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Constitutional Law

CONSTITUTIONAL LAW – CITIZENSHIP – CITIZENSHIP DENIED: HIGH COURT REFUSES TO LEGALISE CHILD TRADING

In Ow Man Yaw & Ors v Kementerian Dalam Negeri & Anor [2024] 9 MLJ 77, the High Court dismissed an application for Malaysian citizenship brought by adoptive parents on behalf of a child obtained through an agent. The Court held that the child was not “abandoned” within the meaning of section 19B of the Federal Constitution but was instead the subject of a planned arrangement amounting to child trading. As such, the presumption of citizenship by operation of law could not be invoked. The Court further affirmed that applications under Article 15A rest solely with the Federal Government, beyond judicial intervention. The ruling underscores that the best interests of the child cannot override constitutional requirements or validate unlawful conduct.

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Contract Law

MONEYLENDERS ACT 1951- UNJUST ENRICHMENT OR ILLEGAL LOAN? COURT WEIGHS RESTITUTION AGAINST THE MONEYLENDERS ACT

In Golden Wheel Credit Sdn Bhd v Dato’ Siah Teong Din [2021] 12 MLJ, the Court considered whether a licensed moneylender, whose loan agreements were void for non-compliance with the Moneylenders Act 1951, could nevertheless pursue restitutionary remedies. The plaintiff, having advanced RM3.5 million which was channelled to the defendant’s company, sought recovery on grounds of money had and received and unjust enrichment under the Contracts Act 1950. The defendant applied to strike out the claim, arguing that it was merely an indirect attempt to enforce an illegal loan. The case illustrates the delicate balance between statutory illegality under the Moneylenders Act and the equitable principles underpinning restitution.

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Road Traffic

ROAD TRANSPORT ACT – INSURANCE – DECLARATION TO NOT INDEMNIFY THE INSURANCE

In Mohd Riza bin Mat Rani & Ors v Zurich General Takaful Malaysia Bhd [2025] 2 MLJ 224, the Court of Appeal allowed the appeal by the claimants and set aside the High Court’s decision which had favoured the insurer. The Court held that Zurich was not entitled to repudiate liability under the motor takaful policy, as the alleged non-disclosures were not proven to be material or made dishonestly. Emphasising the principles of fairness and protection inherent in takaful, the Court ruled that technical omissions should not be used to defeat the rights of accident victims and their families.

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Constitutional Law

CONSTITUTIONAL LAW – A PEACEFUL WIN: COURT STRIKES DOWN CRIMINAL PENALTY FOR NO NOTICE UNDER PAA

In Amir Hariri bin Abd Hadi v Public Prosecutor [2025] 4 MLJ 807, the Court of Appeal struck down Section 9(5) of the Peaceful Assembly Act 2012 as unconstitutional. The provision, which criminalised organisers for failing to give 10 days’ prior notice of an assembly, was held to be a disproportionate restriction on the constitutional right to peaceful assembly under Article 10(1)(b). The Court emphasised that while notice requirements under Section 9(1) remain valid for regulatory purposes, criminal penalties for non-compliance imposed an unjustifiable burden on fundamental liberties. This landmark ruling strengthens constitutional protections for public assemblies in Malaysia.

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Admiralty

MARITIME LAW – LIEN, LOSS AND LMAA: ENGLISH COMMERCIAL COURT ORDERS SALE OF DETERIORATING CARGO

In Lord Marine Co Ltd v Vimeksim Trans SA & Anor [2025] 2 Lloyd’s Rep 52, the English Commercial Court exercised its powers under s.44 Arbitration Act 1996 to order the sale of a deteriorating cargo of Ukrainian corn over which the shipowners had exercised a lien for unpaid freight. Mr Justice Bryan held that the cargo was the “subject of the proceedings” and that the court could intervene to preserve its value pending LMAA arbitration. The decision clarifies that a “freight prepaid” stamp does not estop owners where freight has not actually been paid and the bills of lading never left owners’ possession, and that possession can be maintained even when the cargo is stored in a receivers’ warehouse. This case reinforces the court’s readiness to act swiftly to prevent the loss of value in perishable cargo while safeguarding parties through fortified undertakings in damages.

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Banking

SUMMARY JUDGMENT – NO ESCAPE FOR GUARANTORS – COURT GRANTS SUMMARY JUDGMENT TO OCBC IN LOAN DEFAULT DISPUTE

In OCBC Bank (Malaysia) Bhd v Agroglobal Sdn Bhd [2025] 1 Lloyd’s Rep 558, the Singapore High Court granted summary judgment against the borrower and its guarantors, dismissing bare allegations of misrepresentation and non-disbursement. The decision reaffirmed that signed facility and guarantee documents are binding, and generic denials- absent credible evidence – will not prevent judgment. The case highlights the judiciary’s strict stance on enforcing loan agreements and signals that guarantors cannot plead ignorance of clear contractual obligations.

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Maritime & Shipping Law

MARITIME LAW – PORT CHARGES – BERTH AND BILL – COURT ANCHORS LIABILITY FOR PORT DUES ON IDLE VESSEL

In Marina Developments Ltd v Owner(S) Of “Sy Explorer” [2025] 1 Lloyd’s Rep 428, the court upheld the Port Authority’s statutory right to recover outstanding berthing charges, despite claims of abandonment by the vessel’s owners. The judgment reinforces that unless formal legal abandonment procedures are undertaken, port dues will continue to accrue. This decision affirms that even stationary vessels carry financial obligations, and port authorities can enforce recovery under maritime law protocols.

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Maritime & Shipping Law

MARITIME LAW – BILLS OF LADING – NO BILL, NO CARGO – SHIPOWNERS HELD LIABLE FOR MISDELIVERY WITHOUT ORIGINAL BL

In the pivotal case of The Doric Valour [2025] 1 Lloyd’s Rep 401, the Court of Appeal affirmed the stringent maritime principle that cargo cannot lawfully be released without the surrender of original bills of lading. Rejecting shipowners’ reliance on indemnities to justify cargo delivery without original documents, the Court emphasized the sanctity of the bill of lading as the cornerstone of secure international trade. This decision serves as a robust reminder for maritime operators that compliance with established shipping documentation procedures is mandatory to avoid serious liabilities.

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Updates

LIMITATION OF ACTION – TIME WAITS FOR NO CLAIM – COURT OF APPEAL STRIKES OUT PKA’S LATE ACTION

In the notable decision of Kuala Dimensi Sdn Bhd v Port Kelang Authority [2025] 2 MLJ 238, the Court of Appeal firmly emphasized the critical importance of timely action in contractual disputes, ruling that PKA’s claims against KDSB were statute-barred under the Limitation Act 1953. The Court decisively clarified that parties cannot invoke the postponement of limitation periods without demonstrating genuine inability to discover breaches earlier through reasonable diligence. This judgment serves as a stern reminder to litigants to vigilantly monitor their contractual rights and act promptly to avoid losing claims due to statutory time limitations.

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Updates

LAND LAW – FORGED AND FRAUDULENT – COURT STRIPS INDEFEASIBLE SHIELD FROM FRAUDULENT LAND TRANSFERS

In the landmark decision of Baskaran a/l Govindasamy & Ors v Chiew Yit Kin [2025] 3 MLJ 372, the Court of Appeal held that indefeasible title protection under the National Land Code cannot extend to land transfers tainted by fraud or forgery. Emphasizing rigorous judicial scrutiny, the Court decisively invalidated a fraudulent property transfer, reinforcing that landowners’ rights remain safeguarded against deceitful transactions, and serving as a critical reminder for parties to diligently verify the authenticity of transfer documents to prevent fraudulent claims.

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Recent Legal Updates

LEGAL UPDATES – THE SILENT CURVE: WHY MEDICAL PREMIUMS SUDDENLY SPIKE

Medical insurance premiums do not increase gradually. They rise exponentially. For many years, costs appear manageable, giving policyholders a false sense of stability. However, once the insured reaches their mid-60s, medical charges begin to accelerate sharply, and after age 70, they often outpace the premiums by several multiples.

This happens because medical insurance is funded from a finite pool of money – an investment “bucket” – while the medical rider functions like an engine that consumes more fuel as the insured ages. When the engine grows faster than the bucket can be replenished, depletion is inevitable. The result is sudden premium hikes, demands for top-ups, or policy lapse – not due to misconduct or missed payments, but due to the structural design of the product itself.

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THE ‘COVER UNTIL 99’ MYTH – WHY INSURANCE AGENTS GET IT WRONG

Consumers must stop relying on what insurance agents say and start reading what insurance policies actually provide. ‘Medical cover until 99’ does not mean guaranteed coverage at an affordable premium. In reality, medical insurance charges rise exponentially after age 70, often making the policy mathematically unsustainable. By the time policyholders realise this, they are told to top up tens of thousands of ringgit or lose coverage altogether.

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STRATA TITLES ACT – DEVELOPER MUST ACCOUNT FOR COMMON PROPERTY COMPENSATION: HIGH COURT IMPOSES CONSTRUCTIVE TRUST

In JMB Kelana Square v Perantara Properties Sdn Bhd & Ors [2025] 12 MLJ 51, the High Court held that a developer who received compensation for land compulsorily acquired for the LRT 3 project could not retain sums attributable to common property. Although the compensation was paid entirely to the developer as registered proprietor, the Court found that part of the acquired land constituted common property, and the developer therefore held RM6.05 million on constructive trust for the Joint Management Body. The decision affirms that JMBs have proprietary standing to recover compensation for common property and that courts will intervene to prevent unjust enrichment in strata developments.

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UNFAIR DISMISSAL – MEDICAL LEAVE IS NOT MISCONDUCT: HIGH COURT UPHOLDS INDUSTRIAL COURT’S PROTECTION OF SICK EMPLOYEE

In Aerodarat Services Sdn Bhd v Lawerance Raj a/l Arrulsamy & Anor [2025] 11 MLJ 26, the High Court dismissed an employer’s judicial review and affirmed that prolonged medical leave does not, by itself, amount to misconduct justifying dismissal. The Court held that the employer failed to prove the critical element of intention not to return to work or unwillingness to perform contractual duties, despite high absenteeism caused by serious illness and surgery. The ruling reinforces that employers must distinguish between genuine illness and misconduct, and cannot rely on medical absence alone to terminate employment.

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WILL AND PROBATE – COURT OF APPEAL INVALIDATES WILL OF 97-YEAR-OLD TESTATOR: CAPACITY, SUSPICION AND UNDUE INFLUENCE PROVED

In Kong Kin Lay & Ors v Kong Kin Siong & Ors [2025] 5 MLJ 891, the Court of Appeal set aside a will executed by a 97-year-old testator, holding that there was real doubt as to testamentary capacity, compounded by serious suspicious circumstances and undue influence by certain beneficiaries. The Court emphasised that while the “golden rule” is not a rule of law, failure to obtain medical confirmation of capacity where doubt exists is a grave omission. Credibility issues with the drafting solicitor, beneficiary involvement in the will’s preparation, and suppression of evidence led the Court to declare the will invalid and order intestacy.

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NOT AN ‘AGREEMENT TO AGREE’: ENGLISH COURT OF APPEAL SAVES LONG-TERM SUPPLY CONTRACT DESPITE OPEN PRICE CLAUSE

In KSY Juice Blends UK Ltd v Citrosuco GmbH [2025] 2 Lloyd’s Rep 581, the UK Court of Appeal held that a long-term supply contract was not unenforceable merely because part of the price was stated as “open price to be fixed”. The Court implied a term that, in the absence of agreement, the price would be a reasonable or market price, noting that the product’s value could be objectively benchmarked against the market price of frozen concentrated orange juice. Emphasising that courts should preserve commercial bargains rather than destroy them, the decision confirms that section 8(2) of the Sale of Goods Act 1979 operates as a saving provision, not a bar to enforceability.

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