CIVIL PROCEDURE

July 2019
1.
a. The probable causes of action: What is cause of action? It is the entire set of
facts that give rise to an enforceable claim, the plaintiff must prove in order to
obtain judgement, stated in Read v Brown. Panda Secure Sdn Bhd has a cause
of action on breach of contract based on Dogma Development Sdn Bhd unilateral
termination of the contract and therefore the plaintiff suffered the damages. The
defendant here is Dogma Development Sdn bhd, under Section 20 and Section
21 Companies Act 2016 conveys the power to the body corporate to have the
power to sue and be sued, both Dogma and Panda Secure are incorporated
bodies, therefore it fulfill the requirement to take an action in court.

The plaintiff can take an action under defamation (Nurul Izzah v Mohd Khalid on
defamation) against Dato’ Hangat Cepat. The words in an alleged defamatory
statement must lower down the reputation of the plaintiff and publication of those
words referring to the plaintiff, on the facts this is satisfied. Under Section 8 of
the Civil law act, all causes of action survive the party except defamation suit.
However, the plaintiff can bring a claim under the tort of inducement of breach of
contract against Dato Hangat Cepat under Order 15 R.6A ROC 2012, the
plaintiff must show the intent to interfere at the contract in issue and the plaintiff
must have knowledge of the contract, any defences against the plaintiff must be
rebutted. Malicious falsehood can be present.

b. It is submitted to Panda Secure Sdn Bhd to go by way of writ of summons under

Order 6 as there are questions of facts and possible trial will take place, under
order 5 rule 2 any substantial dispute of facts shall begin by writ.

c. The procedure setting aside JID begins with Order 13 Rule 8, the time of setting
aside as per Order 42 Rule 13, within 30 days of the time receiving the
judgement. The affidavit must contain the grounds to set aside.

- Dogma as a defendant can set aside the JID under O.13 Rule 8
- On the facts, it is silent on the time of the JID being entered or served.
- Procedure: Dogma apply by way of notice of application supported by affidavit

The principles under Evans v Bartlam, any judgement that is given by default is
always liable to be set aside, the first issue being is the judgement entered is
regular or irregular, if the judgement is regular, it can only set aside by showing
defence on merits, on the other hand if the judgement is irregular, the judgement
can be set aside as of right.

Service is a fundamental procedure in relation to any proceedings, Order 62

Rule 4(1) states service on corporations by leaving a copy of the writ at the
 registered office or any principal office. A incorporated company is required by
law to have a registered address under the companies act 2016, any change of
the registered office is allowed provided notice is given to the company’s
commissions, the effective change is when the notice is given irrespective of the
records are updated or not, as held in Summit & co v Niko products, on the facts
the service at the old address is bad service. Since service is irregular, Dogma
can set aside the JID as of right following the case of Tn Haji Abdul Rahman
and Evans v Bartlam.

d. Is there an issue of Res Judicata? Syarikat Sebati Sdn Bhd v Pengarah Jabatan
Perhutanan held certain principles must adhere to show Res judicata:
- Decision was judicial in nature
- It was in fact pronounced
- The tribunal had jurisdiction over the parties and the subject matter
- The decision was final and on the merits
- It determined the same questions as that raised in the later questions
- The parties to the later litigation were either parties to the earlier litigation or their
privies or the earlier decision was in rem.

Read S & M SHOPPING ARCADE SDN BHD v CH WILLIAMS, TALHAR AND WONG SDN
BHD {2007] 10 CLJ 739

Order 33 Rule 2 and Rule 5: The procedure for raising Res Judicata. Rule 2 arises just
before trial as a preliminary issue, since it is a decision made before, in the interest of
time and costs, Dogma Development can raise this issue with the court and the court if
so follows, will dismiss the action under Rule 5. Dogma Development can also take out
an application under Order 14A to summarily dismiss the matter under a point of law.

e. Case management is governed under Order 34, the purpose of case

management is just, expeditious and economical disposal of a case as seen in
Syed Omar bin Syed Mohamed v Perbadanan Nasional Berhad. A company
must always appoint a solicitor under Order 5 Rule 6.

Order 34 Rule 1(3), the court may order to dismiss an action if a party fails to
comply with the directions made by the court, under Order 34 R 1(4) the court
may order the cost accordingly. Apply by way of notice of application supported
by affidavit. On the facts, Panda secure Sdn Bhd has fails to serve a notice on
appointment of solicitors, Dogma Development may order an peremptory order
against Panda Secure to give an ultimatum to Panda Secure Sdn Bhd to retain a
solicitors or it will move to dismiss the application in court. Look into Sunway
PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua. (The court take a
proactive role in setting down time frames and giving directions for the purposes
of the trial)
 2.
a. i. For a company to enter as a defendant in an action, under Order 12 Rule 1(2) ROC
expressly stated must appoint a solicitor to enter an appearance or defend an action.
The memorandum of appearance and defence is vacated and irregular.

II. What is the cause of action? To claim for specific performance, Order 13 Rule 6. The
action must proceed as if the defendant has entered into appearance, specific
performance is not obtained as of right, therefore no judgement in default of appearance.
Once action proceeds, the defendant is deem of default of defence, under order 19 rule
7, the plaintiff after the expiration of service of a statement of defence applies to the
court for judgement by way of notice of application supported in the affidavit. The case of
Lam Kong Co Ltd v Thong Guan Co Ltd.

What if: Are you allowed to drop the claim of SP in lieu of damages and enter JID for damages
under Order 13 rule 2. It is not allowed unless the statement of claim is amended. The case of
Naxland(Sabah)

b. Article 121 of the FC provides the establishment of 2 high courts with coordinate
jurisdictions, the high court of Malaya and Sabah/Sarawak. Section 3 of the CJA
confers local jurisdiction to EACH of the high courts. The high court of Sabah and
Sarawak are separate and distinct, as such the provision under Order 57 ROC is made
under the CJA and is a delegated legislation, Order 57 cannot override Section 3. This
is shown in the case of Hap Seng Plantations v Excess Interpoint. Therefore no transfer
can be done.

Alternatively for the plaintiff, by virtue of Section 23 CJA, the high court of Sabah has the
jurisdiction to try the matter since the defendant resides in Sabah.

c. Order 55 rule 3(4), any appellant can appeal against the whole or part of the decision by
the court. Notice of cross-appeal needs to be filed within 14 days under Order 55 rule 8,
Kabushiki Kaisha Ngu v leisure Farm Corporation held Order 55 rule 8 only allows
limited modification on part of the judgement of the high court, not the whole decision. A
fresh notice of appeal for liability and cross-appeal against the quantum of damages
should be taken.

d. Interpleader proceedings should be taken, it is a discretionary relief applicable by a

person holding any goods, chattels and money who is expected to be sued, there is a
 real threat to be sue. In order to avoid the embarrassment of being sued as seen in
Walson v Park royal caterers, relief by interpleader can be applied.

The issue of monetary jurisdiction Section 73 SCA 1948: Sessions court, 1 million.
Section 93 of SCA: Magistrate court, Rm100,000. The developer should apply
stakeholder interpleader, under Order 17 Rule 1 ROC.

The mode originates summons supported by evidence whereby the developer claims no
interest in subject matter, no collusion with any claimants and is willing to pay or transfer
that subject matter into court or to dispose of. Service is done personally under Order 17
Rule 4(1). The court will hear the issue, it will either direct for a trial and appoint parties
accordingly OR determine the issue summarily under Order 17 Rule 5. RHB Bank Bhd v
Comax.

OTF, the developer must look at the contract between the developer and Company A, as
it is the main contractor. The question of real threat is only to look at when the court
hears the issue and it is likely the court will deal with it summarily if the construction
contract is clear.

3.
a. Section 6(3) Limitation Act 1953, 12 years for enforcement of the judgment, interest
can only be claimed starting from the judgment date is only for 6 years. After 6 years,
leave must be obtained from the court under. Order 46 Rule 2(1)(a). OTF, Param must
apply for an application for leave to issue a writ of execution by way of ex-parte notice of
the application in Form 88 and in the affidavit state the reasons for delay under Order 46
Rule 3 ROC. OTF, Devan defaulted after 60 months of payment, Param is not sleeping
on his rights, therefore enforcement must be taken.

- Affin bank bhd v Wan Abdul Rahman wan Ibrahim. (appointment of new solicitors is not
a good reason for delay)
- Malayan Banking Bhd v Chong Hing trading.
- Malayan Banking Bhd v Foo See Moi.
- Automotive Batter Industries Sdh Bhd v Phua Cheng Kee

b. Order 14A, Order 33 Rule 2 (disposal of a preliminary issue)

The plaintiff should invoke Order 14A to dispose of the questions on law, apply by notice
of application supported by affidavit. The plaintiff must show the question does not need
full trial and the answering of the question will resolve the case as seen in Kerajaan
Negeri Terengganu v Petroleum Nasional Bhd or Dream Property Bhd v Atlas Housing
Bhd.

Alternatively, the plaintiff can invoke Order 33 Rule 2. Apply by oral application or
application directly at the trial or before the trial under Rule 2 of the said order. Order 18
 and Order 41 will also lead to quick disposal of the case, European Asian Bank v Panjab
& Sind Bank.

c. Order 24 Rule 9: The party is required to inspect documents referred to in the list. Order
24 rule 11 compels the party to serve the documents for inspection required under Rule
9. The applicant must satisfy under Order 24 Rule 8 to show necessity of discovery.

Infoline Sdn Bhd v Benjamin Lim Keong Hoe on the application of discovery under 7A,
the objective of discovery is saving of costs. OTF this is a pre-action discovery,
proceeding by way of originating summons supported by affidavit under Order 24 7A(3).
The grounds of application is to determine the technical drawings whether any parties
are negligent. Subsequently, the material facts are that the building of the factory leads
to collapse. The person named in the OS is the architect and the engineer. The
document must be specified as the drawing plans. Personal service on the defendant
and the court will hear the application.

The court will determine whether the application is necessary or otherwise to fairly
dispose of the case under Order 24 7A Rule 8. The test of necessity will be taken to
decide whether to grant the said order as held in Infoline v Benjamin Lim. It is submitted
based on the facts and relevant legal principles, the building plans are necessary to
determine negligent partie(s)

d. According to Order 20 Rule 5, the court may grant leave after the limitation period to
circumstances as below
Subrule 3: Amendment to correct the name of the parties if the mistake is genuine
Subrule 4: The representative capacity of the party to be endorsed.
Subrule 5: A new cause of action to add or substitute, it must arise from the same facts.

4.
a. I. Pat should file a judgement in default of appearance against Daniel under Order 13
Rule 4 for possession of the immovable property, provided in the same act, the action
against David. The applicant must produce a certificate of non-appearance in Form 12
supported with an affidavit under Order 62 Rule 9 showing the defendant’s solicitor’s
endorsement of accepting service of the writ by the plaintiff in Form 135. After the
judgement is granted, prepare the form of the judgement under Form 75 and form of the
judgement under Order 72 rule 10 to be filed, then the judgement will be entered.

ii. Once a litigant obtains a judgement, he is entitled to reaps the fruits of judgement,
exceptions arise such as Order 13 rule 4(2), where judgement which the subject matter
is immovable property must have been entered against all defendants.
b. I. Phua will enter judgement in default of appearance under Order 13 Rule 2 against
Devan, the nature of the relief is unliquidated damages, The applicant must file under
Order 13 rule 7, produce a form of non-appearance in Form 12 supported with an
affidavit under Order 62 Rule 9 to prove service of the writ by Form 135. The judgement
obtained is interlocutory.

II. The assessment of damages begins with order 37 rule 1, the registrar will assess
the damages. Phua shall within 1 month of the judgement apply to the registrar for
directions by way of notice of the application of directions supported by affidavit to the
registrar. The registrar will set the appointment of time for assessment upon notice of
appointment of assessment of damages in Form 62A and shall be served the
appointment to the other party within 7 days

c. The plaintiff wants to claim for full amount against the defendant, the first invoices are
dated 3 March 2013 and 2nd invoice is 30th April 2013, both these claims are barred
from claiming as the limitation period for contract claims under Section 6(1) LA 1953 is
6 years. The 3rd invoice on 3rd November 2013 is within the limitation period. However,
the plaintiff is entitled to file for the full amount.

Janagi v Ong Boon Kiat held it is not the duty of the court to raise a case for the parties,
therefore limitation being a defence which must be specifically pleaded is required to
plead or it will not be raised as an issue by the court. This is stated in Section 4 of the
limitation act which the limitation period does not bar the cause of action. It is
submitted, the plaintiff has a valid cause of actions for the 3 invoices.

What if the defendant pleads the defence of limitation? The plaintiff can raise fresh
accrual under Section 26, is there any acknowledgement in writing. The case of Yap
Kong Seng held the acknowledgement in SMS sent by the defendant is valid under the
electronic commerce act 2006. On the facts, the defendant did not respond to the
plaintiff’s message. The plaintiff has 2 possible successful 2 claims against the
defendant.

The validity of the cause of action for the verbal agreement? It is still enforceable
Section 10 of the Contracts Act. The plaintiff can prove under electronic commerce act
2006 to show the WhatsApp messages that there is an agreement. The failure by the
defendant to refute the claim by the plaintiff can be considered as an admission.

d. The issue of adding a party, the difference between 3rd party proceeding and adding a
co-defendant. By adding a person as a co-defendant the existing defendant in a
proceeding will be able to apportion the liability between D1 and D2. Secondly, in a 3rd
party proceeding, where a defendant brings another person as a 3rd party, the
defendant is liable 100% and makes a recovery from the 3rd party. Order 15 rule 6 (2)
(b)(i) Hasan is allowed to bring co-defendant at any stage of the proceedings, which
means until the judgement is given held in Hong Leong bank v Staghorn. Hasan must
 file a notice of application supported by an affidavit and it must state the reasons to
support the application, namely Abdul is largely at fault in the accident and Abdul has an
interest in the matter disputed. The court must exercise its discretion judiciously as held
in Tajjul Ariffin v Heng Cheng Hong.

Does Abdul have a role to play in the Cause of action? It must be satisfied in court
there’s a nexus between Abdul and the cause of action, as seen in Abidin b Umar v
Doraisamy. It is submitted, Hasan will be able to add Abdul as a co-defendant as Abdul
has a role to play in the cause of action.

5.
a. I. Under Order 41 Rule 1(4), every affidavit shall state the person’s occupation and
place of residence. However, under Order 14 Rule 3, the leave for defence can only be
obtained if the party able to show triable issues. The non-compliance will not cause
prejudice to the defendant. The plaintiff can rely upon Order 1A for overriding of justice
not technically non-compliance in ROC 2012. Order 2 rule 3 can be raised which says
preliminary objection for non-compliance of rules not allowed. Order 41 rule 4 may use
to cure the irregularities in the affidavit.

II, Under Order 41 Rule (7), Affidavit must be sworn before the commissioner of the
oath, however no mention of dates. As an interlocutory application under Order 32, this
is an application in chambers under Form 57, Order 32 Rule 13 for the affidavit does not
mention dates as well. It is submitted the plaintiff is not defective therefore the court can
override the mere irregularities under Order 1A.

III Under Order 41 Rule(5), affidavit of substantive action must contain personal
knowledge by the deponent. As for interlocutory under Rule 5(2) need not personal
knowledge. Form 13 shows the deponent can be the plaintiff’s solicitors or relevant
person stated, it may contain hearsay statements so long there’s source and grounds for
the statements.

b. What happens when an amended notice of appeal is not served to the defendant?
- From sessions court to high court. In an amendment of appeal for anything, it should
always be interparte, it can be ex-parte provided the other party consented. OTF, the
leave was granted therefore the defendant knew the amendment.
- Is there a time limit for amendment? Order 20 Rule 9, if no period is specified by the
court, the default period is 14 days after the order was made.
- Preliminary objection was made against Ahmed on the day of the trial, trial by ambush?
Bukit Melita Sdn Bhd v Lam Geok Hee & 7 ors: Failure to give written notice for
preliminary objection would amount to a waive of party’s right to raise the objection. This
is also a breach of the bar council rulings 2019, minimum 4 days of notice must be
given to the other party on preliminary objections.
 - Application to leave to amend notice of appeal in HC. By way of Interparte application,
Rasheed is aware of the order made by the HC. Is Rasheed being prejudiced by not
being served? It is submitted that the amendment is mere grammatical error and he is
aware of the amendment therefore he is not prejudiced.
- Order 2 Rule 1(1): This is a mere irregularity and shall not nullify the proceedings.
- Order 2 Rule 3: Preliminary objection only on the grounds of non compliance of rules
unless it has caused miscarriage of justice.
- Order 1A: Regard to the overriding interest of justice.
- Megat Najmuddin bin Dato’ Seri Megat Khas v Bumiputra (M) Bhd

c. Matters must be specifically in any pleadings: Order 18 Rule 8(1)

- Performance, limitation, illegality, fraud.
- Dato Hamzah Bin abdul Majid v Omega Securities Sdn Bhd: May act on ex facie
illegality in the absence of a plea
- Limitation: Tasja Sdn Bhd v Golden Approach Sdn Bhd: PAPA even if not pleased, still
can rely on to strike out the action.
- Special damages must be pleaded exactly and general damages must be pleased but
not state the sum, Order 18 Rule 12(1A)

d. i . Costs in the cause: Most commonly made in a summary judgement where the
defendant is able to show triable issues. A party who is entitled to the cost of the
interlocutory proceedings if he is successful ultimately at the conclusion of the trial that
party will be entitled to the cost of the whole proceedings and the interlocutory
judgement.

Ii. Costs in any event: No matter which party of the judgement is in favour of, the party
who obtained this order shall still be able to get the costs. There are plaintiff costs in any
event and defendant costs in any event.

iii. Mareva injunction: It is an interlocutory order designed solely to prevent a defendant

from mitigating the effect of a judgement against him, it is to restraint the defendant from
disposing off his assets so he would not negate the effect of a judgement. Rule of first in
time does not apply here.

6.
6.
a. I. Ahmed needs to apply Stay of execution pending appeal from high court to court of
appeal. This is to prohibit the person who successfully obtained the judgement who
enforces on the basis that there is an appeal being filed.

- Section 73 CJA 1964, Rule 13 of the RCA 1994: The court of appeal or court of
first instance has concurrent jurisdiction to grant the stay of execution which is
not automatic.
 - Procedure: File the matter at court of first instance, notice of application
supported by affidavit to show grounds for the stay.
- Notice of motion supported by affidavit for 2nd appeal to an appellate court ( First
appeal is by notice of application)
- Stay is always interparte and must be served to the other party.
- Principle to grant stay: Order 55 Rule 16, an appeal does not give rise of
automatic stay of execution. Stay must be applied for. Reason being the
successful litigant shall not be deprived of its fruits of litigation.
- Basic test for stay: Serangoon Garden Estates v Ang Keng | Mohamed Mustafa v
Kandasamy | Kerajaan Malaysia v Jananusa
- Showing special circumstances, merely showing the appellant could not
be restored to the original position is not a special circumstance.

- Kosma Palm Oil mills v Koperasi Serbausaha Makmur

● Special circumstances depend on its own facts and the onus is on the
applicant to show. The court needs to consider whether the appeal will be
rendered nugatory if stay was refused and preserving subject matter of
the litigation.
● OTF there are strong grounds to obtain stay, if stay is not given, the
company is under winding up and if the appeal is successful, Ahmed will
need to obtain leave to sue the liquidator to obtain the monies taken.

Ii. What action can Jet Sdn Bhd take? Enforcement of judgement, what assets does
Ahdmed have to satisfy the judgement debt. Order 48 examination of the judgement
debtor in order to gather information as to his means of paying the judgement. Section 4
of the debtors act, judgement debtors summon, procedure under Order 74 Rule 11A
for the examination of judgement debtors to decide whether to pay the debt in
installment or lump sum, failure to attend may result in a warrant of arrest to be issued.

If the judgement debtor has monies in the bank, Jet Sdn Bhd is advised to proceed with
garnishee proceedings under Order 49 to obtain monies from 3rd party to pay to the
judgement creditor instead of the judgement debtor. Jet sdn bhd must succeed in 2
stages of show cause and further consideration.
For properties, writ of seizure and sale under Order 46 and 47, where the moveable
assets will be seized by the sheriff and sale of the goods through public auction and pay
to the creditor. Charging order is applicable to securities under Order 50 Rule 2.

If Ahmed also owns some form of royalties or profits in respect of a business, equitable
execution under Order 51 is suitable whereby a receiver is appointed to receive any
profits and pay to the creditor.

- Sessions court has no jurisdiction to issue a prohibitory order. Therefore the

party needs to apply in high court for a prohibitive order in a writ of seizure and
sale to prevent the other party from disposing of the properties.
 b. I. The applicant (plaintiff), in an order 14 must determine the defendant has entered
appearance under Order 14 R1(1). The statement of claim and the writ must be served
to the court and the other party. Plaintiff must ensure Order 14 is not applicable to all
types of causes of action under Order 14 Rule 1 (2) (a) and (b), Order 14 Rule 1 (3).
The affidavit must comply with Order 14 Rule 2 (1), compliance with Form 13 to verify
the facts and state there is no defence on the case.

Ii. National company of foreign trade, once the preliminary requirement for order 14 is
satisfied, the burden will shift to the defendant. Under order 14 rule 3(1), the court must
consider whether there are any triable issues or for some other reason to have a trial.
- Triable issues: Issues need to be determined at the trial. Hua heng oils, the
triable issue of goods sold and delivered in bringing evidence there is no debt is
owing. In Bank Negara Malaysia v Mohd Ismail, the court must grant summary
judgement if there is admission
- If the court were to give leave to defend, a cost in cause order must be made.
- Ought for some other reason to have a trial: Miles v Bull, concrete engineering v
UMBC
- The court may grant conditional leave to defend if the defendant lapse in
evidence which may or may not succeed
- The court will consider the above and if found there’s no triable issue or other
reason ought to be tried, summary judgment will be granted, otherwise, the court
will order leave to defend with cost in cause to the defendant.

7.
a. It is advised that the plaintiff could apply an interlocutory injunction prohibitory in nature
based on the facts as the suit between both parties already commenced. Injunction is a
relief where the plaintiff has a cause of action, injunction can obtain in two ways,
perpetual and interim, the latter is to maintain the status quo. Prohibitory injunction is to
prevent a party to do an act, on the facts to prevent the defendant from selling the land.
Under Order 29 Rule 1 (2), apply by way of notice of application ex parte supported by
affidavit, the affidavit in support of the application must contain the requirements under
Order 29 Rule 1 (2A) (a-g)

The stage of the proceedings is before trial, the defendant is already proceeding to
dispose of the land to 3rd party and the transaction is taking place in one week’s time,
this application is by way of ex-parte in view of the urgency, notice is not given. The
possible defences by the defendant is the attempt to sell is not proven and merely
anticipatory. The relief sought is to prevent the defendant or his servant or agents or all
others alike in disposing of the land.
 Principles in granting an interlocutory injunction, laid down in keet gerald francis noel
(affirmed the case of American Cynamide).
- The applicant must show there is a serious question to be tried but not determine
the merits of the case,
- balance of convenience tips towards the plaintiff’s favour and if no injunction
granted it will be detrimental and cause injustice to the plaintiff
- undertake the damages in the event the injunction is incorrectly granted. If the
plaintiff is unable to meet the undertaking, the party can dismiss unless the court
finds serious damages suffered by the plaintiff without the injunction, then the
plaintiff is allowed to dispense the requirement.
- Are there any issues of delay and adequacy of the remedy? Damages are
inadequate for the plaintiff compared to the loss of the land.
- Since an injunction is an equitable remedy, it is up to the discretion of the court to
grant this injunction.

The affidavit can be affirmed by the client overseas under Order 41 and can return to Malaysia
for filing. The plaintiff must take note the interim injunction shall automatically lapsed 21 days
under Order 29 Rule 1 (2B) and the court must affix the hearing for the application of inter
partes within 7 days after an ex-parte interim order is granted.

b. The service to XYZ sdn bhd

This is a service of writ on a company under Order 62 Rule 4 (1), on the facts, the writ is
left on the registered office of XYZ sdn bhd, it is submitted by leaving a copy means to
leave the copy with officers or title equivalent of the company. Furthermore, the process
server has an obligation when effect service of the writ - to identify the correct person
and hand over the document to a person. It is submitted that this does not fulfill Order
62 Rule 4 (1)(a) therefore service is bad and irregular along with the Judgement in
default, liable for setting aside the judgement as of right under Order 13 Rule 8. Tuan
Haji Ahmad Abdul Rahman

- Service to Ali
Order 10 Rule 1, the writ must be sent to each defendant personally or prepaid A.R
registered post. Personal service explained under Order 62 Rule 3, it is effected by
leaving with the person to be served, showing him the document is a writ or other
originating process, the sealed copy. The A.R service is also not banquerusse v clarke.
On the facts there is no proper service of the writ, since the service is irregular, the JID is
the same therefore liable to set aside under Order 13 Rule 8, Evans v Bartlam.

- Service of SS order to Wong

Order 62 Rule 5(1) when it is impractical to serve on the person, substitute service can
be applied for. General rule is substitute service order is only effective if the defendant is
within the jurisdiction, if the defendant is known to be out of jurisdiction, the proper
 method of service is by way of Order 11 (Service out of jurisdiction), notwithstanding the
defendant has left the jurisdiction to evade service as held in BBMB v Lorrain Esme
Osman. On the fact, the application of substitute service is an abuse of process as it
does not have the effect of bringing the writ to the knowledge of the defendant.

Therefore the SS order is bad and it is advised to Wong set aside the SS order under
Order 32 Rule 6, once it is set aside, the JID entered will become irregular and can be
set aside under Order 13 Rule 8, Evans v Bartlam

Wong is to be advised to set aside the SS order separately and simultaneously file for
setting aside of JID, it is not proper to set aside the JID without setting aside the JID as
held in D&C Bank Bhd v Aspatra Corpn Sdn Bhd.

EVIDENCE
July 2019.

1.
(B) Issue: Signature (Handwriting) is actually the defendant. Opinion can be given by expert
under Section 45 or non-expert under Section 47. PW2 is a banker, is there sufficient grounds
to determine he is an expert? Section 45 states a person must be specially skilled in the area he
is testifying and under Junaidi, an expert can obtain such special skilled thru experience by
repeated contact with certain work.

PP v Mohamad Sulaiman held expert may be competent through formal studies or experience.
In Lin Lian Chen and Kumaragaru & Ors v PP states the witness must establish its expertise in
the area which he is giving evidence on. The PW2 should state his qualifications as an expert in
such cases and determine as such before he is allowed to give evidence as held in Wong Chap
Saow. It is submitted the PW2’s statement is irrelevant having satisfied none of the above said.
Furthermore, the judge should not decide as a matter of fact on the issue of handwriting
without the assistance of an expert as held in Syed Abu Bakar bin Ahmad v PP.

Section 47 of the EA, a person’s witness acquainted with the handwriting of the person in
question is relevant, the explanation under Section 47 states it includes habitually seen the
person’s handwriting. PW2 admitted he is not familiar with the defendant’s handwriting, this
has to proven by the prosecution under Section 104, therefore falls short from proving under
Section 47.

It is submitted that the basis of the judgement is incorrectly reached and the PW2 should not
be treated as an expert witness and relied on his testimony.
(C) In Section 173(f) states at the end of the prosecution’s case, the court must determine
whether there is a prima facie case. A prima facie case as defined in Section 173(h)(iii) is when
the facts in issue of the prosecution’s case are proven and the court has to determine the
credibility of the witnesses if unrebutted or unexplained warrant a conviction.

A maximum evaluation on the credibility of the evidence must be carried out by the court in
ascertaining the prosecution’s case as held in Balachandran, this is in line with the definition of
prima facie in Section 173 (h)(iii) which states clearly “credible evidence”

The second issue is the SCJ’s finding that there has been an absence of cross-examination by
the defence on material points of evidence testified by PWs, as held in Ayoromo Helen, such
failure to cross-examine on material points will amount to an acceptance of the witnesses
testimony (Transport Ministry v Garry)

All of the above is subject to the relevancy of the evidence irrespective of whether there was
cross-examination or not.

(d) Sequestration of witnesses, the rationale being the accused should be allowed to give
testimony without being affected by other witnesses’ testimony, there are exceptions to this
rule, an expert is allowed to listen to other witnesses to form his opinion. An accused person
must be presented as the first defence witness to avoid the accused fill in the gaps of other
defence witnesses. In the case of Luckwell v Limata, the judge, in this case, exclude the witness
because of the evidence value is greater if the witness is excluded from hearing other witnesses
before giving his own. Ultimately, the court retains the discretion to allow people sitting in the
gallery. Tomlinson v Tomlinson, Dr Soo Fook Mun v Foo Fio Na stated the exceptions to
witnesses sitting in the gallery listening to another witness.

Highlight the improper steps taken in this case and answer the question of whether there is any
gross miscarriage of justice (S.167)

2. COA by Porter against Dobby. (Defence: Forged documents to enter loan) Once P establish
COA, the BOP on dobby to prove the defence
- COA: Repayment of loan
- Defence: Documents were forged, Porter was negligence

COA Porter against Opus. Once P establish COA, the BOP on Opus to prove the defence
- COA: Breach of contract, repayment of the loan
 - Defence: Deceit and duress to enter into a repayment

The Law: SInnayah & Sons v Damai Setia Sdn bhd, Letchumanan Chettiar.
- BOP: PP v Yuvaraj, Miller v Minister of pensions: Balance of probabilities.

3. (a) Solicitor and client relationship: Section 126.

- Explain whether Olga is a competent witness (Section 118) Once a witness is competent,
he is compellable. (Ghouse bin Hj. Kader)
- Certain issues are privileged under Section 126.

(b) Paolo’s evidence will be treated as Opinion evidence. Discuss section 45.
- Determine the areas of opinion (science and art), whether he is an expert, the proof of
the expert’s special skills (Section 104, Lin Lian Chen, Kumaraguru)

(c) Section 90A issues: Rob may not be suitable as the witness, carl has reproduced and
digitalized some parts.
- Gnanasegaran
- Rob will need to comply with Section 65(1)(g) and Section 65(2)(d). Documents with
numerous accounts and can be examined by anyone who is skilled in examining the
documents.
- Digitalized documents are secondary documents, if there is not original, must explain
what happens to the original.
- Note: If the document is relevant, has the facts said whether its tendered for the truth
of the matter stated if no proceed to explain the mode of proof for documents.

4. (a) Explain Section 114(g) EA, this is a presumption of fact as defined under Section 4(1).
Material evidence is withheld and is construed as deliberate withholding. The accused person
invoked the presumption must prove the basic facts on the Balance of Probabilities. The
presumed fact is if the evidence is produced, it will be unfavourable to the prosecution, the
prosecution bears the overall burden under Section 104. The court will go through a few factors
before under his discretion -
- Whether there is sufficient evidence to support the prosecution’s case
- Whether prosecution offered such witnesses to the defence
- Whether witnesses has statutory protection (DDA: Informers)
- The discretion of the public prosecutor (Teoh Hoe Chye v PP)
(b) The nature of the presumption, the basics facts must be proven by prosecution BRD. The
court will then decide whether to invoke the presumption. GR: Goh Ah Yew, if the accused
person is not relying on defence, no adverse inference can be made
- Baharom v PP: Where the defendant has a legal burden to prove a defence, an adverse
inference can be made against the accused.

5(a) Capital insurance Bhd v Cheong Heng Leong: Failure to object does not affect the
admissibility of the evidence.

Sampo Materials Sdn Bhd v Tenaga Nasional Bhd: The mere fact the evidence was marked as
exhibits do not mean its admissible until their contents had been properly proven.

Note: It must comply with the law of evidence namely, relevancy, hearsay and mode of proof.
If the document is objected, the document will be marked as an ID document instead of the
exhibit, until the issue is resolved by showing the evidence is relevant and reinstate the
evidence as an exhibit.

Ng Yin Kwok v PP, PP v Ng Lai Huat: Allows the judge to reverse his own rulings own
admissibility.
Contradict by YB Dato’ Hj Husam bin Hj Musa v Mohd Faisal bin Rohban Ahmad [2015]: Once it
is marked as an exhibit, the court can only deliberate its low probative value but not completely
exclude it.

(b) Section 134 should be read with Section 114 illustration G in mind, even though there is no
minimum amount of witnesses to be called, however an adverse inference can be drawn
against the prosecution if material witnesses fail to be called. The case of Teoh Hoe Chye v PP,
Abdullah Zawawi v PP on the discretion of the public prosecutor. The prosecution must exercise
its discretion under Section 134 having regard to the interest of justice which includes being fair
to the accused.

6. (a) Where the evidence is relevant and there is no law on the weight of the evidence, it
shall be admitted, this is provided under Section 136(1) EA. No provision as to the admissibility
of an item, therefore Section 136(1) EA fills in the gap.

(b) Section 2 of the EA, EA does not apply to affidavits. One of the reasons being affidavits are
not being tendered in court as evidence, since most of the affidavits are based on defendants
beliefs.
(c) The rule of subramaniam v PP. What tantamounts to hearsay, it is an out of court statement
which is repeated in court and tendered as the truth of the matter stated, subramanium
introduced this requirement into the law. (Page 32)

7.
(a) Section 17(1), S.18, S.19, S.20, S.21 - Anandagoda v The Queen. Different between
confession and an admission.

(b) Confession- (pg74)

(c) Voir dire: A trial within a trial. It takes place when the court has to determine certain pieces
of evidence or collateral issues. When a voir dire is needed, the trial on the matter at hand is
paused and entered into a separate trial on a specific matter. For example: Impeachment,
volunteeriness on section 27 statements. For impeachment of a witness, leave of court is
required to pause the proceeding. Section 27 information leads to the discovery of an object,
volunteeriness does not have to be proven by the prosecution, the information becomes
admissible once section 27 is fulfilled. The accused person may appeal under R v Sung to
exclude the evidence for its prejudicial effect outweighs the proactive value, therefore voir dire
is required to decide.

November 2019
1. (Pg 119)
(a) Wanda’s statement. Section 122 EA on marital privilege. The first limb is no person
who is or has been married shall be made to compel disclosure of any communication,
second limb is consented by the party who made it are allowed to be disclosed. If
Wanda is willing to answered then limb 2 applies, however still needs the Husband’s
consents to disclose. The objection made is under Section 122, this is applicable on the
grounds Lorki and Wanda are married, the argument took place during their marriage,
as such it is privileged and on the facts Lorki does not consent to the communication
being disclosed, the objection should be sustained.

(b) Dr Nollittle report. The case of Pathmanabhan A/L Nalliannen, it is impractical for all
the people involved in the finding of the case to come to court and testify. “Facts
underlying an expert opinion are not inadmissible on the ground of hearsay. Rather, the
failure to sufficiently prove those underlying facts would only affect the weight to be
given to such expert opinion. Therefore on the facts, the opinion of Dr. Nolittle partly
 forms around the findings of Dr, Strangefellow is not inadmissible provided Dr.Nolittle
must prove the opinion. The objection is likely not sustained.

(c) Pepper’s competency. The test for competency is Section 118, the threshold for
competency is low which Section 118 states all person are competent even mentally
disordered are allowed unless the court deemed the illness prevent them from giving
rational answers. For civil case, there is no real issues of sworn and unsworn evidence
under Section 133A. Therefore Pepper’s competency is not in question unless the
objecting party is able to show Pepper’s age has affected her ability to answer rationally.

(d) Lorki’s failure to provide a police report. This is a deliberate withholding on Lorki’s
part, Section 114 Illustration G states where there is material evidence is not produced
and deliberate withheld, the court discretion arises and the court can make
presumption not favourable to the party withholding it. Application of the Section 114
Illus G as follows
Selvaduray V Chelliah: The burden of proof is not on the defendant should not be
invoked
Given that the maker of the report is in court, it is unlikely to me material evidence-
Balachandran v PP [2005] 1 AMR 321 (FC) which held that first information report,
which is a police report, is not substantive evidence. The evidentiary value of a first
information report is only to contradict the testimony of a witness under S.145 Evidence
Act 1950 or to corroborate his testimony under Section 157 of the Evidence Act. It is not
substantive evidence of its contents. And as such cannot serve as material evidence,
especially when the maker of such a report is in court.

2.
(a) Is the whatsapp message being tendered is for the truth of the matter stated by Daily
sin newspaper? It is unlikely to be the truth of the matter stated and for the fact it is
being made, daffy is the plaintiff who would want the message to be tendered to show
the statement was made. Therefore it is not hearsay. Can whatsapp be tendered in
court? It is a computer generated document under Section 90A and held in the case of
Mok Yii Cheok. There are 3 conditions to be fulfilled, namely, the document must be
computer generated, the document must be produced in the ordinary use of the
computer and the computer must be in good working order. Section 90A(2), a
certificate can be tendered to show good working order or the person in charge when
the document was being generated by the computer to show the good working order of
the computer. This is seen in the case of Gnanasegaran
 (b). Section 136(1), evidence must comply with a mode of proof.(Page 3)

3. Section 155 Para C: Former out of court statements can be shown to contradict the in
court statements, it can be oral or documentary. Once it is proven and consent is
obtained to show the inconsistency with the previous statements, the credit of the
witness can be impeached. The impeached witness’s statements will be rendered
inadmissible and toss out of court.
- Section 145(1) is for writing. The witness can be cross-examined on his previous
inconsistent statement. If its used to contradict the witness, the attention must
be called to those parts to be used for the purpose of contradicting him.

- Section 145(2) is for oral statements. The witness must admit he made an oral
statement, if he denied, the circumstances of the oral statement must be
mentioned before asking him whether the statement was made.

- Procedure: Show the court the inconsistent statement made by the witness,
court allow commencement of the impeachment, draw the witness to the
inconsistency made. If the court is satisfied with the witness’s explanation, his
credit is saved. If the reverse occurred, the witness’s statement will be
impeached. An impeachment order is only given at the close of the case (of the
party)- Pg 396

4.
(a) Pg 238. Section 101 on overall BOP on the prosecution, BOP of proving the
elements of the offence- the facts in issue. Standard of proof is not provided for
in the EA, however we can look at the legal burden definition through the case of
Jayaseena and S.3 which is clear prosecution bears the legal burden under
section 101. The case of PP v Yuvaraj adopts the English position which states
beyond reasonable doubt for criminal cases. On the facts, the fraud elements
must be proven by prosecution.
(b) Civil Suit by the company against Kow, the company will bear the BOP in
determining the COA, Section 101 illus B (For civil cases, the elements of COA
have to be proven by the plaintiff)- Breach of trust, fiduciary duty. Standard of
proof is Balance of probabilities under Miller v Minister of Pensions, it is more
probable than not if the burden is discharged. Sinnayah & Sons on civil and
criminal cases, in a civil case the standard of proof remains the balance of
probabilities.
7. Section 73, allows a court to submit his handwriting for purposes of comparison. (Vishnu a/l
Telgan v Timbalan Menteri Dalam Negeri, Malaysia [2019] - 2 documents agreed upon as the
accused handwriting for comparison of handwriting in the impugned document is allowed
under S.73 of the EA to compare. Why is this used? To satisfy the court BRD against the
accused. Sembagavally a/p Muragason v Tee Seng Hock.

Self incrimination: Section 132. Witness’ answers to the questions cannot be proved against
him in a separate case except the case of perjury. However the witness must answer the
question to gain the prosecution’s immunity.

Section 120(3): accused is a competency witness for the defence (in his own behalf) and not
compellable.
Accused person under Section 173 CPC has complete discretion to testify as the first witness,
not testifying or providing an unsworn statement from the dock.

PROBATE
July 2019
a. What is a caveat, Section 33 PAA 1959: Any person who has any interest in the
deceased’s estate can lodge a general caveat in the high court before the grant of
representation is given and shall be given the opportunity to contest the right of any
petitioner to representation. Order 71 Rule 37(5), the duration of the caveat is 6 months
which the effect is to stop all proceedings in respect of the deceased estate.

Procedure: Form 164. The registry will give a notice to whoever is petitioning for grant of
representation and all proceedings is stayed until caveat is removed.

Removal of caveat: Issue a warning in form 165, file it in registry and serve on the
caveator. The warning must state
- His interest on the deceased’s estate and any contrary interest of the caveator.

Order 71 Rule 37(9) and (12) RC 2012: caveator failed to enter appearance in form 166
within 8 days may withdraw his caveat. The person warning may file an affidavit showing
the caveator defaulted and receive no summons for direction therefore the caveator
ceases to have effect.

- Contestation by the caveator against the warning

1. Contrary interest: His interest is against the other person, he must enter
an appearance and the matter shall be dispose in a summarily matter or
enter Order 72 action
2. No contrary interest: Who has a better right to the grant. Serves a
summon for direction under Rule 37(11)
 - Citation: Order 71 Rule 41-44.
1. To accept or refuse a grant of representation (probate or administration)
2. To take probate, citing a person who has intermeddling with the estate
but has not taken out the probate in 6 months.
3. To propound the will, the person cited must show up to propound the will.

November 2019
Issues: Testate or intestate, value and nature, type of grant, who should apply, procedure and
the distribution.
1. It is an intestate estate, file where? Depending on the value and nature of the estate.
Assets and liability is Rm10 million all together, S.3(2) SEDA.

2. Only the high court has the power to grant the grant of representation for moveable and
immoveable properties with the amount over 2 million. The Shariah court jurisdiction is
only limited to distribution of estate for person who profess the religion.

3. Who shall apply? Section 13 of the probate and administration act, person who has an
interest in the estate. If the person is a minor, must be accompanied by another person.
Maximum applicants is only 4.

4. Procedure: Originating summons form 6 ex-parte application in respect of the estate

supported by the affidavit in Form 159. In the affidavit must contains
- List of beneficiaries, assets and liabilities, as of age (or minors)

5. Today estate duty is not applicable since 1991, if death has taken place before 1991
there is a need to file an estate duty. Once the registrar is satisfied the above and the
order will be issued for extraction. There is a requirement for administration bond under
Section 35 PAA which is a security to procure the due administration by the
representative of his duties. After the grant is extracted and pay off the liabilities of the
assets.Section 32 of the trustees act, to advertise the liabilities of the estate.

6. Distribution of the assets is in accordance to the Sijil Faraid, applied to the Syariah Court
to obtain.

ETHICS AND ADVOCACY

July 2019
1. Gana Muthusamy: The case arises from a tenancy, this is handled by L M Ong. The
rental has gone up, subsequently the deposit is increased. The firm Gana Muthusamy
bank in the cheque for the tenant, however the firm appropriated the money for some
other matters.
- Any remedies for the party aggrieved by this decision? Disciplinary board and
committee is in charge to handle misconduct by the A&S. Any clients can file a
complaint or civil suit in court.
 - Section 103E, any party means who is aggrieved by the final decision made by
the court. Section 94(4), Section 100 is summary determination of the matter by
the board, the finding made must be proven beyond reasonable doubt as held in
Joseph Wu Kong ming v Bar committee of Pahang,
- The remedy is to appeal to the high court under Section 103E within one month.
- Section 94(3) defined what type of misconduct, which falls under Section 94(3)a-
n on an established category of misconduct. However there may be a set of
circumstances that may not fall under Section 93(3), then it is the disciplinary
board, will have to decide such a conduct unbefitting to the legal profession.
Once the board decides, the courts are generally reluctant to interfere with the
findings made by the disciplinary board. The court will only interfere in cases of
procedural defect.

2. a. Legal Profession is a monopoly, therefore it is a requirement to be admitted into the

roll of A&S.
- Academic requirement
- Character requirement (Profession of honesty and integrity) under section 11
- Section 10 on qualified people, it is defined under section 3. Derrick has not
passed the final examination in any of the listed universities, not a barrister in
England. He does not appear to have any qualification notification in the gazette.
- Section 12, prescribed period of privilege for the period of 9 months.
- Section 13(1), for applicants in active practice of 7 years can be exempt for a
period not less than 6 months.
- Section 15: A petition + affidavit can be filed in the state bar committee and bar
council for commencement of pupilage. After the petition is filed, pupilage will
start from the date of the petition. Section 36(2) LPA list what a pupil can do
during the period of chambering.
- Attendance in legal aid for 14 days and ethics lectures held by the bar
committee.
- Once 9 months is finished, a certificate of compliance must be filed and find 2
referees to vouch for good characters, all to be submitted to the high court. The
hearing date for the petition filed under section 15.
- A caveat can be entered against admission under Section 17, parties such as the
state bar committee or bar council will enter the caveat for the interest of the bar.

However there is nothing to stop law firms in employing Derrick as a foreign lawyer under
Section 40H.

b. There is no restriction for foreign lawyers to open a firm as long as the approval of bar council
is obtain. Are you allowed to be publicized?
- Rule 9: Nameplates
- Rule 15: Interview with the press
- Section 112, no purchase of subject matter of the client.
- Solicitors account rules. The case of Chong Yik Son v Majlis Peguam.
Question 4.
a.
b. Imprisonment 3 weeks or fine RM 150 in magistrate. Imprisonment 6 weeks, RM300 in
session. Section 13 CJA for high court: Shall have the power to punish for contempt. PP
v Arun kasi

November 2019
1.
i. Section 116, advocate and solicitor may enter agreement for costing contentious
business. Section 112(1)(b), no advocate and solicitor shall enter into any agreement
which only contemplates payment only in the event of success in such suit. Rule 11
LPPER, fees for litigious or contentious matters. Rule 61: Lay agency. Rule 51: Touting.
Rule 52: No division of costs or profits with an unqualified person.
- Rhina Bhar v Koid Hong Keat
- Balakrishnan v Patwant singh.

In order to bring a negligence suit against angkut, Swarmy v Matthews on professional

negligence. The claim against angkut is two fold, in contract and in tort.

Iii. The advocate and solicitor in Malaysia does not have immunity.

2. A&S is bound by conventional written rules such as the ones made by bar council which
members of the are bound under Section 77(1) in regards of practice etiquette and
conduct of the A&S. If breach, they are liable for disciplinary action under Section 77(3).
Fiduciary obligations be imposed on A&S, as trustees. Solicitors accounts rules, Rule 3,
duty to pay money into client’s account of the solicitor’s firm. Solicitors accounts deposit
interest rule 1990, this is to place client’s money in a interest earning account given the
amount is over RM5000 and does not disburse or reduced under RM5000 within 4
month. Rule 4 however allows written agreement to override the interest bearing
account. The interest belongs to the client.

Rule 7: Clients account can only be drawn for payment for and on behalf of the client. It
cannot be used to pay the firm’s operational expenditure. The account’s clerk is not
liable under page 49. Tan Kau Tiah v Tetuan

3. b. Undertaking is not defined, however it can be seen explained in Countrywide Banking

Corporation, undertaking as being the bedrock of conveyancing and it is the duty to
honour the undertaking and adhere to the promises made. Breach of undertaking can be
prima facie misconduct even if there is no dishonorable conduct involved, udall v capri
lighting. The court has compensatory jurisdiction or punitive measures against breach of
undertaking.
 Extend of counsel authority? A contract between client and solicitor is called a retainer.
Gurbachan Singh v Vellasamy
- Authority to act in an action, the case of Medoc, Tan Liang Hong
- Authority to compromise a law suit
- Authority to concede a point of law
- Ostensible authority, Waugh v HB clifford, applicable in Malaysia in case of Lee
Teng siong. The court will not reopen the case and the only remedy lies against
the solicitor.

4. Wee Chu Kiong v PP, under rule 28. The basic of duty of an advocate and solicitor is to
advice the client outside of court and in court. Therefore, by filing an affidavit it is
considered as an evidence. Rule 29 is breach. Mohd Yusof Mohamed v Electrolux

LAND LAW

July 2019
Question 5
(a) Set Aside Order for sale if cause to the contrary not taken into account when OFS
granted. Low Lee Lian
1. Condition precedent
a. Limitation period exceed 12 years
Not CTC, as limitation period start to run from date that the money accrued, the
case of CIMB v Sivadevi. So cause of action is revived upon issuance of the
fresh notice 16D, so limitation does not apply
b. Amount must be correct- Here is not correct as never take into account the
deposit forfeited. This may or may not be cause to the contrary, Kemas Perkasa-
Court can still order based on corrected amount. However in Maimoon case then
the wrong amount can be a cause to the contrary.

2. Charge is defeasible
Section 340(2) wrongly entered as first party charge when it should be 3rd party - is this
a void or insufficient instrument? Malaysia Building Society v KCSB held that this is a
valid instrument - charge remains indefeasible. No CTC. You will not succeed to set
aside the order for sale.

(b) Can registrar correct the mistake?

- Section 380, there are only 3 conditions. Island & Peninsular & Legal Adviser, Kedah-
power to correct only if mistake is made by registrar, here mistake is by parties. Register
got no power to rectify.
- Section 417, apply to court, court grant order directing the registrar to correct the
mistake. KCSB case
Question 6
a. Is CS bona fide? The relevant case here is T.Sivam. The only requirement is not without
deceit only, proper care must also be taken. Knowledge about the fraud is not fraud, it
must be actual fraud (Tai lee finance)

Therefore since proper care is required, CS has not acted with due care and not bona
fide.

b. Bona Fide subsequent purchaser for value under Section 340(3)

- Defeasible title: Not Bona fide
- Indefeasible title: Constructive notice on the fraud is not actual fraud. The
interpretation of subsequent purchaser Along and AB are separate legal entity,
majority in ambank agrees to this.
- Liputan Simfoni - does not affect the validity of transfer under NLC.
Understanding the price does not make the registration defeasible. The main gist
of the case is whether the illegality in concern goes to the root of the contract, is
it something that affects the elements of the contract.

23/8/2020
Meaning of Dealings
Jalaludeen Abdul Aziz v Thrumalingam Rajadurai
- Pursuant to S433B, is signing SPA and MOT amounting to dealing?
- It is immaterial that the duly executed form has not yet been presented to the land office
for registration, the mere execution of the memorandum of transfer by both parties is a
“dealing”.

Limitation for enforcement of charges (foreclosure)

- Form 16D/16E -----------------------------OS-------------------------------------------Auction
(12 Years) `12years to state OS Not subject to 12 years.
Cimb v Sivadevi RHB v Dato Mohd Hamzah [2019]
[2020]

Can a purchaser under an order for sale sue the bank for breach of contract?
- Aim edition sdn bhd v Ambank bhd [2020]: A judicial sale under s.256 of the NLC is a
contract, which entitles the successful bidder to claim damages for breach against the
bank when the land was smaller in area than stated in the condition of sale.

Private treaty sale (chargee/chargor property)

- UMBC v Chong Bun Sun: The court has no power to grant a private treaty however
before the order for sale is granted.

a. Before proceeding is started: Pakiri Maideen

b. Before Full payment of auction sum: Chong Bun Sun, Kimlin Housing
- Chargor right to sell by private treaty (with consent of charges). The party can opt to do it
themselves.

- Kim Lin Housing, during the winding up of the company, the liquidator took over the
company through the courts and the bank took over via the receiver under the debenture
pursuant to the contracts act. The receiver is empowered to sell through private treaty.
- FC: The receiver should apply to the court to sell the land via public auction.

- Bala Subramanian: FC again decided, Kimlin is confined to the facts of its own case. If
the company has not been wound up, receiver sell by private treaty.

- Does the bank owe a duty of care?

No Duty of care to ensure that chargor get surplus- Talam Corporation Bhd v Bangkok
Bank Bhd
No duty of care to ensure expedition discharge- Sri Minal construction sdn bhd v
Hongkong Bank Malaysia Berhad.

- Is a private caveat an encumbrance?

Version Buy Sdn Bhd v Thong Wee Kee, it is not an encumbrance until it is properly duly
registered.

- Termination against the Housing developer

a. Under 8A HDA
b. Contracts act. Terminate and claim rescission, total failure of consideration
(LSSC development)
Terminate and claim damages, must be breach of condition (ching yik
development), can claim even if there is LAD (M concept v Berjaya Times
Square)

- Time start to run

a. Faber Union, PJD Regency (date booking fee is paid)
b. GJH Avenue (date of agreement)

- Extension of time
a. Ang Ming Lee v Menter Kesejahteraan Bandar: Controller of housing has no
power to grant an extension of time as the power given to controller under
Regulation 11(3) is ultra virus the parent act which is the housing development
act.
b. Alvin Leong Wai kuan v Menteri Kesajteraan Bandar: it was further held that the
Federal court decision has retrospective effect.
 c. Lee Shy Tsong v ‘’ ‘’ ‘’ : The high declined to follow Ang Ming Lee. The high court
distinguished Ang Ming Lee on the basis that in Ang Ming Lee, the controller
originally rejected the application for extension of time under Regulation 11 (3).
The extension of time was only granted after the developer appealed against the
rejection under Regulation 12. In Lee Shy Tsong, the developer did not invoke
the appeal procedure under Regulation 12.

- Housing buyer right to set off. (Contra the house payment with LAD)
a. SEA Housing Corp Sdn Bhd v Lee Poh Choo: It is allowed.
b. Toh Tiam Cheow v Berjaya Times Square: If the vacant possession is not
deliver, how can the damages be ascertained? Therefore set off is not allow.

- Housing developer and bare trust

a. Tan Ong Ban v Teoh Kim Heng: The principle of beneficial ownership as
enunciated in borneo housing applies equally to both negotiated contracts as well
as statutorily formatted contract.

- Strata title: Governing law Act 318 as amended in 2012 and the new strata management
act 2013. With the amendment in 2013, the act provides
a. The developer must apply for strata titles early in the day (at super structure
stage)
b. Strata titles can be issued by the time the project is completed (within 36 months)
c. The developer can thus handover vacant possession to the purchaser together
with the strata title
d. The developer can execute a transfer of the title, enabling the purchaser to be
the registered proprietor; and
e. The registered parcel owners can then form a management corporation (MC)

- Common property and management

a. When a new property is finished, the duties falls on developer management
b. Once VC is received, JMB is formed including the developer and purchaser
c. Management corporation takes over all duties and liabilities of the JMB
d. MC is established at the point the developer successfully completes subdivision
of the building and relevant strata titles have been issued for individual owners.

- Muhamad Nazri Bin Muhamad v JMB menara rajawali and denflow sdn bhd: COA held
21 and 25 only allows JMB to fix a single rate of charges to all types of unit

- Equiti Setegap Sdn Bhd v Plaza 393 Management corporation: Any basis to determine
the quantum of contributions to the management fund other than by way of share units
would be contrary to the law.