JUDGMENTS
Civil Appeal No. 11 of 2010
[Deeds of assignment of development agreement and of leasehold rights by way of security – legal effect – assignor retains only equity of redemption – insufficient proprietary right to enable assignor to convey mortgaged property to another.
Contract – covenant not assign without consent – in context construed as permission to assign with prior consent – absence of consent
Ostensible authority of agent – absence of sufficient evidence ]
Ang Peng Chin v Perbadanan Tabung Amanah Islam Brunei
COACV/11/2010
Decision date: 6 Dec 2010
Civil Appeal No. 9 of 2010
[Approach of Court of Appeal to findings of fact based on acceptance by trial judge of oral evidence – advantage of trial judge who has seen and heard witness. ]
Imam Muhajir [In his personal capacity and as Administrator for the Estate of Waqingatul Ngadawiyah (Deceased)] v Shahul Hameed Jahir Hussain, Koperasi Serbaguna Mukim Lumapas Bhd
COACV/9/2010
Decision date: 27 Nov 2010
Civil Appeal No. 8 of 2010
[Evidence – whether bank’s certificate of money due was conclusive evidence. Whether ‘without prejudice’ correspondence admissible where there has been a concluded settlement.
A bank claimed money due and applied for summary judgment. The hearing of the application was adjourned with liberty to restore after a settlement had been entered into by the parties. The settlement agreement contained an admission of the debt and provided that if the debtors defaulted in performance of the terms of
the settlement they agreed to the bank’s entering summary judgment. The debtors defaulted and when the bank restored the application in relation to the original claim it sought to adduce evidence as to the settlement. When the defendants claimed that the settlement had been brought about by undue pressure, the bank sought to produce a ‘without prejudice’ letter to show that negotiations had been conducted at arms length through solicitors. The defendants applied to strike out the letter and other evidence relating to the settlement, claiming privilege. They also applied to strike out a certificate from the bank which, the bank claimed, was under its contract with the debtors conclusive evidence of the sum stated in the certificate to be due.]
Garnet Sdn Bhd, Lester Lee Kok Wah [Brunei Green I/C No. 50-689240] v Baiduri Bank Berhad
COACV/8/2010
Decision date: 27 Nov 2010
Civil Appeal No. 5 of 2010
[Assignment by Deed by a 3rd party to a creditor in respect of a debt. Issue — whether the original debt was released by the creditor. Whether the assignment is absolute or by way of charge only is nothing to the point. The debtor promisee may choose with whom he contracts and the burden of a contract may not be assigned to another without his agreement. The creditor did not release the original debt in the deed and the debtor was not a party to it. There was no evidence that the creditor agreed otherwise to release the original debt which
had not been satisfied. The creditor could therefore seek the money from either the debtor or the assignor but could only recover it once. Such recovery is performance of the contract]
Ong Tiong Oh v Supercrete Sdn Bhd
COACV/5/2010
Decision date: 25 Nov 2010
Civil Appeal No. 4 of 2009
[Evidence – Evidence Act, Cap 108, Section 114(g). The plaintiff invited the judge in his discretion to draw an adverse inference from the absence of a potential witness for the defence. The judge did not do so. Held on appeal: in the circumstances of the case the judge did not err. ]
Tan Poh Kien v Mikuni (B) Sdn Bhd
COACV/4/2009
Decision date: 18 Nov 2010
Civil Appeal No. 8 of 2009
[Construction of Participation Agreement. Creation of trust but no equitable assignment because specific performance excluded. Trustee correct party to sue. ]
Elsie Chong Suk Mee @Mrs Suresh Janardanan v RHB Bank (formerly known as United Malayan Banking Corp.)
COACV/8/2009
Decision date: 1 June 2010
Civil Appeal No. 2 of 2010
[Contract. Repudiation. General damages for breach by repudiation. Damages to be assessed as at date of acceptance of repudiation. Measure of damages. Assessment of present value of sums to be received in the future.]
Decision date: 1 June 2010
Civil Appeal No. 13 of 2009
[Order 22A rule 9. The defendants made offers to a number of plaintiff’s under order 22A. Some plaintiff’s accepted the offers about 8 months later when the hearing to assess damages was nearly complete. The defendants claimed that under the rule they were entitled to their costs against those plaintiff’s on an indemnity basis. Held: the necessary conditions were not present and the rule did not apply as 1) these plaintiff’s had accepted offers and 2) there was no judgment equal to or less favourable than the offer. Appeal dismissed. ]
Mohd Fahkri bin Ishak & Anor v Metussin bin Hj Hashim & 4 Others
COACV/13/2009
Decision date: 29 May 2010
Civil Appeal No. 11 of 2009
[Arbitration. Insurance policy containing standard arbitration clause. Originating summons issued by insured directed to obtaining payment under the policy. Defendant filing affidavits in response directed to demonstrating that the insured’s claim was unsustainable. Insurance company taking step in the action. No jurisdiction to stay proceedings in favour of arbitration.]
Foundation Contractor & Engineering Sdn Bhd v Cosmic Insurance Sdn Bhd
COACV/11/2009
Decision date: 27 May 2010
Civil Appeal No. 12 of 2009
[Land Law. Tenancy agreement – landlord in breach of covenants of quiet enjoyment and non – derogation from grant by dumping rubbish. Tenant entitled to deduct cost of removing rubbish as set-off or counterclaim when paying rent. Landlord not entitled to terminate tenancy because the tenant had erected a fence. ]
Pantai Mentiri Golf Club v Borneo Landscaping & Grassing (B) Sdn Bhd
COACV/12/2009
Decision date: 27 May 2010
Civil Appeal No. 9 of 2009
[Land purchased in the name of son, the appellant, with a receipt executed by the appellant showing half interest in the land was held on behalf of the respondent. The appellant was thus bound by the trust. Application to admit further evidence refused because it could have been obtained before and was only confirmatory of matter already in evidence. Appeal on a question of fact not allowed. Trust to hold land on behalf of a non-citizen is not illegal. ]
Hj Roney bin Hj Roslee @ Roni bin Hj Rosli v Kheng Ah Beng
COACV/9/2009
Decision date: 20 May 2010
Civil Appeal No. 3 of 2010
[Pleading – non-admission by defendant to allegation of fact within defendant’s knowledge – inappropriateness – arguably evasive
Particulars sought where interrogatories more appropriate – importance of risk of increasing cost and delay by requiring further interlocutory step]
Lim Lee Chin, Syarikat Perniagaan Malar Setia (sued as a firm) v Emily Ong Chiew Shih, Livingson Ong John Heng
COACV/3/2010
Decision date: 20 May 2010
Civil Appeal No. 5 of 2009
[Allegation of guarantee executed in consequence of undue influence. Consideration of the application of Section 16(2) and (3) of the Contracts Act. Consideration of the application of general equitable principles. ]
Datin Hjh Edah Bte Hj Mohamed Noor v Baiduri Bank Berhad
COACV/5/2009
Decision date: 12 Nov 2009
Civil Appeal No. 28 of 2008
[Prohibitory order discharged. The court’s substantive power to order the seizure of land is to be found in Sections 17 to 20 of the Debtors Act Cap.195. A judgment debtor seeking a prohibitory order proceeding under O.47 r.6 of the RSC must satisfy these provisions of the Debtors Act. ]
Lee Fat Khong, Lee Fatt Shoon v Baiduri Bank Berhad
COACV/28/2008
Decision date: 3 June 2009
Civil Appeal No. 27 of 2008
[Damages for future loss of earnings – method of assessment. ]
Bijun Kalur v Pahaytc Sdn Bhd
COACV/27/2008
Decision date: 3 June 2009
Civil Appeal No. 4 of 2009 and Civil Appeal No. 2 of 2009
Awangku Muhammad Murshyid Bin Pg Hj Ali, Pg Ali Bin Pg Maon v Makrami Bin Haji Md Noor
COACV/4/2009 and COACV/2/2009
Decision date: 3 June 2009
Civil Appeal No. 17 of 2008
[Contracts of employment in Brunei Darussalam have an implied term of mutual trust and confidence. In dismissing the plaintiff after 20 years service for poor performance his employer, the bank, was in breach. The bank held liable for wrongful dismissal. ]
Loh Nyuk Choi v Standard Chartered Finance (Brunei) Berhad
COACV/17/2008
Decision date: 2 June 2009
Civil Appeal No. 21 of 2008
[Enforceability of an agreement recorded by court but not part of any order – Does res judicata apply to an issue which arises after commencement of an action which was not then pursued in the action.]
Hytec Engineering Co. Sdn Bhd, Ak Saifuzzaman Pg Hj Md Yassin, Tan Biew Peng, Lim Beng Kwang v Baiduri Bank Berhad
COACV/21/2008
Decision date: 23 May 2009
Civil Appeal No. 20 of 2008
[Enforceability of an agreement recorded by court but not part of any order – Does res judicata apply to an issue which arises after commencement of an action which was not then pursued in the action.]
Liaw Watt Lee, Tan Biew Peng v Baiduri Bank Berhad
COACV/20/2008
Decision date: 23 May 2009
Civil Appeal No. 19 of 2008
[Appeal against costs order allowed. Application of 0.22A – Payment into court.]
Koperasi Kampung Keriam Dengan Tanggungan Berhad, Insol Anak Gaing v Taty Tjhai (suing as the administrator of the estate of CHANDRAWATI TJHAIM deceased)
COACV/19/2008
Decision date: 23 May 2009
Civil Appeal No. 18 of 2007
[Appeal dismissed. Further stay of orders made below refusal. Costs of the appeal and below to the respondent.]
Danny Chong Meng Chiang v Encore Sdn Bhd
COACV/18/2007
Decision date: 23 May 2009
Civil Appeal No. 1 of 2009
[A certified copy of the Senior Magistrate’s decision was not annexed to the notice of appeal to the judge. The appeal was not properly constituted but the Judge wrongly refused to hear the appellants’ application for extension of time. Court of Appeal refused appellants’ application for an extension of time as his prospects of success are minimal and dismissed the appeal. ]
Yap Fook Hoo (trading as Yapp Fook Hoo Transport Company & Fook Hoo Builder Sand Filling Contractor) v Lau Yun Company
COACV/1/2009
Decision date: 18 May 2009
Civil Appeal No. 1 of 2009
[18th May, 2009.
A certified copy of the Senior Magistrate’s decision was not annexed to the notice of appeal to the judge. The appeal was not properly constituted but the Judge wrongly refused to hear the appellants’ application for extension of time. Court of Appeal refused appellants’ application for an extension of time as his prospects of success are minimal and dismissed the appeal.]
Yap Fook Hoo (trading as Yapp Fook Hoo Transport Company & Fook Hoo Builder Sand Filling Contractor) v Lau Yun Company
COACV/1/2009
Decision date: 18 May 2009
Civil Appeal No. 16 of 2008
[Contract – as agent or principal – ratification of contract made without authority.
Commission – meaning of in contract. ]
Altco Jaya Sdn Bhd v Lee Cheng Fong
COACV/16/2008
Decision date: 16 May 2009
Civil Appeal No. 15 of 2008
[Equity – assignment of future income made for consideration – income payable under future contracts – effect of bankruptcy of assignor.]
Baiduri Bank Berhad v The Official Receiver (the Trustee for the Property of Kumariah Bte Hj Sirat, a Bankrupt)
COACV/15/2008
Decision date: 16 May 2009
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