JCW

[Vacant Possession – eviction of occupiers from common property of a condominium] Justin argued this case and was assisted by CY Leong (who attended the decision). Justin was the counsel for the Plaintiff, the management corporation of Palm Spring. This is a case involving an application by the Plaintiff against the Defendants to deliver vacant possession of the common property to the management corporation. The Plaintiff is entitled to a vacant possession of the common property pursuant to an order by Court of Appeal and the 2nd Defendant is supposed to deliver vacant possession to the Plaintiff. However, the 2nd Defendant failed to deliver vacant possession by allowing its sub-tenant to remain in the common property and continue to collect rent from its sub-tenant for some time. The Court allowed the Plaintiff’s application and ordered the 2nd Defendant to deliver vacant possession within 30 days of the order, failure of which, the 2nd Defendant run the risk of being held in contempt of court

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

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

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

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

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

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

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