Mr Gan Khong Aik

Gan Khong Aik



Federal Court will not condone irregularities in court orders
Malaysia | 29 January 2019

The Federal Court recently reaffirmed that where a final court order is proved to be null and void on grounds of illegality or due to a lack of jurisdiction, the court has inherent jurisdiction to set aside the order, even in the absence of an express enabling provision. However, is the rule different for winding-up orders?

Lower threshold for staying proceedings pending appeal
Malaysia | 25 September 2018

Following a recent Court of Appeal decision on staying proceedings pending appeal, the test as to whether a stay ought to be granted under Section 44 of the Courts of Judicature Act has been simplified (ie, it now focuses on whether the true purpose of the stay is to preserve the integrity of the appeal). The new threshold to obtain a stay is considerably lower than that of the special circumstances rule under Section 73 of the Courts of Judicature Act.

Dishonesty must be present before debtor in assignment can be made liable
Malaysia | 19 June 2018

A recent Federal Court decision has simply reaffirmed the position of Malaysian law in relation to breaches of trust. The majority of the Federal Court held that imputed constructive knowledge of an assignment is insufficient to hold the debtor liable to the assignee for the debt. The decision also illustrates a disinclination to depart from the established law on the requirement of dishonesty in a breach of trust.

Stricter confidentiality obligation on lawyers
Malaysia | 20 February 2018

Section 126 of the Evidence Act 1950 imposes a legal obligation on all solicitors to protect and keep confidential any information obtained from their clients, including any legal advice that has been proffered. However, as much as the importance of this privilege is understood and embraced, it may still have come as a surprise when the Federal Court decided that a breach of this privilege by solicitors could entail a legal action against said solicitors.

Court rules on applicable test in medical negligence suits
Malaysia | 05 December 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
Malaysia | 18 July 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
Malaysia | 18 April 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
Malaysia | 10 January 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
Malaysia | 18 October 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
Malaysia | 17 May 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
Malaysia | 02 February 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
Malaysia | 20 October 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.

Solicitors cannot repudiate solicitor-client relationship unless properly ended
Malaysia | 19 May 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
Malaysia | 17 February 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.