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CASE(S) HIGHLIGHT
TETUAN KHANA & CO v. SALING LAU BEE CHIANG & ORS AND OTHER APPEALS; MALAYAN BANKING BHD (INTERVENER)
COURT OF APPEAL, PUTRAJAYA
IDRUS HARUN JCA; HASNAH MOHAMMED HASHIM JCA;
YEOH WEE SIAM JCA
[CIVIL APPEALS NO: J-02(W)-219-02-2017, J-02(W)-220-02-2017, J-02(W)-221-02-2017, J-02(W)-224-02-2017, J-02(W)-225-02-2017, J-02(W)-226-02-2017, J-02(W)-227-02-2017 & J-02(W)-228-02-2017]
22 JANUARY 2019
(Trusts; Civil Procedure - Duties - Fiduciary duty - Breach by trustees - Failure by trustees to account for losses - Whether trustees liable for losses suffered by Trust - Receiver and manager - Whether empowered to institute any legal proceedings - Judgments - Grounds of judgment - Whether decision based on evidence adequately found and on law - Application to impugn judgment by intervener - Whether judgment concerned intervener - Whether exemplary damages unconnected with substance of appeal - Whether fatally flawed)
Judgment
See also:
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TETUAN KHANA & CO v. SALING LAU BEE CHIANG & OTHER APPEALS [2019] 3 CLJ 1
- TETUAN KHANA & CO v. SALING LAU BEE CHIANG & ORS AND OTHER APPEALS [2019] 1 CLJ 501
CASE(S) OF THE WEEK
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JAYA SUDHIR JAYARAM v. NAUTICAL SUPREME SDN BHD & ORS
[2019] 7 CLJ 395
FEDERAL COURT, PUTRAJAYA
RAMLY ALI FCJ, AZAHAR MOHAMED FCJ, ABANG ISKANDAR FCJ, IDRUS HARUN FCJ, VERNON ONG LAM KIAT JCA
[CIVIL APPEAL NO: 02(i)-83-09-2018(W)]
01 JULY 2019
The provisions of s. 10(1) and (3) of the Arbitration Act 2005 do not apply to persons who are non-parties to arbitration proceedings or agreements. Hence, a litigant who is not a party to an arbitration agreement, or whose claim is not the subject matter of an arbitration agreement, is capable of seeking an injunction to restrain the prosecution of such arbitration agreement and bears no burden to satisfy the requirements of the said s. 10; where s. 10 is inapplicable, it inevitably follows that s. 8 of the Act is of no application either.
ARBITRATION: Proceedings – Injunction – Application for injunction to restrain arbitration proceedings – Whether requirements of s. 10 of Arbitration Act 2005 must be met by party litigant seeking injunction to restrain prosecution of arbitration to which he was not party but which would affect his proprietary rights – Whether s. 8 of Arbitration Act 2005 applied to party litigant who was not party to arbitration agreement and/or arbitration proceedings – Issues relating to a party who was not subjected to arbitration – Whether priority should be given for matter to be dealt with by court – Whether there was multiplicity, duplication and overlap of issues in arbitration and suits – Whether court proceedings should proceed ahead of arbitration proceedings – Whether there would be prejudice if injunction granted – Whether oppressive, vexatious and unconscionable for arbitration proceedings to continue – Whether injunction ought to be granted
CIVIL PROCEDURE: Injunction – Arbitration – Application for injunction to restrain arbitration proceedings – Whether requirements of s. 10 of Arbitration Act 2005 must be met by party litigant seeking injunction to restrain prosecution of arbitration to which he was not party but which would affect his proprietary rights – Whether s. 8 of Arbitration Act 2005 applied to party litigant who was not party to arbitration agreement and/or arbitration proceedings – Issues relating to a party who was not subjected to arbitration – Whether priority should be given for matter to be dealt with by court – Whether there was multiplicity, duplication and overlap of issues in arbitration and suits – Whether court proceedings should proceed ahead of arbitration proceedings – Whether there would be prejudice if injunction granted – Whether oppressive, vexatious and unconscionable for arbitration proceedings to continue – Whether injunction ought to be granted
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AFFIN BANK BHD v. JAMALUDIN JAAFAR; THE ASSOCIATION OF BANKS IN MALAYSIA & ANOR (INTERVENERS)
[2019] 7 CLJ 541
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP PCA, HASAN LAH FCJ, RAMLY ALI FCJ, ZAHARAH IBRAHIM FCJ, JEFFREY TAN FCJ
[CIVIL APPEAL NO: 02(f)-7-02-2017(K)]
15 MAY 2019
There is no express prohibition, under the Kedah Malay Reservations Enactment No. 63, against the creation of a charge over Malay Reservation Land, by a Malay, in favour of a non-Malay.
LAND LAW: Malay Reservation Land - Charge - Bank granted facilities to non-Malay borrower company - Malay man executed charge over Malay Reservation Land to secure facilities - Borrower defaulted in repayment of loan - Whether vesting of interest in Malay Reservation Land to non-Malay by way of third party charge valid - Whether fact that non-Malay was non-natural person relevant - Whether there is conflict between second paragraph in Schedule A and s. 6(2) of Kedah Malay Reservations Enactment No. 63 - Whether there is statutory provision prohibiting Malay Reservation Land, owned by a Malay, from being charged to any party who is not categorised as Malay
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ARTICLE HIGHLIGHT
Islamic finance a main pillar for the Islamic digital economy
Malaysia
Islamic finance
Malaysia at forefront of developing inclusive Islamic digital economy
With the progress of new financial technologies and countless innovations in many other segments of the global economy, advanced Muslim countries are increasingly working on establishing an ecosystem for what they define as an “inclusive Islamic digital economy.”
Such a concept aims at combining the core sectors of what today constitutes the digital economy under Shariah compliance, besides Islamic finance and investment products, also e-commerce, food, transportation and logistics, the sharing economy, as well as lifestyle, travel and entertainment.
Market data shows that Muslim consumers worldwide contributed over $200bn to the global digital economy of a total of more than $2tn as of 2018, and at a 17% compounded annual growth rate their spending has been growing faster than the rest of the digital economy.
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HR administrator was unfairly dismissed after employer failed to consult during redundancy
UKEmployment
No proper consultation with Oracle administrator about ways to avoid redundancy
An HR administrator was unfairly dismissed after a tribunal ruled her employer made her redundant and failed to consult with her during a company-wide restructuring exercise.
The Reading employment tribunal (ET) found there was no proper consultation with Mrs H Bagri, an HR administrator for Oracle, about ways to avoid redundancy.
Judge Andrew Gumbiti-Zimuto rejected Oracle’s arguments that Bagri’s role as an HR professional meant she would have “[complained] about inadequate consultation”, and the fact that Bagri did not do so “showed there was an adequate consultation”.
An additional complaint of breach of contract was dismissed.
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Israel Folau: Sacked player sues Rugby Australia over anti-gay row
AUSTRALIAEmployment
Sacked rugby player's case may set legal precedent for national employment law
Sacked rugby player Israel Folau has launched court action against Rugby Australia (RA) in a case which may set a legal precedent for religious expression in Australian workplaces.
The former Wallabies player was fired in May after he wrote on social media that "hell awaits" gay people.
He argues his contract was unlawfully ended due to his Christian beliefs.
Australian rugby officials maintain that Folau breached a players' code of conduct.
Mediation attempts in Australia's main workplace relations tribunal broke down in June.
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Supermarket worker was unfairly dismissed over inappropriate messages to 17-year-old colleague
UKEmployment
Tesco employee unfairly dismissed
A supermarket worker was unfairly dismissed after managers carried out a flawed investigation into ‘inappropriate’ messages he sent to a 17-year-old colleague, a Scottish tribunal has ruled.
The Dundee tribunal said various Tesco managers failed to carry out a fair investigation into comments the worker, who was referred to as S in court documents, made towards a younger co-worker on Facebook, as well as a subsequent comment made in person. S was 39 at the time.
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June’s top five employment law cases
UKEmployment
Five most read tribunals of last month
People Management takes a look at the five most read tribunals of last month
1. Railway worker who lowered crossing barrier onto car was not unfairly dismissed
A railway crossing keeper was fairly sacked after he admitted bumping a car with a crossing barrier to “teach its driver a lesson”, a south London employment tribunal (ET) ruled.
Mr A McKay worked for Network Rail as a crossing keeper from May 2005 until he was dismissed on 12 January 2018 following allegations of gross misconduct after the incident involving a car he felt had failed to respect warning alarms.
McKay brought claims of unfair dismissal to the ET, however Judge Katherine Andrews ruled in favour of Network Rail, saying it had reasonable grounds to dismiss McKay and carried out a fair investigation.
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