January 30, 2024

JUDICIAL REVIEW – PROCEDURAL FAIRNESS AND LOCUS STANDI

This excerpt illuminates the foundational principles of judicial review as outlined in Order 53 of the Rules of Court 2012. It highlights the criteria for challenging public decisions on grounds of illegality, irrationality, or procedural impropriety. Central to the discussion is the question of timing in judicial review applications, particularly in cases of procedural unfairness. The practical scenario underscores the significance of a “decision” by the relevant authority as a prerequisite for locus standi, drawing insights from the case of Hisham bin Halim v Maya bt Ahmad Fuad & Ors [2023] 12 MLJ 714.

Principle of judicial review:
Order 53 of the Rules of Court 2012 outlines the procedural requirements for applying for judicial review. A decision related to the exercise of public duty or function can be subject to review on the grounds of illegality, irrationality, or procedural impropriety, as established in the case of Council of Civil Service Unions and others v Minister for the Civil Service [1985] AC 374 per Lord Diplock.
Issue: Timing of Judicial Review Applications in Cases of Procedural Unfairness:
The question arises as to when a judicial review application can be made against a decision, action, or omission that involves procedural unfairness within legal proceedings.
- To invoke Order 53 of the Rules of Court 2012, a crucial prerequisite is the existence of a ‘decision’ made by the relevant public authority. In the absence of such a ‘decision’ any application for judicial review would be premature.
- Consequently, if there is no decision by a public authority, the applicant lacks sufficient interest or locus standi to initiate a judicial review application.
Illustrative scenario: As a result of X’s failure to comply with an interim order syariah court, the Y filed an application for leave to commence commital proceedings at Syariah High Court against the X. Leave was granted. X was required to show cause.

X filed an application for judicial review for an order to quash the contempt proceeding and to declare the Syariah High Court has no jurisdiction to hear contempt.

However, the hearing of the committal proceedings has not yet taken place. There was no decision by the Syariah High Court Therefore, the X does not have locus standi to make an application for judicial review.
Case Reference: Hisham bin Halim v Maya bt Ahmad Fuad & Ors (Majlis Agama Islam Selangor (MAIS), intervener) [2023] 12 MLJ 714

ROAD TRAFFIC – DUTY OF DIRECTOR GENERAL OF ROAD TRANSPORT

In a legal spotlight, X’s acquisition of a cloned vehicle unknowingly, due to lapses in the Road Transport Department’s record-keeping, raises questions about statutory duties and public trust. The case underscores the importance of stringent vehicle registry maintenance to prevent ownership of unlawfully modified vehicles.

22 April ,2024 No Comments

INDUSTRIAL LAW – NAVIGATING THE LEGALITIES OF RETRENCHMENT

The dismissal of X by Company ABC, citing economic downturns, presents a compelling case on the complexities of employment termination and retrenchment legality. X contested his redundancy, claiming his role in property management and services was unaffected by the property development market’s challenges. This case probes into the legitimacy of retrenchment under economic duress and the employer’s duty to act in good faith, as guided by Section 20(3) of the Industrial Relations Act 1967. The burden rests on Company ABC to prove the necessity and genuineness of X’s redundancy, with failure to do so possibly leading to a verdict of unjustified termination. This scenario underscores the critical importance of evidence and intention in retrenchment cases, as reflected in precedents like Akilan a/l Subramanian v. Prima Awam (M) Sdn Bhd.

26 March ,2024 No Comments

PROPERTY LAW – LEGAL IMPLICATIONS OF SALE AND PURCHASE AGREEMENT BREACHES AND THE RIGHT TO OFFSET IN MALAYSIAN PROPERTY TRANSACTIONS

In the realm of Malaysian property transactions, the intricacies of Sale and Purchase Agreements (SPAs) and the enforcement of Liquidated Ascertained Damages (LAD) play pivotal roles in safeguarding the interests of both developers and purchasers. This article delves into the legal framework governing the rights and obligations of parties involved in property transactions, particularly focusing on the consequences of contractual breaches and the conditions under which a purchaser can exercise the right to offset against LAD. Through the examination of relevant case law and statutory provisions, we illuminate the legal pathways available for resolving disputes arising from the failure to adhere to the terms of SPAs, thereby offering insights into the equitable administration of justice in the context of Malaysian property law.

28 February ,2024 No Comments

WINDING-UP – OFFICIAL RECEIVER AND LIQUIDATOR (“ORL”)

In cases of compulsory winding up, the court would appoint a liquidator under s.478 of the Companies Act 2016 (“CA 2016”) to expeditiously recover and realise the assets of the wound-up company for the distribution of dividends to creditors and administer any outstanding matters involving………..

7 February ,2024 No Comments