8. The High Court ordered that: Postscript The second type of stay is one that is ordered by the judge either on application of the accused or in limited circumstances at the judge's own initiative. Government Proceedings 7 LAWS OF MALAYSIA Act 359 GOVERNMENT PROCEEDINGS ACT 1956 An Act relating to proceedings by and against the Federal Government and the Governments of the States. The Federal Court affirmed the Court of Appeal's decision and made the following findings. (1) This case restates the Malaysian courts' position in respect of their intervention in arbitration. The court ought to give a wide interpretation to the arbitration clause to serve, as far as the language used by the parties in the arbitration clause will permit, the commercial purpose of the arbitration clause. The Federal Court remarked that even in cases where the court doubts the validity of the arbitration clause or where it is arguable whether the subject matter of the claim falls within the scope of the arbitration clause, the court should nevertheless lean more towards granting a stay pending arbitration, pursuant to Section 10 of the act. In its first-instance decision, the high court allowed the stay application pending arbitration pursuant to Section 10(1) of the Arbitration Act 2005 as the parties had clear arbitration clauses which formed part of the contract between them and were not null and void or incapable of being performed. Four days later, the defendant filed an application to stay the court proceedings under section 10(1) of the Arbitration Act 2005 (“Act”), on the basis that the subject matter of the dispute fell within the arbitration clause contained in clause 29.3 of the JVA (“Stay Application”). 2. Jamil, in handing down his decision, said there are no special circumstances in which the court can allow the application to stay the forfeiture proceedings. Comment. (2) The court, in granting a stay of proceedings pursuant to subsection (1), may impose any conditions as it deems fit. 6. Joinder of Parties . Should the court refuse your application for a stay, the only way for a stay to be implemented after that is to appeal to a higher court as held in the High Court case of MBf Insurnce Bhd v Syarikat Lektrik Heap Seng [2002] 2 MLJ 444. Section 10(1) reads: The Applicants’ applications for stay are based on the Applicants’ personal However, it should be noted that the range of special circumstances remain an open list dependent on the specific circumstances of an individual case. Committal Proceedings and Contempt of Court in Civil Practice 18 Sep 2019 - Wed / 1 day / 2:30pm - 4:30pm / Seminar Room, Mezzanine Floor, Wisma MCA, 163 Jalan Ampang, Kuala Lumpur Committal proceedings empower the courts to hold a person in contempt for refusing to obey an order. However, the IRB, in its supporting affidavit, said that Najib still had to pay the total amount of RM1.69 billion even if he had filed an appeal against the tax assessment. However, sometime a party may bring a dispute direct to litigation. The affidavit in support must further demonstrate the existence of the special circumstances based on a specific case’s own factual matrix and it must relate to the enforcement of the judgment (see Kosma Palm Oil Mill). This was recognised in the case of Government of Malaysia v Datuk Haji Kadir Mohamad Mastan and another application [1993] 3 MLJ 514 where Ian Chin JC held at p 521 that: “An attempt was made to define special circumstances by Raja Azlan Shah (as His Majesty then was) in the case of Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86, viz: ‘Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. CIRCUMSTANCES, APPLICATION FOR STAY OF PROCEEDINGS DISMISSED GOVERNMENT OF MALAYSIA v. MNMN Lumpur I S S U E S Whether special circumstances exist to warrant the grant of a stay of proceedings? In the Federal Court case of Hing Kim Pong v Teo Eng Jin [1980] 1 MLJ 43 on p 44: ‘On the other hand, it is the contention of respondent that the learned judge has unfettered discretion to grant a stay or not as long as he exercises his discretion judicially. (g) On 19.05.2017, the Appellant filed an application pursuant to Order 12 rule 10 (2) Rules of Court 2012(“ROC”) to stay the proceedings on the basis that Malaysia is not the proper forum pursuant to the exclusive jurisdiction clause. A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial or other legal proceeding. Learning and understanding the law and the Rules of the High Court related to stay of execution proceedings of the following: o Power to stay proceedings in an interpleader o Power to stay execution by writ of seizure and sale o Stay of proceedings pending appeal to judge in chambers Your email address will not be published. payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing”. 470. The court can subsequently lift the stay and resume proceedings based on events taking place after the stay is ordered. By way of an insurance contract, the respondent agreed with the appellant to insure all critical plants and machineries against sudden and unforeseen damage from any cause not excluded. It was the appellant's contention that the payment slip issued by the respondent to the appellant contained no arbitration clause and that it was not bound by the terms of the previous policy which had already expired. 67/1965] PART I PRELIMINARY Short title and application 1. In respect of this, the Federal Court agreed with the judge's finding that: "even though the placement slip does not expressly contain an arbitration clause, it is not a disputed fact that the placement slip makes reference to the expired policy number which contained an arbitration clause, and as such the said arbitration clause was effectively incorporated in the new policy by the reference made in the placement slip.". Withdrawal or admission (O. The Gan Partnership website can be accessed at www.ganlaw.my. Application for Stay. The clear difference between the parties regarding the amount to be paid as indemnity under the policy was sufficient to bring the dispute within the scope of the arbitration clause. Datuk Seri Abdul Azeez Abdul Rahim is pictured at the Kuala Lumpur Court Complex August 19, 2020. ― Picture by Firdaus Latif. A few weeks ago, in R. c. Goldberg, 2020 QCCQ 4548, the Court of Québec (Criminal and Penal Division) granted the most drastic remedy by ordering a stay of the charges brought against Bouclair Inc. (Bouclair), Peter Goldberg and Erwin Fligel, respectively the company's Chief Executive Officer (CEO) and vice-president, for alleged tax evasion offences. There are two appellate courts with appellate jurisdiction: the Court of Appeal and the Federal Court. (b) to stay the court proceedings to the extent required by section 10 of the AA, but on condition that the arbitration proceed only after the resolution of the remaining court proceedings. Whether Section 106 of the Income Tax Act 1967 is contrary to Article 121(1) of the Federal 3. 4 The plaintiff has appealed against my decision on the defendant’s stay The Court of Appeal took the wrong approach by making a substantive determination over whether a ‘dispute’ could properly exist. In other words, special circumstances is the genus of which nugatoriness is a species. Introduction 1. Accordingly, Section 10(1) of the Arbitration Act applied and the respondent was entitled to a grant of stay. this agreement cannot be null and void, inoperative or incapable of being performed. 107/1958; Sabah and Sarawak—25 February 1965, L.N. I also granted the interim stay on enforcement sought by the plaintiff. The winding up is merely stayed moving forward, and not set aside or rescinded. According to the Federal Court, in order to grant a stay: The court is no longer required to consider whether a dispute exists when granting a stay. Federal Court of Malaysia, which is the highest court. LexisNexis Civil Litigation Series: Stay of Proceedings not only handy, but have also become an essential reference tool for legal practitioners. This is surely not what discretion is all about.”. Given that the respondent had admitted its liability, the Federal Court was satisfied that the only dispute left was the issue of the amount or quantum to be paid. The appellant commenced legal proceedings before the high court against the respondent for, among other things, an indemnity by the respondent under the policy in respect of all losses and damage suffered by the appellant arising out of the incident and various declaratory orders and damages for breach of the policy and fraud committed by the respondent in the issuance of the policy. The sum insured for machinery breakdown was RM200 million and the sum for lost profits was RM100 million. TEE International said in a bourse filing on Saturday that MDIS (Malaysia) Sdn Bhd has commenced two sets of arbitration proceedings against its wholly-owned Malaysian subsidiary TEE E&C Malaysia Sdn Bhd and the company in Singapore on March 6, 2020. Malaysia: Litigation & Dispute Resolution Laws and Regulations 2020. The court had to decide whether the appellant's claim in the court proceedings fell within the ambit or scope of the arbitration clauses. Recall of witnesses when charge altered 163. CIRCUMSTANCES, APPLICATION FOR STAY OF PROCEEDINGS DISMISSED GOVERNMENT OF MALAYSIA v. MNMN Lumpur I S S U E S Whether special circumstances exist to warrant the grant of a stay of proceedings? 4. 1.Venue of Proceedings . Order-41 Rule-5(1): “Stay by Appellate Court-An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may In Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd the appellant company owned and operated an aluminium smelting plant, whereas the respondent company provided insurance and takaful products. Iyas is the kind of person who constantly has something on his mind. The Federal Court has now found that the clear effect of Section 10(1) of the Arbitration Act 2005 is to render a stay mandatory if the court finds that all the relevant requirements have been fulfilled. The Court of Appeal upheld the decision of the High Court to lift a stay of court proceedings that had previously been granted on case management grounds. Misjoinder and Non-joinder of Parties . On Aug 8 last year Najib filed an application for a stay of proceedings of IRB’s suit seeking him to pay RM1.69 billion in income tax, pending his appeal on the tax assessment to IRB. 2. KUALA LUMPUR, Feb 28 — The High Court here today dismissed Datuk Seri Najib Razak’s application for a stay of proceedings of the Inland Revenue Board’s (IRB) suit seeking the former prime minister to pay RM1.69 billion in income tax, pending an appeal on the tax assessment to IRB. In a recent decision Takenaka Corporation v Tam Chee Chong and another [2018] SGHC 51, Justice Aedit Abdullah granted a stay of proceedings under the Arbitration Act of Singapore (Cap 10, 2002 Rev Ed) (the “Arbitration Act”), for an appeal against the judicial managers’ rejection of a creditors’ proof of debt pursuant to Section 75 of the Companies Regulations. subjected the stay to any decision made in the plaintiff’s application to grant a stay of enforcement of the adjudication determination pending the disposal of proceedings in the suit. Overview It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common.’, The definition only serves to emphasize the fact that there are myriad circumstances that could constitute special circumstances with each case depending on its own facts. Where before the hearing of an originating summons or a notice of application under this Order- It identifies scenarios in which a party may apply for a stay of proceedings, including to allow for: a jurisdictional challenge; arbitration; an attempt to settle; related criminal proceedings; an opportunity to comply with a procedural requirement or court order etc. The law cases show that it is made available only in limited circumstances. 17, r. 7A) 7A. However, the courts will be willing to stay execution if it is apparent that special circumstances exists on the facts that warrant the grant of a stay. LexisNexis Civil Litigation Series: Stay of Proceedings; Print. '”, Your email address will not be published. The only way is for that party to apply to the court for stay the arbitration proceedings by way of an injunction. The Benefits of Filing a Police Report for Fraud Cases, Preparing your Appeal Papers to be Filed in the Court of Appeal, Offer To Settle vs Trial: Alternatives to Court Drama, The Erinford Injunction: Maintaining Status Quo Pending Appeal. Standard Chartered Bank Malaysia Berhad Bhd v City Properties Sdn Bhd also dealt with a stay of proceedings pursuant to Section 10 of the Arbitration Act. Generally, a high court … reliance on Order 69, Rule 10(3) of the Rules of Court 2012 to suggest that the court should decide whether the subject matter falls within the terms of the arbitration clause and Section 10(1) of the act. The decision in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd 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. In each case the court considered whether to grant a stay of proceedings pursuant to Section 10 of the Arbitration Act 2005. Court may Order Separate Trials . Besides granting a stay of the court proceedings, antisuit injunctions restraining a party from commencing court proceedings in other jurisdictions in breach of an arbitration agreement which provides Malaysia as the seat of arbitration may be granted by the courts. 5. However, a stay is sometimes used as a device to postpone proceedings indefinitely. The debtor could be debt to individuals or companies In respect of loss of profits, "if any difference arises as to the amount to be paid under this certificate (liability being otherwise admitted), such difference shall be referred to the decision of an arbitrator". Trial for more than one offence 166. ORDER 4—PARTIES AND CAUSES OF ACTION . Four days later, the defendant filed an application to stay the court proceedings under section 10(1) of the Arbitration Act 2005 (“Act”), on the basis that the subject matter of the dispute fell within the arbitration clause contained in clause 29.3 of the JVA (“Stay … 8. Stay of Executions Proceedings Posted on July 27, 2020 by Ahmad Iyas Husni When a party is appealing a decision of a lower court to a higher court, it is trite that appeals do not operate as a stay of execution (see s.57 of the Court of Judicature Act 1964). This was recognised in the case of Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 where the Federal Court at para [18] held that: “… It is therefore clear beyond doubt that there are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one. Whether it is unjust for the Plaintiff to file the current It identifies scenarios in which a party may apply for a stay of proceedings, including to allow for: a jurisdictional challenge; arbitration; an attempt to settle; related criminal proceedings; an opportunity to comply with a procedural requirement or court order etc. (2) At issue was a payment pursuant to a retention bond issued by the plaintiff bank in favour of the first defendant. It should be noted that any application to stay should be done promptly so as to not be seen to be unfairly depriving a successful party of the fruits of their litigation (see Ajaib Singh v Jeffrey Fernandez [1971] 1 MLJ 139).Â. KUALA LUMPUR, Dec 18 — The High Court here today dismissed an application by the wife of former Tabung Haji (TH) chairman Datuk Seri Abdul Azeez Abdul Rahim and their four children for a stay of the government’s suit to forfeit almost RM16 million of their … The Court of Appeal agreed with the high court and ruled that the court had no discretion but to grant a stay of the proceeding, save for the exception set out in Section 10(1) of the Arbitration Act 2005; hence, the appeal was dismissed unanimously. In addition, if a binding arbitration agreement exists between the parties, the court must grant an order to stay the court proceedings pending reference to arbitration on application by any party to the agreement for a stay order. LexisNexis Civil Litigation Series: Stay of Proceedings. Federal Court of Malaysia, which is the highest court. 13 KUALA LUMPUR: Former prime minister Najib Razak has applied for a stay of proceedings of the suit filed by Damansara MP Tony Pua for alleged misfeasance in public office related to the 1MDB case. If it has been shown that an appeal would be rendered nugatory if stay was refused what it means is that a special circumstance has been established. KUALA LUMPUR (Feb 19): The Court of Appeal in Kuching had today granted Petroliam Nasional Bhd (Petronas) a stay of proceedings in the suit filed by the Sarawak government against the state-owned company over the payment of State Sales Tax. Malaysia has a two-tier system of appeal. We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters. This would mean that when judgment has been laid down, the successfully party may proceed to enforce and execute it even if an appeal has been filed by the opposing side. 26 April, 2018 . Facts There is no clear pronouncement from the courts. Datuk Seri Abdul Azeez Abdul Rahim is pictured at the Kuala Lumpur Court Complex August 19, 2020. ― Picture by Firdaus Latif. ICLG - Litigation & Dispute Resolution Laws and Regulations - Malaysia covers common issues in litigation and dispute resolution laws and regulations – including preliminaries, commencing proceedings, defending a claim, joinder & consolidation and duties & powers of the courts – in 45 jurisdictions. I am of the opinion that the list of factors constituting special circumstances is infinite and could grow with time. Footnotes. In addition, if a binding arbitration agreement exists between the parties, the court must grant an order to stay the court proceedings pending reference to arbitration … 1. Ever wondering why the law works the way it does, Iyas constantly pushes the limits of his curiosity to find the ever elusive “Answer” to all of his questions. In respect of machinery breakdown, "if any difference arises as to the amount paid under this certificate (liability being otherwise admitted), such difference shall be referred to the decision of an arbitrator". When a party is appealing a decision of a lower court to a higher court, it is trite that appeals do not operate as a stay of execution (see s.57 of the Court of Judicature Act 1964). Former prime minister Datuk Seri Najib Razak has applied for a stay of proceedings of the suit filed by Damansara MP Tony Pua Kiam Wee for alleged misfeasance in public office related to the 1Malaysia Development Berhad (1MDB) case Bankruptcy Proceedings Statute • Bankruptcy Act 1967 • Bankruptcy Rules 1969 • Rules of Court 2012 Total judgment of debt must be more than RM 30,000.00 The proceedings may be commenced if the judgment debtor has not complied with the judgment or order made against him. S. 4 of the Subordinate Courts Rules Act 1955 [Act 55] and iii. Stay of proceedings if prosecution of offence in altered charge requires previous sanction 162. Required fields are marked *. This was because all notices regarding the winding up proceedings in this case had been sent to … 17, r. 7) 7. An ad interim stay does not mean that a winding up petition cannot be filed as bankruptcy and winding up proceedings was not within the ambit and meaning of ‘execution’ proceedings as provided by O 46 r 1 of the Rules of High Court 1980 which states as follows: First, Malaysian courts no longer consider whether a ‘dispute’ exists for the purposes of an application to stay court proceedings. Case settlement conferences given a 'festive' touch - Hong Kong, Beware: High Court refuses permission to rely on new witness statement prepared part way through trial - United Kingdom, Parties can now request an extension to object to expert reports - Turkey, Clarification of rules on fast-track appeal proceedings - France, Court rules former director of AIAC's directorship is non-justiciable, Derivative proceedings: leave of court is substantive legal requirement, Competing claims in curial and arbitral proceedings: recent anti-arbitration injunction developments. not operate as a stay. This type of stay is discretionary and can be reversed at the discretion of the Crown. Therefore, such a stay does not undo the actions of the liquidators but only halts the proceedings. Holding of the High Court The High Court granted Hanjin’s application on a temporary basis, pending a full hearing involving other interested parties such as various creditors. All standard forms of contract in Malaysia provide arbitration as the major method of dispute resolution. ILO is a premium online legal update service for major companies and law firms worldwide. Separate charges for distinct offences 164. In the recent case of Gulf Hibiscus Ltd v Rex International Holding Ltd & another [2017] SGHC 210, the Singapore High Court, affirmed on appeal, a decision granting a stay of proceedings in favour of arbitration upon the application of a non-party to the arbitration agreement, where arbitration proceedings were yet to have been commenced. It is also one of the rare cases where a stay of proceedings, which is the most drastic remedy that a criminal or penal court can order, has been found warranted. This means in effect that the court proceedings against the third parties or non-parties not caught by the arbitration agreement would be heard and determined first, followed by the arbitration proceedings … S. 4 of the Subordinate Courts Rules Act 1955 [Act 55] and iii. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Civil Procedure; preliminary matter Preliminary Matter Parties - Parties in action (whether suing or being sued) must be;- a) Sui juris (age of majority); which the Age of Majority Act provided as 18 years old. A) Where admiralty proceedings are stayed pursuant to subsection (1), the court granting the stay may, if in those proceedings 14 Laws of Malaysia A LAWS AND REGULATIONS GOVERNING ENFORCEMENT OF CIVIL CASE JUDGMENTS The general salient provisions governing enforcement of civil judgments in Malaysia are: i. S. 17 of the Courts of Judicature Act 1964 [Act 91]; ii. The materials contained on this website are for general information purposes only and are subject to the disclaimer. In considering the appellant's arguments and submission, the Federal Court ruled that the following grounds were an insufficient basis on which to deny a stay of proceedings pending arbitration: The Federal Court's decision provides a useful reminder of the difficulty in opposing an application to stay proceedings pending arbitration, as the court is mindful of the mandatory effect of Section 10(1) of the act as well as the critical importance of upholding the principle of party autonomy. On this matter, the appellant claimed for indemnity under the policy, while the respondent sought to offer a lesser sum than the appellant's claim after an analysis of the claim and the terms of the policy. The weight of authorities appears to me to say that the special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal).“. Stay of proceedings if prosecution of offence in altered charge requires previous sanction 162. KUCHING (Feb 11): The High Court here today dismissed an application by Petronas for a stay of proceedings in the Sarawak Government’s suit against the national oil corporation over the payment of State Sales Tax (SST). Scope of arbitration clause 7. Right to take Proceedings . 4. 5. In relation to this, the Federal Court was satisfied that the requirements were fulfilled. The family is seeking for the forfeiture proceedings to be stayed pending the disposal of Azeez’s ongoing corruption trial at the Sessions Court. Power to stay proceedings (O. The court will consider whether other safeguards would suffice to prevent any prejudice arising from the parallel proceedings. Three offences of same kind within twelve months may be charged together 165. Notwithstanding the above, one of the most common special circumstances used to in an application for a stay is the issue that refusal to grant one would render an appeal nugatory. This Practice Note considers the question of when court proceedings can be stayed. the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. However, it should be noted that since the grant of a stay is a matter within the discretion of the court, then appellate intervention may only be warranted if it can be shown that the discretion was exercised contrary to established judicial principles. The court's decision was based on the fact that even if the terms of an arbitration agreement are only referred to in the overall agreement, they are still binding – as if they were written in the latter agreement. On August 8, last year, Najib filed an application for a stay of proceedings of the IRB’s suit, seeking him to pay RM1.69 billion in income tax, pending an appeal on the tax assessment to IRB. Thus, they cannot be treated as separate heads and one cannot be an alternative to the other. Neither can one be accepted or rejected in favour of the other as they are inter-related.“. Subsequently, the appellant suffered substantial losses and damage as a result of a disruption to its smelting operation caused by an extensive power outage, which forced the plant to be shut down temporarily. Dissatisfied with the Court of Appeal's decision, an appeal was made to the Federal Court. You need to be logged in to make a comment. A stay can be entered by the Crown under s. 579. Stay of Proceedings by Crown STAY OF ARBITRATION PROCEEDINGS MOHD SYAFIQ ROSDI A project report submitted in partial fulfillment of the requirements for the award of the degree of Master of Science (Construction Contract Management) Faculty Build Environment Universiti Teknologi Malaysia July 2011. i I’M A DREAMER, AND TODAY ONE OF MY DREAMS COMES TRUE. Malaysia: Litigation & Dispute Resolution Laws and Regulations 2020. Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65. Any attempt to limit the list or close a category would be to impose a fetter on the exercise of the discretion of the court whether to grant or stay an execution; making the discretion less of a discretion. In Mercato Sports v Everton, the English High Court found that two parties were bound by an implied horizontal contract containing an arbitration clause.Accordingly, it granted a stay of proceedings under section 9 of the Arbitration Act 1996 (‘S9 AA 1996’). Federal Court's decision Malaysia: Court Of Appeal Refuses Stay Of Proceedings Where Party Acts Inconsistently With An Express Reservation Of Right To Refer Dispute To Arbitration.Legal News & Analysis - Asia Pacific - Malaysia - Dispute Resolution Overseas ( Singapore ) Pte Ltd [ 2018 ] SGCA 65 the genus which! Tax Act 1967 is contrary to Article 121 ( 1 ) of the Subordinate courts Rules Act [. Be stayed major method of dispute resolution is unjust for the plaintiff to the. 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