Tuesday, 20 January 2015

Malaysia-Compliance with Malaysia Deposit Insurance Corporation (Disclosure Requirements for Trust Accounts and Joint Accounts) Regulations 2012

Compliance with Malaysia Deposit Insurance Corporation (Disclosure Requirements for Trust Accounts and Joint Accounts) Regulations 2012







​_______________________________________________________________________________________________________________


Circular No 012/2015
Dated 19 Jan 2015
To Members of the Malaysian Bar
Compliance with Malaysia Deposit Insurance Corporation
(Disclosure Requirements for Trust Accounts and Joint Accounts) Regulations 2012
We refer to Circular No 024/2013 dated 23 Jan 2013 whereby we informed Members of the Malaysia Deposit Insurance Corporation (Disclosure Requirements for Trust Accounts and Joint Accounts) Regulations 2012 ("Regulations 2012"), which came into operation on 27 Nov 2012; and Circular No 052/2014 dated 11 Mar 2014 whereby Members were reminded to comply strictly with the Regulations 2012.

Malaysia Deposit Insurance Corporation (also known as Perbadanan Insurans Deposit Malaysia, "PIDM") has once again requested Bar Council to remind Members to comply strictly with the Regulations 2012 and to submit the trust account information to banks or financial institutions by 31 Mar 2015 (Tuesday).

The relevant portion of the notice we received from PIDM is reproduced below.

Attached is a copy of PIDM's "Frequently Asked Questions Relating to Insurance Cover" ("FAQs"), which provides information regarding PIDM's deposit insurance coverage and PIDM's requirements in relation to trust account.

For a copy of the Regulations 2012, and further details on PIDM's deposit insurance coverage, please access PIDM's website at www.pidm.gov.my.

For enquiries on PIDM, you may contact PIDM's officer, Hoh Li Yun by telephone at 03-2173 7561 or by email at liyun@pidm.gov.my.
Thank you.
Richard Wee Thiam Seng
Secretary
Malaysian Bar
______________________________________________________________________________________________________________________________
Dated: 6 January 2015
Reminder to update trust account information by 31 March 2015

Under the Regulations, if your members hold deposits in trust for two (2) or more beneficiaries in a single trust account[1] at our member bank, they are required to submit certain trust account information to our member bank, on an annual basis. However, trustees who hold deposits in trust for only a single beneficiary are not required to submit.
The submission should include updated information relating to the trust account, the beneficiaries, and the amount held for each separate beneficiary of the trust account or percentage interest in the trust account to which the beneficiaries are entitled to. Your members are given the flexibility to submit the required beneficiary information by way of a separate alphanumeric code or other identifier to preserve the beneficiaries' confidentiality. The deadline for the 2015 submission, based on trust account balance as at 31 December 2014, is by 31 March 2015.
It is important that the information submitted by your members to our member banks is up-to-date and accurate. This would ensure that both the trustees and beneficiaries enjoy full deposit insurance protection.
A trustee who fails to comply with this annual submission requirement commits an offence under section 195 of the Malaysia Deposit Insurance Corporation Act 2011 and may be liable to a fine, or to imprisonment, or to both.
_____________________________________________________

[1] For example, client account (e.g. current or fixed deposit account) held by a law firm

If you are a registered user of the Malaysian Bar website, you may click here to access this circular and the attachment.





--
-- 

Malaysia-International Islamic Banking and Finance Law 2015 (4 and 5 Feb 2015)

International Islamic Banking and Finance Law 2015 (4 and 5 Feb 2015)






If this email does not display correctly, please click here to view the content online.





--
-- 

Malaysia-Malaysian Bar Annual Dinner and Dance 2015 (14 Mar 2015)

Malaysian Bar Annual Dinner and Dance 2015 (14 Mar 2015)







If this email does not display correctly, please click here to view the content online.



 
This circular and the attachment may also be accessed here.





--
-- 

Malaysia-Seminar on Introduction to International Investment Law (28 Jan 2015)

Seminar on Introduction to International Investment Law (28 Jan 2015)





If this email does not display correctly, please click here to view the content online.





This circular and the registration form may be accessed here.




--
-- 

Malaysia-Meeting with Foreign Law Firms and Questionnaire on International Legal Practice 2014

Meeting with Foreign Law Firms and Questionnaire on International Legal Practice 2014





Please note that the deadline to submit the completed questionnaire is 28 Feb 2015 (Saturday).



​________________________________________________________________________________________________________________


Circular No 285/2014
Dated 17 Dec 2014
To Members of the Malaysian Bar
Meeting with Foreign Law Firms and Questionnaire on International Legal Practice 2014
The Bar Council Trade in Legal Services Committee ("TiLS") advises Bar Council on the new legal landscape where foreign law firms and foreign lawyers are permitted to practise in Peninsular Malaysia in accordance with the Legal Profession Act 1976 and the Legal Profession (Licensing of International Partnerships and Qualified Foreign Law Firms and Registration of Foreign Lawyers) Rules 2014.
In this regard, Bar Council plans to organise meetings with foreign law firms who are interested in teaming up with Malaysian law firms.
If you wish to be included on a priority list of firms that are notified of these meetings, kindly complete the attached questionnaire and return it to the following address:
The Secretariat
Bar Council Malaysia
15 Leboh Pasar Besar
50050 Kuala Lumpur
(Attention to: Roobalavaniah Rengasamy / Nurul Hafika bt Noor Hamid)
You may also submit the completed questionnaire by email to internationalservices@malaysianbar.org.my.
Should you have any enquiries, please contact Roobalavaniah Rengasamy, Officer (03-2050 2171; roobalavaniah@malaysianbar.org.my) or Nurul Hafika bt Noor Hamid, Officer (03-2050 2172; hafika@malaysianbar.org.my). 
Thank you.
Andrew Khoo Chin Hock
Chairperson
Trade in Legal Services Committee

This circular and the attachment may also be accessed here.




--
-- 

Malaysia-[ADV] Practical Law: Your cross-border Know-How resource that gives you confidence

[ADV] Practical Law: Your cross-border Know-How resource that gives you confidence






view this email in PDF








Malaysia-Workshop on Billing and Collections, Kedah (15 Feb 2015)

Workshop on Billing and Collections, Kedah (15 Feb 2015)





If this email does not display correctly, please click here to view the content online.



This circular may also be accessed here.


--
-- 

Malaysia-Seminar on the Basics of Cross-Examination in Civil and Commercial Trials, Penang (13 Feb 2015)

Seminar on the Basics of Cross-Examination in Civil and Commercial Trials, Penang (13 Feb 2015)







If this email does not display correctly, please click here to view the content online.




This circular may also be accessed here.



--
-- 

Malaysia-Ad | IBA's 4th Asia Pacific Regional Forum Conference: Borderless Asia (Singapore, 18-20 Mar 2015)

Ad | IBA's 4th Asia Pacific Regional Forum Conference: Borderless Asia (Singapore, 18-20 Mar 2015)






BANNER

A conference presented by the IBA Asia Pacific Regional Forum
Dear Colleague,
We are delighted to provide you with full programme and registration details for IBA's 4th Asia Pacific Regional Forum Conference entitled "Borderless Asia" taking place at Marina Bay Sands, Singapore on 18-20 March 2015.
The 2015 APF Biennial Conference in Singapore will be a major event in the legal calendar of 2015.  The Conference working sessions will cover two days, starting with a plenary session and then developing into three concurrent streams of sessions.  
Topics include:
  • A view from the top: hear from CEOs on the challenges and opportunities in an Asia linked by economic cooperation
  • A group of General Counsel give us a glimpse into their perfect law firm
  • Private equity deals in South East Asia
  • Cooperation agreements in Asia – the end game
  • International arbitration – the Asia Pacific and investment treaty arbitration
  • Where is dispute resolution going in the Asia Pacific?
  • The 39 Steps - approaching international cartel investigations one issue at a time
  • Looking beyond the Asian giants -opportunities which await APAC bankers and their lawyers outside of China and India
  • LNG - driving the Asian economy
  • Key issues in the retail and consumer goods sector
  • Getting all in: the expansion of the gambling and gaming industries in Asia Pacific
In addition to the substantive programme, guests are also invited to attend a Welcome Reception on the evening before the programme, taking place at Lantern Fullerton Bay Hotel, as well as a Conference Dinner to be held at the Flower Field Hall, Gardens by the Bay. Both events will deliver unparalleled networking opportunities for delegates and the chance to discuss the programme topics of the day.
The APF Biennial Conference also boasts an impressive array of internationally distinguished speakers and commentators to deliver expert input into the latest developments and hot topics, as well as delivering delegates up to 12.75 CPD/CLE hours.
Alternatively, complete the registration form contained within the conference programme and return, along with payment, to Alice Kim at International Bar Association Asia office, 10th Floor, Seoul Global Center Building, 38 Jong-ro (Seorin-dong), Jongno-gu, Seoul, South Korea; Tel; +82 70 7004 8773, FAX; +82 2 6279 8101; Email: alice.kim@int-bar.org .
For details of how to become a sponsor for this event, simply email sponsorship@int-bar.org or click here to be taken through to the Conference website.
We look forward to seeing you in Singapore!
Kind Regards,
Conference Co-Chairs
ameera
Ameera Ashraf
WongPartnership, Singapore        
Secretary, IBA Asia Pacific Regional Forum
        Lawrence
Lawrence Teh
Rodyk & Davidson, Singapore
Co-Chair, IBA Asia Pacific Regional Forum
                                                                           

footer

Logo



This is a paid advertisement.  If you would like to know more about Bar Council's advertising options, please contact us by email at advertise@malaysianbar.org.my.







--
-- 

Malaysia-Whether failure to send notices of meetings or failure to declare dividends were of themselves conduct which could be regarded as oppressive

In Lee Ah Kong @ Lee Muk Sang v Wings Logistic Sdn Bhd & Anor [2015] 7 MLJ 408, it was held that:-

"...NOTICE OF AGM/AUDITED REPORTS
[121] At the outset, it is my finding that the second respondent was/is most definitely in control of the company. Next, in so far as the notices of AGM are concerned, of course it is true that under article 41 of the Article of Association, all that the company has to do is to send the notices by post and that is the end of that. There is no evidence that there has been any deliberate attempt on the part of the second respondent or the company secretary, not to issue notices of AGM to the petitioner. It is to be noted that the petitioner attended the AGMs for 2002, 2003, 2004.
[122] Since 2005, he has not been attending AGMs. For the AGMs that he attended, he was notified by the staff of the company and therefore he was able to attend the AGMs. Since 2005 until 2012, there seems to have been inertia on the part of the petitioner or as was submitted by counsel for the respondents, the petitioner went into slumber.
[123] Clearly there seems to be no action on the part of the petitioner, with respect to the notices of AGM and also in respect of the audited reports for the previous years when he did not attend the AGM. Now, all along petitioner says he has not been attending AGMs but at the same time, the petitioner could not have been unaware that there will be AGMs for the company every year, and therefore he could have himself made inquiries with the company secretary or with the directors or with the staff of the company which does not seem to have been done.
[124] In so far audited reports are concerned these are a matter of public record and the petitioner could have obtained these reports from the Companies Commission of Malaysia for the years that he did not attend the AGMs and therefore such a complaint that he did not receive audited reports cannot to my mind amount to oppressive conduct on the part of the second respondent.
[125] In so far as the complaint that he has not been receiving annual dividends is concerned, that has always been the case since 2002 when he became a shareholder until he filed the petition on 7 January 2013. And so for almost ten years, he has not been receiving dividends. The question is: what has he been doing all these years? He appears to have gone along without receiving any dividends and it is rather late for him to complain in 2012 that he has not received dividends and that that is a manifestation of oppressive conduct.

[126] There has obviously been delay and the principle enunciated in Re Sensun Auto Supplies Sdn Bhd [1988] 1 MLJ 326 applies, regardless of the fact that the petitioner was not in management of the company. The principle is that the complainant should not delay in making complaints of so called oppressive conduct otherwise he would be deemed to have acquiesced to the conduct and may be precluded from mounting a challenge by way of an action under s 181 of the Companies Act 1965.
[127] Now, on the topic of annual dividends also it must be borne in mind that it is the discretion of the directors whether to declare dividends or not. As was rightly pointed out, in the initial years, the company was indebted to directors and financiers. So, payment of dividends was, properly in the exercise of the discretion of the management, not declared.
[128] Then when we also look at the articles of association it provides for the company to invest in property and this is exactly what they have done. They have a bonded warehouse which is yielding income by way of rentals and they have also ploughed the access funds of the profits available for distribution, into the purchase of the 13 shop-lot units in Maritime Piazza.
[129] When looked at objectively, it would appear that that is good investment and because of all these investments, the share value of the petitioner's share has appreciated. Again, that repudiates any notion of oppressive conduct against the second respondent based on non declaration of dividend.
[130] In this regard, although it is tempting to conclude that the case of Re Gee Hoe Chan Trading Co Pte Ltd [1991] 3 MLJ 137; [1991] SLR 837, is on all fours with the present case before me, it is I think quite clearly distinguishable as the learned judge in that case had very pointedly made a finding of fact that the non-payment of dividend in that case was a way of punishing the petitioners. The following observation of the judge in the grounds of judgment makes this point rather clear. He said, at p 141:

Looking at the evidence objectively, I did not think I could accept the explanations of the respondents. The truth was probably, and I do so find, that the respondents were upset that the petitioners had the audacity to question how the respondents managed the company and to even think to withdraw from the company. I am inclined to believe that, the non-declaration of dividends was the respondents' (who controlled both the general meeting and the board of directors) was to punish the petitioners.

[131] In the present case there is no assertion by the petitioner that the non-declaration of dividends was targeted specifically at the petitioner.

[132] Lastly, I observed that the petitioner's proxy Mr Wong Thai Sun who attended the AGM on 12 July 2012 asked several questions about expenses but raised no specific question about non-payment of dividend (see exh CKA3 encl 7). So it was clear that the petitioner was only concerned with the surge in expenses but was not concerned with non-payment of dividends.
[133] Of course, when this petition was filed, non-payment of dividends took centre stage.
[134] To conclude on this point, I think it would be relevant for me to quote a passage from the judgment of Hamid Sultan JC, (as he then was) in See Hua Realty Bhd v See Hua News Holdings Sdn Bhd & Ors [2007] 7 MLJ 525 which reads as:

Unwise, inefficient or careless conduct of director or directors in my view will not pass this test. The learned authors of Datta on The Company Law (4th Ed) at p 809 set out the acts the court held as oppressive and those which were not held as oppressive. It reads as follows:
It must go beyond what is required to make out a case for a winding up order and must indicate some lack of probity or fair dealing towards one or more members of the company (Fildes Bros Ltd [1970] 1 All ER 923). This section covers oppression by anyone who is taking part in the conduct of the affairs of the company whether de facto or de jure (HR Harmer Ltd, Re [1959] 1 WLR 62; [1958] 3 All ER 689). It is not essential that the alleged oppressor is oppressing in order to obtain a financial benefit; conduct may be oppressive even if it is simply due to overwhelming desire for power and control (KRS Narayana Iyengar v T A Mani, A 1960 Mad 338; HR Harmer). An act of omission might amount to oppressive conduct if it is shown that it was designed to achieve some unfair advantage (Five Minutes Car Wash Services Ltd [1966] 1 WLR 745). Where after the life insurance business of a company was nationalised the majority wanted to use the assets in some other business, it was held that this amounted to oppression on the minority (Hindusthan Co-operative Insurance Society Ltd 65 CWN 68). It is an oppression to pass a resolution prejudicing the interest of the company or its shareholders generally (AM Varkey v JR Motishaw A 1964 Ker 114).
Unreasonable conduct of directors of a private company in refusing, owing to private disputes, to register transfer of some shares while transferring some other shares bequeathed under a will, involves the violation of the conditions fairplay and amounts to oppression (Mrs Gajarabai v Patny Transport P Ltd (1965) 2 Comp LJ 234). Overthrow of the majority by physical force though a single act, its effect is likely to persist indefinitely and amounts to oppression of the majority by a minority and an order should be made under this section (Ramashankar Prasad v Sindri Iron Foundry Pvt Ltd, A 1966 Cal 512).
Acts held not oppressive - Allegations of unwise, inefficient and careless conduct against a director in the performance of his duties cannot in themselves give rise to any claim for relief under this section and a petition limited to such allegations will be dismissed in limine. Acts of misappropriation and mismanagement or improper payment of dividend in the past cannot support an application under this section:

they must be continuing up to the time of presentation of application (Stadmed Private Ltd v Kshetra Mohan Saha, 72 CWN 601, 616). Denial of right of inspection or other right of a shareholder or failure to comply with formalities required in the matter of giving notice of general meeting or refusal to declare more than moderate rate of dividend even though the profits earned could justify a higher rate of dividend may not, taken by themselves, amount to oppression (Maharani Lalita Rajya Lakshmi v Indian Motor Co, A 1962 Cal 127). Mere illegal or irregular acts, unless they are oppressive or prejudicial to the interests of the company or to public interest, cannot support a petition (Seth Mohanlal Ganpatram v Shri Sayaji Jubilee Cotton and Jute Mills Co Ltd, 34 Comp Cas 777 ) (see p 536) (Emphasis added.)
It has been held that the court has no jurisdiction to interfere with the internal management of companies so long as they are otherwise being managed in accordance with the law (see Re Tri-Circle Investment Pte Ltd. Further, the court will not concern itself with the rationality of a business decision taken by the directors unless there is fraud, (see Dato' Toh Kian Chuan v Swee Construction and Transport Co (Malaya) Sdn Bhd [1996] 1 MLJ 730). It is also an established principle that the relief under s 181 is only available to an applicant who has suffered harm in his capacity as a member of the company (see Re A Company [1983] 2 All ER 36) and it would be denied to him where he has acquiesced to the conduct complained of (see Senson Auto Supplies Sdn Bhd [1988] 1 MLJ 326). In Re Kong Thai Sawmill (Miri) Sdn Bhd [1978] 2 MLJ 227, the Privy Council explained that for s 181 CA 1965 to be applicable, the petitioner must prove 'oppression' or disregard, that is to say: (i) there must be a visible departure from the standards of fair dealing and a violation of the conditions of fair play; or (ii) an awareness of the interest and a conscious decision to override it or brush aside that interest. In Re HW Thomas Ltd (1984) 2 ACLC 610, the New Zealand Court of Appeal held that the terms 'oppressive', 'unfairly discriminatory or unfairly prejudicial' were not to be regarded as three distinct alternatives which are to be considered separately in watertight compartments. They were to be read together. The court further held that question of the fairness or otherwise of the company's financial management had to be examined against the background of the company and reasonable expectations of its members and not simply from the applicant's point of view. This involved the balancing of the conflicting interests of the different groups within the company to see if there was a 'visible departure from the standards of fair dealing'. (see p 540)

[135] Based on the above, it seems that failure to send notices of meetings or non declaration of dividends are not of themselves conduct which may be regarded as oppressive...."

Malaysia-Principles applicable to an application to stay a winding-up Order pursuant to Section 243 of the Companies Act, 1965

In Hup Guan Chan Sdn Bhd v Yi Qiang Auto Parts Sdn Bhd [2014] MLJU 695, it was held that:-

"...Findings of the Court
[15] S 243(1) of the Companies Act 1965 provides: "At any time after an order for winding up has been made the court may, on the application of the liquidator or of any creditor or contributory and on proof to the satisfaction of the court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings either altogether or for a limited time on such terms and conditions as the court thinks fit."
[16] It is plain that it is discretionary upon the court whether to make the order conditionally or at all. The discretion must no doubt be made judicially. The principles relating to the exercise of the discretion under s 243 of the Companies Act 1965 are succinctly set out by Haji Arifin bin Haji Jaka J ( as he then was) in Ting Yuk Kiong v Mawar Biru Sdn Bhd & Anor [1995] 3 CLJ 136 quoting Re Warbler Pty Ltd [1982] 6 ACLR 526 that:

  • a)
    The granting of a stay is a discretionary matter and there is a clear onus on the applicant to make out a positive case for a stay: Re Calgary and Edmonton Land Co Ltd [1975] 1 All ER 1046. 
  • b)
    There must be service of notice of the application for a stay on all creditors and contributories and proof of this. (Re South Barrule State Quarry Co [1969] LR 8 Eq 688, Re Bank of Queensland Ltd [1870] 2 Qs CR 113 referred to). 
  • c)
    The nature and extent of the creditors must be shown and whether or not all debts have been discharged. (Krextile Holdings Pty Ltd v Widdows [1974] VR 689 at 694; Re Dalta Homes Pty Ltd [1972] 2 NSWLR 22 at 26 referred to). 
  • d)
    The attitude of creditors, contributories and the liquidator is relevant consideration. (Re Calgary and Edmonton Land Co Ltd referred to). 
  • e)
    The current trading position and general solvency of the company should be demonstrated. Solvency is of significance when a stay in the winding up proceeding is sought. (Re a Private Company [1935] NZLR 120 : Re Mascot Home Furnishers Pty Ltd [1970 VR 593 at 598 referred to). 
  • f)
    If there has been non-compliance by directors with their statutory duties as to the giving of information or furnishing a statement of affairs a full explanation of the reasons and circumstances should be given. (Re Telescriptor Syndicate Ltd [1963] 2 Ch 174 referred to.) 
  • g)
    The general background and circumstances which led to the winding up order should be explained. ( Krextile Holdings Pty Ltd v Widdows supra referred to.) 
  • h)
    The nature of the business carried on by the company should be demonstrated and whether or not the conduct of the company was in any way contrary to the "commercial morality" or the "public interest". (Krextile Holdings Pty Ltd v Widdows supra, Re Dalta Homes Pty supra referred to.)" 
These principles were referred, discussed and approved by the Federal Court in Vijayalakshimi Devi v Dr Mahadevan [1995] 2 MLJ 709...."

Malaysia-Whether post the Rules of Court 2012, 181 petitions must be by way of Originating Summons

In Lee Ah Kong @ Lee Muk Sang v Wings Logistic Sdn Bhd & Anor [2015] 7 MLJ 408, it was held that:-

"...[3] This petition was filed on 7 January 2013, whereas the Rules of Court 2012 ('the ROC') came into force on 1 August 2012. Hence, the applicable procedural rules are the ROC. The ROC is in pith and substance an amalgam of the Rules of the Subordinate Court 1980 and the Rules of the High Court 1980.
[4] However, it has made substantial changes to the adjectival law in Malaysia, in particular (but not limited to) to the modes of commencement of actions. Under the ROC parties are to file their actions either by way of writ or originating summons, unless it is one of the matters that falls under Appendix C to the ROC. The present action however, was filed by way of petition instead of the mode as prescribed by the ROC.
[5] At the outset, I drew the attention of counsel to O 5, O 88 and O 94 and Appendix C of the ROC which pertain to the modes of commencement of proceedings. I have, for ease of reference, reproduced the relevant Orders.
[6] Order 5 r 1 reads as follows:

Except as provided in these Rule and subject to Order 94, rule 2, proceedings shall be commenced either by originating summons or by writ.

[7] Next, O 88 r 2 reads as follows:

Except for the proceedings specified in Appendix C relating to Winding Up of companies and capital reduction under the Act, proceedings under the Act shall be commenced by originating summons.


[8] Then, O 94 reads as:

(1) Order 5 r 1 shall not apply to the proceedings under the matters law listed in Appendix C, except as provided under these Rules.

[9] Finally, I refer to Appendix C to the ROC which is reproduced below:

Appendix C
List of Exempted Laws
(1) item(2) Proceedings(3) Written LAw
1Bankruptcy proceedingsBankruptcy Act 1967
2Proceedings relating to the winding up of companies and capital reductionCompanies Act 1965
3Criminal proceedingsCriminal Procedure Code [Act 593]
4Proceedings under the Elections Offences Act 1954Election Offences Act 1954 [Act 5]
5Matrimonial ProceedingsLaw Reform (Marriage and Divorce) Act 1976 [Act 164]
6Land ReferenceLand Acquisition Act 1960 [Act 486]
7Admission to the BarLegal Profession Act 1976 [Act 166] Advocates Ordinance of Sabah [Sabah Cap.2] Advocates Ordinance of Sarawak [Sarawak Cap. 110]
8Proceedings under the Income Tax Act 1967Income Tax Act 1967 [Act 53]

[10] The above provisions in the ROC make it abundantly clear that the present application ought to have been filed by way of originating summons and not by way of petition. Under the ROC, the only matters under the Companies Act 1965 which are to be filed by way of petition are matters falling under s 62 (capital reduction) and s 218 (winding up) (see Appendix C to the ROC).
[11] Hence, under the ROC, proceedings under s 181 of the Companies Act 1965 are to be commenced by way of originating summons.

[12] Order 88 r 2 of the ROC, now provides that all matters under the Companies Act 1965 (other than those falling within Appendix C) are to be filed by way of originating summons. In this case, it is obvious that the wrong mode of commencement was used.
[13] However, the respondents raised no objection to the fact that the wrong mode of commencement had been used. In any event, I was of the view that it was an important procedural point which I ought to raise on my own volition and deal with accordingly.
[14] The view that I took was that notwithstanding that the wrong mode had been used, the utilisation of the wrong mode was not fatal and was an irregularity which, in the interest of justice and with a generous application of indulgence and common sense, could be cured.
[15] The other option would have been to take a strict and inflexible approach and strike off this matter and for the litigant to re-file the matter properly. However, I decided not to take that route particularly as the matter had reached the final stage of the litigation process wherein all affidavits and written submissions had been filed leaving only for oral clarifications to be made to the court.
[16] In those circumstances, it appeared to me that it would be a wasteful exercise to strike off the matter. Also I took the view that to strike off the matter at this stage of the litigation would have been grossly unfair to the parties.
[17] Whilst it is true that ignorance of the law (both adjectival and substantive) is no excuse, I gave every possible allowance for the reality of the situation that during the initial months after the coming into force of the ROC, there is bound to be a degree of unfamiliarity with the changes that have been brought about by the ROC resulting in mistakes such as the present one.
[18] In this case, I noted that the petition was filed about five months after the ROC came into force. Of course, in some instances, non-compliance with the ROC may be incurable and therefore fatal. The present case does not fall into that category.
[19] In this regard, I was of the view that it was appropriate to invoke O 2 r 1(1) of the ROC which allows the court a sufficient measure of discretion to excuse such non-compliance and to regularise the action by deeming it as having been properly filed.

[20] As I said earlier, there are some instances of non-compliance which may be fatal and are not capable of being cured or regularised. It all depends on the type of non-compliance. Most certainly O 2 r 1(1) of the ROC cannot be utilised in an omnibus fashion to cure all sorts of non-compliance and it is not to be and cannot be regarded as an automatic safety net or panacea to cure all types of procedural non-compliance.
[21] In the upshot, in so far as the present non-compliance is concerned, I took into account the following:

  • (a)
    that the petition was filed shortly after the ROC came into force; 
  • (b)
    that there would or could be some degree of unfamiliarity with the changes that have been brought about by the ROC; 
  • (c)
    that there is no prejudice caused by the use of the wrong mode of originating process; 
  • (d)
    the litigation had reached its final stage (ie submissions and decision) and 
  • (e)
    that no objection was raised. 
[22] As such, I decided that it was in the interest of justice that I should utilise my powers under O 2 r 1(1) of the ROC to excuse the petitioner (if I can call him that) for his non-compliance with the ROC with respect to the mode of commencement and treated this petition as having been properly filed pursuant to the ROC.
[23] For completeness, I may add that had an originating summons been filed and parties felt it was necessary to test the averments made in the affidavits then O 28 r 4 of the ROC may be invoked for parties to cross examine the deponents of affidavits. Alternatively, there is the avenue of O 28 r 8 for conversion of the originating summons to a writ. What is imperative is the process must be commenced by way of originating summons.
[24] In order to avoid confusion, I will continue to refer to the originating process as the petition but with the caveat that it should actually have been an originating summons...."

Proview eBook Bi-Weekly Offer - Get your copy at 20% off!

Proview eBook Bi-Weekly Offer - Get your copy at 20% off! ...