Question Analysis 2 2017

QUESTION ANALYSIS 2

C. JULY 2015

Question 1

(d)(iii) Misappropriation has been regarded as a tort - Shearn Delamore & Co v

Joseph Lee (1998) and Abdul Rahim Suleiman v Faridah Md Lazim (2015) –
section 8(3) CLA 1956 – Chap 2 Part E.

(e) Chap 2, Part C1(a) and Chap 13, Part A1(iv)

Question 2

(a)(i) Chap 13, Part C4(i)

(a)(ii) Chap 13, Part C

(a)(iii) Chap 13, Part C4(iii)

(a)(iv) O18 r12(1A) – parties must not offend the rules of pleadings in framing their
case – Knolwes v Roberts (1888).

(a)(v) “Scandalous” means irrelevant and unnecessary allegations – Sivakumar v

Ganesan (2011). If a pleading is intended to abuse, it will be struck-out.

(b) O18 r8

(c) Chap 13, Part A2

Question 3(a)

(i) Chap 14, Part E

(ii) Chap 14, Part D

Question 4(d) Chap 6, Part C4

Question 5

(a) Chap 24, Part A4

(b)(i) Chap 24, Part A3

(b)(ii) Chap 1, Part 1.2

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 Question Analysis 2 2017

Question 7(b)

• Para 6 of the Schedule to the CJA 19641 and O29.2

• What does “unfettered discretion or power” mean? In the context of s.254 NLC 1960,
Raja Azlan Shah CJM (as his Majesty then was) said, in Pengarah Tanah dan
Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd3:

“Unfettered discretion is a contradiction in terms .. It does not seem to be realised that this
argument is fallacious. Every legal power must have legal limits, otherwise there is
dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for
a proper purpose, and that it should not be exercised unreasonably. In other words, every
discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the
duty of the courts to intervene.”

In the context of the discretion to grant a stay of execution, Abdul Hamid Mohammad
JCA (as he then was) said, in Ming Ann Holdings:

“It appears to me that it is a unanimous view that to grant or not to grant a stay of execution
pending appeal is an exercise of discretion by the court. Of course some judges merely use
the word "discretion", some use the words "unqualified discretion" and some use the words
"absolute and unfettered discretion". To me that does not really matter. The point is that, it is
an exercise of the discretion by the court on established principles.”

In the context of s.231 of the Companies Act 1965, VC george J (as he then was)
said, Hongkong and Shanghai Banking Corporation Ltd v. Kemajuan Bersatu
Enterprise Sdn Bhd4:

“Section 231 of the Act confers on the court an unfettered discretionary power but
that power must be exercised in a proper judicial manner.”

1
Power to provide for the interim preservation of property the subject-matter of any cause or matter by sale or
by injunction or the appointment of a receiver or the registration of a caveat or a lis pendens or in any other
manner whatsoever.
2
O29 r 2 – the purpose is to maintain the staus quo. In Tan Chong Keat v Pintar Pentas (2005), the Court of
Appeal held that the application is governed by the American Cynamid principles.
3
[1979] 1 MLJ 135
4
[1992] 2 MLJ 370

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 Question Analysis 2 2017

D. OCTOBER 2015

Question 1(c) See Q6 July 2016

Question 2

(a) Chap 19, Parts A2 - 4

(c) Chap 19, Part B2

Question 3(c) Chap 19, Part B6

Question 4

(a) Chap 5, Part B3

(b) Chap 5, Part C

(c) Chap 19, Part B4

In Tan Kah Khiam v Liew Chin Chuan5 Gopal Sri Ram JCA said:

“[6] In my judgment, the criteria for permitting a party at a trial to re-open its case for the
purpose of either recalling a witness or calling fresh evidence are very different from those that
govern the statutory jurisdiction of an appellate court to receive further evidence .. What an
applicant for further evidence at the appellate stage seeks to do is to persuade the court hearing
the appellant that if the trial judge had had the further evidence before him, he may, or even
would, have come to a different conclusion. But that is not the position at the trial. For
temporally speaking, whether the trial judge may exercise his discretion to permit the reopening
of a party's case will very much depend on the stage at which the application is made. It may be
more likely that discretion may be exercised at the stage where the application is made
immediately after a party closes his case. But it may be less likely that discretion will be
favourably exercised where the application is made after the defendants have closed their case
and just before the trial judge is about to pronounce his judgment. In the spectrum of factual
possibilities that exist between each of these two extremes the exercise of discretion would, in
my judgment, very much depend as to whether the justice of the case lies having regard to the
peculiar facts and circumstances before the court .. [8] .. A trial judge must be given a wide
discretion on matters relating to evidence. After all, [s.136] Evidence Act 1950 itself places the
matter of relevance and therefore admissibility upon the court .. [9] The view that I have taken is
supported by the decision in TD Canada Trust v. McMaster et al [2003] B.C.D. (Civ) 16394,
where Garson J said: In Dudas v. Munroe [1993] B.C.J 2035 (S.C.) (Q.L.), Braidwood J (as he
then was) summarized the law concerning the court's discretion to re-open a trial before
judgment is entered as follows: In deciding whether or not to re-open a case, the governing
considerations are first, would a miscarriage of justice probably occur without a re-hearing; and
second, would a re-hearing probably produce a change of result? The discretion to re-open a
trial before judgment is entered is an unfettered discretion but one that should be used sparingly
(Sykes v. Sykes [1995] 6 B.C.L.R. (3d) 296 CA) and has its purpose the correction of what
would otherwise be a miscarriage of justice (Kemp v. Wittenberg, 1999 B.C.J. 810 S.C.)."”

5
[2006] 4 CLJ 715

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 Question Analysis 2 2017

Question 5

(a) O18 r1 and O19 r1

(b)(i) O18 r8

(b)(ii) Chap 13, Part B(ii)

(b)(iii) Chap 13, Part C1

(c)(i) Chap 13, Part A1

(c)(ii) Chap 13, Part B(iii) – see Hong Leong Finance Bhd v Low Thiam Hoe (2016)

Question 6(a) Chap 1, Part 1.2

Question 7(a) Chap 21, Part B

E. JULY 2014

Question 1(c) Chap 21, Part B

Question 2

(a)(i) Stay of proceedings – s.73 CJA6 and R13 RCA 19947 – the same test applies for
a stay of execution and stay of proceedings – “special circumstances” – the
“burden” is higher in a stay of proceedings application as its effect will hinder the
expeditious disposal of a suit – Universal Trustee (M) Bhd v Lambang
Pertama Sdn Bhd8

(a)(ii) O37 r1(3)

6
An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from
unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be
invalidated except so far as the Court of Appeal may direct.
7
An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from
unless the High Court or the Court so orders and no intermediate act or proceeding shall be invalidated except
so far as the Court may direct.
8
[2015] 7 MLJ 305. In Jagdis Singh v Outlet Rank (M) Sdn Bhd [2013] 4 MLJ 213, Zawawi Salleh JCA said:
“ .. it is important to stress that initiation of a suit in a court of law demands the suit will be heard expeditiously
and completed without any inhibition midway. Therefore, where an application for stay of proceedings is
intended to merely stop or suspend the proceedings; it will be refused. Some applicants, on seeing the
weakness of their client's case, would resort to application for stay and thereby waste the time of the other
party and the court. The party simply cannot resort to the interlocutory of stay proceedings on having the
slightest disagreement with any ruling of a trial judge. Courts are enjoined not to encourage such
unwholesome practice ..”

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(b) Chap 9, Part B

(c) Chap 21, Part A(v)

Question 3

(a) Chap 13, Part B

(b) Chap 6, Part C4, 3.3

(d) Chap 6, Part B2

Question 4

(a) A performance bond is written contract by a bank guaranteeing the due

performance of a contract. The obligations of the guarantor will be spelt out in the
bond it itself.9 In Esso Petroleum Malaysia Inc v Kago Petroleum Sdn Bhd10
the Supreme Court held that, in the absence of fraud, the court will not restrain
the bank from paying when a demand is made on an “unconditional on-demand”
bond11 i.e the special nature of such a bond tips the balance of convenience
against the grant of a restrain.12 The Federal Court, in Sumatec Engineering
And Construction Sdn Bhd v Malaysian Refining Company Sdn Bhd,13 has
recently accepted unconscionable conduct as a further ground to challenge the
bond.14 The usual form of the injunction, if granted, is as follows:

(i) D is restrained from calling on performance bond issued by the bank;

(ii) alternatively, if a demand had been made by D, for D to be restrained from
receiving the sum guaranteed thereunder; and
(iii) alternatively, if any sum have been released by the bank to D, D to be
restrained from utilizing or dealing with such sums pending determination
and disposal of P's claim in this suit or further order.

9
“Performance bonds are almost invariably contracts of guarantee and so named presumably to give that
extra air of solemnity” per Peh Swee Chin SCJ in Esso Petroluem.
10
[1995] 1 CLJ 283
11
The rationale was explained by Kerr J in Harbottle v National Westminster Bank [1978] 1 QB 146: “It is
only in exceptional cases that the Courts will interfere with the machinery of irrevocable obligations assumed
by banks. They are the life-blood of international commerce. Such obligations are regarded as collateral to the
underlying rights and obligations between the merchants at either end of the banking chain. Except possibly in
clear cases of fraud of which the banks have notice, the Courts will leave the merchants to settle their
disputes under the contracts by litigation or arbitration as available to them or stipulated in the contract. The
Courts are not concerned with the difficulties to enforce such claims; these are risks which the merchants
take.”
12
In Esso Petroluem, Peh Swee Chin SCJ said: “It will be remembered that Lord Diplock in the American
Cynamid had alluded to special factors to be taken into consideration in the particular circumstances of
individual cases.”
13
[2012] 3 CLJ 401
14
In Focal Asia Sdn Bhd & Anor v. Raja Noraini Raja Datuk Nong Chik & Anor [2009] 1 LNS
913 Mohamad Ariff Yusof JC (as he then was) said: “If there is clear evidence of fraud in the underlying
contract, or unconscionability, the Court can interfere. In these two situations, the integrity and autonomy of
the document will not be compromised, since the paying bank will not be directly prevented from acting on the
document. It is the beneficiary that is prevented from making a call on the document on these grounds.”

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 Question Analysis 2 2017

(b) Chap 13, Part 2

Question 5

(a) O55 r3(4) - Soh Keng Hian v American International Assurance Co Ltd
(1996) – “An appeal is brought to this court by filing and serving the notice of
appeal. The one act without the other renders the appeal incompetent” - O1A –
Captain Hamzah – Chap 1, Part 1.2.

(b) Chap 19, Part 6

(d) Chap 24, Part B1

Question 6

(a)(ii) Filing of the Notice of Appeal - O55 r2 and O55 r3(5).

Adducing fresh evidence – O55 r7 – Chap 24, Part 3

(b)(ii) O59 r23 and section 27 CJA – Chap 24 Part A1(b)

(c) Chap 22, part 2.1

Question 7

(c)(i) See Q1(c), Oct 2015

(c)(iii) O18 r8

Ravindran Shanmuganathan ∗

∗
This Analysis is not intended to be a Suggested Answer/Solution (whatever those phrases may mean) and
should not be treated as such. It merely draws out the relevant principles so as to tease and provoke an
argumentative attitude to civil procedure. It does not pretend to provide or suggest a “right” answer/solution –
there is simply no such thing! This Analysis would have served its purpose if it made you think. The views
expressed herein are my own, as are all mistakes. I may be contacted at ravi@sreeneyoung.com

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