Professional Documents
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14A + )
CASE : KERAJAAN NEGERI KELANTAN v. PETROLIAM NASIONAL BERHAD &
OTHER APPEALS
FEDERAL COURT, PUTRAJAYA
SUMMARY
(ii)
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.
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.
The Malaysian government also raised the question same like Petronas.
ANY PRINCIPLE/ Order 14
TEST/
DEFINITION OF
ANY TERMS
JUDGEMENT
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.
SUMMARY OF
FACTS
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.
DEFENDANTS Defendants contended that the court is perfectly able to elucidate the provisions
of the constitutions, agreements, statutes and conventions without the aid of
ARGUMENT
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
JUDGMENT
(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.
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.
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
Defendant Arguments
Issue(s)
Order
Rules
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.
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
CASE SUMMARY
ISSUE
PLAINTIFFS
ARGUMENT
(RESPONDENT)
DEFENDANTS
ARGUMENT
(APPELLANT)
DECISION
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
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
(Defendant)
Respondents
(Plaintiff)
Courts
decision
and 1. Ps application came within the ambit of the
'construction of document' which is expressly
reasoning [Para Number or
provided in O 14A r 1(1) (Page 15 Para 42)
Page Number ]
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
(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 )
Courts decision
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.
Issue:
1. Sama ada pergantungan defendan-defendan kepada peruntukan s. 10 Akta Fitnah
1957 adalah suatu pengakuan liability terhadap tuntutan plaintif?
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.
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
Defendants
Arguments
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.
Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2009] 5 MLJ
754
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
Respondent Arguments
Sin Hai Estate Bhd & Ors v. Lim Jit Kim & Ors [2007] 7 CLJ 443
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
Defendant Arguments
Courts decision and reasoning 8. Allowing the appeal, setting aside the order of the
[Para Number or Page Number ]
learned registrar and reinstating the plaintiffs
writ and statement of claim.
NEWACRES SDN BHD V.SRI ALAM SDN BHD [1991] 3 CLJ (REP) 321
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
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.
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.
YB Dato' Hj Muhammad bin Hj Abdul Ghani v The New Straits Times Press (M) Bhd
& Ors [2012] 8 MLJ 675
Summary of The plaintiff's case was founded on libel. The plaintiff, a senator, relied on
the News Straits Times ('NST')
Facts
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)
Ordinance
and Rules
Ordinance 33
Rule 2
Rule 5
Plaintiffs
Arguments
(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.
Defendants
Arguments
Courts
Decision
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.
SUMMARY OF
FACTS
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 Defendants contended that the court is perfectly able to elucidate the provisions
of the constitutions, agreements, statutes and conventions without the aid of
ARGUMENT
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
JUDGMENT
(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.
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.
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
Courts
decision 1)Judgement entered for the Plaintif against defendant. Without
securing a conviction of that nature the plaintiff's claim for the recovery
and reasoning
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
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.
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 illwill 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.
SUMMARY OF The plaintiff applied in encl. 16 for a question raised in the pleadings of
FACTS
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
PLAINTIFFS
ARGUMENT
DEFENDANTS
ARGUMENT
1. On behalf of the First Defendant, even if the court finds that the
BMC Guidelines to be ultra vires, yet that outcome will not
result or substantially result in the disposal of the case. Indeed
that is a perfectly correct contention. It must be borne in mind
that the action for the tort of libel is a distinct cause of action
independent of whether the BMC Guidelines are valid or
otherwise.
2. It is the contention of the First Defendant that it is under a
statutory or legal duty as well as a moral or social duty to
maintain the List for the benefit of all the commercial banks in
the country including the second defendant and the third
defendant.
JUDGEMENT
All said and done, Mr. Amir bin Ismail is a gentleman who practises law
with an acute sense of responsibility. He submits on the law as he sees
it and when questioned he magnanimously agrees that encl. 16 is
inappropriate for the purposes of O. 33 r. 2 of the RHC. I then dismissed
encl. 16 with costs. And it was held too said that costs should rightly go
to the first defendant, the second defendant and the third defendant. Out
of deference to the learned counsel on all sides, this judgment is
produced to show that there is a need to be cautious when applying
under O. 33 r. 2 of the RHC. Let this be a lesson to all legal practitioners.