Case Review Law of Tort

TRESPASS TO LAND BUKIT LENANG phylogenesis SDN BHD v. TELEKOM MALAYSIA BHD & ORS 2012 1 CLJ FACTS The complainant purchased a reduce from Oakfield Enterprises Sdn Bhd through a barter and purchase conditionment go out 15 May 1996. The complainant was aw ar at that time of the presence of squatters on the land. hobby the said purchase, the plaintiff commenced eviction minutes against the squatters and succeeded in obtaining judgment where the court consistent that the squatters surrender vacant possession of the contentedness land to plaintiff.The plaintiffs solicitors commanded that minute of arc suspect forgo supply of electrical energy and pull out all structures in fellowship with the supply by letter date 28 April 2004. plaintiff brings a campaign delinquent to instant defendants refusal to approve with the crave. The defence counsel, however, argued that trice defendant could non be held unresistant for intrusion in view of its statutory liab ility under the Electricity Supply exploit 1990 (ESA), and the plaintiff had failed to distinguish between the loads owned by the plaintiff and the perch of the land.ISSUES 1. Whether bite defendants failure to comply with plaintiffs demand to cease supply of electrical energy and remove structures in plaintiffs land can be amounted to trespass to land? 2. Whether stake defendant liable for trespass to a authoritative cessation? JUDGMENT 1. The spirited judicature had come to a conclusion that the warrant defendant liable for trespass to the extent of supplying electrical energy to legal occupants in plaintiffs land.The flagitious occupants did not fool the potentiality to allow TNB as licensee to place whatever structures on the land of its cables or wires to pass along over the plaintiffs oodles which would be trespass. A valid and subsisting High tap order declaring the occupants status as squatters or trespassers had been served on bet on defendant and they had to comply with the plaintiffs demand to cease supply of electricity premised on a valid and enforceable order.Second defendant as a public benefit provider had failed to discontinue the trespass when due notice of illegal occupation had been addicted. 2. complainant had vide its solicitors letter of 28 April 2004 put arcminute defendant to notice that the court had located that the occupiers on the plaintiffs land who had been supplied electricity were trespassers and the big money numbers owned by the plaintiff were supplied. The defence raised there was no evidence of any response from second to the effect that the plaintiffs hemorrhoid could not be identified from the built-in piece of land.The occupants being squatters were strangers to the plaintiff whereas second defendant was in possession of records demo their identities and location of the households that had electricity supply. Hence, the issue of non-identification or demarcation of the plaintiffs oodles did not arise in this case. 3. So, second defendant were held liable for violate plaintiffs land by placing cables and wires to run over plaintiffs lot and also by supplying electricity to illegal occupants in plaintiffs land.COMMENTARY I agree on behalf of High Courts conclusion where second defendant (Telekom Malaysia Bhd) should be liable for breach into plaintiffs (Bukit Lenang Development Sdn Bhd). This is because they had been informed earlier by plaintiffs solicitor to cease supply of electricity and remove all structures in link with the supply by letter dated 28 April 2004 but they still failed to do so. They also know that the people they are supplying the electricity are illegal occupants of plaintiffs land.From a legal view, even by placing something on others land and continue the toy would be considered as trespass to land. So, second defendant had trespass plaintiffs land purposely as they were informed earlier to comply with it. Furthermore, second defendants action o f supplying electricity to the illegal occupants is regarded as im honorable by abetting and conspires with them to occupy plaintiffs land illegally. Therefore, in moral view, they should avoid from doing so. In conclusion, High Courts finding that second defendant liable for tres leaving plaintiffs land is reasonable.PASSING OFF DANONE BISCUITS MANUFACTURING (M) SDN BHD V. HWA TAI INDUSTRIES BHD 2010 8 MLJ 500 FACTS In early April 2001, the plaintiff discovered that the defendant, Hwa siamese connection Industries Bhd, had been manufacturing and selling deep brown chip cookies bearing the trade mark out Chipsplus. The plaintiff subsequently requested that the defendant cease the manufacture and sale of cookies bearing this trademark, on the basis that the trademark, as well as get-up and packaging of the product, were confusingly similar to their registered ChipsMore mark.However, the defendant refused to do so, and as such, the plaintiff sued the defendant for trademark infringe ment and passing morose. The plaintiff argued that the defendants Chipsplus trademark infringed upon its registered trademark, eon the similar get-up and packaging of the cookies amounted to the defendant passing off its Chipsplus cookies as the Plaintiffs ChipsMore cookies, and this affected their business, reputation and goodwill in Malaysia.The defendant however denied the plaintiffs chooses, and further contended that the ChipsMore fitting had lapsed, and was therefore invalid. ISSUES 1. Whether Hwa Tai Industries Bhd is liable for passing off defendants coffee bean chip cookies ChipsMore trademark? JUDGMENT 1. It was held that the defendants mark CHIPSPLUS used on chocolate chip cookies were to bring takings in confusion to the public as the mark CHIPSPLUS and the Plaintiffs registered mark for CHIPSMORE for the same product are conceptually similar.The court found that the defendant was liable for infringement because the plaintiff had a registration certificate and rene wal certificate evidencing a valid trademark, and the Plaintiff had not given the defendant permission to use their trademark. Furthermore, as Chipsplus was similar to ChipsMore, there was a speculation of confusion or deception amongst the public. Court found in the plaintiffs favour and allowed the plaintiffs claim for infringement and passing off. COMMENTARYI am against the decision made by the court as the mark CHIPSPLUS used by defendant was like merely to use the backchat CHIPSPLUS to promote their new cookies products with extra and additive chips and it is not necessary to prove that the phrase CHIPSPLUS can be used by plaintiff only. Other manufacturers can have freedom to use any separate word as label for their products as long as it does not altogether imitate other manufacturers product label. Plaintiff maybe has the idea to promote their chips cookies by using the CHIPSPLUS word too and not have the intention to pass off defendants trademark.