legal cauldron 2 of 2013

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15000 Kota Bharu, Kelantan. T: 09-747 7782

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Issue no. 2

of 2013

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GA

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AU

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ue N

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of 2013

MELAKA

No.54-1, Jalan TU 2, Taman Tasik Utama, 75450 Ayer Keroh,

Melaka. T: 06-234 7330

F: 06-234 4800

LEGAL CAULDRON Jayadeep Hari & Jamil

Advocates and Solicitors

Our offices:

No KDN: PP 15706/02/2013

(032198)

KUALA LUMPUR

Suite 2.03 (2nd Floor) Block A, No 45, Medan Setia Satu, Plaza Damansara, Bukit Damansara,

50490 Kuala Lumpur. T: 03-2096 1478 | F: 03-2096 1480

www.jhj.com.my

The Minimum Retirement

Age Act 2012

EDITOR:

Adeline Chin

DESIGN & LAYOUT:

Andrew Chee

CONTRIBUTORS:

Shobana Padmanathan

Shahman Sangaran

Eunice H.S. Ong

Barvina Punnusamy

Adrian Low

JHJ Charity Mission - Give a

Home a Library

Shedding Light on Vehicle

Tinting

Park At Your Own Risk

The Powers of a Manage-

ment Corporation

Understanding Force Majeure

in Commercial Contracts

In this Issue:

JHJ 360˚ Student Attachment

Programme - Testimonials

Editor’s Note

Stop on red, go on green. Yellow? Well, driving school

would have taught us that it means “prepare to stop”.

But for some drivers, perhaps the term “proceed with

caution” would be more apt an observation. Everyone

is deemed to know the law afterall.

There are areas of law like the red and green

traffic lights with manifest instructions or regulations

(and repercussions of course); and then there are are-

as of law akin to the yellow traffic lights, which we

more often than not tread on.

This issue of the Legal Cauldron comprised of

selected contributions touching on subjects sharing a

hue similar to that of a yellow traffic light - persistent

yet more often than not neglected, until trouble en-

tails. We boldly questioned the jurisdiction of some

managerial bodies, analyse the utility of the recent

Minimum Retirement Age Act and unveil the potential-

ity of force majeure clauses.

I am grateful to all the associates and pupils

who have contributed to this issue of the Legal Caul-

dron. The hours of research effort put into writing

these articles aside, it was the “We Care” spirit re-

flected in the way topics were decided upon based on

what may be most relevant to our readers, and the

drive to seek sensible riposte to these pertinent mat-

ters which is truly prized.

Eventful is the year 2013 to date, and it is our

pleasure to share with you some of these memories

crystalized in the form of photographs within the pag-

es. January saw our pupils-in-chamber battle for hon-

our in a Parliamentary style debate, with the Managing

Partners sitting on the judging panel. Impressive

speeches were presented, the judges deliberated, and

new champions were announced on that glorious day.

The JHJ team carried that fiery enthusiasm

through to March for our charity mission: “Give a

Home a Library”. Our team went on a drive to seek

and collect suitable reading materials for the children

and teens of Shelter - Home for Children, throughout

the month. Smiles and laughter filled the house when

we played a game of Pictionary with our young hosts,

shared food and set up the library corner. March also

marked the successful graduation of our Attachment

Students from the second year running of our JHJ 360˚

Student Attachment Programme.

We take delight in picking up where we left off

since the first issue of our 2013 Legal Cauldron, in a

bolder way. We’ve upped the selection of articles from

the previous 3 to the current 5 in order to facilitate

better knowledge sharing with you, our dear readers.

Hope you enjoy the latest edition of the Legal

Cauldron with our compliments.

Legal Cauldron 2 of 2013 | 2

EDITOR

Adeline Chin Knowledge Department

[email protected]

Business Management studies teach that a company’s

employees are its intellectual capital and are the great-

est intangible asset. Being cognizant of this principle,

most western countries have set the minimum retire-

ment age at 65. Closer to home, the Singaporean gov-

ernment had, last year, raised the retirement age to 62.

Now Malaysia is no exception when the Minimum Re-

tirement Age Act 2012 was passed in July 2012 and ga-

zetted on 16 August 2012. The Act is said to take effect

on 1 July 2013.

The Act has increased the minimum retirement

age of the private sector employees from 55 to 60. Sec-

tion 4 (2), however, allows the Minister to prescribe a

minimum retirement age higher than 60 by notification

in the Gazette.

This article will discuss the guidelines of the

implementation of the Act, outline the significant sec-

tions and identify the redress available to both employ-

ers and employees in the event of any non-compliance

of the Act.

GUIDELINES ON THE IMPLEMENTATION OF THE

ACT

The passing of the Act has received mixed reaction

across the nation; some of which includes fear of non-

compliance, efficacy of implementation and possible ef-

fects on both employees and employers. In appeasing

these qualms, the Ministry of Human Resource had al-

lowed employers (up to 28 February 2013) to defer the

commencement of the implementation of the Act up to

6 months.

DEFINITION OF ‘RETIREMENT’

The term retirement has been defined as “termination

of a contract of service of an employee on the ground

of age”. Having said this, it is only obvious that the Act

strictly deals with termination on the ground of age. It

does not deal with other forms of termination as they

fall under the purview of the Industrial Relations Act

1967. As such, the Act is under the governance of the

Labour Department and not the Industrial Relations

Department.

PRELIMINARY SECTIONS

Section 2 of the Act with reference to the Schedule

states that the Act does not apply to persons employed

on a permanent, temporary or contractual basis by the

Federal and State Government, statutory bodies and

local authorities. It also does not apply to persons

working on a probationary term, apprentices employed

under an apprenticeship contract, non-citizen employ-

ees, domestic servants, persons employed in any em-

ployment with average hours of work not exceeding

70% of the normal hours of work of a full-time employ-

ee, students employed under any contract for a tempo-

rary term of employment (this does not include employ-

ees on study leave or employees who study on a part-

time basis), persons employed on a fixed term contract

of service; inclusive of any extension of not more than

24 months and finally, persons retired at the age of 55

years and above before the date this Act takes effect

and is subsequently re-employed after the said retire-

ment.

Section 5 prohibits an employer from prema-

turely retiring an employee before the employee attains

the minimum retirement age. A premature retirement

does not include an optional retirement under Section 6

and a termination of a contract of service for any reason

other than on the ground of age. Employers who disre-

gard this law are deemed to have committed an offence

and will be liable to a fine not exceeding RM10,000.00.

By virtue of Section 7 of the Act, the retirement

age in a contract of service or collective agreement

made before, on or after the date this Act takes effect

which is less than the minimum retirement age (60

years) provided by this Act is deemed void and will au-

tomatically be substituted with the minimum retirement

age provided by this Act. Having said this, the Act does

not refuse employees from seeking optional retirement

agreed in a contract of service or collective agreement.

REDRESS AVAILABLE TO AN AGGRIEVED EMPLOYEE

An employee who has been prematurely retired by his

employee has two options. The employee can, under

this Act, opt to complain in writing to the Director-

General of Labour within 60 days from the retirement

or make a representation under section 20 of the Indus-

trial Relations Act 1967 (“the IRA”). The aggrieved em-

ployee is not allowed to make dual representation/

complaint simultaneously. In the event an employee has

made a representation under section 20 of the IRA, the

Director General will not conduct an inquiry of the

complaint under this Act. However, if the complaint


‘The Act has increased the minimum

retirement age… from 55 to 60.’

THE MINIMUM RETIREMENT AGE ACT

2012

By Shobana Padmanathan

under this Act has been heard and dismissed, it is only

then when an employee may appeal against the decision

or make a representation under the IRA within 30 days

after the dismissal of the complaint.

If an employee has made a representation under

section 20 of the IRA upon dismissal of his complaint to

the Director General, the employee will not be entitled

to an appeal under this Act. Also, if the Director Gen-

eral has made a direction under this Act, the employee

will similarly not be entitled to any other remedy for a

dismissal without just cause and excuse under the IRA.

Upon an inquiry, the Director General may dis-

miss the complaint if he is satisfied that there is no pri-

ma facie evidence to substantiate the complaint. On the

other hand, if the Director General is satisfied that an

employee is prematurely retired, he may direct an em-

ployer to (1) reinstate the aggrieved employee to his

former employment and pay the employee any arrears

of wages calculated from the date of premature retire-

ment to date of reinstatement or (2) pay the employee

a compensation in lieu of reinstatement which shall not

exceed the amount of total wages calculated from the

date of premature retirement to the date the employee

attains the minimum retirement age.

The inquiry by the Director General prescribed

by this Act allows the Director General to refer any

question of law for the decision of a Judge of the High

Court and the decision of the inquiry must be in con-

formity with the decision of the Judge of the High

Court. If there is any dissatisfaction with the decision of

the Judge of the High Court, the aggrieved party may

appeal to the Court of Appeal.

Most importantly, an employee who is dissatis-

fied with the decision of the inquiry by the Director

General may appeal to the High Court.

NON-COMPLIANCE WITH THE DIRECTION OF THE

DIRECTOR GENERAL

An employer who fails to comply with the direction of

the Director General is deemed to have committed an

offence and will be liable to a fine not exceeding

RM10,000.00 and upon conviction, the Court can order

the employer to pay the employee the amount directed

by the Director General. Further to that, if the employ-

er fails to comply with this order, the employee may

apply to the Court to issue a warrant to levy the em-

ployer’s property for the amount ordered to be paid.

The Director General has, by virtue of this Act,

been conferred wide powers to investigate any offence

and enforce any provision under this Act; to be precise,

he has the power to require the attendance of persons

acquainted with the case and the power to require the

production of any document acquainted with the facts

and circumstances of the case.

EFFECT ON THE EMPLOYEES PROVIDENT FUND

(EPF)

Currently, the EPF Act 1991 allows employees to with-

draw part of their savings at the age of 50 years and the

remaining at 55. The Ministry of Human Resource has

announced that EPF Act 1991 will be amended to allow

employees to withdraw their full EPF savings either at

55 or at 60 years.

CONCLUSION

The Act is said to be a step forward taken by the Malay-

sian Government to not only encourage the country’s

competitiveness but also an effort to improve the wel-

fare of the Malaysian citizens. It is the author’s opinion

that this Act is sought as an opportunity by both em-

ployers and senior employees who are in good health to

continue to work and in turn impart their experience

and skilled talent to train the younger generation. This

would create a competent and skillful workforce. After

all, employee productivity and efficiency is not an age

issue but that of a performance management issue.

by Shobana Padmanathan

[email protected]


‘An employee who is dissatisfied with

the decision of the inquiry by the

Director General may appeal to the

High Court.’

JHJ featured on Asia Business

Channel

Asia Business Channel (ABC) is an independent production

company specialized in producing programs that focus on

the economic development as well as the sights and sounds

of countries in focus. These special programs are aired on a

regular basis on Asia’s premiere television network, Channel

News Asia.

source: AsiaBusinessChannel.tv

The sunny morning of March 16 was more than our ordinary Saturday mornings. We were on a mission, and had

been painstakingly planning it for the past weeks. Our mission started off early with some of us loading boxes full of books

into the cars, whilst others packed up the food, drinks and other necessities. By 1300 hours, more than half a dozen cars

were "deployed" from various locations heading towards Shelter 2 at Taman OUG.

It is and had always been JHJ's mission to reach out at least once a year towards charitable bodies and/or organisa-

tions. We work hand in hand with different organisations yearly, but our goal to make a change for the better no matter

how insignificant remains resolute.

This time we pledged to give something priceless; something beyond a day's worth of entertainment and smiles.

We pledged to Give a Home a Library. Books are pathways to a world of knowledge, and the best way to travel the

world yet. So this time round we will leave behind a portal for the future instead of mere good memories.

Members of the JHJ family hunted down good reads from various sources including, inter alia, navigating through

the crowd in the Big Bad Wolf book fair and diligently searching for book donations on relevant reading materials that ca-

ters to the Home. The bookshelf arrived at the Home earlier that morning and our book carriages reached just in time for

it to be filled up. We shared lunch with our young hosts and proceeded to a noisy game of Pictionary (yes, the irony).

Winners of the Pictionary game won themselves ang pows courtesy of our Sports Committee. Thankful we are to

the management of Shelter Homes in granting us an opportunity to share smiles on that day, and here we would like to

share bits and pieces of our memories with you in the mission snippets on Page 15.

Sponsored by: In collaboration with:

“It is what you read wh

en you

don't have to that deter

mines

what you will be when

you can't

help it" - Oscar Wilde

JHJ Charity Mission

Give a Home a Library


How often do you enter your car and feel like you’re in

a frying pan? In a country like Malaysia, it is summer all

year long due to our country’s location near the Equa-

tor. If you’re sick of feeling like an overcooked “pisang

goreng”, having your car tinted may become a necessity.

Tinted glass helps to block the sun’s heat and a

whopping 99.9% of damaging ultraviolet (UV) rays. It

also helps protect your eyes from glare and eyestrain,

and your skin from sun damage. Not only that, it pro-

tects the interior of the vehicle, which translates into

cost saving.

Some security tinted glass also makes your ve-

hicles safer by holding shattered glass in place during

collision thereby protecting the driver from potential

injury from shattering and flying glass shards. Also, it

prevents smash and grab cases, as a hammer would take

about three or four hits to show a crack, whereas a

helmet would take much longer.

However, a shield for the better can be a trig-

ger for the worst. Criminals love tinted glass too be-

cause nobody can see their faces through the windows

of their vehicles. In the home robberies in Muar, four

houses in different locations were targeted in a single

day. The criminals moved around the housing estates in

their luxury vehicles, all with tinted windows to avoid

suspicion.

It can also be dangerous. One example would

be the story of a child who died inside his parent’s car.

The fact shows that the mother reached school at 7am

and only after 1.30pm that she realised, her son was

still inside the car. That was more than 6 hours after

she parked the car! According to the news report, wit-

nesses said they did not hear or see anyone in the car

since its windows were said to be tinted.

Therefore not surprisingly, there are certain

rules and regulations that must be complied in installing

car tints. Offenders face a penalty of a fine up to

RM500.00 or a two-week jail sentence for the first of-

fence. A fine of up to RM 1000.00, or a one-month jail

sentence, or both can be imposed for subsequent of-

fences. The Road Transport Department (JPJ) reported

that more and more vehicles are fined for heavy tints

every year. This can be as a result of some unscrupulous

shops who advise their customers on unapproved tints.

They too have their own version of rules and regula-

tions which they think is the correct ones to follow. In

many cases, the innocent consumers are fooled into

fixing the wrong products and receive traffic compounds

after that. Unfortunately, the JPJ is not empowered by

the law to impose fines on tinting shops.

Hence, before picking up a new “Ray-ban” for

your car, it is important to know the rules and regula-

tions governing car tinting. It is also important not to be

influenced by any party claiming to offer tinted film with

prior approval of the JPJ.

Rule 5(1) and Rule 5(3) of the 2000 Amendment

of the Motor Vehicle Rules (Prohibition on Specific

Types of Glass) set the translucence level of the wind-

shield at no less than 70% and the rear and side win-

dows at no less than 50%. Take note that this includes

the existing glass. In other words, the glass together

with the tint film must comply with the translucence

level.

Exception is however given to certain vehicles

under Rules 11(a) and 11(b), Motor Vehicle Rules

(Prohibition on Specific Types of Glass) 1991. These are

for vehicles that are used by the sultans, members of

royalty, chief ministers of the states, judges, police etc.

What if you do not fall under this exception but

still require it for safety or medical reasons? Do not

fret! Those who require it for safety or medical reasons

can still apply for an exception by writing an application

letter addressed to the Director-General of JPJ Malaysia

and by filling up the CG1 Form. Good news! This form

can be acquired from all state JPJ headquarters for free.

All applications must include a certified photo-

copy of the applicant’s identity card and the vehicle’s


‘...innocent consumers are fooled into

fixing the wrong products and receive

traffic compounds after that.’

SHEDDING LIGHT ON VEHICLE TINTING

By Shahman Sangaran

‘If you’re sick of feeling like an over-

cooked “pisang goreng”, having your

car tinted may become a necessity.’

registration. For applications made due to medical rea-

sons, a validation letter from a government medical of-

ficer and recent medical records must be enclosed. For

applications made due to security reasons, an endorse-

ment letter from the state police chief is required.

All the applications will be processed and for-

warded to the Director-General of JPJ for approval.

Upon approval, a Tinted Window Permission Certificate

is issued. Take note that the permission for the use of

tinted windows is only for one (1) year and must be

renewed. The renewal application must be made three

(3) months before the duration of the initial permission

is up. All the above documents are submitted again to-

gether with a photocopy of the existing Tinted Window

Permission Certificate.

In the same vein, only buses are allowed to in-

stall curtains. All other vehicles including vans are not

allowed to install curtains.

All in all, car tinting should fulfill its primary

function to block the sun's heat and harmful UV rays,

and not to be misused with unlawful heavy tinting.

Hence, one should always take the extra step to be in-

formed and comply with the rules and regulations gov-

erning tinting in Malaysia.

by Shahman Sangaran

[email protected]

‘…car tinting should fulfill its primary

function to block the sun’s heat and

harmful UV rays, and not to be mis-

used with unlawful heavy tinting.’ CLUES

1. To free one from a criminal charge.

2. To disagree, usually in judgments,

3. This is the verdict given if one is proven to be at fault.

4. Where the property is “borrowed”.

5. Failure to exercise reasonable care.

6. Process of administering the estate of a deceased.

7. Court authorization to conduct a search or make an

arrest.

8. Request for a change in formal decision.

9. Anything presented to support an assertion.

10. The unauthorized possession of prohibited drugs such

as heroin and cocaine is … …?

11. A legal hold on a property to secure payment of debt.

12. Rejecting by exercising one’s superiority.

13. Democratic nations fight for this.

14. Someone who have seen, heard or experienced the

incident or event.

15. The place where legal matters are tried.

16. French for “a superior and unexpected force”.

17. Our profession here in JHJ.

18. The unlawful killing of another human being, with intent.

19. The synonym of the words “beg” or “request”.

20. The authority to compel one’s attendance in court.

Acquit, Dissent, Guilty, Lease, Negligence, Probate, Warrant, Appeal, Evidence, Illegal,

Lien, Overrule, Rights, Witness, Court, Force Majeure, Lawyer, Murder, Plea, Subpoe-

na.

JHJ Legal Word Search


So, today was just like any other day where you decided to

go to a mall on a weekend. You drive into the basement

parking of the mall, you press on the ticket button on the

machine for the parking ticket to be printed. While waiting

for the machine to print the ticket, you notice a faded sign

just at the side of the machine which says this:-

“All motor vehicles accepted in these

premises are at owners’ risk, ‘The Compa-

ny’, its staff and agents undertake no

responsibility and shall not be liable in any

manner for any loss or damage whatsoev-

er of or to the vehicle parked in these

premises, its accessories or contents how-

soever such loss whether caused by negli-

gence or otherwise by the ‘The Company,

its staff and agents.”

You don’t think much of this, except that there are too

many words to bother and that it probably won’t happen to

you. In fact, you see signs like these all the time in different

forms.

The parking ticket slides out with a buzzing sound,

the barrier lifts and you enter the basement. After finding a

nice parking spot, just next to the entrance of the escalator,

you and your family alight your car and you proceed to do

your shopping.

After a few hours at the mall, you head back to

your car. Only to find that it has been stolen.

Upon complaining furiously to the management of

‘The Company’, they direct your attention to the signboard

you saw when you were waiting for the parking ticket. They

tell you that from the time you entered into the premises,

you have agreed to the clause stated on the sign that ‘The

Company’ will not be responsible for any damage whatsoev-

er whether or not caused by the negligence of ‘The Compa-

ny’. Before you let your heart sink, hold on and hear us out.

Does the law in Malaysia allow for someone to

exclude liability for negligence by just putting up a sign like

that? A sign which contains a clause, which we lawyers like

to call an exclusion clause.

The law is clear that for an exclusion clause to be

valid, ‘The Company’ must show that the sign/clause has

been displayed in a reasonably noticeable location and that

it is comprehensible.

So, in this case, the sign being just next to the auto-

mated ticket machine when you entered into the mall and as

you were waiting for the parking ticket to be printed from

automated machine, you could read the sign. And essentially,

you understood the contents of the said sign.

But could that very signboard containing the long,

uninteresting and wordy clause release ‘The Company’ of all

legal responsibilities to you, as a visitor?

In Malaysia, the governance of exclusion clauses has

not been codified and we will have to read into case laws to

decide your legal position after this terrible incident.

Way back in 1959, the Privy Council had decided in

the case of Sze Hai Tong Bank Ltd v Rambler Cycle

Co. Ltd [1959] 25 MLJ 200, that where there is a clause

which tries to exclude liability completely would be unrea-

sonable. Especially where there was evidence of serious neg-

ligence. So, this means that the said clause has to firstly be a

reasonable clause.

In another case of Sekawan Guards Sdn. Bhd v

Thong Guan [1995] 1 MLJ 811, the Plaintiff had em-

ployed the Defendant to provide security services to the

Plaintiff's premises. A burglary had occurred at the Plaintiff's

premises and the Plaintiff had sued. The Defendant in Seka-

wan argued that they were not liable because there was a

clause which says:-

“The company shall not be liable for any loss

suffered by the owner due to burglary, theft,

fire, or any other cause whatsoever, unless

such loss is solely caused by the negligence of

the company's own employee acting in the

course of their employment.”

The Court said that if the Defendant wants to rely on this

clause, then he is required to prove that it is applicable and

they must show that they were not negligent.

A case which is more similar to our current scenar-

io would be the Chin Hooi Nan v. Comprehensive Au-

to Restoration Service Sdn. Bhd. & Anor [1995] 2

MLJ 100. Chin Hooi Nan left his car with the defendant to

be waxed and polished. When Chin came back to collect his

car, he found that his car was damaged and again there was

an exclusion clause at the back of the receipt, seeking to

exclude the car wash of liabilities.


PARK AT YOUR OWN RISK

By Eunice H.S. Ong

‘But could that very signboard…

release “The Company” of all legal

responsibilities to you…?’

The High Court Judge here made it clear that an

exemption clause however wide and general does not re-

lease the respondents from the burden of proving that the

damages caused to the car were not due to their negligence

and misconduct. They must show that they had exercised

due diligence and care in the handling of the car.

Reading both the cases of Sekawan and Chin

Hooi Nan, essentially, what I would like to share with you

is:-

A sign/clause like that [i.e. the exclusion clause] does not

automatically release ‘The Company’ of all legal responsibili-

ties towards you. They still have a duty to take the neces-

sary and reasonable precautions.

So, if it is a basement car park, the management

will have to ensure certain security measures. And that is

why you will see security guards doing their rounds when

you’re parking your car at the basement car park and also

you will see surveillance cameras at every corner of the

mall.

And if it is a car wash, they will have to show that

their employees are trained and that they have reasonable

checks every now and then.

If it is a hotel, then again security guards will be

employed and surveillance cameras will be installed. And if

they can show that they have done all that they can reason-

ably do and yet damage had still happened to your car, then

yes, your case against the Company may not succeed.

So, you ask yourself, if that’s the case, then why

would anyone put up a signboard like that, attempting to

exclude liability, when in law, they really can’t? Well, for this

question, your guess would be as good as ours.

by Eunice H.S. Ong

[email protected]

Md Yusoff bin Ahmad v Siti Hajar bt Sarkawi & Anor

[2013] 1 MLJ 329

Holding of an EGM in a different location other than the

company’s registered address does not invalidate the meet-

ing if the change of location does not cause undue hardship

to any of the supposed attendees. It is not mandatory for a

company’s EGM to be held in the registered address only.

Affin Bank Bhd v Mohd Kasim Ibrahim [2013] 1 CLJ

465

In a corporate merger and acquisition exercise, all contracts

of employment from the old company would be deemed to

have ended, replaced by the terms of employment of the

new company taking over. Hence, terms of employment

would be in accordance to those of the new company.

Syarikat Sesco Bhd (formerly known as Sarawak

Electricity Supply Corp (SESCO)) v Yu Thian Motor

Services Sdn Bhd [2013] 2 MLJ 116

Simply signing without understanding the contents of a doc-

ument is a form of negligence. Terms contained in the docu-

ment/agreement would be binding upon signing parties even

if a third party tempered with the power meter.

Dr Noor Aini Hj Sa'ari v Sa-Art Sae-Lee & Anor

[2012] 3 CLJ 913

Although a doctor may refuse to fully disclose a consultancy

report by reason of irrelevance or privilege, an agreement

to disclose such report would include uncensored discovery

of the full report. The law was concerned with substance,

not form.

Tan Seng Lee v Mahkamah Perusahaan Malaysia &

Anor [2013] 1 AMR 846

A probationer still has the right not to be dismissed arbitrar-

ily. It is the employer’s duty to show that dismissal was done

with just cause and excuse. Employers must conduct due

process if they intend to dismiss an employee, the same shall

apply to probationers.

Lim Kee Fung v Kwong Wah Yit Poh Press Bhd

(Yeoh Seok Khoy, third party) [2013] 7 MLJ 91

The standard to be adopted when determining whether

there was defamation is that ‘of ordinary reasonable people,

of fair intelligence, who are not avid for scandal and should

not be unduly suspicious’. It is sufficient for the publisher

ensured that the contents were true by making sure the

wordings did not affect the person concerned.


‘…if the Defendant wants to rely on

this clause, then he is required to

prove that it is applicable and they

must show that they were not negli-

gent.’

LEGAL UPDATES 2013

360o

JHJ 360° STUDENT ATTACHMENT

PROGRAMME

An Experience Which Will Prepare Me For A Lifetime

Like many other LLB students, I have had my share of internships or previous work experiences, in the hopes of

enhancing my CV and garnering precious work experience. I have had my taste of binding, photocopying, watching lawyers

in court, and the seemingly unending research which are part and parcel of being an intern at a law firm. However, none of

that prepared me for the learning experience I encountered when I joined the JHJ 360˚ Student Attachment Programme.

I was given a list of tasks (to complete over the next few months) which saw me taking on assignments from every

department in the firm, from drafting agreements to holding Dialogues on various topics. The tasks were diverse and detail

oriented, they gave me so many opportunities to get to know each area of law well enough to discover any affinity with a

particular area.

None of those tasks differed from what we would encounter in actual practice. And nothing speaks louder than

experience. The opportunity to go to court and observe the lawyers in courtrooms – to see what really goes on in a trial,

the research involved, the preparation and nerves behind it, the pride of a favourable verdict – was priceless, and drafting

court documents gave me invaluable understanding and insight into the litigation process.

Attending a corporate meeting gave me a glimpse into the other side of the legal world; the works outside a court

room, without the ardour of litigation but which was no less intriguing. While drafting agreements, I learned just how wide

the scope of corporate law is. Every agreement was different and engaging in its own way and I was exposed to so many

areas in the corporate world I was previously oblivious to, or knew only little about.

Being exposed to conveyancing afforded me the opportunity to see the legal world from an entirely different per-

spective. Often referred to as a lawyer’s bread and butter, I learned how meticulous the process was and the arduous pa-

perwork behind owning a house or property. At the same time, I could also brush up on my CLP revision through research

on civil procedures, bankruptcy proceedings, and tort and land matters, which are all part of the 360˚ programme. The

practical aspect of what we have only seen in revision and textbooks was etched into my memory more deeply than any

amount of reading and studying could ever do.

An interesting task was the dispatch task, when I was to observe the process of filing three documents. Although

they were merely three short documents, the whole process took more than an hour. The amiable dispatch walked me

through the whole process, taught me all about what was happening with the documents, what the filing system is and what

it used to be, and the little techniques he picked up over the many years of service on how to get your documents filed

faster. It made me realise just how crucial every person’s role in a law firm is, and without just one of them, a law firm

would not be able to run smoothly.

Finally, we were also required to hold three Dialogues on three different topics, which we presented before the

rest of the firm. Although the Dialogues were on topics which I believe many in the firm had been through countless times,

they still took the time out to sit through our Dialogues, listening and giving constructive opinions and responses.

But at the end of the day, what makes anything work is the people involved. The best part of the programme was

the people in the firm. Many of the tasks I was given were new and challenging especially to an inexperienced mind, but the

willingness to help, generosity of time and camaraderie in the firm never ceases to amaze me. Lawyers, staffs, and chamber-

ing students – everyone was equally busy, but never failed to take the time out to help me with any task I was working on.

The five months I spent here were some of the most interesting and rewarding ones yet, and exemplified the won-

derful work culture I have come to know and love at JHJ. I now leave with a much clearer sense of what the legal field is

about, and an experience which will prepare me for a lifetime.

By ANGELINE ANG JHJ 360˚ Student Attachment Programme

Class of 2012/2013


With the rising price of properties in particular landed

property, many of us opt for high rise building especially

condominium. A condominium not only offers a sense of

security since it is guarded but it also offers a feeling of per-

petually being on a holiday with the Zen Garden, infinity

pool, sauna, gymnasium and many other facilities. To enjoy

the benefits, the residents would pay a sum of money as

maintenance charges to an entity managing the condomini-

um. That entity could be a Joint Management Body or a

Management Corporation depending on whether the Strata

Title has been issued or not.

Although many of us dutifully pay the maintenance

charges but what happens if you fail to pay the maintenance

charges to the Management? Can your access card be deac-

tivated, your access to usage of common property restrict-

ed and in some instances water supply clamped? Does the

Management have the power to do so and in reality how

many of us actually know what the Management at a condo-

minium can and cannot do?

I live in a condominium and I had the above ques-

tions in mind as well. There are even times when I wonder

whether the Management even knows the perimeters of

their power under the law. I hope that at the end of this

article, many of us would know what to do next if we are

faced with the same questions again. With the knowledge of

law relating to this important issue, as condominium unit

owners, we would be better armed to deal with any adver-

sities that we may face.

Now, before we discuss what the Management can

and cannot do, we need to know the difference between a

Joint Management Body and a Management Corporation

because they are governed by different laws.

A Joint Management Body is established within 12

months from the delivery of the vacant possession at the

first general meeting which comprise representatives of the

developer and unit owners. The Joint Management Body is

regulated by the Building and Common Property

(Maintenance and Management) Act 2007.

Meanwhile, a Management Corporation is estab-

lished once the strata titles of a building are issued and it is

regulated by the Strata Titles Act 1985. Essentially, both the

Joint Management Body and Management Corporation have

similar powers and duties. For the purposes of this article, I

will look into the powers and duties of a Management Cor-

poration in answering the questions posed earlier.

The Management Corporation is given powers by

the Strata Titles Act 1985 to collect money known as

maintenance charges/fund from unit owners in order to

properly manage and maintain the common property as well

as carry out its duties under the said Act. This is where the

problem arises. Although many of us pay the monthly

maintenance charges diligently so that the condominium

could be maintained and kept in good condition, there are

others who do not make the payment either willfully or due

to a dispute to the amount. In response to such a default,

many Management Corporations would chose to deactivate

the access card so that the unit owner won’t be able to park

their vehicle or even deny access to usage of the common

property.

But, where do they get the powers to do so? The

Management Corporation usually relies on the house rules

to show that they do have the power to deactivate the ac-

cess card if there is a default of the maintenance charges.

Pursuant to Section 44(2) of the Strata Titles Act 1985, the

Management Corporation may by special resolution, make

additional by-laws, or make amendments to such additional

by-laws, not inconsistent with the by-laws set out in the

Third Schedule of the Act, for regulating the control, man-

agement, administration, use and enjoyment of the subdivid-

ed building. This shows that the Management Corporation

can make house rules as long as it does not contravene with

the Act and many a times the house rules would state that

the Management Corporation can deactivate the access card

if there was a default in the payment of the maintenance

charges.

Does that mean that the Management Corporation

can deactivate the access card so as to prevent unit owners

from parking their vehicle in the parking bay? The answer is

no. The Management Corporation does not have the power


‘The Management Corporation usual-

ly relies on the house rules to show

that they have the power to deacti-

vate the access card…’

THE POWERS OF A

MANAGEMENT CORPORATION

By Barvina Punnusamy

‘…but what happens if you fail to

pay the maintenance charges to the

Management?’

to prevent unit owners from entering into the parking

premises in order to park their vehicle. This is because as

unit owners, they also have proprietary interest over the

parking bay since it is normally registered as accessary par-

cel in the title. If you have a proprietary interest over the

parking bay then you ought to have unrestricted access to

the parking bay which means that the Management Corpo-

ration cannot stop you from entering into the parking prem-

ises.

This issue was decided by the High Court in the

case of John Denis de Silva v Crescent Court Manage-

ment Corp [2006] 3 MLJ 631 where it was held that the

Plaintiff i.e. unit owner in a condominium had proprietary

interest in land over the car park bay and the Plaintiff had

ownership or the legal title over the unit and the proprie-

tary interest in the car park bay flowed with that of the unit.

It was further decided that even if the Plaintiff did not pay

his water charges and did not display a valid motor car

sticker to the windscreen of his motorcar, he should be

allowed entry into the compound while driving his motorcar

and he should be allowed to park at the parking bay allocat-

ed to him. The Judge had also stated that in dealing with

default of maintenance charges payment, the Management

Corporation has to abide by the Act and that would be to

file an action for recovery of the debt against the unit own-

ers in Court.

Therefore, the next time your Management Cor-

poration threatens to prevent access to your parking bay,

you know that you ought to have unrestricted access to the

parking bay and they cannot prevent you from entering the

compound. But, be that as it may, you still have an obliga-

tion to pay the maintenance charges to the Management

Corporation and they can file a claim in Court to recover

the outstanding sum. Or worse, Land Administrator may,

upon sworn application in writing made by any member of

the council of the Management Corporation issue a warrant

of attachment authorizing the attachment of any movable

property belonging to the defaulting proprietor. So to avoid

the above, it is best to pay the maintenance charges on

time. Or maybe it is time that we participate actively in the

meetings conducted by the Management Corporation so

that we can ensure that they act within the ambit of their

powers.

by Barvina Punnusamy

[email protected]


‘As unit owners, they also have propri-

etary interest over the parking bay…’

JHJ Parliamentary Style

Debate

360o

JHJ 360° STUDENT ATTACHMENT

PROGRAMME

The Empowerment of Practical Experience

When I was having my break during a CLP class, a lecturer came into the

lecture hall briefly and told the class about the JHJ 360˚ Student Attachment Pro-

gramme. The programme was described as one which offers a series of tasks and op-

portunities for the law students to expose themselves to the legal practice. Curiosity

about the practical aspects of conflict resolution and the court processes had driven

me to apply for the position of an attachment student, and I was subsequently chosen

to participate in this programme.

Prior to joining the programme, I have never set foot in a court before. It

had always been a wish of mine to watch how lawyers represent their clients in court.

As attending court proceedings were also part of the tasks within the programme’s

schedule, it afforded me the chance to attend court with some of the lawyers and

learn how a case management, hearing and trial is done in practice. Surprisingly, what

I expected of a trial in court was so different from what I had seen on TV. The law-

yers were not as aggressive as I thought they would be. To the contrary, they were

very respectful and courteous in court. The lawyers’ confidence in presenting their

arguments and the ability to defend their clients while gracefully handling questions

put forth by the judge further fuelled my enthusiasm to join the legal practice.

Neither my Degree course nor the Certificate in Legal Practice (CLP) course

exposed me to skills such as agreement drafting. Here, I had the opportunity to draft

various types of agreement ranging from a Sale and Purchase Agreement to a Mining

Concession Agreement. No doubt that it was a challenging task, as I would have to

identify all essential clauses in the given agreement (for example the default and termination clauses) in order to secure the

client’s interests in the event of a misfortune or dispute. The best advice that was given to me by the JHJ team was to al-

ways put myself in the client’s shoes while drafting an agreement, or before proceeding with any action for that matter.

Furthermore, I realised that being a qualified lawyer would not equate to being a capable lawyer if one had only

mastered the hard skills (i.e. specific teachable abilities) in practicing law. Sir Francis Bacon in the Meditations Sacrae famous-

ly endorsed the notion of “Knowledge is Power”. Through conducting Dialogue sessions on several topics with the JHJ

team, I learnt that holistic knowledge in a profession would mean that it is equally important to have skills such as good

time management and good interpersonal aptitude apart from the mastery of hard skills alone. Being able to brand oneself

well on a professional front works hand in hand with the hard skills to form the knowledge crucial for a successful and

competent legal practitioner. All these skills would never have been taught academically, and could only be learned and

mastered through real working experience.

Spending my 5 months in JHJ was a decision that I would never regret making, and it is perhaps one of the most

unforgettable experience in my life. The JHJ team have been very helpful in times of difficulties. They were always passion-

ate in helping me overcome the hiccups throughout the duration of my participation in this programme. Due to the fact

that this student attachment programme is tailored to expose law students to the realities and practicalities of the legal

arena in our country, I have truly gained invaluable experiences from the JHJ 360˚ Student Attachment Programme which I

believe would be of tremendous assistance to my future career.

By CHERYL CHONG JHJ 360˚ Student Attachment Programme

Class of 2012/2013


“Force Majeure” is an expression of French origin which ac-

cording to Merriam-Webster means “... an event or effect that

cannot be reasonably anticipated or controlled ...”

To the unfamiliar, the presence of a Force Majeure

clause in a contract often causes some form of fear or un-

certainty and if not eradicated, such fear or uncertainty may

lead to the abandonment of a perfectly fair and sound con-

tract. Hence, it is essential for those involved in commercial

transactions to understand the purpose and effect of this

clause.

In law, a contract can be discharged by frustration

and a contract is deemed frustrated when a supervening

event occurs that renders the performance thereof impossi-

ble. Under such circumstances the contract comes to an

end as an agreement to do an impossible act is void (see:

s.57 of the Contracts Act 1950) and if such supervening

event can be proven to be beyond the reasonable

knowledge or anticipation of the parties, then no compensa-

tion can be claimed by the aggrieved contracting party. The

recent Fukushima earthquake and tsunami in Japan, the

floods in Australia and the war in Syria are prime examples

of a supervening event.

This may not be the best recourse for the con-

tracting parties especially when the supervening event is

only temporary in nature as millions may be lost if a con-

tract is rendered void by frustration. For many, such cir-

cumstances will likely cause their downfall.

This is where the Force Majeure clause can come

into play.

In essence, the Force Majeure clause is a creature of

contract and is subject to the usual rules of contract con-

struction. Designed to overcome the limitations of the law,

if properly drafted, a Force Majeure clause can prevent the

scenario above from occurring.

A Force Majeure clause provides that one or both

parties can cancel a contract or be excused from either part

or complete performance of the contract upon the occur-

rence of a certain specified supervening event (or events)

which is beyond the parties’ control. Sometimes the Force

Majeure clause will entitle one or both parties to temporari-

ly suspend performance or to seek an extension of time for

performance. Unlike frustration, therefore, a Force Majeure

clause will not always bring a contract to an end if the Force

Majeure clause provides otherwise.

Composition of a Force Majeure clause

There is no definition for the word “impossible” or

the supervening event in the Contracts Act of 1950. Instead,

this is done contractually through the Force Majeure clause

whereby a series of specified events or circumstances will be

listed which parties to a contract can treat as the superven-

ing event or supervening events.

A well-drafted Force Majeure clause should feature

the following:

the specific events that will trigger the operation of the

clause, together with a general provision designed to

cover events that are not expressly listed;

what the parties are obliged to do in terms of relying on

a Force Majeure event;

the consequences of an Force Majeure occurrence i.e.

defences/remedies available to the parties

In specifying the events of Force Majeure, a Force

Majeure clause should define the supervening events it is

intended to cover. Although such events will differ according

to the type of contract, the types of specific event that are

normally listed in a Force Majeure clause include an act of

God (this may cover extreme weather conditions such as

floods), war or threat of war, terrorist act, blockade, revolu-

tion, riot, civil commotion, fire, industrial action, lockout,

strike and anything beyond the reasonable control of the

parties.

Relying on the Force Majeure clause

In the case of Malaysia Land Properties Sdn Bhd vs

Tan Peng Soo (2013) 1 MLRA, it was held that the “Force


‘…the Force Majeure clause is a

creature of contract and is subject to

the usual rules of contract

construction.’

UNDERSTANDING FORCE MAJEURE IN

COMMERCIAL CONTRACTS

By Adrian Low

‘To the unfamiliar, the presence of a

Force Majeure clause in a contract

often causes some form of fear…’

Majeure” was not limited to the general notion of lockout,

act of God, strikes, riots, civil, commotion, general chaos

and inclement weather only. While it does not encompass

conditions of business or economic climate leading to a de-

pressed economy, it would include dislocation of business

by various actions and events. In this case, a certificate is-

sued by an architect under certain given conditions pursuant

to a Force Majeure clause in a Sale and Purchase Agreement

was deemed to be an event of Force Majeure.

Conclusion

A Force Majeure clause is essential in any commer-

cial contract and if properly drafted, it can prove pivotal in

ensuring the interests of the parties are catered for when an

unexpected supervening event occurs.

by Adrian Low

[email protected]


‘…a Force Majeure clause will not al-

ways bring a contract to an end if the

Force Majeure clause provides

otherwise.’

Mission Snippets

Give a Home a Library

Quotes Of The Day “Life is a series of experiences, each one of which makes us

bigger, even though sometimes it is hard to realize this. For

the world was built to develop character, and we must

learn that the setbacks and grieves which we endure help us

in our marching onward.”

― Henry Ford

“The learning and knowledge that we have, is, at the most,

but little compared with that of which we are ignorant.”

― Khalil Gibran

“If you find it in your heart to care for somebody else, you

will have succeeded.”

― Maya Angelou

“Nothing stops the man who desires to achieve. Every ob-

stacle is simply a course to develop his achievement muscle.

It’s a strengthening of his powers of accomplishment.”

― Eric Butterworth

Kuala Lumpur . Petaling Jaya . Kota Bharu . Melaka

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