BERJAYA TIMES SQUARE SDN BHD V. M-CONCEPT SDN BHD [2010] 1 CLJ 269

1. This case covers the principle repudiation of contract.

2. What rights does the aggrieved party has in the event there is breach to the contract?

a. if the breach is so fundamental, the contract then MAY be terminated/void/rescinded by the aggrieved party

b. if the breach does not go to the root of the contract ( read: in its entirity), then the contract cannot be  terminated by the aggrieved party. The aggrieved party can only claim for damages from the default party.

3. The doctrine of repudiation is based on the proposition that where a promisor wrongfully repudiates a contract in its entirety, the promisee has a choice. He or she may elect to accept the repudiation, treat the contract as at an end and sue for damages.

4.Alternatively, he or she may elect to reject the repudiation and treat the contract as subsisting. This is a question of fact but an election once made is irreversible.

5. It is the essence of the doctrine of repudiation that the breach must go to the root of the contract.  Hongkong Fir Shipping Co Ltd v. Kawasaki Kisen Kaisha [1962] 2 QB 26.

PACIFIC FOREST INDUSTRIES SDN BHD & ANOR V. LIN WEN-CHIH & ANOR [2009] 6 CLJ 430

I tried to find a good case to review, but it is very difficult to read online. Be as it may, the above case is absolutely worth to read. One of the principles decided in that case is a FRUSTRATION as far as  contract is concerned.

1. A contract does not become frustrated merely because it becomes difficult to perform.

2. If  i don’t have enough money to pay the price stated in the agreement, it would not frustrated the contract( although it may frustrated me :p). Similarly, if  we cannot agree on the market value of the subject matter, that is not a frustration of the contract.

3. If  it is difficult to perform but not impossible then the contract is not frustrated.

4. Frustration happens in two situation:

(a). When the contract became impossible to perform ; may be due to intervening events or change of the  circumtances

(b). When the contract if performed would be an  illegal contract.

Read Section 57 of the Contract Act. The illustration therein will help.

Sabarudin bin Non & Ors. v. Public Prosecutor [2005] 1 CLJ 466

If someone try to test your knowledge about section 34 of the Penal Code, do not panic. Simply answer that question with the following:

1. The effect of section 34 is that proof is not required that any particular accused was responsible for the commission of the actual offence.

2.The question that arises for consideration is whether it was the common intention of the  accused persons .

3.The salient features of ‘common intention’ are physical presence and participation in the commission of the offence.

4. It is a principle of vicarious liability

5. It is a rule of evidence and does not create a substantive offence

6. It requires a pre-arranged plan of the accused participating in such an offence. Such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial testis that such plan must precede the act constituting an offence

7. Common intention can be formed previously or in the course of occurrence and on a spur of the moment. It is a question of fact

8.The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party

Read also Suresh v. State of Uttar Pradesh AIR [2001] SC 1344 and Hari Ram v. State of Uttar Pradesh [2004] 3 LRI 523 (SC)

WONG SWEE CHIN V PUBLIC PROSECUTOR [1980] 1 LNS 138

This is a good case on expert evidence. Judgment by Sultan Azlan Shah speaking for the Fed Ct is so precise and simple. I like it!!

1.Expert evidence is admissible under  the Evidence Act, 1950.

2.Who are experts are explained in section 45 of the Act.

3.On purely scientific issues, expert evidence is to be used by the court for the purpose of assisting rather than compelling the formulation of the ultimate judgments.

4. It is the duty of the judge to weigh all the evidence and determine the probabilities and decide at the end of his analysis. He cannot transfer this task to the expert witness, the court must come to its own opinion.

Asean Securities PaperMills

This is one of the leading cases on Review Application at the Fed Court, i think it is worth for us to remember the principles in that case:

Tun Zaki wrote the main judgment and i summarize as follows:

Principle of Review

1.Review is not a creation of statute; it does not give jurisdiction to the apex court but it provides inherent jurisdiction. Hence,Fed Ct does not have jurisdiction to review decision originated from subordinate court.( there is one case decided by Fed Ct on this issue, i will write about it one day)

2. There should be finality in litigation.

3. A different opinion by another panel is not ground for review.

4. The review if given without strict appreciation of the laws and facts will lead to judge shopping

5. The Fed Court is the highest court of law provided by FC, there is no such Court of Review in our judicial system under the pretext of reviewing the Fed Ct decision.

Circumstances where review may be appropriate.

a. That there was a lack of quorum eg, the court was not duly constituted as two of the three presiding judges had retired. (Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61).

b. The applicant had been denied the right to have his appeal heard on merits by the appellate court. (Megat Najmuddin bin Dato Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd [2002] 1 CLJ 645)

c. Where the decision had been obtained by fraud or suppression of material evidence. (MGG Pillai v. Tan Sri Dato’ Vincent Tan Chee Yioun [2002] 3 CLJ 577)

d. Where the court making the decision was not properly constituted, was illegal or was lacking jurisdiction, but the lack of jurisdiction is not confined to the standing of the quorum that rendered the impugned decision. (Allied Capital Sdn Bhd v. Mohd Latiff bin Shah Mohd and another application [2004] 4 CLJ 350)

e. Clear infringement of the law. (Adorna Properties Sdn Bhd v. Kobchai Sosothikul [2005] 1 CLJ 565)

f. Where an applicant under r. 137 has not been heard by this court and yet through no fault of his, an order was inadvertently made as if he had been heard. (Raja Prithwi Chand v. Sukhraj Rai[AIR] 1941)

g. Where bias had been established. (Taylor & Anor v. Lawrence & Anor [2002] 2 All ER 353)

h. Where it is demonstrated that the integrity of its earlier decision had been critically undermined e.g. where the process had been corrupted and a wrong result might have been arrived at. (Re Uddin [2005] 3 All ER 550)

i. Where the Federal Court allows an appeal which should have been consequentially dismissed because it accepted the concurrent findings of the High Court and Court of Appeal. (Joceline Tan Poh Choo & Ors v. V. Muthusamy [2007] 6 CLJ 1; [2007] 6 MLJ 485)

Circumstances where review is not an option.

a.It does not apply where the findings of this court is questioned, whether in law or on the facts (since these are matters of opinion which this court may disagree with its earlier panel). (Chan Yock Cher @ Chan Yock Kher v. Chan Teong Peng[2005] 4 CLJ 29)

Ps: read the case of Malaysian Bar as well ( i might be reviewing this case soon)

Joceline Tan

Similarly, if your boss bump into you at the center lift of your office and he asks you, what Joceline Tan case is all about, quickly answer the following:

The case is all about leave application.They are two circumstances in which an appeal may be made to Fed  Court.

First Senario

A Question Of General Principle Decided For The First Time

This is a reference to a decision of the Court of Appeal for the first time on a question of general principle.

Limb (b)

A Question Of Importance Upon Which Further Argument And A Decision Of The Federal Court Would Be To Public Advantage

This is a reference to an issue  there have been two or more previous decisions of the Court of Appeal. A reference to further argument and the fact that a decision of the Federal Court would be to public advantage has in contemplation two or more previous decisions of the Court of Appeal on the same issue which are, for example, in conflict or are wrong or made in ignorance of a binding precedent or made in following a decision of the Federal Court which is vague or wrong. Such a situation would create confusion to the public in the application of the legal principle involved to their affairs. In that event further argument and a decision of the Federal Court on the issue involved would be to public advantage as the confusion would be resolved.

And if you can explain further, he may be impress with your understanding:

a. Another consideration for leave is whether the point if decided in favour of the intending appellant will show that there is a prima facie case for success in the appeal. It must be so couched as to incorporate a point of law which has the effect of reversing findings made against the intending appellant without any further evaluation of the evidence. This in turn means that the answer given to the question must be such that it has the effect of reversing the judgment. It is only then that the question of success in the appeal can arise. It must be remembered that the very object of making appeals to this court subject to leave is to prevent frivolous and needless appeals.

b. In simple word, If there is no prospect of success in the appeal the position of the appellant will not be affected and it would be pointless hearing the appeal.Leave to appeal on a proposed question will therefore not be granted if there is no hope of success (see Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713).

LIM GUAN ENG V. PUBLIC PROSECUTOR [1998] 3 CLJ 769

I came across this case. The case spelt out certain numbers of principles but one that caught my eyes is the law on corroboration. The principle can be summarized as follows:

1. As a general rule, the conviction of an accused may proceed upon the uncorroborated evidence of one witness.

2. There are cases where either common law or statute has creates an exception to the above rule by requiring  their evidence be corroborated by an independent corroboration. For example evidence of an Accomplices and Evidence in Sedition case.

3. However, before the issue of corroboration arises, (a)that particular evidence  must first be capable of belief ,otherwise it  cannot be saved by the presence of abundant corroboration; (b) cannot corroborate itself,  ; and (c) cannot be corroborated by evidence that itself requires corroboration.

4. The corroborative evidence must:

(a) be capable of belief;

(b) be independent in the sense mentioned in proposition 3(c) above;

(c) it must be corroboration upon a material particular

5. At common law, a trial court is entitled to act upon uncorroborated evidence which in itself requires corroboration provided that it warns itself of the danger of so acting. The warning must not amount to mere lipservice. Good reasons must be furnished for departing from the accepted rule. Example evidence from a witness who is a person of high character and the offence is one that does not carry with it any serious moral stigma such as rape or outraging modesty.

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