JCW

[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.

Justin was the counsel for the second respondent/ second defendant and assisted by Alvin. In dismissing the plaintiff’s appeal with costs, the Federal Court held that the plaintiff had not adduced any evidence of fraud, actual or equitable, or of any special circumstances that would have justified the lifting the veil of incorporation of the defendants. The pleading that the 1st and 2nd Defendants are part of a group of family companies with common/connected shareholders were insufficient and there is no further allegation that the plaintiff was not awarded the sub-contract works as a result of manipulation or abuse of the “single entity” by the defendants. Since the first defendant was not awarded the subcontract works for the project, the plaintiff also could not be awarded the sub-subcontract works and the pre-tender agreement was therefore void.

Justin was the counsel for the Plaintiff in an application for Summary Judgment pursuant to Order 81 of the Rules of the Court for an Order for Specific Performance of Share Subscription Agreement (“SSA”). The Plaintiff was successful in the said application whereby the Court held that since the Defendants failed to fulfill the condition precedents under the said SSA, the Plaintiff is entitled to effect the transfer of the relevant land to itself as its nominee.

Justin and HV Yoong were the counsels for the applicants who were the first and second respondents in the winding up petition. One of the main issues before the Court was whether the applicants had the locus standi to institute the contempt actions. The High Court in allowing the applicants order for committal held that any party having sufficient interest in the outcome of the case can in law initiate an action for committal. On the facts and in law, the applicants being shareholders/ contributories of the company had sufficient interest and capacity in the matter to bring the contempt action that is premised upon breach of the order obtained by the applicants for removal of liquidator.

Chooi Peng was the counsel for the respondents/plaintiff in respect of a dispute between 2 landowners concerning the issue of encroachment and equitable right of way. The High Court allowed the respondents’ / plaintiffs’ claim for equitable right of way and encroachment and granted damages. On appeal, the Court of Appeal partially reversed the decision of the High Court and held that such claim for an equitable right of way was in the nature of an easement and not for a right of way under Section 390 of the National Land Code.

Justin and Alvin were the co-counsel for the appellant in this case where the counsel was Mr. Lim Kian Leong. This case concerning an appeal against the High Court’s decision in allowing the Respondent’s application under Section 10 of the Arbitration Act 2005 for stay of the proceedings pending the matter to be referred to arbitration. The Court of Appeal dismissed the appeal and decided that the question of whether the arbitration clause was part of the contract of insurance is a matter that goes to the jurisdiction of the arbitrator. The Court of Appeal considered Section 10(1)(b) of the Arbitration Act 2005 in the said Judgment.