JCW

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.

Chooi Peng was the counsel for the appellant/judgment. In this landmark Court of Appeal’s decision, the Court set aside the service of the Bankruptcy Notice and Creditor’s Petition on the ground that the application for substituted service of the Bankruptcy Notice and Creditor’s Petition is invalid and ought to be dismissed; and consequently, the Order for substituted service of the Bankruptcy Notice and Creditor’s Petition are null and void. The Court of Appeal held that for bankruptcy proceedings, the mandatory provision under rule 18(1) of the Bankruptcy Rules 1969 is for an application to be made by way of summons in chambers and not via a “notice of application”. The judgment creditor’s filing of a notice of application as opposed to a summons in chambers is a clear breach of the mandatory provision and the breach is not a mere irregularity or formal defect which is capable of being cured under Section 131 of the Bankruptcy Act 1967.

Justin was the counsel for the Appellant in this Appeal before the Court of Appeal. This appeal involved a complicated building contract claim where the findings of the High Court were overturned by the Court of Appeal. The Court of Appeal allowed the Appeal and amongst other, held that :- (i) The Respondent/ Plaintiff’s complaint on the failure by the Appellant to produce a “Method Statement” is not pleaded and the High Court Judge ought not to have considered this ground at all; (ii) Further, a careful examination of Clause 15 of the Instruction to Tenderers will reveal that it is not the Appellant’s responsibility to produce the “Method Statement” but instead the responsibility of the Respondent; (iii) By various contemporaneous correspondences, the Appellant had made known to the Respondent of the delay of work and the only response was to request for an extension of time; (iv) The Respondent did not comply with the relevant clauses in the contract for extension of time; and (v) The complaint by the Respondent on the purchase of building materials is devoid of merits as the Respondent had agreed pursuant to Tender Questionnaire that all major building materials has to be purchased from the Appellant. The Court of Appeal allowed the Appeal and after evaluating the evidence, were constrained to rule that this is a fit and proper case for Appellate intervention.

Justin was the counsel for Syarikat Asal Construction (the Defendant). The Plaintiff contended that in order for the Defendant to maintain its bumiputra status, the Defendant had purportedly re-appointed the Plaintiff after his retirement as a Director without his consent and knowledge and the Defendant had been forging the Plaintiff’s signature. The Plaintiff therefore claimed that he was entitled to 37% from the profit earned from the relevant projects. After a full trial, the Court dismissed the Plaintiff’s claim and inter-alia held that the Plaintiff failed to prove forgery without any handwriting expert evidence and further, since the Plaintiff disclaimed and disagree he was a shareholder, he could not claim for any profits in the form of dividends. The case involved the Plaintiff claiming for damages as well as profits and claimed the Defendant forged his signature to re-elect him as director of the company. The High Court after a Full Trial found in favour of the Defendant, dismissing the Plaintiff’s claim due to the lack of evidence on the side of the Plaintiff.