JCW

[Unlawful representation of third party on behalf of Claimant in the Tribunal for Homebuyer Claims and calculation of LAD is taken from the date of SPA and not the booking form] Justin was the counsel for Hedgeford Sdn Bhd, the developer in this Judicial Review. A novel point was raised on behalf of the Developer that the Homebuyer cannot be represented by a third party who is not an advocate and solicitor before the Tribunal. The Court inter-alia held as follows :- (a)The parties to a claim before a tribunal are the homebuyer as defined under s16A of the HDA i.e. the claimant and the housing developer who is the respondent. It is only in cases where complex issues of law are involved and where a party “will suffer severe financial hardship”, that a party may be represented by an advocate and solicitor pursuant to s16U of the HDA. (b)The tribunal cannot on its own motion allow a homebuyer to be represented by a third party who is not an advocate and solicitor. In this regard, s16E of the HDA specifically provides that the tribunal can only adopt procedures it thinks fit and proper subject to the provisions of the HAD and any regulations made thereunder. In the circumstances, the tribunal’s decision to allow the third party to represent the first applicant at the hearings before it is procedurally improper and goes against the purpose and intent of the setting up of the tribunal and the natural justice principle of nemo judex in sua causa. Further, the Court held that it is clear from reg 22 of the Housing Development (Tribunal for Homebuyer Claims) Regulations 2002 (“the 2002 Regulations”) that the legislative intent of Parliament is that in the event of a claimant not appearing at the hearing, the tribunal must either dismiss the claimant’s claim or allow the respondent’s claim if any. In the premises and pursuant to reg 22(1) and (2) of the 2002 Regulations, the tribunal did not have the option to keep on adjourning the hearing as it had done, until the first respondent decided to attend the same. Regulation 22(1) and (2) of the 2002 Regulations must be interpreted strictly and take precedence over the general provision in reg 27. The tribunal’s purported exercise of its powers to allow the first respondent to be represented by a third party and to adjourn the hearings due to the first claimant’s absence, is ultra vires the HDA. In respect of the of the issue of Liquidated Damages (LAD), the Court held that the tribunal’s finding that the date of payment of the booking fee is the date of the sale would mean that there exists a binding contract for the sale and purchase of the property between the parties at the date of payment of the booking fee. If that is the case, then in the event of a purchaser deciding to not execute a formal contract in the form of contract in Schedule H, the purchaser would then be in breach of the sale and purchase agreement since the agreement would already have come into being upon payment of the booking fee thus rendering the purchaser liable to the developer for any loss or damage suffered by the developer instead of merely forfeiting the booking fee. Such an outcome could not have been the legislative intent of the HDA. Accordingly, the tribunal had erred in law in calculating the LAD from the date of the booking fee instead of from the date of the SPA.

[Pre-conditions to apply for a Restraining Order] Alvin was counsel for the 1st Intervener in this suit. Alvin raised the point that the pre-condition of Section 368(2)(a) to (d) of the Companies Act 2016 needs to be complied with even in the application for restraining order under Section 368(1) and not just subsequent extensions of the same. The Court accepted the said argument and amongst others held : (i)It cannot be the legislative intent that only s368(2)(a) and (d) of the Act need be complied with when applying for a restraining order. The conditions under s368(2)(a) to (d) need all be complied with. To hold otherwise would do violence to the manner in which s368(2)(a) to (d) was drafted and would call, unjustifiably, for ignoring the fact that the conditions set out in s368(2)(a) to (d) are cumulative, having regard to the semicolon after each subsection and the use of the conjunction “and” placed between s368(2)(c) and (d). (ii)Upon its proper construction, the conditions set out in s368(2)(a) to (d) of the Act need to be complied with when an application is made for a restraining order under s368(1) of the Act. Such a result is consonant with the plain language used and the legislative intent and purpose for the conditions in s368(2)(a) to (d) of the Act. In this regard, the applicants, having conceded that the conditions in s368(2)(c) and (d) of the Act were not complied with when making and securing the ex parte order, the restraining order thus cannot stand.

[Law on retrospective sanction from the Liquidator to commence proceedings on behalf of a wound-up company] Justin was counsel for the Respondents in this case who applied to strike out the Appeal on the basis that no proper sanction has been obtained by the Respondent/Appellant to appeal to the Court of Appeal. The Court of Appeal dismissed the application and amongst others held that :- (i)With the presence of s 236 of the Companies Act, it is the liquidator who has the authority to bring or defend any action or proceedings in court. The term “bringing” must necessarily include continuing with any action or proceedings already brought or commenced and any such action or proceedings must also extend to the conduct and continuation of appeals. (ii)The Official Receiver as the liquidator of the appellant has the necessary authority to consider and grant a sanction which is effective on a date other than the date it was made i.e. retrospective sanction. Bearing in mind that the Official Receiver had already granted the necessary sanction, the respondents’ application thus is without merit and must be dismissed.

[setting aside of Judgment under Reciprocal Enforcement of Judgment Act]    Justin Voon was the counsel for the Defendant. We believe that this is the first case in Malaysia where an attempt to register the Singapore Judgment was made whilst the Malaysian Suit was on-going which inter-alia canvass the same issues. The following issues  emerge from this decision  :   (i)Res Judicata applies in a REJA case – whether the decision in the JB Suit on 2 occasions that the Singapore Suit will not prevail over the JB Suit would be binding here in the REJA Case; (ii)Whether Res Judicata is a facet of public policy and therefore, whether the said Foreign Singapore Judgment can be set aside under Section 5 (1)(a)(v) of the REJA “that the enforcement of the judgment would be contrary to public policy in Malaysia”    The High Court set aside the registered Judgment based on Res Judicata accepted as part of public policy [overturned on appeal]   [Note: This High Court decision has been overturned by the Court of Appeal vide Civil Appeal No. J-02(IM)-1509-07/2018]

[recovery of Stakeholder sums]   Justin and Alvin Lai were counsel for the Plaintiff. The Court Decision covered amongst others the following points including important points of law:   (i)The solicitors holding monies as Stakeholders hold it as a trustee for both Vendor and Purchaser and not in a contractual capacity; (ii)The solicitors holding as Stakeholders need not be a party to the Memorandum of Agreement  are bound by the terms of the stakeholdership and is not exonerated from liability; (iii)The breach of a stakeholding term is not just a breach of undertaking but also a breach of trust; (iv)          The deposit of and holding the monies as a refundable deposit by the legal firm as a stakeholder is in the ordinary course of its  business and the 1st Defendant had acted within the scope of his apparent authority

(Court of Appeal) [distribution during intestacy- only brothers and sisters living at time of death of deceased was entitled to his estate ] Justin and Chooi Peng were counsel for the Appellant. The Court of Appeal held that pursuant to Section 6 (1)(i) of the Distribution Act, only the brothers and sisters of the deceased living at the time of his death was entitled to his estate.   The Court of Appeal further amongst others held that   (i)The English Administration of Estate Act 1925 and the provisions of the Indian and NSW legislations are not in pari materia with Section 6 and 7 of the Distribution Act; (ii)The emphasis is on the phrase “living at the death of the intestate” in Section 6 (1) (i) of the Distribution Act; (iii)If the nephews of the intestate are taking a share of their late father’s entitlement in the estate of the intestate under Section 7 of the Distribution Act, they are caught by subsection 6 (1)(i) The Respondent’s application for leave to appeal to the Federal Court was refused.

[Law and Application of Secret Trust in relation to a Will] Chooi Peng was the counsel for the Appellants. A Will was challenged with a Full Trial. The Court of Appeal expounded on the important principles  of law in relation to  “Secret Trust”  and held amongst others that : (i)       The requirements for the formality of the will has been satisfied and the Appellant’s defence (against the Respondent challenging the Will) is simple and straightforward and they had pleaded a secret trust;   (ii)       The common law concept of “secret trust” is recognised in Malaysia despite the law of will placed under the statutory regime in Malaysia. The Court’s endorsement of the secret trust does not breach the Wills Act or any other statutory law;   (iii)      The High Court misdirected on the issue of testamentary capacity by combining the issue of secret trust with that of testamentary capacity. Testamentary capacity is related to medical evidence of related credible evidence, and has nothing to do with a story related to secret trust   (iv)      The law of secret trust was developed to assist the testator’s purported “sins” are what is often said “skeleton in the cupboard” for just and equitable reason to benefit his genes or acquaintance, whether lawful or otherwise to provide some form of security to his beloved ones.  The law on secret trust has developed in a manner to close its eyes on public policy or breach of rule of law related to monogamous or polygamous marriage inclusive of polyandry or relationship of cohabitee, etc.  The court does not strike out secret trust argument based on illegality or public policy.

[Legality of the selling of condominiums with excessive accessory parcel (car parks) to a single purchaser – Whether owner of the condominiums can commercialise the accessory parcel (car parks) in renting the accessory parcel] Justin was the counsel for the Plaintiff, the Management Corporation (MC) of Palm Spring. This is a case involving the selling of 45 units of condominium to a single purchaser (“the Purchaser”) together with 439 car parks as accessory parcel attached to the units of condominium. In this case, the MC filed the action claiming that the extra car parks of 394 (439 car parks less 45) are common property of the condominium and it was given to the purchaser for no consideration. The MC alleges that the Purchaser is essentially carrying out car rental business in the condominium by renting the car parks to the residents for a fee. The MC had suffered serious prejudice as out of 2,449 car parks built, 2,180 car parks should have been given to 2,180 condominium units (as per the Development Order) and the 218 car parks allocated for the visitors and there should be 51 extra car park parcels. As such, the MC claimed that the giving of 394 car parks to the Purchaser is invalid and ought to be revoked as there is a breach of Development Order, breach of the Strata Title Act 1985, the extra car parks was not sold with consideration, the extra car parks given to the Purchaser is against public policy and the registration of the extra car parks in the strata title is void ab initio under the National Land Code and Strata Title Act 1985. The Court allowed the MC’s claim and held that: (i)The Development Order cannot override the contractual obligation and the agreement reached between the parties, so long as the contract or the consideration for the contract or the object was not illegal; (ii)The renting and/or the usage of the 394 extra car parks by the Purchaser was a ‘dealing’ of the accessory parcel was prohibited by s.34(2) and 69 of the Strata Title Act 1985. Therefore, it is illegal and the sale of the 394 extra car parks by the developer to the Purchaser shall be struck down pursuant to s. 24(b) of the Contracts Act 1950; The 394 extra car parks which are accessory parcels registered in the name of Purchaser becomes null and void and is defeasible under s.340 of the National Land Code.