CASE(S) OF THE WEEK
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SMALL MEDIUM ENTERPRISE DEVELOPMENT BANK MALAYSIA BHD v. BLACKROCK CORPORATION SDN BHD & ORS
[2017] 9 CLJ 45
COURT OF APPEAL, PUTRAJAYA
ALIZATUL KHAIR OSMAN JCA, NALLINI PATHMANATHAN JCA, ZABARIAH MOHD YUSOF JCA
[CIVIL APPEAL NO: B-02(IM)(NCVC)-1488-09-2015]
28 JANUARY 2017
CIVIL PROCEDURE: Action – Multiplicity of actions – Whether factual matrix of present action same as previous action – Whether matter adjudged and litigated – Whether created an estoppel per rem judicature – Whether provides finality in litigation – Whether present action abuse of court's process
CIVIL PROCEDURE: Affidavit – Wound up company – Powers to institute legal proceedings – Action commenced by directors of company – Whether directors of wound up company have limited residual powers – Whether power to institute legal proceedings vested in liquidator – Whether only liquidator has capacity to depose affidavit for and on behalf of company – Whether affidavits deposed by wound up company defective – Companies Act 1965, s. 236
CIVIL PROCEDURE: Striking out – Locus standi – Wound up company – Whether has locus standi to institute action – Sanction obtained post filing of writ and statement of claim – Whether sanction is to have retrospective effect – Whether power to institute legal proceedings vested in liquidator – Filing of counterclaim after being served with bankruptcy notice – Whether action frivolous and an abuse of court's process – Rules of Court 2012, O. 18 r. 19(1)
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CASE(S) HIGHLIGHT
Uber rape case: Cab driver Shiv Kumar Yadav found guilty, faces life imprisonment
More than 10 months after a 25-year-old woman was raped and sexually assaulted inside a radio taxi in the national capital, a fast-track court in Delhi Tuesday convicted cab driver Shiv Kumar Yadav, holding him guilty on charges of rape and endangering the life of the victim. Yadav, a former driver of Uber taxi service, faces a maximum punishment of life imprisonment.
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Judgment
Sentencing Decision
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ARTICLE HIGHLIGHT
Is your notice of termination effective?
AUSTRALIAEmployment
Notice of dismissal must specify date when employment will end
An employee has been allowed to proceed with their unfair dismissal claim because an employer did not specify their end date in the letter of termination. In the recent case of Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878 (Metropolitan Fire) the Full Bench of the Fair Work Commission (Commission) found that notice of dismissal must specify the date when the employment will end, or at least provide an 'ascertainable date' in order to comply with the Fair Work Act 2009.
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Avoiding the ambush: Does your construction contract include a proper dispute resolution clause?
AUSTRALIAConstruction
Importance of ensuring all 'construction contracts' have a proper dispute resolution clause
A recent decision by the Supreme Court of Victoria has highlighted the importance of ensuring that all ‘construction contracts’ have a proper dispute resolution clause to protect against claims under the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act).
In a recent dispute between a government Department and a contractor,[1] the Supreme Court of Victoria found that the dispute resolution procedure in the then current Victorian Government Core Conditions (which allow a contractor to resolve disputes by way of referral to arbitration) constitutes a ‘method of resolving disputes’ under the legislation.[2]
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Timing issues with payment of deposits by electronic transfer
AUSTRALIA
Property
Allow sufficient time for processing of electronic transfers by third parties into receiving account
While electronic transfer is considered a faster and more direct method of payment than the traditional cheque, the recent case of Long v Hijazi1 suggests that parties to a property transaction may need to allow more time for payment of deposits where the contract provides for electronic transfer of funds.
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Restraints of trade and repudiation: Why employers need to be careful when directing departing employees to go on gardening leave
AUSTRALIA
Employment
Court can find implied right to direct employee to go on gardening leave
Restraints of trade: When will directions by employers to departing employees constitute repudiation?
A recent NSW Supreme Court decision has upheld the validity of an employer’s direction to place a departing employee on gardening leave as well as enforcing a six month post-employment non-compete restraints of trade. The judgment confirms that if an employer is careful not to repudiate the employment agreement, it can direct a senior employee to go on gardening leave and return company property at the time of the direction.
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Avoiding bankruptcy by attacking the ‘judgment debt’
AUSTRALIAInsolvency
Judgment debtor successfully challenges creditor's petition in spite of contested trial
The High Court’s recent decision in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28 has confirmed a bankruptcy court can exercise a discretion to go behind the judgment debt where sufficient reason is shown for questioning whether there is a debt due to the petitioning creditor.
In Ramsay, the judgment debtor, Mr Crompton, was successful in challenging a creditor’s petition even though there had been a contested trial. The basis relied upon by Mr Crompton for challenging the ‘debt’ was not raised by Mr Crompton at the trial even though he could have done so.
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Suspension should not be a ‘knee-jerk’ reaction according to the recent High Court case of Agoreyo v London Borough of Lambeth
UK
Employment
Employers should not simply suspend employee as precautionary act for investigation
When should you suspend employees?
Employers should not suspend employees as a matter of course. Suspension of employees should only be carried out when it is necessary and reasonable in the circumstances.
According to ACAS’ guide on Discipline and grievances at work, suspension may be necessary and reasonable where “relationships have broken down, in gross misconduct cases or where there are risks to an employee’s or the company’s property or responsibilities to other parties. Exceptionally you may wish to consider suspension with pay where you have reasonable grounds for concern that evidence has been tampered with, destroyed or witnesses pressurised before the meeting.”
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Is your trade mark vulnerable to attack? Court delivers clarity in imaging fight
AUSTRALIA
Intellectual property
Assignment can no longer cure defect in ownership
Trade mark owners who have been assigned a trade mark to rectify a defect in proprietorship should consider filing a new application. Earlier this year, the Full Court of the Federal Court of Australia ruled that an error on the Trade Marks Register (with respect to the proprietorship of a trade mark) cannot be subsequently rectified by assignment to the correct proprietor. Consequently, any registration resulting from such a purported assignment is invalid.
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