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Issue #30/2024
25 July 2024
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CASE(S) OF THE WEEK
BADAN PEGUAM MALAYSIA v. The law relating to reference of constitutional questions to the Federal Court is well settled, with the latest decision being that of Dato' Seri Anwar Ibrahim v. Government Of Malaysia & Anor, where it was held that the High Court should generally and ordinarily determine constitutional questions at first instance, barring those within the original jurisdiction of the Federal Court, as there is no obligation on the part of the High Court, by virtue of the word 'may' in s. 84 of the Courts of Judicature Act 1964, to refer any constitutional question arising before it to the Federal Court. As such, when the High Court exercises its discretion by not referring constitutional questions to the Federal Court because it is empowered to decide on them, that reason alone is valid. CIVIL PROCEDURE: Appeal - Leave to appeal - Application for - Reference of constitutional questions to Federal Court - Whether constitutional questions fell exclusively within jurisdiction of Federal Court - Whether challenge of constitutionality on inconsistency grounds pertained to matters dealt with by High Court - Whether High Court exercised discretion judicially and properly addressed its mind on applicable test not to refer constitutional questions to Federal Court - Failure to fulfil necessary threshold for grant of leave - Whether requirement of s. 96 of Courts of Judicature Act 1964 met - Dato' Seri Anwar Ibrahim v. Government Of Malaysia & Another - Federal Constitution, arts. 4(3) , 4(4) , 128(1) , 128(2) - Courts of Judicature Act 1964, s. 84 CIVIL PROCEDURE: Jurisdiction - Federal Court - Reference of constitutional questions to Federal Court - Whether constitutional questions fell exclusively within jurisdiction of Federal Court - Whether High Court should normally determine questions at first instance - Whether Federal Court last resort in respect of constitutional issues, except those falling within its narrowly construed original jurisdiction - Whether High Court exercised discretion judicially and properly addressed its mind on applicable test not to refer constitutional questions to Federal Court - Dato' Seri Anwar Ibrahim v. Government Of Malaysia & Another - Federal Constitution, arts. 4(3) , 4(4) , 128(1) , 128(2) - Courts of Judicature Act 1964, s. 8 4
FARINA FARIKULLAH KHAN v. (i) To obtain a civil court's determination and declaration that an adult is mentally disordered in the eyes of the law, an application for inquiry may be made under s. 51 of the Mental Health Act 2001. The civil court is rightfully equipped with the power and jurisdiction to hear matters under the MHA; that jurisdiction does not offend the jurisdiction of the Syariah Court and the State laws, nor does it contravene any articles in the Federal Constitution; (ii) There is no State Legislation that confers the Syariah Court to determine the mental capacity of an adult (a Muslim at that) and guardianship over such adult found to be mentally disordered. Such jurisdiction must be specifically conferred. CIVIL PROCEDURE: Originating summons - Striking out - Application for - Originating summons filed under s. 52 of Mental Health Act 2001 ('MHA') seeking court's orders for inquiry and reliefs - Whether court equipped with jurisdiction to hear matters under MHA - Whether there was reasonable cause of action - Whether there was abuse of court process CIVIL PROCEDURE: Jurisdiction - Civil and Syariah Courts - Whether there is State Legislation conferring Syariah Court to determine mental capacity of adult and guardianship over such adult found to be mentally disordered - Syariah Court order awarded rights of temporary care of disabled mother to one of male siblings - Whether Syariah Court order an interim order and not final order - Whether civil court could decide whether Syariah Court order valid or constitutional - Whether civil court's power to hear originating summons under Mental Health Act 2001 offended or breached Syariah Court order and jurisdiction APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2024 Volume 7 (Part 1) (i) The court would be slow to stop another tribunal from exercising its perceived statutory obligation unless it is plainly and obviously clear that it has absolutely no jurisdiction from facts not in dispute or from legal interpretation that could not be seriously challenged; (ii) The contractual adjudication procedure could not stand in the way of a vested right to statutory adjudication conferred by the Construction Industry Payment and Adjudication Act 2012 ('CIPAA') on the unpaid party to a construction contract in writing which is not excluded or exempted under ss. 2, 3 or 40 of the CIPAA. To agree that the contractual adjudication clause under the FIDIC Construction Contract 2017 bars adjudication under the CIPAA would be to allow contracting out of the CIPAA; s. 24 of the Contracts Act 1950 would be engaged to strike down such a clause. CONSTRUCTION LAW | CIVIL PROCEDURE
CONSTRUCTION LAW: Adjudication - Adjudicator - Jurisdiction - Unpaid party commenced adjudication proceedings against paying party - Argument that parties had in FIDIC Construction Contract 2017 agreed to refer dispute to Dispute Avoidance Adjudication Board - Whether adjudicator lacked jurisdiction - Whether adjudicator may proceed when jurisdictional objection has been taken - Whether aggrieved party should raise matter on jurisdiction at stage of setting aside of adjudication decision - Construction Industry Payment and Adjudication Act 2012 CONSTRUCTION LAW: Construction contracts - Unpaid party commenced adjudication proceedings against paying party - Argument that parties had in FIDIC Construction Contract 2017 agreed to refer dispute to Dispute Avoidance Adjudication Board ('DAAB') - Whether reference to adjudication null and void - Whether reference to adjudication contrary and/or in breach of terms and conditions of contract entered into between parties - Whether dispute between parties ought to be referred to DAAB - Construction Industry Payment and Adjudication Act 2012 CIVIL PROCEDURE: Proceedings - Stay - Application for - Unpaid party commenced adjudication proceedings against paying party - Argument that parties had in FIDIC Construction Contract 2017 agreed to refer dispute to Dispute Avoidance Adjudication Board - Whether adjudicator lacked jurisdiction - Whether stay ought to be granted - Courts of Judicature Act 1964, s. 44
LEE SWEE SENG JCA
(i) Based on the words 'interim measure' under s. 11(1) of the Arbitration Act 2005, courts may only grant interim measures and not permanent or final relief. As the arbitral tribunal is the sole arbiter of a dispute between parties, final relief should only be given by the arbitral tribunal in the form of a final award and not by the court; (ii) To challenge the calls on a bank guarantee, it must be proven that there is a serious arguable case that the calls are, inter alia, fraudulent. If the conduct of the party relating to the calls made on the bank guarantees is so reprehensible or lacking in good faith and of such degree such as to prick the conscience of a reasonable and sensible man, it would be realistic to infer that the calls are unconscionable. ARBITRATION | CONTRACT | CIVIL PROCEDURE
ARBITRATION: Arbitral tribunal - Jurisdiction - Whether arbitral tribunal sole arbiter of dispute between parties - Whether final relief should only be given by arbitral tribunal in form of final award and not by court - Whether court sans of power to grant final reliefs - Whether court could order declarations and damages under s. 11(1) of Arbitration Act 2005 CONTRACT: Guarantee - Bank guarantee - Call on bank guarantee - Injunctive reliefs to prevent call on guarantee - Whether calls unconscionable and fraudulently made CIVIL PROCEDURE: Originating summons - Non-joinder of parties - Whether fatal - Whether parties would suffer prejudice - Rules of Court 2012, O. 1A, O. 2 r. 1(2), O. 15 r. 6(1) CIVIL PROCEDURE: Injunction - Parties to arbitration agreement - Whether court could grant injunctions pending issuance of final award - Whether court has wide powers and discretion to grant interim measures before or during arbitral proceedings - Imposition of conditions pertaining to injunctions - Whether would mean less risk of injustice to parties - Whether court could stay execution of condition pending disposal of appeals - Arbitration Act 2005, s. 11(1) KAMALUDIN MD SAID JCA
(i) No matter how parties label and arrange their business relationship, if, under the law, it amounts to the provision of advertising services under the Service Tax Act 2018 and the Service Tax Regulations 2018, then it is taxable; (ii) The scope of the actual authority of an agent is to be ascertained from the terms of the agreement between the principal and the agent. Pursuant to s. 139 of the Contracts Act 1950, the authority of an agent may be expressed or implied. CUSTOMS & EXCISE | CONTRACT
CUSTOMS & EXCISE: Goods and services - Tax - Service tax - Rental agreement - Provider of digital and cinema advertising services entered into agreement with cinema - Renting by service provider of advertising space at cinema's multiplexes to place service provider's customers' advertisements - Whether provision of digital advertising space and airtime services amounted to advertising service - Whether subject to service tax - Service Tax Act 2018 - Service Tax Regulations 2018 CONTRACT: Agreement - Rental agreement - Terms and conditions - Interpretation - Provider of digital and cinema advertising services entered into agreement with cinema - Renting by service provider of advertising space at cinema's multiplexes to place service provider's customers' advertisements - Rental charged by cinema subject to service tax - Whether pure rental agreement - Whether cinema was providing 'advertising services' to service provider as service provider was merely agent of cinema subject to cinema's control - Whether cinema retained control over advertising services - Whether revenue-sharing mechanism showed advertising services CONTRACT: Agency - Principal and agent - Provider of digital and cinema advertising services entered into rental agreement with cinema - Renting by service provider of advertising space at cinema's multiplexes to place service provider's customers' advertisements - Whether mere rental agreement - Whether service provider agent of cinema subject to cinema's control - Whether cinema retained control over advertising services - Whether revenue-sharing mechanism showed advertising services - Contracts Act 1950, s. 139
S NANTHA BALAN JCA
(i) In an application for security for costs, when the parties are not foreign parties residing out of jurisdiction or nominal parties acting on behalf for the benefit of others or parties who are constantly changing addresses to evade the consequences of an appeal, they thus do not meet the threshold requirements envisaged in O. 23 r. 1 of the Rules of Court 2012. (i) Unlike in respect of a body corporate incorporated under the Companies Act 2016 ('CA'), impecuniosity is not per se a cogent factor with regard to ordering security for costs. However, when a corporate body is found to be impecunious and unable to pay its costs, security for costs ought to be accordingly ordered pursuant to s. 580A of the CA. CIVIL PROCEDURE
CIVIL PROCEDURE: Security for costs - Application for - Whether r. 17 of Rules of the Court of Appeal 1994 ought to be read with O. 23 of Rules of Court 2012 ('ROC') - Whether threshold requirements envisaged in O. 23 r. 1 of ROC met - Whether impecuniosity cogent factor with regard to ordering security for costs - Whether security for costs ought to be ordered pursuant to s. 580A of Companies Act 2016 - Whether just and reasonable to order security for costs
RAVINTHRAN PARAMAGURU JCA
The rules governing an appeal procedure must be strictly adhered to; failure to comply with mandatory requirements may be fatal to an appeal and would render the same to be struck out. In the filing of a record of appeal, the mandatory provisions under O. 55 r. 4 of the Rules of Court 2012 ('ROC') must be strictly followed. If the party intentionally disregards the compliance with the rules, O. 1A of the ROC could not be invoked to cure the non-compliance. CIVIL PROCEDURE
CIVIL PROCEDURE: Appeal - Procedure - Record of appeal - Requirements under O. 55 r. 4 of Rules of Court 2012 ('ROC') - Whether requirements mandatory - Failure to obtain approval to draft index from opposite party before filing of record of appeal - Whether rendered record of appeal defective and nullity - Whether record of appeal incomplete - Whether record of appeal served out of prescribed time limit - Whether non-compliance with Rules fatal to appeal - Whether curable under O. 1A of ROC
FARIDZ GOHIM ABDULLAH JC
Section 71 of the Contracts Act 1950 provides that if a party undertakes some kind of work or service for another party without intending to do it free of charge, the person who received such work or service must compensate the person who performs it. It does not require the existence of an underlying contract that governs the relationship between the parties in order for s. 71 to be invoked. This section does not bring into play the question of the privity of contract between the parties. The provision is intended to prevent any unconscionable conduct on the part of the benefitted party which results in the beneficiary gaining unjust enrichment at the expense of the innocent party through unfair means. To accomplish this, the innocent party should be compensated by the benefitted party for the monetary value that had been lost as a result of the benefitted party making use of the innocent party's work or services. CONTRACT | TORT | LOCAL GOVERNMENT
CONTRACT: Agreement - Concession agreement - Quantum meruit - Service provider and city council entered into contract for provision of cleaning services for footways of city - Contract novated following privatisation of management of solid waste and public cleansing - Claim for outstanding sums allegedly due for services rendered by service provider to city council - Expectation of entitlement as compared to what other contractors received under concession agreement - Whether there was privity of contract - Whether there was unfair discrimination - Contracts Act 1950, s. 71 TORT: Misfeasance - Misfeasance and/or nonfeasance in public office - Service provider and city council entered into contract for provision of cleaning services for footways of city - Contract novated following privatisation of management of solid waste and public cleansing - Claim for outstanding sums allegedly due for services rendered by service provider to city council - Whether misfeasance and/or nonfeasance in public office established LOCAL GOVERNMENT: City council - Service provider and city council entered into contract for provision of cleaning services for footways of city - Contract novated following privatisation of management of solid waste and public cleansing - Claim for outstanding sums allegedly due for services rendered by service provider to city council - Expectation of entitlement as compared to what other contractors received under concession agreement - Whether there was unfair discrimination - Whether there was tort of misfeasance and/or nonfeasance in public office - Solid Waste and Public Cleansing Management Act 2007 RAJA AHMAD MOHZANUDDIN SHAH JC
All parties who entered into a consent judgment are bound by it and are estopped from varying its terms. Therefore, if any of the parties applied for an application that is capable of varying the terms of the consent judgment, such application will be dismissed by the court. CIVIL PROCEDURE
CIVIL PROCEDURE: Judgment - Consent judgment - Filing of writ action to enforce and/or apply for consequential order under consent judgment - Consequential order pertained to reliefs sought under re-amended statement of claim for writ action - Whether writ action ought to be struck out - Whether reliefs sought had effect of varying consent judgment - Whether consent judgment still valid and binding - Whether reliefs, if granted, would be nullity - Rules of Court 2012, O. 14A & O. 33
FAIZAH JAMALUDIN J
An arbitral tribunal is expressly empowered, pursuant to s. 35(1)(a) of the Arbitration Act 2005, to rectify its own final award in instances where the final award contains inadvertent errors that do not accurately reflect the tribunal's intention without altering the substance of its decision. This power extends to correcting 'any error in computation, any clerical or typographical error or other error of similar nature'. The phrase 'other error of similar nature' should be interpreted in its natural and ordinary sense, while also considering the legislative purpose and context. ARBITRATION | STATUTORY INTERPRETATION
ARBITRATION: Award - Final award - Correction - Arbitral tribunal issued final award - Arbitral tribunal later issued addendum award, correcting interest start date - Whether final award final and binding - Whether could be rectified - Whether correction made on inadvertent error - Whether correction in addendum award altered substance of decision in final award - Whether correction by arbitral tribunal amounted to varying or amending final award - Whether correction offended principle of finality of arbitral awards -Arbitration Act 2005, ss. 35 & 36 ARBITRATION: Jurisdiction - Arbitral tribunal - Functus officio - Arbitral tribunal issued final award - Arbitral tribunal later issued addendum award, correcting interest start date - Whether arbitral tribunal functus officio upon issuing final award - Whether seized with jurisdiction to make correction - Arbitration Act 2005, ss. 35 & 36 STATUTORY INTERPRETATION: Statutes - Arbitration Act 2005, s. 35 - 'any error in computation, any clerical or typographical error or other error of similar nature' - Whether restrictive reading should be employed on phrase 'other error of similar nature' - Whether ought to be interpreted broadly - Whether statutory principles of ejusdem generis and noscitur a sociis ought to be applied
ATAN MUSTAFFA YUSSOF AHMAD J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
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