Gan Partnership updates

Court rules on applicable test in medical negligence suits
Gan Partnership
  • Litigation
  • Malaysia
  • December 05 2017

The Federal Court recently examined whether the Bolam test or the test in the Australian case of Rogers v Whitaker with regard to the standard of care in medical negligence should apply, following conflicting decisions by the Malaysian Court of Appeal and legislative changes in Australia. The Federal Court's decision provides a clearer legal position with regard to the distinction between diagnosis and treatment on the one hand and the duty to advise of risks on the other hand.

Applying Court of Appeal rules
Gan Partnership
  • Litigation
  • Malaysia
  • July 18 2017

The Federal Court recently examined whether an objection pertaining to the unlawfulness of a notice of appeal could, as a matter of procedural law, be undertaken by way of a mere preliminary objection. Further, the court assessed whether the filing of a single notice of appeal in respect of a decision on eight separate and distinct interlocutory applications complied with the procedural rules set out in the Rules of the Court of Appeal 1994.

Court rules that stay of proceedings is mandatory
Gan Partnership
  • Litigation
  • Malaysia
  • April 18 2017

The Federal Court recently restated the Malaysian courts' position in respect of their intervention in arbitration. The decision 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.

Federal Court spells out restriction for notices of cross-appeal
Gan Partnership
  • Litigation
  • Malaysia
  • January 10 2017

The Federal Court recently set out the circumstances under which a notice of appeal under Rule 5 of the Rules of the Court of Appeal or a notice of cross-appeal under Rule 8 can be filed. In short, where the respondent wants to reverse or set aside part of a lower-instance finding, decision or judgment which was not appealed in the appellant's notice of appeal, it is incumbent on the respondent to file an independent and separate notice of appeal, rather than a notice of cross-appeal.

Courts weigh in on requirements for breach of confidentiality claims
Gan Partnership
  • Litigation
  • Malaysia
  • October 18 2016

The Federal Court recently upheld a Court of Appeal decision which found that a company had failed to identify with sufficient particularity what confidential information its former employee had misused. This case clarifies that despite the existence of confidentiality agreements, companies and employers must prove what confidential information has been misused, as confidentiality agreements are not meant to hinder former employees' ability to compete.

High court cannot transfer proceedings to another high court of coordinate jurisdiction
Gan Partnership
  • Litigation
  • Malaysia
  • May 17 2016

The Federal Court recently ruled that Order 57 of the Rules of Court 2012 does not confer power to the high courts to transfer proceedings to another high court of coordinate jurisdiction. The true position of the law is that a high court has power to transfer proceedings to another high court of coordinate jurisdiction only within its territorial jurisdiction.

Federal Court maintains wide scope of Companies Act 1965 in oppression cases
Gan Partnership
  • Litigation
  • Malaysia
  • February 02 2016

The Federal Court was recently invited to reconsider the applicable test for an oppression petition under Section 181 of the Companies Act 1965 in light of recent developments in the English law of oppression. The court held that there was no valid reason to redefine the test for oppression under Section 181.

Court rules on banks' rights under absolute assignment after issue of title to land
Gan Partnership
  • Litigation
  • Malaysia
  • October 20 2015

The Federal Court has clarified an issue which has long plagued the banking industry by holding that a bank with absolute assignment of the rights to land may realise its security under the assignment without having to create a charge, regardless of any subsequent issue of a title document. The decision will prevent future defaulting borrowers from bringing actions against banks despite no charge being created and reduce unnecessary litigation.

High Court rules on statutory adjudication
Gan Partnership
  • Litigation
  • Malaysia
  • August 11 2015

The High Court recently considered whether the Construction Industry Payment and Adjudication Act applies retroactively to contracts entered into and disputes arising before the act came into force. In a lengthy judgment, the High Court found that Parliament's intention was to apply the act to all construction contracts – including payment disputes under construction contracts – regardless of when they were made.

Solicitors cannot repudiate solicitor-client relationship unless properly ended
Gan Partnership
  • Litigation
  • Malaysia
  • May 19 2015

In a recent Federal Court case, appeals arose in the context of claims brought by purchasers against a solicitor for breach of fiduciary duty in a solicitor-client relationship in connection with property which the solicitor had purchased for himself instead of on behalf of his clients. The court held that solicitors cannot repudiate or negate the existence of a solicitor-client relationship merely on the contention of the absence of a retainer.

Chargee not liable to purchaser when order for sale is set aside
Gan Partnership
  • Litigation
  • Malaysia
  • February 17 2015

The purchase of property through statutory public auction conducted pursuant to a high court order of sale has been considered a safe and protected transaction. However, the Federal Court recently ruled that chargees need not compensate purchasers when an auction sale is set aside for non-compliance with the rules of court and the purchaser may lose the property without compensation, save for a refund of the purchase price.

Arbitration awards may be enforced within 12 years of registration
Gan Partnership
  • Litigation
  • Malaysia
  • December 23 2014

In a recent Federal Court case, the court held that an arbitration award may be enforced within 12 years of the date on which the award is registered as a judgment of court. The court's judgment has given equal treatment, insofar as the statute of limitations is concerned, to a judgment arising from registration of an arbitral award and a judgment pronounced at the conclusion of a court-conducted litigation.

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