A.  ARBITRATION:

i)Leave Application•S.97 of Court of Judicatures Act 1964

FEDERAL COURT

MASTER MULIA SDN BHD v. SIGUR ROS SDN BHD

Arbitration – Award – Setting Aside

Breach of Natural Justice – Whether proved – Whether High Court erred in refusing to set aside award on ground applicant had not suffered actual or real prejudice – Whether s. 37 of Arbitration Act 2005 require prejudice suffered by applicant to be shown

This is a case involving a dispute of a claim in excess of USD 4.5 million on a Time Charter Party agreement for Offshore Service Vessel.

Leave was granted by the Federal Court on (i) whether  the effect and materiality of a breach of natural justice has to be considered before an arbitration award may be set aside, and (ii) whether the court has the power to sever an arbitration award when an application to set aside is both made under Sections 37 and 42 of the Arbitration Act. The appeal is set for hearing at the end of 2018.

Our Khong Aik appeared with Dato’ Cyrus Das for the Applicant.

For queries kindly contact: khongaik@ganlaw.my or beesan@ganlaw.my


 ii. Adjudication • Setting Aside Adjudication Order:

HIGH COURT

TYL LAND AND DEVELOPMENT SDN BHD v. SIS INTEGRATED SDN BHD & OTHER CASE [2018] 1 LNS 145

Adjudication- Setting Aside Adjudication Decision- Breach of Natural Justice- Adjudicator Restricted his Jurisdiction

Gan Partnership acted for TYL Land and Development Sdn Bhd (“Plaintiff”) in an application to set aside an Adjudication Decision.

The Plaintiff’s application to set aside the Adjudication Decision is premised on the Adjudicator taking an unduly narrow and restrictive reading of the Plaintiff’s Payment Response, resulting in the Adjudicator refusing to consider a dispute on the ground of waiver with respect to the outstanding payment for the interim certificates.

In arriving at his decision, the Adjudicator refused to consider the Plaintiff’s defence of waiver in the Adjudication Response on the ground that it was not raised in the Payment Response. This was factually incorrect, as the Plaintiff did raise the facts forming the foundation of its waiver argument.

Upon reviewing the Payment Response, the High Court held that the facts forming the defence of waiver were stated in the Plaintiff’s Payment Response even though the word “waiver” or was not expressly used. In the circumstances, the Adjudicator had therefore wrongfully and erroneously restricted his own jurisdiction and consequently breached natural justice when he refused to allow a dispute that had been properly raised in the Payment Response — i.e. of waiver — to be considered.

In that regard, the Court was satisfied that the breach of natural justice is material in the circumstances of this case as it was a defence raised and was not considered.

In those circumstances, the High Court set aside the part of the Adjudication Decision that was inflicted by the breach of natural justice. The decision in this case must now be read in light of the Federal Court’s decision in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2017] 1 LNS 1378.

Our Foo Joon Liang and Teoh Ting Wei acted for the Plaintiff.

For queries kindly contact: joonliang@ganlaw.my or tingwei@ganlaw.my

 

B. INTELLECTUAL PROPERTY LITIGATION:

Industrial Design•Copyright 

HIGH COURT

SUAN LEONG HANG (M) SDN BHD v. THONG SHENG HUNG SDN BHD

Order 14A, Rules of Court 2012- Question of law- Whether copyright subsist in any deisgn which is registered under any law relating to industrial design

The subject matter of the dispute was Buddhist crystal prayer lamp that is based shaped after a lotus flower. The Plaintiff alleged that the Defendant’s lotus prayer lamp was substantially similar to the Plaintiff’s lotus prayer lamp, and that the Defendant had infringed the Plaintiff’s copyright. The same lotus prayer lamp was registered as industrial design under the Industrial Design Act 1996. The Defendant raised section 7(5) of the Copyright Act 1987 which provides that a copyright shall not subsist under the Act in any design which is registered under any written law relating to industrial design, and therefore the Plaintiff was barred from seeking copyright protection for its registered design under the Industrial Designs Act. The High Court agreed with the Defendant that there was a question of law – whether copyright subsists in the Plaintiff’s lotus prayer lamp which has been registered as industrial design under the Industrial Design Act 1996 whereby section 7(5) of the Copyright Act 1987 will bar the action. Further, the High Court also agreed with the Defendant that the question was suitable for determination without a full trial and such determination of that question would finally determine the case. The High Court eventually answered the question in negative and the struck out the Plaintiff’s case.

Our Gan Khong Aik and Kang Mei Yee acted for the Defendant.

For queries kindly contact: khongaik@ganlaw.my or meiyee@ganlaw.my


C. NEGLIGENCE:

HIGH COURT

MESTIKA BISTARI SDN BHD AND FUJIYA SDN BHD v. TELEKOM MALAYSIA BHD [2018] 1 LNS 373; [2018] MLJU 358

Trial − appellant interference − insufficient judicial appreciation of facts − erroneous findings of facts − erroneous application of law − burden of proof − oral evidence tested against contemporaneous documents − finding based on inference drawn

Negligence − duty of care − foreseeability − vicarious liability − developer-contractor relationship

Material facts not pleaded − fatal

This is an appeal brought by the Appellant /Defendant against a decision by the Magistrate Court.

The Plaintiff/Respondent, Telekom Malaysia Bhd commenced a suit against the Defendants alleging that the 2nd Defendant’s construction work negligently damaged the Plaintiff’s cables and the 1st Defendant shall be vicariously liable as the developer.

In opposing the suit, the Defendants’ principal contention was that the damage to the Plaintiff’s cable had arisen even before the Defendants started work in the vicinity. Thus, it is logically impossible for the Defendants to have damaged the Plaintiff’s cables.

After trial in Magistrates Court, the Magistrate allowed the Plaintiff’s claim. On appeal, however, the High Court set aside the Magistrates Court’s judgment with costs in the Defendants’ favour.

Our Lye Ca-Ryn and Lee Xin Div acted for the Defendants/Appellants.

For queries kindly contact: caryn@ganlaw.my or xindiv@ganlaw.my


 D. EMPLOYMENT:

Termination Without Just Cause Or Excuse

HIGH COURT

SAW KONG BENG V MAHKAMAH PERUSAHAAN MALAYSIA & AVAGO TECHNOLOGIES (MALAYSIA) SDN BHD

Last in first out principle – whether termination tainted with mala fide

Whether findings of fact immune from judicial review – whether termination according to fair labour practice

Gan Partnership acted for the Applicant – Saw Kong Beng in this judicial review. The Applicant filed a judicial review against the award given by the Penang Industrial Court which dismissed the Applicant’s claim for dismissal without just cause or excuse.

At the judicial review, the High Court found that the Industrial Court had erred in its finding of facts that the Company could achieve better efficiency in its management by terminating the applicant in the absence of evidence. The Industrial Court also failed to refer to those documents which could support its finding that the termination was not tainted with mala file. Hence, the findings of facts made by the Industrial Court are not immune from judicial review.

Even though the exact expression of “Last In First Out” was not used, the High Court agreed with the Applicant that the Company had employed someone else to replace the Applicant although that person was just three months employment as compared to the 30 years served by the Applicant. As such, the High Court ruled that “Last In First Out” was a live issue in the case.

Considering the Applicant’s 30 years of service to the Company, the High Court was of the view that there should at the very least have been some form of consultation with the Applicant instead of just giving instruction to leave.

The High Court allowed the Applicant’s judicial review application and remitted the case to the Industrial Court for assessment of compensation in lieu of reinstatement and backwages.

The Company appealed to the Court of Appeal against the High Court decision. The appeal was dismissed. The Company filed an application for leave to appeal to Federal Court but it was unsuccessful. At both levels, Gan Partnership represented the Applicant/Respondent.

Our Gan Khong Aik and Lee Sze Ching acted for the Applicant.

For queries kindly contact: khongaik@ganlaw.my or szeching@ganlaw.my


E. CORPORATE COMMERCIAL:

Goods Sold and Delivered

HIGH COURT

DK COMPOSITES SDN BHD v. LASER PERFORMANCE (EUROPE) LIMITED

Goods Sold and Delivered – Recipient of Goods Delivered – Whether Recipient of Goods is Liable for the Purchase

Striking Out – Res Judicata – Abuse Process of Court

The Plaintiff sued the Defendant, a company incorporated in UK for principal sum of about RM2.1 million and interest of about RM1.4 million for alleged goods sold and delivered to the Defendant.

The Defendant denied the claim and alleged that the contract were entered between the Plaintiff and a Company incorporated in Hong Kong and that the Defendant was merely the designated recipient of the goods as provided under the contract between the Plaintiff and the Company and therefore is not liable for the purchase. A Judgment in Default was also obtained by the Plaintiff against the Hong Kong Company for the goods sold and therefore indicating that the Defendant is not responsible for the purchase.

In this premise, a striking out application was taken out by the Defendant to strike out the Plaintiff’s claim on the grounds of res judicata and abuse of the process of court. The High Court agreed with the Defendant and the Plaintiff’s claim was accordingly struck out with costs.

Our Mah Mun Yan acted for the Defendant.

For queries kindly contact: munyan@ganlaw.my