Federal Court's decision of the Korean rehabilitation proceedings and to stay all proceedings against it until 25 January 2017. The court will consider whether other safeguards would suffice to prevent any prejudice arising from the parallel proceedings. LexisNexis Civil Litigation Series: Stay of Proceedings not only handy, but have also become an essential reference tool for legal practitioners. MALAYSIAN LEGAL SYSTEM on civil & criminal exam notes 1. (2) The court, in granting a stay of proceedings pursuant to subsection (1), may impose any conditions as it deems fit. It was the appellant's contention that the payment slip issued by the respondent to the appellant contained no arbitration clause and that it was not bound by the terms of the previous policy which had already expired. Change of Parties by Reason of Death or Bankruptcy . LexisNexis Civil Litigation Series: Stay of Proceedings; Print. The debtor could be debt to individuals or companies 20 December 2018. (g) On 19.05.2017, the Appellant filed an application pursuant to Order 12 rule 10 (2) Rules of Court 2012(“ROC”) to stay the proceedings on the basis that Malaysia is not the proper forum pursuant to the exclusive jurisdiction clause. However, the grant of a stay of proceedings for arbitration does not occur automatically. Right to take Proceedings . In Mercato Sports v Everton, the English High Court found that two parties were bound by an implied horizontal contract containing an arbitration clause.Accordingly, it granted a stay of proceedings under section 9 of the Arbitration Act 1996 (‘S9 AA 1996’). claims for declaratory orders and ancillary matters, such as fraud, damages, an account of monies received and inquiries into the monies remaining in the respondent's possession; suggestions that avoiding arbitration will save time, costs or expenses of the parties; and. In respect of this, the Federal Court agreed with the judge's finding that: "even though the placement slip does not expressly contain an arbitration clause, it is not a disputed fact that the placement slip makes reference to the expired policy number which contained an arbitration clause, and as such the said arbitration clause was effectively incorporated in the new policy by the reference made in the placement slip.". there must be a binding arbitration agreement or clause between the parties; and. In addition, if a binding arbitration agreement exists between the parties, the court must grant an order to stay the court proceedings pending reference to arbitration on application by any party to the agreement for a stay order. However, sometime a party may bring a dispute direct to litigation. The decision in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd has clarified that once the parties agree to submit to arbitration in the event of disputes and put that agreement into writing, the courts will be less willing to allow one party to subsequently seek to depart from the arbitration agreement without sufficient justification. It should be noted that any application to stay should be done promptly so as to not be seen to be unfairly depriving a successful party of the fruits of their litigation (see Ajaib Singh v Jeffrey Fernandez [1971] 1 MLJ 139).Â. ORDER 4—PARTIES AND CAUSES OF ACTION . The court had to decide whether the appellant's claim in the court proceedings fell within the ambit or scope of the arbitration clauses. 7. Overview On August 8, last year, Najib filed an application for a stay of proceedings of the IRB’s suit, seeking him to pay RM1.69 billion in income tax, pending an appeal on the tax assessment to IRB. Stay of Executions Proceedings Posted on July 27, 2020 July 27, 2020 by Ahmad Iyas Husni When a party is appealing a decision of a lower court to a higher court, it is trite that appeals do not operate as a stay of execution (see s.57 of the Court of Judicature Act 1964 ). In addition, if a binding arbitration agreement exists between the parties, the court must grant an order to stay the court proceedings pending reference to arbitration … Since the Applicants’ leave application had failed, the issue of stay of proceedings must also fail. Stay is mandatory It is an example of special circumstances. I also granted the interim stay on enforcement sought by the plaintiff. Malaysia: Litigation & Dispute Resolution Laws and Regulations 2020. Learning and understanding the law and the Rules of the High Court related to stay of execution proceedings of the following: o Power to stay proceedings in an interpleader o Power to stay execution by writ of seizure and sale o Stay of proceedings pending appeal to judge in chambers However, the IRB, in its supporting affidavit, said that Najib still had to pay the total amount of RM1.69 billion even if he had filed an appeal against the tax assessment. Besides granting a stay of the court proceedings, antisuit injunctions restraining a party from commencing court proceedings in other jurisdictions in breach of an arbitration agreement which provides Malaysia as the seat of arbitration may be granted by the courts. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common.’, The definition only serves to emphasize the fact that there are myriad circumstances that could constitute special circumstances with each case depending on its own facts. 2. I am of the opinion that the list of factors constituting special circumstances is infinite and could grow with time. This means in effect that the court proceedings against the third parties or non-parties not caught by the arbitration agreement would be heard and determined first, followed by the arbitration proceedings … The sum insured for machinery breakdown was RM200 million and the sum for lost profits was RM100 million. According to the Federal Court, in order to grant a stay: The court is no longer required to consider whether a dispute exists when granting a stay. STAY OF ARBITRATION PROCEEDINGS MOHD SYAFIQ ROSDI A project report submitted in partial fulfillment of the requirements for the award of the degree of Master of Science (Construction Contract Management) Faculty Build Environment Universiti Teknologi Malaysia July 2011. i I’M A DREAMER, AND TODAY ONE OF MY DREAMS COMES TRUE. CIRCUMSTANCES, APPLICATION FOR STAY OF PROCEEDINGS DISMISSED GOVERNMENT OF MALAYSIA v. MNMN Lumpur I S S U E S Whether special circumstances exist to warrant the grant of a stay of proceedings? A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial or other legal proceeding. Transfer of Proceedings . It identifies scenarios in which a party may apply for a stay of proceedings, including to allow for: a jurisdictional challenge; arbitration; an attempt to settle; related criminal proceedings; an opportunity to comply with a procedural requirement or court order etc. The court can subsequently lift the stay and resume proceedings based on events taking place after the stay is ordered. The Gan Partnership website can be accessed at www.ganlaw.my. 1. Four days later, the defendant filed an application to stay the court proceedings under section 10(1) of the Arbitration Act 2005 (“Act”), on the basis that the subject matter of the dispute fell within the arbitration clause contained in clause 29.3 of the JVA (“Stay Application”). Whether Section 106 of the Income Tax Act 1967 is contrary to Article 121(1) of the Federal 3. Four days later, the defendant filed an application to stay the court proceedings under section 10(1) of the Arbitration Act 2005 (“Act”), on the basis that the subject matter of the dispute fell within the arbitration clause contained in clause 29.3 of the JVA (“Stay … 4. not operate as a stay. 5. All standard forms of contract in Malaysia provide arbitration as the major method of dispute resolution. In Malaysia, the main methods of enforcement are to issue a judgment debtor summons, garnishee proceedings, committal proceedings or an attachment of earnings against the defaulter. This Practice Note considers the question of when court proceedings can be stayed. Court may Order Separate Trials . You need to be logged in to make a comment. (2) At issue was a payment pursuant to a retention bond issued by the plaintiff bank in favour of the first defendant. 26 April, 2018 . This is surely not what discretion is all about.”. subjected the stay to any decision made in the plaintiff’s application to grant a stay of enforcement of the adjudication determination pending the disposal of proceedings in the suit. Subsequently, the appellant suffered substantial losses and damage as a result of a disruption to its smelting operation caused by an extensive power outage, which forced the plant to be shut down temporarily. By way of an insurance contract, the respondent agreed with the appellant to insure all critical plants and machineries against sudden and unforeseen damage from any cause not excluded. Joinder of Causes of Action . The winding up is merely stayed moving forward, and not set aside or rescinded. We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters. Valid arbitration agreement Malaysia: Court Of Appeal Refuses Stay Of Proceedings Where Party Acts Inconsistently With An Express Reservation Of Right To Refer Dispute To Arbitration.Legal News & Analysis - Asia Pacific - Malaysia - Dispute Resolution In a recent decision Takenaka Corporation v Tam Chee Chong and another [2018] SGHC 51, Justice Aedit Abdullah granted a stay of proceedings under the Arbitration Act of Singapore (Cap 10, 2002 Rev Ed) (the “Arbitration Act”), for an appeal against the judicial managers’ rejection of a creditors’ proof of debt pursuant to Section 75 of the Companies Regulations. Facts First, Malaysian courts no longer consider whether a ‘dispute’ exists for the purposes of an application to stay court proceedings. Stay of Proceedings by Crown. Any attempt to limit the list or close a category would be to impose a fetter on the exercise of the discretion of the court whether to grant or stay an execution; making the discretion less of a discretion. On this matter, the appellant claimed for indemnity under the policy, while the respondent sought to offer a lesser sum than the appellant's claim after an analysis of the claim and the terms of the policy. Malaysia: Litigation & Dispute Resolution Laws and Regulations 2020. There are two appellate courts with appellate jurisdiction: the Court of Appeal and the Federal Court. In Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd the appellant company owned and operated an aluminium smelting plant, whereas the respondent company provided insurance and takaful products. LAWS AND REGULATIONS GOVERNING ENFORCEMENT OF CIVIL CASE JUDGMENTS The general salient provisions governing enforcement of civil judgments in Malaysia are: i. S. 17 of the Courts of Judicature Act 1964 [Act 91]; ii. Whether Section 106 of the Income Tax Act 1967 is contrary to Article 121(1) of the Federal 3. The Court of Appeal took the wrong approach by making a substantive determination over whether a ‘dispute’ could properly exist. Withdrawal or admission (O. In applying for a stay, one must apply by way of a notice of application to move the court to exercise its inherent jurisdiction. However, the high court's judgment was appealed. The Federal Court's decision shows the court's reluctance to interfere with the principle of party autonomy. 2. Stay of Executions Proceedings Posted on July 27, 2020 by Ahmad Iyas Husni When a party is appealing a decision of a lower court to a higher court, it is trite that appeals do not operate as a stay of execution (see s.57 of the Court of Judicature Act 1964). KUALA LUMPUR, Feb 28 — The High Court here today dismissed Datuk Seri Najib Razak’s application for a stay of proceedings of the Inland Revenue Board’s (IRB) suit seeking the former prime minister to pay RM1.69 billion in income tax, pending an appeal on the tax assessment to IRB. On Aug 8 last year Najib filed an application for a stay of proceedings of IRB’s suit seeking him to pay RM1.69 billion in income tax, pending his appeal on the tax assessment to IRB. 4. There is no clear pronouncement from the courts. Generally, a high court … However, it should be noted that the range of special circumstances remain an open list dependent on the specific circumstances of an individual case. This update summarizes three arbitration disputes involving construction contracts. the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. Trial for more than one offence 166. 5. S. 4 of the Subordinate Courts Rules Act 1955 [Act 55] and iii. Save my name, email, and website in this browser for the next time I comment. 1. The family is seeking for the forfeiture proceedings to be stayed pending the disposal of Azeez’s ongoing corruption trial at the Sessions Court. 67/1965] PART I PRELIMINARY Short title and application 1. ICLG - Litigation & Dispute Resolution Laws and Regulations - Malaysia covers common issues in litigation and dispute resolution laws and regulations – including preliminaries, commencing proceedings, defending a claim, joinder & consolidation and duties & powers of the courts – in 45 jurisdictions. 8. Former prime minister Datuk Seri Najib Razak has applied for a stay of proceedings of the suit filed by Damansara MP Tony Pua Kiam Wee for alleged misfeasance in public office related to the 1Malaysia Development Berhad (1MDB) case The Benefits of Filing a Police Report for Fraud Cases, Preparing your Appeal Papers to be Filed in the Court of Appeal, Offer To Settle vs Trial: Alternatives to Court Drama, The Erinford Injunction: Maintaining Status Quo Pending Appeal. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription. Misjoinder and Non-joinder of Parties . Notwithstanding the above, one of the most common special circumstances used to in an application for a stay is the issue that refusal to grant one would render an appeal nugatory. An ad interim stay does not mean that a winding up petition cannot be filed as bankruptcy and winding up proceedings was not within the ambit and meaning of ‘execution’ proceedings as provided by O 46 r 1 of the Rules of High Court 1980 which states as follows: Stay of proceedings if prosecution of offence in altered charge requires previous sanction 162. Datuk Seri Abdul Azeez Abdul Rahim is pictured at the Kuala Lumpur Court Complex August 19, 2020. ― Picture by Firdaus Latif. A few weeks ago, in R. c. Goldberg, 2020 QCCQ 4548, the Court of Québec (Criminal and Penal Division) granted the most drastic remedy by ordering a stay of the charges brought against Bouclair Inc. (Bouclair), Peter Goldberg and Erwin Fligel, respectively the company's Chief Executive Officer (CEO) and vice-president, for alleged tax evasion offences. Whether it is unjust for the Plaintiff to file the current In the Federal Court case of Hing Kim Pong v Teo Eng Jin [1980] 1 MLJ 43 on p 44: ‘On the other hand, it is the contention of respondent that the learned judge has unfettered discretion to grant a stay or not as long as he exercises his discretion judicially. 2. Separate charges for distinct offences 164. Ever wondering why the law works the way it does, Iyas constantly pushes the limits of his curiosity to find the ever elusive “Answer” to all of his questions. The court can subsequently lift the stay and resume proceedings based on events taking place after the stay is ordered. The Court was guided by the Malaysian Court of Appeal decision in American International Assurance Bhd (another decision I had written on previously). KUCHING (Feb 11): The High Court here today dismissed an application by Petronas for a stay of proceedings in the Sarawak Government’s suit against the national oil corporation over the payment of State Sales Tax (SST). For further information on this topic please contact Gan Khong Aik at Gan Partnership by telephone (+603 2201 1130) or email (khongaik@ganlaw.my). A stay can be entered by the Crown under s. 579. It identifies scenarios in which a party may apply for a stay of proceedings, including to allow for: a jurisdictional challenge; arbitration; an attempt to settle; related criminal proceedings; an opportunity to comply with a procedural requirement or court order etc. In other words, special circumstances is the genus of which nugatoriness is a species. ICLG - Litigation & Dispute Resolution Laws and Regulations - Malaysia covers common issues in litigation and dispute resolution laws and regulations – including preliminaries, commencing proceedings, defending a claim, joinder & consolidation and duties & powers of the courts – in 45 jurisdictions. Given that the respondent had admitted its liability, the Federal Court was satisfied that the only dispute left was the issue of the amount or quantum to be paid. 8. Federal Court of Malaysia, which is the highest court. Bankruptcy Proceedings Statute • Bankruptcy Act 1967 • Bankruptcy Rules 1969 • Rules of Court 2012 Total judgment of debt must be more than RM 30,000.00 The proceedings may be commenced if the judgment debtor has not complied with the judgment or order made against him. ILO is a premium online legal update service for major companies and law firms worldwide. 6. This has helpfully given parties to arbitration comfort that the courts will give effect to the clear intention of Parliament, as enunciated in the statute, to uphold the party autonomy principle by ensuring that no party is allowed to depart from what they have agreed to voluntarily in an agreement without valid justification. Federal Court of Malaysia, which is the highest court. The weight of authorities appears to me to say that the special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal).“. In respect of machinery breakdown, "if any difference arises as to the amount paid under this certificate (liability being otherwise admitted), such difference shall be referred to the decision of an arbitrator". Section 10(1) reads: 161. Case settlement conferences given a 'festive' touch - Hong Kong, Beware: High Court refuses permission to rely on new witness statement prepared part way through trial - United Kingdom, Parties can now request an extension to object to expert reports - Turkey, Clarification of rules on fast-track appeal proceedings - France, Court rules former director of AIAC's directorship is non-justiciable, Derivative proceedings: leave of court is substantive legal requirement, Competing claims in curial and arbitral proceedings: recent anti-arbitration injunction developments. Joinder of Parties . However, it should be noted that since the grant of a stay is a matter within the discretion of the court, then appellate intervention may only be warranted if it can be shown that the discretion was exercised contrary to established judicial principles. KUALA LUMPUR (Feb 19): The Court of Appeal in Kuching had today granted Petroliam Nasional Bhd (Petronas) a stay of proceedings in the suit filed by the Sarawak government against the state-owned company over the payment of State Sales Tax. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Civil Procedure; preliminary matter Preliminary Matter Parties - Parties in action (whether suing or being sued) must be;- a) Sui juris (age of majority); which the Age of Majority Act provided as 18 years old. Recall of witnesses when charge altered 163. In considering the appellant's arguments and submission, the Federal Court ruled that the following grounds were an insufficient basis on which to deny a stay of proceedings pending arbitration: The Federal Court's decision provides a useful reminder of the difficulty in opposing an application to stay proceedings pending arbitration, as the court is mindful of the mandatory effect of Section 10(1) of the act as well as the critical importance of upholding the principle of party autonomy. payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing”. The court ought to give a wide interpretation to the arbitration clause to serve, as far as the language used by the parties in the arbitration clause will permit, the commercial purpose of the arbitration clause. The Federal Court affirmed the Court of Appeal's decision and made the following findings. In relation to this, the Federal Court was satisfied that the requirements were fulfilled. The Federal Court's decision operates as a guideline, or more so as a precedent, for similar cases in the future. 470. The High Court ordered that: LexisNexis Civil Litigation Series: Stay of Proceedings. In explaining what special circumstances are, the Court of Appeal case of Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49 held at p67 that: “The approach taken by most judges appears to be that a successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances (or special grounds) that justify a stay of execution to be granted. The debtor could be debt to individuals or companies Required fields are marked *. The third and most recent decision enforced the two earlier decisions and reiterated the Malaysian courts' position on staying proceedings pending a reference to arbitration. 17, r. 7) 7. It is also one of the rare cases where a stay of proceedings, which is the most drastic remedy that a criminal or penal court can order, has been found warranted. Neither can one be accepted or rejected in favour of the other as they are inter-related.“. Therefore, such a stay does not undo the actions of the liquidators but only halts the proceedings. Stay of proceedings if prosecution of offence in altered charge requires previous sanction 162. Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65. Trial for more than one offence 166. Halsbury’s Laws of England, 3rd Edition, Volume 17, paragraph 455, page 272 under the heading Grounds on which stay is granted states: —, “The court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing. [Peninsular Malaysia—1 April 1958, L.N. KUALA LUMPUR, Dec 18 — The High Court here today dismissed an application by the wife of former Tabung Haji (TH) chairman Datuk Seri Abdul Azeez Abdul Rahim and their four children for a stay of the government’s suit to forfeit almost RM16 million of their … However, the courts will be willing to stay execution if it is apparent that special circumstances exists on the facts that warrant the grant of a stay. The reason for this is well established in that the Courts will not deprive a successful party of the fruits of their litigation (see Serangoon Garden Estate Ltd v Ang Keng [1953] MLJ 116). Footnotes. Your email address will not be published. The materials contained on this website are for general information purposes only and are subject to the disclaimer. Iyas is the kind of person who constantly has something on his mind. The Court of Appeal upheld the decision of the High Court to lift a stay of court proceedings that had previously been granted on case management grounds. A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial or other legal proceeding. This type of stay is discretionary and can be reversed at the discretion of the Crown. this agreement cannot be null and void, inoperative or incapable of being performed. Curious and inquisitive. Power to stay proceedings (O. TEE International said in a bourse filing on Saturday that MDIS (Malaysia) Sdn Bhd has commenced two sets of arbitration proceedings against its wholly-owned Malaysian subsidiary TEE E&C Malaysia Sdn Bhd and the company in Singapore on March 6, 2020. In addition, if a binding arbitration agreement exists between the parties, the court must grant an order to stay the court proceedings pending reference to arbitration on application by any party to the agreement for a stay order. Insufficient grounds to deny a stay Accordingly, Section 10(1) of the Arbitration Act applied and the respondent was entitled to a grant of stay. Based on the arbitration clauses, the respondent applied to the court for a stay of the proceedings pending reference to arbitration. This was recognised in the case of Government of Malaysia v Datuk Haji Kadir Mohamad Mastan and another application [1993] 3 MLJ 514 where Ian Chin JC held at p 521 that: “An attempt was made to define special circumstances by Raja Azlan Shah (as His Majesty then was) in the case of Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86, viz: ‘Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances.