Our guest author, Kevin Wong, writes on the top 5 construction cases in Malaysia for 2020. The areas covered include when does time run for the calculation of liquidated damages, the Controller of Housing, and cases on the Construction Industry Payment and Adjudication Act 2012 (CIPAA).
I set out the ten amendments to the Rules of Court 2012 (ROC 2012) which comes into force on 15 December 2020. Some of these changes include service of court papers by electronic means, virtual hearings, and the restrictions on adjournments of trials. There are also minor additions to the Rules of the Court of Appeal 1994 (see the Rules of the Court of Appeal (Amendment) 2020) and to the Rules of the Federal Court 1995 (see the Rules of the Federal Court (Amendment) 2020).
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Today was the Opening of the Legal Year 2020 for Malaysia. This annual ceremony would see speeches delivered by the heads of the Attorney-General’s Chambers, the Malaysian Bar and the Judiciary.
The Chief Justice of Malaysia, Tan Sri Tengku Maimun binti Tuan Mat, set out in her speech the upcoming reforms to the judicial system. I cover nine of the areas below, ranging from limiting appeals on interlocutory applications, environmental law provisions and the full digitalisation of courts.
The Court of Appeal issued its Grounds of Judgment dated 11 December 2018 in the case of Ong Kwong Yew and others v Ong Ching Chee and others. It is a cautionary tale for liquidators on the grounds for their removal as liquidator and their conduct in terms of seeking fees for work done.
The conduct of the liquidator was serious enough for the Court of Appeal to remark that the liquidator ought to be sanctioned by the Malaysian Institute of Accountants or the Director-General of Insolvency.
The Court of Appeal in the Wellcom Communications case has decided on certain significant issues relating to a judicial management application (see the grounds of judgment dated 13 February 2019). This is Malaysia’s first appellate decision relating to judicial management.
In summary, upon the filing of a judicial management application, an automatic moratorium applies. This will stay all legal proceedings from continuing or from being commenced against the applicant company. The Court of Appeal has held that once the judicial management application is dismissed, there cannot be a grant of any stay order to stay the dismissal of the application in order to revive the moratorium effect. Continue reading
The Court of Appeal decision in Hong Leong Bank Berhad v Ong Moon Huat [2018] 1 LNS 1612 has clarified two important points under the new Insolvency Act 1967 on bankruptcy actions against guarantors.
The first issue is to clarify the protection for guarantors where all modes of execution and enforcement must be first exhausted against the principal debtor alone. The second issue is that when seeking leave to proceed against the guarantor, the judgment creditor can apply for leave to proceed either upon the issuance of the bankruptcy notice or even prior to that, up to and immediately prior to the filing of a creditor’s petition. Continue reading
