Articles

PUTRAJAYA (March 11): A three-member Court of Appeal (COA) bench on Monday upheld a RM46 million summary judgment obtained by Minister of Finance-owned Perbadanan Nasional Bhd (Pernas) from the Kuala Lumpur High Court against Serba Dinamik Holdings Bhd group managing director Datuk Dr Mohd Abdul Karim Abdullah and two former senior executives of Serba Dinamik subsidiaries.

KUALA LUMPUR (Feb 29): The Court of Appeal (COA) reversed a decision of the High Court, which dismissed the judicial review application of a man challenging the decision of the director general of industrial relations (DGIR) that closed his file without referring to the Industrial Court.

KUALA LUMPUR (Oct 6): The Court of Appeal has allowed an appeal by Lord-WBK Haulage Sdn Bhd against Shell Malaysia Sdn Bhd, overturning a High Court decision last year which awarded Shell RM6.65 million from the haulage company.

THE wait for the completion of the Empire Remix 2 project in USJ1 Subang Jaya, Selangor, which has been renamed Edumetro, is finally over. Purchasers were informed in late May by HCK Capital Group Bhd — which had stepped in to rescue the project when it ran into trouble in 2019 — that the keys to their units were ready for collection

KUALA LUMPUR (July 4): The High Court has, in a landmark decision, set aside the corporate voluntary arrangement (CVA) by True Renaissance Development Sdn Bhd for the Empire Remix abandoned project in Subang Jaya.

This is the first decision made on a CVA that has been challenged in court.

Judge Ahmad Murad Abdul Aziz delivered his broad grounds for setting aside the CVA. In arriving at his decision, the court considered that the powers of the court cannot be ousted with the use of a Federal Court’s decision in the Semenyih Jaya case as a precedent for this.

The Federal Court had upheld the decision of the Court of Appeal that the advocates and solicitors disciplinary board must give lawyers notice and the opportunity to be heard before it metes out punishment on them.

KUALA LUMPUR (Jan 4): A group of buyers have applied for leave to intervene in the court-sanctioned corporate voluntary arrangement (CVA) for the Empire Remix abandoned project in Subang Jaya.

Ranjan Chandran, the lawyer for the 36 buyers who are seeking to be interveners to oppose the CVA, submitted on Wednesday (Jan 4) that the CVA was usually intended for ailing companies and not for abandoned developments.

EVEN as the overall property market in Malaysia remains sluggish, prime land and assets in Kuala Lumpur are selling like hot cakes — well, at least in the virtual realm. Investors are buying “land” and “buildings” like Suria KLCC, The Pavilion Mall, The Exchange 106, Merdeka 118 and the Bukit Jalil Stadium, as well as the surrounding parcels of land, in the hope that these assets will have utility in the future and like tangible property assets, will one day appreciate in value.

The trial court granted the consequential order in order to give effect to its judgment that would otherwise be rendered nugatory. Stone World appealed to the Court of Appeal, which upheld the High Court order.

Stone World initiated a fresh suit in the High Court seeking to impeach the consequential order on the grounds that the High Court had no jurisdiction to grant such an order as it was at the time, functus officio.

In a recent decision of the High Court in the case of Leong Keng Chiang V Prema Bonanza Sdn Bhd 2021 MLJU 714, the court considered the issue of modifying and varying the completion period of a subject project governed by Schedule H of the Housing Developers Control (Licensing) Act 1966 (‘HDA 1966’). The court further considered the issue of the Settlement Letters signed by the Purchasers in the acceptance of the Liquidated Ascertained Damages (‘LAD’) and whether there is a bar and/or estoppel and/or waiver from claiming further LAD.

This write up considers the very recent Federal Court decision in the case of Ong Leong Chiou & Anor V Keller (M) Sdn Bhd & Ors 2021 1 LNS 301 the Judgment of Nallini Pathmanathan FCJ.

This Write-Up considers the recent decision of the Court of Appeal in the case of Jagdis Singh Banta Singh & Anor V Retuen Green Sdn Bhd 2021 3 CLJ 355 on an application for the Removal of a Court appointed Liquidator pursuant to S.482 (b) of the Companies Act 2016.

This Write-Up considers the recent decision of the High Court in the case of Kok Chay Har & Ors v BH Realty Sdn Bhd 2021 1 LNS 13 (‘Kok Chay Har’) the Judgment of the Learned Judicial Commissioner Quay Chew Soon, which has agreed with the decision of another High Court in the case of Alvin Leong Wai Kuan & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Ors 2020 6 CLJ 55, the Judgment of the Learned High Court Judge Wong Kian Kheong J, that the Federal Court case of Ang Ming Lee & Ors V Menteri Kesejahteraan Bandar Perumahan, Dan Kerajaan Tempatan & Anor Appeals (2020) 1 CLJ 162 (‘Ang Ming Lee’) has a retrospective effect.

THE next time you take vacant possession (VP) of your new home, you may want to thoroughly check that the property is indeed what you paid for. And if it is not exactly what was specified in the sale and purchase agreement (SPA), it would be best not to commence any work on it, especially if you plan to turn to the Tribunal for Homebuyer Claims for recourse.

DEVELOPERS may not be in such a rush to collect booking fees in the future following a recent Federal Court ruling that not only is such a practice expressly prohibited by the law, but perhaps more crucially, that the calculation for late delivery of a house commences from the date a booking fee is paid, and not when the sale and purchase agreement (SPA) is signed.

KUALA LUMPUR (Jan 22): The High Court had on Wednesday allowed an application by the Avenue K Joint Management Body (JMB) and K Residence to set aside an earlier decision by the court for the JMB to be declared invalid and its resolutions passed be declared null and void.

This Write-Up considers the recent decision of our High Court in the case of PERBADANAN PENGURUSAN 3 TWO SQUARE V 3 TWO SQUARE SDN BHD 2020 1 LNS 1377

In the above recent decision, the Court of Appeal considered the setting aside of a Judgment in Default and the leave for extension of time that was sought to file a Memorandum of Apperance and Statement of Defence. The relevant provision that the Court considered was Order 13 Rule 8 Rules of Court 2012 where the Court is vested with the discretion to set aside or vary any Judgment entered on such terms as the Court deems fit.

In a recent decision of the High Court in the case of L&S Cosmetics and Toiletries (M) Sdn Bhd V Prudential Clinic Care Sdn Bhd 2020 10 CLJ 206 (‘L&S Cosmetics’), the Court considered the issue of placement of documents in Part A instead of Part B.

C P Tan owns apartments in several buildings located in Kuala Lumpur. He rents out these strata units on a short-term basis and uses the income to service his loan but is now worried about whether he can continue the practice.

“It is said that bad things come in threes. As it is, the economy was already slowing down before the last election and we now have an unstable government. Because of Covid-19 and its domino effect on the travel-related industry, I am no longer getting tenants like before. Now, this decision by the Federal Court may encourage other buildings to also ban short-term rentals.”

This Write-Up considers the recent decision of the Federal Court, in the case of Lai King Lung & Anor v Merais Sdn Bhd [2020] 9 CLJ 449 (“Lai King Lung”) the Judgment delivered by Vernon Ong FCJ on 20th July 2020 where the Federal Court addressed the following Questions of Law:-

Management Corporations of residential strata buildings are now empowered through their own house rules to bar short-term rentals of units in their buildings.

The Federal Court in Innab Salil & 3 Ors v Verve Suites Mont’ Kiara Management Corporation [2020] 1 LNS 1131 decided in favor of Verve Suites Mont Kiara Management Corporation in respect of the enactment of House Rule No 3, which was passed by an overwhelming number of resident present and voting during an extraordinary general meeting to prohibit the use of the residential units in Verve Suites for business including short-term rental.

The recent High Court decision of Alvin Leong Wai Kuan & Ors V Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Ors And Other Applications [2020] 6 CLJ 55 (“Alvin Leong”) held that the Federal Court in Ang Ming Lee & Ors V. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162 (“Ang Ming Lee”) had not expressly ruled that its decision could only have prospective effect. Therefore, in accordance with the general rule (a written judgment has retrospective effect), the judgment in Ang Ming Lee has retrospective effect.

The recent Court of Appeal decision of Yeo Eng Lam v Infinity Vantage Sdn Bhd [2020] 6 CLJ 616 (“Infinity Vantage”) concerns the “any other steps in the proceedings” provision of Section 10(1) of the Arbitration Act 2005.

The recent Court of Appeal decision of Sri Damansara Sdn Bhd v Voon Kuan Chien & Anor [2020] 5 CLJ 619 (“Sri Damansara”) stems from the question as to whether the calculation for late delivery of vacant possession (“VP”) claim should commence from the date the booking fee was paid or from the date of the Sale and Purchase Agreement (“SPA”).

The Appellant, Sri Damansara Sdn Bhd (“the Developer”) appealed to the Court of Appeal against the decision of the High Court that had dismissed its Judicial Review Application.

The recent Court of Appeal decision of CT Indah Construction Sdn Bhd v BHL Gemilang Sdn Bhd [2020] 1 CLJ 75 ensures that a subcontractor is guaranteed of their payment for work done by the mechanism of direct payment from the employer/developer to the sub-contractor pursuant to Section 30 of Construction Industry Payment and Adjudication Act 2012 (“CIPAA”).

The recent High Court decision of Goldpage Assets Sdn Bhd v Unique Mix Sdn Bhd [2020] MLJU 723 (“Goldpage Assets”) stems out of four applications to intervene by Gam Kam Sheng and twenty-seven (27) others; Tee Ah Kiat and two (2) others; Plusbury Sdn Bhd; and Unique Mix Sdn Bhd. The contention was that neither of the Proposed Interveners had the locus standi to appear at a hearing of an application to oppose a Judicial Management order (“JMO”)

A recent decision of the Federal Court, Tee Siew Kai v Machang Indah Development Sdn Bhd (in liquidation) [2020] 4 CLJ 841 (“Tee Siew Kai”) dated 07.02.2020 was delivered by Nallini Pathmanathan FCJ where the Federal Court addressed the following Question of Law:-

“Whether a party who is neither a creditor nor a contributory of a Wound-Up company is entitled to obtain leave to sue the liquidator of the Wound-Up Company, in his personal capacity, for losses allegedly suffered by the said party arising from an alleged breach of the joint venture agreement and/or power of attorney entered into between the said party and the Wound-Up Company.”

Claims and payments of Liquidated Ascertained Damages (“LAD”) in a Housing Development context have become very contentious in recent years. In the current COVID-19 pandemic and as we come to the conclusion of the current Conditional Movement Control Order, it is very likely that Developers are going to face a tough time completing Housing Development projects within the stipulated contractual period.

The proposed Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Bill 2020 (“2020 Coronavirus Bill”) has been tabled in Parliament for first reading. Of the many proposals contained in the 2020 Coronavirus Bill, the pertinent clause that modifies the Housing Development (Control and Licensing) Act 1966 (“HDA 1966”) is Clause 2 of the 2020 Coronavirus Bill

The modifications vis-a vis the HDA 1966 is specified under Part XI of the 2020 Coronavirus Bill.

In the recent decision of our Federal Court in the case of Ahmad Zahri Mirza Abdul Hamid v AIMS Cyberjaya [2020] 6 CLJ 557 (“AIMS Cyberjaya”), the Court endorsed group enterprise as a valid ground under general law to pierce the corporate veil.

A recent decision of the Federal Court, Dubon Berhad (in liquidation) v Wisma Cosway Management Corporation [2020] 6 CLJ 589 (“Dubon Berhad”) dated 21.05.2020 was delivered by Nallini Pathmanathan FCJ where the Federal Court addressed the following Question of Law:-

“Whether the right of a Joint Management Body or a Management Corporation to collect and receive payment from a proprietor under sections 33 and 77 of the Strata Management Act 2013 respectively, gives it a lawful preference as a secured creditor over the assets of a company in liquidation?”

The much awaited The Temporary Measures for Reducing The Impact of Coronavirus Disease 2019 (Covid-19) Bill 2020 was tabled in the Dewan Rakyat last week, but it contains some inconsistencies at least the part related to the duration of the moratorium in relation to landlords and tenants of any premises, be it malls or dwellings.

Lawyer Ranjan N Chandran, a commercial and construction partner at Hakem Arabi & Associates, tells The Edge that he is perplexed by Clause 29, Clause 30 and Clause 31 of the Modification to The Distress

Bukit Melita Sdn Bhd (“the 1^st Defendant”) sold 3 pieces of Land to the Revolusi Rancak Sdn Bhd (“the Plaintiff”). The 1st Defendant, without the consent of the Plaintiff, unilaterally amended the Sale and Purchase Agreement (“SPA”) and at the same time, accepted and encashed the cheques issued by the Plaintiff as earnest deposit to confirm that the SPA had been agreed upon by both parties.

In February, a house buyer, who only wants to be known as Ong, inked an agreement with a reputable listed property developer to purchase a landed residence in Shah Alam, Selangor.

He wanted a bigger home to house his growing family. But now, four months later, he is worried that the near three-month halt in construction activities due to the Movement Control Order (MCO) will cause a delay in delivery of vacant possession of his property.

THE Covid-19 global pandemic and ensuing Movement Control Order (MCO) in Malaysia have resulted in many businesses shutting down because of financial distress. Many more are expected to close as business is unlikely to return to normal any time soon.

The COVID-19 Pandemic has raised much concern to claimants on their prospects of recovery from a company where legal action/court proceedings has been commenced. This skepticism and apprehension of the claimants cannot be faulted as many ailing companies may face winding-up actions in the current and post COVID-19 Pandemic period.

The Government, rightfully, has taken a very clear stand that during this COVID-19 outbreak, all day-cares have to close their operations. This has caused a mayhem for parents and for the centres. Parents, who now have to work from home, have to juggle between parenting and working from home. On the other hand, the day-care has to weigh between the Government’s orders and its need to survive financially. The question in everyone’s mind is whether the parent is obliged to pay the fees for the time out period.

More than seventy countries have declared some form of national level curfew and/or lockdown ever since the World Health Organization (“WHO”) declared COVID-19 a pandemic . We are living in unprecedented times as billions of people Worldwide have their movements restricted.

The discussion under this chapter will be focused on the rights and entitlement of the employees under the employment law and contract. The lockdown has come with its economic consequences in our country, the business across the world are also experiencing unprecedented predicament including issues related to the employment. By considering this current predicament, we endeavour to provide our understanding of some common issues arising out of COVID-19 which may help the employers in taking a concerned approach in dealing with their employment related matter.

Since the earlier Write-Up titled “The Consequence of Malaysia’s Companies (Exemption) (No. 2) Order 2020”, the Minister of Domestic Trade and Consumer Affairs has exercised the powers afforded to him under Section 466(1)(a) of the Companies Act 2016 (“CA”).

On 10th April 2020, as Malaysians were adhering to the Movement Control Order (“MCO”) imposed by the Government pursuant to the Prevention and Control of Infectious Diseases 1988 and Police Act 1967, the Companies Commission Malaysia (“CCM”) announced temporary reliefs for companies which was very much welcomed by the business and commercial community.

Business owners are in a state of shock and dilemma ever since the World Health Organization declared the Coronavirus disease (“COVID-19”) a pandemic on 11th March 2020. To make matters worse, there has been a permanent closure and standstill to their business due to the Movement Control Order (“MCO”) by the Malaysian Government from 18th March 2020 and two (2) extensions thereafter to contain the spread of the virus.

Joe, a retailer who operates a store in one of the leading malls in the Klang Valley, is worried about his business. He does not see a recovery in sight for at least another year.

"The situation was already bad even before the Movement Control Order (MCO), We started to notice far fewer cars parked at the mall in January and February and our customer traffic dropped by 40% to 50%. Following the MCO, I don't see people returning to the mall like they did before for at least another year,"

It has been a month since the Coronavirus disease (“COVID-19”) was declared a Pandemic by the World Health Organization (“WHO”). There have already been two Movement Control Orders (“MCO”) imposed by the Government pursuant to the Prevention and Control of Infectious Diseases Act 1988 and a third already in place crippling business activities for almost 2 whole months. Barring any further extensions, various business owners would have lost six (6) weeks-worth of income, which is approximately 11.5% of their annual earnings.

Just as a Malaysian Law Practitioner sat down to enjoy a cup of Tea and read his/her copy of the third volume of the Current Law Journal after a horridmorning in Court, he/shewould have been relieved to see a relatively short two-page Judgment of our then Supreme Court in Faber Union Sdn Bhd v Chew Nyat Shong & Anor (“Faber Union”)¹ which had very informative headnotes as follows:

Ever since the World Health Organization (“WHO”) declared Coronavirus (“COVID-19”) a pandemic on 11 March 2020 and the Malaysian Government enforced the Movement Control Order (“MCO”) pursuant to the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967 from 18 March 2020, many common business owners have been concerned on the tough times that lie ahead in fulfilling their contractual obligations and/or contractual covenants.

Class action is generally known as Representative action in Malaysia.

Class action is filed where numerous persons have similar interest in a contemplated Court proceedings to be filed.

When the news broke Thursday that the Court of Appeal had awarded 120 former workers of the Padang Meha Hup Seng Estate the sum of RM3.3 million based on a settlement agreement dating back to 1995, National Unity Minister P Waythamoorthy was elated.

Displaced Padang Meha estate workers win RM3.3mil settlement from MBF Court of Appeals rules in favour of 120 appellants who fought case for decades.

Today will be a day of destiny for 120 former workers of the Padang Meha Hup Seng Estate, who have waited 23 years for their termination, layoff, ex-gratia and housing benefits.

KULIM: The 23-year wait by 206 former workers of Padang Meiha Estate finally ended when they received the first part of three compensations promised by the estate's former management.

KULIM, 10 Jun (Bernama) -- Penantian 206 bekas pekerja estet Padang Meiha selama 23 tahun berakhir apabila menerima pampasan pertama daripada tiga pampasan yang dijanjikan bekas pengurusan ladang.

KULIM - Penantian 187 bekas pekerja ladang estet Padang Meiha sejak lebih 23 tahun berakhir apabila menerima sebahagian pertama daripada tiga pampasan yang dituntut.

PETALING JAVA: The High Court has dismissed an application by the World Triathlon Corporation (WTC) to stay proceedings of a claim filed by SRS Sports Centre Sdn Bhd.

Alternative dispute resolution or popularly known as ADR is a device aimed at resolving disputes between the parties in a manner so as to find a resolution expeditiously and economically.

Mediation For Modernisation & A New Challenge

The use of mediation as an example of modernisation is ironic because the words "mediation" and "modernisation" hardly seem to belong in the same category.

A company like an individual may require financial assistance to carry on with its day to day business. Towards this end, the company like the individual will seek financial assistance in the form of a loan from a bank or other financial institutions. That loan may be in the form of a secured loan or an unsecured loan.

Note: All references to any statutory provisions hereinunder are to the Companies Act 1965 unless otherwise specified.

In view of the present economic problems, s. 176 had to be amended to avoid an abuse by an ailing debtor company from seeking a restraining order pursuant to s. 176(10) to simply obtain a moratorium in respect of their indebtedness to several creditors.