28 February, 2019
OSK Trustees Berhad v Metroplex Holdings Sdn Bhd [2019] 1 LNS 3
The Court of Appeal set down the guiding principle in relation to the tort of conversion when it held that the essence of the tort is in the wrongful appropriation of another's chattels or movable properties.
This principle is intended to primarily protect ownership or title to chattel or movable property to ensure that one is not deprived from use and possession of the chattel or movable property.
In order to maintain a claim in tort of conversion, the plaintiff must show that it has actual possession or immediate right to possession of the chattel or movable property in question.
Conversely, a defendant sued need only disprove the plaintiff’s claim of actual possession or immediate right to possession of the chattel or movable property in question.The defendant's intention or error, or even fraud, is generally irrelevant to the consideration of liability for tort of conversion.
Kerajaan Malaysia v Semantan Estates (1952) Sdn Bhd [2019] 2 CLJ 145
The Federal Court in this case was requested to review an earlier decision of the Federal Court in dismissing an application for leave to appeal to the Federal Court.
The Federal Court held that the conditions for the grant of leave to appeal to the Federal Court was explained in Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd [2011] 1 CLJ 51; [2011] 1 MLJ 25.
According to Terengganu Forest, the purpose of the conditions for the grant of leave to appeal is not to allow for correction of ordinary errors committed by the lower courts, unlike an appeal as of right. The applicant seeking leave to appeal has a heavy burden and will have to fulfill the threshold requirements provided under section 96 of the Court of Judicature Act 1964.
The Federal Court also held that there is a further consideration of the prospect of success of the intended appeal, in that even if the points of law framed by the applicant fall within the ambit of section, it has to show a prima facie case for success.
In relation to applications for review by the Federal Court, it would only review an earlier decision of the Federal Court if the decision falls within the limited grounds and very exceptional circumstances as explained in Asean Security Paper Mills Sdn Bhd v Mitsui Sumimoto Insurance (Malaysia) Bhd [2008] 6 CLJ 1 such as:
- where there was a lack of quorum or where the applicant had been denied the right to have his appeal heard on merits by the appellate court; or
- where the decision had been obtained by fraud or suppression of material evidence; or
- where the court making the decision was not properly constituted, was illegal or was lacking jurisdiction; or
- where there is clear infringement of the law; or
- where an applicant applying to the Federal Court for a review of its decision has not been heard by the Federal Court and yet, through no fault of his, an order was inadvertently made as if he had been heard; or
- where bias had been established; or
- where it is demonstrated that the integrity of its earlier decision had been critically undermined; or
- where the Federal Court allows an appeal which should have been consequentially dismissed because it accepted the concurrent findings of the High Court and Court of Appeal.
For further information, please contact:
Marinah Rahmat , Shearn Delamore & Co
marinah.rahmat@shearndelamore.com
