[This is a guest post by Kwan Will Sen. He is a litigation partner focusing on commercial litigation and arbitration, and fraud and asset recovery.]
Idrus Harun was a Judge of the apex Court of Malaysia, the Federal Court. He has been appointed as the Attorney General (AG) effective 6 March 2020, replacing Tommy Thomas.
I discuss three significant decisions by Idrus Harun FCJ (as he then was). He wrote the Federal Court’s grounds of judgment for the first two cases (Ireka/ Jack-In Pile and Nautical Supreme), and was part of the minority for the third case (JRI Resources). Continue reading →
I set out a case update on the Federal Court decision of Tee Siew Kai v Machang Indah Development Sdn Bhd (see the Grounds of Judgment dated 17 February 2020). The decision is on the law applicable to the grant of leave to sue a liquidator in his personal capacity. This decision reverses the Court of Appeal decision in Tee Siew Kai (as liquidator for Merger Acceptance Sdn Bhd) (in liquidation) v Machang Indah Development Sdn Bhd (in liquidation) (previously known as Rakyat Corp Sdn Bhd  2 MLJ 514.
This decision reiterates the importance of leave of the Court in order to avoid wasteful litigation against liquidators and to preclude unwarranted interference with the winding up process. There must be a prima facie case made out, the Court must evaluate the evidence to see if this has been met, and pecuniary loss suffered by the company must be shown. Continue reading →
At the recent Civil Law Conference on 14 February 2020, there was a list of good pointers, statistics and tips set out in the session on leave to appeal to the Federal Court. This post sets out the chances of success and examples of questions where leave was allowed.
As a brief background, in Malaysia, the apex court is the Federal Court. For matters that originated at the High Court, the final level of appeal is before the Federal Court. But an appeal to the Federal Court is not as of right. There must first be an application for leave, or permission, to appeal to the Federal Court. The test for leave is that there must be a question to be decided for the first time or a question of importance where a Federal Court decision would be to public advantage. Where leave is allowed, the Federal Court would then allow the appeal proper to be heard.
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.
This feature covers the range from an anti-arbitration injunction, stay of winding up proceedings pending arbitration to a setting aside of an interim measure in aid of arbitration. The cases below will refer to the Arbitration Act 2005 (AA 2005).
The Federal Court in its grounds of judgment dated 16 October 2019 in Jack-In Pile (M) Sdn Bhd v Bauer (Malaysia) Sdn Bhd held that the Construction Industry Payment and Adjudication Act 2012 (CIPAA) applies only prospectively to construction contracts. CIPAA came into effect on 15 April 2014. Therefore, CIPAA only applies to construction contracts signed after this date.
Prior to this decision, there were High Court and Court of Appeal decisions holding that CIPAA could apply retrospectively to construction contracts. So if there were unpaid amounts arising from pre-15 April 2014 construction contracts, contracting parties could invoke CIPAA, had obtained adjudication decisions and had enforced payment.
It is now uncertain what will be the impact of this Federal Court decision on already decided adjudication matters based on pre-15 April 2014 construction contracts. Continue reading →