Malaysia updates

Litigation

Contributed by Gan Partnership
Attorney general's discretion is not unfettered
  • Malaysia
  • 14 May 2019

The attorney general is a public officer who has been given ample discretionary power under Article 145 of the Federal Constitution to institute, conduct or discontinue any criminal proceedings. The question is, where a public officer's decision is subject to judicial review, does this equally apply to the attorney general?

Federal Court will not condone irregularities in court orders
  • Malaysia
  • 29 January 2019

The Federal Court recently reaffirmed that where a final court order is proved to be null and void on grounds of illegality or due to a lack of jurisdiction, the court has inherent jurisdiction to set aside the order, even in the absence of an express enabling provision. However, is the rule different for winding-up orders?

Lower threshold for staying proceedings pending appeal
  • Malaysia
  • 25 September 2018

Following a recent Court of Appeal decision on staying proceedings pending appeal, the test as to whether a stay ought to be granted under Section 44 of the Courts of Judicature Act has been simplified (ie, it now focuses on whether the true purpose of the stay is to preserve the integrity of the appeal). The new threshold to obtain a stay is considerably lower than that of the special circumstances rule under Section 73 of the Courts of Judicature Act.

Dishonesty must be present before debtor in assignment can be made liable
  • Malaysia
  • 19 June 2018

A recent Federal Court decision has simply reaffirmed the position of Malaysian law in relation to breaches of trust. The majority of the Federal Court held that imputed constructive knowledge of an assignment is insufficient to hold the debtor liable to the assignee for the debt. The decision also illustrates a disinclination to depart from the established law on the requirement of dishonesty in a breach of trust.

Stricter confidentiality obligation on lawyers
  • Malaysia
  • 20 February 2018

Section 126 of the Evidence Act 1950 imposes a legal obligation on all solicitors to protect and keep confidential any information obtained from their clients, including any legal advice that has been proffered. However, as much as the importance of this privilege is understood and embraced, it may still have come as a surprise when the Federal Court decided that a breach of this privilege by solicitors could entail a legal action against said solicitors.


Shipping & Transport

Contributed by Shearn Delamore & Co
Foreign ships repairing undersea cables now exempt from cabotage policy
  • Malaysia
  • 08 May 2019

The government has decided to exempt from its cabotage policy foreign vessels repairing undersea cables at any cable landing station in Malaysian waters. This decision has eliminated restrictions which generated unintended effects and created significant delays and costs in repairing undersea cables. Now, highly specialised, purpose-built vessels can berth in Malaysian waters to repair undersea cables.

Court of Appeal finds carrier breached contract to deliver cargo
  • Malaysia
  • 19 December 2018

A high court recently dismissed a plaintiff's claim against the defendant-carrier for breach of its contract to carry and deliver cargo to the plaintiff on the basis that the plaintiff had failed to prove its claim. However, on appeal, the Court of Appeal upheld the plaintiff's claim and found the defendant liable.

Plaintiff granted indemnity for losses following arrest of vessel on delivery of cargo
  • Malaysia
  • 01 August 2018

A recent case before the High Court of Kuala Lumpur concerned an agreement to deliver cargo from Indonesia to India. The plaintiff, Jiang Xin Shipping Co Ltd, had brought an action against the defendant seeking indemnity for the losses incurred by the plaintiff in connection with an arrest of the plaintiff's vessel on delivery of the cargo.

Court rules in Silver Moon time charterparty case
  • Malaysia
  • 24 January 2018

In a recent case, the plaintiff had instructed the defendant – the owner of the vessel Silver Moon – to head to the South Indian Ocean for cargo operations. Despite having received the instructions, the vessel had to deviate and deal with multiple repair works. In view of the vessel being unseaworthy, the plaintiff contended that the defendant was in repudiatory breach of the time charterparty and had the vessel arrested.

Changes to National Cabotage Policy
  • Malaysia
  • 09 August 2017

The prime minister recently proposed that Sabah, Sarawak and Labuan be exempted from the National Cabotage Policy, which governs maritime transport between Peninsular Malaysia and East Malaysia, effective June 1 2017. Under the proposal, foreign ships can transport cargo domestically. This announcement attracted differing opinions regarding its possible impact.