Case Review Law of Tort

TRESPASS TO LAND BUKIT LENANG DEVELOPMENT SDN BHD v. TELEKOM MALAYSIA BHD & ORS [2012] 1 CLJ FACTS The accuser forfeitured a fix from Oakfield Enterprises Sdn Bhd through a sale and forfeiture covenant dated 15 May 1996. The accuser was cognizant at that age of the influence of squatters on the fix. Following the said forfeiture, the accuser commenced eviction proceedings abutting the squatters and succeeded in obtaining penetration where the pursue classifyed that the squatters relinquish leisure encroachment of the theme fix to accuser. The accuser’s petitioners insisted that abandon prisoner demur provide of electricity and transfer all structures in affinity delay the provide by message dated 28 April 2004. Accuser adduces a assist due to abandon prisoner’s disapproval to concede delay the insist. The guiltlessness instruction, notwithstanding, argued that abandon prisoner could not be held unlawful for transgression in apprehension of its statutory duty beneath the Electricity Provide Act 1990 (ESA), and the accuser had failed to separate between the lots owned by the accuser and the quiet of the fix. ISSUES 1. Whether abandon prisoner's need to concede delay accuser's insist to demur provide of electricity and transfer structures in accuser's fix can be amounted to transgression to fix? 2. Whether abandon prisoner unlawful for transgression to a incontrovertible size? JUDGMENT 1. The High Pursue had end to a omission that the abandon prisoner unlawful for transgression to the size of provideing electricity to lawful occupants in accuser's fix. The illawful occupants did not keep the warrant to concede TNB as licensee to establish any structures on the fix of its cables or wires to run aggravate the accuser’s lots which would be transgression. A efficient and safe High Pursue classify declaring the occupants’ condition as squatters or transgressioners had been served on abandon prisoner and they had to concede delay the accuser’s insist to demur provide of electricity premised on a efficient and enforceable classify. Second prisoner as a notorious benefit provider had failed to abolish the transgression when due note of illawful encroachment had been absorbed. 2. Accuser had vide its petitioners’ message of 28 April 2004 put abandon prisoner to note that the pursue had resolute that the occupiers on the accuser's fix who had been replete electricity were transgressioners and the lot mass owned by the accuser were replete. The guiltlessness excited there was no averment of any acceptance from abandon to the property that the accuser’s lots could not be identified from the undiminished frforce of fix. The occupants substance squatters were strangers to the accuser since abandon prisoner was in encroachment of archives showing their identities and colony of the households that had electricity provide. Hence, the offspring of non-identification or limitation of the accuser’s lots did not initiate in this fact. 3. So, abandon prisoner were held unlawful for transgressioning accuser's fix by placing cables and wires to run aggravate accuser's lots and so by provideing electricity to illawful occupants in accuser's fix. COMMENTARY I acquiesce on interest of High Court's firmness where abandon prisoner (Telekom Malaysia Bhd) should be unlawful for transgressioning into accuser's (Bukit Lenang Development Sdn Bhd). This is owing they had been apprised prior by accuser's petitioner to demur provide of electricity and transfer all structures in affinity delay the provide by message dated 28 April 2004 but they tranquil failed to do so. They so comprehend that the persons they are provideing the electricity are illawful occupants of accuser's fix. From a lawful apprehension, well-mannered-balanced by placing bigwig on other's fix and remain the act would be considered as transgression to fix. So, abandon prisoner had transgression accuser's fix intentally as they were apprised prior to concede delay it. Furthermore, abandon prisoner's force of provideing electricity to the illawful occupants is treasured as felonious by ling and conspires delay them to fill accuser's fix unfairly. Therefore, in purposel apprehension, they should abandon from doing so. In omission, High Court's firmness that abandon prisoner unlawful for transgressioning accuser's fix is sound. PASSING OFF DANONE BISCUITS MANUFACTURING (M) SDN BHD V. HWA TAI INDUSTRIES BHD [2010] 8 MLJ 500 FACTS In forthcoming April 2001, the Accuser discovered that the prisoner, Hwa Tai Industries Bhd, had been manufacturing and selling chocolate scrap cookies aspect the tradetrace “Chipsplus”. The accuser following requested that the prisoner demur the molding and sale of cookies aspect this trademark, on the basis that the trademark, as well-mannered-mannered as get-up and packaging of the fruit, were confusingly common to their registered “ChipsMore” trace. However, the prisoner refused to do so, and as such, the accuser sued the prisoner for tradetrace breaking and cessation off. The accuser argued that the prisoner’s “Chipsplus” tradetrace infringed upon its registered trademark, period the common get-up and packaging of the cookies amounted to the prisoner cessation off its “Chipsplus” cookies as the Plaintiff’s “ChipsMore” cookies, and this affected their concern, cast and beneficence in Malaysia. The prisoner notwithstanding robbed the accuser’s pretensions, and prefer contended that the “ChipsMore” registration had lapsed, and was hence feeble. ISSUES 1. Whether Hwa Tai Industries Bhd is unlawful for cessation off prisoner's chocolate scrap cookies "ChipsMore" trademark? JUDGMENT 1. It was held that the prisoner’s trace “CHIPSPLUS” used on chocolate scrap cookies were to adduce fruit in indistinctness to the notorious as the trace “CHIPSPLUS” and the Plaintiff’s registered trace for “CHIPSMORE” for the identical fruit are conceptually common. The pursue set that the prisoner was unlawful for breaking owing the accuser had a registration certificate and enjoyment certificate evidencing a efficient trademark, and the Accuser had not absorbed the prisoner sufferance to use their trademark. Furthermore, as “Chipsplus” was common to “ChipsMore”, there was a possibility of indistinctness or falsity amongst the notorious. Pursue set in the accuser’s favour and concedeed the accuser’s pretension for breaking and cessation off. COMMENTARY I am abutting the firmness made by the pursue as the trace 'CHIPSPLUS' used by prisoner was affect narrowly to use the account 'CHIPSPLUS' to prefer their new cookies fruits delay extra and appended scraps and it is not inevitable to argue that the account 'CHIPSPLUS' can be used by accuser merely. Other moldingrs can keep immunity to use any alienate account as mark for their fruits as crave as it does not entirely repeat other moldingr's fruit mark. Accuser possibly has the purpose to prefer their scraps cookies by using the 'CHIPSPLUS' account too and not keep the intent to ignoring off prisoner's trademark.