Legal

Insight
ADVOCATES & SOLICITORS

DECEMBER 2023
Vol.12/Q4/23

CONTENTS: 1 Doctrine Of Limitation: A Sword, A Shield Or A Shield To The Sword? |

9 Time And Manner Of The Delivery Of Vacant Possession Of A Property | 17 Post-Repeal
Entitlement To GST Input Tax Refund – The Case Of Lendlease Development Sdn Bhd (2021) |
23 The Malaysian Legal System – Chronicles Of The Dual Justice System |
28 Unveiling The Grey Areas: In-House Counsel And Legal Professional Privilege

DOCTRINE OF LIMITATION:
A SWORD, A SHIELD OR A SHIELD
TO THE SWORD?
by Syafinaz Vani & Rakkshanaa Samasundaram

T he Federal Court's recent decision in Thameez Nisha Hasseem (as

the administrator of the estate of Bee Fathima @ dll, deceased)
v Maybank Allied Bank Bhd [2023] 4 MLJ 145 has given clarity to the
“Copyright © 2022 Rosli Dahlan applicability of Section 21(1) of the Limitation Act 1953 (“LA 1953”) to
Saravana Partnership. All rights
reserved. This publication is only charge actions.
intended to provide general
information on the subject matter
and does not, and is not intended to,
substitute for legal or professional
Particularly, a crucial point addressed by the Federal Court is the 12
advice. Rosli Dahlan Saravana years limitation period in Section 21(1) of LA 1953 and the applicability
Partnership accepts no liability
for any errors or omissions in the of limitation as a shield and not a sword – a general proposition that is
contents of this publication.”
KDN: PP 19637/12/2020 (035236) often heard of but not discussed in great detail.

Printed by: Percetakan Jiwabaru Sdn Bhd | No. 2, Jalan P/8, Kawasan Miel Fasa 2, 43650 Bandar Baru Bangi, Selangor (KDN: PQ1780/427)

LEGAL INSIGHT 1
 Brief Facts

Thameez, the Appellant, was the administrator of the estate of Bee Fatima
(“Deceased”). Charijah, the Respondent, who was granted power of attorney by
the Deceased, charged the Deceased’s land (“Land”) to Co-operative Central Bank
Ltd which went into receivership and was taken over by Maybank Allied Bank Bhd
(“MABB”). The Land was charged as security for a loan obtained by Charijah on
28.5.1984. Charijah defaulted on the loan repayment, leading to an order for sale in
1991 following the issuance of the Form 16D notice under Section 254 of the National
Land Code 1965 (“NLC”) dated 30.7.1986. In 2010, the High Court set aside the order
for sale. Thereafter, no action was taken by MABB to enforce the charge or recover the
loan from Charijah.

In 2015, Thameez wrote to MABB to enquire about the status of the charge and MABB’s
actions taken against Charijah but MABB did not respond to the enquiry.

Consequently, in 2016, Thameez filed an Originating Summons against Charijah at the

High Court. Thameez claimed against Charijah for a declaration that the estate was
entitled to be discharged from the charge and sought an order compelling Charijah to:

(i) pay MABB the sum as required by MABB for the discharge of the charge;
(ii) pay to the court the sum sufficient for the discharge of the charge; or
(iii) pay damages for being in default to repay the loan that caused loss and damage to
the estate of the Deceased.

MABB intervened pursuant to Order 15 rule 6(2)(b) of the Rules of Court 2012 (“ROC”)
claiming that it has an interest as a chargee of the Land and was made the 2nd Defendant,
with Charijah as the 1st Defendant.

With MABB added as a party to the suit, the pleadings were amended and Thameez
sought, inter alia, for a declaration that MABB ceased to have any interest in the Land
and that MABB’s rights to enforce the charge had extinguished by operation of law, and
an order that MABB discharges the charge.

The High Court’s Decision

The High Court dismissed the claims against both Charijah and MABB for the following
reasons:

(a) There was no agreement between Thameez and Charijah in so far as the loan is
concerned. Thus, Thameez has no cause of action to compel Charijah to repay the
loan to MABB.

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 ADVOCATES & SOLICITORS

(b) In relation to the orders sought by Thameez against MABB, it was held that given that
the debt arising from the loan had not been settled, MABB could not be compelled
to discharge the charge as "equity and common sense dictate that the bank cannot
discharge the charge until the debt is fully settled", despite the fact that MABB is
barred by limitation to foreclose the charged property.

Thameez subsequently appealed to the Court of Appeal.

The Court of Appeal’s Decision

The Court of Appeal dismissed Thameez’s appeal and affirmed the High Court's decision
by relying on the decision of the Federal Court in RHB Bank Bhd (previously known as
United Malayan Banking Corp Bhd and then as Sime Bank Bhd) v Wong Kok Leong
(as executor and trustee of the estate of Wong Kwong Wah, deceased) & Ors [2017]
4 MLJ 281 (“Wong Kok Leong”).

In Wong Kok Leong, the court rejected the use of limitation as a cause of action to
seek a declaration that the defendant was barred by limitation from exercising its rights
under the lien-holder's caveats.

Thus, the Court of Appeal was of the view that Thameez's application to obtain the title
without payment of what is due and owing to MABB should fail based on Wong Kok
Leong.

Dissatisfied, Thameez filed an application for leave to appeal to the Federal Court.

The leave to appeal was granted to consider six questions of law.

Following that, the Federal Court decided that there are three primary issues that are
determinative of the appeal, namely:

a) the determination of title or interest of the Land by operation of law;

b) the application of the 12 years limitation period to charge actions pursuant to Section
21(1) of the LA 1953; and
c) the nature and the legal effect of the expiry of the limitation period.

Issue 1 : Determination of title or interest of the Land by operation of law

Thameez contended that if legal rights can be lost by delay or laches, the failure to act
within the statutory limitation should have the same effect. Citing the Federal Court
case of CIMB Bank Bhd v. Sivadevi Sivalingam [2020] 2 CLJ 151 ("Sivadevi") where
equitable defences such as laches, acquiescence and delay were considered as "cause
to the contrary" in Section 256(3) of the NLC, Thameez argued that this reasoning shall

LEGAL INSIGHT 3
 equally apply to the interpretation of "the determination of title or interest by operation
of law" in Section 340(4)(b) of the NLC. In other words, Section 340(4)(b) of the NLC was
triggered when MABB did not act within the statutory limitation period i.e. 12 years.

To this, MABB contended that Thameez's argument on laches must not be entertained
as it was not pleaded or argued in the courts below. Additionally, MABB argued that
the application of laches which is an equitable defence is subject to equitable principles
whereby the "courts will not assist a litigant with unclean hands" and that "he who seeks
equity must do equity". Here, Thameez was said to not have fulfilled both equitable
principles in order to avail herself to the equitable defence of laches because she has not
paid the outstanding amount and yet is seeking for the return of the title deeds.

MABB further contended that similar to the defence of limitation, laches cannot be used
as a sword or a cause of action and thus, it cannot be used to extinguish rights. The cases
of Sivadevi and CIMB Investment Bank Bhd v. Metroplex Holdings Sdn Bhd [2014] 9
CLJ 1012 cited by Thameez were argued to only stand for the proposition that laches
may be raised as a defence to oppose an order for sale and not in an action to defeat the
registered interest of a chargee.

MABB also argued that Section 340(4)(b) of the NLC is merely a saving provision which
provides for the determination of any title or interest in land by operation of any other
law and therefore, cannot operate independently to determine any title or interest.
On the other hand, Thameez argued that Section 340(4)(b) of the NLC is not a saving
provision but an independent substantive provision because it is not a new provision in
the NLC and has its origin traceable to Section 42(vi) of the Land Code 1928 (Cap 138).
More so, its operation is not temporary.

However, the Federal Court disagreed with MABB’s contention. The Federal Court held
succinctly that Section 340(4)(b) of the NLC is not a saving provision as alleged by MABB
and held that it is a substantive provision dealing with matters related to indefeasibility
in which the determination of any title or interest by operation of law at any point of
time would render the registered title or interest defeasible.

Issue 2 : Applicability of the 12 years limitation period to charge actions pursuant

to Section 21(1) of LA 1953

On this issue, the Federal Court agreed with the reasoning by Ahmad Maarop PCA (as
he then was) in Sivadevi that the word “action” in Section 21(1) of the LA 1953 applies
to charge actions. The Federal Court then went on to decide that the 12 years limitation
period under Section 21(1) of the LA 1953 begins from the date of default in payment of
the loan secured by the charge and not from the time of default in complying with the
statutory demand in the Form 16D notice.

4 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

In this regard, the Federal Court agreed with the

findings of the Court of Appeal in Lim Ban Hooi &
Anor v Malayan Banking Bhd [2018] 6 CLJ 545 on
the correlation between the Form 16D notice and the
default in repayment whereby a Form 16D notice cannot
be issued if there is no default in the loan repayment in
the first place. Further, the Federal Court rationalised
that “If the time period of 12 years does not run from when
the breach of the agreement took place whence the right
to receive money accrued has been disaffected, a chargee
may well decide not to do anything for the next 100 years,
and still be in time to enforce the ad rem right of order of
sale.”
The Federal Court took cognisance of
the fact that the laws of limitation are
intended to protect the rights of all parties
concerned and held that these laws
ensure certainty and confidence to the
enforcement and safeguarding of rights
and remedies and recourse to the courts,
preventing abuse through the principle of
laches.

The Federal Court took cognisance of the fact that the laws of limitation are intended to
protect the rights of all parties concerned and held that these laws ensure certainty and
confidence to the enforcement and safeguarding of rights and remedies and recourse to
the courts, preventing abuse through the principle of laches.

Consequently, the law is now clear that the period of 12 years limitation in Section 21(1)
of the LA 1953 begins from the date of default in the loan repayment and not from the
failure to remedy the Form 16D notice.

Issue 3 : The nature and the legal effect of the limitation period

Thameez argued that when the limitation period is successfully established, MABB
absolutely loses its statutory right to obtain an order under the NLC given that MABB’s
registered interest over the Land has been determined by the operation of law. This
follows that MABB is not entitled to the custody of the issue document of title since
there is no longer any liability subsisting under the charge.

On the other hand, MABB argued that the issue of limitation only bars the enforcement
of rights and does not have the effect of extinguishing MABB’s rights and interest under
the charge. As such, the discharge of the charge cannot be done until the full realisation
of the debt since the issue of limitation only bars the enforcement of rights and does not
extinguish MABB’s rights and interest under the charge.

The Federal Court found that MABB’s rights or interests under the charge have become
legally unenforceable in view of limitation in Section 21(1) of the LA 1953. Thus, Section
340(4)(b) of the NLC is triggered, allowing for the determination of title or interest
by operation of law. Consequently, the Federal Court ordered MABB to discharge the
charge and return the issue of document of title of the Land to Thameez.

LEGAL INSIGHT 5
 Limitation As A Defence Or A Cause Of Action

As stated above, the Court of Appeal dismissed Thameez’s appeal based on the Federal
Court in Wong Kok Leong. The decision in Wong Kok Leong relied on the Court of
Appeal in Sakapp Commodities (M) Sdn Bhd v. Cecil Abraham [1998] 4 CLJ 812 which
held that limitation is merely a defence to an action and therefore cannot be used as a
cause of action. In other words, the plea of limitation can only be used as a shield and
not as a sword.

On this basis, MABB argued that Thameez’s claim against MABB should fail because
Thameez is essentially relying on limitation as a sword in seeking a declaration that
MABB ceased to have any estate or interest in the Land and that MABB’s rights to enforce
the charge had extinguished by operation of law and an order that MABB discharge the
charge.

Thameez argued, inter alia, that she did not contend on the grounds of limitation as a
cause of action against MABB but was resisting MABB’s allegation, who, upon intervening
in Thameez’s suit against Charijah, claimed that it has an interest in the Land. Hence,
Thameez’s reliance on limitation is in effect a defence against MABB’s claim.

MABB’s response was that it only intervened as a defendant in order to defend against
Thameez's action by protecting its rights and interests under the charge that will be
affected by the relief sought by Thameez in the original Originating Summons before
MABB intervened.

In arriving at a decision, the Federal Court referred to the decision of the Privy Council
in Yew Boon Tew & Anor v. Kenderaan Bas Mara [1983] 1 CLJ 11 wherein it was held
that although limitation arises out of a procedural law, it is as much a "right" as any
other statutory or contractual protection against a future suit. Essentially, it is a defence
mechanism available to a defendant with the following effects:

“When a period of limitation has expired, a potential defendant should be able to

assume that he is no longer at risk from a stale claim. He should be able to part with
his papers if they exist and discard any proofs of witnesses which have been taken,
discharge his solicitor if he had been retained; and order his affairs on the basis that his
potential liability has gone. That is the whole purpose of the limitation defence.”

Hence, while recognising that limitation is legally a defence, the Federal Court, in
favouring Thameez, emphasised that the peculiarity of the facts of each case must be
examined in order to assess whether Thameez invoked limitation as a defence or as a
cause of action. Here, the Federal Court cited its previous decision in Fong Kong Meng
& Anor v Public Prosecutor [2019] 12 MLJ 110 which held that “every decision of the

6 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

courts depends substantially on the peculiarity of each case as the facts would invariably
be different and subject to different inferences leading to different opinions of the courts”.

Hence, with Fong Kong Meng in mind, the Federal Court observed the peculiarity of
the facts of this case whereby Thameez did not intend to sue MABB and has only sued
Charijah. It was MABB who intervened on its own accord in Thameez’s suit and became
the 2nd Defendant pursuant to Order 15 Rule 6(2)(b) of the ROC which empowers the
Court to add parties necessary to determine the matter in dispute.

Following that, necessary amendments were made to the pleadings where MABB’s
claim of interest in the Land left Thameez with no choice but to use limitation as a
defence against MABB. Consequently, Thameez sought, inter alia, for a declaration that
MABB's rights to enforce the charge has extinguished by operation of law pursuant to
Section 340(4)(b) of the NLC by relying on the 12 years limitation period in Section 21(1)
of the LA 1953.

In the premises, by giving due consideration to the facts of the case, the Federal Court
took the view that MABB should not be permitted to contend that it was Thameez who
brought proceedings against MABB on the grounds of limitation. The Federal Court
concluded that Thameez is allowed to rely on the 12 years limitation period in Section
21(1) of the LA 1953 as it was not used as a sword to determine and/or extinguish MABB’s
claim of interest in the Land but it was a shield against MABB’s contention that MABB
has an interest in the Land to enforce the registered charge.

Key Difference In Applying Limitation As A Sword Or Shield

Based on the cases of Wong Kok Leong and Thameez Nisha, it can be concluded that
there is a fine line between the application of limitation as a sword or a shield.

In Wong Kok Leong, the plaintiffs sought a declaration that the defendant was barred
by limitation pursuant to Section 21(1) of the LA 1953 from exercising its rights under
the lien-holder’s caveats and for the cancellation of the lien-holder’s caveats on the
plaintiff’s land titles. In Thameez Nisha, limitation was relied upon by Thameez the
plaintiff, merely as a response to MABB’s claim of interest in the Land after MABB
intervened and became the 2nd Defendant.

Essentially, the difference may be summarised as follows:

a) If the plea of limitation is relied upon by a plaintiff as a tool to initiate a claim in

order to extinguish a defendant’s interest(s), it will be then considered to have been
applied as a sword which is not allowed under the entrenched principle of law.

LEGAL INSIGHT 7
 b) On the other hand, where a plaintiff did not raise the limitation when initiating a suit
but is compelled to raise limitation in response to or to defend against allegations
subsequently raised by another party, it cannot be regarded as being used as a
sword.

In the facts of Thameez’s case, it is clear that she indeed used limitation as a shield at a
sword directed at her by MABB.

Conclusion

The Federal Court in Thameez Nisha is a welcomed meticulous approach on the issue
of limitation as a sword or a shield while taking cognisance that statutory limitation is
legally a defence. This upholds the very purpose of the law on limitation i.e., to protect
the rights of all parties concerned in preventing a claimant from sleeping on his rights
or interests and to have a definite end to litigation.

Syafinaz Vani | Partner

Dispute Resolution
syafinaz@rdslawpartners.com

Rakkshanaa Samasundaram | Associate

Dispute Resolution
rakkshanaa@rdslawpartners.com

8 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

TIME AND MANNER OF THE

DELIVERY OF VACANT
POSSESSION OF A PROPERTY
by Tan Gek Im & Tiew Yi Wen

T his article analyses the case of Koperasi Permodalan Felda

Malaysia Bhd v. Icon city Development Sdn. Bhd. & Anor [2023]
2 CLJ, where the court heavily discussed on the time and manner of
the delivery of vacant possession of a property in respect of sale and
purchase agreement not prescribed under the Housing Development
(Control and Licensing) Act 1966 and Housing Development (Control
and Licensing) Regulations 1989.

The Court of Appeal’s decision in this case is important as it emphasised on the following
salient points:

a) the importance of an architect’s letter for extension of time, the elements required
for an architect’s letter to validly extend the time required for a developer to deliver
vacant possession to its purchasers,
b) a claim for extension of time by a developer must be validly justified, and
c) the onus to prove damages lies on the party claiming the damages and the two
elements’ requirements be met as set out in the Cubic case.

Background Facts

Eight properties have been purchased by the appellant from the respondents (“the
said Properties”). The first respondent is the developer of the development project
which the said Properties were erected while the second respondent was the architect
for the development project. Pursuant to the sale and purchase agreements (“the
SPA”) entered between the appellant and the first respondent for the purchase of
the said Properties, it was provided that vacant possession of the said Properties
shall be delivered to the appellant on or before 4th of June 2015. However, the vacant
possession of the said Properties were not delivered on or before 4th of June 2015 as
provided for under the SPA.

On 30 December 2015, the first respondent issued a letter to the appellant to inform
that the vacant possession of the said Properties is ready to be delivered, despite the
unavailability of the Certificate of Completion and Compliance (“the CCC”) as the

LEGAL INSIGHT 9
 essential amenities such as water connection, electricity connection and full access road
were not ready by that time.

The first respondent claimed that the two letters issued by the second respondent
(architect), respectively dated 14 August 2015 and 21 December 2015 (“the Architect’s
Letters”), were issued in line with Clause 13.1.1 of the SPA. Authority has been granted to
the second respondent, via Clause 13.1.1 of the SPA, to grant extension of time to deliver
vacant possession of the said Properties in the event where there were causes incurred
beyond the first respondent’s control. The first respondent would not be liable for the
liquidated damages in the event there was an extension of time granted pursuant to
Clause 13.1.1 of the SPA. The first respondent relied on the Architect’s Letters to extend
the original contractual completion date, i.e., the date for delivery of the vacant
possession of the said Properties from 4 June 2015 to 15 January 2016.

The CCC was issued on 26 August 2016 which was subsequently forwarded to the
appellant by the first respondent on 2 September 2016.

The appellant claimed that valid vacant possession of the said Properties cannot be
delivered via the letter dated 30 December 2015, in view that the appellant could not
legally occupy the said Properties until the CCC was issued, which was almost 8 months
later, on 26 August 2016. The appellant opined that the liquidated damages shall be
calculated until 26 August 2016. An action was pursued by the appellant in the High
Court against the respondents.

The appellant further claimed that there was a conspiracy between the first and second
respondents, as the second respondent had issued the letter for extension of time in
favour of the first respondent.

The High Court’s Decision

The appellant’s claim was dismissed by the High Court Judge after a full trial and the
rationales provided were as follows:

1. The appellant had no claim against damages in relation to the late delivery of vacant
possession of the said Properties as a valid extension of time has been granted to the
first respondent by the second respondent;

2. Pursuant to the terms in the SPA, it was not necessary for vacant possession of the
said Properties to be delivered at the same time of the issuance of the CCC. Hence,
there was no breach on the first respondent by handing over the vacant possession
without the issuance of the CCC;

10 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

3. The Architect’s Letters issued by the second respondent were in order and thus, there
was no violation of his fiduciary duty as the project architect;

4. The appellant failed to establish the existence of conspiracy between the respondents;
and

5. The extension of time which was granted by the second respondent was based on
circumstances which was allowed under the SPA.

Hence, the appeal by the appellant.

The Appellant’s Submission

In the Court of Appeal, the appellant submitted the following points:

1. The issues, disputes as referred to in the Architect’s Letters between the first
respondent and the contractor deemed to be a cause which fall under the ambit
of the first respondent and hence, shall not be deemed as something beyond the
control of the first respondent as provided under Clause 13.1.1 of the SPA;

2. The Architect’s Letters were not issued in accordance with the provision under the
SPA;

3. The Architect’s Letters were deemed to be a result of conspiracy between the

respondents, for the first respondent to escape its liability from the payment of
liquidated damages due to the first respondent’s late delivery of vacant possession;

4. In view that the Architect’s Letters were deemed to be invalid or inapplicable, the
extension of time granted to the first respondent was not valid and hence, the first
respondent has failed to discharge its contractual liability in relation to delivery of
vacant possession of said Properties to the appellant on or before 4th of June 2015
and is liable to pay liquidated damages to the appellant;

5. The cause for the delay, which was the financial difficulty allegedly faced by the
original main contractor was not a valid cause, and shall not fall under “any other
causes beyond the developer’s control” within the ambit of Clause 13.1.1 of the SPA;

6. The first respondent has failed to exercise its control over the original main contractor
to avoid unnecessary continue delays;

7. There is conspiracy between the respondents, as via the issuance of the Architect’s
Letters, the first respondent denied its obligation to pay the purchasers of the

LEGAL INSIGHT 11
 development project the liquidated damages due to delay in delivery of the vacant
possession; and

8. The Architect’s Letters are wrongfully and improperly issued by the second
respondent, as the Architect’s Letter were not extensions of time under the SPA and
hence, it is deemed as the second respondent’s breach of duty of care towards the
purchasers, which includes the appellant.

The First Respondent’s Contentions

The First Respondent contended as follows:

1. The extension of time granted to the first respondent was by the second respondent’s
letters pursuant to Clause 13.1.1 of the SPA, which extended the date of delivery of
vacant possession until 15 January 2016;

2. A letter dated 30 December 2015 has been issued to inform the appellant that the
vacant possession of the said Properties is ready to be delivered, and upon the expiry
of the 14 days from the date of the said letter, vacant possession will be deemed
delivered to the appellant;

3. Pursuant to Clause 13.1.1 of the SPA, the first respondent relied on the Architect’s
Letters, which granted an extension of the original contractual completion date
until 15 January 2016;

4. The cause of delay in delivering vacant possession, which was the issue arising
between the first respondent and the main contractor has been laid down under the
Architect’s Letters and reference to Section 176 of the Companies Act 1965 has been
made; and

5. The CCC of the said Properties has been forwarded to the appellant via letter dated
2 September 2016.

The Second Respondent’s Contentions

The Second Respondent submitted as follows:

1. There was no duty of care owed to the appellant in view that they were merely the
architect for the said project; and

1 499 U.S. 340 (1991) 2. There was no conspiracy between the respondents.
2 (2012) 287 ALR 403

12 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

The Court of Appeal’s Decision

The main dispute alleged by the appellant
There are no disputes on the following submissions by is in relation to Clause 13 of the SPA, which
the parties: illustrates the time and manner of the
delivery of vacant possession.
1. The contractual completion date falls on 4 June 2015
(“the Contractual Completion Date”) and hence,
the first respondent is contractually obliged to
deliver the vacant possession of the said Properties on the Contractual Completion
Date; and

2. The vacant possession of the said Properties were not delivered to the appellant on
the Contractual Completion Date.

The main dispute alleged by the appellant is in relation to Clause 13 of the SPA, which
illustrates the time and manner of the delivery of vacant possession.

Pursuant to Clause 13.1.1 of the SPA, vacant possession of the properties shall be delivered
by the first respondent within 36 months from the date of the period of approval or
the extended period of approval (“the Specified Period”), unless in the opinion of the
architect, the completion or delivery of vacant possession is delayed due to exceptional
causes as provided by the clause itself, then the architect is entitled to grant a fair and
reasonable extension of time.

However, if the first respondent fails to deliver the vacant possession within the Specified
Period, the first respondent is obliged to pay to the appellant, liquidated damages at the
rate of 10% of the purchase price per annum on daily basis pursuant to Clause 13.1.2 of
the SPA, calculating from the Specified Period to the actual date of delivery of the vacant
possession of the said Properties to the appellant.

The appellant contended that the extension of time granted under the Architect’s
Letters, which allows for the delivery of vacant possession to be extended until 15
January 2016 is invalid.

The Validity of the Architect’s Certificates as Certificates

of Extension of Time

The Court of Appeal (COA) considered that the learned High Court Judge has erred
in construing the Architect’s Letters as valid, reasonable instrument for the grant of
extension of time under the SPA. Via the interpretation of the Architect’s Letters, it

LEGAL INSIGHT 13
 is apparent that no reference was made to the SPA, specifically on Clause 13.1.1 of
the SPA which was heavily relied upon by the first respondent. Further, there was no
mention that the architect opined that the events mentioned under the Architect’s
Letters were beyond the first respondent’s control or fall within any events pursuant
to Clause 13.1.1 of the SPA or were deemed as force majeure events.

In view of the above, the COA opined that the Architect’s Letters are not valid
Certificates of Extension of Time as they have failed to justify the first respondent’s
breach of contractual obligation, i.e., the failure to deliver the vacant possession of the
said Properties within the Specified Period.

Further, the COA submitted that there are no merits in the first respondent’s claims,
in view that the breaches were caused by the main contractor’s restructuring exercise
which does not fall under force majeure events, nor it was beyond the first respondent’s
control. The COA referred to the case of Araprop Development Sdn. Bhd. v. Leong
Chee Kong & Anor [2008] 1 CLJ 135 (“Araprop Development”), where the COA
highlighted that since the appellants’ sub-contractors were under the control of the
appellant, delay caused by the sub-contractors would not be deemed as beyond the
appellant’s control. The appellant could have terminated the sub-contractors when
it was apparent that the sub-contractors would not be able to complete the tasks
within time.

Similarly in this current case, the first respondent could not utilise the main contractor’s
defaults to gain an extension of time by submitting that it was a force majeure event
because the first respondent would have sufficient control over the main contractors to
ensure the works are done within the Specified Period.

The Manner of the Delivery of the Vacant Possession

Pursuant to Clause 13.2.2 of the SPA, to determine when vacant possession of the said
Properties have been delivered to the appellant, the appellant would be deemed to have
taken the vacant possession of the properties within 14 days from the date of the letter,
which would be 13 January 2016.

The COA further referred to the previous Schedule H of the Housing Development
(Control and Licensing) Regulations 1989, which provided that the delivery of vacant
possession shall not give the purchaser the right to occupy, and the purchaser shall not
occupy the said Parcel until such time as the Certificate of Fitness for Occupation (now
known as the CCC) for the said Building is issued. The COA opined that Clause 13 of the
SPA merely requires the first respondent to physically complete the works and provide
a certificate of practical completion by the architect which then would be deemed
sufficient to provide the vacant possession.

14 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

The Proof of Damages

Section 75 of the Contracts Act 1950
Section 75 of the Contracts Act 1950 provided that provided that reasonable compensation
reasonable compensation shall not exceed the amount
shall not exceed the amount stated in
stated in the contract. On this point, the COA referred to
the case of Cubic Electronics Sdn. Bhd. (In liquidation) the contract.
v Mars. Telecommunications Sdn Bhd [2019] 2 CLJ 723
(“Cubic”). In the case of Cubic, the court concluded that
the initial onus shall lie on the innocent party to firstly to show that there was a breach
of contract and secondly, the contract contains a clause specifying a sum to be paid
upon such a breach of contract. Upon the establishment of these two elements, the
innocent party would be entitled for the sum not exceeding the amount provided for
under the contract. The burden of proof then falls on the defaulting party in the event
there is a dispute as to the reasonableness of the compensation.

The COA found that the appellant has successfully satisfied the two elements required
under Cubic as firstly, there was a breach of the contract, i.e., the late delivery of the
vacant possession of the said Properties and secondly, the SPA has provided for a clause
specifying a sum to be paid upon the breach. Under the SPA, the agreed rate for liquidated
damages is 10% per annum of the purchase price, which is in line with the liquidated
damages awarded for under the statutory prescribed sale and purchase agreements.
Hence, the COA views that such rate of liquidated damages is fair and reasonable.

The Conspiracy Claim

Regarding the conspiracy claim raised by the appellant, the COA considered that the
extension of time granted by the second respondent was merely performance of its
contractual duty, which shall not be deemed as an overt act. Further, there was lack
of credible evidence supporting the appellant’s contention, except for the Architect’s
Letters which were considered insufficient. Thus, the COA agreed with the High Court
Judge that the appellant has failed to prove the essential elements for the tort of
conspiracy between the first and second respondents.

The Court of Appeal’s Decision

To summarise, the COA allowed for the appellant’s appeal against the first respondent
in parts and ordered the first respondent to pay the appellant the late delivery of vacant
possession, calculated from 5 June 2015 until 30 December 2015, and the first respondent
shall pay an interest on the liquidated damages at the rate of 5% per annum from the
date of judgment of the High Court until full and final payment. The appeal against the
second respondent was dismissed.

LEGAL INSIGHT 15
 Conclusion

It is of utmost significant for the parties, especially when entering into sale and purchase
agreements of properties which are not prescribed under the statute to examine the
clauses in abundance of caution to ensure that the clauses introduced in the sale and
purchase agreements are fair and reasonable.

As observed from the above case, the court will prioritise the freedom of contract without
interfering much on the clauses agreed upon by the parties. Furthermore, a claim of
extension of time by the developer must be validly proven and properly extended by the
architect. A letter of extension of time prepared insufficiently by an architect could be
seen as unqualified to certify the extension of time for the development, which could
put the developer at jeopardy.

Tan Gek Im | Partner

Conveyancing & Real Estate Transactions
gekim@rdslawpartners.com

Tiew Yi Wen | Associate

Conveyancing & Real Estate Transactions
yiwen.tiew@rdslawpartners.com

16 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

POST-REPEAL ENTITLEMENT TO
GST INPUT TAX REFUND –
THE CASE OF LENDLEASE
DEVELOPMENT SDN BHD (2021)
by Amira Rafie

T he goods and services tax (“GST”) is a broad-based

consumption tax based on a value-added concept. In Malaysia,
GST was introduced by the Parliament through the enactment
of the Goods and Service Tax Act 2014 ("GST Act") with effect
from 1.4.2015. The GST Act was subsequently abolished through
the enactment of the Goods and Service (Repeal) Act 2018 (“GST
Repeal Act”) with effect from 1.9.2018.

GST was normally charged at a standard rate of 6% levied on transactions in a

commercial chain from production to final consumer. At every stage along the
chain, a tax invoice is issued whereby the buying entity will have to pay 6% GST.
Because it is a consumption tax, GST is thereafter refunded to all parties in the chain
other than the final consumer in that chain. It is clear that GST was not meant to
be a cost or expense to the intermediaries in the chain. Reference is made to the
Parliamentary Hansard (Bill.16, 3.4.2014) where the Deputy Minister of Finance at
the time made the following statement:

“Seperti mana ahli-ahli Yang Berhormat sedia maklum, GST bukan merupakan
kos kepada perniagaan. Ini disebabkan kerana apa-apa GST yang dibayar
ke atas input boleh dituntut semula sebagai kredit daripada kerajaan.
Sehubungan itu, peruntukan mengenai kebenaran pada orang kena cukai untuk
memotong cukai input daripada cukai outputnya dan mengehadkan amaun cukai
input sebagai kredit untuk bekalan tertentu juga telah disediakan. Kemudahan
yang disediakan ini juga akan menghapuskan elemen cukai atas cukai seperti
yang terdapat dalam sistem cukai jualan dan cukai perkhidmatan sekarang. Ini
bermaksud, pengguna akan membayar harga barang dan perkhidmatan yang lebih
kompetitif dan telus.”

The repeal of the GST Act brought about a lot of procedural and legal issues, many
of which had to be ventilated before the courts. A point of serious grievance of
many taxpayers was the rejection of input tax claims or refund claims made in the

LEGAL INSIGHT 17
 aftermath of the repeal. In many of these cases, the Customs Department cited
Section 8(1) of the GST Repeal act as the basis for rejecting such claims whereby
the claims were made 120 days after the repeal of the act.

Section 8(1) of the GST Repeal Act 2018 sets out the following:

“Claim for input tax and refund

8. (1) Any input tax under the repealed Act which has not been claimed before the
appointed date shall be claimed in the return furnished under paragraph 6(2)
(a) within one hundred and twenty days from the appointed date, and that
claim shall be considered as the final claim for all input tax.”

This provision raises questions on the legality of such restrictions and clear
imposition of limitations on the existing rights of taxpayers. It is important to note
that had it not been for the GST Repeal Act, a taxpayer would have the option to
make the claim for input tax credit refund within 6 years from the date of supply or
importation pursuant to Section 38(3) of the GST Act read together with Paragraph
38(4) of the GST Regulations 2014. Alternatively, a claim for refund of taxes
overpaid or erroneously paid can be made within 6 years from the overpayment or
entitlement pursuant to Section 57(1)(a) of the GST Act.

The above was explored in the case of Lendlease Development Malaysia Sdn Bhd v
Ketua Pengarah Kastam & Anor. The High Court’s decision in this case is regarded
as the first of its kind in Malaysia. The taxpayer is in the business of project
management and development management. In 2018, the taxpayer had incorrectly
accounted for GST to the Customs in the GST returns filed by inadvertently excluding
two tax invoices amounting to approximately RM1.7 million for the expatriate staff
labour cost which was incurred in the course of the taxpayer’s business. As a result
of this, the taxpayer had over accounted for GST by not offsetting the input tax
against the output tax.

In June 2020, the taxpayer made an application to the Director General of Customs,
via a letter, to claim for the refund of input tax, pursuant to Section 57 of the GST
Act read together with Sections 4(1)(b) and 8(2) of the GST Repeal Act.

Section 4(1)(b) of the GST Repeal Act 2018 clearly provides that any GST that was
overpaid may be refunded or remitted as if the GST Act 2014 had not been repealed.
The relevant extract of Section 4(1)(b) is reproduced below:

“Continuance of liability, etc.

18 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

4. (1) Notwithstanding the repeal of the Goods and Services Act 2014—
(a) any liability incurred may be enforced; or
(b) any goods and services tax due, overpaid or erroneously paid may
be collected, refunded or remitted,
under the repealed Act as if the repealed Act had not been repealed.”

The same was also reflected in the Goods and Services Tax (Repeal) Bill 2018:

“Subclause 4(1) seeks to provide that any liability incurred may be enforced or
any goods and services tax due, overpaid or erroneously paid may be collected,
refunded or remitted under the repealed Act as if the repealed Act had not
been repealed.”

Section 8(2) of the GST Repeal Act also provides that:

“(2) Subject to verification, audit or investigation, any refund for –

(a) any input tax under section 38 of the repealed Act which had
not been made by the Director General on the appointed date; or
(b) any input tax relating to the claim made under subsection (1),
shall be paid by the Director General within 6 years from the
appointed date.”

Together with the application, the taxpayer also submitted the relevant
documentations including the proof of payment being incurred for the expatriate
staff labour cost. However, the taxpayer’s application for refund of input tax
credit was rejected by the Customs. The Customs’ basis for rejecting the taxpayer’s
application was that the application was made out of time. The Customs took the
view that a taxpayer must submit any claims for input tax credit strictly within 120
days from the appointed date of the repeal act. This was the crux of the application
for judicial review brought before the High Court in Kuala Lumpur.

This dispute begs the question: Is Section 8(1) of the GST Repeal Act, on its own,
capable of limiting the rights of a taxpayer to seek refund which he is otherwise
entitled to had it not been for the repeal of the Act? In this instance, a right to
refund which originally extends for 6 years had been cut short to only 120 days. The
Customs took the view that all and every claim relating to any business operations
during the GST era must be submitted as part of the final GST return within 120 days
from the appointment date. This appears to be a very limiting and restrictive reading
of the GST Repeal Act – almost as if to wipe the slate clean within 120 days.

Alas, business operations do not function that way. Errors, amendments,

adjustments or revision to any tax computation often occur months or years after

LEGAL INSIGHT 19
 returns are filed. The taxpayer contended that the repeal of the GST Act 2014
should not affect the Applicant’s existing rights to claim the refund of the input
tax credit. Reference is made to Section 30(1) of the Interpretation Acts 1948 and
1967 which states:

“30 Matters not affected by repeal

(1) The repeal of a written law in whole or in part shall not —

(a) affect the previous operation of the repealed law or anything duly
done or suffered thereunder; or
(b) affect any right, privilege, obligation or liability acquired,
accrued or incurred under the repealed law; and..”

Naturally, Section 4(1)(b) and Section 8 of the GST Repeal Act 2018 must be
construed harmoniously having regard to Section 30(1)(b) of the Interpretation
Acts 1948 and 1967 which which protects an acquired and existing rights as
recognized by the Supreme Court in National Land Finance Co-operative Society
Ltd v Director General of Inland Revenue [1993] 4 CLJ 339:

“…the provisions of the Act must be construed having regard to the

Interpretation Acts of 1948 and 1967, wherein s. 30 of the Interpretation Act
1967 protects an acquired and existing right.”

Considering the above provisions and legal principles, the High Court in
Lendlease Development took the view that the Customs decision to reject the
taxpayer’s claim for input tax credit clearly goes against the spirit and object
of the GST Act as it increases the cost to the taxpayer’s business. Notably the
Federal Court in Palm Oil Research and Development Board Malaysia & Anor v.
Premium Vegetable Oils Sdn Bhd & Another Appeal [2005] 3MLJ 97 held that:

“When construing a taxing or other statute, the sole function of the court
is to discover the true intention of Parliament. In that process, the court
is under a duty to adopt an approach that produces neither injustice nor
absurdity; in other words, an approach that promotes the purpose or object
underlying the particular statute albeit that such purpose or object is not
expressly set out therein.”

The learned High Court judge also stated that by refusing the taxpayer’s input
tax credit refund claim, the Customs had denied the taxpayer’s vested rights
and had acted illegally in making its decision. The High Court also pointed out
the error in the Customs’ reading of section 8(1) of the GST Repeal Act whereby
the Customs took the view that the taxpayer’s last return date (i.e. the 120-day

20 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

time limit) shall be the final claim for all input tax. The learned High Court judge
explained that the word ‘final claim’ in Section 8(1) means that the return shall
be the last GST return to be submitted under the GST regime. In this regard, the
High Court judge also placed consideration on the Customs’ own “GST Guide on
Tax Invoice, Debit Note, Credit Note and Retention Payment after 1 September 2018”
which clearly allows adjustment on a final GST return to be made.

The High Court noted that all the relevant information and documents have
been submitted to the Customs and any person who considered these supporting
documents, applied their mind to the circumstances of the Applicant’s case and
considered the purpose of GST would have allowed the Applicant’s claim for input
tax credit refund.

In deciding the above, the learned High Court judge quashed the decision of the
Director General of Customs and made a clear declaration that the Applicant is
entitled to claim ITC Refund for the sum of RM 1.7million in accordance with the
purpose and spirit of the GST Act 2015 and pursuant to Section 4(1)(b) and 8(1) of
the GST Repeal Act.

This is a welcomed decision and has since been applied to other cases before the
High Court involving the same issue. In Panasonic Homes Malaysia Sdn Bhd v
Menteri Kewangan Malaysia, the taxpayer being aware that they required more
time to finalise all the necessary final claims for GST, submitted an application for
extension of time in accordance with the Customs’ own administrative and policy
requirements as detailed in the Amendments to the Director General’s Decision
1/2018 & 3/2018. The administrative guideline provides:

“2. Submission of Goods and Service Tax Return

2.1 According to Section 6 and 8 of the GST (Repeal) Act, any person registered
under the repealed GSTA is required to submit GST return for the last taxable
period and pay the tax within 120 days from 1st September until 29th of
December 2018. Similarly, any input tax credit allowable shall be claimed
within 120 days from 1st September until 29th of December 2018.

2.2 Application for extension of time to account for tax or claim input tax
after the expiry of 120 days, shall be made to the Director General for his
approval.”

Although this is merely the Customs’ own policy decision and not a requirement
of an express statutory provision; the taxpayer complied, nonetheless. Thereafter,
the taxpayer submitted their final GST return 13 days after 29.12.2018. The Customs

LEGAL INSIGHT 21
 initially allowed the claim. However, 6 months later, the Customs abruptly issued
a bill of demand to claw back the sum that was refunded to the taxpayer and
further imposed a penalty on the taxpayer. The Customs took the view that the
earlier refund was made erroneously. Following unsuccessful appeals made to
the Customs, the aggrieved taxpayer made a further appeal to the Minister of
Finance pursuant to Section 62 of the GST Act. The High Court, ruling in favour
of the taxpayer, made clear that the Minister of Finance had failed to exercise his
discretion to consider that this is an appropriate case where ITC claim should be
allowed, especially considering that the Director-General of Customs had failed
to properly consider and respond to the taxpayer’s request for extension of time.

Lendlease Development is the first case of its kind in Malaysia where the scope
of Section 4(1)(b) and Section 8 of the GST Repeal Act 2018 was examined by our
courts. This decision also reminds us that the mere repeal of an Act does not leave
an aggrieved taxpayer without any recourse. The repeal of an Act is also not an
excuse for public authorities to limit and take away an existing right of a taxpayer.
This case makes it clear that a taxpayer is entitled to and vested with the rights to
claim for any GST that has been overpaid or erroneously paid within the stipulated
time period of 6 years.

Amira Rafie | Associate

Tax, SST & Customs
amirarafie@rdslawpartners.com

22 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

THE MALAYSIAN LEGAL SYSTEM

– CHRONICLES OF THE DUAL
JUSTICE SYSTEM
by Dharshini Sharma

Introduction

The Federal Constitution of Malaysia is the supreme law of the land and it lays down the
legal framework of this nation.

Malaysia is one of the few countries that is said to have

Malaysia's multi-ethnic and multi-
a ‘dual’ legal system, in which, both civil law, and to a
limited extent, Syariah law co-exist1 as provided for under
religious composition contributes to
Article 121(1) and (1A) of the Federal Constitution. its unique dual legal system, featuring
civil and Syariah Courts operating
Malaysia's multi-ethnic and multi-religious composition
within separate jurisdictions. While the
contributes to its unique dual legal system, featuring
civil and Syariah Courts operating within separate ideal scenario envisions a harmonious
jurisdictions. While the ideal scenario envisions a coexistence, conflicts often arise,
harmonious coexistence, conflicts often arise, revealing revealing the challenges inherent in this
the challenges inherent in this legal pluralism.
legal pluralism.
The existence of a dual legal system means Malaysia is
a nation that practises legal pluralism, where there are different systems of law and
courts that operate within their own separate jurisdictions. An ideal situation would
be for the courts of the dual system to operate without a conflict of jurisdictions or
authority. But, in reality, as this article will illustrate shortly, conflicts do arise.

The Malaysian legal system comprises two main types of courts: Civil Courts (High Court,
Court of Appeal, and Federal Court) directly established under the Federal Constitution,
and Syariah Courts established by State laws under the jurisdiction of respective
State legislatures pursuant to Article 74 read with the State List (List II) under the 9th
Schedule of Federal Constitution. However, it is crucial to note that Syariah Courts are
not standalone entities but are part of the administration of Islamic matters.

State legislatures, empowered by the State List, have authority over the establishment
of Syariah Courts and legislation on Islamic matters. However, the jurisdiction of Syariah
Courts is limited to individuals professing the religion of Islam, and their authority is
confined to matters specified in the State List. Additionally, for offenses related to these 1 Article 121 Federal Constitution
matters, the Syariah Courts can only exercise jurisdiction if authorized by federal law. of Malaysia.

LEGAL INSIGHT 23

2 [2008] 7 MLJ 779.
3 [2018] 1 MLJ 545.
4 Article 121(1A) Federal
Constitution of Malaysia.
5 [1991] 3 MLJ 487.
6 [1992] 1 MLJ 1.
7 Dalip Kaur v Pegawai Polis
Daerah, Balai Polis Daerah,
Bukit Mertajam & Anor [1992] 1
MLJ 1 at p 1 para 1.
24 LEGAL INSIGHT
Article 121 (1A) of the Federal Constitution
On 10 June 1988, Article 121 of the Federal Constitution underwent an amendment,
introducing clause (1A) to prevent conflicts between Civil and Syariah courts. This clause
explicitly states that Civil Courts have no jurisdiction over matters within the purview
of Syariah Courts. However, it is essential to clarify that Syariah Courts' jurisdiction is
limited to cases involving individuals professing Islam.
Contrary to the misconceptions of clause (1A), disputes with Islamic law elements are
not exclusively under Syariah Courts' jurisdiction. Cases like Dato' Kadar Shah bin Tun
Sulaiman v Datin Fauziah binti Haron2 and Indira Gandhi a/p Mutho v Pengarah
Jabatan Agama Islam Perak & Ors and other appeals3, emphasises that notwithstanding
Article 121(1A), Syariah Courts are inferior courts in relation to the secular Civil Courts;
and decisions of the Syariah Courts are subject to judicial review by the Civil Courts. This
conflict of jurisdictions as mentioned earlier, can be illustrated using various cases that
will be discussed throughout this article.4
The case of Ng Wan Chan
In the High Court case of Ng Wan Chan v Majlis Agama Islam Wilayah Persekutuan
& Anor (No 2)5, the court referenced the new clause (1A) of Article 121 of the Federal
Constitution. Ng Wan Chan, a non-Muslim widow, sought a declaration that her
deceased husband, Lee Siew Kee, was a Buddhist. The Islamic law enactment applicable
did not grant the Syariah Court jurisdiction to determine a person's religion at the time
of death. During an interlocutory injunction hearing, the Islamic Religious Council
challenged the High Court's jurisdiction under clause (1A) of Article 121. Eusoff Chin
J (as he then was), dismissing the objection and held that in the absence of explicit
jurisdiction for the Syariah Court, the High Court had the authority to decide the issue.
The court emphasized that the Syariah Court's jurisdiction is explicitly granted by state
law and without such authority, it cannot imply jurisdiction.
The case of Dalip Kaur
Following the Ng Wan Chan decision, Dalip Kaur v Pegawai Polis Daerah, Balai
Polis Daerah, Bukit Mertajam & Anor6 became the first Supreme Court judgment
after the 1988 constitutional amendment touching on Article 121(1A) of the Federal
Constitution. Dalip Kaur sought a declaration that her son, at the time of his death in
1990, was not a Muslim and/or had renounced Islam, entitling her to his body. There
was, however, no dispute on jurisdiction.7 Hashim Yeop A Sani CJ (Malaya) affirmed
the Civil Court's jurisdiction, stating that Article 121(1A) did not strip the Civil Court's
authority to interpret state laws for Muslim law administration. Emphasising the
 ADVOCATES & SOLICITORS

need for clear provisions in state enactments, the

court highlighted that the Civil Court could interpret This contradicted the earlier Dalip Kaur
written laws but urged explicit provisions to avoid ruling emphasising the Civil Court's
interpretation issues.8 The judgment also noted that
jurisdiction to interpret state laws.
the opinion of the fatwa committee that a convert
executing a deed poll renouncing Islam can be The Federal Court's reliance on implied
considered murtad (apostate) is only valid for the State jurisdiction was criticised as unacceptable,
of Kedah. The court recommended clear provisions, asserting that the Syariah Court must
such as maintaining a register of converts, to facilitate
derive jurisdiction expressly.
the Civil Court's role in declaring a person's Muslim
status under the Enactment.

The case of Soon Singh

In Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM)
Kedah & Anor9, the Federal Court considered Article 121(1A) in a jurisdictional dispute.
Soon Singh, raised as a Sikh, converted to Islam as a minor without his widowed
mother's knowledge.10 After embracing Sikhism again, he sought a declaration in
the Kuala Lumpur High Court that he was no longer a Muslim. The Islamic Religious
Department Kedah objected, arguing the Syariah Courts had jurisdiction. The High
Court upheld the objection and dismissed the application. Despite the absence of
explicit jurisdiction in the Kedah State Enactment, the Federal Court held that the
Syariah Court's jurisdiction on conversion out of Islam could be implied from provisions
on conversion into Islam.11

This contradicted the earlier Dalip Kaur ruling emphasising the Civil Court's jurisdiction
to interpret state laws. The Federal Court's reliance on implied jurisdiction was criticised
as unacceptable, asserting that the Syariah Court must derive jurisdiction expressly.
Additionally, the court's argument that jurisdiction could be implied from the State
legislative list was deemed illogical, as legislative items merely serve as heads of
potential legislation and require specific enactment.

The case of Latifah Mat Zain

In Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor,12 following the death of 8 Ibid. at p 7 paras E–H.
the deceased, the deceased’s daughter from his second wife filed a petition for letters 9 [1999] 1 MLJ 489.
of administration of the deceased's estate. A dispute arose over the moneys in joint 10 Soon Singh a/l Bikar Singh v.
accounts of the deceased with the appellant. Pertubuhan Kebajikan Islam
Malaysia (PERKIM) Kedah &
Anor [1999] 1 MLJ 489 at p 489
The appellant claimed the money as gift (‘hibah’) under the Islamic law, but the paras D–G.
High Court ruled no hibah occurred. The Court of Appeal, deeming it a matter within 11 Ibid. at p 496 paras G–H.

Syariah Court jurisdiction, invoked Article 121(1A) and declared that the Civil Court 12 [2007] 5 MLJ 101.

LEGAL INSIGHT 25

13 Latifah bte Mat Zin v
Rosmawati bte Sharibun &
Anor [2007] 5 MLJ 101 at p 117
para 49.
14 Ibid. at p 117 para 49.
15 [2008] 7 MLJ 779.
16 SIS Forum (Malaysia) v Kerajaan
Negeri Selangor (Majlis Agama
Islam Selangor, intervener)
[2022] MLJU 171 ; [2022] 3 CLJ
339.
17 Ibid., at pp 358 – 359, 365 and
372 (CLJ) paras 33–34, 62 and
92–93.
26 LEGAL INSIGHT
orders are void. In this case, the Federal Court had clearly said that if one of the
parties is not a Muslim, then an application to the Syariah Court cannot be made.13
This is because, if the non-Muslim party is the would-be plaintiff, they would not be
able to commence proceedings in the Syariah Court and if the non-Muslim party is
the would-be defendant, they would not be able to appear to defend themselves
as they do not have the locus to do so.14 Abdul Hamid Mohamad FCJ presiding in
this case held that, if in a case in the Syariah Court, a civil law issue i.e. land law or
companies law arises, the party raising the issue should file a case in the Civil Court
for the determination of that issue which decision should be applied by the Syariah
Court in deciding the case.
The case of Kadar Shah
In Dato' Kadar Shah bin Tun Sulaiman v Datin Fauziah binti Haron,15 the defendant
appealed the dismissal of her application to strike out the plaintiff's statement of claim
regarding a USD50,000 deposit in the United States. The plaintiff sought a declaration
of trust, but the defendant argued that the subject matter fall under Syariah Court’s
jurisdiction. In this case, Judge Mohd Hishamuddin Yunus (as he then was) disagreed
with the Latifah bte Mat Zin precedent, stating that issues were intertwined, making
compartmentalisation impractical. His Lordship emphasised the superior status of the
High Court over the Syariah Courts and asserted that where there are conflicts, the High
Court proceedings must take precedence as they are an institution duly constituted
under the Federal Constitution.
Conclusion
In the recent Federal Court case in SIS Forum (Malaysia) v Kerajaan Negeri Selangor16
Tengku Maimun Tuan Mat CJ very clearly held that the Judiciary’s inherent power of
review cannot be abrogated or delegated to some other body and that section 66A of
the Administration of the Religion of Islam (State of Selangor Enactment) 2003 (ARIE
2003) was unconstitutional and void, as it was a provision which the State Selangor
Legislative Assembly had no power to make:17
As such, it is observed that under Article 121(1A) read with Item 1 of the State List in the
9th Schedule of the Federal Constitution, Syariah Courts are in fact not parallel to or of
the same status with the Civil Courts. Under the scheme of the Federal Constitution,
Civil Courts take precedence over Syariah Courts. Article 121(1A) merely excludes the
High Court’s jurisdiction pertaining to matters that are exclusively within the jurisdiction
of the Syariah Court. It is quite clear that Article 121(1A) read with Item 1 of the State List
in the 9th Schedule of the Federal Constitution neither establishes nor confers additional
jurisdiction on the Syariah Court as it merely defines the boundaries of the jurisdictions
of the Syariah Courts.
 ADVOCATES & SOLICITORS

It is only when a certain jurisdiction has been explicitly

and exclusively conferred by State law or Federal law on The jurisdiction of the Syariah Courts is
the Syariah Court, would Article 121(1A) apply to exclude limited. The Syariah Courts also have no
the jurisdiction of the Civil Courts. The jurisdiction of the
power of judicial review. Instead, decisions
Syariah Courts is limited. The Syariah Courts also have no
power of judicial review. Instead, decisions of the Syariah of the Syariah Courts are subject to
Courts are subject to judicial review by the Civil Courts. judicial review by the Civil Courts. Hence,
Hence, it is prudent to ensure this separation of powers it is prudent to ensure this separation of
to avoid any encroachment on the other’s jurisdiction
or to avoid any abdication of judicial responsibility. The
powers to avoid any encroachment on
courts will have to deal with the complexity that arises the other’s jurisdiction or to avoid any
because in rare cases, there could be a conflict or overlap abdication of judicial responsibility.
of jurisdiction between the Civil Courts and the Syariah
Courts. Our courts will have to continue to clarify and
decide on difficult issues when it comes to the separation of power or jurisdiction
between the Civil Courts and the Syariah Courts to ensure the fundamental liberties of
Malaysians are safeguarded and the nation’s Constitution is upheld.

Dharshini Sharma | Associate

Tax, SST & Customs
dharshini@rdslawpartners.com

LEGAL INSIGHT 27
 UNVEILING THE GREY AREAS:
IN-HOUSE COUNSEL AND
LEGAL PROFESSIONAL PRIVILEGE
by Ling Siew Hui & Roshanth Aaron James

Introduction

Legal professional privilege refers to the principle whereby communications between

an advocate and solicitor and his client shall not be disclosed unless expressly waived.
The importance of legal professional privilege cannot be understated. The House of
Lords in R v Derby Magistrates’ Court, ex parte B; and another appeal [1996] AC
487 traced back the principle of legal professional privilege to the 16th century and
thereafter concluded:

“… a man must be able to consult his lawyer in confidence, since otherwise he might
hold back half the truth. The client must be sure that what he tells his lawyer will
never be revealed without his consent. Legal professional privilege is much more than
an ordinary rule of evidence, limited in its application to the facts of a particular
case. It is a fundamental condition on which the administration of justice as a
whole rests.”

This position holds true in Malaysian jurisprudence. In Public Prosecutor v Haji Kassim
[1971] 2 MLJ 115 Ong Hock Thye CJ (Malaya) succinctly held that:

“Legal professional privilege is founded on the principle that the conduct of legal
business without professional assistance is impossible and on the necessity, in order
to render such assistance effectual, of securing full and unreserved intercourse
between the two.”

The principle of legal professional privilege is framed as between an advocate and his
client. However, it is undeniable that the modern scope of the legal profession has
progressed beyond the historical stereotype of consisting almost entirely of private
practitioners at the Bar. In modern Malaysia, the legal profession has evolved to
include a significant number of in-house counsel as well.

The term “in-house counsel” is not strictly defined. It typically refers to lawyers
employed by a company who oversee the in-house legal affairs of the company. It
can be observed that nowadays many, if not most, multinational corporations and
government-linked corporations in Malaysia employ teams of in-house counsel.

28 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

In light of the prevalence of in-house legal counsel in Malaysia, this article explores
the applicability of the doctrine of legal professional privilege to communications
between in-house counsel and their employers within Malaysia’s current legal
framework. In particular, this article will consider the common law position and
the extent of its potential application to the Malaysian statutory framework.

The common law on “legal professional privilege”

The common law’s protection of confidential communications between in-house

counsel and their employers can be traced back to the English Court of Appeal
judgment in Alfred Crompton Amusement Machines Ltd v Customs and Excise
Commissioners [1972] QB 102. In this case, the English Court of Appeal held that
professional privilege attached to all communications between Customs and
Excise commissioners and their in-house counsel. Lord Denning’s decision read:

“They are, no doubt, servants or agents of the employer. For that reason Forbes
J. thought they were in a different position from other legal advisers who are in
private practice. I do not think this is correct. They are regarded by the law as in
every respect in the same position as those who practise on their own account.
The only difference is that they act for one client only, and not for several clients.
They must uphold the same standards of honour and of etiquette. They are
subject to the same duties to their client and to the court. They must respect
the same confidences. They and their clients have the same privileges.”

Lord Denning’s ratio has been cited with approval by apex courts throughout
the Commonwealth. The Australian High Court in Waterford v Commonwealth
of Australia [1987] 71 ALR 673 commented that “there is no reason to place
legal officers in government employment outside the bounds of legal professional
privilege”. Similarly, the Canadian Supreme Court in R v Campbell [1999] 1 SCR 565
also stated that “[employment] for an “in-house” government legal service does
not affect the creation of the character of [legal professional] privilege”.

In summary, the common law has been permissive in recognising the application
of legal professional privilege to in-house counsel, acknowledging that their
employers enjoy parallel entitlement to confidentiality in communications with
these advisers.

Legal Professional Privilege in Malaysia

In Malaysia, the principle of legal professional privilege is codified in statute

within sections 126 to 129 of the Evidence Act 1950 (“EA”). For the purposes of

LEGAL INSIGHT 29
 this article, it is sufficient to adopt Zawawi Salleh JCA’s summary definition of
sections 126 and 129 in Gideon Tan v Tey Por Yee and another appeal [2017] 1 MLJ
352 ("Gideon Tan”):

“[26] Section 126 provides that ‘no advocate’ is permitted, without his client’s
express consent, to disclose any communication made to him in the
course and for the purpose of his employment as such advocate by or on
behalf of his client, or to state the contents or condition of any document,
or to disclose any advice given, in the course or for the purpose of such
employment. Section 129 further provides that no person shall be compelled
to disclose to the court any confidential communication between him and
his ‘legal professional adviser’.”

The statutory codification of legal professional privilege significantly affects the

role of common law as an interpretive aid to the EA. This issue is highlighted in
Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2016] 10 CLJ
164 (“Bukit Lenang”). The main issue in Bukit Lenang was whether common
law litigation privilege (a subset of legal professional privilege) protected certain
disputed documents. In its judgment, the Court of Appeal held that:

“[31] … We agree with the submission of learned counsel for the respondent
that by virtue of s. 3 of the Civil Law Act 1956, the common law position is
displaced by s. 126 of the EA 1950.”

In theory, the Court of Appeal’s judgment would have pervasive effect – by stating
that section 126 EA sought to displace the common law principle, the Court of
Appeal sought to sever the EA from the body of common law that preceded it.
This was recognised in the subsequent Court of Appeal decision in Wang Han Lin
& Ors v HSBC Bank Malaysia Bhd [2017] 10 CLJ 111 (“Wang Han Lin”):

“[43] In relation to the primary reasoning in [Bukit Lenang], there is an effective

excision of litigation privilege on the grounds that it is premised on the
English common law, which is inapplicable in our jurisdiction in light of
section 126 of the EA and section 3 of the Civil Law Act. Section 126 of the
EA, it was held, applies only to legal professional privilege.”

Wang Han Lin would go on to expressly overrule and temper the reach of the Bukit
Lenang judgment. Wang Han Lin reinstated the position of litigation privilege on
the basis that litigation privilege “in no manner derogates from or conflicts with
the provisions for privilege in sections 126 to 129 of the EA”. In doing so, Wang Han
Lin had introduced a “no derogation or conflict” test in Malaysia, whereby the
common law on legal professional privilege is only applicable where there is no

30 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

derogation or conflict from the express provisions of

the EA.
Applying this test, in order to extend legal professional
privilege to communications between in-house counsel
and their employers, the relevant common law must
not derogate or conflict with the express provisions of
the EA.
In-House Counsel and Legal
Professional Privilege
The term “advocate” is not defined in the
EA. However, section 3 of the Interpretation
Act 1948 and 1967 defines “advocate” as “a
person entitled to practise as an advocate or
as an advocate and solicitor under the law in
force in any part of Malaysia”.

This section explores the 2 possible approaches Malaysian courts may adopt
regarding this issue and their respective outcomes.

The Strict Approach

With reference to the summary definition proposed in Gideon Tan, section 126
specifically uses the term “advocate”. The term “advocate” is not defined in the
EA. However, section 3 of the Interpretation Act 1948 and 1967 defines “advocate”
as “a person entitled to practise as an advocate or as an advocate and solicitor under
the law in force in any part of Malaysia”. Logically, this can only be taken to mean
advocates and solicitors registered under the Legal Profession Act 1976 and its
Sabah and Sarawak counterparts. This may be read as a wilful exclusion of non-
practitioners, including in-house counsel who are not in practice per se.

On the other hand, the term “legal professional adviser” is also undefined in the
EA and the Interpretation Act 1948 and 1967. The term “legal professional adviser”
in section 129 EA has not come under judicial scrutiny in Malaysia as at the time of
writing of this article. However, the Singapore Court of Appeal in ARX v Comptroller
of Income Tax [2016] SGCA 56 (“ARX”), embarking upon a historical review of
the Indian Evidence Act, held that the term “legal professional adviser” does not
encompass in-house counsel:

“[23] [Singapore’s] EA traces its history to the Indian Evidence Act of 1872 (Act 1
of 1872) (India) (“Indian EA 1872”) (see Skandinaviska at [28]–[30]). Section
126 of the Indian EA 1872 (the legislative precursor of s 128 of [Singapore’s]
EA) enjoined any “barrister, attorney, pleader, or vakil” from disclosing any
communication made to him by his client in the course of his employment…
Section 129 of the Indian EA 1872 (the predecessor to s 131 of our EA),
however, uses the composite expression “legal professional adviser”… as
shorthand for the four occupations listed individually in s 126 of the Indian

LEGAL INSIGHT 31
 EA1872 (see Evidence and the Litigation Process (LexisNexis, 3rd Ed, 2010)
(“Pinsler 2010”) at para 14.17).”

Based on a strict interpretation of the EA and the terms used therein, the “no
derogation or conflict test” must fail because in-house counsel lies outside the
scope of the terms used in the EA. On this interpretation, legal professional privilege
does not extend to in-house counsel as a matter of legislative intent.

The Alternative Approach – ARX v Comptroller of Income

Tax [2016] SGCA 56 (“ARX”)

In ARX, the Singaporean Court of Appeal arrived at the opposite conclusion and
held that legal professional privilege extended to in-house counsel. The main
issue before the court was whether communications with in-house legal counsel
were protected by legal professional privilege before the passage of the Evidence
(Amendment) Act 2012 (Act 4 of 2012) (“the 2012 Amendment Act”). For context,
the 2012 Amendment Act had extended the relevant provisions of the SGEA to “legal
counsel in entity” i.e in-house counsel. The legal professional privilege provisions of
the pre-amended Singaporean Evidence Act (Cap 97) (“SGEA”) is pari materia to the
relevant provisions in Malaysia’s prevailing EA.

In its judgment, the Singaporean Court of Appeal refrained from a strict, literal
interpretation of the SGEA. Instead, paramount importance was placed on the
prevailing purpose of legal professional privilege. The Singaporean Court of Appeal
concluded that:

“[32] As the Court of Three Judges observed in Law Society of Singapore v Tan
Guat Neo Phyllis [2008] 2 SLR(R) 239 (at [117]), “[t]he EA only codified the
law of evidence existing at the time of its enactment; therefore, new rules
of evidence can be given effect to only if they are not inconsistent with
the provisions of the EA or their underlying rationale” [emphasis added].
Applying that approach here, it is clear, contrary to what the Appellant
submitted, that the common law rule relating to the privilege that is
conferred upon advice proffered by in-house counsel is not inconsistent
with any of the provisions of the EA. The common law rule is, in fact, wholly
consistent with the rationale as well as spirit undergirding the existence of
the doctrine of legal professional privilege.

[33] The raison d’etre of legal professional privilege is that full, free, and frank
communication between persons and their legal advisors, without which the
effective administration of justice would not be possible, can only take place
if such communications can be carried out in confidence (see Skandinaviska

32 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

at [23]). This rationale applies with equal force to communications with in-
house legal advisors, whose ability to provide legal advice would be greatly
stymied if communications with their clients were not privileged (see also,
the observations of Lord Denning in Alfred Crompton ([26] supra) cited
above at [25]). It would be artificial, unjust and unfair to draw a distinction
between the advice proffered by in-house counsel on the one hand and
advice proffered in the more traditional context of practice on the other.

Applying ARX to the Malaysian “no derogation or conflict” test, it becomes

apparent that the court in ARX was more concerned as to whether the common
law conflicted with the purpose of the SGEA, rather than its express provisions.
While such a purposive interpretation seems plausible and is in line with established
principles of statutory interpretation, it is arguably inconsonant with the earlier
decisions in Bukit Lenang and Wang Han Lin. It is observed that unless and until
these Court of Appeal decisions are overruled, they would prove to be a barrier
to the adoption of the rationale in ARX. Nonetheless, the ratio in ARX presents
an alternative (and attractive) answer in favour of extending legal professional
privilege to in-house counsel.

Conclusion

In conclusion, until a pronouncement from the Federal Court or, preferably,

legislative amendment by Parliament, it remains unclear whether legal
professional privilege extends to communications between in-house counsel and
their employers in Malaysia. In that regard, calls for legislative amendment have
already come from the Bench. Wong Kian Kheong JC (now JCA) in his decision in
Toralf Mueller v Alcim Holding Sdn. Bhd. [2015] MLJU 779 opined:

“[75] … I am of the view that legal privilege should be attached to communications

between in-house legal counsel and Employer along the lines of s 128(A) EA
(Singapore) [with the same exceptions to s 126(1) EA]. The legal privilege
proposed to be attached to communications between in-house counsel and
Employer, is to ensure that all issues can be freely addressed in the interest
of the Employer as well as in the interest of justice (justice may be served
if the Employer is well advised in respect of all the Employer’s rights and
obligations). It is hoped that our legislature will amend EA to introduce a
provision similar to s 128A EA (Singapore)”.

While the law remains undecided, it is recommended that the following

precautionary steps be taken to best protect communications between in-house
counsel and their employers:

LEGAL INSIGHT 33
 a) Documents and communications for the dominant purpose of legal advice or
litigation should state that that they are “Confidential and Privileged”;

b) Corporate policy documents should distinguish the roles and responsibilities of

lawyers and non-lawyers;

c) In-house counsel should be constantly reminded to follow the ethical standards

expected of the legal profession; and

d) The legal and non-legal duties of an in-house counsel should be delineated,

where possible.

Ling Siew Hui | Associate

Dispute Resolution
siewhui@rdslawpartners.com

Roshanth Aaron James | Pupil

Dispute Resolution
roshanth@rdslawpartners.com

34 LEGAL INSIGHT
 ADVOCATES & SOLICITORS

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