Thursday, 26 November 2015

MALAYSIA-WILLS

In Lim Kang Hai & Ors v Lim Chik Lock [2013] MLJU 614, it was held that:-

"...[6] A man may act foolishly and even heartlessly but if he acts with full comprehension of what he is doing the court will not interfere with the exercise of his volition: see the Privy Council case of Motibai Hormusjee v Famsetjee AIR [1924] PC 28. It is important to bear in mind however that this is a general pronouncement of principle and is not meant to be the touchstone of a valid will. In a recent decision of the English Court of Appeal in Julia Hawes v Elizabeth Burgess & Anor [2013] EWCA Civ 74 Lord Mummery in his judgment delivered on 19.2.2013 had this to say on the basic requirements of a valid will:

I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed.The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.

[7] Thus there are two basic legal requirements for a valid will, as follows:

  • (1)
    The testator must be capable of understanding what he is doing when he makes the will; and 
  • (2)
    What is in the will must truly reflect what he freely wishes to be done with his estate on his death. 
[8] Whether or not the will truly reflects the testator's wish is a matter to be inferred from the circumstances surrounding the making of the will. If the making of the will is shrouded in suspicion, casting doubts on the testator's true wish, the will is liable to be invalidated. The burden is placed on the propounder of the will to remove all those suspicious circumstances: Gan Yook Chin (P) v Lee Ing Chin @ Lee Teck Seng [2005] 2 MLJ 1 FC; Choo Mooi Kooi v Choo Choon Jin [2012] 2 MLJ 691; Eu Boon Yeap & Ors v Ewe Kean Hoe [2008] 2 MLJ 868 C.A.; Julia Hawes v Elizabeth Burgess (supra). The propounder must prove affirmatively that the testator knew and approved of the contents of the document: Tyrrell v Painton [1894] P 151 A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person: Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 F.C. In Chee Mu Lin Muriel v Chee Ka Lin Caroline [2010] 4 SLR 373 the Singapore Court of Appeal explained that the suspicious circumstances are not confined to circumstances pertaining to the preparation and execution of the will, but also to "events subsequent to the execution of the will."

[9] circumstances surrounding the making of the will, not circumstances surrounding the testamentary capacity of the testator: Tho Yow Pew v Chua Kooi Hean [2002] 4 MLJ 97. Testamentary capacity is but one of the requirements for a valid will. A person may have testamentary capacity but if the circumstances surrounding the making of the will leads one to the conclusion that what is in the will could not have been what the testator truly wished to be done with his estate on his death then a basic requirement for a valid will would not have been met."

MALAYSIA-Whether the limitation period to bring a civil claim against a company for monetary debt is postponed whilst the company is being wound up pursuant to a court order under the Companies Act, 1965

In the Federal Court case of Tasja Sdn Bhd v Golden Approach Sdn Bhd [2011] MLJU 067, it was held that:-

"...[13] 5 questions were posed to us. They are:

  • 1
    Whether a defence of limitation under s 4 of the Limitation Act 1953 must be pleaded before a claim can be dismissed on the ground that it is time-barred. 
  • 2
    Whether defence of limitation under s 4 of the Limitation Act 1953 must be pleaded before a Court may consider the said defence in a case where a claim is made based on a Settlement Agreement wherein Limitation commences upon breach of a condition in the Settlement Agreement. 
  • 3
    Whether a Judge should consider evidence adduced through affidavits showing that an action is not barred by limitation where an application is made to strike out under Order 18 Rule 19 (1) Rules of High Court 1980 where no defence has been filed. 
  • 4
    Whether the decision in the case of Overseas-Chinese Banking Corporation Ltd v Philip Wee Kee Puan (1984) 2 MLJ 1 and KEP Mohamed Ali v KEP Mohamed Ismail (1981) 2 MLJ 10 which are Privy Council and Federal Court decisions that decided the failure to plead "acknowledgment of debt" as a basis of claim in the statement of claim did not affect the claim and still exist as good and binding law. 

  • Whether the limitation period to bring a civil claim against a company for monetary debt is postponed whilst the company is being wound up pursuant to a court order under the Companies Act 1965. 
....[33] It is the contention of the plaintiff that the delay in filing this action against the defendant was due to the winding up order made against the defendant on 12 June 2000. This disability caused by the winding up order continued until a permanent stay was allowed on 8 July 2002. With a winding up order, the plaintiff's right as a creditor was restricted to filing a proof of debt and the right to file a suit against the company could only be possible with leave of the court. And when the winding up order was stayed, which was years later and before the liquidator has distributed any payment to creditors out of the assets of the defendant, the plaintiff found its action could be statute barred. This has prejudiced the plaintiff. In support, a passage from the judgment of Melish LJ In Re General Rolling Stock Company (1872) 7 Ch App 646 was cited:

In these cases the rule is that everybody who had a subsisting claim at the time of adjudication, the insolvency, the creation of the trust for creditors, or the administration decree, as the case may be, is entitled to participate in the assets, and that the Statute of Limitations does not run against the claim, but, as Iong as assets remain unadministered he is at liberty to come in and prove his claim, not disturbing any former dividend.

[34] Further, according to Dato' Ambiga, unless time for the purpose of limitation under the Limitation Act is stopped or postponed, there is nothing to prevent a company from taking advantage of being wound up for the purpose of defeating its creditors with limitation and subsequently applying for a stay after this objective is achieved.

[35] Undeniably, under s 226 (3) of the Companies Act 1965 (Companies Act), when a winding up order is made or a provisional liquidator appointed, no action or proceeding shall be proceeded with or commenced against the company except with leave of court and in accordance with such terms as the court imposes. Creditors of the company would have to file proof of debt with the appointed liquidator and if their debt is proved, they would be paid depending on the sufficiency of funds in the wound up company. But when a stay of the winding order is granted, it amounts to a total discontinuance or termination of the winding up proceedings (unless with terms) - see Vijayalakshmi Devi d/o Nadchatiram v Jegadevan Nadchatiram & Ors (1995) 2 AMR 1124 and BSN Commercial Bank (Malaysia) Bhd v River View Properties Sdn Bhd (1996) 1 AMR 1144. And in the words of the author in 'McPherson The Law of Company Liquidation' 4th edition at page 657, it is like "the winding up process comes to an end - the whole effect of the winding up ceases and the company can thereupon resumes conduct of its business and affairs as if no winding up existed". This may prejudice the plaintiff since limitation has set in after the granting of the order for stay and when the liquidator had not settled any company's debts before the stay. But the question is by what provision of the law can it be prevented?

[36] In our opinion there is no provision of the law to allow us to do so; neither in the Limitation Act nor the Companies Act. In such a situation the protection offered to creditors who were not paid by the liquidator is to voice their concern during the application for a stay of the winding up order. Under s 243 (2) of the Companies Act, various factors are required to be considered by the court at such hearing wherein the court may "require the liquidator to furnish a report with respect to any facts or matters which are in his opinion is relevant". This report would contain information on whether creditors are paid or settled. This is vital particularly when a winding up order was initiated on a creditor's petition - see Krextile Holdings Pty Ltd v Widdows (1974) VR 689, 694 and Re Delta Homes Pty Ltd (1972) 2 NSWLR 22, 26. And creditors have to be informed of such an application - see Re South Barrule Slate Quarry Co (1969) LR 8 Eq 688 followed in Ting Yuk Kiong v Mawar Biru Sdn Bhd (1995) 2 MLJ 700. If any of them is dissatisfied with such an application, he can oppose it and give his view or demand his debt (particularly if it is proved before the liquidator) to be first paid as a condition for stay. And since the final decision of whether to grant or refuse such an application rests with the court, the court can set terms and conditions in the stay order. Another option open to the creditor is to seek leave from the court under s 226 (3) (a) of the Companies Act to determine the issue of liability between him and the wound up company. Support for this is found in Re General Rolling Stock Company (supra) where James LJ said:

After a winding up order has been made, no action is to be brought by a creditor except by the special leave of the Court, and it cannot have been the intention of the Legislature that special leave to bring an action should be given merely in order to get rid of the Statute of Limitations. It must have been intended that such leave should be given only in cases where the Court thought that an action was the most proper means of determining the question of the liability of the company.

[37] Before we depart from this issue, we would like to comment on the two cases, one of which was cited by the plaintiff in support of its argument. The first is In Re Donald Kenyon (1956) 1 WLR 1397, 1401 where Roxburgh J said:

and it seems to me that, when a company has been dissolved and therefore nobody can sue it without getting it restored to the register, it is only common fairness that, if the contributories for the purposes of their own, want to get it restored to the register years afterwards, the period between the dissolution and the restoration to the register should be disregarded for the purposes of the Statute of Limitation.

[38] If one were to examine the facts of this case, this statement was made at the stage when the application for stay of the winding up order or such like was made; not as a general proposition for disregarding the period of limitation from time of the winding up order to the stay of such order in an action for monetary debt.

[39] The other case is In re General Stock Discount Company (supra) where we have disclosed the statement made by Mellish LJ earlier. This is not a case where the limitation period should be disregarded between the time of the winding up order to the time when the stay of such order was granted for the purpose of bringing an action against the company. It concerns the late filing of a proof of debt by a creditor to the liquidator which was made out of time. The rationale given here is that since the company has assets and there being no other creditors prejudiced, limitation should be waived. Much of what was decided is based on s 98 of the English Companies Act of 1862 which provides: "As soon as may be after the making an order for winding up the company, the Court shall settle a list of contributories, with power to rectify the register of members in all cases where such rectification is required in pursuance of this Act, and shall cause the assets of the company to be collected, and applied in discharge of its liabilities". But here we are not talking about whether there are excess funds in the company but rather about the issue of liability. On this issue there is no provision of law to permit us to disregard time from running under the Limitation Act. In fact, on such a matter, as discussed, the plaintiff should have applied for leave under s 226 (3) of the Companies Act to institute an action against the defendant rather than leaving it to a later date. For this reason, we answer this 5th question in the negative...."

Malaysia-Talk on Hire Right and Manage Easy (2 Dec 2015)

Talk on Hire Right and Manage Easy (2 Dec 2015)





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Malaysia-Talk on Creating an Impactful Interview Experience (2 Dec 2015)

Talk on Creating an Impactful Interview Experience (2 Dec 2015)






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Mastering GST Tax Codes and Mastering GST Reporting ( 9 & 14 December 2015 )

Mastering GST Tax Codes and Mastering GST Reporting ( 9 & 14 December 2015 )
To:



Mastering GST Tax Codes – A Study of Customs Recommended Tax Codes
( Essential Information to Using the Correct Tax Codes for Accounting )
Date            :    9 December 2015 (Wednesday)

Mastering GST Reporting – Getting up to speed with accurate reporting of GST-03 Returns
Date            :    14 December 2015 (Monday)

Time           :    9.00 am - 5.00 pm
Venue         :    Concorde Hotel, Kuala Lumpur
            
Sign up for both days NOW and receive a complimentary copy of "CCH GST Case Summaries" worth RM198 !
CCH GST Case Summaries is a compilation of the landmark cases carefully selected from Singapore, Australia and Britain, published in anticipation of the need for case law precedents in the interpretation of the Malaysian GST law. This book is a useful guide to understanding and interpreting GST Law and is ideal for tax professionals, in-house advisers and business owners.

Haven't mastered Malaysia GST tax codes and GST reporting yet? If you haven't, you are not alone. There are many Malaysian companies out there whose personnel are still struggling to understand and apply the correct GST tax codes for different transactions. There are even more companies out there that still make errors in their GST reporting, whether monthly or quarterly. It doesn't matter if you've bought Customs approved software with the tax codes and GST-03 forms built into your software. If your data entry starts wrong, it'll be wrong anyway. There are many scenarios that you'll have to figure out what to do yourself.

Attend the 2 workshops presented to you by our CCH Executive Events to learn how to do your regular GST work effectively, efficiently and error-free!
** Enjoy 50% OFF for every 2nd pax. Terms and conditions apply.


WHO SHOULD ATTEND

* CFO's, Financial Controllers, COO's, CEOs and Managing Directors
* GST Consultants, Tax Consultants and Tax Practitioners
* Chartered Accountants, Advisors and Auditors
* Company Secretaries and Business Consultants
* Professionals and Staff involved in preparing for the implementation of GST


WORKSHOP SPEAKER

J Selvarajah
ACA(E&W); CA(NZ); CPA(Aust); CA(M); ACTIM; FIPA(Aust); B.Com(Acc)NZ.
J Selvarajah, is a senior partner of a well-established professional practice in Kuala Lumpur which is a member of an international network of accounting and consulting firms with more than 300 partners and professional staff. J Selvarajah is currently involved in the implementation of GST for clients in collaboration with a major software company listed on Bursa Malaysia, as well as for SME clients. He has also undergone the 10 day training in Goods & Services Tax conducted by senior officers of the Royal Malaysian Customs Department. He has 44 years of work experience in public practice particularly in the areas of financial reporting for public and private entities, internal audits, corporate governance and risk assessments, external audits, company secretarial practice and fraud prevention.


Mastering GST Tax Codes – A Study of Customs Recommended Tax Codes
( Essential Information to Using the Correct Tax Codes for Accounting )
Date            :    9 December 2015 (Wednesday)

GST registrants are required to keep accounting records which record the day-to-day transactions. These transactions are required to be summarised and shown in the monthly or quarterly GST-03 Returns. One of the key to factors to getting the correct amounts in the Returns is the use of GST Tax Codes. A good understanding of the application of the GST Tax Codes in various transactions and situations is essential and errors in tax codes used will inevitably translate into errors in GST-03. Such errors, however inadvertent, will result in costly penalties as provided in the GST Act, 2014. CCH Executive Events presents a workshop aimed to give an in-depth understanding of the various GST Tax Codes and application of the tax codes in a variety of transactions based on actual practical implementation cases.

BENEFITS OF ATTENDING

>Get up to speed with the latest Customs updates and clarifications
>Get a good understanding of GST Tax Codes and how they are structured
>Learn how the tax codes work in relation to the daily and periodical entries in the accounting records together with appropriate supporting documentation required
>Understand the software requirements for GST worksheets to be generated
>Learn how to use the recommended tax codes for GST recording and GST Returns


Mastering GST Reporting – Getting up to speed with accurate reporting of GST-03 Returns
Date            :    14 December 2015 (Monday)

GST in Malaysia is based on the self-assessment system and GST registrants are required to prepare and file correct and accurate monthly or quarterly GST-03 Returns. The frequency
with which these Returns are required to be filed requires the maintenance of proper accounting records which are updated on a monthly or quarterly basis, a challenging feat if proper Customs approved software is not used. Even with the usage of such software, the errors arising due to mistakes in the data entry process have been numerous in trial runs using predetermined data and from parallel runs of actual transactions. CCH Executive Events presents a workshop that is aimed to give an in-depth understanding of the various issues and areas which are error prone and where special focus is needed to avoid these errors from getting into the monthly or quarterly GST-03 Returns.

BENEFITS OF ATTENDING

>Learn how to set up General Ledger files, Customer files and Supplier files to ensure that they are appropriately configured to comply with the various GST and RMCD requirements
>Get an insight into the principles of allocating GST tax codes to the various accounts in the chart of accounts and how they impact the monthly/quarterly GST-03 Returns
>Understand accounting software strengths and shortcomings and the requirements for the appropriate GST worksheets to be generated
>Obtain a good working knowledge on the principles of generating monthly/quarterly GST-03 Returns
>Get an insight into the GST penalty regime for inaccuracies, errors, mistakes, non-compliance, non-payment or late payment and other shortcomings in GST-03 Returns


Please refer to the brochure attached to obtain full details on the PROGRAMME OUTLINE of both workshops.


WORKSHOP FEE

Fee includes workshop materials, certificate of attendance, lunch and refreshments.

Fee per day               :  RM 1,378.00
                                                                                                               
Fee for both days    :  RM 2,480.40

* Prices are inclusive of 6% GST
** Enjoy 50% OFF for every 2nd pax. Terms and conditions apply.

T
his workshop is HRDF claimable under the Skim Bantuan Latihan and to sign up, please complete the registration form attached and scan to e-mail back to me
or fax to 03-2026 2093.

Do contact me anytime for further clarification and assistance. 


Thanks & regards,

Sarah Abdullah
Senior Events Consultant 

Commerce Clearing House (M) Sdn Bhd
Level 26, Menara Weld
No. 76, Jalan Raja Chulan, 50200 Kuala Lumpur
D   :  +603 2024 8608
F    :  +603 2026 2093
E    :  sarah@cch.com.my






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Come & enjoy great discounts at Mega Sale Carnival Mydin USJ from 27-28 Nov 2015

Come & enjoy great discounts at Mega Sale Carnival Mydin USJ from 27-28 Nov 2015





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32nd PlusOne Members Day

32nd PlusOne Members Day






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Malaysia-Talk : 'Human Rights : CITIZENSHIP'

Talk : 'Human Rights : CITIZENSHIP'
To:


SBC/CIR/089/2015
25th November, 2015 
    

Brochure/Form [Download PDF]

Online Registration Link [URL Link]


Thank you.

Secretariat
Selangor Bar Committee.




































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Malaysia-Workshop for Young Lawyers | Inquests into Deaths in Police Custody (28 Nov 2015)

Workshop for Young Lawyers | Inquests into Deaths in Police Custody (28 Nov 2015)





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

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