Courts and Jurisdiction

(1) Arbitration
 Is a form Alternative Dispute Resolution
 Governed by Arbitration Act 2005 (as amended)
 Private and Confidential
 Subject to the parties agreement
 Awards are final, generally not appealable
 The judicial trend now is to support arbitration, not to go into the court.
Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd(2016)
 S.10 Arbitration Act 2005
 Allows the counter party to apply for stay of proceedings pending
referral of the dispute to arbitration.
 Conditions
 There must be a binding arbitration agreement between the parties.
 Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd(2016)
 The court will lean towards granting the stay, even in the case where the
court is in some doubt about the validity of the arbitration clause, or
where it is arguable whether the subject matter of the claim was within
or outside the ambit of the arbitration clause.
 In essence, in cases of doubt, go for arbitration

(2) Sources
 Federal Constitution
 Court of Judicature Act (CJA) 1964
 Subordinate Court Act (SCA) 1948
 Subordinate Court (Amendment) Act [SC(A)A] 2010

(3) Court Hierarchy

Federal Court
Court of Appeal
Appellate High Court
SUPERIOR
Courts COURTS
Malaya Sabah and  Governed by
Sarawak CJA 1964

Sessions Court
Magistrates’ Court
SUBORDINATE
Court of COURTS
First Class Second Class  Governed by
First SCA 1948
Magistrate Maistrate
Instance 
O.59 r.16(6) RC 2012
 A party may be penalized in cost if an action is filed in the wrong court
(4) Monetary Jurisdiction(General)
 a) First Class Magistrates’
 S.90 SCA 1948 (as amended)
 ≤RM 100,000
 Small Claims
b) Second Class Magistrates’
 S.92 SCA 1948 (as amended)
 ≤RM 10,000
c) Sessions
 S.65(1)(b) SCA 1948
 ≤RM 1,000,000
 Exceptions
 S.65(1)(a) SCA 1948
 Motor vehicle accidents
 Landlord & Tenant
 Distress => a summary remedy of seizure of tenant’s property
for non-payment of rental.
 S.7 Contracts Amendment Act 1976
 Scholarship agreements
d) High Court
 Procedural Rules
 O.1r.8(1) RC 2012
 High Court only
 S.23 CJA 1964
 Unlimited monetary jurisdiction
 Bank Negara Malaysia v Gerald Glesphy(1992)
 It remain open to a plaintiff to file a claim in the High Court which
is within the jurisdiction of the Sessions Court.
 The adverse effects could arise from such a step would be cost
penalty.
e) Court of Appeal
 No original jurisdiction
f) Federal Court
 Original jurisdiction only for matters under Art.128(1), Art.128(2) and
Art. 130 FC
 Where the validity of legislation is in question.
 Dispute between states or between Federal Government and State.
 Constitutional questions.
g) Small Claims
 O.93 RC 2012
 O.93 r.1 RC 2012
 Individual plaintiff to defendant (can be company)
 O.93 r.2 RC 2012
 ≤ RM 5,000
 O.93 r.7 RC 2012
 No legal representation except where the defendant is required by
law to be represented by an authorized person.

(5) Exception to Monetary Jurisdiction

  Interest
 Foo Sey Koh v Chua Seng Seng(1986)
 Principal + Interest > limit
 Ignore the interest
 Since the interest is purely discretionary
 CAVEAT
 Contractual interest => interest is certain
 It must be taken in as well
 Exception
Agreement Relinquishment Counter-Claim
Sessions Court S.65(3) SCA 1948 S.67 SCA 1948 S.66 SCA 1948
Magistrates’ S.65(4) SCA 1948 S.67 SCA 1948 S.66 SCA 1948
Court  Agreement  Relinquishment  Counter-claim
 Imported  Writing &  BUT! No  Competence unaffected to
by S.93 filed splitting (S.68 the quantum of the case
SCA 1948 SCA 1948)  Cannot award excess
 Subramaniam
Paramasiram v Malayan
Finance Bhd(2008）
 Party with counter
claim should
diligently explore
avenues under S.65(3)
first.
 Transfer application
should be made only
when other side
unreasonably refuses
or delays to agree.
Try vs Award  May hear and  May hear; but  May hear; but not award in
 Jurisdiction award in not award in excess
to try, hear excess excess
and
determine
is different
from
jurisdiction
to award

(6) Subject Matter Jurisdiction

a) General
 The High Court has exclusive jurisdiction over certain types of claim or
relief.
 Neither the Sessions Court (S.69) nor the Magistrates’ Court (S.93) may
try the following matters:
a) Land-related claims
b) Specific performance / rescission
c) Injunctions
d) Instruments : cancellations / rectification
e) Trusts
f) Accounts
g) Declarations
 Exception : Interpleader proceedings
 S.65(5) SCA 1948
h) Estates of Deceased Persons
 Issue of probate or letters of administration
 Revocation of probate or letters of administration probate
matters
 Administration and distribution of estates.
i) Where the controversy concerns the legitimacy of a person
j) Guardianship / custody of infants
k) Marriage
 Validity
 Dissolution

b) Certain Remedies
i. S.65(1)(c) SCA 1948
 With the deletion of S.69(b) and the introduction of a new S.65(1)©,
the Sessions Court now has jurisdiction to order:
 Specific performance
 Rescission
 Cancellation of instruments
 Rectification of instruments

ii. S.65(5) SCA 1948

 With the deletion of S.69(c) and the introduction of a new S.65(5),
the Sessions Court now has jurisdiction to order:
 Injunctions
 Declarations
 S.69(g) is subjected to S.65(5), S.65(5) is expressly empowers declarations.

c) Land-related Claims
 i. General Rule
 S.69(a) SCA 1948
 The Sessions Court does not have jurisdiction to hear civil
claims relating to immovable property.
ii. Exception
 S.70(1) SCA 1948
 A claim for recovery of land or repossession of land may be
tried in the Sessions Court.
iii. Supplementary claims
 S.70(2) SCA 1948
 A money claim may be added to the claim for recovery of the
land.
 This includes a claim for rent, mesne profits, damages for
breach of covenant or damages consequential to the defendant
holding over or resisting the plaintiff’s right to re-enter the
premises.
iv. Exception’s exception
 S.70(4) SCA 1948
 If there is a “bona fide question of title involved”, Sessions
Court should not exercise jurisdiction to hear the matter.
 Hiew Kim Swee v G.C.Gomez(1955)
v. Exception to the Exception’s exception
 S.71 SCA 1948
 Enables the parties to confer jurisdiction on the Sessions Court
by agreement; provided all the parties consent.
 By virtue of S.936(1) SCA 1948, S.69 applies to the Magistrates’ Court. The
exception and ‘exception’s exception are also made applicable, with the
necessary modifications
 Do note, however, that S.71 is not applicable.

(7) Territorial Jurisdiction

a) High Court
 Art.121 FC
 There are only 2 separate and coordinate High Courts
 S.3 CJA 1964
 High Court of Malaya
 High Court of Sabah and Sarawak
 Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd(1988)
 HC held that each branch of the High Court has concurrent
jurisdiction, regardless of whether the cause of action arose within
that state;
 However, D must not be put to inconvenience.
 S.23(1) CJA 1964
 Subject to Art.128FC, the High Court shall have jurisdiction to try
all civil proceedings where -
a. The cause of action arose;
b. The defendant or one of several defendants resides or has his
place of business;
c. The fact on which the proceedings are based exist or are alleged
to have occurred; or
d. Any land the ownership of which is disputed is situated,
Within the local jurisdiction of the court and, notwithstanding
anything contained in this section, in any case where all parties
consent in writing within the local jurisdiction of the other High
Court.
 Can the parties by agreement confer territorial jurisdiction on the High
Court?
 Yes
 CCM Chemicals Sdn Bhd v Urethane Technologies Sdn Bhd(2007)
 The correct interpretation of S.23 is to allow one High Court to
accept jurisdiction of the other High Court where the parties
consent in writing.

b) Subordinate Court
  S.59 SCA 1948
 A Sessions Court shall have jurisdiction to hear and determine any
civil cause or matter arising within the local limits of jurisdiction
assigned to it.
 S.76 SCA 1948
 For Magistrates’ Court
 Given that the local limits of jurisdiction have yet to be assigned, what
territorial limits apply to the Sessions and the Magistrates Court?
 All the Sessions Court have concurrent jurisdiction throughout the
Peninsular.
 Para 2 Third Schedule SCA 1948
 The district in which:
a. The cause of action arose;
b. The defendant resides or has his place of business;
c. One of several defendants resides or has his place of business;
d. The facts on which the proceedings are based exist or are
alleged to have occurred; or
e. For other reasons it is desirable in the interests of justice that the
proceedings should be heard in that court.
 Why there is no equivalent of S.23(1)(d) CJA 1964?
 Subject Matter of land is not to be expected for Subordinate Court.
 Is it possible for parties to confer territorial jurisdiction on a Subordinate
Court by way of written consent?
 No, SCA has no equivalent to the Proviso to S.23(1) CJA 1964

c) Cases
 Distillers Biochemicals v Thompson(1971)
 “cause of action” meant “the act on the part of the defendant which
gave the plaintiff cause of complaint”.
 On the fact, act complained of one D’s failure to warn P’s mother.

 Enersafe Sdn Bhd v Megarina Sdn Bhd(2006)

 Read disjunctively, not conjunctively

 Bank Bumiputra Malaysia Bhd v The International Tin Council &

Anor(1989)

 Mee Ying Enterprise Jewellers(suing as a firm) v Che Jah

Abdullah(1992)
 Para (a)-(d) S.23 CJA must be read disjunctively
 So long as one para is satisfied, the High Court has jurisdiction.

 Malayan Banking Berhad v International Tin Council & Anor(1989)

 S.23(1)(b) confers extra-territorial jurisdiction so long as one D is
within Malaysia.

(8) Special Court

 To punish the rulers who misbehave
  Art.183 Federal Constitution
 Art.182(1) FC
 This special court consist of
a. Chief Justice of the Federal Court
b. Chief Judge of the High Courts
c. 2 other persons who hold or have held office as judge of the Federal
Court or a high Court appointed by the Conference of Rulers.
 The rules of procedure are set out in the Rules of the Special Court 1994.
 The special court may sit at the premises of the Federal Court at Kuala
Lumpur on such dates and at such times as the Chief Justice may from time
to time appoint.
 The Chief Justice is given the power to issue such procedural or
administrative directions for the implementation of the rules or of any rules
of court as he considers necessary.
 Art.183 Federal Constitution
 No action shall be instituted against Yang Di Pertuan Agong and Rulers
in their personal capacity unless AG personally gives consent.

(9) Miscellaneous
a) Choice of Law Clauses
 The governing law of the contract or the proper law of the contract
 Choice of law clauses will not oust the Malaysian Court’s jurisdiction to
try disputes arising from such agreement.
 Elf Petroleum S.E. Asia Pte Ltd v Winelf Petroleum Sdn Bhd(1986)
 Parties agreed that Singapore Law would govern any dispute
 High Court held however that this did not oust the jurisdiction of the
Malaysian Courts to try an action arising out of the agreement.

b) Choice of Jurisdiction
 The court’s jurisdiction cannot be ousted by private contract.
 ISC Technology Sdn Bhd v Premium Technology Pte Ltd
 Look at statement of claim and apply S.23(1) CJA
 Contract per se does not determine jurisdiction
 This notwithstanding, the court are loathe to allow parties to breach their
contracts, and will “notwithstanding give effect” to such clauses (per
Lord Denning, The Fehmarn) as “parties should abide by [their]
contracts”(per Lord Denning, The Fehmarn)
 Cargo Lately Laden On Board The Rehmarn v Fehmarn(1958)
 The Court may in its discretion stay proceedings brought in violation
of a choice of jurisdiction clause.

c) Arbitration Clauses
 Stay of proceedings pending referral of the dispute to arbitration
  Section 10 Arbitration Act 2005
 Conditions : there must be a binding arbitration agreement between
the parties.
 Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd(2016)
 Makes it very clear that S.10 Arbitration Act 2005 enders a stay
mandatory.
 No waiver of the right to arbitrate
 If take step in proceeding, will waive right to arbitration, there will be an
exempted step, i.e. entry of appearance.

d) Foreign Currency
i. Earlier Case
 Overseas Chinese Banking Corporation v Fim of Yaik Joo
Ann(1936)
 Ascot International Pte Ltd v Elevic Trading Sdn Bhd(1996)
 A judgment can only be in local currency, and from this it would
appear to follow that the claim must also be expressed in local
currency.
ii. Development of English Case
 Schorsch Meier GmbH v Hennin(1975)
 Less stringent than the Miliangos case
 German sellers sold goods to an English buyer
 Currency of the contract: Price expressed in Deutschmarks
 Court held that it could give judgment for the amount of price in
the Deutschmarks
 Miliangos v George Frank (Textiles) Ltd(1975)
 Swiss textile producer v English buyer in English Court
 Whether English Court could give judgment in foreign currency
 Key facts:
 Currency of the contract => Price quoted in Swiss Francs
 Governing Law of the contract => Swiss Law governed
 HOL held that English Courts could give judgment in foreign
currency
 BUT, when is this allowed?

iii. Position Today

 Inter Diam Pte Ltd v PJ Diamond Centre Sdn Bhd(2002)
 Statement of Claim:
  “and the plaintiff claims from the Defendant:…the sum of
USD 86,488.10 or its equivalent in Malaysia Ringgit on the
date of judgment.”
 The defendant argued that part of the claim flouted the rule that
a claim had to be converted and expressed in our local currency.
 Hishamuddin J expressly departed from the earlier judgments of
the court of concurrent jurisdiction in Ascot International Pte
Ltd v Elevic Trading Sdn Bhd and the earlier decision in
Oversea Chinese Banking Corporation Ltd; the Judge was of the
view that the principles were unsuitable to the present
international economic environment.
 “But how should it be changed? If the principle in Schorsch
Meier were t be followed, our courts can only give judgment in
a particular foreign currency where such currency is the
currency of the contract.”
 “But if the principle in Miliangos were to be adopted, then the
requirements are more stringent: our courts can only give
judgment in a particular foreign currency if 2 conditions are
satisfied :
 Where such currency is the currency of the contract
 The proper law of the contract is the law of the country of
that currency”
 “On my part, I prefer the less stringent principle as enunciated
in Schorsch Meier.”

(10) Transfer of Proceedings

a) Provisions
 Paragraph 12 Schedule CJA 1964
  Power to transfer any proceedings to any other court or to or from
any subordinate court, and in the case of transfer to or from a
subordinate court to give any directions as to the further conduct
thereof:
Provided that this power shall be exercised in such manner as may
be prescribed by any ruled of court.
 Paragraph 3(2) Third Schedule SCA 1948
 Power, on application or of its own motion, to transfer any
proceedings to another court of co-ordinate jurisdiction.
 Order 57 RC 2012
 Procedure for transfer of proceedings

b) Grounds: Conveniently and fairly tried

 Abdullah bin Haji Lamat v Supreme Finance (M) Bhd
 The magistrate’s discretion wjhether to allow the transfer must be
exercised judicially, regard to be given to all the circumstances of
the case…
 The forum conveniens
 The financial position and hardship on the defendant
 The defendants’ ability to defend the action in KL and the
plaintiff’s waiver of his right to sue in KL.
 Malacca Securities Sdn Bhd v Loke Yu(1999)
 The words ‘any proceedings’ in Para 12 were sufficiently wide to
cover the power to order the transfer of the following proceedings:
a) From the High Court to any subordinate court and vice versa
b) From any Sessions Court to any Sessions Court and vice versa
c) From any Sessions Court to any Magistrate’s court and vice
versa
 Under Para 12 only the High Court had the power to transfer a civil
case from a Sessions Court to a Magistrate’s Court and vice versa.
 Hap Seng Plantations Sdn Bhd v Excess Interpoint Sdn Bhd(2016)
 The parties wanted to transfer the proceedings from Sabah &
Sarawak High Court to High Court in Malaya
 This would not be allowed and inconsistent with Art.121 Federal
Constitution
 This is similar for another way
 Art.121 FC
 There shall be two High Court of co-ordinate jurisdiction and
status…
 Co-ordinate jurisdiction means separate and distinct jurisdiction