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Covid Act: “Inability to Perform Contractual Obligation” tested in Courts

by | 25 Aug | ,

Part II of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 (“Covid Act”), which relieves contracting parties with inability to perform contractual obligations, has come into operation retrospectively on 18 March 2020 upon the enforcement of Covid Act on 23 October 2020. In June 2021, the former Minister in the Prime Minister’s Department (Parliament and Law) – Datuk Seri Takiyuddin Bin Hassan made another extension order to extend the operation period of Part II from 1 July 2021 to 31 December 2021.[2] Thus, for the time being, Part II protection is still available to eligible businesses at least until the end of this year.

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Winding up petition based on adjudication decision under CIPAA – Court of Appeal reaffirms Likas Bay

Winding up petition based on adjudication decision under CIPAA – Court of Appeal reaffirms Likas Bay

by | 23 Aug | ,

Where a party has obtained an adjudication decision in its favour, that party may seek to bring a winding up petition premised on that adjudication decision. Darryl Goon J (as he then was) in ASM Development (KL) Sdn Bhd v Econpile (M) Sdn Bhd previously decided that an injunction may nevertheless be issued to restrain the presentation of such a petition. This has been discussed in an earlier article .

That article looked at two decisions of the High Court made subsequent to ASM, namely, Maju Holdings Sdn Bhd v Spring Energy Sdn Bhd and, RZH Setia Jaya Sdn Bhd v Sime Darby Energy Solutions Sdn Bhd. In the latter decision, the High Court adopted and agreed with the dictum of Darryl Goon J (as His Lordship then was) in ASM.

RZH Setia recently came up for appeal before the Court of Appeal, where the Court of Appeal considered the central question of whether the High Court had properly exercised its discretion in granting the Fortuna injunction sought by RZH Setia.

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CIPAA: clash of stay applications and enforcement orders

by | 20 Jul | , ,

Once a successful party obtains an adjudication decision under the Construction Industry Payment and Adjudication Act (CIPAA) 2012, the next course of action is usually to enforce the adjudication decision pursuant to section 28 of the CIPAA (enforcement order). Meanwhile, the losing party will often attempt to set aside or stay the adjudication decision under sections 15 or 16 of the CIPAA.

However, what if an application to stay is made after an enforcement order is granted against the adjudication decision and the application to set aside the adjudication decision is dismissed? The court was faced with this scenario in the recent case of MKP Builders Sdn Bhd v PC Geotechnic Sdn Bhd [(2021) MLJU 1061].

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Challenging compensation for acquired land: high court is the final avenue

by | 15 Jul | , ,

Article 13 of the Federal Constitution states that “no person shall be deprived of property save in accordance with law” and allows for a
lawful acquisition of private land by the government, provided that the acquisition is in accordance with the Land Acquisition Act (LAA)
1960. Under the LAA, landowners (or persons with registered interests) will be compensated by the government for acquired land. That said, landowners often find themselves dissatisfied with the compensation awarded by the land administrator. While there is an
opportunity for landowners to object to the compensation, the question remains as to what extent the compensation awarded by the land
administrator can be challenged. The Federal Court recently answered this question in its decision in Pentadbir Tanah Daerah Johor v Nusantara Daya Sdn Bhd. The apex court held that the high court is the highest court that parties can go to when challenging the
awarded compensation.

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Hearsay Evidence in Expert Reports – General and Specific Hearsay

by | 06 Jul | ,

The rule against hearsay evidence prevents the admission of evidence of information from a third party. The evidence from a third party will generally be regarded as hearsay evidence and thus inadmissible, unless the third party him/herself testifies on the said evidence. This rule has been applied to witnesses of fact and opinion.

However, to what extent should this rule be relaxed when experts seek to rely on hearsay evidence in their reports, and in what circumstances should such evidence be admissible? This was the question that arose, amongst many others, for the determination of the Singapore International Commercial Court (‘SICC’) in Kiri Industries Ltd v Senda International Capital Ltd and another.

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YouTube’s landmark Copyright win

by | 23 Jun | ,

In the long-running battle between Europe’s $1 trillion creative industry and online platforms, the European Court of Justice ruled that Google’s YouTube and other online platforms are not liable for copyright-infringing works uploaded by users.

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