Yew Huoi, How & Associates | Leading Malaysia Law Firm

EQUITY – RELIEF PT. 2: RECOVERING POSSESSION OF MOVABLE PROPERTY

During the last legal update on relief and recovering possession under equity, we have explained on recovering possession of immovable property which falls under sections 7 and 8 of the Specific Relief Act 1950 (“SRA 1950”). On the other hand, sections 9 and 10 deal with the same remedy in respect of movable property. This remedy is mentioned in section 4(a) of the SRA 1950 that specific relief is given by taking possession of certain property and delivering it to the claimant, as one of the proprietary remedies recognized by equity.

Recovering Possession of Movable Property

Under section 9 of the SRA 1950, a person entitled to the possession of specific movable property may recover the same in the manner prescribed by law relating to civil procedure. The relief in this section is based on the tort of detinue which is the detention of property with the intention of keeping the property in defiance of the rights of the person entitled to possession of it. An action lies for the specific recovery of the property wrongfully detained by the person entitled to its possession, and also for damages occasioned by the wrongful detainer.

The Malaysian courts have held that in an action for recovery of property under section 9, there is a need for the person entitled to possession to first issue a letter of demand to the person who has detained the property before a writ can be issued under section 9. The rationale for this requirement appears in the decision in the case of Abdul Muthalib bin Hassan v Maimoon bte Hj Abd Wahid.

Other than the prerequisite of making a demand, it was also noted that another requirement in order to recover such property under detinue is the refusal of the person detaining the property to return the property to the person making the demand.

Conclusion

There have not been many cases where the relevant sections in the SRA 1950 have been cited in court when the action is to recover immovable property or immovable property. However, these sections are important as they form the substantive law on the relief, providing the rights to relief and the conditions to fulfil before invoking such relief.

Recent Post

FAMILY LAW – CHILDREN’S CUSTODY – CUSTODY DISPUTES IN MALAYSIA: ESSENTIAL INSIGHTS ON CHILD WELFARE AND PARENTAL ROLES

In a recent custody dispute, the court emphasized the importance of child welfare, reaffirming the maternal custody presumption for young children unless strong evidence suggests otherwise. In high-conflict situations, the court favored sole custody over joint arrangements to minimize stress on the children. This case underscores that Malaysian parents should provide credible evidence for their claims and focus on practical, child-centered solutions.

Read More »

BREACH OF CONTRACT – DAMAGES – FORESEEABILITY AND FAIRNESS IN FREIGHT LIABILITY CLAIMS

In JSD Corporation v Tri-Line Express [2024] 1 Lloyd’s Rep. 285, the court set a clear precedent on damages for property claims, ruling that only foreseeable and proportionate losses are recoverable. Applying principles akin to Hadley v Baxendale, the court allowed for repair costs if intent to remedy was evident but rejected double recovery, underscoring that damages must reflect actual loss without overcompensation. This decision serves as a guide for Malaysian courts, emphasizing fair and balanced recovery in line with foreseeable damages.

Read More »

ADMIRALTY IN REM – SHIPPING — FUEL OR FREIGHT? COURT CLEARS THE AIR ON GLOBAL FALCON BUNKER DISPUTE

In a decisive ruling on the Global Falcon bunker dispute, the court dismissed Meck Petroleum’s admiralty claim for unpaid high-sulphur fuel, finding that the fuel was supplied not for operational purposes but as cargo. With the vessel lacking necessary equipment to use high-sulphur fuel and evidence pointing to its transfer to another vessel, the court determined that Meck’s claim fell outside admiralty jurisdiction, leading to the release of the vessel and potential damages for wrongful arrest.

Read More »

COLLISION COURSE – COURT WEIGHS ANCHOR DRAGGING AND LIABILITY AT SEA

In a collision that underscores the high stakes of maritime vigilance, the court ruled that Belpareil bore the brunt of the blame for failing to control its dragging anchor and delaying critical warnings. Yet, Kiran Australia wasn’t off the hook entirely—apportioned 30% fault for its limited evasive action, the case serves as a stark reminder: in maritime law, all vessels share responsibility in averting disaster, even when one party’s errors loom large.

Read More »

GENERAL AVERAGE – PIRATE RANSOM DISPUTE: SUPREME COURT RULES CARGO OWNERS LIABLE IN THE POLAR CASE

In the landmark case Herculito Maritime Ltd v Gunvor International BV (The Polar) [2024] 1 Lloyd’s Rep. 85, the English Supreme Court upheld the shipowner’s right to recover a USD 7.7 million ransom paid to Somali pirates under general average. The Court ruled that cargo interests, despite their arguments regarding charterparty terms and insurance obligations, were liable to contribute to the ransom payment. This decision reinforces the importance of clear contractual provisions when seeking to limit or exclude liability in maritime contracts particularly matter relating to general average.

Read More »
zh_TWZH
× 联系我们