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CASE(S) OF THE WEEK

LEMBAGA PEMBANGUNAN INDUSTRI PEMBINAAN MALAYSIA v. KONSORTIUM JGC CORPORATION & ORS (SUED AS INCORPORATED PARTNERSHIP)
COURT OF APPEAL, PUTRAJAYA
ABDUL WAHAB PATAIL JCA, ANANTHAM KASINATHER JCA, MOHAMAD ARIFF YUSOF JCA
[CIVIL APPEAL NO: W-01-797-2010]
30 DECEMBER 2014

REVENUE LAW: Income tax - Interpretation of - Levy - Levy under Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 ('CIDB Act') - Whether levy had to be paid for 'offshore works' or 'non-construction works' - Determining meaning of 'construction works' - Extra-territorial effect of the CIDB Act

STATUTORY INTERPRETATION: Construction of statutes - Taxing statutes - Principles of interpretation - Whether levy under Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 had to be paid for 'offshore works' or 'non-construction works' - Whether purposive interpretation to be applied


LOW CHIN MENG v. CIMB ISLAMIC BANK BHD
COURT OF APPEAL, PUTRAJAYA
ROHANA YUSUF JCA, DRUS HARUN JCA, ABDUL RAHMAN SEBLI JCA
[CIVIL APPEAL NO: W-02(MUA)(W)-273-02-2014]
29 DECEMBER 2014

BANKING: Islamic banking - Loan facility - Al Bai Bithaman Ajil - Default - Claim against guarantor - Whether memorandum of deposit of securities operated as guarantee document - Whether constituted contract of guarantee under s. 79 of Contracts Act 1950 - Inconsistencies in documents - Whether contra preferentem rule applied - Whether there was compliance with ss. 67 and 67A of Companies Act 1965 - Whether share sale and share repurchase transactions were sham and illegal - Whether court had properly referred to Syariah Advisory Council for rulings - Central Bank of Malaysia Act 2009, s. 56(1)

COMPANY LAW: Shares - Dealing by company with its own shares - Whether company provided financial assistance to third party to buy its shares - Share sale and share repurchase transactions made as security for Al Bai Bithaman Ajil loan facility - Whether transactions resulted in improper diminution or reduction of company's capital - Whether s. 67 of Companies Act 1965 infringed - Whether purported share buy-back by company was 'purchase' as envisaged in s. 67A Companies Act 1965 - Companies Act 1965 ss. 67 & 67A

CONTRACT: Construction of contracts - Contra preferentem rule - Whether applicable - Whether there was inconsistency in contract documents - Whether court bound by labels affixed by parties - Whether document should be construed as a whole

CONTRACT: Guarantee - Loan facility - Claim against guarantor - Whether memorandum of deposit of securities operated as constituted guarantee document - Whether a contract of guarantee under s. 79 of Contracts Act 1950


UDA HOLDINGS BHD v. BISRAYA CONSTRUCTION SDN BHD & ANOR AND ANOTHER CASE
HIGH COURT MALAYA, KUALA LUMPUR
MARY LIM J
[ORIGINATING SUMMONS NO: 24C-6-09-2014 & 24C-5-09-2014]
5 DECEMBER 2014

ARBITRATION: Jurisdiction - Disputes - Disputes on non-payment of claims and rates before 15 April 2014 referred to arbitration - Construction Industry Payment and Adjudication Act 2012 ('Act') came into force on 15 April 2014 - Whether adjudicator had jurisdiction to hear and decide disputes that arose before 15 April 2014 - Whether there were express prescriptions in Act on limit of applicability of Act - Whether Act to be applied retrospectively or prospectively - Whether substantive rights would be affected by retrospective application of Act - Intention of Parliament

STATUTORY INTERPRETATION: Retrospective operation - Construction of statutes - Construction Industry Payment and Adjudication Act 2012 ('Act') came into force on 15 April 2014 - Disputes on non-payment of claims and rates before 15 April 2014 referred to arbitration - Whether adjudicator had jurisdiction to hear and decide disputes that arose before 15 April 2014 - Whether there were express prescriptions in Act on limit of applicability of Act - Whether Act to be applied retrospectively or prospectively - Whether substantive rights would be affected by retrospective application of Act - Intention of Parliament - Whether applicable prospectively to only construction contracts made on or after operation of Act - Whether applicable retrospectively to all payment disputes provided no litigation proceeding had been commenced - Whether applicable to payment disputes under construction contract which arose on or after operation date contract regardless of when contract was made


BUMI ARMADA NAVIGATION SDN BHD v. MIRZA MARINE SDN BHD
HIGH COURT MALAYA, KUALA LUMPUR
WONG KIAN KHEONG JC
[ORIGINATING SUMMONS NO: 24NCC-23-01-2015]
20 MAY 2015

ARBITRATION: Reference of dispute - Interim relief - Whether court may grant interim relief pending disposal of arbitration - Whether court may give interim injunction before commencement of arbitral proceedings - Elements to be proven for interim relief - Arbitration Act 2005, s. 11(1)

ARBITRATION: Reference of dispute - Interlocutory injunction - Application for Mareva injunction pending conclusion of arbitral proceedings - Whether court may grant Mareva injunction before or during arbitral proceedings - Elements to be proven - Conditions that may be imposed on Mareva injunction - Arbitration Act 2005, s. 11(1)(f), (g) & (h)

CIVIL PROCEDURE: Costs - No order as to costs - Punishment for delay - Failure to send arbitration notice as soon as possible after obtaining ex parte Mareva injunction - No order made as to costs - Rules of Court 2012, O. 59 r. 8(b)

CIVIL PROCEDURE: Injunctions - Mareva injunction - Application for Mareva injunction pending conclusion of arbitral proceedings - Whether court may grant Mareva injunction before or during arbitral proceedings - Elements to be proven - Conditions that may be imposed on Mareva injunction - Arbitration Act 2005, s. 11(1)(f), (g) & (h)

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