JCW

[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.

[Building Construction dispute – the meaning of “variation works” and the difference between “re-measured works” and “variation work”] Justin was the lead counsel assisted by Alvin, acting for the defendant. The defendant was the principal sub-contractor to carry out works in relation to the “Electrified Double Track Project between Rawang and Ipoh”. The plaintiff was appointed as the Defendant’s sub-contractor and made progress claims via 115 claim certificates for RM9,779,933.52. The defendant maintained that the plaintiff has been duly paid and the defendant having instructed or issued any variation order for additional work. The Court held that “re-measurement works” are part of the original contract and is by no means “variation work”. The plaintiff failed to produce its source documents (“Detail Method Statement”) to prove its claim plus failed to distinguish between original and additional/variation works in its certificate of claim. The Plaintiff was found to be adjusting its figures as the claim proceeds. The Plaintiff’s claim was dismissed after Full Trial.

[Claim based on breach of a Master Tenancy Agreement, disputes on Vacant Possession and the Court can lift “privilege” under without prejudice correspondence when the justice of the case require it] Justin and Chooi Peng were the counsel for the Plaintiff. The plaintiff succeeded in the case after Trial based on amongst other the breach of a Master Tenancy Agreement entered between the plaintiff and the 1st defendant in respect of a Building. The plaintiff claimed that the 1st defendant failed to give vacant possession for the entire Property. The 1st defendant claimed on the other hand that the plaintiff failed to pay rental and took vacant possession. Whilst the Master Tenancy Agreement was subsisting, the 2nd defendant entered into another tenancy agreement with the 3rd defendant and the 3rd defendant sub-let the same to the 4th Defendant. The 1st defendant was found to have failed to give vacant possession of the premises to the Plaintiff and the 1st defendant’s contention that the Plaintiff refused to take possession is a not true. The 1st defendant knew it had to give Vacant Possession of the entire premises of 1,234,197 square feet before it can collect rental from the Plaintiff. The Court further found that the without prejudice letters were admissible in the circumstances of the case where inter alia justice required it. [Note: This case was partially overturned by the Court of Appeal in [2016] 3 CLJ 676]

Justin was the counsel for the plaintiff. This is the 2nd contempt proceedings taken against the defendant for non-compliance of the Judgment after Trial on the basis of averments in Affidavit filed in the 1st contempt proceeding which are untrue plus there are major discrepancies In the documents and/or its contents with other contemporaenous documents. It is also clear to the Court that 1st defendant, through the 2nd and 4th defendants continued to sell the impugned product after the delivery of the judgment. The contempt proceedings succeeded with custodial sentence were meted out to the relevant individual defendants and the 1st defendant company was fined.