JCW

[Application for further and better particulars] Justin was the counsel for the plaintiff. The High Court in dismissing the defendants’ application for further and better particulars with costs held that the defendants had more than sufficient material particulars to state their defence. The defendants’ request was amongst others for matters of evidence for a trial. Further, there was no special reason for the court to allow the defendants’ application when in actual fact the defendants had already filed in their defence and counterclaim.

[Tort of invasion of privacy and tort of “misuse of personal information”] Justin was the counsel for the plaintiff. In dismissing the 1st defendant’s application to strike out the plaintiff’s claim, the Court held that it was premature to say that the plaintiff had no cause of action at all against the 1st defendant. Although tort of invasion of privacy has not gained traction in Malaysian jurisprudence, there are other causes of action, which may well succeed and which at the very least, would warrant a full hearing. “Therefore, the plaintiff should be allowed to have her day in court so as to allow her to ventilate her several causes of action against D1 and the other defendants, no matter how weak these causes of action appeared to be presently. It is both desirable and imperative that the various legal arguments and formulations are given mature consideration at a full trial.

[Sale of defective “steel bars” does not meet the requirement of “Grade 500”, the sampling of “underspec steel bars”] Justin was the counsel for the appellant/defendant. In allowing the appeal with costs against the claim by the Respondent/Plaintiff for the supply of Steel Bars. The Court of Appeal held inter alia as follows:- (i)The conclusion of the trial court that the respondent had “fulfilled their obligation” and had a “legitimate claim” was diametrically and wholly against the weight of the evidence; (ii)The respondent cannot complain that the appellant did not raise any issues within 7/14 days from the Invoices/delivery order when the respondent failed to comply with the primary obligation to supply steel bars according to the required specification; (iii)The steel bars sampled did not meet the requirement of “Grade 500” where the 4 test results do not support this; (iv)The appellant would be suffering further loss and damages by reason of the defective steel bars, hence judgment for the appellant in the counterclaim ought to be given.

[Striking Out – Estopped from filing Originating Summons] Justin was the counsel for the Defendant, Unijaya Teknologi Sdn Bhd. This is a case involving an application filed by the Defendant to strike out the Originating Summons filed by the Plaintiff. The Originating Summons was filed by the Plaintiff seeking a Court Order to sell the Defendant’s charged land due to a default by the Defendant. The Court allowed the Defendant’s application and ordered that the Originating Summons be struck out and held that the Defendant had made payments to the bank (after the default) based on the time fixed upon the request of the Plaintiff’s officers. Given that the payments were acknowledged received by the Plaintiff, the Plaintiff is estopped from filing this Originating Summons.

[Action against bank to set aside the Order for Sale in a foreclosure proceeding] Justin was the counsel for the plaintiffs. In allowing the plaintiffs’ claim with costs after a Full Trial, the High Court held amongst others that:- (i)The question of res judicata did not arise at all as the cause of action in this case was different from the foreclosure action and any other action between the parties; (ii)Since the purchase monies had been paid in full to the first defendant by the plaintiffs, the burden shifted to the defendants to account for the monies. Note: A retrial was ordered in respect of the above case which judgment was set aside following an appeal to the Court of Appeal.

[Appeal struck out for being “academic”] Justin was the counsel for the respondents. In allowing the application filed by the respondents for an order of striking out of the appeals, the court held that it is trite that where there is no longer any “living issue” between the parties, there is no “appeal” that the court has any discretion or power to deal with. The appeal was struck out and removed from the cause list.

[Post Judgment Mareva Injunction to preserve assets of the Defendants and the “real risk of dissipation] Justin was the counsel for the plaintiff. In allowing the plaintiff’s application for mareva injunction after Summary Judgment can obtained against the defendants, the Court held that the plaintiff has a good arguable case as summary judgment was obtained. The Court held that given the defendants’ failure to disclose the bank account and the real trail of funds given by the plaintiff, there was a real risk that the defendants will dissipate their assets. The plaintiff ought not to be denied from obtaining the fruits of the judgment as the purpose of the mareva injunction is to prevent the defendants from removing their assets.

[Quia timet Anti-suit injunction to prevent any Court proceeding and/or injunction proceedings to prevent the calling of an Extraordinary General Meeting of the society “Dong Zong” from deregistration by the Registrar of Societies, implied terms when the Constitution of the Society is silent] The plaintiffs filed an originating summons to obtain a protective order by way of a ‘quia timet’ injunction as they feared that the first defendant (‘D1’) might obtain an injunction to restrain the holding of the Extraordinary General Meeting (“EGM”) of the United Chinese School Committee’s Association Malaysia (‘Dong Zong’) scheduled to be held on 23 August 2015. The purpose and agenda of the EGM was to solve the leadership crisis by conducting a re-election of committee members. According to the plaintiffs, the EGM was to facilitate a re-election to be carried out so that central committee (‘CC’) members may be elected afresh and for a fresh central executive committee (‘CEC’) to be elected by the CC. According to the plaintiffs, the leadership crisis has had a crippling effect on the Dong Zong and placed the UEC examination which is traditionally held in the month of October of each year, in jeopardy. Apparently, the leadership crisis has also caused much confusion and consternation amongst the Chinese community in Malaysia. The leadership disputes have also led to a physical stand-offs between the parties and police reports have been lodged by the parties concerned. Meanwhile, the Registrar of Societies have issued a notice to deregister Dong Zong. The Court held inter-alia that :- (i)When the Dong Zong’s Constitution is silent, the legal basis on which a term may be implied into the rules or constitution of a society was no different from the test applicable when considering whether a term should be implied to an ordinary contract. The test for implying a term is the business efficacy test and the officious bystander test. After all, the relationship between a society and its members is contractual in nature. Thus the rules or constitution or by-laws constitute the contract and these are to be construed in accordance with the laws of contract. (ii)It was entirely consonant with business efficacy to imply a term in the rules of Dong Zong that the supreme body ie the EGM may deal with and resolve the leadership crisis by conducting a re-election of the committee members which as a collective body would in turn appoint the office bearers of the Dong Zong. A term may also be implied on the basis of the officious bystander test as the members of Dong Zong, if asked, would undoubtedly agree that there should be such a term to allow the EGM to resolve the leadership crisis. (iii)There was no basis for the complaint that the plaintiffs are guilty of subterfuge. They obtained a quia timet injunction on an ex parte basis which way the only way to do it. Given D1’s propensity to injunct meetings (whether rightly or wrongly), the plaintiffs could not be faulted for proceeding on an ex parte basis. In any event, once the ex parte order was served, all cards were on the table and D1 could have taken immediate steps to set it aside, so that he could make whatever application he wanted to injunct the EGM which was to be held on 23 August 2015.