Tuesday, September 2, 2008
Selamat Hari Kemerdekaan yang ke 51 Malaysia
Happy 51st Independence Day Malaysia!
Also would like to take this instance to wish all of BLC and LCS' Muslim members Selamat Menyambut Bulan Ramadhan. Let us all forgive each other in this noble month and refrain ourselves not only from foods, but also the deeds that will only do us more harm.
May the month of Ramadhan unite us all and bring only goodness upon us as members and those around us. Insyallah. Amin.
Not forgetting to all the muslim members, you are most welcome to join us 'berpuasa' heheh
Sunday, July 27, 2008
LCS United !
However, LCS members were a bit dissappointed with the cancellation of awards ceremony which has been announced few minutes before the closing ceremonial. If there were no awards of the most beautiful booth, or so on, the organiser should inform us so that we will not put any hope of winning at least one of the awards promised by the organisers. Despite the dissppointment,LCS members were still pleased with the event.
On behalf of our vice president,Nandini, i would like to thank all of the LCS Members who took part on the event in order to promote our society in the university. Even our Dato President was so proud with us, especially our mock trial,which he described as the best he ever seen !
Congratulation guys !
Here are some photos before and during the event.
P/S: IF ANYONE INTERESTED TO GET THE WHOLE PICTURES OF THE EVENT PLEASE LEAVE YOUR EMAIL ADDRESS AND I WILL FORWARD THOSE PICTURES THROUGH YOUR EMAIL. THANK YOU.
Tuesday, July 15, 2008
Happy Birthday Prof !
Happy Birthday to you,
Happy Birthday to Prof. Darbi,
Happy birthday to YOU !
Last Friday, 11/July/2008, our beloved Prof. Darbi celebrate his birthday ! I am not sure what is his age now. Is anyone knows? I dont think so.
No matter how old he is, he still look young, handsome and adoreable in the eyes of all BLC students.
If Prof read this, we would like to wish you HAPPY BIRTHDAY ! We were thinking to organise a birthday party for you, but due to the increament of oil prices, we students are affected. Therefore, on your birthday, none of us are afford to buy you a piece of cake. This is so reality, we have the evidence and we would say that this is not a myth ! haha..
But, we believe that you have already know that we love you so much ! Even we dont have money to organise a birthday party for you. Again, from all of us (BLC Students sem 1-6)
HAPPY BIRTHDAY !
LCS Members Are Busy Decorating Their Booth
LCS is one of the clubs taking part in the carnival. After days and night, working hard to make it happen, finally, for less then 24 hours, the time will come for us to share with all of the visitors who will be visiting our booth, what we have done through out the year.
LCS will not only holding an exhibitions, we are also going to perform our mock trial which is 100 percent done by the member of LCS. The vice-president of LCS, Ms. Nandini said that she is expecting more people to come to visit our booth as visitors may also seek any advice pertaining to legal issues from the member of LCS. The Legal fees is Free of Charge !
So guys, see you there !
P/S: Pictures cannot be upload due to servers problem. I will try to upload pictures soon.
Seminar on Intellectual Property By Prof. Dr. Lim Heng Gee
The seminar was explaining the importance to protect ideas and thought, as protected by the intellectual property laws in Malaysia as well as the World Trade Organisation countries. The talk was delivered by Prof. Dr. Lim Heng Gee of UITM who is also a visiting lecturer of few universities in various countries. He is an expert in intellectual property.
The seminar was held at Block C room number CG05. At the end of the session, our beloved program manager has announced that every Monday is a Law and Commerce Day. Prof. Darbi has also annouced that, every Monday, student of BLC must wear a formal black and white attire. If failed to do so, students may be fined by the Department of Law. The enforcement may come into force starting next Monday.
Here are some pictures of the seminar.
Saturday, July 12, 2008
Attention To Students Who Take Land Law 1 And Equity & Trust 2
Equity And Trust 2 : Every Mondays at 5pm-8.30pm at class number c113B
Land Law 1 : Every Thursdays at 5.30pm-8.30pm at class number CG06
Please be informed !
For further information, please contact Mohd Ainuddin Aliff, the best class rep in the world ! :-)
Congratulations To LCS Futsal Team
The participation of LCS Futsal Team into the competition has shows that BLC students are not only excel in academics but also in sports. This has been proven when they finished the competition at quater finals level.
Again, Congratulations to all of you and we, LCS members and BLC students are really proud of you guys.
Our team players are:
Muhamad Muaz dahari
Muhamad Izwan B Omar
Mohd Azmir Sharifudin Hussein
Jainuddin Ibrahim
Neilirwan Shah B. Asman (Import player from Bachelor of Food Science)
LCS Players with opposition team
Another picture with the opponent
Our heroes with the famous LCS red jersey
Monday, June 30, 2008
Al-Fatihah
Thursday, May 8, 2008
Kejohanan Bola Sepak Piala Presiden 2008
The information of the competition are as follows:
Time: 8 am- 5pm
Date: 10 May 2008
Venue: 'MSU Mini Stadium'
Lecturers from Department of Law is likely to be there to give their supports to the team. Instead of this official team, your support might also needed by Thangathurai's team (Thanga is also a BLC student, which half of his team squad are from BLC). Supporters of these team are required to wear a RED attire, as RED will be the official colour of our team !
May our supports will cause the victory to the team !
See you there ! :-)
Saturday, May 3, 2008
Click a Child
Thursday, May 1, 2008
Good Luck
Tuesday, April 29, 2008
Certificate of Legal Practice Information - Course Subject (Part 2)
This subject covers a wide range of substantive law and comprises 5 areas which are divided into section A and section B.
Section A
(a) Advocacy and Duties of Counsel
(b) Ethics of the Legal Profession
Section B comprises of the following:
(a) Land Law and Conveyancing
(b) Probate and Administration of Estates
(c) Law of Bankruptcy
SECTION A
i. ADVOCACY AND DUTIES OF COUNSEL
Topics:-
- Duties of Counsel - To Client and the Court / The Barrister's Immunity
- Counsel's Liability in Negligence for Conduct of a Case
- Summary Jurisdiction of the Courts Over Solicitors and Enforcement of Undertakings
- Extent of Counsel's Authority
- Counsel and Contempt of Court / Disciplinary Proceedings for Misbehaviour to Court
- Legal Professional Privilege / s.126 Evidence Act 1950
- Advocacy and the Trial in Court: Examination of Witnesses: Chapter X Evidence Act 1950 ss.135 -166.
- Arguing the Appeal
ii. ETHICS OF THE LEGAL PROFESSION
Topics:-
- Structure of the Malaysian Legal Profession
- The Need for Ethics
- Legal Profession (Practice and Etiqutte) Rules 1978
- Acting for more than one party
- Disciplinary Proceedings
- Role and Immunity of an Advocate and Solicitor
- Some Common Complaints Against the Legal Profession
SECTION B
i. LAND LAW AND LAND DEALINGS
Topics:-
- The Malaysian Torrens System
- The Application of English Equitable Principles to Land Matters
- Disposal by the State Authority: Alienation
- Types of Titles
- Restriction in Interest, Conditions and Categories of Land Use
- Indefeasibility of Title
- Dealings
- Restraints on Dealings
- Housing Developers
ii. BANKRUPTCY AND WINDING UP
Topics:-
- Introduction to Bankruptcy Law
- Act of Bankruptcy
- Bankruptcy notice
- Bankruptcy Petition (Creditor's Petition)
- Adjournment
- Jurisdiction - Reinstatement
- Receiving Order8. Adjudication Order
- Proceedings Consequent to Adjudication
- Composition or Scheme of Arrangement
- Disclaimer:OA's rights:s.5912. The bankruptcy court and appeals
- Discharge of bankrupt
- Rescission and annulment of receiving and adjudicating orders
- Companies Winding-up: The Companies Act 1965 and Companies (Winding-Up) Rules 1972
iii. ADMINISTRATION OF ESTATES
Topics:-
- Types of Estates
- Administration of an estate
- Jurisdiction
- Common types of grants of representation by the High Court
- Grants where deceased died domiciled outside Malaysia: Grants to attorneys
- Rights, Powers and Duties of Personal Representatives
- Testacies
- Intestacies
- Letters of Administration with will annexed
- Letters of administration de bonis non
- Partial intestacies
- Benefits of testate succession
- The Administration of Muslim Estates
- Caveats O.71r.37
- Citation (O.71r.41-44 and s.9, Probate & Administration Act 1959)
- Probate actions (O.72)
5. Evidence
The law of evidence is that part of adjective law which regulates the means by which facts are proved in judicial proceedings. The main statute is the Evidence Act 1950 (Act) and candidates are allowed to take an unmarked copy of the Act into the examination hall. The law of evidence regulates the proving of facts in both criminal and civil cases. While most of the rules in civil and criminal cases are the same, there are provisions that only apply in civil cases and provisions that only apply in criminal cases.
The Evidence syllabus requires students:
- To acquire a thorough knowledge of all the principles of evidence and to be able to apply that knowledge practically in both civil and criminal proceedings.
- To have a thorough understanding of the Evidence Act and the amendments made to it
- To have a good understanding of all provisions relevant to evidence in the statutes mentioned below
Statutes
- Dangerous Drugs Act 1952
- Anti Corruption Act 1997
- Oaths and Affirmation Act 1949
Topics:-
- Introduction and Preliminary Matters
- Facts
- Relevancy
- Hearsay 1 - The Rule and the Exceptions
- Hearsay 2 - Admissions and Confessions
- Similar Fact Evidence
- Character Evidence
- Opinion Evidence
- Judicial Notice
- Documentary Evidence
- Burden and Standard of Proof
- Presumptions
- Witnesses - Competence and Compellability
- Witnesses - Privilege
- Witnesses - Corroboration
- Examination of Witnesses
- Illegally Obtained Evidence
- Improper Admission or Rejection of Evidence
Information derive from http://www.clp4u.info/ website
Certificate of Legal Practice Information - Course Subject Part 1
1. General Paper
This paper consists of two main parts, namely:
i. Tort
ii. Contract
In the examination candidates may be required to:
i. advise on evidence, liability and procedure
ii. advise on remedies
iii. draft pleadings
For this paper, candidates are not permitted to bring any statute into the examination hall.
Tort
The Tort syllabus requires students:
- To have a good knowledge of the principles of the tort of negligence (including occupiers liability) and the defenses thereto
- To know the provisions relevant to personal injury and fatal accidents cases in the Civil Law Act 1956
- To be able to advise on the issue of liability
- To be able to advise on damages for both personal injuries and causing death
- To be able to draft pleadings
Contract
The main statutes here are the Contracts Act 1950 and the Specific Relief Act 1950 (Revised 1974).
The Contract syllabus requires students:
- To have a good background knowledge of the Malaysian law of contract
- To have a good understanding of the Contracts Act 1950 and the Specific Relief Act 1950 (Revised 1974)
- To be able to advise the plaintiff on whether he has a cause of action
- To be able to advise on remedies for breach of contract. These would include damages, specific performance, injunction and rescission
- To be able to draft pleadings
2. Criminal Procedure
Criminal procedure is that part of adjective law which provides for the process within which the principles of criminal law operate. The main objective of criminal procedure is to provide the rules, practices and procedures to ensure a proper and efficient administration of criminal justice. The main statute for this subject is the Criminal Procedure Code (Act 593) and candidates are allowed to take an unmarked copy into the examination hall.
The Criminal Procedure syllabus requires students:
- To understand criminal procedure in Malaysia from the stage of arrest to the stage of appeal or revision
- To understand the various procedures, power and practices that governs criminal proceedings in Malaysia
- To have a thorough understanding of the Criminal Procedure Code (Act 593) and the amendments made to it
- To have a good understanding of the Child Act 2001 which came into force on 1st August 2002. The child Act has repealed the Juvenile Courts Act 1947 and the Child Protection Act 1991
- To have a good understanding of all provisions relevant to criminal procedure in the statutes mentioned below
For the examination, candidates have to draft charges, prepare papers on appeals and to advise on the law.
Statutes
Other than the Criminal Procedure Code (Act 593), candidates are required to have a good understanding of all provisions relevant to criminal procedure in the statutes mentioned below:
Topics :-- Introduction
- Courts
- Arrest
- Search
- Police Investigations
- Powers of the Public Prosecutor
- Transfer of Cases
- Initiation of Proceedings in Court
- Impeachment Proceedings
- Summary Trials
- High Court Trials
- Bail
- Charges
- Sentencing
- Forfeiture
- Appeals and Revision
3. Civil Procedure
Civil procedure regulates the procedure in civil cases. Candidates are allowed to take an unmarked copy of the Rules of the High Court and the Subordinate Court Rules into the examination hall.
The Rules of the High Court are divided by subject matter into 'Orders' and apply to all proceedings in the High Court.
The Subordinate Court Rules 1980 are also divided by subject matter into 'Orders' and apply to all proceedings in the Sessions or Magistrates Court. Each Order is divided into rules and sub-rules.
The Civil Procedure syllabus requires students:
- To have a good understanding of the procedure governing the various stages of a trial from the stage of the mode of commencing civil proceedings in the High Court and the Subordinate Courts up to the stage of judgment
- To be familiar with the enforcement of Judgments and Orders
- To be familiar with the procedure for appeals
- To be familiar with the Orders in the Rules of the High Court 1980(RHC) and the Subordinate Court Rules 1980 (SCR) and the amendments
- To have a good understanding of all provisions relevant to civil procedure in the Subordinate Courts Act, the Courts of Judicature Act,
- To have a good knowledge of decided cases on civil procedure
- To be familiar with the 'Practice Directions'
Topics:-
- Introduction
- Civil Courts and their Jurisdiction
- Modes of Originating Process
- Parties
- The Writ
- Originating Summons (High Court)
- The Summons (Subordinate Courts)
- Appearance and Default Judgment
- Summary Judgment
- Payment into Court
- Third Party Proceedings
- Interpleader Proceedings
- Pleadings - General Principles
- Striking Out Pleadings and Indorsement
- Amendment to Pleadings
- Injunctions
- The Mareva Injunction
- The "Anton Piller" Injunction
- Arrest and Attachment before trial under the Debtors Act 1957
- Discovery
- Affidavits
- Interrogatories
- Summons for Direction, Pre-Trial Case Management and Dismissal for Want of Prosecution
- Trial
- Costs
- Enforcement of Judgments
- Appeals
The other 2 Course Subject will be put in the second part of this post
Information derive from http://www.clp4u.info/ website
Certificate of Legal Practice Information - The Basic Things
- Law of Contract
- Law of Torts
- Constitutional Law
- Criminal Law
- Land Law
- Equity and Trusts
The CLP examination tested the student on 5 course subject:-
- general paper which will be divided into 2; torts and contract
- criminal procedure
- civil procedure
- professional practice
- evidence
These 5 compulsory papers need to be pass by the students in one sitting. If he fails more than one subject, he will have to retake all five subjects in July or August the following year unless the candidate has failed badly, (a total of less than 100 marks for the 5 subjects) in which case the candidate will be barred from the next sitting. However if the candidates fails only one paper, he only has to re-sit that paper on a date specified by the Board. Students who successfully complete the examination will be entitled to use the designatory letters CLP. The fees would be:-
Hope that this basic info will help you in better understanding of the CLP exam. Each course subject information will be put in the next post
Information was derived from http://www.clp4u.info/ website.
Saturday, April 26, 2008
Jurisprudence - Lesson 4
Revision to Rule Of Law
- A concept that was developed in Europe
- The idea of rule of man that evolve into rule of law
- During the periods of Kings, people believe that the king is an objectification of God, thus, possesses the Divine right to rules against other
- 'Objectification' is a product of human idea or labour
Human being dominate nature, but symbol dominate human
- Rule of man basically is just another myth and fiction to create a clear and apparent symbol of the king
- The king, hence, developed this rule by the virtue of it is a divine right of the king
- Rule of law has evolved to rule of law as myth and fiction has evolve to conceptual
- Nevertheless, rule of law is just another concept created by the modern man to enable people to be govern by a government instead of king and queen
Limitation or Challenge to the Concept of Rule of Law
1. Interpretation of law
- Judges have their own idea in interpreting the law
- This could be influence by their social and educational background, economic and political interest and many other elements and factor
- It is a discretion power of the judges to interpret the law but the interpretation sometimes may cause hardship to other based on the influence stated above
- Hence, rule of law become a set of rule that has been set by one men (judge) rather than many (legislature)
- Rule of law does not 100% guaranteed that the law will be free from bias and influence as the interpretation by the judges is open to an extra-legal factors or influence as mentioned above
2. Separation of power
- Constitutional government upheld the separation of power
- Nevertheless, in practise there are no absolute separation of power
- Thus, separation of power is something of a sham or myth to upheld the rule of law
3. Certainty of the law is an illusion
- Rule of law claim to provide certainty of conduct but it can never guaranteed it
- Example situation - Article 11 of Federal Constitution stated that every person has the right to profess any religion hi choose, nevertheless, this is not applicable to Muslim although this is not stated in the article
- In practice, no one can predict what the law is and how it is going to be applied
- The law will be decided in court and this will lead to the limitation #1
- Further, the enforcement of the law sometimes being influence with external factor such as racism
4. Conflicts between Judaical and executive view of the law
- What the executive intended in the law might be interpreted by the judiciary
- More over, executive decision to save a country might be contrary with the law, hence, create dispute with the judiciary who just want to upheld the law
5. Transplantation problem in Rule of Law
- Idea of rule of was developed in Europe
- When the idea was bring to another continent or state, rule of law will find a difficulty in adapting to the society
- Different races or places provided for a different idea on how to interpret rule of law
- Western law stresses on right as Malaysian law stresses on responsibility
6. The concept of procedural justice against substantive justice
- Law under rule of law concept is formal/procedural justice but not substantive justice
- Rule of law promote that any wrong doing shall be charged accordingly following the procedure regardless of elements or factors that contribute to the wrong doing
- Considering the element that contribute to the wrong doing will allow substantive justice that defeat the concept of law is king
- If the law will followed the concept of substantive justice, this will cause floodgate of appeal as people will used the compassion of the judge to escape punishment and liability
- Law should not be discriminate and shall be generally applicable to all
- Substantive justice usually being uphold in kadhi justice that will lead to arbitrariness
Corporate and Partnership Law - Lesson 4
- Section 21 of Partnership Act (PA) stated that what every thing that have been done by the partner must be based on mutual right either stated in the agreement or inferred from a course dealing
1. Capital and profits
- Section 26 (a) of PA
- This section stated that share, profit and capital must be equally divided
- Nevertheless, by way of agreement, the division can be varied
2. Indemnity
- Section 26 (b) of PA
- This section stated that a person who resolves the liability of the firm has to be indemnify in respect of payments made and personal liabilities incurred to him
Koh Hong Leong & Ors v Seow Koh Cheng & Ors
FACT: The respondent (R) has succeeded in the defence to an action against the firm the firm . It involved a claim amounting to RM4,000 for damages of breach of contract. When the partnership is dissolves, the court ordered that the legal cost incurred by the R is paid from the firm's asset . The order however was objected by the Appellant (A) who then make appeal to the appeal court
HELD: The court held that the firm or the partnership has the duty to indemnify the partner who has paid that amount R
3. Interest on the extra capital subscribed
- Section 26 (c) of PA
- This section stated that when a partner has put on extra capital to the firm, he is entitled to interest of 8% per annum from the date of the payment or advance
- The interest is given due to the fact that the extra capital shall be regarded as loan by the firm
4. Interest on capital subscribed
- Section 26 (d) of PA
- This section stated that in regarding to the payment of interest, the firm need to make a profit first before the interest can be made
- This section is closely related to Section 26 (c) of PA
5. Management of the partnership business
- Section 26 (e) of PA
- This section stated that every partner shall be entitled to be involved in the management of the firm
6. Remuneration
- Section 26 (f) of PA
- This section stated that partner's are not entitled for a salary from the partnership
Nevertheless, 'salary partner' can exist provided that it was stated clearly in the agreement
7. Introduction of a new partner
- Section 26 (g) of PA
- This section stated that in order for a new partner to be brought into the partnership, consent of all existing partners are needed
Byrne v Reid
FACT: Pursuant to a partnership agreement, a father is empowered to nominate his son as partner. However when the father did so, the other partner refused to accept it
HELD: The court held that the written agreement allowed the son to be the partners in the firm
8. Differences as to ordinary matters
- Section 26 (h) of PA
- This section stated that if there is any differences as to any ordinary matters shall be decided by a majority of the partner
- Nevertheless, if there is a proposal to change the nature of the business, consent from all of the partners need to be obtained first
Highly v Walker
FACT: There are 3 partners who have different views or perspective on how the partnership business should be run. The plaintiff (P) who is one of the partner applied for an injunction to prevent the other 2 partners who had resole to introduce into the partnership is son with a view to venture into new business
ISSUE: Whether the decision relate to an ordinary matter connected with the partnership
HELD: The court held that this matter is in relation on ordinary matter concerning the partnership business and not related to the introduction of a new partner. Hence, the majority of the partner is sufficient because the son will only be needed for his expertise
9. Partnership book
- Section 26 (i) of PA
- This section stated that partnership book need to be kept at the place of the business of the partnership
- Further, every partner shall have the access and rights to inspect or copy it
Bevan v Webb
FACT: The sleeping partner in a partnership decided to sell their interest to the managing partner. For the purpose of valuation, the sleeping partner had appointed a valuer to inspect the book of the partnership. Nonetheless, the managing partner refuse to allow him to have access to it. The sleeping partner then applied for an injunction from the court to allowed the valuer to gain access to the partnership book for the purpose of evaluation
HELD: The court held that injunction will be granted to the sleeping partner and the valuer
10. Expulsion
- Section 27 of PA
- This section stated that a majority cannot expel any partner unless it was stated by an express agreement between the partner
- If there is no agreement made between the partners, the expulsion cannot be made unless the matter are bring to the court
Re a Solicitor's Arbitration
FACT: E, N and S are partners in a legal firm. In the partnership agreement, there was a clause stated that if any partner shall commit or be guilty on any act of professional misconduct, then the other partner may by notice in writing, expel him from the partnership. E served on the other 2 partners a notice to expel both of them from the partnership on the ground of their alleged misconduct
HELD: The court held that E had no power to expel both of them as he is not a majority. Alternatively, E will have to join with any 1 of N and S to expel 1 partner in the partnership
Green v Howell
FACT: there is a clause in the partnership agreement stated tat in the event of any one of the partner breach any duty as a partner, the other partner are not entitled to expel them unless there is a good faith. Subsequently, 1 of the partner had breach the partnership agreement
HELD: The court held that a preliminary warning us needed and meeting must be held before expulsion can be executed. Furthermore, the partner who may be expel need to be given a right to explain himself as stated in the natural justice
Duties
- Duties of a partners are laid down under section 30, 31 and 32 of PA
- Each partner has the duty of good faith to the other partner in the partnership
- Utmost good faith is due from every member of a partnership towards every other member of the partnership and in terms of allegation made by any of the partners stating that the other partners are making benefit to themselves at the expense of the partnership are required to show that not only the law was on their side but his also bear that their conduct are to be tried by the highest standard of honour
Vasu Devan & Ors v VA Nair
FACT: A firm was formed by the respondent (R), first appellant (1P) and the second appellant (2P). The business of the partnership however was not successful. It was then being decided that a limited company should be formed to buy over the firm and the 1P are given the directorship of the company. R denied the agreement and also alleged that the buying of the company was made in a fraudulent manner.
HELD: The court held that the 1P and the 2P did not provide an utmost good faith to the R, thus, the agreement was null and void
i. Duty to render true accounts and full information
- Section 30 of PA
- Partners are bound to render true accounts and full information about the partnership business
- In a simple way what ever that you do in the partnership, you need to do it with sincerity, faithful and committed
Law v Law
FACT: The defendant (D) acquired the plaintiff's (P) shares for an amount that is less than what he paid. P then upon realising that the fact then sue D on the ground that he failed to disclosed a number of assets to him
HELD: The court held that D has a duty to disclose all material facts with reference to the assets.
ii. Duty to account for any benefit derived from any transaction concerning the partnership
- Section 31 of PA
- Partners are not accountability for a secret or private profit
Pathirana v Pathirana
FACT: Both plaintiff (P) and the defendant (D) are partners in a partnership. The partnership belonged to a company who has appointed them as an agent of the company. D gave 3 months notice to terminate the partnership, but negotiated a new agreement with the company to transferred the agency into his own name. Not only that, he also continued to trade in the same way at the same premises of the previous partnership
HELD: The court held that P was entitled to a share in the profits form D business. the agency agreement was a partnership asset and D's use of it was a breach of fiduciary duty
iii. Duty to account for profit derived from competing business
- Any profit from a competing business must be credited to the partnership account
- In Trimble v Goldberg, a partners is forbid from withholding from the firm any opportunity of advantage which falls within the scope of its undertakings, and from using for his own exclusive benefits, information, knowledge or resources to which the firm is entitled
Partnership property
i. Section 22 (1) of PA
- The meaning of partnership property is any property that has been brought in originally into the partnership by way of purchase or acquired, and has been used in the course of the partnership business
- The property must be used and applied for the partnership business
Miles v Clarke
FACT: the defendant (D) was a professional photograph who carried on his business at premises which he lease for 7 years from 1948. 2 years later, he entered into a partnership with the plaintiff (P). When the partnership broke up due to a dispute arose between them, P alleged that consumable stock-in-trade, the personal connection brought in by each partner, the lease of the premises and the furniture, fitting, and equipment of the studios shall be regarded as the partnership property
ISSUE: Whether the premises can be considered as the partnership property
HELD: The court held that only consumable stock-in-trade belonged to the partnership property
Davis v Games
HELD: The court held in this case stated that 2 person can be a co-owner of a piece of land and partners at a same time. However they can do business on the land without it forming part of the firm assets
ii. Section 22 (2) of PA
iii. Section 23 of PA
- Property bought using the partnership money is a partnership property unless there is a contrary intention
- In Ponnukon v Jebaratnam, the property was held not to be partnership property because it was not paid for by the funds of the partnership but the funds raised by a partner on his own separate act independently of the other partner or of the partnership
Shares in the partnership and assignment
i. Section 26 (g) of PA
- Who ever wanted to possess any shares in the partnership need to be a partner first
ii. Section 33 (1) of PA
- Assignment is a transfer of right
- The assignee of an assignor shares can only received profit from the shares but not participate in the management or administration of the partnership
- In Oh Kian Loo v Hock Wah Trading Co & Ors, the court stated that the right does not extend to assignees of partnership shares
Dissolution of partnership
1. Court interference/orders
a. Fixed term
- Section 34 of PA
- A partnership can be formed in a limited period, where the term of its existence are put in the agreement
- When the time lapsed, the partnership will be automatically dissolved
b Completion of an event or undertaking
- A partnership may be form in order to served for a certain event or undertaking
- After the event or undertaking is finish, the partnership shall be dissolve
c. Notice
- Section 28 of PA
- Partnership can be dissolve after a notice has been given to the public at large
d. Death or bankruptcy
- Section 35 (1) of PA
- Every partnership will be dissolve as regards regards all the partners by the death or bankruptcy
e. Illegality
- Section 36 of PA
- A business of a partnership that is unlawful in the eye of the law will effect in the dissolution of the partnership
2. With court interference/orders
- Section 37 of PA
i. Insanity
ii. Permanent incapacity
iii.Conduct of a partner that cause prejudice to the business - A religion motivator of a partnership flirting with the people that he motivated
iv. Wilful or persistence breach of the partnership agreement - A partner in a construction company by a cheap and unquality product
v. The business is at losses
vi. When the court feel it is just an equitable to dissolve the partnership
This is the end of Partnership Law. But it will continued with Companies Law. Hope this will teach us a bit about partnership. :-)
Friday, April 25, 2008
Law of Succession - Lesson 3
- There is no standard format on how will should be written, nevertheless, this can be a guideline to make a good will
1. Opening clause
- This is the part where the testator identified himself
- It is important to state name or nick name if any
2. Revocation clause
- This is the part where the testator state that he revoked any earlier will that he has made
- This is regardless whether there is any will that has been made earlier
3. Appointment of executor
- This is the part where the testator will appoint the executor
- The executor will be responsible to administer the will
- It is important to appoint someone that are willing and already give consent to the executor
- Problem will arose if the executor did not give consent as he will be the one who responsible with the testator's property upon his death
4. Appointment of trustee
- This is the part where the testator appoint a trustee
- A trustee is someone who will hold the property of the testator for the benefit of a person below the Age of Majority
- Nevertheless, this is an optional task
5. Appointment of guardian
- This is the part where the testator appoint person to be the guardian of the underage children of the testator if any
6. Assets distribution
- This part related to a specific instruction on who will get what and how much relating to the distribution of assets made by the testator
7. Residuary clause
- This part related to a specific instruction on what will be given under residue to a specific person
- Residue is a distribution of balance of asset that are not mention in the will that need to be distributed
8. Special instruction
- This part related to a specific instruction that is not related to the assets
- For example, the instruction on how the body of the testator should be cremated
Type of Properties that can be Disposed by way of Will
1. Land and Building
- This type of property concern with immovable property
- For this property to be valid under a will, it need to be free from encumbrances which mean that is is free from any subject matter such as lease to a bank
- Not only that, it need to be make sure that the property has no joint ownership or the property is not a joint property such as house or land sharing
- The testator must also posses the right or ownership of that property
Papoo v Veeriah
FACT: A widow applied for the transfer of her late husband's temporary occupation licence (TOL) to her own name as the sole beneficiary of the estate of the deceased.
HELD: The court dismissed her application stating that the property cannot be transferred as it is a TOL land. The late husband did not possesses any rights or ownership on the land as it is only been given temporarily to him under the TOL agreement
2. Specific gifts
- This is an assets that are specifically describe so as to be readily ascertained
3. Property abroad
- For a property that is immovable situated outside Malaysia, the local law of where the property reside shall be applicable in the making of the will
- The foreign law of succession will be used
4. Shares
- Shares can be made as a will but it is subjected to the approval of the company
- The approval is needed as sometimes, for a limited company, the members usually are closely related, nevertheless, by way of putting shares in a will, this will entitled the beneficiary who will be a complete stranger to hold rights against the company
5.Life assurance policy
- For the purpose of life insurance, the person obtaining the life insurance are required to nominate who ever he thinks fit to received the insurance upon his death
- Putting the life insurance in a will, lead to a conflict in interest between the beneficiary and also the nominee
Types of wills
1. Non-cupative and holographic will
a. Non-cupative will
- It is a form of an oral will
- It is dictated by the testator during his illness before a specific number of witnesses and later reduced into writing
- There is a limited exception to the requirement of a valid will; made in writing
Ooi Siew Hong v Ooi Kim Lan
FACT: The testator is said to profess 3 religion at one time. Upon his death, none of the 3 religion provided for the way of disposable the immovable property of the testator according to the local law as, the testator had leave an oral will on how his property should be distributed before his death
HELD: The court held that the oral will is amounted to non-cupative will, thus, it is valid provided that it will be reduced to writing later on
b. Holographic will
- This is a will that are entirely written and signed in the handwriting of the testator
- Witnesses are not needed as the will was made entirely in the testator handwriting
2. Conditional will
- This type of will only made effective on the happening of a specific event as stated in the will by the testator in a form of condition
- In Re Vives, the court held that it is a will made in terms subject to the happenning of an event and that event must occur before the will can be operative
In the case of lindsay v lindsay, the court stated that a provision in a will saying "if i shall died at sea or abroad, i will give my property to Mr X" amounted to a conditional will - In the case of Re Thomas, the court held that a provision in a will saying that 'if i survived my wife and inherit under her will, i will donate her property' is also amounted to condition will
3. Joint will
- It is a document which consist the wishes of several testator and it is treated as the will of each of them
- Each of the testator will then signed the will in a single document
- The significant of having a joint will in a 1 single document is that it reflect the mutual intention of all of the testator
- In the case of Re Duddell, the court stated that to make joint will valid, each testator who is a party to the joint will must execute the said will in accordance with the Will Act
- The requirement of a valid will are still standing in joint will
- The will will take commence once the testator passed away, and it is not material to have all of the testator died before the beneficiary enjoyed the benefit of the will
- The will is revocable before the death of the testator and the revocation can only be made on the individual portion of the testator
- The remaining testator would not be allowed to revoke the will of the deceased testator
4. Mutual will
- The concept of mutual will is similar to joint will
- Mutual will is a will that involved more than 1 person with a minimum number of 2 person
- It usually involved family members and friends such as husband and wife and best friend
- The will will state that the survivor of the testator will enjoy the property of the deceased
- Upon the deaths of the survivor testator, the property will then be given to the beneficiary as agreed by all of the testator
- There are 3 element of mutual will:-
i. There must be an agreement to create a mutual will
- For this purpose there must be an ample evidence to show that all of the testator have intended the same
- This is as stated in the case of Dufour v Pereira
ii. The will is not revocable upon the death of any one of the testator
- If the will were to be revoked after the death of any one of the testator, it will create an unfair advantage
- Nevertheless, the will can be revoke while both parties are still alive
Re Hagger
FACT: A Husband and wife make a joint will in which it was expressly stated that the partners had agreed to dispose of their property in the manner describe in the will and further, it was stated that there would be no alteration or revocation of the document without consent from the other testator.
HELD: The court held that this is not a joint will, instead it need to be treated as a mutual will due to the fact that there is a clause stated that it is not revocable
iii. Mutual will contain an element of trust
- The survivor testator has the duty to passed the property to the beneficiary upon his death
- The statement above proof that there is an element of trust involved in mutual will
- In the case of Re Green, the mutual will shall only bind the deceased property but not the personal property of the survivor. The court also decided that it is legal for the other testator to make a new will upon the death of the deceased provided that the deceased property will not be include in the testator's will
5. Privileged will
- Section 26 of the Will Act (WA) provided that no formal requirement is needed in order to create a privileged will
- Privileged will can only be made by soldiers, airmen and sailors
- Under the common law, privileged will can only be ceased when the lives of the person is in danger
- Further, the member of the arm forces must be in an actual military service when they made the will
- Section 26 (2) of WA stated that the will can be made in oral or in writing
- Section 26 (4) of WA stated that no execution are needed in the will
- Section 26 (5) of WA stated that there are no requirement to follow procedure of a normal will
- Section 26 (6) of WA stated that the will only have a limited period of existence; 1 month
- In the case of Re Wingham, Lord Denning said that the meaning of in a great danger must be interpreted widely and not necessary mean in a real danger
In The Estate of Ada Stanley
FACT: The deceased was a nurse employed under a contract by the war office on hospital ship. She wrote a letter giving direction on how to disposed her property, but it was not attested
HELD: The court held that this falls under a privileged will, thus, it is a valid will
In B Knibbs
FACT: A barmen who work on a ship was having a conversation with his friend. He said that he want to leave his property to a beneficiary during the conversation
HELD: The court held that the conversation happen during a spare time, thus, the barmen would no have the element of intention in making the will
- Even though privileged will does not followed certain requirement of a normal will, but it still required the element of intention from the testator to make the will
- This will is revocable as long as the revocation was made before the death of the testator as in the normal will requirement
6. Incorporation be reference
- The doctrine of incorporation allows a document which has not been executed to be put in the original will
- This will then form a part of the will
- Some detailed that are not being mention at the time of making the will can be incorporated into the will later by the doctrine of incorporation
- The element of doctrine of incorporation are:
i. The doctrine referred in the will must be in existence at the time the will was made
ii. The document must be referred to as being in existence
iii. The document must be clearly identified
- The effect of the doctrine of incorporation will is that it will make the incorporated document to be admitted as part of the will
Singleton v Tom Linson
FACT: There was an argument that doctrine of incorporation should not be apply as the witnesses of the will could not remember seeing the schedule of that document at the time of execution
HELD: The court held that the doctrine of incorporation failed in the part of the witness
Thursday, April 24, 2008
Corporate and Partnership - Lesson 3
d. The act must be done by the partner as a partner of the firm and not in his own personal capacity
- This is as stated in Section 9 of PA
Re Briggs & Co Ex parte Wright
FACT: Father and son is partner in a partnership. The son used the name of the partnership for the purpose of burrowing money from the creditor. The money was used for the purpose of the partnership but the decision was made solely by the son.
HELD: The court held that the usage of the name of the partnership made all of the partner's liable even though there is no consent from the other partner
Asamaju Enterprises v Malayan Banking Berhad
ISSUE: Whether the partnership is liable when the cheque is sign by one of the partner
HELD: The court held that even 1 party sign the cheque; it will bind the partnership as stated under Section 8 of the Partnership Act (PA)
e. The third party must have knowledge that the particular partner has no authority to act on behalf in the partnership
- If a third party has no knowledge that a particular partner has no authority to act on behalf of the partnership, the partnership is still liable
Nature of the liability for debts and obligation
- Section 11 of PA
- Joint liability - a third party can sue all of the partnership
- Several Liability - a third party can also sue any one of the partners
- The procedure is that, a third party need to see the partnership first then only sue the partners individually
- It is not material whether the partner is a sleeping partner or a secret partner
Kendall v Hamilton
FACT: Kandall, the plaintiff (P) gave loan to X and Y who are partners in a trading firm. When X and Y cannot pay the loan, P then take action against them. Judgment was entered against them. Subsequently, both of them have been declared bankrupt. After that P had found the defendant (D) who is wealthy person and also a secret partner to X and Y. P then initiated a proceeding against D
HELD: The court held that P had the right to sue D legally, however, the court dismiss the case application because once the action has been completed against the firm, no one cannot be made liable for a same action in a different proceeding
Guinness Anchor Marketing Sdn Bhd v Chellam Joe Vetha Thya Singh
PRINCIPLE: Joint liability can be defined as there is only 1 course of action for the recovery of debt. Once the course of action had been exhausted, a second course of action or a new proceeding is no longer available against any partners by the creditor who failed to sue at the first instance
Other liability on the partner
a. Wrong and tortuous liability
- Section 12 of PA stated that a firm can be made liable provided it happen on the ordinary course of business
Hamlyn v Houston & Co
FACT: A partner in the defendant’s (D) firm bribes a clerk in a rival firm for the purpose of obtaining private and confidential information relating to a legal matter. The rival firm had suffered losses because of the particular information. The rival firm then sued D
HELD: The firm is liable even though the act was done by 1 of the partner because it was made for the purpose of the business
b. Criminal liability
- Section 12 of PA does not mention clearly the position of criminal liability as it only emphasize on tortuous liability
Chung Shin Kian v PP
FACT: This particular partnership has been dealing with imitation goods called Texwood but it was handling by only 1 partner. He then get caught in a raid
HELD: The court held that the other partner shall not be made liable because the partnership act provide for joint liability on contract and tortuous liability but not for criminal liability
c. Liability for misapplication of money or property
- Section 13 of PA stated that one partner acting within the scope of his apparent authority received money of the property from third person, he misapplied it, and he will be made liable
- The other assent of section 13 is that a firm in the course of its business receives the money or property, and then misapplies it, the firm is also liable
- Section 14 of PA provide that liability only exist when that particular partner still in the partnership
d. Misuse of trust property
- Section 15 of PA stated that the other partner who is not the trustee shall not be liable if the partner who is a trustee misuse the trust
Ex parte Heaton
FACT: A partnership consists of a father and son. The son is a trustee of a will. They had been using the trust money for the business of the firm. When the firm was declared bankrupt, an action was also taken to the father
HELD: The court held that the father is not liable because the father was not the trustee of the trust even though the money was used for the purpose of the business of the firm
e. Liability of persons for holding out
- Example situation - A, B and C who is a partner were talking with E and F. A third party who deal with E and F has been lead to think that both of them are partner to A, B and C. Nevertheless, A, B and C did not denied or correct the statement. If the third party sued E and F, A, B and C will also be liable
William Jack Co (Malays) Ltd v Chan & Yong Trading Co
FACT: A minor who is on of the partner in the partnership had approached a salesman for the purpose of obtaining a supply
ISSUE: Whether the partnership should be made liable when the partnership cannot pay for the minor dealing
HELD: The court held that when there is no correction on the statement by a person, the firm is liable. Holding out must be read together with the doctrine of estoppels which mean that the firm will be stop from denying that the particular person is not the partner
i. Retiring partner
Retiring partner needs to give notice of his retirement to any person who used to deal with the firm by way of publication
Re Siew Inn Steam Co
FACT: A retired partner had put in notice of his retirement in several issues of a newspaper in which certain old customer were proved to be regular subscriber. However after his retirement, some of the old customer lends money to the firm partnership. Nevertheless, the firm failed to pay back the loan
HELD: The court held that the retired partner as liable because he failed to serve actual notice to the customer. However, this is not a good judgment as for today, publication is a sufficient notice
Tower Cabinet Co Ltd v Ingram
FACT: There is a partnership of 2 person; Christmas and Ingram and the name of the partnership is Merry's. The partnership was dissolve in April 1947, but Christmas still carried on the business under the same name. In 1948, the plaintiff (P) had supplied the partnership with furniture but there was no payment made by Christmas. Before the supplier sent the goods to the partnership, they relied on the old headed note paper bearing the partnership's name. The order was made without any authority from Ingram. Ingram, on the other hand did not destroyed all of the paper containing the letterhead of the firm
ISSUE: Whether Ingram can be made liable to pay the debts made by Christmas
HELD: The court held that Ingram was not liable because he had not knowingly suffered himself to be represented as a partner because he did not know that the old partner still carrying the business under the same partnership's name
ii. Death of partner
- Section 16 of the PA stated that the death partner will not be made liable on any liability incurred to the partnership after his death
- Furthermore, there is no requirement to give notice to the public at large
f. Liability of incoming and outgoing partner
i. Incoming partner
- Section 19(1) of PA stated that in the case of incoming partner, the liability will only incurred upon him after he become partner to the firm
- Further, any liability imposed to the firm before the incoming partner arrival, he will not be made liable for that liability
Rolfe and Bank of Australasia v Flower Salting & Co
HELD: The court held that the new partners were held liable to the debts of the old firm as they had impliedly agreed to accept liability by not objecting to the accounts provided by the creditors. In other word, a new partner will still be made liable to the debts of his old firm even though he has joint a new firm
ii. Outgoing partner
- Section 19(2) of PA stated that in the case of outgoing partner, the liability will only be imposed up until the day he leaves the partnership
- Further, any liability imposed to the firm during his time in office will still be carried even after he leaves the partnership
Malayan Banking Bhd v Lim Chee Leng & Anor
FACT: The respondent (R) was partners to a firm know as Berjasa Corporation. A sued R under a trust receipt which matured and become payable on 14 June 1975. Nevertheless, R leaves the partnership on 26 August 1976
HELD: The court held that R is liable because the liability incurred prior to his resignation
Court v Berlin
FACT: A firm engaged solicitor to sue on their behalf. 2 partners retire while the case in ongoing.
ISSUE: Whether the retiring partners are liable for the solicitor's costs incurred after their retirement
HELD: The court held that they were, as the solicitor's appointment consists of one entire contractor carry on the action to the end
- Nevertheless, Section 19(3) of PA, the outgoing partners can be exempted from liability by way of agreement made between the partners
That's all for now.
Tuesday, April 22, 2008
Jurisprudence - Lesson 3
- It is a contested concept as there are many different theoretical approaches dispute over its correct explanation or definition, and also disagreeing about its practical relevance
- Person (King, Monarch, Sultan), groups (Judicial Council), state (Sovereign State) developed the idea of one person authority to the idea of people or the idea of “we”
- The idea of “we” provide for a constitution
- A sovereign state can be define as a state that has been mutually recognized and there is no other state that possesses the right to invade it regardless of the size or population or any other element of the state
a. Origin of Sovereignty
i. Based on Thomas Hobbes
- The social contract theory
- Man and women were living in the state of nature where there is chaos, brutality and war against each other
- When people realized that they cannot live in this kind of live, they claim to agree to an appointed government
- The idea of social contract provide for security which will lead to sovereignty
ii. Based on John Locke
- Originally, sovereignty was governing under the Monarch or King which stated that is it a divine right of the King to rule over its people
- This later move to a rule of consent of people and the government
b. Sovereignty Leads to Revolution
i. America War of Independence
- The idea of sovereignty make the people of America to realized that they want an independent from the British colonization
- They don't want to be rule by the British King but decided to be governed by themselves
- Hence, they become republic under the name of United States of America
ii. French Revolution
- This revolution stated that the government should lies in the hand of the people and not the king
-Both revolution promote the idea of self-government by people
-Self-government state leads to the making of referendum which will be used in order to make constitution
c. Popular Sovereignty
-Sovereignty evolves from the Devine Right of kings to Popular Sovereignty
i. Features of Popular Sovereignty
- Denial of supremacy on anyone of the organ of the state
- State as a whole is sovereign, but it hard to define what is sovereign inside a state, nevertheless, in order to secure the sovereignty, mutual recognition or respect by other state must be obtained
- External sovereignty happens when 1 country did not recognized another country sovereignty such as the relationship between China and Taiwan
- Sovereignty under international law recognized each state as possessing sovereignty
d. Weakening of the Concept of Sovereignty
- Emergence of States Association such as European Union weakening the sovereignty of a country as they make law for the country enlisted with them, but does it represent sovereign body?
- Treaties signing lead to a question on whether the state sovereignty has been surrendered or limited when treaties are sign as they are bound by any superior or higher authority in the treaties or agreement
- Power will lead to sovereignty which will lead to the Rule of Law
- Rule of law promotes that no other person shall be above the law, rule are made according to the law, official of the government must be acting according to the law, and fairness justice which mean law based on normative standard must be observed
- Before rule of law exist, there was rule of men by men which is upheld by the church
- This rule leads to; uncertainty as the decision of the king will not be certain in the judgment of a case, unpredictability as the king's decision cannot be predict, and irrationality as the king is only human and might not give a rational judgment as it can be bias on certain values, tradition or belief
- Rule of Law resolves the problem of uncertainty, unpredictability, and irrationality
The need of rule of law comes from the arising capitalist as they prefer to have a certainty, predictability and rationality in a decision that is important for their business - Rule of law guaranteed of provided for; certainty of conduct of officials, security of expectation of conduct, clearly stated rules, rules or laws are prospective and not retrospectives, law is generally applied, coherent clear patent of demand and open to interoperation and not absolute
That's all for now.