
is no provision for such payment in the agreement
7. Learned counsel for the appellant disputed the existence of
fiduciary duties arising
out of the joint venture agreement and in fact in the
appellant's statement of defence
-
it averred that the agreement is not a true joint venture
agreement but, in substance,
a sale and purchase agreement for the sale of the said land by
the respondent to the
appellant where the purchase price is to be paid. Therefore, all
the complaints made
by the respondent could not be regarded as breach.
RESPONDENTS ARGUMENT
1. Respondent states that the dispute between the respondent and
the appellant relates
to the implementation of the joint venture agreement by the
appellant, and by reason
of the joint venture agreement and by reason of all the
circumstances of the case, the
appellant is, at all material times, under a fiduciary duty to
act honestly, reasonably
and fairly and in all his dealings with the respondent.
2. The respondent alleges that at all material times the
appellant had acted in breach of
his fiduciary duties.
3. Where the appellant, referred to as the 'developer',
undertook to develop the land
belonging to the respondent, has not been terminated, the
respondent, strictly as a
matter of law, has no cause of action. In other words, the cause
of action is premature
and therefore no relief in the form of payment of money can be
made. There is no
termination of the contract and neither is there a breach of the
contract. It is still in
force; at least in 1985 when the action was commenced by the
respondent. In fact,
the parties are still going with the contract as at the present
moment.
4. The respondent claimed that he had received from the
appellant a sum of
$46,910,651.12. If there is any substance in learned counsel's
submissions on this
question how this sum was paid in the first place must be
explained aliunde and if
such payment is disputed then again oral evidence is inevitable.
These issues would,
by themselves, be sufficient to constitute a cause or causes of
action to justify a trial.
5. It is the respondent's case that a fiduciary relationship is
established between the
appellant and the respondent when they entered into the joint
venture agreement.
6. joint venturers owe to one another the duty of utmost good
faith due from every
member of a partnership towards every other member as stipulated
in the case of
Brian Pty Ltd v United Dominions Corp Ltd
JUDGMENT AND GROUNDS
Dismiss the application of applicant
1. There were several issues in this case which must be proved
by extrinsic evidence.
As such, these are matters that ought to be tried at the trial
proper and they cannot be
decided by recourse to O 33 r 2 read together with O 18 r 11 of
the Rules of the High
Court 1980.
-
2. In this case the appellant had not objected to the recourse
to the Court by the
respondent and had taken various steps in the proceedings and
even agreed for the
case to be set down for trial. Even if the appellant were to
apply for stay of the
proceedings in the High Court under s 6 of the Arbitration Act
1952, his application
would have failed. It is indisputable that the appellant did not
object to the recourse
to court by the respondent but went along throughout, not only
filing affidavits in
reply to the affidavits of the respondent when they filed the
issues as ordered by High
Court but also filing the statement of defence and counterclaim.
Such a conduct must,
by its very nature, amount to a waiver of the rights of the
parties to go to arbitration
3. The learned judge, therefore, is perfectly right when he
rejected this objection
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MALAYAN BANKING BHD V. WEMBLEY INDUSTRIES HOLDINGS BD [2012]
5
CLJ 956
FACT OF THE CASE
- Plaintiffs claim is for the outstanding monies due and owing
by the defendant to the
plaintiff in relation to banking facilities granted to the
defendant whereby the plaintiff
defaulted PhileoAllied Bank had by letters of demand dated 10
March 1998 and 24
March 1998
- This leads to the defendant entering into a Debt Restructuring
Agreement dated 15th
October 2014.
- loans from the other three banks were novated to PhileoAllied
Bank and the business
of PhileoAllied Bank including the indebtedness of the defendant
were duly vested
in the plaintiff (Malayan Banking) which involves a principal
sum of RM125 million
-
ISSUES
2. Whether Plaintiffs claim is time-barred whereby section
6(5)(b) Limitation Act 1953
would apply
3. Whether relevant period of limitation 12 years under section
21(1) Limitation Act
1953 apply
4. Whether the Recitals (B) and (C) in question and cl. 10.1
survived the DRA that had
not been carried through and indeed had lapsed
5. Whether there was a clear and unequivocal admission
acknowledgment of debt in
Recital (B) and (C) and cl. 10.1 of the DRA within the meaning
of s. 26(2) Limitation
Act 1953
PLAINTIFFS ARGUMENT
1. However if the 12 year limitation period applies by virtue of
s. 21(1) of the Limitation
Act 1953 because the loan is secured on a mortgage or charge,
then limitation would
not have set in at all.
2. Alternatively, even if the six year limitation applies, if
this court upholds the
argument of the plaintiff that there has been a fresh
acknowledgement of debt by the
DRA of 15 October 2004 then limitation would only set in on 15
October 2010 and
the writ having being filed on 24 February 2009 was filed within
time.
-
3. legal proceedings were commenced by PhileoAllied Bank against
BSN Commercial
Bank ( Malaysia )
4. Furthermore, the indebtedness of the defendant was at all
material times secured by
a charge over the assets, properties and undertaking of the
defendant, the relevant
period of limitation is 12 years under s. 21(1) of the
Limitation Act 1953. Following
s. 6(5)(b) of the said Act, the six years limitation period for
actions founded on a
contract is not applicable.
5. Then there is s. 21(5) of the Limitation Act 1953 to be
considered with respect to a
claim for interest for it provides that no action to recover
arrears of interest payable
in respect of any sum of money secured by a mortgage or other
charge shall be
brought after the expiration of six years from the date on which
the interest became
due. The writ was filed on 24 February 2009 and so ordinarily
the plaintiff could only
claim interest due from 24 February 2003 until 24 February 2009
and not interest
prior to 24 February 2003. As the accounts are computed on a
monthly basis, it would
not be incorrect to say that interest due as at 28 February 2003
would be time-barred.
6. However a sum in excess of RM48 million was received by the
plaintiff from Affin
towards reduction of the defendants indebtedness. Pursuant to
cl. 13.4 of the
Supplemental Agreement the order of application of monies
realised under security
documents (defined to include the debentures) is set out and
such monies shall go
towards payment of interest under cl. 13.4:2 before principal
under cl. 13.4:3.
7. The payment in excess of RM48 million will go towards payment
of the amount of
interest and since the payment is greater than the amount of
interest which would be
time-barred, this means that none of the amounts claimed herein
by the plaintiff
would be time-barred in any event.
8. The position is consistent with the common law position
enunciated in the rule in
Claytons case whereby
the various credits are prima facie to be treated as applied in
the order in which the debits
and credits are set against each other in the account, each new
credit being treated as
discharging the earliest outstanding debit
DEFENDANTS ARGUMENT
7. the plaintiffs claim was time-barred. The procedure adopted
is in line with O. 33 r.
2 of the Rules of the High Court 1980 (RHC) which reads:
The Court may order any question or issue arising in a cause or
matter, whether of fact or
law or partly of fact and partly of law,
-
and whether raised by the pleadings or otherwise, to be tried
before, at or after the trial of
the cause or matter, and may give directions as to the matter in
which question or issue shall
be stated.
8. Both parties agreed that ordinarily under s. 6 of the
Limitation Act 1953 the cause of
action of the plaintiff would have accrued on 29 January 2000 as
that was the date of
repayment in one lump sum of the loan outstanding.
9. If that was the case, limitation would have set in on 19
January 2006.
10. Learned counsel for the defendant submitted that the
plaintiff had been classified as
an unsecured financier in the DRA.
11. by that time the security of the shares of the defendant had
been disposed of and so
for purposes of classification of the financier in question, it
is not incorrect to have
categorized the plaintiff under the rubric of unsecured
financiers
12. On whether The Recitals (B) And (C) In Question And Clause
10.1 Survive The
DRA That Had Not Been Carried Through And Indeed Had Lapse; the
conditions
precedent in the DRA were not fulfilled and there being no
extension of time for the
defendant to comply with the conditions precedent, the plaintiff
was discharged from
all its obligations to the defendant as provided under cl. 2.5
and the DRA was
terminated under cl. 2.6.
13.
JUDGMENT AND GROUNDS
Granting judgment to plaintiff
4. The defendants allegation of triable issues is not supported
by contemporaneous
objections or documents at the relevant period. And the
arguments raised are
misconceived taking into consideration the terms of the Debt
Restructuring
Agreement, and clear admission of liability for the respective
sums set out in the
Schedule. It is trite that mere allegation without supporting
documents cannot stand
as triable issues. In addition the allegations raised militate
against the agreed terms.
5. The defendants argument on limitation is misconceived taking
into consideration
that time to commence the action under the Debt Restructuring
Agreement will arise
only upon the plaintiff making the demand. The demand in the
instant case was made
on 1.10.2010 and the learned judge agreed that the submission of
the learned counsel
for the plaintiff that there is no question of any limitation
period setting in, taking
into consideration the acknowledgment of liability as well as
section 26 of the
Limitation Act 1953 and the terms agreed by the parties.
6. Even if the action has to be brought within six years of the
accrual of the cause of
action, it has been brought within time because of the fresh
accrual of the action on
-
15 October 2004 when the DRA was signed by the plaintiff and the
defendant. The
writ was filed on 24 February 2009 and so filed within time.
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YB Dato' Hj Muhammad bin Hj Abdul Ghani v The New Straits Times
Press (M) Bhd
& Ors [2012] 8 MLJ 675
Summary of
Facts
The plaintiff's case was founded on libel. The plaintiff, a
senator, relied on
the News Straits Times ('NST')
article entitled 'Senator in cloned AP scam' and the Berita
Harian ('BH')
article entitled 'Syarikat Milik Senator klon AP' ('articles
complained of') to
premise his claim against the defendants. The plaintiff alleged
that the
articles complained of were defamatory of the plaintiff and had
tarnished
his character, credibility, reputation and also the offices held
by him thereby
bringing about hatred and public scandal. The plaintiff
therefore claimed
against the defendants, inter alia, general damages, aggravated
and/or
exemplary damages for libel, an injunction to restrain the
defendant and its
agent from further publishing similar defamatory words of him.
At the
outset of the trial, the defendants had urged this court to
determine the
following preliminary issues:
(i)whether the articles complained of, when read in its entirety
and in its
proper context referred to or was
capable of referring to the plaintiff; and
(ii) whether the articles complained of were defamatory of the
plaintiff.
Issue(s) (1)Whether action could be disposed of without need
of
extrinsic evidence
(2)Whether fit and appropriate case to exercise discretionary
powers
Ordinance
and Rules
Ordinance 33
Rule 2
Rule 5
Plaintiffs
Arguments
It is the plaintiff's pleaded case that the articles complained
of in their
ordinary meaning, impute that:
(a) the plaintiff who is a Senator, is a greedy and an
irresponsible person
and is therefore not fit to
hold a public office;
-
(b) the plaintiff has illegally and unlawfully obtained income
in the sum of
RM500,000 per month for
the past three years or more through this cloning
activities;
(c) the plaintiff is running the car selling business illegally
and unlawfully;
(d) the plaintiff is dishonest, a cheat and a person who is
without integrity
and or a criminal; and
(e) the plaintiff has caused problems with the Government and
the relevant
authorities because of
the said business.
The plaintiff further alleged that the articles complained of
are defamatory
of the plaintiff and had tarnished his character, credibility,
reputation and
also the offices held by him thereby bringing about hatred and
public
scandal.
The plaintiff therefore is claiming against the defendants for
general
damages, aggravated and or exemplary damages for libel, an
injunction to
restrain the defendant and its agent from further publishing
similar
defamatory words of him, interest, costs and other relief this
court deems
fit.
Defendants
Arguments
It could be gleaned from the case of Ayob Saud
v TS Sambanthamurthi and numerous other established cases, in
order to
succeed in a claim founded on the tort of libel the following
three elements
must be proven by the plaintiff:
(a) that the articles complained of bear defamatory
imputations;
(b) that the articles complained of made reference to the
plaintiff;
(c) that there is publication of the articles complained of to a
third party by
the defendant.
Courts
Decision
In substance, this court is only required to determine the
issues of 'reference'
and 'whether the words are 'defamatory'. It is trite that this
court has a wide
discretionary power to order for preliminary issues to be tried
before, at or
after the trial of an action. The court of the view that this is
a fit and an
appropriate case for this court to exercise its discretionary
powers to dispose
-
of this action altogether pursuant to O 33 rr 2 and 5 of the RHC
just by
reading the articles complained of without the need of extrinsic
evidence.
Having considered the pleadings, the affidavits filed herein and
the
arguments by the respective counsel, from each side and having
given the
matter a very careful and serious consideration, I am of the
view the
plaintiff's action is obviously unsustainable in law and is
doomed to fail. In
view of the fact that this court could decide the first and
second elements
required by the law without having to go through the normal
process of a
full-blown trial and that the final issue pertaining to
publication has been
admitted by the defendants and resolved herein there is nothing
left to be
ventilated by this court.
Defendant's prayers allowed with costs.
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PETROLEUM NASIONAL BHD V. KERAJAAN NEGERI TERENGGANU &
ANOTHER APPEAL
[2003] 4 CLJ 337
MOHD NOOR AHMAD, RICHARD MALANJUM AND HASHIM YUSOFF JJCA
CIVIL APPEAL NOS W-01-62 OF 2002 AND W-01-65 OF 2002
SUMMARY OF
FACTS
5. On 22 July 1975, the Government of the State of Terengganu
(the
plaintiff), by the then Menteri Besar, signed a vesting
instrument, vesting
on the first defendant the ownership, rights, powers, liberties
and
privileges of exploring, exploiting, winning and obtaining
petroleum.
6. On the same date an agreement was entered into by both
parties whereby
it was agreed that in consideration of the vesting instrument,
the first
defendant shall make payments in the form of a yearly sum
amounting to
the equivalent of 5% of the value of petroleum won and saved in
the State
of Terengganu and sold by the first defendant, its agent or
contractors.
7. Accordingly payments were made until March 2000 when the
first
defendant ceased to make such payment. The plaintiff brought
this action
against both the defendants based on several causes of action as
set out in
its statement of claim wherein the plaintiff sought several
reliefs.
8. After the close of the pleadings, the first and second
defendants filed
summons in chambers (SIC) seeking leave of the court for the
determination of several preliminary issues of law under O 14A
and O33
of the Rules of the High Court 1980.
ISSUES
2. The question before the court was whether the issues of both
facts and law
arising in the instant case could be appropriately dealt with
under O 14A
and O33 R2 of the RHC.
-
DEFENDANTS
ARGUMENT
Defendants contended that the court is perfectly able to
elucidate the provisions
of the constitutions, agreements, statutes and conventions
without the aid of
extrinsic or oral evidence. It is the defendants contention that
these questions or
issues if determined one way or the other will be decisive of
the matter before the
court.
PLAINTIFFS
ARGUMENT
The plaintiff strenuously resisted the defendants application.
Myriad question of
law fall for determination. They include novel and difficult
legal questions. Such
questions cannot be answered in isolation or in a vacuum; they
can only be
properly determined after evidence, both documentary and viva
voce, are adduced
and facts emerge at trial. Hence, it is vital for the factual
matrix to evolve and
develop before an attempt is made to determine legal
questions.
JUDGMENT
Held, allowing the defendants' appeal with costs:
(3) The primary issue in the suit was whether the plaintiff had,
at any time,
sovereign rights over petroleum in the continental shelf
adjacent to the
coast of Terengganu. This primary issue was contained in the
first three
questions posed in the defendants' applications. All the
questions were
purely questions of law. If the answer to the first question was
in the
plaintiff's favour, the answers to the second and third
questions should also
be in the plaintiff's favour. Hence, the answers would be
decisive of the
main or a substantive part of the suit.
Therefore, what remained to be done was the determination of
liability in damages
and its assessment, if any, against the defendants since each of
the defendants had
made a concession not to contest the plaintiff's claim should
the questions be
answered in the plaintiff's favour. On the other hand, if the
answer to the first
question was against the plaintiff, the subsequent two questions
would suffer the
same fate and consequently, its action was doomed to fail
because without the
said right the plaintiff had nothing to vest in the first
defendant and hence, would
not be entitled to the payments under the principal agreement.
Therefore, the
determination of the threshold issues as preliminary issues
would be decisive of
the whole litigation or essentially the main part of the suit.
This would result in a
-
substantial saving of time and cost as it would significantly
cut down the costs
and time involved in pre-trial preparation or in connection with
the trial proper.
(4) The High Court judge had merely considered the pleadings and
the
submissions of the parties and concluded that this case was far
from being
plain and simple because it raised a number of complex legal
issues. The
High Court judge did not identify and make proper appraisal of
the
material facts pleaded which were obviously undisputed or which
should
not have been disputed. Had he done so he would have been able
to
appreciate the facts and the magnitude of the case better and
would have
arrived at an appropriate conclusion and finding. Hence, his
exercise of
discretion was incorrect. In any case, even if the case appeared
to be or
was complicated, it did not mean that the court must shun away
from
considering the applicability of O 14A and O 33 r 2 of the RHC
in relation
to the questions of law which were clear and definite.
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TENAGA NASIONAL BHD V JCY HDD TECHNOLOGY SDN BHD
[2012] 3 MLJ 705
HIGH COURT (PULAU PINANG)
VARGHESE GEORGE J
Summary of Facts
1. Plaintiff conducted an inspection of the meters which
recorded the consumption of
electricity at two of the defendant's premises, namely the
premises at Bukit Mertajam
and at Perai, it had discovered that there had been meter
tampering or interference.
2. Plaintiff made a demand on the defendant to settle
back-charges for unrecorded usage
of electricity by the defendant for the period September
2007-November 2009.
3. When the defendant failed to settle the back-charges claimed,
the plaintiff filed an action
against the defendant for recovery of the back-charges.
4. The defendant counterclaimed and sought a declaration that
the plaintiff's claim for
back-charges for the prior 27 months was unfair and
unconscionable.
5. After this action was set down for trial the defendant filed
the present application for
the determination of two preliminary issues pursuant to O 33 rr
2 and 5 of the RHC
1980 on the grounds that these issues would dispose of this
matter without the
necessity for a full trial.
6. The two issues raised were concerned with 1)whether the
proviso to reg 11(2) of the
Licensee Regulations 1990 which limited any retrospective
adjustment to a period not
exceeding three months from the date the defendant was informed
it was undercharged,
and 2)plaintiff cited s 38(3) of the Electricity Supply Act 1990
and submitted that the
three months limitation in the proviso to reg 11(2) of the
Regulations did not apply.
7. Objection was raised by the plaintiff as to the
appropriateness of the defendant's
application for the questions to be determined as preliminary
issues.
Issue:
3. Whether case suitable for determination of issue of law ?
4. Whether defendant's application appropriate at this stage of
proceedings --Rules of the
High Court 1980 O 33 rr 2 & 5?
Plaintiffs
Arguments
27 months back-charges equated to the loss of revenue suffered
by the
plaintiff during that period and that the defendant was liable
to meet that
loss. S. 38(3) of the Electricity Supply Act 1990 put forward
that
three months limitation did not apply and the plaintiff was
entitled to
recover all 'revenue' that would have otherwise accrued to the
plaintiff.
The plaintiff's claim arose from pengusikkan meters
('tampering').The
-
claim was being brought pursuant to s 38(3) of the Act and
therefore
reg 11 had no place in such a context where the action was based
on
alleged 'tampering' of the meters; and the defendant had at one
point
expressed willingness to settle the claim for back-charges for
asum of
RM3m and this should be held as an 'admission of debt' up to
RM3m
by the defendant.
Defendants
Arguments
Defendant disputed that it fell under an 'error of reading' of
the meters
and accordingly any recovery by the plaintiff was also limited
to
unbilled usage up to three months prior to the demand to pay
back-
charges.
Defendant also put forward Reg 11(2) of the Licensee
Regulations
1990 limited any retrospective adjustment to a period not
exceeding
three months from the date the defendant was informed it was
undercharged. Thus, Plaintiff could not claim.
Courts decision
and reasoning
1)Judgement entered for the Plaintif against defendant.
Without
securing a conviction of that nature the plaintiff's claim for
the recovery
of the 27 months of back-charges was not sustainable in
law. The plaintiff had not alleged in its statement of claim
that the claim
was founded upon or brought pursuant to s 38(3) of the Act.
There was
no averment by the plaintiff that the defendants or its servants
were
responsible for the tampering of the meters at the two premises
and no
police action was taken. It was trite law that a party was bound
by its
pleadings. Thus, the plaintiff's claim for all intents and
purposes was a
claimfor unbilled or undercharged usage of electricity per se.
Plaintiff
was only allowed to claim back-charges for the two premises for
the
three months prior to 11 December 2009 and not for 27
months.
2)This court found that it was appropriate to consider and
determine
the two issues even at this stage of the proceedings.
Application under
O 33 r 2 of the RHC 1980, which was in the genre of procedures
open
to the court to expeditiously make a determination and that
would have
the effect of substantially disposing the matter before the
court, could
be made at any stage of the proceedings. The salient facts of
the present
case were not in serious dispute or controversy and judge
was
convinced he would arrive at the same conclusion given a full
trial.
The defendant's counterclaim be struck out.There shall be
judgment
entered for the plaintiff against the defendant for:
(i) The total sum of RM1,048,369.20, and
(ii) Interest thereon at the rate of 4% pa from date of judgment
until full
settlement.
-
The defendant to pay the plaintiff costs of RM15,000 overall for
this
proceedings
-
ANNE LIM KENG SEE
v.
THE NEW STRAITS TIMES PRESS (M) BHD & ANOR AND OTHER
APPEALS
FACT OF THE CASE
- The Appellant claimed that the advertisement that was
published in the Malay Mail
was defamatory to her as it was not true and false. The
advertisement acted as notice
of substituted service of a bankruptcy notice that was referred
to the Appellant and
was published in 22 January 2001. Appellant stated that she had
already settled the
debt for sum Rm8, 658 with 22% interest per annum and sum of
RM450 however
the respondent was unaware of it. Because of that, the Appellant
demanded an
apology from the Respondent. There was no action taken by the
respondent therefore
the Appellant filed a defamatory suit against the
Respondent.
- The appellant obtained judgment in default of appearance
against the Malay Mail.
The 1st respondent applied to set aside the said judgment and
the application was
allowed. However the appellant stated that since the default
judgment was made
against the 2nd defendant the application to set it aside should
be made by the 2nd
defendant not the 1st Respondent.
- The 1st respondent on the other hand filed an application to
strike out the Malay Mail
as a party pursuant to O. 18 r. 19(1)(b), (c) and (d) of the
Rules of the High Court
1980 and had also filed an application pursuant to O. 33 r. 2 of
the Rules praying for
an order that the following preliminary issue be tried before
the trial of this action.
ISSUES
6. Whether O. 33 r. 2 of the Rules is an appropriate procedure
to be used in defamation
suits.
APPELLANTS ARGUMENT
9. The said advertisement in the Malay Mail Newspaper contained
words which are
defamatory to her.
10. A newspaper is a person and to support this contention
referred to s. 3 of the
Interpretation Acts 1948 and 1967 (Act 388) which provides that
the word person
includes a body of persons, corporate or unincorporated.
11. 1st defendant does not have the locus standi to step into
the shoes of the Malay Mail
and hence would not be in a position to apply to set aside the
judgment in default.
-
12. Applications made under O. 33 R. 2 is not a suitable method
to dispose of a
defamation suit by way of determining a preliminary issue as the
issues are complex
and thus the matter should go for full trial.
RESPONDENTS ARGUMENT
14. The Malay Mail is not itself a separate legal and/or
corporate entity and as such
denies that the name Malay Mail can be sued and hence reserves
its rights to apply
for the name Malay Mail to be struck out from these
proceedings.
15. The publication of the said advertisement was pursuant to an
order for substituted
service made by the Kuala Lumpur High Court.
16. This is one of the occasions when the facts and issue are
eminently suitable for
disposal pursuant to O. 33 r. 2 of the Rules. He argued that s.
12(1) of the Act was
created specifically to, inter alia, protect a newspaper from
libel actions where the
newspaper was merely publishing notices or advertisements in
accordance with an
order of court and that once the court finds that a defendant is
entitled to rely on s.
12(1) of the Act and in the absence of express malice, the court
should be able to
dispose of the action by way of a determination of a preliminary
issue, rather than
have the matter proceed to full trial which would lead to delay
and additional costs.
HELD AND GROUNDS
Dismissed the Appellants application with costs.
7. The Malay Mail is not a legal entity. It is but a newspaper
product which is owned
and published by the 1st respondent and the name Malay Mail is
not the name
under which the 1st Respondent carries on its business. [page
714]
8. Thus, we are of the view that the judgment in default
obtained against the Malay Mail
is a nullity. The Malay Mail is not a legal entity on the date
the writ was issued and
is not even a name under which the 1st respondent is carrying on
its business. As
such the learned judge was clearly entitled to set aside the
judgment in default
obtained against the Malay Mail and consequently striking it out
as a party.
9. The 1st respondent has the locus standi and is the correct
party to make the
application to set aside the judgment in default obtained
against the Malay Mail.
10. We do not think that under such circumstances, a mere
reproduction by the 1st
respondent of a notice of substituted service in the Malay Mail
upon a payment of a
fee or a service charge can be said to be mala fide. The
objective of the said
advertisement is inform the appellant that bankruptcy
proceedings have been
instituted against her and that upon its publication in the
Malay Mail, the effect in
law is that the bankruptcy notice have been duly served upon
her. As such, we cannot
see how it can be argued that there was malice on the part of
the 1st respondent.
-
11. It is our view that the instant appeal is clearly a case
where the determination of the
question posed would substantially dispose of the whole action.
The trial of the
preliminary issue has resulted in a substantial saving of time
and expenditure in
respect of the trial of the action as a whole. We cannot see why
advantage should not
be taken of such a facility as provided under O. 33 r. 2 of the
Rules.
12. The preliminary point raised was not a complex issue which
requires the matter to go
for full trial. It was clearly not based on hypothetical facts.
It dealt with a single point
of law which, after having been decided in favour of the 1st
respondent, was decisive
and has disposed of the entire litigation. The appellant failed
to show any spite or ill-
will directed from the 1st respondent to her goodself or even
any indirect motive. The
publication of the said advertisement was absolutely privileged
and as such, we are
of the view that the learned judge was correct in dismissing the
suit as the
determination of the question posed in the affirmative has
substantially dispose of
the whole action.
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KRISHNAN RAJAN N KRISHNAN v BANK NEGARA MALAYSIA & ORS
[2003] 1 MLJ
SUMMARY OF
FACTS
The plaintiff applied in encl. 16 for a question raised in the
pleadings of
this civil suit to be tried on a preliminary basis under O. 33
r. 2 of the
Rules of the High Court 1980 (RHC). This civil suit involved
issues
of defamation and negligence. Enclosure 16 was made on the
grounds
that it would save considerable time and costs. The question
posed, inter
alia, was whether the Biro Maklumat Cek Operational Framework
and
Reporting Guidelines (BMC Guidelines) issued by the first
defendant
were ultra vires the Central Bank of Malaysia Act 1958. The
first
defendant had blacklisted the plaintiff under the said
guidelines as a bad
cheque offender. The plaintiff claimed that the first defendant
should
not carry out a compulsory blacklisting of an account holder let
alone
an innocent member of the public who was not an account holder
of the
complainant bank like the plaintiff herein. Further, that all
the licensed
banks were compelled to follow the directions of the first
defendant by
blacklisting an account holder on a global basis and this was
wrong and
clearly unauthorised by the statutes. The first defendant
submitted that
as to whether the BMC guidelines were valid or otherwise would
not
substantially dispose of the plaintiffs claim in defamation and
the other
defences pleaded by the defendants. As such, the court should
not
invoke its discretionary powers under O. 33 r. 2 RHC as it would
not
result in substantial saving of time and costs.
ISSUES Whether the issue is triable under O 33 r 2 RHC ?
PLAINTIFFS
ARGUMENT
1. The application in encl. 16 is not only appropriate but it is
also
within the contemplation of Order 33 r. 2 of the RHC and it
is
because of this that he says that the application should be
dealt
with an advance.
2. That the application is encl. 16 can be disposed of quickly
and
simply as it is purely a question of law.
3. That the issue involved is quite obvious and that there is
no
lengthy and tedious arguments to pursue and it can simply
and
quickly be determined by the court and
4. That it is a singular point of law of general importance
which
has hitherto affected a diverse cross section of the public and
that
it can be argued and concluded without any reference to and
quite independent of the evidence or to the facts of the matter
at
hand.
-
DEFENDANTS
ARGUMENT
1. On be