FORWARD 2022 EDITION - ISSUE 02

Page 1

BULLETIN

TEAM BOLDER MOVE OF RWARD
2022 EDITION ISSUE 02 “ G r o w t h i s n e v e r b y m e r e c h a n c e ; i t i s t h e r e s u l t o f f o r c e s w o r k i n g t o g e t h e r ”
GREATER
A YEARLY
BY MESSRS. CLARISSA TAN & WONG

EDITOR'S N 04

OUR PARTN

6 Partners, 2 Branches - A result of a merger

Amendments to the Small Estate (Distribution) Act

Malaysia's effort to eradicate sexual harrassment and politicians from switching parties

A little message from us to you 23

Get to know one of our Partners!

Legal developments in 7 practice areas

AN INTERV 2022 LEGAL CORPORAT

A case study on an enforcement served by Bursa Malaysia against bankrupt directors

EMPLOYME

Developments to the minimum wage & the Employment Act

Amendments to Copyright and Patent Law

INTELLECTUAL PROPERTY LAW 21 PROPERTY LAW

Developments and case studies on the property scene in Malaysia

SPORTS LAW

Establishment of the Sports Dispute Committee (‘SDC’), new regulations and amendments in the Code of Sports-related Arbitration (“the CAS Code”)

CONTACT DETAILS

Contact us via our listed numbers, emails and addresses

28 29
FORWARD 2022 02 05 07 09 11 13

Editor's Notes

One can only go so far alone

We take the game of Chess as an example While it is played by two individuals, the pieces and pawns are meant to work together to protect each other and achieve the goal of capturing the opponent's king No player would move only one piece out unto the board to chase down and capture their opponent's pieces

Hence, we feel that as a firm it is important to form a strong structured team with a balance of skills A team this ideal, would ensure that we have the resources and skill set to provide a wider range of practice areas and reach further geographically

June 2022 was momentus for our firm as the amazing teams in Messrs. Clarissa Wong & Partners and Messrs. Ryan Tan & Co merged to become the entity we now know as Messrs. Clarissa Tan & Wong with branches in Selangor and Penang.

Just like the game of Chess, we aim to work together to compliment each other's strengths and reach higher goals.

We thank you for your continous support and hope you stay on to watch our growth as this is only the beginning....

FORWARD 2022 04

SELANGOR

BRANCH OUR PARTNERS WONG KE XIN Restructuring & Insolvency Banking Litigation Debt Recovery Korea Desk WILLIAM LIM WEI LIE Corporate / M&A Infrastructure & Projects Regulatory & Compliance CLARISSA TAN WEI MINN Private Client & Family Business Real Estate Banking & Finance PENANG BRANCH RYAN TAN LIN HONG Dispute Resolution Employment & Administrative Law Sports Law EUGEN TAN YEW JEEN Corporate / M&A Capital Markets (Equity) China Desk
RU Real Estate Banking & Finance Strata Management The firm currently has six partners with their respective departments and two branches in Selangor and Penang. FORWARD 2022 05
HAYLEY CHEONG PIN
FORWARD 2022 06

AN INTERVIEW WITH WILLIAM LIM

Clarissa Tan & Wong is a dynamic and growing law firm in Selangor and Penang with a team of dedicated and competent lawyers. I say this because we have the team required for all legal matters, from the most simple to the most complex.

I also definitely see Clarissa Tan & Wong as a beacon to the community as we try to ensure legal services are accessible to all because we really do care Some would say you need to be heartless in this industry, but I assure you, we work from the heart because that's how you get the best result every time.

The only way to remain relevant is to continously improve and be well informed.

At Clarissa Tan & Wong, we have released several initiatives to keep the public informed about the current news and developments in law, such as our Instagram series called, 'Legal Lens' and the issuance of our yearly bulletin called, "Forward" .

These efforts in turn benefit us as it improves our legal knowledge and branding skills

William is a Partner in Clarissa Tan & Wong and currently spearheads the Corporate and M&A department
Q: In a few words, what is Clarissa Tan & Wong to you?
Q: How does the Firm remain relevant in today's society & climate?
FORWARD 2022 07

I feel with the right team, one would achieve more collectively Therefore, I am delighted with the merger formed this year as it is in line with our vision to expand in size and practice areas.

As lawyers, we tend to specialize in specific areas so that we would be experts in those field Hence, sometimes it leads to a limitation in our knowledge in other practice areas.

That's when having a team and effective teamwork should take place to reach our full potential and achieve our shared goal which is to provide excellent legal services to our Clients.

So teamwork essentially for me is a group of people with different roles and skill sets, working together to achieve a common goal

Like everyone else, we hope next year would be better than the last We are so thankful for what this year has brought to us and we look forward to even bigger opportunities in the year to come.

Growth really takes place when we do not stay comfortable in our current situations So moving forward, we do want to develop an eye for innovation and find solutions to new legal challenges. We want to be stretched and challenged in the hopes that we grow stronger and wiser as a Firm

Collaboration with others is also something we hope to strengthen because we know that together we can create the kind of value that makes a difference to those around us

Q: What does the Firm look forward to in 2023?
FORWARD 2022 08
Q: What are your thoughts on the concept of teamwork?

HIGHLIGHT

2022
YEAR L e g a l D e v e l o p m e n t i n M a l a y s i a Legal highlights in the area of Property, Corporate, Employment, Human right, Family & Estate, Intellectual Property and Sports The law is the agent and repository of change in society FORWARD 2022 09
OF THE
CORPORATE LAW Tengku Dato' Kamal Ibni Sir Sultan Abu Bakar & Ors v Bursa Malaysia Securities Bhd [2022] 4 CLJ 854 Bankruptcy Act 1967 Capital Markets and Services Act 2007 Rules of Court 2012 Rules of the Federal Court 1995 EMPLOYMENT LAW GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin Mohamad Amir [2022] 10 CLJ 669 Employment Act 1955 Employment (Amendment) Act 2022 Minimum Wages Order 2022 Penal Code Private Agencies Act 1971 FAMILY AND ESTATE LAW Small Estates (Distribution) Act 1955 Small Estates (Distribution) (Amendment) Act 2022 HUMAN RIGHT LAW Anti-Sexual Harassment Act 2022 Constitution (Amendment) (No 3) Act 2022 Federal Constitution INTELLECTUAL PROPERTY LAW Companies Act 2016 Copyright Act 1987 Copyright (Amendment) Act 2022 Copyright (Voluntary Notification) (Amendment) Regulations 2012 Patent Act 1983 Patents (Amendment) Act 2022 PROPERTY LAW Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals [2020] 1 MLJ 281 Chong Nge Wei & Ors v. Kemajuan Masteron Sdn Bhd [2022] 4 CLJ833 Country Garden Danga Bay Sdn Bhd v Housing Tribunal & Ho Chee Kian [2022] 1 LNS 662 PROPERTY LAW Obata-ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & anor [2022] 5 CLJ 251 Consumer Protection Act 1999 Contracts Act 1950 Housing Development (Control and Licensing) Act 1966 Housing Development (Control and Licensing) Regulations 1989 Limitation Act 1953, s 6(1) Rules of Court 2012, O 14A Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) (Amendment) Act 2022 SPORTS LAW Code Of Sports-Related Arbitration Sports Development Act 1997 Sports Development (Sports Dispute Committee) Regulations 2022 FORWARD 2022 10

n 1st April 2022, the Federal Court dismissed an appeal by three former directors of Cepatwawasan Group Berhad (“the Company”), affirming the decision of the Court of Appeal which found the said former directors to be in contempt of Court for failing to comply with

the terms of a High Court Enforcement Order The said directors were given three months to repay the Company RM13 million used to illegally pay Opti Temasek Sdn Bhd Failure to do so would put the directors in contempt of the court order and make them liable to five years in jail

The said former directors had caused the Company's subsidiary Prolific Yield Sdn Bhd to pay RM13 million to Opti Temasek Sdn Bhd in 2004, shortly before their removal in August on the same year These payments were in breach of the financial assistance provisions in paragraphs 8 3, 8 23 and 16 10 of the Main Market Listing Requirements They were eventually fined by Bursa Malaysia Securities Bhd for violating the financial assistance provisions and were instructed to repay the Company RM13 million

The Bursa Malaysia subsequently applied for an enforcement order to enforce the penalty (“Enforcement Order”) The former directors filed a judicial review at the High Court to challenge Bursa Malaysia's enforcement, but it was dismissed by the High Court, Court of Appeal and Federal Court respectively

EX-DIRECTORS
TO RETURN
OR FACE FIVE YEARS' IN
GIVEN THREE MONTHS
RM13MIL TO COMPANY
JAIL
854 LEGAL HIGHLIGHTS - CORPORATE LAW FORWARD 2022 11
TENGKU DATO' KAMAL IBNI SIR SULTAN ABU BAKAR & ORS v. BURSA MALAYSIA SECURITIES BHD
[2022] 4 CLJ
O

One of the interesting points in this case is that two of the former directors were adjudged bankrupts at the time the Enforcement Order was made According to the Bankruptcy Act 1967, creditors shall not commence any action against any debtor who has been adjudged bankrupt unless with the leave of the court The former directors argued that Bursa Malaysia was required by law to obtain the leave of the court before enforcing the Bursa Malaysia Order However, the Court found that the Bankruptcy Act 1976 shall apply only to a creditor and Bursa Malaysia was not a creditor The Enforcement Order which directed the former directors to restore monies to the Company did not create a debt between the former director and Bursa Malaysia

The judges in this case also affirm the role of Bursa Malaysia as a frontline regulator which is tasked with maintaining the integrity of the stock exchange by ensuring compliance with the Listing Requirements and ensuring proper governance

“The plaintiff is the frontline regulator of the Malaysian capital market and is tasked with maintaining the integrity of the stock exchange by ensuring compliance with the Listing Requirements and ensuring proper governance. The plaintiff had found that the defendants' conduct in causing Prolific Yield Sdn Bhd to make payments to Opti Temasek Sdn Bhd and Sheikh Abdul Rahim was in breach of the financial assistance provisions in the plaintiff's Listing Requirements. Hence, the s. 360 CMSA order against the defendants.” — Zabariah Mohd Yusof FCJ

FORWARD 2022 12
- CORPORATE LAW
LEGAL HIGHLIGHTS

MALAYSIA INCREASES

FORWARD 2022 13 LEGAL HIGHLIGHTS - EMPLOYMENT LAW

LEGAL HIGHLIGHTS - EMPLOYMENT LAW

The Minister of Human Resources has on 23rd June 2022 announced that the Employment (Amendment) Act 2022 (“the Amendment Act”) will come into operation on 1st September 2022. The objective of the enforcement of the Amendment Act is to enhance the protection and welfare of workers in Malaysia in accordance with international labour standards as outlined by the International Labour Organisation

The key amendments to the Employment Act 1955 through the AmendmentActshallinclude,amongstothers:-

Increaseinmaternityleaveto98days

Introductionofsevendayspaternityleave

Introductionofflexibleworkingarrangementforthehoursofwork, daysofworkorplaceofwork

Reductionofmaximumweeklyworkinghoursfrom48hoursto45 hours

IntroductionofanewprovisiontoempowerDirectorGeneralto inquire into and decide any dispute relating to discrimination in employment

Introduction of the requirement to exhibit notice on sexual harassmentawareness

Introductionoftheprohibitiontoforceanemployeetodoanywork orpreventthatemployeefromleavingaplaceofworkafterworkis done

(The Human Resources Ministry has decided to postpone the enforcement of the Amended Act of to 1st January 2023 with the intension to give the employers extra time to comply with the amendments and revise their employment contracts )

FORWARD 2022 14

CASE STUDY:

"More significantly, it was GMP who was responsible for selecting and employing Jaafar to function as a personal bodyguard thus enabling him to carry the said firearm They cannot now be heard to say they are not responsible if he had acted unlawfully in the course of his duty. It was common ground that on that fateful evening, Jaafar was performing his assignment as a bodyguard albeit in an illegal way. " Harmindar Singh Dhaliwal FCJ

FORWARD 2022 15
HIGHLIGHTS - EMPLOYMENT LAW
LEGAL

The respondent, Amirul was one of the victims of his random shootings and sustained serious bodily injuries Amirul filed a claim in tort against Jaafar, as the primary tortfeasor, and the Company for vicarious liability for Jaafar's action

The Federal Court in this case held that Jaafar had committed an intentional wrongful act by causing grievous injury to Amirul The scope of vicarious liability in a case where the employee has committed an intentional wrong is underpinned by the four common denominators: 1 2 3. 4.

the intentional wrong must be committed by the employee in the course of employment; there must be connection between the wrongful act and the nature of the employment; the nature of the employment is such that the public at large are exposed to risk of physical or proprietary harm; and the risk is created by the employer, owing to the features of the business

The Federal court further held that Jaafar was on duty to his employment as a personal bodyguard and by providing Jaafar with a firearm to perform his duty, the Company had created a risk which exposed the public to potential harm Jaafar's wrongful act was not independent from the task he was employed to do As such, the Company shall be vicariously liable for Jaafar's wrongful act

The act of Jaafar, the tortfeasor, shooting the members of the public and the respondent were a series of actions so closely connected with his employment as a bodyguard who was tasked of guarding Dato’ Ong Teik Kwang. His action was done in the course of employment and in executing his duties as a bodyguard Hence, his employer, the GMP Kaisar Security (M) Sdn Bhd, the appellant is vicariously liable for the wrongful act committed against the respondent.” Rohana Yusuf PCA

FORWARD 2022 16 LEGAL HIGHLIGHTS - EMPLOYMENT LAW

AMENDMENTS TO THE SMALL ESTATES (DISTRIBUTION) ACT 1955

With the intention of tackling inheritance issues and clearing backlog cases, the Parliament has on October 2021 passed the Small Estates (Distribution) (Amendment) Act 2022 (‘the Amendment Act’). The Amendment Act received Royal Assent on 19th January 2022 and was published in the Gazette on 25th January 2022. The key changes made through the Amendment Act included:-

The introduction of a new framework for distribution and administration of small estates by creating severalnewoffices,namelythePresidentofEstateDistribution,DeputyPresidentofEstateDistribution andEstateDistributionOfficer

Tobroadenthedefinitionof‘SmallEstate’toincludeanestateofadeceasedpersonwhichconsistofany movable or immovable property situated in any State that do not exceed RM5.0 million in total value. (PreviouslyanestateofadeceasedpersononlyincludesimmovablepropertythatdonotexceedRM2.5 millionintotalvalue.)

ThatapetitionmaybelodgedinanyStatewhereanyproperty,andnotjustimmovableproperty,ofthe deceasedissituated.(Previouslythepetitioncanonlytobelodgedinthedistrictinwhichtheimmovable propertyissituatedin)

Theintroductionofanewprovisionwhichenablestheapplicanttoapplyforasummarydistributionifthe property comprised in a petition consists only of movable property not exceeding RM600,000 in total value.

Introduction of a new provision which enables the Estate Distribution Officer to grant letters of administrationtoapetitioneroranybeneficiaryforlimitedpurposes,withoutthepowertodistributethe estate.

FORWARD 2022 18
LEGAL HIGHLIGHTS - FAMILY LAW

MALAYSIA GAZETTES AN ANTI-SEXUAL HARASSMENT ACT

DefinitionofSexualHarassment

Theactdefinessexualharassmentas:“anyunwantedconductofasexualnature,inanyform,whether verbal,non-verbal,visual,gesturalorphysical,directedataperson whichisreasonablyoffensiveorhumiliatingorisathreattohis well-being”

Thisdefinitionisslightlywidercomparedtothepreviousdefinition ofsexualharassmentintheEmploymentAct1995asthereisthe additionofthephrase“reasonably”andtheremovalofthephrase “arisingoutofandinthecourseofhisemployment”.

EstablishmentofaTribunal

The Act provides an establishment for a Tribunal consisting of members of the Judicial and Legal Services, solicitors and advocates, as well as persons with knowledge or practical experience in matters relating to sexual harassment The complain to the Tribunal will be heard by three members which comprise of at least one woman

“When we talk about a comprehensive sex harassment law, it’s not just having the procedure. It’s not just about reporting It’s also about prevention We don’t always want to try to address the issue only after it has happened " - Former Women, Family and Community Development Minister Datuk Seri Rina Harun

TheTribunalmayorderthefollowing:a) astatementofapologyfromtheharasserto thecomplainant; b) anorderforcompensationordamagesto thecomplainantnotexceedingRM250,000; and/or c) anorderforanyofthepartiestoattendany programmeastheTribunalthinksfit

FORWARD 2022 19 LEGAL HIGHLIGHTS - HUMAN RIGHT LAW
It was
and
has
AwardoftheTribunal
The Malaysian Anti-Sexual Harassment Act 2022 (the “Act”) has finally been passed by
Dewan Rakyat on 20th July 2022
gazetted
published in the Malaysian Gazette on 18th October 2022 but
yet to come into force It is a significant progress for Malaysia to end the normalisation of sexual harassment

MALAYSIA'S ANTI-PARTY HOPPING LAW EFFECTIVE ON 5TH OCTOBER 2022

The Constitution (Amendment) (No 3) Act 2022 (‘Amendment Act’) which amend the FederalConstitutioncomesintoeffecton 5th October 2022 This is a landmark law thatprohibitsMembersoftheDewanRakyat (HouseofRepresentatives)oftheMalaysian Parliamentfromswitchingpoliticalparties

In accordance to the Amendment Act, a personshallceasetobeamemberofthe HouseofRepresentativesifsuchperson:-

switcheshis/herpoliticalparty; resignsfromhis/herpoliticalparty;or joins a political party (if he/she was electedasanindependentmemberof theHouseofRepresentatives).

Nevertheless, a member of the House of Representatives shall not cease to be a memberofthatHousebyreasonof:-

the dissolution or cancellation of the registrationofhis/herpoliticalparty; his/her resignation from the membershipofhispoliticalpartyupon electionasaSpeaker;or theexpulsionofhis/hermembershipof his/herpoliticalparty

FORWARD 2022 20 LEGAL HIGHLIGHTS - HUMAN RIGHT LAW
The provisions which extend the anti-party hopping law to members of a State Legislative Assembly came into force in each state on the date appointed by the Yang diPertuan Agong with the consent of the Ruler or the Yang di-Pertua Negeri by notification in the Gazette

AMENDMENTS TO COPYRIGHT AND PATENT LAW

The Copyright (Amendment) Act 2022, which aims to strengthen provisions relating to the enforcement of copyright has come into force on 18th March 2022, together with the Copyright (Voluntary Notification) (Amendment) Regulations 2012.

Removal of the right of an author to lodge a voluntary notification of copyright As such only the owner or an assignee of the copyright may apply for such notification

Introduction of new offences relating to streaming technology It is now an offence to possess or provide any service of streaming technology (such as selling of TV Box) which result in an infringement of copyright

Introduction of new exemptions to copyright infringement, such as permitting conversion of works into accessible formats for the benefit of print disabled persons.

Changes to the Collective Management Organization (“CMO”) System. Only companies limited by guarantee incorporate under the Companies Act 2016 (“CLG”) may apply to be declared as CMO for copyright owners, authors and performers.

FORWARD 2022 21 LEGAL HIGHLIGHTS - INTELLECTUAL PROPERTY LAW

The Patents (Amendment) Act 2022 (the “Amendment Act”) has finally came into force on 18th March 2022. The Amendment Act waspassedbytheParliamenton22ndDecember2021,followedby the Royal Assent on 04th March 2022 and effective on 18th March 2022.

The key amendments to the Patent Act 1983 includes the following:-

The limitation period for infringement proceeding has been extendedfrom5yearsto6years.

Apatentcouldberecognisedasapersonalpropertycapableof beingthesubjectofasecurityinterest,inthesamewayasany otherpersonalormovableproperty.

Anyinterestedpersonmaycommenceoppositionproceedings against the patent owner to invalidate the patent by filing a noticetotheRegistrar

No proceedings may be instituted in Court while pending the Registrar’s decision for the invalidation of the patent concerned

AcitizenofMalaysiaresidingoutsideMalaysiaisentitledtofile an international application with the Patent Registration Office

TheRegistrarmaygrantacompulsorylicencetotheapplicant even if an exclusive licence contract has been entered into betweenthelicensorandalicensee

NoactioncanbeinstitutedagainsttheRegistrarinrespectof anyactorderedordoneforthepurposeofcarryingintoeffect theAct.

FORWARD 2022 22
PROPERTY LAW
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.
LEGAL HIGHLIGHTS - INTELLECTUAL

"This (extension) is to ensure the effective and progressive coordination of the implementation of Act 829 pursuant to the amendments made recently," - Minister in the Prime Minister’s Department (Parliament and Law)

KEY AMENDMENTS AFFECTING PROPERTY LAW

IN THE TEMPORARY MEASURES FOR REDUCING THE IMPACT OF COVID 19 ACT

The amendments to the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 (the “Act”) were passed by the ParliamentinDecember2021andweregazettedon13th January2022,withtheaimtoensuretheeffectiveand progressive coordination of the implementation of the Act Thekeyamendmentsaffectingpropertylawareas follows:-

The insertion of the definition for “agreement” which limits the application of reliefs in the Act to thepurchaseofapropertyfromdevelopersonly;

No late payment charges shall be imposed by the developer against the purchaser for unpaid instalments between 1st January 2021 to 31st December2021;

ThedevelopermayapplytotheMinisterofHousing and Local Government to exclude any period from 1st January 2021 to 31st December 2021 from the calculation of the time for delivery of vacant possessionoftheproperty;

The period from 1st June 2021 to 31st October 2021 shallbeexcludedfromthecalculationofthedefect liability period after the purchaser takes vacant possessionoftheproperty;and

Thepurchasershallnotbedeemedashavingtaken vacant possession of the property if he/she is unable to take vacant possession between the periodof1stJune2021to31stOctober2022

FORWARD 2022 23 LEGAL HIGHLIGHTS - PROPERTY LAW

CHANGE OF BUILDING MATERIAL WITHOUT PURCHASER’S CONSENT

DEVELOPER IS LIABLE FOR THE BREACH OF CONTRACT

On 23rd March 2022, the Federal Court in CHONG NGE WEI & ORS v KEMAJUAN MASTERON SDN BHD [2022] 4 CLJ 833 unanimously restored the decision of the High Court that the Purchaser of a housing accommodation shall be entitled to seek for damages if there is an unauthorised use by the Developer of materials that are different from what is stated in the sale and purchase agreement

In this case, the Developer had changed the building material for the outer brick walls of the properties, from autoclaved aerated concrete building block to flexcore without the Purchaser’s written consent. In deciding the issue of damages, the judges held that the Purchaser is entitled to either seek a corresponding reduction in the purchase price or claim damages against the Developer who uses different materials in constructing the property without the Purchaser’s consent.

Nevertheless, in addition to showing the Court that the material used was different, the Purchaser is still required to show the proof of actual loss before damages could be awarded. The judges in this case accepted the quotation which mentioned the details of the works to be undertaken and the costs to be incurred for replacing the flexcore with autoclaved aerated concrete building block as a sufficient proof of actual loss.

FORWARD 2022 24
LEGAL HIGHLIGHTS - PROPERTY LAW

The Developer entered into a sale and purchase agreement (“SPA”) with a Purchaser for the purchase of a unit of apartment After accepting the vacant possession of the apartment, the Purchaser commenced an action against the Developer at the Tribunal for Homebuyer Claims (“the Housing Tribunal”), claiming that the unit delivered to him was wrong as the display model showed to him before the purchase was with a covered balcony but the actual unit delivered to him was with an open balcony A Technical Inspection Report carried out by a technical team found that the unit delivered to the Purchaser was in fact, compliant with the SPA

Nevertheless, the Housing Tribunal found that the Purchaser was entitled to the unit with a covered balcony as the feature of the display model carrying a covered balcony was binding on the Developer.

However, the judge in the Federal Court case COUNTRY GARDEN DANGA BAY SDN BHD v HOUSING TRIBUNAL & HO CHEE KIAN was of the opinion that although the Purchaser had relied on the display model which he alleged carried units with a covered balcony when making the purchase, the specification for a covered balcony was not a term of the SPA.

The Federal Court therefore held that that the Housing Tribunal’s award was against the provisions of the SPA and contradicted with the findings in the Technical Inspection Report. The Housing Tribunal's jurisdiction shall be limited to a claim based on a cause of action arising from the SPA. Hence, the Tribunal was wrong to take into consideration the Display Model instead of the SPA.

FORWARD 2022 25 LEGAL HIGHLIGHTS - PROPERTY LAW

ASCERTAINED LIQUIDATED DAMAGES (“LAD”) CLAIM AGAINST DEVELOPERS IN MALAYSIA

In 2020, the Federal Court in ANG MING LEE & ORS v MENTERI KESEJAHTERAAN BANDAR, PERUMAHAN DAN KERAJAAN TEMPATAN & ANOR AND OTHER APPEALS [2020] 1 MLJ 281 held that the Controller of Housing does not have the power to extend the completion time of a housing development beyond the prescribed period stated in Schedule G or H [prescribed form provided in Housing Development (Control and Licensing) Regulations 1989] Since then, the claims against developers for the late delivery of properties have increased Amongst them, there are two recent cases that were distinguished from the decision in Ang Ming Lee

OBATA-AMBAK HOLDINGS SDN BHD v. PREMA BONANZA SDN BHD & ANOTHER APPEAL [2022] 5 CLJ 251

CAUSE OF ACTION RUNS FROM THE DATE OF THE EXECUTION OF SPA

In this case, the Purchaser signed a sale and purchase agreement back in 2012 with the completion period of 54 months instead of 36 months. The Purchaser filed a suit against the Developer and claimed that the extension of time provided in the sale and purchase agreement was invalid and that the parties are required to adopt the prescribed clauses set out in Schedule H which provide for a completion period of 36 months only

Instead of discussing whether the extension of time provided is invalid or not, the judge held that the Purchaser’s claim was barred by the limitation period of six years as the plaintiff’s cause of action ran from the date of the execution of SPA, that was 2012 Since this suit was filed when the limitation period had already set in, the claim from the Purchaser was dismissed

BLUDREAM CITY DEVELOPMENT SDN BHD v. KONG THYE & ORS AND OTHER APPEALS [2022] 2 CLJ 829

MINISTER HAS THE POWER TO GRANT EXTENSION OF TIME

The Developer in this case obtained the extension of time for delivery of vacant possession from the Minister of Urban Wellbeing, Housing and Local Government (“Minister”) Dissatisfied with the Minister’s decision, the Purchasers challenged the Minister’s decision by way of judicial review.

The Court of Appeal held that the extension of time is valid as in Ang Ming Lee case, the decision to extend time to complete the units was made by the Controller, not the Minister Here, it was the Minister that made the decision to extend time The fact that the Controller had no power to make a decision did not take away the power of the Minister to make a decision to modify the Schedule H contract.

01
02
FORWARD 2022 26 LEGAL HIGHLIGHTS - PROPERTY LAW

DevelopmentinMalaysianSportsLaw

n 2018, the Sports Development Act 1997 was amended by the Parliament in order to establish the Sports Dispute Committee (‘SDC’), which is given the responsibility of resolving disputes that could not be resolved in accordance with the internal procedures of a sports

body. In order to further lay out more detailed guidelines for SDC, the Minister of the Ministry of Youth and Sports has on February 2022 introduced the Sports Development (Sports Dispute Committee) Regulations 2022 (the “Regulation 2022”).

The Regulation provides the guideline for dispute resolution at the referral stage or post-internal proceedings, for instance, the procedure for application and withdrawal of referral of dispute, the regulations to govern the notice of hearing, absence of parties during the proceeding, representation in proceeding and record of proceeding

Furthermore, on 1st November 2022, the International Council of Arbitration for Sport (“ICAS”) has enforced certain amendments to the Code of Sports-related Arbitration (“the CAS Code”). These amendments include the increase of number of ICAS members from 20 to 22, the increase of number of CAS arbitrators from 150 to 300 and the introduction of a new football legal aid fund to assist individuals without sufficient financial means to access CAS arbitration in football-related disputes.

FORWARD 2022 28
HIGHLIGHTS - SPORTS LAW
I
LEGAL
US FOLLOW US CONTACT US If you have questions, drop us an e-mail at generalkl@ctwlaw my FORWARD is a yearly bulletin For more of our frequent content, follow us at Instagram: @ctwlaw my LinkedIn: Clarissa Tan & Wong Facebook: Clarissa Tan & Wong Website: www
my Send us documents, postcards or chocolates at Clarissa Tan & Wong (Main Branch) No 6-6, Menara Infiniti, Jalan SS 6/3, Kelana Jaya,
Petaling Jaya, Selangor Darul Ehsan Tel:
7680 4563 Clarissa Tan & Wong (Penang Branch) 5850, First Floor
Kampung Paya
Butterworth Pulau Pinang Tel:
- 432 8032 Email:
my FORWARD 2022 29
ASK
ctwlaw
47301
+603
Jalan
12200
+6016
generalpg@ctwlaw
– @ctwlaw.my
FORWARD 2022 30
S T R O N G E R t e a m W I D E R r e a c h
O
F RWARD E A G E R t o s e r v e W E L O O K
S e l a n g o r | P e n a n g w w w c t w l a w m y

Turn static files into dynamic content formats.

Create a flipbook
Issuu converts static files into: digital portfolios, online yearbooks, online catalogs, digital photo albums and more. Sign up and create your flipbook.