(Trimester 2420: UCN2612)
TUTORIAL ǪUESTIONS FOR WEEK 5
Tutorial 7
Chapter 7: Jurisdiction of the Malaysian Courts and Stays of
Proceedings
Dereck, an Englishman has businesses in Southeast Asian countries, including
Malaysia. While travelling from Vietnam to Singapore, he transited in Kuala Lumpur
and stayed a night at a hotel in KL. Upon knowing this, on that night, his business
associate, Randy served him a writ of summons suing him for breach of contract
and fraud. He left to Singapore the next morning.
When he was back in England, he filed an action against Randy for breach of
contract and claimed for a large sum of amount. Both of their actions stemmed from
a dispute over their export and import business in Indonesia. The employees of
that company were mainly Indonesians and Malaysians, they only spoke
Malay/Indonesian languages which are quite similar.
It is to be noted that in a contract concluded between Dereck and Randy, they have
agreed that any dispute arising from the contract should be heard by the High
Court of Singapore.
Determine if a Malaysian court will have jurisdiction over Dereck. If yes, can Dereck
stay the action initiated by Randy?
What is the meaning of Jurisdiction in Conflcit of Law
Does the Malaysian Court have jurisdiction over Dereck?
Rex vs Abu Ahhas.
If a defendant is properly served with a writ while he is in this country, albeit
on a short visit, the plaintiff is prima facie entitled to continue the proceedings to the end. He
has validly invoked the jurisdiction of the Queen's courts; and he is entitled to require those
courts to proceed to adjudicate upon his claim. The burden is on the Defendant to show that it
would be an injustice to him to have the case tried here, i.e. that the proceedings are oppressive
or vexatious to the defendant and that astay of proceedings would not constitute an injustice to
the Plaintiff
Whether Dereck stay the action initiated by Randy
• Paragraph 11 of the Schedule to the Court of Judicature Act 1964 – Power to dismiss or
stay proceedings … where by reason of multiplicity of proceedings in any court or courts the
proceedings ought not to be continued.
• Generally, there are three common grounds on which a stay of proceedings is sought:
o Doctrine of forum non-conveniens;
o Lis alibi pendens; and
o Forum clauses.
Forum Non Conveniens
• The trial in the forum is arguably manifestly inconvenient – there is a more appropriate
foreign court.
• St Pierre v South American Stores Ltd [1936] 1 KB 382
o A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the
advantages of prosecuting in his action in an English court if it is otherwise properly brought.
The right of access to the King’s court must not be lightly refused. (similarly to Malaysian
condition.)
o In order to justify a stay two conditions must be satisfied, one positive and the other
negative:
• The defendant must satisfy the court that the continuance of the action would work an
injustice because it would be oppressive or vexatious to him or would be an abuse of the
process of the court in some other way; and
• This stay must not cause an injustice to the plaintiff. (Must show that coming all the way
there is unjust to him but causing him to go all in here. You will get fucked.
• A mere issue of balance or convenice ann
Tutorial 8
Chapter 8: Recognition and Enforcement of Foreign
Judgments
Hoodtang Sdn Bhd (“Hoodtang”) is a Malaysian company with its registered
office in Skudai, Johor while Manee Bank (“Manee”) is a Singapore bank.
Hoodtang was granted loans by Manee in Singapore. However, Hoodtang
defaulted in repaying the loans. Consequently, in the Singapore High Court,
Manee filed a suit against Hoodtang and it managed to obtain a judgment in its
favour (“the Singapore Judgment”). Manee registered the Singapore Judgment at
Johor Bahru High Court under section 4(1) of the Reciprocal Enforcement of
Judgments Act 1958 (“REJA”). However, pursuant to proviso (b) to section 4(1),
Hoodtang challenged the registration of the Singapore Judgment. The relevant
proviso reads as follows:
Provided that a judgment shall not be registered if at the date of the application –
(b) It could not be enforced by execution in the country of the original court.
Hoodtang argued that the registration of the Singapore Judgment ought to be set
aside since it could not be enforced by execution in Singapore as Hoodtang does
not have any assets or a place of business in Singapore, in respect of which
execution could be enforced against Hoodtang in that jurisdiction, being the
country of the original court.
While for Manee, it is argued that it is immaterial and irrelevant whether or not
Hoodtang has maintained any place of business or has any assets in Singapore.
These grounds do not remove the legal rights of Manee as conferred by the
Singapore Judgment. There is no pending appeal or proceedings against the Singapore
Judgment. Consequently, practically, Manee may enforce the judgment outside of
Singapore.
As the trial judge, you are to determine the following agreed issues by the parties:
(a) Whether Hoodtang is entitled to set aside the registration of the Singapore
Judgment?
IN STANDARD CHARTERED BANK (SINGAPORE) LTD V PIONEER SMITH (M) SDN
BHD [2015] 7 CLJ 677
The JD is a company incorporated under the Malaysian Companies Act 1965. Its
registered office is in Johor Bahru. The JC is the Singapore-incorporatedretail and
Small & Medium Enterprise (SME) subsidiary bank of the Standard Chartered
Group.
On the application by the JC on 8 September 2014, the High Court of Malaya at
Johor Bahru on 9 October 2014 granted an order for the registration of the
Singapore Judgment under Section 4(1) of REJA. Under Section 4 (2), subject to
setting aside applications, upon its registration, the Singapore Judgment has, for
the purposes of execution the same force and effect as if the Singapore
Judgment had been a judgment originally given in the High Court of Malaya and
entered on the date of registration.
The JD then challenged the registration of the Singapore Judgment, by
highlighting proviso (b) to the same Section 4 (1) which reads as follows:—
Provided that a judgment shall not be registered if at the date of the application
—it could not be enforced by execution in the country of the original court
The JD’s Contention
The JD argued that the registration of the Singapore Judgment ought to be set
aside since the Singapore Judgment could not be enforced by execution in
Singapore on 8 September 2014, being the date of the application for
registration under REJA. This is because the JD does not have any assets or a
place of business (nor carry any business) in the Republic of Singapore, in
respect of which execution could be enforced against the JD in that jurisdiction,
being the country of the original court.
It was argued by the judgment debtor that the registration ought to be set aside
as the requirements under Section 4(2) of the Act were not fulfilled in that the
foreign judgment was purportedly not capable of being enforced in the original
court. In dismissing the setting aside application, the Court held that the issue of
whether the judgment creditor could as a matter of fact enforce the judgment by
execution in the original court is a practical question, not a legal one. To hold
otherwise would effectively allow judgment debtors and other losing parties to
avoid enforcement actions against them by taking steps to cease their presence
in the country of original court as well as at the same time have their assets
transferred out of jurisdiction.
(b)Whether the setting aside application filed by Hoodtang shall be allowed?
