JCW

(Court of Appeal) [distribution during intestacy- only brothers and sisters living at time of death of deceased was entitled to his estate ] Justin and Chooi Peng were counsel for the Appellant. The Court of Appeal held that pursuant to Section 6 (1)(i) of the Distribution Act, only the brothers and sisters of the deceased living at the time of his death was entitled to his estate.   The Court of Appeal further amongst others held that   (i)The English Administration of Estate Act 1925 and the provisions of the Indian and NSW legislations are not in pari materia with Section 6 and 7 of the Distribution Act; (ii)The emphasis is on the phrase “living at the death of the intestate” in Section 6 (1) (i) of the Distribution Act; (iii)If the nephews of the intestate are taking a share of their late father’s entitlement in the estate of the intestate under Section 7 of the Distribution Act, they are caught by subsection 6 (1)(i) The Respondent’s application for leave to appeal to the Federal Court was refused.

[Law and Application of Secret Trust in relation to a Will] Chooi Peng was the counsel for the Appellants. A Will was challenged with a Full Trial. The Court of Appeal expounded on the important principles  of law in relation to  “Secret Trust”  and held amongst others that : (i)       The requirements for the formality of the will has been satisfied and the Appellant’s defence (against the Respondent challenging the Will) is simple and straightforward and they had pleaded a secret trust;   (ii)       The common law concept of “secret trust” is recognised in Malaysia despite the law of will placed under the statutory regime in Malaysia. The Court’s endorsement of the secret trust does not breach the Wills Act or any other statutory law;   (iii)      The High Court misdirected on the issue of testamentary capacity by combining the issue of secret trust with that of testamentary capacity. Testamentary capacity is related to medical evidence of related credible evidence, and has nothing to do with a story related to secret trust   (iv)      The law of secret trust was developed to assist the testator’s purported “sins” are what is often said “skeleton in the cupboard” for just and equitable reason to benefit his genes or acquaintance, whether lawful or otherwise to provide some form of security to his beloved ones.  The law on secret trust has developed in a manner to close its eyes on public policy or breach of rule of law related to monogamous or polygamous marriage inclusive of polyandry or relationship of cohabitee, etc.  The court does not strike out secret trust argument based on illegality or public policy.

[Legality of the selling of condominiums with excessive accessory parcel (car parks) to a single purchaser – Whether owner of the condominiums can commercialise the accessory parcel (car parks) in renting the accessory parcel] Justin was the counsel for the Plaintiff, the Management Corporation (MC) of Palm Spring. This is a case involving the selling of 45 units of condominium to a single purchaser (“the Purchaser”) together with 439 car parks as accessory parcel attached to the units of condominium. In this case, the MC filed the action claiming that the extra car parks of 394 (439 car parks less 45) are common property of the condominium and it was given to the purchaser for no consideration. The MC alleges that the Purchaser is essentially carrying out car rental business in the condominium by renting the car parks to the residents for a fee. The MC had suffered serious prejudice as out of 2,449 car parks built, 2,180 car parks should have been given to 2,180 condominium units (as per the Development Order) and the 218 car parks allocated for the visitors and there should be 51 extra car park parcels. As such, the MC claimed that the giving of 394 car parks to the Purchaser is invalid and ought to be revoked as there is a breach of Development Order, breach of the Strata Title Act 1985, the extra car parks was not sold with consideration, the extra car parks given to the Purchaser is against public policy and the registration of the extra car parks in the strata title is void ab initio under the National Land Code and Strata Title Act 1985. The Court allowed the MC’s claim and held that: (i)The Development Order cannot override the contractual obligation and the agreement reached between the parties, so long as the contract or the consideration for the contract or the object was not illegal; (ii)The renting and/or the usage of the 394 extra car parks by the Purchaser was a ‘dealing’ of the accessory parcel was prohibited by s.34(2) and 69 of the Strata Title Act 1985. Therefore, it is illegal and the sale of the 394 extra car parks by the developer to the Purchaser shall be struck down pursuant to s. 24(b) of the Contracts Act 1950; The 394 extra car parks which are accessory parcels registered in the name of Purchaser becomes null and void and is defeasible under s.340 of the National Land Code.

[Just and equitable Winding Up – Section 218 (1) (f) and/or (i) Companies Act 1965] Justin and Chooi Peng acted for the plaintiff in this case. The High Court dismissed the plaintiff’s winding up petition after a full trial as the High Court amongst others, found that there was no mutual understanding between the shareholders but merely casual and informal communication between corporate personalities which do not give rise to a quasi-partnership. Further, the Court held that there were alternative remedies available, apart from winding-up.

[Striking out – liability of guarantor – issue of res judicata] Justin was the counsel for the respondent/defendant. The plaintiff filed a suit against the principal borrower and at the same time, also subsequently filed a suit against the guarantors, one of them is the defendant in this case. The suit against the principal borrower was dismissed by the Court of Appeal and the principal borrower’s counterclaim against the plaintiff was allowed with damages to be assessed. The plaintiff filed a notice of motion for leave to appeal to the Federal Court. Following the Court of Appeal’s decision which dismissed the plaintiff’s claim against the principal borrower, the defendant in this case, filed an application to strike out the plaintiff’s claim. The High Court allowed the defendant’s application but the Court of Appeal allowed the plaintiff’s appeal and held that the defendant having given a guarantee, is primarily liable for losses and his liability is not dependent or secondary to the liability of the principal borrower. On the issue of res judicata, the Court of Appeal held that since the notice of motion for leave to appeal to the Federal Court is still pending, the issue of the liability of the principal borrower cannot be considered as res judicata. (Note : This Court of Appeal decision has been subsequently reversed by the Federal Court on 5/9/2017 in Federal Court Civil Appeal No. 02(f)-57-05/2017(W))

[Industrial Court – Frustration of Contract – Termination of contract of service due to work injuries] Alvin Lai was the counsel for the Respondent. This is a case involving a claim brought by the employee (Claimant) against the employer (Respondent) for the alleged wrongful termination of the employment contract. In this case, the Claimant was employed as the Sales Merchandiser of the Respondent. During the course of employment, the Claimant fell and suffered injuries when he was performing his duties in a supermarket. As a result, the Claimant was given a Certificate of Light Duties and medical leave for a period of more than 60 days and the Respondent had to employ a temporary worker to perform the Claimant’s duties. After a long period of not being able to work, the Claimant was subsequently terminated by the Respondent. The Court found that the Respondent had been very reasonable in allowing the Claimant for more than 60 days of medical leave and the Claimant had been given ample time to recover from his injury. The Court held that the contract of service had been frustrated as the Claimant could not perform his duties after his injury and that the dismissal of the Claimant is lawful.

[Defamation – Circulation of email containing defamatory statement] Justin and Chooi Peng were the counsel for the Plaintiffs. This in a case involving an email circulated via the internet defaming the Plaintiffs. The Court finds that the statement in the email made by the Defendants was highly defamatory and that the Defendant had deliberately and intentionally calls out to public to widely circulate the email. The Court held that since it is practically impossible to prove that any third person read it, the Court will presume the email circulation over the internet is wide publication and the onus is on the Defendant to prove the limited publication as alleged. The Court held that the Defendant must be held accountable and awarded damages to the Plaintiffs.

[Stay of proceedings pending appeal in another suit to set aside consent judgment] Justin was the counsel for the Defendant. This is a case involving an application by the Plaintiff to stay the execution of a consent order pending an appeal in another suit to set aside the said consent judgment (“setting aside suit”). In dismissing the Plaintiff’s application, the Court finds that since the Plaintiff failed to apply for a stay of the order in the setting aside suit, the order of the setting aside suit takes full effect and the Plaintiff is estopped from raising it in the present application to stay the execution of the consent order. The Court further held that the execution of order will not cause nugatoriness towards the appeal of the setting aside suit and it can be compensation by damages. Consequently, there are no special circumstances justifying a stay of the said consent judgment.