The High Court decision of Re Biaxis (M) Sdn Bhd [2020] MLJU 1188 (grounds of judgment dated 12 August 2020) set stringent requirements for a company to successfully apply for judicial management. These requirements may set an unnecessarily high bar for a distressed company to meet. Continue reading
Lee Shih and Nicole Phung write about a Singapore Court of Appeal case on the Riddick undertaking and on the proposed guidelines for the breadth of Anton Piller search orders.
The Singapore Court of Appeal in the recent case of Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another [2020] SGCA 76 dealt with the prospective and retrospective release of the Riddick undertaking for disclosed documents. The Courts will undertake a multifactorial balancing exercise.
The Riddick undertaking draws its name from the English case of Riddick v Thames Board Mills [1977] QB 881. Where a party to litigation is ordered to produce documents, the discovering party is under an implied undertaking to not use the produced documents other than for pursuing the action. Therefore, the party who has been provided access to the documents cannot use the documents for any collateral or ulterior purpose.
The rationale for the Riddick undertaking is that public interest requires full and complete disclosure in the interest of justice. But, the production of documents by court order is an intrusion of privacy. This principle strikes a balance between these two interests. The court can release the Riddick undertaking if there are cogent and persuasive reasons. Continue reading
Lee Shih and Peyton Teo write about this recent High Court decision on whether there can be a challenge of a disputed debt against an enforced adjudication decision.
The recent High Court decision of Maju Holdings Sdn Bhd v Spring Energy Sdn Bhd (see the grounds of judgment dated 21 August 2020 of Ong Chee Kwan JC) dealt with the issue of whether an enforced adjudication decision relied upon as a debt in a statutory demand under section 466 of the Companies Act 2016 (CA 2016) is a disputed debt.
Further, the Court also looked at whether a cross-claim or counterclaim for a sum equal to or more than the debt. That can justify the grant of an injunction to restrain a presentation of a winding up petition.
[Update: On 23 October 2020, Malaysia brought into force its COVID-19 Act, with the full name Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020.]
Malaysia’s Covid-19 Bill (the full name being the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Bill) was tabled for first reading in the Dewan Rakyat (the lower house) of Parliament on 12 August 2020. I had written about the Covid-19 Bill here. One important measure is to provide relief for inability to perform contractual obligations for the seven categories of contracts. This applies from 18 March 2020 to 31 December 2020. On this aspect, I set out five weaknesses or ambiguities in the Covid-19 Bill.
[Update: On 23 October 2020, Malaysia brought into force its COVID-19 Act, with the full name Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020.]
Malaysia has tabled its Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Bill (Covid-19 Bill) in Parliament. The Bill states that it will have retrospective effect from 18 March 2020. This Covid-19 Bill and the eventual Act may alleviate some of the contractual and other issues that arose from the COVID-19 pandemic and Malaysia’s movement control restrictions.
However, with this Bill only being passed sometime in August 2020, is this a case of too little, too late? We will have to see whether Malaysia’s Covid-19 Bill can help businesses and companies.
I touch on five key areas in the Covid-19 Bill.
The High Court in the Sulaiman & Taye decision (see the grounds of judgment dated 8 July 2020 of Ong Chee Kwan JC) deals with very significant issues in relation to fraudulent trading. Fraudulent trading is where directors of a company have to bear personal liability for the debts of a company in winding up. This is because the directors carried on the business of the company with the intent to defraud its creditors. In particular, whether the delinquent directors bearing personal liability then has to pay directly to the aggrieved applicant or to pay into the wound up company’s assets for the general benefit of all the creditors. Continue reading
