JCW

Justin was the counsel for the first and second respondents (‘Ker Boon Kee and Ker Min Choo’). This is a case concerning an application by the 1st and 2nd Respondents for committal order against the court appointed liquidator and involved the issue as to whether the failure by the liquidator to hand over the relevant documents to the Official Receiver in accordance with the Court Order to remove the liquidator is contempt of the Court.

Justin was the counsel for the plaintiffs. This case involved a bungalow unit which was not built by the developer in accordance with the Sale and Purchase Agreement and the building plan in respect of the front car porch where the length of the car porch was reduced when the unit was delivered to the Purchasers (the Plaintiffs). Therefore, the plaintiffs (Purchaser) sued for inter-alia rescission of the sale and purchase agreement and refund of the purchase price plus damages for breach of contract. However, the Court entered judgment in favour of the purchasers (plaintiffs) for damages for the breach. The Court did not allow the prayer for rescission of the contract on the basis that the plaintiffs had renovated the property. The Court held that the evidence do not show consent by the purchasers to the changes of the layout plan and the mere initial or signature of the purchaser on the amended floor plan without anything more cannot signify consent to the changes but mere acknowledgement of receipt.

Justin was the counsel for the plaintiff. In this case, the High Court dismissed the 1st Defendant’s application to set aside the Court Order striking out the defendant’s defence by reason of the 1st Defendant’s delay in filling the witness statement and the breach of the Court’s “Unless Order” by the 1st Defendant. The delay in filling the witness statement purportedly caused by the change of witnesses and “cuti raya” were unacceptable and not a good reason to justify the delay.

Alvin was the counsel for the defendants. This is a judgment after a full trial involving a claim by the plaintiffs against the defendants for “money had and received”. The High Court was of the view that when there are 2 conflicting versions of the case between the 2 parties, the contemporaneous documents are more probable and reliable. The Court also held that the shareholders are not liable for the liability incurred by the Company. In respect of the counterclaim, the Court held that the defendants are entitled to claim against the plaintiff for the loss of the stocks and assets after the plaintiff abandoned the operation and business of the first defendant and refused to return the assets and stocks of the defendants. The High Court dismissed the plaintiff’s claim and allowed the defendant’s counterclaim. The case was decided in favour of the defendants.

Justin was the counsel for the petitioner. In this case, the petitioner disputed the unsigned bills issued by respondent for legal fees. Thus, the petitioner commenced the Court proceeding to seek for declaration that the purported unsigned bills are void and unenforceable on the grounds that the purported bills were unsigned and the respondent failed to comply with the mandatory provisions of Section 124 of the Legal Profession Act 1976. The High Court held that the failure to sign the bill of cost is a breach of the mandatory provision of law. However, as the petitioner made some payments towards the bill and therefore acquiesced and acted upon the bill, the High Court allowed the petition in respect of the alternative prayer for taxation.

Justin was the counsel for the first and second defendants. The 1st and 2nd Defendants were successful in their application to strike out the plaintiff’s writ and statement of claim as well as the application to set aside the ex-parte injunction order obtained by the plaintiff. It is worth noting that this is also the a case where the Malaysian Court held that when the land is owned by two or more registered proprietors, only one of registered proprietors cannot sue without involving the other(s). Further, the plaintiff’s failure to comply with the mandatory provision of Order 18 Rule 7 of the Rules of Court 2012 rendered the claim liable to be struck out and the breach of the mandatory rule cannot be cured under Order 1A or Order 2 Rule 3 of the Rules of Court 2012. This is also a case on the principle of law in respect of the prolixity and failure to plead material facts under Order 18 Rule 7 and the wrongful pleading of evidence leading to the striking out of the whole civil action.

Justin and Alvin were the counsel for the second respondent/defendant in the Court of Appeal. The appeal was decided in favour of the second respondent/defendant. This is a case involving a claim in respect of the construction of a dam where the Pre-Tender Agreement was signed between parties. The Court of Appeal held that an invitation to participate in the joint venture to submit the tender, on its own, did not create a contractual relationship between the appellant/plaintiff and the first and second respondents/defendants. It was merely an invitation for a discussion and negotiation which culminated in the preparation and signing of the pre-tender agreement between parties. Further, the parties were not allowed to adduce evidence to contradict and vary the Pre-Tender Agreement under Section 91 and 92 of the Evidence Act 1950. The Court of Appeal also re-affirmed the principle of law that a party who seeks the court’s intervention to pierce the corporate veil must establish special circumstances to show that the company is a mere façade concealing the true facts.

Justin was the counsel for the appellant/defendant. Dissatisfied with the High Court’s decision, the Appellant appealed to the Court of Appeal and the High Court’s decision was overturned by the Court of Appeal. In this case, there was a Sale and Purchase Agreement of the development land and a Supplementary Agreement to deal with part of the purchase price of RM4 million to be paid in kind by contra of 2 units of property. The Supplementary Agreement provides that should the Purchaser (Appellant) fail to deliver the condominium units to the vendor (Respondent) within 36 months, the Appellant is liable to pay interest to the Respondent. The Appellant did not deliver the units to the Respondent within 36 months and the Respondent rescinded the agreement and demanded for payment of RM4 million. In this case, the Court of Appeal held that the respondent was only entitled to demand for the payment of interest for late delivery of condominium units, but not entitled to rescind the supplementary agreement purely because the appellant was not able to meet the deadline. A mere failure to meet the deadline of 36 month cannot in law amount to “total failure of consideration”. The appeal was decided in favour of the appellant/defendant.