JCW

[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.

[Contempt of Court – Breach of order of court] Justin was the counsel for the Plaintiff, Ting Chuen Peng. This is a case involving an application to contempt against the Defendant for breaching an ex-parte order of court which was extended to an ad-interim order for a quia timet injunction, amongst others, restraining the Defendant from commencing any action to stop and/or frustrate an EGM of Dong Zong (“Injunction Order”). Despite the said order, the Court finds that one of the alleged contemnor filed a suit in Shah Alam High Court in breach of the said order and acted as the agent of the Defendant in doing so. In this case, the Court finds that not all cases prosecuted in court whether by way of criminal prosecution or civil proceedings requires direct evidence to be mandatory and took the view that circumstantial evidence can be used for the purpose of proving contempt. The Court held that the Defendant and another contemnor are guilty of contempt and sentenced the defendant for a term of imprisonment for 30 days and fined the other alleged contemnor.

[Sale and Purchase Agreement – Vendor exercised right to vitiate an agreement entered without free consent and undue influence – Vendor liable to refund monies received under a voidable contract] Justin and Chooi Peng were the counsel for the Appellant. This is a case involving an appeal against the High Court decision in dismissing the Appellant’s claim for specific performance of a sale and purchase agreement and an alternative claim for the return of monies paid pursuant to the said agreement. The Court of Appeal allowed the Appellant’s alternative claim. In this appeal, the Court of Appeal allows part of the appeal and one of the issue was whether the Respondent can absolve her responsibility by blaming a third party where the third party was given blanket authority in respect of the bank account.

[Disqualifying solicitors from representing in winding up proceedings due to conflict of interest] Justin was the counsel for the Petitioner and was assisted by Chooi Peng. This is a case involving an application to disqualify a firm of solicitors from representing a party in a winding up proceedings due to conflict of interest. The Court held there was an absence of particulars of the meeting which took place between the Petitioner and the solicitors and the Court was not satisfied that the Petitioner showed a strong case to disqualify the solicitors