Monday, January 4, 2010

EQUITY ISSUE

Non-abrogation theory of Australia on equity and the appropriateness of its acceptance in the local context

Basically, according to the section 6 of the Civil Law Act 1956, it was clearly stated that nothing in this part shall be taken to introduce into Malaysia or any of the states comprised therein any part of the law of England relating to the tenure or conveyance or assurance of or succession to any immoveable property or any estate, right or interest therein. Therefore, it can be said that under this section, it was prohibit the application of English common law as well as the rules of equity into Malaysia. However, through the cases that have been decided by the courts no matter in Malaysia or even Australia, it seems to us that the English common law and rules of equity are applicable towards the land matters.

According to the case of Abigail v Lapin and Another [1934] A.C. 491, an appeal from the High court of Australia to the privy council whereby the judgment of Griffith C.J., speaking for the high court of Australia, in Butler v Fairclough (1917) 23C.L.R 78,91 stated that it is well settled that under the Australian system of registration of tittles to land the courts will recognize equitable estates and right except so far as they are precluded from doing so by the statues. This recognition is indeed the foundation of the scheme of caveat which enable such rights to be temporarily protected in anticipation of legal proceedings. In dealing with such equitable rights the court in general act upon the principles which are applicable to equitable interest in land which is not subject to the acts. Moreover, in the case of Crabb v Arun District Council [1976] 1 Ch 170, whereby in this case afford a prime example of how a landowner, though entitled as of strict right to exclude anyone from passing over its land was, nonetheless, and because of an equity raised against it, obliged to acknowledge that Crabb had a right of way. Therefore, Scarman L.J understanding of the legal position of the oral agreement and subsequently grant an easement to Crabb. Its undeniable that through the two Australian cases as mentioned, it was clearly to us that the English Common Law an rules of equity are applicable to the land matters. These two cases have been refer by the Malaysian case in the Bhagwan Singh & Co Sdn Bhd v Hock Hin Bros Sdn Bhd [1987] 1 MLJ 324. In this case, the judge said that the National Land Code is based on the Torrens system of Australia and therefore Australian cases would naturally be of considerable assistance.

Other than that, according to the one of the article by Yong Chiu Mei, Lecturer in faculty of Law, University Malaya “ The role of English equity in the peninsular Malaysian Torrens system of Land Law : A review of salient statutory provisions ( Part 11)”, the case of Bhagwan Singh & Co Sdn Bhd v Hock Hin Bros Sdn Bhd [1987] 1 MLJ 324 had cited as most recently case that stated the National Land Code is based on the Torrens system in Australia and therefore Australian cases would naturally be of considerable assistance. Under this circumstances, it seem to us that the mentioned case is not the most recent case in Malaysia posses that same opinion. Therefore, we may have a look toward the case of Rabiah Lip & Ors v Bukit Lenang Development Sdn Bhd & Other Appeals [2008] 3 CLJ 692 whereby in this case one of issue that before the court is whether section 206(3) of the National Land Code applicable to the case. Section 206(3) of the National Land Code denote the meaning whereby the parties have acquired an equitable interest over the dispute land. Despite, it was held by the court of appeal that the appellants had not succeeded in asserting an in personam equity to create the formation of a binding obligation coupled with a right to equitable relief in their attempt to elevate the equity into an equitable interest culminating in a proprietary relief against the land but Heliliah Mohd Yusof JCA in this case also agree that the National Land Code 1965 is based on the Torrens Acts in Australia and hence certain decisions in Australia are worthy of mention where it is observed that there is really no difference between proprietary or promissory estoppel. This aspect had been dealt with in Waltons Stores (Interstate) Ltd v Maher & Anor [1987-1988] 76 ALR 513. This Australian decision has made references to the English decision of Crabb v Arun District Council [1976] 1 Ch 170 where Lord Denning MR observed “ Equity comes in true form, to mitigate the rigours of strict law. Subsequently, the decision in Crabb case had been refer by the Malaysian case in Bhagwan Singh & Co Sdn Bhd v Hock Hin Bros Sdn Bhd [1987] 1 MLJ 324. Therefore, it can be said that the relationship between the Australian Torrens systems is very close with the Malaysia National Land Code and maybe we can said that these two countries Torrens system is, indeed, the same.

land law issue

A) On the execution of the contract the vendor becomes a trustee for the purchaser. He is not however a bare trustee for he has a personal and substantial interest to the extent of the unpaid purchase moneys. He is 'in progress towards' bare trusteeship and finally becomes such when the whole of the purchase moneys are paid and he is bound to convey: Wall v Bright (1820) 1 Jac & W 494; 37 ER 456 per Sir Thomas Plumer MR.




B) The purchaser may devise, alienate and charge his equitable interest so that it is plainly not a mere right in contract.


C) The extent of the equitable interest is measured by the amount of the purchase moneys paid. Thus to the extent of the payments the purchaser acquires a lien exactly as if the vendor had given a mortgage to secure them them: Rose v Watson (1864) 10 HL Cas 672; [11 ER 1187] per Lord Cranworth at p 684.


D) Where there is a clear and undisputed contract, the court will not permit the vendor to transfer the legal estate to a third person and the reason for this was explained by Turner LJ in Hadley v London Bank of Scotland 3 De GJ & S 63 at p 70; 46 ER 562 at p 564 as being because in equity the property was transferred to the purchaser.



E) The incidents of trusteeship exist only if and so far as a Court of Equity would in all the circumstances of the case grant specific performance of the contract'.
summary of the article: Wong, David, “Effect of unregistered purported lease under the
NLC” (1973) 1 M.L.J xxxvi-xliv



General view

There are some issues that I can divulge from this article. Generally speaking, the writer lucidly discussed about the early authorities, the 1911 Enactment (Federated Malay States), Selangor Registration of Titles Regulation 1891 and Federated Malay States Land Code of 1920. Nevertheless, he also touched about the issue of “departure from the past” (Federated Malays States Code of 1920) and “lease in possession under a void lease”. He also can see the magnitude of the problems in the issue of “purported lease as an agreement for a lease”, effect as agreement and also lessees’ alternative remedies.

Commentary

Selangor Registration of Titles Regulation 1891 (s.4) and the Registration of Titles Enactment 1911 had nullified any purported dealings outside the statutory system. Prior to these Regulations, there was no clear law governing the formalities of dealings with the land in Malay States. In some cases, English conveyance forms were used.
Woodward J.C, categorically observed that even if the sub-lessee had, as the alleged, spent money on the improvement of the land, no equitable relief would be extended to him, for he had brought hardships upon himself by “accepting as his title a worthless document contrary to the express provisions of the law”
The document in question could not be treated as a contract to assign an after-acquired property, while admitting that a contrary view might have been well founded in equity under English law. Moreover, it would appear that once, A for example, was tainted with entry under avoid lease, he was only the culprit to be blamed for his own foolishness and nothing would the law do even if merely to secure him his occupation of the land under a short periodic tenancy.
In the Federated Malay States (FMS), the 1911 Enactment remained in force until replaced by the FMS Land Code of 1926. Besides that, under English law, a tenant possession and paying rent under a lease which is void because of formal defect is treated as a yearly tenant who is entitled to a six-month notice quit.
Furthermore, it seems to have been a misconception of the early judges in failing to rely that a periodic tenancy arising by implication of law is founded on the conduct of the parties, like, possession, payment and acceptance of rent.
However, an unregistered purported lease should still be regarded as null and void even to the extent of denying the conduct of the parties there under any effect whatsoever (Harnam Singh vs. Ho Seng [1933] F.M.S.L.R.). If an instrument clearly purported to be a present demise but was void for being unregistered, it could not operate as a contract. Under English Law, where an agreement for a lease is capable of specific performance, the purported lease is regarded as having taken effect in equity as if the lease had been duly granted in the first place.


Conclusion


In such a case, the question as to whether a contract for land dealing could create an equitable interest in land is directly pertinent to the question whether or not a caveat may be lodged to protect a claim under the contract. Prior to the present NLC, local decisions were in consistent as to whether a claim under a contract for land dealing could be protected by a caveat (Tee Chin Fong vs. Ernest Jeff [1963] MLJ 118). In Sim Cho Phong vs. Jit Seng Tong Association [2000] MLJU 363 (other case that I refer than this article), it was held that, a lease for more than one year must be registered. If such a lease is not registered, it is void under the Sarawak Land Code. A lease can create an interest on that particular land. Actually, starting from this point, a lessee must register his interest under NLC in order to get any refuge or benefit, and if we look at deeply to the section 5 of the NLC, clearly stated as registered lease. Land ownership is protected by the NLC and guaranteed by the Federal Constitution. Under the NLC, if a person is registered as owner of a piece of land, his title (or interest) is “indefeasible.” (Other article that I refer: A primer on land ownership by Salleh Buang, 11/05/2002 NST)

Friday, January 1, 2010

CASE SUMMARY: PART 30

Zeno Ltd vs. Prefabricated Constructive Co (Malaya) Ltd & Anor [1967] 2 MLJ
●Land Law●
Raja Azlan Shah J held that, “intention to create a lien may be inferred from all the relevant circumstances of the case”


Zulkifli b Puasa vs. PP [1985] 1 MLJ 461
●Criminal Law●
“Sir Alan Huggins JA: It is, of course desirable that there should be a measure of consistency in the sentence passed upon different defendants for comparable offences and this court will not hesitate to interfere where that is necessary to maintain consistency”

CASE SUMMARY: PART 29

Western Fish Products Ltd vs. Penwith District Council & Anor [1981] 2 All ER 204
●Land Law●
“In any event an estoppel could not be raised to prevent a statutory body exercising its statutory discretion or performing its statutory duty”


Wheat vs. Lacon & Co Ltd [1966] 1 All ER 582, HL
●Law of Torts●
“Whenever a person has a sufficient degree of control over premises that he ought to realize that any failure on his part to use care may result in injury to a person coming lawfully, then he is an ‘occupier’ and the person coming lawfully there is ‘visitor’”


Wheeler vs. New Merton Board Mills Ltd [1933] 2 KB 669
●Law of Torts●
“Volenti non fit injuria was no defence to an action by an employee against his employer for breach of the employer’s statutory duties”


Wilde vs. Waters 16 CB 637
●Land Law●
“An article which is affixed to the land even slightly is to be considered part of the land, unless the circumstances are such as to show that it was intended all along to continue as a chattel, the onus lying on those who contend that it is a chattel”


Wilkins vs. Kannamal [1951] 17 MLJ 99
●Land Law●
“The Torrens law is a system of conveyance, it does not abrogate the principles of equity, and it alters the application of particular rules of equity but only as far as is necessary to achieve its own special objects”


Winthrop Investments Ltd vs. Winns & Ors [1979] 4 ACLRI
●Company Law●
“Main or fundamental or basic object was to improve the general financial position of the company”
Winn vs. Bull [1877] 7 Ch D 29
●Contract Law●
“It is settled that the formula ‘subject to contract’ gives rise to a strong presumption of the necessity of a further formal contract, ‘formal’ be it noted, is not to be understood in the common parlance as being just a ‘mere formality’ of no importance. The principle is clear; it requires cogent evidence to displace this strong presumption”


Woo Yok Wan vs. Loo Pek Chee [1975] 1 MLJ 156
●Land Law●
Ajaib Singh J, “in my opinion the provisions of section 6 of the Civil Law Act 1956, do not exclude the English equitable principle that a lease is void at law for not having complied with legal formalities can be treated as an agreement for a lease which may be enforced in equity. What is precluded by section 6 is the English Law relating to tenure or conveyance or assurance of or succession to any immovable property or any estate, rights or interest therein but the section does not in any way preclude the application of the English principles relating to equitable interest in land”


Wycomble Marsh Garages Ltd. vs. Fowler [1972] 1 W.L.R 1156
●Consumer Law●
“Allowing the appeal, that the mischief which prompted the passing of the Trade Description Act 1968 was that goods might be provided by sale or otherwise with a misleading trade description attached to them”


Zdrojkowski vs. Pacholczak [1959] NSW 382
●Land Law●
“The principle relating to the indefeasibility of the title to the land under Real Property Act an the one hand and the right to rectify documents, which erroneously state the interest to which parties were entitled on the other do not conflict in any way”

CASE SUMMARY: PART 28

Vavallari vs. Premier Refrigeration Co Ltd [1952] 85 CLR 20
●Contract Law●
“While the due course of completion of a contract for the sale of land is a matter of some complexity, involving the doing of a number of things by both parties, it is very well-settled that an informal or ‘open’ contract not dealing expressly with any of these matters of detail, may be made and be binding. In such a case law and equity fill in the details, so to speak, providing by way of implication for whether is necessary to effectuate due performance”


Verama vs. Arumugam [1982] 1 MLJ 107
●Land Law●
“But one must always realize that in interpreting land laws in this country, one should always bear in mind that land laws are governed by the National Land Code which does not allow the law to be tempered by equity.”


Vijayan vs. PP [1975] 2 MLJ 8
●Criminal Law●
“In every case it depends on the effect of the provocative act on the ordinary man, that is, an ordinary reasonable man belongings to the same class of society as the accused”


Waimiha Sawmilling Co vs. Waione Timber Co [1926] AC 101
●Land Law●
“Fraud is: 'if the designed object of a transfer is to cheat a man of a known existing right' or that there is a 'deliberate dishonest trick causing an interest not to be registered so as to fraudulently keep the register clear. But 'dishonesty must not be assumed solely by reason of knowledge of an unregistered interest”



Walker vs. Hirsch [1884] 27 CH.D 460

●Law of Partnership●
“The agreement is not that he shall share profits and losses; the agreement is, that he is to be paid a salary and in addition one-eighth of the net profits and to bear one-eighth of the losses thereof, as shown by the books when balanced. The truth is that this agreement is a complicated one and it cannot be considered as a partnership”


Walsh vs. Lonsdale [1882] 21 Ch D 9
●EQUITY●
“The defendant landlord agreed in writing, but not by deed, to grant a seven years lease of a mill to the plaintiff at a rent payable quarterly in arrears but with a year’s rent payable in advance if demanded. The plaintiff took possession and paid rent quarterly but not in advance. Defendant than demanded the year’s rent in advance. Plaintiff refused and defendant put in a distress, but his action failed. At Common Law the plaintiff was not obliged to pay rent in advance because of the lack of the deed but equity could ‘look on that as done which ought to be done’ and hold that the agreement for a lease was as good as a lease and so the plaintiff was liable to pay rent in advance, the equity rules having prevailed”


Wangsa Timber Industries Sdn Bhd vs. Adulfast Anthony Robert [2001] 4 MLJ 438
●Land Law●
“Section 6 of Civil Law Act did not prohibit the application of English law on easements because an easement was not a right or an interests in land but was only a right annexed or appurtenant to the land”





Walton vs. The Queen [1978] 1 All ER 542
●Criminal Law●
“The case makes clear that on an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence on the whole facts and circumstances of the case”


Warner vs. Metropolitan Police Commissioner [1969] AC 256
●Criminal Law●
“If we go to the extreme length of requiring the prosecution to prove that ‘possession’ implies a full knowledge of the name and nature of the drug concerned, the efficacy of the Act is seriously impaired, since many drug pedlars may in truth be unaware of this. I think that the term ‘possession’ is satisfied by knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse”


Weerakoon vs. Ranhamy [1921] 23 NLR 33
●Criminal Law●
“Ignorance is not the same as mistake. Mistake, to my mind implies a positive and conscious conception which is in fact a misconception. As I understand the matter, therefore, the English doctrine, ‘ignorance or mistake’ covers both ignorance and mistake, our own formula only include mistake”

CASE SUMMARY: PART 27

Tinn vs. Hoffman [1873] 29 LT 271
●Contract Law●
“When a contract is made between two parties, there is a promise by one, in consideration of the promise made by the other, there are two assenting minds, the parties agreeing in opinion and one having promised in consideration of the promise of the other-there is an exchanged of promises”


Trendtex Trading Corp. vs. Central Bank of Nigeria [1977] QB 529
●Public International Law●
“Applied the theory of restrictive immunity on the ground that international law had changed in the intervening years from one to the other”





Tulk vs. Moxhay [1848] 2 Ph 774
●Contract Law●
“The covenant would be enforced in equity against all subsequent purchaser with notice of it. A court of equity, being a court of conscience, could not permit a subsequent purchaser to disregard a contractual obligation affecting the land of which he had notice at the time of his purchase. The injunction was granted”


United Australia Ltd vs. Barclays Bank Ltd [1941] AC 1
●Law of Torts●
“If a man is entitled to one of two inconsistent rights it is fitting that when with full knowledge he has done unequivocal act showing that he has chosen the one he cannot afterwards pursue the other, which after the first choice is by reason of the inconsistency no longer his to choose”


United Dominions Corp Ltd vs. Brian Proprietary Ltd & Ors [1985] 60 ALR 741
●Law of Partnership●
“A fiduciary relationship can arise and fiduciary duties can exist between parties who had not reached and who may never reach agreement upon the consensual terms which are to govern the arrangement between them”


United Malayan Banking Corp Bhd vs. Pemungut Hasil Tanah Kota Tinggi [1984] 2 MLJ 84
●Land Law●
Lord Keith said that, “the National Land Code is complete and comprehensive code governing land tenure in Malaysia and there is no room for the importation of any rule of English Law.”


United Scientific Holdings Ltd vs. Burnley Borough Counsil [1997] 2 WLR 806
●EQUITY●
“The innate conservatism of English lawyer may have made them to recognize that by the SCJA 1873, the two systems of subjective and adjectival law formerly administered by Courts of Law and Courts of Chancery were fused”


Uren vs. John Fairfax & Sons Pty Ltd [1967] 117 CLR 118
●Law of Torts●
“It seems to me that, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation that is simply because he was publicly defamed”


US vs. Holmes [1842] 26 Fed Cas 360
●Criminal Law●
“Homicide is sometimes justifiable, and the law defines the occasions in which it is so. The transaction must, therefore, be justified to the law”


US vs. Yunis [1988] 681 F.Supp 869
●Public International Law●
“US court: both air piracy and hostage taking were susceptible to the jurisdiction of any state, even if the act was committed by an alien abroad”


Varatharaju vs. PP [1960] 26 MLJ 158
●Criminal Law●
“The offence of abetment corresponds as nearly as one word can be said to correspond to another to the offence which is known in England of being an ‘accessory before the act’. It has reference to ‘accessories after the act’”

CASE SUMMARY: PART 26

Sweet vs. Parsley [1970] AC 132
●Criminal Law●
“There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means, that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea”


Temenggung Securities Ltd & Anor vs. Regitrar of Titles Johor & Ors [1974] 2 MLJ 45
●Land Law●
“Bare trust is a position in which the payment of the purchase of land has been made but the memorandum of transfer is still not complete”


Templeton & Ors vs. Low Yat Holdings Sdn Bhd & Anor [1993] 1 MLJ 443
●Land Law●
“I recognize that the effect of section 284 of the Code is that an easement can only be created by express grant followed by registration of an instrument in Form 17A or Form B prescribed by section 286(1), as the case may be”


Tenant’s Corporation vs. Max Rothenburg & Co [1970] 36 A.D. 2nd 804
●Company Law●
“An auditor should certainly report suspicious circumstances to the directors even if such circumstances appeared to him of no materiality so far as his audit is concerned”





T Damodaran vs. Choe Kuan Him [1979] 2 MLJ 267
●Land Law●
“The National Land Code applies to Malaysia the Torrens system of registration of title of land. The whole purpose of the system is to get away from the complicated system of rules which in England regulate dealings with land, particularly those relating to such matters as notice of encumbrances and trust.”


Teck Corporation Ltd vs. Millar [1972] 33 DLR (3d) 288
●Company Law●
“I think the court should apply the general rule in this way: The directors must act in good faith. Then there must be reasonable grounds fro their belief”


Thai-Europe Tapioca Service vs. Government of Pakistan [1975] 3 All ER 961
●Public International Law●
“A national court ought not to consider the merits of the dispute involving the foreign sovereign states where questions of policy are in issue. These are the matters which should not be subject of decision in national court”


Thakrar vs. Secretary of State for the Home Dept. [1974] QB 684
●Public International Law●
“Lord Denning rejected the incorporation theory in respect of a claim by the applicant to be allowed entry into the UK under the rules of international law concerning the obligation of states to accept its own nation”





The Shell Co of the Federation of Malaya Ltd vs. Commissioner of the Federal Capital of Kuala Lumpur [1964] MLJ 302
●Land Law●
“The definition of ‘land’ is given in section 2 of the Land Code as including things attached to the earth or permanently fastened to anything attached to the earth. ‘Fixture’ means, anything which has become so attached to land as to form in law part of the land”


Thomas vs. Sorrell [1673] 124 ER 1098
●Land Law●
“A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful”

CASE SUMMARY: PART 25

Southport Corporation vs. Esso Petroleum Ltd. [1953] 2 All ER 1204
●Law of Torts●
“The safety of human lives belongs to a different scale of values from the safety of the property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground inflicting such damages as may be necessary on another’s property”


Spicer vs. Smee [1946] 1 All ER 489
●Law of Torts●
“Private nuisance arises out of a state of things on one man’s property whereby his neighbour’s property is exposed to danger”


State of Gujaret vs. Bhand Jusub Mamad [1982] Cri LJ 1691 (Gujaret HC India)
●Criminal Law●
“It has been accepted by the Court that when a person loses the self control under grave and sudden provocation, he loses all faculties of calculation and balance of mind and the court would not weight in golden scales as to how many blows would be sufficient to convince a court that the act done by the accused was under grave and sudden provocation”






Street vs. Mountford [1985] AC 809
●Land Law●
“There can be no tenancy unless the occupier enjoys exclusive possession but an occupier who enjoys exclusive possession is not necessary a tenant. He may be an owner in fee simple, a trespasser, a mortgagee in possession, an object of charity, or a service occupier”




Stuart vs. Kingston [1923] 32 CLR 309
●Land Law●
“Fraud is some 'consciously dishonest act' that can be brought home to the registered proprietor whose title is being challenged”


Suba Singh vs. PP [1962] 28 MLJ 122
●Criminal Law●
“You must put the question of drunkenness out of your minds when you come to consider your verdict, for, as I have already told you, voluntary drunkenness is no defense”


Sulong bin Nain vs. PP [1947] 13 MLJ 138 (CA, Malayan Union)
●Criminal Law●
“A mistake of law does not excuse. Now mistake, as this term is understood in jurisprudence, is used in the sense of misconception or error of judgment not intended to produce the result attained”




Sungei Way Leasing Sdn Bhd vs. Lian Seng Properties Sdn Bhd & Ors (Bank Bumiputra Malaysia Bhd & Anor, Interveners) [1989] 2 MLJ 123
●Land Law●
“The charge was not entitled to the equipment affixed to the land as there was a retention of title clause in favour of the plaintiffs and also because it did not form part of the charge’s security as at the date of the charge, the equipment had yet to be affixed thereon”


Sunrise Sdn Bhd vs. First Profile (M) Sdn Bhd [1996] 3 MLJ 553
●Company Law●
Choong Siew Fai CJ held that, “for all intents and purposes, the subsidiary was not only wholly-owned by the holding company, but was also controlled and managed by the holding company. In case where there are signs of separate personalities of companies being used to enable persons to evade their contractual obligations or duties, the court would disregard the notional separateness of the companies.”


Survade vs. State of Gujaret [1972]
●Criminal Law●
“Looking to the plain language of s 100 of the Indian Penal Code it appears that, the question whether a person has a right of privet defence in a given case depends on the manner in and the ferocity with which he is attacked and the apprehension in his mind resulting from such an attack and not on the question whether he was armed or otherwise”

CASE SUMMARY: PART 24

Sherras vs. De Rutzen [1895] 1 QB 918
●Criminal Law●
“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be consider”




Sinnasamy vs. PP [1956] 22 MLJ 36
●Criminal Law●
“Irresistible impulse per se is no defence and that it can only be a defence when it is proved to have been the ‘result of insanity in law’”


Sis vs. State of Punjab [1973] 75 Punj LR 25
●Criminal Law●
“The term ‘fight’ is not defined in the Code, but everyone knows what a fight is and that it takes two to make a fight. I would agree with the argument of the learned counsel fro the appellant that it is not necessary that weapons should be used in a fight, and also that an affray can be a fight even if only one party in the fight is successful in landing a blow on his opponent”


Sivaperuman vs. Heah Seok Yeong Realty Sdn Bhd [1979] 1 MLJ 150
●EQUITY●
“An interlocutory mandatory injunction was dissolved because it gave to the respondents the full relief sought to be secured at the trial and the balance of convenience was in favor of the appellant”


Smith vs. Anderson, [1880] 15 Ch D 247
●Law of Partnership●
Brett J held that, “the expression carrying on implies a repetition of acts and excludes the case of an association formed for doing one particular act which is never repeated.”





Smith vs. Anderson [1880] 15 Ch. D. 247
●Law of Partnership●
James L.J defined an ordinary partnership as “a partnership composed of definite individual, bound together by contract between them to continue combined for some joint object.”


Smith vs. Clay [1767] 3 Bro C 639n
●EQUITY●
“The court of equity has always refused its aid to stale demands, where a party has slept upon his rights and acquiesced for a great length of time”


Smith vs. Leech-Brain & Co Ltd [1962] 2 QB 405
●Law of Torts●
“The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that he would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely the burn. What, in particular case is the amount of damage which he suffers as the result of that burn, depends upon the characteristic and constitution of the victim”


Smith vs. Stone [1647] Style 65
●Law of Torts●
“The defendant was brought onto the plaintiff’s land without his consent. The court held that, the defendant was not liable, but the person who brought him in was liable for trespass”




Sorrell vs. Finch [1977] AC 728
●Land Law●
“If the stakeholder absconded, then the loss should be borne by the person who, under the terms of the contract, had a claim to the money at that time”

CASE SUMMARY: PART 23

Rights of US Nationals in Morocco Case (US vs. France) 1952 ICJ Rep 176
●Public International Law●
“Morocco had not lost its personality by virtue of a protectorate agreement, but merely that it had entered into a contractual relationship with France whereby the latter would conduct some of its international responsibilities”


Robert Addie & Sons (Collieries) Ltd vs. Dumbreck [1929] AC 358
●Law of Torts●
“In the case of persons who are not there by invitation, the occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or to allow a concealed danger to exist upon the said premises”


Rose & Frank Co. vs. J.R.Crompton & Bros[1923] AC 445
●Law of Partnership●
Lord Atkin explained that “in order for a contract to exist, the parties must expressly or impliedly intent their relations as a legal relation.”






Rylands vs. Fletcher [1866] LR 1 Ex 265
●Law of Torts●
“We think that the rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and if he does no to do so is prima facie answerable for all the damage which is the natural consequences of its escape”


S vs. Goliath [1972] 3 SA 1 (South Africa)
●Criminal Law●
“Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, whatever the circumstances, would have to comply with a higher standard than that demanded of the average person”


Saywell vs. Pope[1979] STC 824
●Law of Partnership●
“If there is no participation in the business then, it seems that even if there is an intention to draw up a partnership agreement and some discussion between the parties as to the consequences of it, the courts will not declare a partnership.”


Schmidt vs. Kepong Prospecting Ltd & Ors [1964] 2 MLJ 416
●Contract Law●
“A person who is not a party to a contract cannot take advantage of provisions of the contract”




Sedleigh-Denfield vs. O’Callaghan [1940] AC 880
●Law of Torts●
“A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be inferred with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in, a particular society”


Sheikh Amin bin Salleh vs. Chop Hup Seng [1974] 2 MLJ 125
●Law of Torts●
“A person who consents to the dangerous thing being brought to a place from which it may cause him injury if it escapes has no right of action unless he can prove negligence”


Shepherd Homes Ltd vs. Sandham [1987] Ch. 340
●EQUITY●
“The case has to be unusually strong and clear before a mandatory interlocutory injunction will be granted”

CASE SUMMARY: PART 22

Rayfield vs. Hands [1960] Ch.1
●Company Law●
“The Articles constitute a contract between the individual members of the company, and they regulate the member’s mutual rights and duties as members.”

Reed (Inspector of Taxes) vs. Young [1984] STC 38
●Law of Partnership●
“The capital of a partnership is the aggregate of the contributions made by the partners, either in cash or in kind fro the purpose of commencing or carrying on the partnership business and intended to be risked by them therein”

Re Comptoir, Commercial Anversois vs. Power, Son & Co [1920] 1 KB 868
●Contract Law●
“The court ought not to imply a term merely because it would be a reasonable term to include if the parties had thought about the matter, or because one party, if he had thought about the matter, would not have made the contract unless the terms was included, it must be such a necessary term that both parties must have intended that it should be a term of the contract and have only not expressed it because its necessity was so obvious that it was taken for granted”

Re Falbe, Ward vs. Taylor [1901] 1Ch 523
●Land Law●
“The question of what constitutes an annexation sufficient to make the chattel part of the land must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz the degree of annexation and the object of annexation”

Re Pappathi Ammal [1959] Cri LJ 724 (Madras HC, India)
●Criminal Law●
“From this case it would seem that the defense of automatism does not exist under the Penal Code, the insanity provision of s 84 being the only relevant one and applying to all cases of involuntary conduct”


Re Vandervell’s Trusts (N0 2) [1974] 3 All ER 205
●EQUITY●
“Every unjust decision is a reproach to the law of the judge who administers it. If the law should be in danger of doing injustice then equity should be called in to remedy it. Equity was introduced to mitigate the rigour of the law”

Re Young, ex parte Jones[1896] 75 LT 278
●Law of Partnership●
In this case, John agreed to lend Young £500 in consideration for the payment to Jones of £3 per week out of the profits. Pursuant to the agreement, Jones will assist in the office; have control over the money advanced and to be empowered to draw bills of exchange. He also had the right to enter into partnership within a period of seven months. Judge Williams said that, I ought to look at the agreement as a whole, and that taken as whole it negatives the existences of a partnership that it is plain that the agreement was made with reference to a completed partnership and that under it Lyod Jones had an option of entering into partnership. In spite of these clauses “which give such unusual and extended powers” to Jones, he is not a partner in the business but merely a lender and that “there was no intention of constituting a partnership.”


Reid vs. Smith [1906] 3 CLR 656
●Land Law●
“Physical attachment, beyond mere gravitation fixing the contested building to the freehold is not necessary a condition precedent of the question whether the building itself has become part of the soil”


Reigate vs. Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592
●Contract Law●
“A term can only be implied if it is necessary in the business sense to give efficiency to the contract”






Rickards vs. Lothian [1913] AC 263
●Law of Torts●
“It must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community”

CASE SUMMARY: PART 21

R vs. Byrne [1960] 2 QB 396
●Criminal Law●
“Abnormality of mind means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”

R vs. Cumming [1891] SLR [NS] 41 (Assizes, Singapore)
●Criminal Law●
“A man who acted in good faith under a misapprehension of facts was not responsible any more than he would be if the facts were as he believed them to be”

R vs. Francis Cassidy [1867] 4 Bom HCR (Cr Ca) 17 (Bombay India)
●Criminal Law●
“Looking at the terms of the s 307 of the Penal Code, as well as the illustrations to it, it is necessary in order to constitute an offence under it, that there must be an act done under such circumstances that death might be caused if the act took effect”

R vs. Halliday [1889] 61 LT 701
●Criminal Law●
“If a man creates in another man’s mind an immediate sense of danger, which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state mind is responsible fro the injuries which result”


R vs. Hudson and Taylor [1971] 2 QB 202
●Criminal Law●
“It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a ‘present’ threat in the sense that it is effective to neutralize the will of the accused at that time”

R vs. Instan [1893] 1 QB 450
●Criminal Law●
“It would not be correct to say that every moral obligation involves a legal duty, but every legal duty is founded on a moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement”

R vs. Mohan [1976] QB 1
●Criminal Law●
“In our judgment it is well established law that intent (mens rea) is an essential ingredient of the offence of attempt”

R vs. Sullivan [1983] 3 WLR 123
●Criminal Law●
“But the meaning of the expression ‘disease of the mind’ as the cause of ‘a defect of reason’ remains unchanged for the purpose of the application of the M’Naghten Rules. I agree with what was said by Devlin J in Kemp [1956] that ‘mind’ in the M’Naghten Rules is used in the ordinary sense of the mental faculties of reason, memory and understanding”
R vs. Vincent Banka [1963] 5 MLJ 66
●Criminal Law●
“Under the Penal Code in Malaysia it is essential that there should be evidence of a common intention, or evidence from which such a common intention, or evidence from which such a common intention can properly be inferred, to commit the act actually committed. In England it is not necessary”

Rainy vs. Bravo [1872] LR 4 PC 287
●Law of Torts●
“If the defamatory writing does not exist, and the secondary evidence is offered of its contents, the words must be proved and not what the witness conceives to be the substance or the effect of them, fro otherwise witness and not the court or a jury would be made the judges of what was a libel”

CASE SUMMARY: PART 20

Portugal vs. India [1960] ICJ Rep 6
●Public International Law●
“Portugal claimed a right of passage between its enclave territories in India. The court agreed that such a right of passage for peaceful purpose could exist on the basis of local customary law between the two states”


Pow Hing & Anor vs. Register of Titles, Malacca [1981] 1 MLJ 155
●Land Law●
“As long as an instrument of dealing is in order and fit for registration, it is the duty of the Register to register it”


PP vs. Abdul Manap [1956] 22 MLJ 214
●Criminal Law●
“It is true that one does not ‘weigh in golden scales’ the quantum of force which is or is not permitted, but the frame of mind in which the force is applied is of importance”


PP vs. Ngoi Ming Sean [1982] 1 MLJ 24
●Criminal Law●
“The Penal Code in Malaysia provides that nothing is an offence which is done in the exercise of the right of private defense of person’s body. But there is no such right where the person has time to seek the protection of the public authorities”

PP vs. Visuvanathan [1978] 1 MLJ 159 (HC, Singapore)
●Criminal Law●
“In our judgment for the application of clause (c) of s 300 of the Penal Code, all that the prosecution need to prove is:
(1) that the accused did an act which caused the death of the deceased
(2) that the said act was done with the intention of causing bodily injury
(3) that the injury caused-
(a) was intended and was not accidental or otherwise unintentional and
(b) was sufficient in the ordinary course of nature to cause death”


Prof Ahmad Ibrahim: The civil Law Ordinance in Malaysia [1971] 2 MLJ iv
●EQUITY●
“English law and equity was introduced into the Malay states by legislation and by decisions of the British judges”


Puncak Klasik Sdn Bhd vs. All Persons in Occupation of the Wooden House [1996] 5 MLJ 92.
●Land Law●
“On equity, it is now trite that our land laws are governed by the National Land Code which does not allow the law to be tempered with equity (Verama v Arumugam...). On the facts, even the principle of equitable estoppel does not apply the principle of equitable estoppel has no application.”







Queen-Empress vs. Niddha [1891] XIV All 38
●Criminal Law●
“If one attempts robbery one can only be charged under s 399. If one attempts culpable homicide not amounting to murder one can only be charged under s 308. If one attempts to commit a crime and there is no express provision elsewhere for that type of attempted crime one can only be charged with the provision punishing the full offence as read with s 511”


Queen-Express vs. Kadar Nasyer Shah [1896] ILR 23 Cal 604
●Criminal Law●
“It might be said of our law as it has been said of the law of England by Sir J Stephen that even as it stands, the law extends the exemption as well to cases where insanity affects the offender’s will and emotions as to those where it affects his cognitive faculties, because where the will and emotions are affected by the offender being subjected to insane impulse, it is difficult to say that his cognitive faculties are not affected”


Queen vs. Judge of City of London Court [1892] 1 QB 273
●Land Law●
Lord Esher held that, “if the words of an Act of Parliament are clear, you must take them in their ordinary and natural meaning, unless the meaning produces a manifest absurdity.”

R vs. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet (No 3) [1999] 2 All ER 97
●Public International Law●
“The immunity of former heads of sates might be diminished in the face of gross violations of human rights”

CASE SUMMARY: PART 19

Ong Keng Huat vs. Hongkong United Co Ltd [1961] 1 MLJ 36
●Law of Partnership●
“It is, of course, quite clear as I understood the law, that in order to make one of the partners individually liable for any loss arising out of the partnership it would be necessary to establish either that he was guilty of fraud or culpable negligence or willful default”



Palmer vs. Simmonds [1854] 2 Drew 221

●TRUST●
“The phrase ‘bulk of my estate’ was held not to be certain as it will not identify the subject matter clearly since it may mean different thing to different people”


Parkin vs. Thorold [1852] 16 Beav 59
●EQUITY●
“Courts of Equity make a distinction in all cases between that which is a matter of substance and that which is a matter of form, and if it finds that by insisting on the form the substance will be defeated, it holds it inequitable to allow a person insisting on such form and thereby defeat the substance”


Paryaq vs. State of Allahabad [1967] 37 AWR 572 (Allahaband HC, India)
●Criminal Law●
“If a man knows that certain consequence will follow from his act it must be presumed in law that he intended that consequence to take place although he may have had some quite different ulterior motive for performing the act”


Patridge vs. Crittenden [1968] 1 WLR 1204, CA
●Contract Law●
“When one is dealing with advertisements and circulars, unless indeed they come from manufactures, there is business sense in their being construed as invitations to treat and not offers for sale”


Perwira Habib Bank Malaysia vs. Lum Choon Realty Sdn [2005] 4 CLJ 345
●Land Law●
“The concept of the English mortgage is not consistent with the Torrens System in Malaysia. This is because in a mortgage the title passes from the mortgagor to the mortgagee whereas a duly registered charge under the NLC only creates a legal interest in the land”




People’s Insurance Co. (M) Sdn. Bhd. vs. People’s Insurace Co. Ltd. & Ors.
[1986] 1 MLJ 68
●Company Law●
“The parent (holding) and subsidiary companies are two separate legal entities and Officers of the parent company who are on the Board of the subsidiary are not representatives of the parent company but sit at the Board Meeting as directors and agent of the subsidiary. A resolution of the Board of directors of the subsidiary does not bind the parent company. The resolution did not constitute a contract between the parties.”

Pharmaceutical Society of Great Britain vs. Storkwain Ltd [1986] 83 Cr App R 359
●Criminal Law●
“It is in my opinion, clear from the Act of 1968 that Parliament must have intended that the presumption of mens rea should be inapplicable to s 58 (2) (a). First of all, it appears from the Act of 1968 that, where Parliament wished to recognize that mens rea should be an ingredient of an offence created by the Act, it has expressly so provided”


Phelps vs. Hillingdon London BC [2000] 4 All ER
●Law of Torts●
“Educational physiologist, education officers, and teachers may owe duty of care to a special pupil, provided sufficient proximity exists between the pupil and the teachers”


Piercy vs. S. Mills & Co [1920] 1 Ch 77
●Company Law●
“Directors (a minority of the voting power), allotted shares to themselves and their friends”



Ponnukon vs. Jebaratnam [1980] 1 MLJ 282
●Law of Partnership●
“The property was held not to be partnership property because, inter alia, it was not paid for by the funds of the partnership but the funds raised by (a partner) on his own separate act independently of the order or of the partnership”

CASE SUMMARY: PART 18

Nicaragua vs. USA [1986] ICJ Rep 14
●Public International Law●
“Opinio juris may be deducted from the General Assembly and the court gives example of declaration on Principles of International Law concerning friendly relations and co-operation among states in accordance with the charter of UN”


Noble vs. Harrison [1926] 2 KB 332
●Law of Torts●
“A person is liable for a nuisance constituted by the state of his property: (1) if he causes it, (2) if by the neglect of some duty he allowed it to arise, and (3) if, when it has arisen without it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did or ought to have become aware of it”


Noel Kenneth Davidson vs. Firm Corp Sdn Bhd [1994] 1 AMR 862
●Law of Torts●
“When a cheque is involved the conversion is not of the money derived from the cashing of the cheque or the amount credited to an account, but that of the cheque itself, the damages arising there from is the value of the cheque. A plaintiff can only succeed in an action for the conversion, if he had, when the unlawful act was committed, the possession, or the immediate possession, of the chattels unlawfully dealt with”


Northern Countries Securities Ltd. vs. Jackson & Ateeples Ltd. [1974] 1 W.L.R.
●Company Law●
“A director is an agent, who casts his vote to decide in what manner his principal shall act through the collective agency of the board of directors”



Northern Electric Co Ltd vs. Frank Warkentin Ltd et al [1972] 27 DLR (3d) 519
●Law of Partnership●
“The sharing of gross returns under a lease did not itself create a partnership”


North Sea Continental Shelf Cases ICJ Reports [1969], 3
●Public International Law●
“Only the first three articles of the Convention were emergent or pre-existing customary law. The court concluded further, that the provision on of shelf areas in Article 6 of the Convention had not become a rule of customary law by virtue of the subsequent practice of states and, in particular, of non-parties”


Oh Hiam & Ors vs. Tham Kong [1980] 2 MLJ 159
●Land Law●
“The Torrens system is designed to provide simplicity and certitude in transfers of land, which is amply achieved without depriving equity of its ability to exercise its jurisdiction in personam on grounds of conscience”


Ong Chat Pang vs. Valliappa Chettiar [1971] 1 MLJ 224
●Land Law●
“Malaysian indefeasibility provision appears to contain a wide saving proviso which makes a registered title liable to defeat by operation of law, and this proviso is wide enough to bring in the operation of section 26”







Ong Cheng Neo vs. Yap Cheah Neo [1875] 6 LR 381
●EQUITY●
“A Chinese woman died and through her will ‘made over’ to her executors all her property, in trust, for the purpose to be mentioned. These were found to be obscure and uncertain. She also directed that some portions of a house should neither be mortgaged nor sold, but kept as ‘a family residence’ without mentioning the period for which the house should be kept like that. Court held that the gift as void infringing the rule against perpetuity”


Ong Hoo Hoong vs. Kong Yin Weng [1965] 2 MLJ 97
●Law of Torts●
“One co-owner of land can be only brought an action of trespass against the other if he has been actually ousted or dispossessed of the land. Each co-owner is entitled to possession of the whole land, so that if one turns the other off the land or part of it, it is a trespass”

CASE SUMMARY: PART 17

Mercantile Bank Ltd vs. The Official Assignee of the Property of How Han Teh [1969] 2 MLJ 196,
●Land Law●
“It has not been shown that there are express words in the statue which preclude me from enforcing the equitable rights of the applicants. Under the bankruptcy law the trustee in bankruptcy is a statutory assignee who takes the bankrupt’s property subject to the equities and liabilities which affect it in the bankrupt’s hands at the time the bankruptcy was committed”


Mercantile Credit Co Ltd vs. Garrod [1962] 3 All ER 1103
●Law of Partnership●
“It will be observed that what is done in carrying on the partnership business in the usual way in which business of a like kind are carried on, is made the test of authority where no actual authority or ratification can be proved”


Merrit vs. Commonwealth [1935] 180 SE 395
●Criminal Law●
“While a person may be guilty of murder though there was no actual intent to kill, he cannot be guilty of an attempt to commit murder unless he has a specific intent to kill”


Mersey Docks and Harbour Board vs. Protector [1923] AC 253
●Law of Torts●
“The leading distinction between an invitee and a licensee is that, in the case of the former, invitor and invitee have a common interest, while, in the latter, licensor and licensees have none”




Meux vs. Jacobs LR 7 HL 481
●Land Law●
“A mortgage of premises will pass the fixtures upon the premises. Fixtures attached to the property after the date of the mortgage will also (unless under special stipulation) pass to the mortgage”


Mir Sarwarjan vs. Fakhruddin [1912] 39 I.A. 1
●EQUITY●
“A contract which can only be enforced at the option of one party cannot be specifically enforced”


Mohammad bin Buyong vs. Pemungut Hasil Tanah, Gombak & Ors [1982] 2 MLJ 53
●Land Law●
“An instrument of dealing presented before the publication in the Gazette of a notification of forfeiture can still be registered”


Munney Khan [1971] 57 IR SC 1491
●Criminal Law●
“The right of private defence is essentially a defensive right circumscribed by statute, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive, or retributive purpose”






Murray vs. Davis [1930] S.S.L.R 229
●Law of Partnership●
“The plaintiff gave power to the defendant who was a company promoter with the intention that the defendant will invest the plaintiff asset in the defendant business which was Chemor, Penawat and Tongkah. It was held that in the first and second venture are considered, there was no partnership as there was no agreement by the plaintiff. There is partnership in the third venture because there was an agreement between them which constitute that the defendant would accept any definite remuneration for the money he had invested”


Nain Boon Keow vs. Letchman Chetty [1885] Ky 85
●EQUITY●
“A doctor entrusted his savings with his wife. Before her death she spent all his money without his knowledge including buying some land for $600 through the mortgage of the land to Letchman to whom she was introduced as a widow. Letchman made no further enquires about the woman. The wife died and the mortgage money remained unpaid. Letchman gave notice for the sale of land. The doctor commenced a suit against Letchman. Court applied the equitable principle ‘whatever is sufficient to put the party to an inquiry, is good notice in equity’. Court hold that the defendant, in dealing with the woman, should have satisfied himself of her true position. Court has no doubt that negligence such as this is a form of constructive notice. The deed of mortgage is therefore declared void and ordered to be cancelled.”


Ng Kheng Yeow vs. Chiah Ah Foo [1987] 2 CLJ 108
●EQUITY●
“The entry of a private caveat by one party does not necessarily mean that he has better priority against another who has not as yet lodged one”

CASE SUMMARY: PART 16

Low Pui Heng vs. Tham Kok Cheong [1965] 31 MLJ 212
●Law of Partnership●
“Majority partner’s decision to convert the partnership into a limited company will prevail notwithstanding the dissent of a minority”


LPTB vs. Upson [1949] AC 155
●Law of Torts●
“A claim for damages for breach of a statutory duty intended to protect a person in the position of the particular plaintiff, is a specific common law right which is not be confused in essence with a claim of negligence”


M & J Frozen Food Sdn Bhd vs. Siland Sdn Bhd [1994] 1 MLJ 294
●Land Law●
“The right of discharge of a charge is available at the instance of a charger and no other”


Maclaine Watson vs. Dept of Trade and Industry [1989] 3 All ER 523
●Public International Law●
“Treaty is a contract between the governments of two or more sovereign states”


Mahadevan vs. Manilal & Sons [1984] 1 MLJ 266
●EQUITY●
“The Code is silence as to the effect of securities which do not conform to the Code’s charge or lien. Therefore equitable charge and liens are permissible under Malaysian Land Law”


Majlis Perbandaran Pulau Pinang vs. Boey Siew Than & Ors [1978] 2 MLJ 156
●Law of Torts●
“It is clear that a nuisance is a public nuisance if within its sphere which is the neighborhood, it materially affects the reasonable comfort and convenience of a class of the subjects of the State”


Manchester Diocesan Council for Education vs. Commercial and General Investment Ltd. [1969] 3 All ER 1593
●Contract Law●
“I am opinion that the acceptance communicated to the offeror by any other mode which is no less advantageous to him will conclude the contract”


Mansell vs. Griffin [1908] 1 KB 160
●Criminal Law●
“It seems to me that the authority to administer moderate and reasonable corporal punishment, which any parent who sends a child to school is presumed to give the authorities, extends to the mistress occupying the position which the defendant occupied in his school”


Malayan United Finance Berhad vs. Tay Lay Soon [1991] 1 MLJ 504
●Land Law●
“English principle such as the “equitable mortgage” is unacceptable in this country. This is because the English law principle in this perspective is prohibited from being used”


Margreat Chua vs. Ho Siew Kiew [1961] MLJ 173
●Land Law●
“Court ordered specific performance for a lease which indirectly amounted to enforcing an unregistered lease. Here, court gave effect to the intention of parties notwithstanding the absence of legal requirements.”

CASE SUMMARY: PART 15

Lambe vs. Eames [1871] 6 Ch App 597
●TRUST●
“T left his estate to his widow ‘to be at her disposal in any way she may think best, for the benefit of herself and family’. This was held to be ineffective to create a trust, the widow took absolutely”


Latchmi Koeri vs. State of Bihar [1960] AIR Pat 62
●Criminal Law●
“In view of the injuries caused, I am perfectly satisfied that the appellant intended to cause very much more harm than was necessary for his defense, in fact he appears to have inflicted most of the injuries including the fatal one at a time when the havildar was lying helpless under him”


Lazard Bros. & Co. Ltd vs. Fairfield Properties Co. (Mayfair) Ltd [1978] Conv. 184
●EQUITY●
“If between the plaintiff and defendant it was just that the plaintiff should obtain the remedy, the court ought not to withhold it merely because the plaintiff had been guilty of delay”


Lee Kim Leng vs. R [1964] 30 MLJ 285 (HC, Singapore)
●Criminal Law●
“In the Indian Penal case of Omkar Ram Pratap [1902] it was held that to impose criminal liability under section 304(A), it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another’s negligent. It must have been the causa causans, not enough that it may have been causa since qua non”


Lee Sai Yan vs. PP (Unreported. Magistrate’s Appeal No 90 of 1980 Subordinate Court of Singapore)
●Criminal Law●
“The statutory duty imposed upon the accused was in s 34(8) Factories Act. His neglect was that he omitted to perform the duty imposed by law, permitting the deceased to enter the board hole when he was not wearing a breathing apparatus and when no tests were concluded”


Lian Keow Sdn Bhd In Liquidation & Anor vs. Overseas Credit Finance (M) Bhd & Ors [1988] 2 MLJ 449.
●Land Law●
“The Malaysian Torrens System does not prevent or restrict the creation of beneficial interests in land. It does not abrogate the principles of equity but alters the application of particular rules of equity in so far as necessary to achieve its special objects.”


Lloyds Bank Ltd vs. Bundy [1975] QB 326
●EQUITY●
“The law recognizes the principles that the relief against harsh or unfair contracts may be granted of the ground of inequality of bargaining power”


Lock International plc vs. Beswick [1989] 1 WLR 1268
●EQUITY●
“Anton Piller orders are frequently sought in actions against former employees who have joined competitors or started competing business of their own”



London & Clydeside Estates Ltd vs. Aberdeen District Council & Anor [1980] 1 WLR 182
●Land Law●
“The requirement that a certificate of alternative development in compulsory purchase proceedings should include information as to the rights of appeal was mandatory and the omission of it vitiated the certificate”


Lord Bernstein of Leigh vs. Skyviews and General Ltd [1977] 2All ER 902
●Law of Torts●
“The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all the science now offers in the use of air space. This balance is, best struck, by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it, and declaring that above that height he has no greater rights in the airspace than any other member of the public”


Lotus case [1927] PCIJ Ser. A No 10
●Public International Law●
“Permanent Court of International Justice: the first and foremost restriction imposed by international law upon a state is that, failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another’s state”

CASE SUMMARY: PART 14

Kapoor Singh vs. Haji Ibrahim bin Haji Mohamed Noor [1948] MLJ 29
●Land Law●
“If the word ‘attachment’ is strictly limited in its meaning to the form of attachment provided by Civil Procedure Code at the time when the Malay Reservation Enactment was passed, then the appointment of a receiver is not attachment within the meaning of that Enactment and the appointment of a receiver is not prohibited”


Karuppiah Chettiar vs. Subramaniam [1971] 2 MLJ 116
●Land Law●
“When the purchaser made the full purchase price payment, the vendor (register-proprietor) only acted as the bare trustee to the property on behalf of the purchaser”





Keith Spicer Ltd vs. Mansel [1920] 1 All ER 462
●Law of Partnership●
“There was no evidence that M and B were carrying “on business in common with a view of profit” within the meaning of the English Partnership Act 1980, which is in pari material with section 3 (1) of the Partnership Act 1961. The evidence merely showed that they were preparing to carry on business as a company as soon as they could.”


Kensington BC vs. Riley [1972] RTR 122
●Consumer Law●
“In deciding whether a description is false or not, the court will consider statements in their context, to determine the effect on the ordinary consumer”


Khoo Hock Leong vs. Lim Ang Kee [1888] 4 Ky 353
●EQUITY●
“In an action for the recovery of land, court found that the plaintiff was entitled to recover possession but also found that the defendant in honest belief that the land was his spent money on the improvements to it. Court applied the maxim ‘he who seeks equity must do equity’ and ordered the defendant to be compensated for his improvements”


Khoo Yoke Wah vs. Lee Choo Yam Holding Bhd [1991] 1 MLJ 414
●Law of Partnership●
“Death of any partners are dissolved the partnership. It mean that the death of any partners are cause the partnership dissolved”





King-Emperor vs. Tha By Aw [1907] 4 BLR 315 (Chief Court, Lower Burma)
●Criminal Law●
“Whenever the words ‘fraud’ or ‘intent to defraud’ or ‘fraudulently’ occur in the definition of crime, two elements at least are essential to the commission of the crime, namely, first, deceit or an intention to deceive, or in some cases mere secrecy and secondly either actual injury or possible injury or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy”


KM Nanavati vs. State of Maharashtra [1962] AIR SC 605
●Criminal Law●
“The question that the court has to consider is whether a reasonable person placed in the same position as the accused was would have reacted to the confession of adultery by his wife in the manner in which the accused did”


Kuldip Singh & Anor vs. Lembaga Letrik Negara & Anor [1983] 1 MLJ 256
●Land Law●
“If the stakeholder absconded, then the loss should be borne by the person who, under the terms of the contract, had a claim to the money at that time”


Lacroix vs. The Queen [1954] 4 DLR 470
●Land Law●
“It seems to me that the owner of land has a limited right in the air space over his property, it is limited by what he can possess or occupy for the use and enjoyment of his land. By putting up buildings or other constructions the owner does not take possession of the air but unites or incorporates something to the surface of his land. This which is annexed or incorporated to his land becomes part and parcel of the property”

CASE SUMMARY: PART 13

Inter-Continental Mining Sdn Bhd vs. Societe des Etains de Bayas Tudjuh [1974] 1 MLJ 145
●Land Law●
“While an agreement to deal in land is insufficient to vest title to or an interest in land, it is necessary still good as a contract. In appropriate cases, the remedy of specific performance or damages in lieu thereof may be obtained in respect of the agreement”


International General Electric Co of New York Ltd vs. Customs and Excise Commissioner [1962] 2 All ER 398
●Land Law●
“The court had jurisdiction in interlocutory proceedings to make a final, and not merely an interim, declaration affecting the rights of a party, but that jurisdiction would only be exercised sparingly and infrequently”


Inwards vs. Baker [1965] 2 QB 29
●Land Law●
“Equity would also arise where the landowner merely encouraged the builder’s belief passively, as where the mortgagee stood silently by while a purchaser, in ignorance of the mortgage built in the land”


Jackson vs. White and Midland Bank [1967] 2 Llyod’s Rep 68
●Law of Partnership●
“The court refused to hold that there had been a partnership agreement since no particular contractual intention can be attributed to the parties. From this case, we can conclude that, the agreement solely cannot be a point in existing of a partnership. There must be a contractual intention or consent by both parties.”


Jai Dev and Hari Singh vs. State of Punjab AIR [1963] SC 612
●Criminal Law●
“It is no doubt true that in striking a decisive below, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectively which would be so natural in Court room, for instance, long after the incident has taken place”


Jarha Chamar vs. Surit Ram [1907] 3 Nag LR 177
●Criminal Law●
“If A runs away with B’s watch, B may chase him until he effects his retreat, but the right of self defence does not end with his escape. If B sees A the next day, the next month, or the next year, wearing the stolen watch, B may forthwith seize A and recover his watch”


Jemadar Sabty vs. Virtashellum [1871] SLR 431
●EQUITY●
“Specific Performance was decreed in line with the maxim that a statute cannot be allowed to be made an instrument of fraud”


John Shaw & Sons (Salford) Ltd vs. Shaw[1935] 2 KB 113
●Company Law●
Greer LJ held that, some of its powers according to its article of association are exercised by the directors, certain others powers may be reserved to the shareholders in general meeting. Decision to commence proceeding was within the board’s general powers of management provided for in the company’s articles of association and that the members could not override the board’s decision.


Jones vs. Clifford [1876] LR 3 Cg D 779
●Criminal Law●
“Private right of ownership is matter of fact, it may be the result also of matter of law, but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that the agreement is liable to be set aside as having proceed upon a common mistake”


Joyce vs. DPP [1946] AC 347
●Public International Law●
“The offence of treason may be committed by ant person owing allegiance to the Crown who has done a treasonable act, where that act took place”

CASE SUMMARY: PART 12

Higgins vs. Beauchamp [1914] All ER Rep 937
●Law of Partnership●
“Where the partnership is a trading firm, a partner has implied authority to borrow money on the firm’s credit, as this within the ordinary course of business of a trading partnership”


Holland vs. Hodgson [1872] LR 7 CP 328
●Land Law●
“Where an article is affixed by the owner of the fee, though only affixed by bolts and screws, it is to be considered part of the land, at all events when the object of setting up the article is to enhance the value of the premises to which it is annexed for the purpose to which those premises are applied”


Holman vs. Johnson [1775] 1 Cowp 341: 98 ER 1120
●Contract Law●
“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa (from a wrong done) or the transgression of a positive law of this country, then the court says he has no right to be assisted”


Home Office vs. Dorset Yacht Co Ltd [1970] AC 1004
●Law of Torts●
“Donoghue vs. Stevenson [1932] AC 562 may be regarded as a milestone, and the well-known passage in Lord Atkin’s speech should, I think, be regarded as a statement of principle, it will require qualification in new circumstances. But I think the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion”

Hong Kong Fir Shipping Co Ltd vs. Kawasaki Kishen Kaisha Ltd [1962] 2 QB 26
●Contract Law●
“There are, however, many contractual undertakings which cannot be categorized as being conditions or warranties. Of such undertakings all that can be predicted is that some breaches will and others will not give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract”


Hong Leong Bank Bhd vs. Goh Sin Khai [2005] 3 MLJ 154
●Land Law●
“The application of bare trust concept on the issue whether financier could realize his security without registering a National Land Code charge and applying to court for an order for sale”


Howard Smith Ltd vs. Ampol Petroleum Ltd [1974] AC 821
●Company Law●
The Privy Council said that, “directors, within their management power, may take decisions against the wishes of the majority of shareholders, and the majority of shareholders cannot control them in the exercise of these powers while they remain in office.”


Hunter vs. Canary Wharf Ltd [1997] AC 655
●Law of Torts●
“Inconvenience or discomfort may suffice to establish a case of intentional harassment”




Imperial Chemical Industries Ltd vs. Shatwell [1964] 2 All ER 999
●Law of Torts●
“Volenti non fit injuria was no defence to an action by an employee against his employer for breach of the employer’s statutory duties”


In the Goods of Williams Russell [1813] 2 Ky Ec 6
●EQUITY●
“WR bequeathed the residue of his estate to a lady and her children except $200 which was given to his executors. The estate stands as $4,352.32. The executor had charged an additional 5% on the estate as their commission. The question before the court was whether the executors were entitled to the $200, being the legacy bequeathed to them, and the 5% commission. The court applied the equitable doctrine of election where the executors must elect which of the two they will take. They are not entitled to both legacy and commission at the same time”


In Residues Treatment & Trading Co Ltd vs. Southern Resources Ltd [1988] 14 ACLR 569
●Company Law●
“It is well established that the allotment of shares for the purpose of ensuring the control of existing directors by defeating a takeover bid or of placing control of the company in the hands of a particular shareholder or group of shareholders is an abuse of the powers of the directors and a breach of their duty to the company”