ADDITIONAL REVISION READING MATERIALS & CASE UPDATE MAY 2020

Handout 1- May/JUN2020

1. Issue.
Failure to Respond to a Demand. Does it amount to Admission?

PECD Construction Sdn Bhd v. Freehold Point Sdn Bhd [2008] 3 CLJ 215
It must also be noted that in commercial cases (not civil), courts have taken notice that, in the ordinary
course of business, if one man of business states in a letter to another that he has agreed to do certain
things, the person who receives that letter must answer it if he means to dispute the fact that he did so
agree.

There is a Latin maxim which says ‘silence amount to consent’. (See Quit tracet consentire videtur).
However, this is not part of our law of evidence. Failure to respond goes to conduct and is a relevant
fact and not an admission as stated in illustration (g) of s. 8 of EA 1950, which reads as follows:

(g) The question is whether A owes B RM10,000.

The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing: “I
advise you not to trust A for he owes B RM10,000,” and that A went away without making any
answer are relevant facts.

David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155.

The Court of Appeal went to the extreme end to say that failure to respond on the facts of the case
should lead to entering of judgment.
Justice Gopal Sri Ram JCA at p. 159, had this to say:
“On December 17, 1991, the respondent wrote to the appellant confirming an agreement
between them whereby the former was to receive an additional fee of RM100,000 if he
assisted in resolving the problem regarding the access. It is the respondent’s case that he
did in fact obtain the required access through his exertions. The appellant, however, denies
any agreement to pay the additional fee. In respect of this sum, the learned Judge granted
leave to defend. We would digress for a moment to say a few words about this latter order
of the learned judge. During argument, we registered our surprise at the learned Judge’s
reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed
to respond to the letter of 17 December. If there had never been an agreement as alleged, it
is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was
no response whatsoever from the appellant.”

Small Medium Enterprise Development Bank Malaysia v. Lim Woon Katt [2016] 9 CLJ 73,
As regards the letter of demand dated …..,Defendant admitted receiving it. No evidence has been led
to show that it was responded. In this regard I refer at p.80, the Court of Appeal held that:
"In abundance of caution we must say that failure to respond must not be equated to admission
of the claim under s. 17 of the Evidence Act 1950 (EA 1950). Failure to respond will relate to
conduct under s. 8 of the EA 1950. Conduct is a relevant fact for the court to take into account
to give the relevant probative force to the version of the plaintiff and/ or defendant's case.".

Although I do not take it as admission, it does tend to support the plaintiff's evidence.

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2. Enforcement of judgments and orders after lapse of six years.

Whether leave application for enforcement of judgments and orders supported by affidavit
explaining reasons for delay – Whether statutory requirements satisfied – Rules of Court 2012,
O. 46 r. 3

PACIFIC SANCTUARY HOLDINGS SDN BHD v. MASALAND CONSTRUCTION SDN

BHD COURT OF APPEAL. [2020] 4 CLJ 490
The appellant (‘defendant’), a company carrying the business of property development, entered into
an agreement with Majlis Kebajikan dan Rekreasi Kakitangan Kerajaan, Sabah (‘MAKSAK’) to
develop MAKSAK’s land into a mixed and commercial cum office complex (‘project land’). The
new shareholders of the defendant later discovered that there was a pending suit filed by the
respondent (‘plaintiff’) against the defendant where a default judgment (‘2009 judgment’) was
entered and damages in the amount of RM10,301,791 were awarded to the plaintiff (‘2011
judgment’). The defendant was unsuccessful in its attempt to set aside the default judgment and the
award of damages. The plaintiff then presented a winding-up petition against the defendant and the
parties entered into a settlement agreement where (i) the plaintiff agreed not to enforce any and/or all
of its claims under the judgment and to withdraw the winding-up proceedings in consideration of the
defendant agreeing to pay the plaintiff the sum of RM11,627,834.76 by way of cash payment and
contra of properties which were being erected on the project’s land; and (ii) by virtue of cl. 10, upon
full settlement of the settlement sum, there shall be no further and/or any claims against the defendant
under the 2009 and 2011 judgments. According to the defendant, it had fully carried out its part of
the bargain under the settlement agreement by (i) making cash payment of RM5,000,000, plus
accrued interest of RM244,494.89, to the plaintiff; and (ii) executing sale and purchase agreements
to convey ten units of the commercial lots in the defendant’s development, which were still under
construction, to the plaintiff. However, after a lapse of almost six years, the defendant received (i) a
notice of termination in relation to the settlement agreement from the plaintiff; and (ii) a notice
pursuant to s. 466 of the Companies Act 2016 (‘statutory notice’), claiming the sum of
RM8,603,256.56 in respect of the 2011 judgment. In response to the statutory notice, the defendant
argued that (i) the plaintiff’s demand was without any basis; (ii) the judgment debt under the civil
suit had been fully settled down by contra and cash payments; and (iii) its obligation to pay the
judgment debt had effectively been subsumed in the settlement agreement and, as such, the plaintiff
could not rely on the 2011 judgment as evidence of the defendant’s indebtedness to issue the statutory
notice. The plaintiff later withdrew the statutory notice and, instead, applied for leave under O. 46 r.
2 of the Rules of Court 2012 (‘ROC’), at the High Court, to proceed with the execution of the 2009
and 2011 judgments and orders on the grounds that the defendant had breached the settlement
agreement and the plaintiff had terminated the settlement agreement. The Deputy Registrar dismissed
the plaintiff’s leave application. Dissatisfied with the said decision, the plaintiff appealed to the
judge-in-chambers and the appeal was allowed. Hence, the present appeal by the defendant.

Held (allowing appeal with costs):

(1) The leave applied by the plaintiff, to execute the 2009 and 2011 judgments and orders, was made
under O. 46 rr. 2(1)(a) and 3 of the ROC. The application must be supported by an affidavit stating
or explaining the reasons for the delay. However, the affidavit-in-support of the plaintiff’s leave
application did not disclose any explanation as to the reasons for the delay in enforcing the judgments
and/or order offered by the plaintiff. On this ground alone, there was sufficient ground for the Judicial
Commissioner (‘JC’) to decline to exercise his discretion to grant leave to the plaintiff to proceed
with the execution against the defendant. Since there was no explanation given by the plaintiff for
the delay, it was clear that the plaintiff failed to satisfy the requirements stipulated under O. 46 r. 3
of the ROC.

(2) The JC erred in law and in fact, in granting leave to the plaintiff, by failing to take into
consideration that there was no longer any pending judgments and/or orders of the court to be
enforced as the said judgments/orders have been superseded or extinguished by the settlement
agreement entered between the parties. The settlement agreement constituted a new and independent

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 agreement for good consideration. Its effect was to supersede the original cause of action altogether
and to put an end to the proceedings, which were spent and exhausted. The parties were, therefore,
precluded from taking any further steps in the action.

(3) Even if the defendant had defaulted in the payments under the settlement agreement, which was
denied by the defendant, the plaintiff’s remedy was confined to taking a fresh action to enforce the
settlement agreement and not by way of executing the 2009 and 2011 judgments and/or order which
was rendered otiose by the settlement agreement.

Extract of the Decision of the CA. per Kamardin Hashim JCA

Public Bank Bhd v. Seato Trading (M) Sdn Bhd & Ors [1996] 1 MLJ 165,
The Court stated as that granting leave to execute judgment is a discretionary exercise by the Court.
The Court accepts negotiations, settlements or part payments between parties as a valid reason for not
executing judgments. However, when the negotiations, settlement or payments terminates or ceases
then the Court would accept the above as valid reason for the delay and exercise discretion to grant
leave to execute.

Malayan Banking Bhd v. Foo See Moi [1981] 2 MLJ 17.

The judgment in default for RM674,539.53 was similarly not executed because of the subsequent
agreement between parties. The Defendant agreed to pay part of the judgment sum immediately and the
balance by instalments. Subsequently, there was a breach and RM50,000 balance remain unpaid, the
defendant asked for more time. The Plaintiff then rescinded the agreement and demanded the balance
of the judgment. On appeal the Federal Court allowed the Plaintiff application for leave to execute the
judgment.

Affin Bank Bhd v. Wan Abdul Rahman Wan Ibrahim [2003] 1 CLJ 826.
The appellant as the plaintiff in the court below applied pursuant to O. 46 r. 2(1) of the old Rules of the
High Court 1980 (in pari materia with O. 46 r. 2(1) of the ROC 2012) for leave to commence execution
proceedings against the defendant after six years had lapsed from the date of judgment. The application
was dismissed by the trial judge on the basis that the appellant failed to furnish cogent and acceptable
reasons for the grant of leave. In dismissing the plaintiff’s appeal, this court through Arifin Zakaria JCA
(as he then was) stated that:
“It is trite that the grant of leave under O. 46 r. 2 is in the court’s discretion. Order 46 r.3
states that an application under O.46 r.2(1) must be supported by and affidavit stating, when
the case falls within r. 2(1)(a), the reasons for the delay in enforcing the judgment or order.
Therefore, it is incumbent upon the applicant to furnish the court with sufficient reason in
support of such an application. What is sufficient reason? This naturally will vary from case
to case. It is not possible for this court to provide an exhaustive list of what is considered to
be sufficient reason”

On facts of the case

We had perused the affidavit in support of the plaintiff’s leave application at pp. 19-22 of the appeal
record part B and we could not find any explanation as to the reasons for the delay in enforcing the
judgments and/or order offered by the plaintiff. On this ground alone, in our view, there was sufficient
ground for the learned JC to decline in exercising his discretion to grant leave to the plaintiff to proceed
with the execution against the defendant. Since there was no explanation given by the plaintiff for the
delay, it is thus clear that the plaintiff has failed to satisfy the requirements stipulated under O. 46 r. 3
of the ROC 2012.

Another interesting point- substantive law

The settlement agreement constitutes a new and independent agreement for good consideration. Its
effect in law is to supersede the original cause of action altogether and put an end to the proceedings,
which are thereby spent and exhausted. The parties are therefore precluded from taking any further
steps in the action.

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We further agreed with the defendant that even if the defendant had defaulted in the payments under
the settlement agreement which is denied by the defendant, the plaintiff’s remedy is confined to taking
a fresh action to enforce the settlement agreement and not by way to execute the judgments and/or order
which was rendered otiose by the settlement agreement.

The Singapore Court of Appeal in Indian Overseas Bank v. Motorcycle

Industries [1973] Pte Ltd and Others [1992] 3 SLR (R) 841 held:
“The effect of a settlement or compromise agreement is stated in Halsbury’s Laws of England
vol 37 (4th Ed) at para 391 as follows:
Where the parties settle or compromise pending proceedings, whether before, at or
during the trial, the settlement or compromise constitutes a new and independent
agreement between them made for good consideration. Its effects are (1) to put an end
to the proceedings, for they are thereby spent and exhausted; (2) to preclude the parties
from taking any further steps in the action, except where they have provided for liberty
to apply to enforce the agreed terms; and (3) to supersede the original cause of action
altogether …

An agreement for a compromise may be enforced or set aside on the same grounds and
in the same way as any other contract …”

In arriving at the above decision, the Singapore Court of Appeal applied the principles stated by the
English Court of Queen’s Bench Division in Green v. Rozen [1955] 1 WLR 741. The facts were as
follows:
The plaintiff had brought an action to recover £500 money lent by him to the defendants jointly,
and a further sum of £50, alleged to have been due from the first defendant as consideration for
making the loan to the three defendants. When the action came on for hearing, Counsel
informed the Court that the action had been settled and what the terms of settlement were. By
the agreed terms, which were set out on the backs of Counsel’s briefs and signed by Counsel
for both parties, the defendants were to pay to the plaintiff a sum of £450 by instalments, on
the dates stated, and the taxed or agreed cost with the final instalment. If any instalment was in
arrear, the whole debt and costs became due and payable at once. The defendants having failed
to pay the last instalment and the costs, the plaintiff made an application in the original action
asking for judgment for the amount of the final instalment and an order for the costs. Slade J
held that the application must be refused because, the Court have made no order in the action,
the agreement compromising the action between the parties completely superseded the original
cause of action and the Court had no further jurisdiction in respect of that cause of action. His
Lordship went on the say that if the terms of the new agreement were not complied with, then
the injured party must seek his remedy on the new agreement. In other words, the plaintiff’s
only remedy was to bring an action on the agreement of compromise.

The principles laid down in the Indian Overseas Bank (supra) was applied by the Singapore Court of
Appeal in Turf Club Auto Emporium Pte Ltd and Others v. Yeo Boong Hua and Others and
Another Appeal And Other Matters [2017] 2 SLR 12 where the court held inter alia, that a settlement
agreement which had been entered into for good consideration had the following effects:
(a) it would put an end to the proceedings, which would thereby be spent and exhausted;
(b) it would preclude the parties from taking any further steps in the action, except where they had
provided in the settlement agreement for liberty to apply, in the same action, for the purpose of enforcing
the agreed terms; and
(c) it would supersede the original cause of action altogether.

In Sambu (M) Sdn Bhd v. Stone World Sdn Bhd & Anor [1996] 2 CLJ
523, Abdul Malik Ishak J (later as JCA) held that where the parties had settled or compromised pending
proceedings, the settlement would put an end to the proceedings, preclude the parties from taking further
steps in the action and supersede the original cause of action.

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Conclusion
For the reasons above, we find merits in the appeal. The appeal was allowed with cost of RM7,000
subject to payment of allocator fee. We set aside the decision of the High Court.

Order 14A and Defamation Action-Applicable?

CHONG CHIENG JEN v. GOVERNMENT OF STATE OF SARAWAK & ANOR [2019] 1 CLJ
329 FEDERAL COURT, PUTRAJAYA
The first respondent (‘the first plaintiff’) was the Government of the State of Sarawak while the second
respondent (‘the second plaintiff’) was the State Financial Authority of the first plaintiff. The appellant
(‘the defendant’), the then Vice Chairman of the Democratic Action Party (‘DAP’), was a member of
Parliament and a State Assemblyman. The plaintiffs sued the defendant at the High Court for libel,
alleging that the latter made defamatory statements concerning mismanagement of the State’s financial
affairs (‘the statements’). The statements were published in Sin Chew Daily, the DAP’s leaflets and the
online news portal, Malaysiakini. The defendant pleaded the defence of justification, fair comment,
qualified privilege and s. 8 of the Defamation Act 1957. The defendant then filed a notice of application,
pursuant to O. 14A of the Rules of Court 2012 (‘ROC’), for question of law to be determined by the
High Court, namely (i) whether the plaintiffs had the right to sue and maintain an action for defamation
against the defendant (‘question (i)’); (ii) whether the actual words complained of must be pleaded or
set out in the amended statement of claim (‘ASOC’); (iii) whether the words complained of, derived
from the alleged Malaysiakini, were capable of bearing any defamatory meaning and/or capable of
being understood to refer to the plaintiffs as a matter of law; and (iv) whether, in an action for libel,
it was permissible in law to group together several articles from different publications in the
ASOC, without spelling out, separately and distinctly, what was the precise and pleaded defamatory
meaning(s) or imputation(s) that each article was capable of conveying against the person defamed.
The High Court Judge (‘the HCJ’) determined the last three questions in favour of the plaintiffs. In
answering question (i) in the negative, the HCJ relied on the principle in Derbyshire County Council
v. Times Newspaper Ltd & Ors (‘Derbyshire’) and held that although a State Government or a statutory
body could sue and be sued, that right to sue did not extend to the right to sue for defamation. Following
the answer to question (i), the HCJ dismissed the plaintiffs’ claim. The defendant appealed against the
decision of the HCJ to the Court of Appeal where the only issue for determination was question (i) ie
whether the plaintiffs could sue for defamation. The majority of the panel members of the Court of
Appeal answered question (i) in the affirmative and held that, since all four questions were answered
in favour of the plaintiffs, the plaintiffs’ claim had been established without any further need to hear
evidence from the defendant nor for further argument before the HCJ. In the circumstances, judgment
was entered in terms of prayers (1) and (2) of the ASOC and damages were ordered to be assessed by
the Deputy Registrar of the High Court. The minority judgment, on the other hand, upheld the HCJ’s
decision that the first plaintiff, an organ of the Government, had no right to sue for defamation
based on Derbyshire. The minority judgment was of the view that s. 3 of the Government Proceedings
Act 1956 (‘the GPA’) was a general piece of legislation to clothe the Government with the legal status
to sue and be sued, nothing more or nothing less. In the present appeal, the questions that arose for
determination were whether s. 3 of the GPA precluded the principle in Derbyshire to be extended to
the first plaintiff (‘question 1’); (ii) whether s. 3(1)(c) of the Civil Law Act 1956 precluded the principle
in Derbyshire to be extended to the first plaintiff (‘question 2’); and (iii) whether a party who makes an
application under O. 14A of the ROC to determine one or more of the issues, but not all, pleaded by
the party, is deemed to have elected to have abandoned all other causes of action, issues or defences
pleaded by the party (‘question 3’).

In an action for defamation, the first task of the court is to determine whether the words complained of
are capable of bearing a defamatory meaning. This is a question of law which turns upon the
construction of the words published. The next task of the court is to ascertain whether the words
complained of are in fact defamatory. This is a question of fact which depends upon the circumstances
of the particular case. The steps of the inquiry before the court in an action for defamation was
succinctly explained by Gopal Sri Ram JCA (later FCJ) in Chok Foo Choo v. The China Press Bhd
[1999] 1 CLJ 461; [1999] 1 MLJ 371, CA, at pp. 466-467 (CLJ); pp. 374- 375:

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 It cannot, I think, be doubted that the first task of a court in an action for defamation
is to determine whether the words complained of are capable of bearing a defamatory meaning.
And it is beyond argument that this is in essence a question of law that turns upon the
construction of the words published. As Lord Morris put it in Jones v. Skelton [1963] 3 All
ER 952 at p 958:
The ordinary and natural meaning of words may be either the literal meaning or it
may be an implied or inferred or an indirect meaning: any meaning that does not
require the support of extrinsic facts passing beyond general knowledge but is a
meaning which is capable of being detected in the language used can be a part of the
ordinary and natural meaning of words (see Lewis v. Daily Telegraph Ltd [1963] 2
All ER 151). The ordinary and natural meaning may therefore include any implication
or inference which a reasonable reader, guided not by any special but only by general
knowledge and not fettered by any strict legal rules of construction, would
draw from the words. The test of reasonableness guides and directs the court in
its function of deciding whether it is open to a jury in any particular case to hold
that reasonable persons would understand the words complained of in a defamatory
sense.

In my judgment, the test which is to be applied lies in the question: do the words published in
their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable
conduct or motives or a lack of integrity on his part? If the question invites an affirmative
response, then the words complained of are defamatory. (See JB Jeyaretnam v. Goh Chok Tong
[1985] 1 MLJ 334.) Richard Malanjum J, in an admirable judgment in Tun Datuk Patinggi
Haji Abdul-Rahman Ya’kub v. Bre Sdn Bhd & Ors [1996] 1 MLJ 393, collected and reviewed
the relevant authorities upon this branch of the subject and I would, with respect, expressly
approve the approach adopted by him.

The article in the present instance when read as a whole clearly suggests that the appellant is a
person who, under the guise of doing service, was in fact making false statements in order to
deceive the people of Lukut. The implication is that the appellant is a man given to deception
and is untrustworthy. I think that there can be no doubt that to say of a man that he is a cheat
and a liar is a serious defamation of him. It has the effect of lowering the appellant in the
estimation of right-thinking members of society generally. It follows that the learned judge in
the present case clearly fell into error when he held that the words complained of were not
defamatory of the appellant.

Having decided whether the words complained of are capable of bearing a defamatory
meaning, the next step in the inquiry is for a court to ascertain whether the words
complained of are in fact defamatory. This is a question of fact dependent upon the
circumstances of the particular case. In England, libel actions are tried by judge and jury and
the question is left for the jury to determine. However, in this country, libel actions are tried by
a judge alone, he is the sole arbiter of questions of law as well as questions of fact. He must,
therefore, make the determination. In the present instance, it is quite apparent that it is as a
matter of pure fact that the article defames the appellant. It literally calls him a cheat and a liar.
There can, in my opinion, be no dispute that the appellant was in fact libelled. I am, therefore,
unable to agree with the opposite conclusion arrived at by the learned judge who tried the
action. (emphasis added)

Question No. 3 to be determined by the High Court pursuant to the defendant’s application under O.
14A of the ROC was “whether the words complained of and set out in para. 6 of the amended statement
of claim derived from the alleged Malaysiakini dated 18 February 2013, are capable of bearing any
defamatory meaning, and/or are capable of being understood to refer to the first and second plaintiffs
as a matter of law”.

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That is a question of law which turns upon the construction of the words published. The learned High
Court Judge answered the question in the affirmative.

The learned judge did not determine the question whether the impugned words were in fact
defamatory. She could not have decided so because that question was not before her in the O. 14A
application. Before her was the question of law. In the application before her, apart from the question
of locus standi of the plaintiffs to sue for defamation and the questions relating to pleading (questions
2 and 4), no question relating to the other defence pleaded by the defendant was raised or determined
by her. As such in our view, although the majority of the Court of Appeal was right in holding that the
plaintiffs have the right to sue and maintain an action for damages for defamation against the defendant,
it erred when it held that since all the four questions were answered in favour of the plaintiffs, the claim
of the plaintiffs had been established without any further need to hear evidence from the defendant, nor
for further argument before the learned High Court Judge. Consequently, it also erred when it entered
judgment against the defendant in terms of prayers (1) and (2) of the amended statement of claim, and
ordered damages to be assessed by the Deputy Registrar of the High Court.

What we have decided thus far would be sufficient to dispose of the appeal. We find no necessity to
answer question 3.

Conclusion
In the upshot, we make the following orders:
(i) The decision of the majority of the Court of Appeal in holding that the plaintiffs have the right
to sue and maintain an action for damages for defamation against the defendant is affirmed.

(ii) The decision of the majority of the Court of Appeal that the claim of the plaintiffs had been
established without any further need to hear evidence from the defendant, nor for further
argument before the High Court Judge, and its order of entering judgment against the defendant
in terms of prayers (1) and (2) of the amended statement of claim and that damages be assessed
by the Registrar of the High Court are set aside.

(iii) The case be remitted back to the High Court in Kuching for trial of the case until the end which
includes the determination of the question whether the impugned words were in fact defamatory
of the plaintiffs, the defences of the defendant and assessment of damages if necessary.
(iv) The appeal is therefore allowed to that extent.

(v) We make no order as to costs. The deposit is to be refunded to the defendant.

PROPRIETARY ESTOPPEL
Hong Leong Singapore Finance Ltd v United Overseas Bank Ltd [2007] 1 SLR(R) 292
Proprietary estoppel is made out where there is a representation by the party against whom the
estoppel is sought to be raised and detrimental reliance by the party seeking to raise the
estoppel. The underlying principle is unconscionability and the question is whether the
representing party said or did something that led the relying party to take a certain course of
action in circumstances that renders it unconscionable not to estop the representing party from
resiling from his position. The representation must be objectively clear and unequivocal from
the point of view of the representee ( See Neo Hui Ling v Ang Ah Sew [2012] 2 SLR 831.

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Proprietary estoppel is a subset of promissory estoppel. The elements of both forms of estoppel
are similar (Tong Seak Kan and another v Jaya Sudhir a/l Jayaram [2016] 5 SLR 887 at [37]).
However, the former can operate as a sword ( Low Heng Leon Andy v Low Kian Beng
Lawrence (administrator of the estate of Tan Ah Kng, deceased) [2018] 2 SLR 799 (“Andy
Low”) whereas the latter only operates as a shield (Neo Hui Ling). The traditional distinction
between the two doctrines is that proprietary estoppel usually only operated in relation to real
property (Yeoman’s Row Management Ltd and another v Cobbe [2008] UKHL 55; Neo Hui
Ling; Ben McFarlane, The Law of Proprietary Estoppel (Oxford University Press, 2014)
(“McFarlane”) at para 1.21 and footnote 63), whereas promissory estoppel extends to all
promises, including non-proprietary promises such as a promise not to enforce a legal right (K.
R. Handley, Estoppel by Conduct and Election (Sweet & Maxwell, 2nd Ed, 2016) at para 13-
001). In recent years, there has been an expansion of proprietary estoppel to cover property
apart from land. For example, the UK House of Lords observed that proprietary estoppel could
equally apply to chattels or choses in action (Cobbe). This was also done in several cases such
as Harris v Kent and another [2007] All ER (D) 238, Montalto v Popat [2016] 2 All ER (D)
118, and Sutcliffe v Lloyd and another [2007] 2 EGLR 13, where the court allowed an action
in proprietary estoppel to claim shares. There have also been suggestions that proprietary
estoppel should expand even outside the proprietary context (Mcfarlane at paras 10.59 to
10.61). This would effectively be similar to using promissory estoppel as a sword. The view of
the courts is it should not impose proprietary estoppel too willingly in the commercial context.
There is much to be said for the proposition that a commercial setting would generally make it
less likely for proprietary estoppel to be successfully claimed; parties dealing at arm’s length
in such a setting would expect to have their dealings resolved through contractual arrangements
more than anything else. Representations made in such a setting would be less likely to be
relied upon, and representations would be less likely to be treated as operative representations
that are effective in proprietary estoppel.

TORT OF CONSPIRACY
Applicable legal principles.
It is well-established that the tort of conspiracy may be founded either on a lawful or unlawful
act. The parties did not dispute the requirements to establish conspiracy, which were set out
by the Court of Appeal in Gimpex Ltd v Unity Holdings Business Ltd and others and another
appeal [2015] 2 SLR 686 at [150] as follows:

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(a) A combination of two or more persons and an agreement between and amongst them to do
certain acts.
(b) If the conspiracy involves lawful acts, then the predominant purpose of the conspirators
must be to cause damage or injury to the plaintiff. However, if the conspiracy involves unlawful
means, then such predominant intention is not required; an intention to cause harm to the
plaintiff should suffice.
(c) The acts must actually be performed in furtherance of the agreement. (d) Damage must be
suffered by the plaintiff.
In addition, it is not sufficient that harm to the plaintiff would be a likely, or probable, or even
inevitable consequence of the defendant’s conduct (EFT Holdings, Inc and another v
Marinteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR 860 (“EFT Holdings”). Injury
to the plaintiff must have been intended as a means to an end, or as an end in itself (EFT
Holdings. The plaintiff also conceded that the amount of proof required to prove conspiracy on
a balance of probabilities is higher than that of other civil actions (Swiss Butchery Pte Ltd v
Huber Ernst [2010] 3 SLR 813).

THE EVIDENCE ACT, 1950, APPLYING TO ALL JUDICIAL PROCEEDINGS IN OR

BEFORE ANY COURT, BUT DOES NOT APPLY TO AFFIDAVITS.
ARE AFFIDAVITS NOT EVIDENCE??

The Evidence Act, 1950, applying to all judicial proceedings in or before any court, but does not apply
to Affidavits nor to proceedings before an Arbitrator.

1. General
(a) Meaning of Affidavit
Neither the Rules of Court 2012 nor the Courts of Judicature Act 1964 (Act 91)
defines an affidavit.
An affidavits is defined as a written statement by a person and signed by him and
sworn and affirmed. It is usually made and used in judicial proceedings.
According to Earl Jowitt’s The Dictionary of English Law an affidavit is “a written
statement in the name of a person, called the deponent, by whom it is voluntarily signed
and sworn to or affirmed.
It is usually made in an action or other judicial proceedings …; and in that case the
affidavit consists of the title, the name, address and description of the deponent, the

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 body (which contains the statement, and is generally divided into paragraphs), the
signature of the deponent, and the jurat)”.
Exhibits to an affidavit are, however, not affidavits (Carter v Roberts [1903] 2 Ch 312).
An affidavit is, where admissible, receivable in legal proceedings as evidence either in
support of any application or in opposition or in reply.

(b) Use of Affidavit

Specific provisions have been made in law governing the admissibility of affidavit
evidence in criminal and civil cases.
(i) Criminal Cases
Section 424 of the Criminal Procedure Code provides for the use of an
affidavit in a criminal case for criminal application.
(ii) Civil Cases
Order 28 Rule 3C ROC 2012.
The evidence in support of Originating Summons shall be by affidavits.
Order 38 rule 2(2) of the Rules of Court 2012 provides for the reading of the
affidavit of a witness in any case.
In any cause or matter begun by originating summons and on any application
by notice of application evidence must be given by affidavit unless in the case
of any such cause or matter or application any provision of these Rules
otherwise provides or the court otherwise directs (Order 38 r 2(2) RC 2012).
Thus affidavits are the normal means of proof in matters begun by originating
summons and in interlocutory proceedings.
All interlocutory application in civil proceedings where by evidence need to be
lead must be by way of supporting affidavit.
Eg. Order 6 Rule 2A, Order 11 Rule 4, Order 12 Rule 10, Order 14 Rule 2, etc

2. Evidence Act (EA) Not applicable to Affidavits

Section 2 of EA specifically states that the Evidence Act does not apply to affidavits presented
to any court or officer. This does not mean that any affidavit of a person may be admitted
without requiring him to enter the witness box. The basis for the admissibility of affidavit
evidence would be s.32 EA. Section 32 is an exception to the hearsay rule where it must first
be proved that the maker is dead; cannot be found; is incapable of giving evidence; or whose
evidence cannot be procured without an amount of delay or expense which under the
circumstances of the case the court considers unreasonable.

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In Public Prosecutor v. Forster Frank Edald Heinrich, (1988) 2 MLJ 594 – where affidavits
of certain persons who at the time were in Germany were admissible under s. 32(1)(c) -, Edgar
Joseph JR J stated at 598:
“… whether the affidavit of a living person could come within the ambit and meaning
of the word ‘statement’ under section 32.

The affirmation of an affidavit therefore may still be governed by the provisions of the Evidence
Act 1950 [Topps Co Inc v. Mally Jaya Sdn Bhd. (1998) 5 MLJ 744 (Kuala Lumpur) HC),
which dealt with the issue of whether a person may be allowed to affirm an affidavit in his
capacity as an undischarged bankrupt]. Although this case concerned an affidavit, reference
was made to the Evidence Act 1950 s. 118 as the court held s. 118 provided a useful analogy
in that persons would be competent to testify unless the court considered that they were
prevented from understanding the questions put to them or from giving rational answers to
those questions by reason of tender years, extreme old age., disease, whether of body or mind
or any other cause of the same kind. The mere fact that a deponent is an undischarged bankrupt
does not deprive him of any legal competency in affirming an affidavit in support of the ex
parte application for use in any court proceedings. However, the status of a deponent who is
undischarged bankrupt is a material fact which must be made known to the court.

There exist specific provisions governing the admissibility of affidavit evidence in Civil Cases
and Criminal Cases.

(a) O41 r 5 of the Rules of Court 2012 deals with the contents of an affidavit containing
hearsay evidence is to be relied upon only in interlocutory proceedings and not when a
final order is sought [see Kassim bin Sulong v. Guthrie Estate Holding Ltd. (1993) 3
MLJ 303. Furthermore, it is also the discretion of the court in granting an application,
to cross-examine a deponent of an affidavit in interlocutory matters [Balwant Singh
Purba v. R Rajasingham, (1996) 4 MLJ 404;] See also s. 73A of the Evidence Act
1950 (admissibility of documentary evidence in civil cases, etc).

(b) In Leisure and Allied Industries Pty Ltd v. Udaria Sdn Bhd. (1980) 1 MLJ 189, held
that it is the court’s discretion whether or not to grant an application for leave to cross-
examine a deponent who is a foreigner living outside the jurisdiction.
“In appropriate circumstances, there is no reason why such application should
be refused merely because the deponent is a foreigner living outside the
jurisdiction (Re Lucas [1952] 1 All ER 102); ‘otherwise foreigners would have
an advantage’ (Strauss v Goldschmidt 8 SLR 239).

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 It is really a matter of common sense and an elementary legal principle that a
party who swears an affidavit much be prepared to stand up it by cross-
examination unless the application to cross-examine him is without just cause
vexatious or motivated by desire to delay the proceedings [per Salleh Abas FJ
in Leisure and Allied Industries Pty Ltd v Udaria Sdn Bhd (supra) at 190].

(c) An affidavit cannot be used to run foul of what is provided by sections 91 or 92 of

the Evidence Act.
VC George J in Citibank N.A. v. Mohd. Abdullah Ang Swee Kang and 2 Ors [1992]
1 CLJ 116, 118 (HC):
‘For the 3rd defendant it was contended that it was the intention of the parties
that the guarantee had reference to only the $1 million overdraft facility. This
contention contradicts what is stated in the guarantee. It was attempted to
bolster this contention by reference to certain letters. Section 91 and 92 of the
Evidence Act does not permit this unless one of the provisos to s92 can be
called to aid which was not the case here. Ms. Sia of counsel for the 3rd
defendant referred to s2 of the Evidence Act which provides that the Act “shall
apply to all judicial proceedings in or before any court, but not to affidavits
presented to any court or officer not to proceedings before an arbitrator.”

Great laxity is no doubt given to what can go into an affidavit. But such an
affidavit cannot be used to run foul of what is provided by s91 or s92 of the
Evidence Act. What is set out in the guarantee is clear and not ambiguous. The
effect of s91 and s92 is equally clear and unambiguous. The point taken does
not provide the 3rd defendant with a triable issue.’

(d) Applicability of rules of evidence to affidavits.

Richard Malanjum JC (as he then was) in Wan Othman bin Datuk Wan Yusof v.
Kewangan Utama (M) Bhd [1993] 2 CLJ 572, 573-574 (HC):
‘It has been held in an application to set aside the service of a writ of summons
that where the deponent did not disclose as to how she obtained the knowledge
or identify the source of her information, that part of the affidavit was not relied
on by the Court. (See Bank Bumiputra Malaysia Bhd and Anor v. Lorrain
Esme Osman [1986] 1 MLJ 426).

Where in a proceeding, though interlocutory in form, an issue has to be

determined which will decide the rights of the parties, only those evidence

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 which would be admissible at the hearing of the action under the ordinary rules
of evidence should be considered: Gilbert v. Endean (supra). Such proceeding
is also not interlocutory within the meaning of r.5 (2) of O.41 of RHC 1980. It
has also been held that where the matter included in an affidavit are plainly
irrelevant it should be struck out; though merely scandalous ones need not
necessarily result in such matters being struck out as scandalous matters may
be relevant and may be the very matters requiring investigation by the Court:
But “whether the material to which objection is taken on the ground that it is
not admissible evidence is contained in a statement exhibited to an affidavit,
or in the affidavit itself, the Court has, in my judgment, a complete discretion
whether or not to strike it out, and a Judge cannot be said to be exercising his
discretion improperly merely because he decides not to strike out the matter in
dispute …. Inadmissible hearsay evidence may relate only to matters which are
of little or no importance, even to matters the truth of which the other side may
not dispute”: per Cross J in Re J. (an infant) (1960) 1 All ER 603 at p605 I
to p606 A and D.

(e) (a) The scope of Order 38 rule (2)(2) and the instances in which affidavit
evidence is admitted.
per Hashim Yeop A. Sani CJ (Malaya) in UMBC Finance Ltd v.
Robin Woon Kim Yan [1991] 1 CLJ 40, 41 (SC):
‘Order 38 rule 2 deals with a procedure of admitting affidavit
evidence and does not deal with admissibility of the evidence.
Under Order 38 rule 2 a wide discretion is given to the
Court at or before a trial begun by writ whether the
Court should make an order that the affidavit of any
witness may be read at the trial. The rule clearly says
that the Court may exercise the discretion according
to the circumstances of the case and whether it is
reasonable to make such an order.

Order 38 rule 2 is taken from the equivalent English

rule. This rule is used normally for a witness who is
abroad and therefore not available for the trial or
where the evidence is uncontested. An order under
Order 38 rule 2 should not be made if the evidence is
strongly contested, or where the evidence relates

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 closely to the credibility of the witness, or where by
its very nature the evidence needs to be examines
closely and its very admissibility yet to be determined.

In our view it is not a proper exercise of discretion to

allow evidence under Order 38 rule 2 where the
evidence is highly contentious and its admissibility is
in issue.”

(b) The Courts are slow in granting an application to cross-examine a

deponent of an affidavit in interlocutory matters.
per Haidar J in Syarikat Tungaring Kilang Papan Sdn Bhd v Sabah
Forest Industries Sdn Bhd [1990] 2 MLJ 38, 42 (HC):
‘In any event, the authorities tend to show that the courts are
slow in granting such an application where the power to do so
is discretionary. It is sufficient for me to quote a passage from
the judgment of Lim Beng Choon J in the case of Balwant
Singh Purba v. R. Rajasingam [1987] 2 CLJ 317:
“There is no dispute that the power given by the said
O.38 r.2(3) is obviously a matter of discretion to be
exercised by a court in accordance with well-known
judicial principles. For purpose of this judgment I
need only mention two of the principle. The first one
is mentioned in the following passage appearing at
p592 of the English Supreme Court Practice (1979)
Vol 1:
‘There is a discretion as to ordering cross-
examination on affidavits filed on
interlocutory application. Cross-examination
upon affidavits sworn in applications for
interlocutory injunctions is very rare.”

The second principle is that the power as

conferred by the said O.38 r.2(3) can be
invoked only in respect of an issue which the
court is asked to determine in the
interlocutory proceeding and not in respect of

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 any other issue which should be determined
at the trial of the action proper. In this
connection reference may be made to
Abraham & Co v. Dunlop Pneumatic Co
[1905] 1 KB 46 at 52 where Mathew LJ said:
“That applies only to a question of
fact which the court or a judge has at
the time jurisdiction to decide, and
not to a question to be tried in the
action. The question under which this
appeal arises relates to an issue which
must be tried in the action with the
other issues, and is not a matter that
can be determined at chambers”.

(c) Leave to cross-examine a deponent who is a foreigner living outside

the jurisdiction may also be granted.
Per Salleh Abas FJ (as he then was) in Leisure and Allied Industries
Pty Ltd v. Udaria Sdn Bhd [1980] 1 MLJ 189, 190-191 (FC):
“To allow or not to allow the respondent’s application to
cross-examine the appellant’s witnesses upon their affidavits,
I take it, is a matter of Court’s discretion. In appropriate
circumstances, there is no reason why such application should
be refused merely because the deponent is a foreigner living
outside the jurisdiction (Re Lucas [1952] 1 All ER 102):
“otherwise foreigners would have an advantage” (Strauss v.
Goldschmidt 8 SLR 239). It is really a matter of common
sense and an elementary legal principle that a party who
swears an affidavit must be prepared to stand up to it by cross-
examinations unless the application to cross-examine him is
without just cause, vexatious or motivated by desire to delay
the proceedings (Allen v. Allen [1894] P 239) ….. In view of
the issue involved in the appellant’s application and the fact
that the affidavits of the appellant’s witnesses were challenged
by the affidavit of the respondent’s witness, and the purpose
of the respondent’s application to cross-examine the
appellant’s witnesses would be directed towards ascertaining

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 the respondent’s liability or otherwise, I feel that the proper
way to exercise my discretion in this summons is to allow the
respondent’s application. Hence I order accordingly.’

(d) The Court has no power to examine a deponent in the absence of

such an application.
per Lord Templeman in Tay Bok Choon v. Thansan Sdn Bhd [1987]
1 MLJ 432, 436 (PC):
“The Federal Court took the view that although no litigant
applied to call oral evidence and no litigant applied to cross-
examine the deponents to affidavits filed by any other litigant
neverless:-
“Order 38 rule 2(2) of the Rules of Court 2012
empowers the Court to examine the deponents
regardless of the absence of such application, and we
agree that in this instance it should have done so.”

2 Formalities of Affidavits
(i) Scope of the Order
Order 41 Rules of Court 2012 deals primarily with the formal requirements of
affidavits. Content of affidavits may be specified for particular types of
proceedings by particular rules of court.

(ii) Physical form

Affidavits must be on papers of “durable quality” and they must comply with
the size requirements of Order 63 r 1. They must be produced by means
specified in Order 63 r 2. The Rules are silent as to how affidavits are to be
bound or how the exhibits are to be annexed or attached to them.

(iii) Who to make affidavit (Competency)

Generally speaking any persons competent to testify in court are competent to
make affidavits. The Evidence Act 1950 (Act 56), s 118, provides a useful
analogy, says that all persons shall be competent to testify (The Topps Co Inc
v Mally Jaya Sdn Bhd [1998] 2 CLJ Supp 235).

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(iv) Bankrupts competent to make affidavits
An undischarged bankrupt is not deprived of his legal competency to affirm
affidavit because there is nothing in the Insolvency Act 1967 (Act 360) or
Insolvency Rules 2017 and Order 41 which prohibits him from doing so.
Although the Evidence Act 1950 (Act 56) does not apply to affidavits, s 118
provides a useful analogy in that it says that all persons shall be competent to
testify. He must, however, disclose his bankrupt status because it is material
fact which must be made known to the court where his affidavit is used in
support of an ex parte injunction considered to be an application uberrimae
fidei (The Topps Co Inc v Mally Jaya Sdn Bhd [1998] 2 CLJ Supp 235).

(v) Solicitor competent to make affidavits

A solicitor may depose an affidavit on behalf of a litigant if the following
conditions are fulfilled: (1) the facts to be deposed must not be contentious or
on disputed questions of facts; (2) the facts to be deposed must from his
knowledge; and (3) he is authorised by the litigant to depose the affidavit (See
Legal Profession (Practice & Etiquette) Rules 1978).

(vi) Young persons and person of immature age

Although Order 45 r 1 does not require a deponent to state his age, it is not
unknown for deponents to do so, and an affidavit has been rejected where the
deponent did not state he was full age, though no ground was given (MR
Properties Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [1999] 1 AMR
810). Where the tender age of a deponent is used to challenge the contents of
his affidavit, an affidavit by another, preferably that of the person who takes
his oath or affirmation, to show that the deponent understood his oath or
affirmation and the need to depose truthfully, is advisable, deriving support
from analogy with testimony of minors (see Wong Thin Yit v Mohamed Ali
[1971] 2 MLJ 175, per Ali FJ).

(vii) Foreigners
Order 41 does not prevent foreigners from making affidavits. With them it is a
question of the compliance with the language requirement of Order 92 r 1.

(viii) Illiterate and blind persons

Order 41 provided for blind and illiterate deponents and their affidavits must
carry the appropriate jurats in Form 74.

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(ix) No authorisation required for affirming affidavit
Affidavits often state that their deponents are authorised by the party to
depose, there is no requirement in Order 41 for a deponent to be duly authorised
by a party to the litigation to affirm an affidavit: Syarikat Ying Mui Sdn Bhd
v Muthusamy a/l Sellapan [2000] 1 AMR 830.
There is no requirement in law that a deponent on behalf of a company must
categorically state that he is authorised by the company to make the affidavit
and annex the company’s resolution to his affidavit to show his authorisation
(Yukilon Manufacturing Sdn Bhd (No 3) & Anor v Dato Wong Gek Meng &
3 Ors [1997] 4 AMR 3214).

(x) Contents of Affidavit (O 41 r 5)

This rule allows a deponent to depose only to facts which he is able of his
personal knowledge to prove. In effect it equates affidavit evidence with
evidence at hearing (per Abdul Malik b Ishak J in Yukilon Manufacturing
Sdn Bhd “[No 3]” & Anor v Dato Wong Gek Meng & 3 Ors [1997] 4 AMR
3214 at 3223). “This rule … enshrines the evidentiary rule against the
admission of hearsay evidence.”

(xi) Deponent’s own knowledge

An affidavit is required to contain only such facts as the deponent is able of his
own knowledge to prove it must be made by a person with personal knowledge
of the facts, save as regards interlocutory proceedings when the affidavits may
contain statement of information or belief provided the sources or grounds are
stated (Order 41 r 5).
A deponent must only depose to facts which he can prove from his own
knowledge. He has personal knowledge of matters if he personally knows
about these matters because he has perceived them with his senses. His
personal knowledge may also be derived from records or documents he has
seen. If he deposes to matters he cannot of his own knowledge prove, the
affidavit will be defective for breach of this rule.

(xii) Newspapers report and survey and annexures, etc.

A deponent who relies on a newspaper report on an issue in dispute cannot be
said to have personal knowledge of the matter; the report is hearsay unless the
reporter makes an affidavit in support of the matter in the report (Karpal Singh

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 v Sultan of Selangor [1988] 1 MLJ 64 (report of Sultan of Selangor’s public
statement regarding pardoning of criminals).

(xiii) Facts and not law, opinions or submissions

Points of law are matters for the court and not deponent. Kassim bin Sulong
& Anor v Guthrie Estates Holdings Ltd & Ors [1993] 3 MLJ 303 (opinions
on point of law struck out). Sinnathuray J in Re Application by Dow Jones
(Asia) Inc [1988] 1 MLJ 222; [1987] SLR 505 said this in rejecting the
affidavits which contained contentions and submissions:
“I have often in this court had to tell counsel that there must be
compliance with the rules relating to the making of affidavits.
Certainly, they must not contain submissions and contentions as the
affidavit filed in these proceedings does. It seems to me that if
affidavits were allowed to contain arguments there will be no need for
the assistance of counsel at the hearing in court.”

“Affidavits are designed to place facts, whether disputed or otherwise,

before the tribunal for whose help they are prepared. They are not
designed as a receptacle for or as a vehicle for legal arguments.
Draftsmen of affidavits should not, as a general rule, put into the
mouths of the intended deponents legal arguments of which those
deponents are unlikely ever to have heard. Legal arguments,
especially in interlocutory proceedings, should come from the mouths
of those best qualified to advance them and not be put into the mouths
of the deponents. There has been much unnecessary paper in this case
brought about by the inclusion of legal arguments in affidavits”.

(xiv) Rationale of r 5(2)

In Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV
(No 1) [1984] 1 WLR 271; [1984] 1 All ER 296 Peter Gibson J explained at
282 the purpose of Order 41 r 5(2) as regards first hand hearsay thus:
To my mind the purpose of r 5(2) is to enable a deponent to put before
the court in interlocutory proceedings, frequently in circumstances of
great urgency, facts which is not able of his own knowledge to prove
but which, the deponent is informed and believes, can be proved by
means which the deponent identifies by specifying the sources and
grounds of his information and belief. This excerpt was applied by

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 Abdul Malik Ishak J in Sarkawi bin Sadijo ((t/a Jojo’s Musical and
Promotion House) v BMG Music (M) Sdn Bhd & Ors [1996] 4 MLJ
515.

A fuller explanation was given by the High Court of Hong Kong in Re Aqua-
Leisure Industries Inc [2001] HKCU 1189, their corresponding rule being in
pari materia with ours:
“For the purposes of interlocutory proceedings, there are good
grounds for the court to act on such information and belief. This is
because interlocutory proceedings are often brought up as a matter of
urgency to enforce an order, ancillary to the main proceedings, seeking
to preserve the status quo pending final determination, or to regulate
the conduct of litigation, or to regulate the conduct of the parties
pending trial, lest a party would suffer irreparable damage. Breach of
such an order may create extreme urgencies, for example, the need to
promptly restore status quo, which if cause irreparable damage to a
party; the need to preserve evidence, which if destroyed would result
in prejudice to a party; the need to preserve assets, which if dissipated
would render any future judgment nugatory. The urgency of the
situation may not permit the parties to obtain evidence from witness
who may be unwilling or unavailable for whatever reason. Under such
circumstances, there is a compelling need for the court to act on this
kind of evidence of a lower quality at the risk of otherwise incurring
grater injustice to the innocent parties”.

(xv) Second hand hearsay - Several objections have been given against the
admission of second hand hearsay: it defeats the requirement for disclosure of
sources and grounds, it makes it only to easily introduce prejudicial material
without revealing the original sources by a person who receives information
second-hand; the other party is denied “a proper opportunity … to challenge
and counter such evidence”; and the court is not enabled to assets the weight
to be attributed to such evidence.
Both first hand and second hand hearsay are admissible under the rule of
evidence if their sources are disclosed:

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 (xvi) Stating sources and grounds – A deposition which does not disclose the
sources and grounds because it is not stated to be based on information and
belief which it clearly is does not comply with the rule.

(xvii) Document annexed to Affidavit (O 41 r 11)

This rule deals with documents to be used in connection with affidavits. A
document so used must be exhibited and copy of it annexed to the affidavit is
an exhibit. It must be identified by a certificate of the person before whom the
affidavit was sworn. The certificate must be entitled as provided for in r 1(1),
(2).

(xviii) Annexing, marking and binding of exhibits – The rules are silent as to how
documents exhibited to affidavits are to be annexed, bound or marked. In
practice the exhibits are stapled or bound by plastic rings together with the
affidavits. The common practice is to mark the exhibits with the initials of the
deponents and number them sequentially, usually on their top right hand
corner.

3. Evidence Act not applicable to Arbitration/Mediation

Arbitration is alternative mechanism to resolve dispute beside judicial proceeding.
(a) it is quasi judicial tribunal to resolve dispute – privately -

(b) govern by specific Act of Parliament eg Arbitration Act 2005/Mediation Act.

(c) provides a mechanism of dispute resolving - public not allowed (a contrast with judicial
proceeding (open to public))

Further, judicial proceeding – by Judiciary – 3rd arm of any democratic governing

system, to control powers of Executive/Parliament.
(d) Beside governing arbitration/mediation Act – there are house rules (g KLRCA (AIAC)
Rules of Arbitration) governing procedure/rules of evidence.

(e) It is privately funded – not to be too rigid as judicial proceeding but rule of fair play
applies.

(f) Free to tender any documents so long relevant and helpful to resolve the dispute.

(g) Arbitration/Mediation decision binding on parties alone (not binding on others) no

doctrine of precedent less rigid/”not to wash dirty linens in public” privately conducted.

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