Nurul Husna Binti Ismail v Sonobee Ultrasound Sdn Bhd

Case Significance

Confirms that leave to appeal under section 68(1)(a) of the Courts of Judicature Act 1964 requires a prima facie case of error, and that a speculative allegation of illegality unsupported by any legal basis will not displace an otherwise valid contract or found the doctrine that the whole agreement is void.

This Court of Appeal decision concerns an application for leave to appeal to the Court of Appeal under section 68(1)(a) of the Courts of Judicature Act 1964, arising from a dispute over an apprenticeship contract in the ultrasound field. The applicant, who had been the plaintiff below, sought leave on three questions of law. The first was whether an apprenticeship programme said to permit unqualified individuals to operate regulated medical devices, in breach of the Medical Device Act 2012 and the Medical Act 1971, was illegal and void for being contrary to public policy under section 24 of the Contracts Act 1950. The second was whether the High Court had erred in applying the doctrine of severance to an apprenticeship contract said to be tainted by illegality instead of holding the entire contract void and unenforceable, engaging section 66 of the Contracts Act 1950. The third concerned misrepresentation. The Court examined whether a prima facie case of error had been shown sufficient to justify granting leave, and answered each question against the applicant. It held that the suit was, in substance, speculative: there was no legal basis for the alleged illegality of the apprenticeship agreement, and the court does not act on speculation or read into a contract a restriction or legal position that is not there to begin with. The impugned contract was valid for the purpose for which it had been entered into, so there was no legal infirmity barring the application of the doctrine of severance, and the misrepresentation ground fared no better. Finding no prima facie case of error in the decision below, the Court refused leave to appeal. The decision underscores that the leave requirement is a substantive filter, not a formality: an intending appellant must point to a real and arguable error in the judgment below, and cannot obtain a further hearing by advancing questions of law that are untethered from the facts as found or that assume an illegality the record does not support.