Tuesday, 13 October 2015

MALAYSIA-TIME STOPS RUNNING UPON THE MAKING OF A WINDING-UP ORDER

In the Court of Appeal case of Koh Huat Kwan v Pegawai Penerima selaku pelikuidasi bagi Poh Mah Housing Development Sdn Bhd & Ors - [2015] 5 MLJ 323, it was held that:-

"..[21] In all the circumstances of this case, we agree with the learned High Court judge that the sale of the land is a disposal of the assets of a company in liquidation. The principle that time stops to run when a company is in liquidation is quite settled. The commencement of a liquidation stops time running in favour of the creditors of a company. In other words, time under the LA 1953 ceases to run against a creditor on a winding up order being made (see Halsbury's Laws of England, Vol 7(3) (4th Ed) at p 1730; In re General Rolling Stock Company, Joint Stock Discount Company's Claim (1872) LR 7 Ch App 646 at pp 648[#65533]650; Re Cases of Taff Wells Ltd [1992] BCLC 11 and Re Overmark Smith Warden Ltd [1982] 3 All ER 513)."

MALAYSIA-CONTEMPT OF COURT-TEST

In the Court of Appeal case of Teo Cheng Hua v Ker Min Choo & Ors [2015] 5 MLJ 365, it was held that:-

"[25] The conduct of the appellant in tampering with material documentary evidence before the court, in our judgment, clearly amounted to an interference with the due administration of justice and constituted contempt of court. We wish to express our understanding of the law of contempt of court in that primarily for there to be an interference with the administration of justice, only a likelihood of such interference would suffice. The Court of Appeal decision in the case of Murray Hiebert v Chandra Sri Ram [1999] 4 MLJ 321 on the correct test for contempt of court held:

To constitute contempt of court, it is not necessary to prove affirmatively that there had been an actual interference with the administration of justice by reason of offending statements. It is enough if it is likely or it tends in any way to interfere with the proper administration if justice (per Dua CJ in Brig ET Sen (Retd) v Edatata Narayanan & Ors 1969 AIR Delhi 201)...."

MALAYSIA-If a lease or sub-lease (exceeding 3 years) is rendered void by reason of want of registration under the provisions of the National Land Code 1965, does the lease or sub-lease become:- (i) A tenancy at will and if so for what period? or (ii) An equitable sub-lease and if so, for what period?

In the Federal Court case of  S & M Jewellery Trading Sdn Bhd & Ors v Fui Lian-kwong Hing Sdn Bhd - [2015] MLJU 518, it was held that:-

"[1] The sole question upon which leave was granted to appeal against the order of the Court of Appeal in respect of the matter decided by the High Court in the exercise of its original jurisdiction reads:

If a lease or sub-lease (exceeding 3 years) is rendered void by reason of want of registration under the provisions of the National Land Code 1965, does the lease or sub-lease become:-

  • (i)
    A tenancy at will and if so for what period? or 
  • (ii)
    An equitable sub-lease and if so, for what period?... 

[56] We now answer the leave question as follows. A lease or sub-lease (exceeding 3 years) is not rendered void by reason of non-registration. A lease or sub-lease (exceeding 3 years) is imperfect without registration. Unless perfected, it will not operate to transfer title to the lessee or sub-lessee. It is nonetheless an agreement for a lease. An agreement for a lease does not create a relationship of landlord and tenant. But if the tenant is let into possession under the imperfect lease or sub-lease, he becomes a tenant at will (for further reading on the creation of a tenancy at will, see Megarry & Wade supra at paragraph 17-102). A tenancy at will, is determinable at the will of either party, and being such it cannot co-exist with a periodic tenancy or an equitable lease. When the tenant pays or expressly agrees to pay rent, the tenancy at will changes into a periodic tenancy upon the terms of the intended lease or sub-lease, that is, from year to year or for other periodic period, according to the computation of the rent. Where appropriate, equity may treat an agreement for lease as an equitable lease, that is, treat the unregistered lease as registered, and compel specific performance against the proprietor...."


Malaysia-proviso to section 340(3) of the NLC

In the Federal Court case of Samuel Naik Siang Ting & Ors v Public Bank Bhd [2015] MLJU 519, it was observed that:-

"PROVISO TO SECTION 340(3) OF THE NLC

[80] The issue of the proviso to section 340(3) of the NLC was also raised before us. The appellant claimed that he was a bona fide purchaser for valuable consideration and therefore by virtue of the proviso to section 340(3) of the NLC , his title to the land was indefeasible.

[81] The proviso reads:

Provided that nothing in this subsection shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or any person or body claiming through or under such a purchaser.

[82] The issue of the applicability of the proviso was dealt with at great length by the Federal Court in Tan Ying Hong v Tan Sian Son & Ors [2010] 2 MLJ 1. In that case, the Court ruled, inter alia, as follows-

  • (a) 
    that the said proviso is not applicable to other subsections in section 340 of the NLC; it is only applicable and directed to sub-section (3) alone and not the earlier sub-sections; and 
  • (b) 
    that even though section 340(3)(a) and (b) make reference to the circumstances specified in the earlier section 340(2), they are restricted only to subsequent transfer of the land in question; so it could not apply to the immediate transferee of any title or interest in the land
[83] It is pertinent to note that, in that case (Tan Ying Hong) the Federal Court overuled its earlier decision in Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241 on the ground that the Federal Court in Adorna Properties had erroneously misconstrued section 340(1), (2) and (3) of the NLCand came to a wrong conclusion that the proviso to subsection (3) applied equally to section 340(2). At paragraphs 51, 52 and 53 or the judgment, Arifin Zakaria CJ (Malaya) (as he then was) said-

[51] We are of the view that the proviso is directed towards the provision of sub-s (3) alone and not to the earlier subsection. This in our view is supported by the use of the words 'in this subsection' in the proviso. Therefore, its application could not be projected into the sphere or ambit of any other provisions of s 340.
[52] Furthermore, even though sub-s (3)(a) and (b) refer to the circumstances specified in sub-s (2) they are restricted to subsequent transfer or to interest in the land subsequently granted there out. So it could not apply to the immediate transferee of any title or interest in any land. Therefore, a person or body in the position of Adorna Properties could not take advantage of the proviso to the sub-s (3) to avoid its title or interest from being impeached. It is our view that the proviso which expressly stated to be applicable solely to sub-s (3) ought not to be extended as was done by the court in Adorna Properties, to apply to sub-s (2)(b). By so doing, the court had clearly gone against the clear intention of Parliament. This error needs to be remedied forthwith in the interest of all registered proprietors. It is, therefore, highly regrettable that it had taken some time, before this contentious issue is put to rest.
[53] For the above reasons, with respect, we hold that the Federal Court in Adorna Properties had misconstrued s 340(1), (2) and (3) of the NLC and came to the erroneous conclusion that the proviso appearing in sub-s (3) equally applies to sub-s (2). By so doing, the Federal Court gave recognition to the concept of immediate indefeasibility under the NLC which we think is contrary to the provision of s 340 of the NLC.

[84] The principle established in Tan Ying Hong was adopted and followed by this Court in a recent case of Kamarulzaman bin Omar & Ors v Yakub bin Husin & Ors [2014] MLJ 768l where at paragraph 43, Jeffrey Tan FJ said:

In the instant case, both the trial court and the Court of Appeal held that the fifth and sixth respondents were bona fide purchasers. But unfortunately, both the trial court and the Court of Appeal failed to inquire whether the fifth and or sixth respondents were immediate or subsequent purchasers. Only a subsequent purchaser is entitled to raise the shield of indefeasibility. An immediate purchaser of a title tainted by any one of the vitiating elements acquires a title that is not indefeasible. It flows from Tan Ying Hong that the bona fides of an immediate purchaser is not a shield to defeasibility. The defeasible title of a bona fide immediate purchaser is still liable to be set aside. The defeasible title of a bona fide immediate purchaser only becomes indefeasible when it is subsequently passed to a bona fide subsequent purchaser. That the fifth and sixth respondents were bona fide purchasers could not by that fact alone give a shield of indefeasibility. The fifth and or sixth respondents only acquired an indefeasible title if they were bona fide subsequent purchasers. But for the fifth and sixth respondents to have been bona fide subsequent purchasers, there must hasve been an immediate purchaser in the first place. The first to fourth respondents, from whom the fifth and sixth respondents obtained title, were not immediate purchasers. Rather, they were imposters of those entitled to the estate of the deceased. They, like the fake Boonsom who impersonated the true Boonsom, had no title to pass to the fifth and sixth respondents. The fifth and sixth respondents who were the immediate purchasers, acquired a title that was not indefeasible. But when the fraudulent title of the first to fourth respondents were set aside by the default judgment, the defeasible title of the fifth and sixth Respondents was also defeated.

[85] In the present case, as we have stated earlier the relevant Form 14A in respect of the transfer of the title to the appellant was a void instrument and therefore the appellant's title and interest in the Lot was indisputably defeasible. The appellant was an immediate purchaser of the Lot in question from its registered proprietor, MPM. That being the case the appellant clearly could not enjoy the benefit of the proviso to sub section (3). Once the court is satisfied that the transfer of the title to the appellant arose from a void instrument, to borrow the words of Arifin Zakaria CJ (Malaya) in Tan Ying Hong, "it automatically follows that they are liable to be set aside.''

Malaysia-Bar Council Malaysia and Law Society of Singapore: Malaysia-Singapore Bar Summit 2015 (23 Oct 2015)

Bar Council Malaysia and Law Society of Singapore: Malaysia-Singapore Bar Summit 2015 (23 Oct 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 Basic Conveyancing Practice (3 Nov 2015)

Seminar on Basic Conveyancing Practice (3 Nov 2015)





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



This circular may also be accessed here.


--
-- 

Ad | CIArb 2016 Diploma Course in International Commercial Arbitration (9 to 17 Jan 2016)

Ad | CIArb 2016 Diploma Course in International Commercial Arbitration (9 to 17 Jan 2016)





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


This is an advertisement.
This is an 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-Invitation to Attend Part 3 Yayasan Bantuan Guaman Kebangsaan Training on 24th & 25th October 2015

Invitation to Attend Part 3 Yayasan Bantuan Guaman Kebangsaan Training on 24th & 25th October 2015
To:




SBC/CIR/077/2015
09th October, 2015

Dear Selangor Bar Members,
Invitation to Attend Part 3 Yayasan Bantuan Guaman Kebangsaan Training on 24th & 25th October 2015
We are pleased to invite lawyers to attend Part Three of the YBGK training (Criminal Defence Advocacy) which will be held on 24th& 25th October 2015.
Kindly take note that only lawyers who have attended Parts One and Two of the YBGK training and passed the assessment test are eligible to attend this course.
The details are as follows:
Date   : Saturday 24th & Sunday 25th October 2015
Time   : 9:00 am to 6:00 pm
Venue : Selangor Bar Auditorium, 2nd Floor, No.41, Jalan Bola Jaring, 13/15,
Section 13, 40100 Shah Alam, Selangor Darul Ehsan. 
                               
CPD Code / Points (Part Three): T7/2425102015/YBGK/SL152375/9 / Nine
Please take note that the available seats are limited and as such registration is on a first-come, first-served basis.
Kindly contact Roger-Shane Ee at 03-55103163 or email the attached reply slip to ybgkselangor@gmail.com.

Thank you and we look forward to seeing you.

Yours sincerely,

K.A. Ramu
T.A.Sivam
Co-Chairpersons
Selangor Legal Aid Centre

Secretariat,
Selangor Bar Committee.


 
To add or change your e-mail address, please fax (and not send via email) your new email address under your firm's letterhead to Selangor Bar's Secretariat at
+603-5519 9037  
 
This message was sent from a notification-only email address that does not accept incoming email. Please do not reply to it. Thank you.

You received this message because you are registered to the Selangor Bar mailing list. To unsubscribe from this list and stop receiving emails from Selangor Bar,
send an email to secretariat@sgorbar.org





























--

KuMohon Mark Down Sales

KuMohon Mark Down Sales





www.ticketpro.com.my Ticket Hotline : 03-7880 7999 Please click here to subscribe to our Newsletter
ticketpro header 1
KUMOHON SQUARE Markdownsales-updated
KuMohon
facebook
1px
©2015 Ticketpro Malaysia Sdn Bhd | Ticketpro Malaysia Sdn Bhd, D-2-03A,Jalan SS6/20A Dataran Glomac, Kelana Jaya 47301 Petaling Jaya Selangor Darul Ehsan, Malaysia
Web Version   Preferences   Forward   Unsubscribe  
 



--

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

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