JCW

[Application for inspection of account and records of the company under Section 167(6) of the Companies Act 1965] Justin was the counsel for the plaintiff. In allowing the plaintiff’s application to inspect the accounting books of the company pursuant to Section 167(6) of the Companies Act, the High Court held inter alia that:- (i)The onus was on the defendants to prove mala fides and unless the burden was discharged, it must be assumed that the plaintiff would exercise the right for the benefit of the company; (ii)A director who does not take part in the management remains liable as a director with fiduciary and statutory duties and for the discharge of these duties, the plaintiff must hold the right to inspect; (iii)There was no clear proof that the plaintiff intended to exercise her right of inspection as a director for an ulterior or improper purpose; and (iv)When there is suspicion and lack of co-operation, a director is all the more entitled, perhaps even obliged, to inspect company’s accounts to protect the interests of the company and its shareholders.

[Pre-condition for filing of a suit for malicious prosecution] Justin was counsel for the defendants and assisted by Chooi Peng. In allowing the Defendant’s application under Order 18 Rule 19(1)(a) Rules of Court 2012 to strike out the suit by the Plaintiff for “malicious prosecution” with costs, the High Court held that as it was clear that the plaintiffs had no cause of action against the defendant as the precondition for such a suit is not met where the suit by the Plaintiff has not ended in favour of the Plaintiff and therefore the filing of the suit by the plaintiffs against the defendant could not be maintained in law.

[mearing of “vacant possession” and “predominant purpose” in a lawful means conspiracy] Justin was the counsel for the respondent/plaintiff and assisted by Chooi Peng. The Court of Appeal whilst allowing the appellants’ appeal against the finding of conspiracy by the High Court found that the predominant purpose of the Tenancy Agreement was the lawful promotion of the lawful interests of the defendant. The Court also held that the term “vacant possession” means the actual and empty possession as would allow a party to occupy and use the property transferred without impediments.

[striking out of Pleadings on illegality] Justin was the counsel for the defendants. In striking out the plaintiff’s claim with costs, the High Court held that the defendants were correct in their position they take that the plaintiff’s claim must fail on the ground of illegality. A plaintiff cannot found his cause of action on an illegal act. Note : This case has been subsequently overturned by the Court of Appeal which found “triable” issues.

[Whether a Joint Management Body can co-exist with the establishment of a Management Corporation] Justin was the counsel for the appellants. In dismissing the appeal, the Federal Court bench which consisted of Chief Justice Tun Arifin Zakaria (as he then was) in dismissing the appeal held that the Joint Management Body (“JMB”) was an interim body established for the purpose of carrying out the functions of the Management Corporation(“MC”) pending the establishment of the MC and once the MC is established, the JMB was automatically dissolved.

[Doctrine of functus officio and consequential orders to give effect to the to the decision of the Court] Justin was the counsel for the defendants in this application by the defendants under Enclosure 45. Enclosure 45 was dismissed by the High Court with no order as to costs on the grounds that the court was functus officio. However, the dismissal of Encl 45 did not preclude the court from giving consequential directions to give effect to the terms. The court may, pursuant to its inherent powers, make consequential orders or directions to give effect to its decision, “when its working out might involve matters on which it might be necessary to obtain a decision of the court”. The doctrine of functus officio does not take away this inherent power of the court.

[Contempt of Court – issue of tampering with documents, issue of mens rea] Justin was the counsel for the Respondents. The Appellant’s appeal was dismissed and the Court of Appeal had amongst others ruled as follow (summarized in the Head Note of no. (5) of the law report) :- “(5) The first Form 75 and statutory declaration was material as well as an important documentary evidence in the applicants' removal application. Hence, the conduct of the appellant in tampering with material documentary evidence clearly amounted to an interference with the due administration of justice and constituted contempt of court. The appellant had not just acted in a manner which was likely to interfere with the proper administration of justice but had actually directly interfered with it by the positive act of amending the first Form 75 by way of lodging the second Form 75 and affirming the second statutory declaration. (paras 20, 25 & 26)” The Court of Appeal further held that although mens rea was not a necessary element of contempt, there was clear cut mens rea in the conduct of the Appellant here.

[Common Property of “kindergarten” recovered in favour of Management Corporation (“MC”) – State title issued in respect of the said Kindergarten with accessory carparks was cancelled in favour of the MC, locus standi of MC to sue] Justin was the counsel for the plaintiff. The MC successfully sued and recovered the Kindergarten known as “Block J”. Block J was identified in the Development Order as “Kemudahan Umum Yang Disediakan”. The 1st defendant applied for Strata Title to be issued for Block J which was approved by the 3rd defendant. The 1st Defendant then sold the Block J to the 2nd defendant. The Court held that the MC had locus standi to file the suit for common property under Section 76(1) of the Strata Title Act 1985. Block J was held to be common property for the enjoyment of all the occupiers of the building. By rules of Section 42(1) of the Strata Titles Act 1985, the Plaintiff was the legal owners of Block J, the Strata Title of Block J was unlawfully issued and the 2nd defendant did not acquire an indefeasible title to Block J.