Read these cases:

1. Pendaftar dan Pemeriksa Kereta Motor, Melaka v KS South Motor Sdn Bhd [2000] 2 MLJ 540
2. Uniphone v Chin Boon Liat [1998] 6 MLJ 441
3. MPAJ v Stephen Phoa Cheng Loon [2006] 2 MLJ 389
(a) Have a general consensus first and foremost, on the gist of the facts in these cases.

1. Pendaftar dan Pemeriksa Kereta Motor, Melaka v KS South Motor Sdn Bhd [2000] 2
MLJ 540

The respondent, who is based in Muar, Johor, are in the business of buying and selling motor
vehicles both new and used ones. On 8 July 1980, the respondent was approached by two
brokers who were anxious to sell a second hand Mercedes-Benz 240D ('the car') to the
respondent. The car was registered in the name of one Tay Boon Kok ('Tay') and it bore a
registration number, MF9857. The respondent took up the offer of purchasing the car from Tay
after satisfying themselves that all the particulars given in the registration book issued by the
first appellant appear to be in order. The respondent were also informed that the RIMV file
pertaining to the car had already been transferred to the second appellant. The purchase price
of the car was agreed at RM25,000 and after Tay had signed the necessary transfer forms, the
respondent took possession of the car, paid Tay RM4000 by way of a deposit with the promise
to pay the at 544 balance of RM21,000 once the car was registered by the second appellant in
the respondent's name.That same day, the respondent's clerk took all the documents signed by
Tay including the registration book to the second appellant with a view to having the car
transferred and registered into the respondent's name. The particulars in the documents
produced by the respondent were verified with the relevant file traced and produced by the
second appellant and after making a payment of RM20, the second appellant endorsed the
registration book with the respondent's name as the new owner of the car. As the car was
purchased for the sole purpose of reselling it at a profit, the respondent found a ready buyer,
two weeks later in the person of one Su Yong Hing ('Su') who purchased it at RM29,500 on 23
July 1980. The car was duly registered in Su's name with the ownership claimed by Public
Finance Bhd; as the latter had financed the purchase. Seven months later, sometime in
February 1981, the police informed the respondent that the car was a stolen car as it was
reported missing in Petaling Jaya on 26 June 1980. As the police demanded its surrender, the
respondent, with the assistance of Su did so. Police investigations revealed the following facts
i.e. the false registration number of the car, that such registration number was that of a motor
vespa, the allotted registration number was created in the first appellant’s office and such
registration book contains false information as to their ownership.

2. Uniphone v Chin Boon Liat [1998] 6 MLJ 441

The plaintiff was a manufacturer and operator of public telephones using telephone cards. The
first and second defendants were the editor and the proprietor of a newspaper called 'New Life
Post' ('the Post'). The defendants published an article ('the article') in the Post which narrated in
detail a method by which discarded telephone cards were used to make free phone calls from
public telephone booths. Whilst admitting to the truth of the contents of the article, the plaintiff
contended that the defendants had by the publication breached their duty of care to the plaintiff
causing damages to the latter. The plaintiff further alleged that the defendants ought to
reasonably foresee the loss that would be suffered by the plaintiff by the publicaiton of the
article. On the other hand, the defendants submitted that they owed no duty of care to the
plaintiff and that the publication was grounded on public interest.

3. MPAJ v Stephen Phoa Cheng Loon [2006] 2 MLJ 389

The Highland Towers consisted of three blocks of apartment known as Blocks 1, 2 and 3
situated on Lots 494, 495 and 635 Mukim Hulu Klang. On 11 December 1993, a landslide
occurred resulting in the collapse of Block 1 and the subsequent evacuation of the respondents
from Blocks 2 and 3. After the collapse of Block 1, the local authority MPAJ (the appellant)
promised the respondents that a master drainage plan for the affected area on the hill slope
behind Highland Towers would be formulated and implemented so as to ensure the stability and
safety of the adjacent Blocks 2 and 3 occupied by the respondents. However, MPAJ failed to
carry out the plan.

(b) In Pendaftar, identify the elements of foreseeability and proximity between the parties, as
held by the court.
• That it was foreseeable that the respondent who relied on the forged document to suffer
losses.
• The Pendaftar is the public authority and the KS Motor is the consumer.

(c) Applying the “duty test” explain the court’s finding on whether imposing a duty on the public
authority was fair or unfair.
• It is unfair and unreasonable to expect the first and second appellants to vouchsafe the
correctness and accuracy of any particular matter in the register maintained by them. This is
particularly so as on the facts of this appeal they were not the authors of the inaccurate
particulars appearing in the file records. Expressed in another way although there is a duty to
keep a register there is no duty to maintain a true and proper one.
• The presiding judge now believed that the duty that is sought to be imposed on the first and
second appellants is the duty to take care that all information given by them to a paying class of
persons who seek that information, is accurate to enable that class of persons to conduct
private and commercial transactions in relation to the particular vehicle on which the information
is sought. In other words the duty to take care is owned to an aggrieved party and not to the
public at large.

(d) In MPAJ the local authority as the public authority was held not liable. What was the issue
surrounding foreseeability and proximity in these two cases? Can you reconcile these two
decisions? (Spend some time analysing the similarities and differences between these cases)
• The judge, analysing the facts of the case, believe that it is unfair to impose a duty of care on
MPAJ or other local councils in this country in similar situations with that of New Zealand.
• It is also not fair, just and reasonable that the taxpayers' money be utilised to pay for the
'debts' of such people.

(e) Discuss the grounds of the Federal Court decision in MPAJ. What are the significant points
which formed the basis of the decision?
• In this case, the question was, considering the public policy and local circumstances, was it
fair, just and reasonable to impose a liability on MPAJ, a local authority, for pure economic loss
to the plaintiffs for its failure (so far) to come up with and implement the promised drainage
master plan or to stabilize the hill slop on neighbouring Arab Malaysian land to ensure that no
accident of the kind that caused the collapse of Block 1 would occur to Blocks 2 and 3. On the
facts and in the circumstances of this case, it was not fair, just and reasonable to impose such a
burden on MPAJ or other local councils in this country in similar situations.
• For the same reasons too, the claim for loss due to vandalism and theft by the respondents
which was allowed by the learned trial judge should not be allowed

(f) Referring to Uniphone, what is different about the issues arising in this case? Is there a moral
element in the judgement – and what would this be?

• The issue of foreseeability of the loss

• The issue of whether the defendant owed a duty of care towards the plaintiff.
• The tort of negligence ought not to restrict the freedom of speech, and restrain publishing
statements which are true. It ought not to be the law that a person cannot make a statement
which is true if it is foreseeable that the making of that statement