Wednesday, 24 August 2022

3:00 pm – 4:00 pm Copyright Notifications and Infringements

About this talk

Are you an author, composer, content creator or business owner who has wondered how to better protect your copyright? Do you know how notifying the Intellectual Property Corporation of Malaysia (MyIPO) of your copyright adds value to your creation or business?

Join us for this talk as we take you through the copyright laws in Malaysia and the MyIPO notification process. We will also take a look at copyright cases that have been decided by the Malaysian Courts and how the law has been applied against copyright infringers in Malaysia.

The talk will be delivered over video conference using Zoom.us. You can either view the talk from your web browser or download the Zoom app.

Talk Points

  • Introduction to the Copyright Act 1987
  • Copyright notification process
  • Copyright for your business
  • Case studies on copyright infringement

Speakers

  • Hannah Patrick, Senior Associate, Dispute Resolution Practice Group
  • Carolyn Ng, Associate, Dispute Resolution Practice Group
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Past Seminars

Wednesday, 28 September 2022

3:00 pm – 4:00 pm What to know if you’re stopped for drink driving or other road traffic offences

About this talk

The police have recently ramped up operations to curb drink driving, reckless driving, the use of mobile phones while driving, speeding and failing to observe traffic lights. Do you know your rights if you’re summoned or arrested for a road traffic offence? Join us for this online talk where our speakers will take you through the latest laws on drink driving and other common road traffic offences.

The talk will be delivered over video conference using Zoom.us. You can either view the talk from your web browser or download the Zoom app.

Talk Points

  • Drink driving and its penalties
  • Reckless driving and its penalties
  • Other common road traffic offences
  • Police powers and your rights during arrest, remand and bail

Speakers

  • Vivien Fan, Senior Associate, Dispute Resolution Practice Group
  • Wong Chee En, Associate, Dispute Resolution Practice Group
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Past Seminars

The Strata Management Tribunal is established and regulated by the (i) Strata Management Act 2015 (Act 757) and the (ii) Strata Management (Strata Management Tribunal) Regulations 2015 respectively, which came into force on 1 June 2015.

Here are 10 essential things to know about the Strata Management Tribunal:

1. Resolving disputes efficiently

The Strata Management Tribunal was established to resolve strata management related disputes with efficiency, cost effectiveness and speed.

Under the Strata Management Act 2015, the Tribunal is required to make its Award without delay and where practicable, within 60 days from the first day of the hearing. Its Client Charter includes the aim to settle a claim within 150 working days.

2. Jurisdiction

The jurisdiction of the Strata Management Tribunal includes:

  • Monetary claims not exceeding RM250,000;
  • Disputes or complaints concerning an exercise or the performance of, or the failure to exercise or perform, a function, duty or power conferred or imposed by the Strata Management Act 2015 and subsidiary legislation made under the Strata Management Act 2015;
  • Disputes on costs or repairs in respect of a defect in a strata parcel, building or land intended for subdivision and its common property (subject to subsection 16n(2) of the Housing Development (Control and Licensing) Act 1966);
  • Claims for the recovery of outstanding maintenance charges and sinking fund contributions;
  • Claims for an order to convene a general meeting;
  • Claims for an order to invalidate proceedings of meeting where any provision of the Strata Management Act 2015 has been contravened;
  • Claims for an order to nullify a resolution where voting rights has been denied or where due notice has not been given;
  • Claims for an order to nullify a resolution passed at a general meeting;
  • Claims for an order to revoke amendment of by-laws having regard to the interests of all the parcel owners;
  • Claims for an order to vary the rate of interest fixed for late payment of maintenance charges and sinking fund contributions;
  • Claims for an order to vary the amount of insurance to be provided;
  • Claims for an order to pursue an insurance claim;
  • Claims for compelling a developer, joint management body or management corporation to supply information or documents;
  • Claims for an order to give consent to effect alterations to any common property; and
  • Claims for an order to affirm, vary or revoke the Commissioner’s decision.

3. Powers

The Strata Management Tribunal has the power to:

  • Order a party to pay a sum of money to another party;
  • Order the price or other consideration paid by a party to be refunded to that party;
  • Order the payment of compensation or damages for any loss or damage suffered by a party;
  • Order the rectification, setting aside or variation of a contract or additional by-laws, wholly or in part;
  • Order costs of not more than RM5,000;
  • Order interest at a rate not more than 8% per annum;
  • Dismiss a claim which it considers to be frivolous or vexatious;
  • Make any order of which it has the jurisdiction to make or any other order as it deems just and expedient; and
  • Make such ancillary or consequential orders or relief as may be necessary to give effect to any order made by the Tribunal.

4. Parties who can file a claim

The following persons and entities are entitled to file a claim in the Strata Management Tribunal:

  • Developer;
  • Purchaser;
  • Parcel owner;
  • Proprietor, including an original proprietor;
  • Joint Management Body (JMB);
  • Management Corporation (MC);
  • Subsidiary Management Corporation;
  • Managing agent; and
  • Any other interested person, with the leave of the Tribunal.

5. Open to public

All proceedings of the Strata Management Tribunal are open to the public.

6. No legal representation

By default, parties are not allowed to be represented by lawyers at Strata Management Tribunal proceedings. However, the Tribunal may allow legal representation if:

  • The case involves complex issues of law; and
  • One party will suffer severe financial hardship otherwise.

If one party is allowed legal representation by the Tribunal, the other party will also be allowed the right to legal representation.

Although lawyers may not ordinarily be allowed to speak on behalf of a party during the Tribunal proceedings, a party either pursuing or defending a Tribunal claim can and should still seek legal advice and assistance. Lawyers may be engaged to assist a party with the formulation of a claim or defence and the preparation of the forms, cause papers and submissions to be filed in the Tribunal.

7. Awards and adjournments

If the respondent to a Tribunal claim fails to file a Statement of Defence, the Tribunal may proceed to make an award in favour of the claimant on the hearing date.

Alternatively, the Tribunal may also (i) adjourn the hearing in its discretion to enable the respondent to file the Statement of Defence or (ii) allow the respondent to submit his defence orally and proceed with the hearing.

If either party is absent during the Tribunal hearing, the Tribunal may proceed with the hearing, adjourn the hearing to a later date, or make an order or award as it thinks appropriate.

8. Non-compliance of Award is a criminal offence

The failure to comply with a Tribunal Award is a criminal offence under the Strata Management Act 2015. If found guilty and convicted, a person may be liable to a fine not exceeding RM250,000 or to imprisonment for a term not exceeding 3 years or to both. For a continuing offence, there will be a further fine not exceeding RM5,000 for every day or part thereof.

In July 2020, the Subang Jaya Municipal Council through its Commissioner of Buildings (COB) prosecuted a parcel owner for failure to comply with a Tribunal Award to pay outstanding maintenance charges. The Subang Jaya Magistrate’s Court convicted the parcel owner and imposed a fine of RM5,500.

9. Award may be executed

A Tribunal Award is deemed to be an order of the civil Court and can be enforced accordingly by any party to the proceedings. If the Award has not been complied with, the Tribunal Secretary shall send a copy of the Award to the Court and the Court shall cause a copy of the Award to be recorded (also known as Ingkar Award). Thereafter, the party in breach of the Award may be liable to execution proceedings including:

  • Bankruptcy;
  • Winding-up;
  • Committal proceedings (Contempt of court);
  • Judgment Debtor Summons; and
  • Garnishee proceedings.

10. Award may be challenged by judicial review

A party who is dissatisfied with the Tribunal’s Award may file an application for judicial review in the High Court to challenge the said Award. The application for judicial review must be filed within three (3) months from the date of the Tribunal Award. The judicial review application will succeed if the applicant can show serious irregularity affecting the Award. “Serious irregularity” means an irregularity of one or more of the following kinds which the High Court considers has caused substantial injustice to the applicant:

  • Failure by the Tribunal to act fairly and impartially between the parties;
  • Failure by the Tribunal to deal with all the relevant issues; and
  • Uncertainty or ambiguity as to the effect of the Award.

Parties can and should engage lawyers to advise and represent them in the judicial review proceedings at the High Court.

By John Chan

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Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.

Companies in Malaysia are governed by the provisions of the Companies Act 2016. Under Division 1 of Part V of the Companies Act 2016, a foreign company is prohibited from carrying on business in Malaysia unless it is registered as a foreign company. Alternatively, a foreign company may carry on its business by incorporating a local subsidiary company with the Companies Commission of Malaysia. It is important for a foreign company to understand the available options and choose the most suitable option to achieve its objectives in the context of its nature of business and industry.

This article will focus on the options available to a foreign company intending to expand its business reach and develop its market presence in Malaysia.

Foreign Company

The term “foreign company” is defined under the Companies Act 2016 as either of the following:

(a)  a company, corporation, society, association or other body incorporated outside Malaysia; or

(b)  an unincorporated society, association or other body which under the law of its place of origin may sue or be sued, or hold property in the name of the secretary or other officer of the body or association duly appointed for that purpose and which does not have its head office or principal place of business in Malaysia.

Under Section 561(3) of the Companies Act 2016, the term “carrying on business” includes establishing or using a share transfer or share registration office or administering, managing or otherwise dealing with property situated in Malaysia as an agent, legal personal representative or trustee, whether by servants or agents or otherwise.

Registration of the Foreign Company as a Branch Office

Any foreign parent company intending to carry on business in Malaysia is required to register itself as a foreign company with the Companies Commission of Malaysia. A branch office is not a separate legal entity as it is an extension of the foreign parent company and must conduct the same business activities as the foreign parent company.

The following steps are a summary of the procedure to register a foreign company with the Companies Commission of Malaysia:

  • A name search needs to be conducted at the Companies Commission of Malaysia to determine the availability of the proposed company name. In the case of a foreign company, the name should be the same as the name of the foreign parent company registered in its country of origin;
  • Registration documents must be submitted to the Companies Commission of Malaysia within three months from the date on which the name search application was approved by the Companies Commission of Malaysia. Registration documents include:
    • The particulars of every shareholder in Malaysia and, if any of these persons is a body corporate, the particulars of the body corporate;
    • The particulars of every person who is appointed as a director of the foreign company in Malaysia;
    • The list of its shareholders or members at the foreign parent company’s country of origin;
    • In the case of a foreign parent company with share capital at its country of origin, the details of class and number of shares in the foreign parent company;
    • In the case of a foreign parent company limited without share capital at its country of origin, the amount up to which the member undertakes to contribute to the assets of the foreign parent company in the event of winding up;
    • A memorandum of appointment or power of attorney specifying the particulars of the person who is a resident in Malaysia to act as its agent together with a statement by the agent confirming his consent for such an appointment;
    • A certified copy of the certificate of incorporation or registration of the foreign parent company;
    • A certified copy of the foreign parent company’s memorandum and articles of association or other instrument defining its constitution;
    • A copy of the application and reservation for the availability of the company name;
    • A copy of the letter or email specifying the approval notification for the reservation of the company name; and
    • Any other information and/or documents that the Registrar of Companies may require;
  • There are registration fees payable towards each category of the authorised share capital of a foreign company, which are as follows:

  • Upon compliance with the registration procedures of the Companies Act 2016 and the submission of the registration documents, the Companies Commission of Malaysia will issue the foreign company with a certificate of registration.

Establishing a Representative Office

A representative office is a non-trading entity that allows foreign parent companies within the manufacturing and services industry sector to explore business and market opportunities in Malaysia. A representative office helps the foreign parent company to determine whether Malaysia is suitable for the foreign parent company to establish its business. As it is a non-trading entity, a representative office is permitted to carry on research and development, business, promotional and liaison activities and must not carry on any form of activity that will result in actual commercial transactions.

In comparison to the registration documents for a branch office, the establishment of a representative office is not required to be incorporated under the Companies Act 2016 but requires prior approval by the Government of Malaysia.

Depending on the industry sector, the application and supporting documents are required to be submitted to either the (i) Malaysian Investment Development Authority (general application excluding banking, financial and tourism services), (ii) Bank Negara Malaysia (banking and financial services) or (iii) Ministry of Tourism, Malaysia (tourism services). The following are documents required to be submitted to the appropriate governing body:

  • A duly completed application form specifying the purpose of establishment, activities of proposed office, benefits to Malaysia from the establishment of the proposed office, estimated cash flow of the proposed office, and the human resources arrangement for the proposed office;
  • A certified copy of the foreign parent company’s certificate of incorporation;
  • A certified copy of the foreign parent company’s business profile;
  • A certified copy of the foreign parent company’s latest annual report and audited accounts of two years;
  • A certified copy of the expatriate’s passport, educational certificates, resume and past employment testimonials or letters of appointment (if available);
  • A certified copy of the applicant’s tenancy agreement for its business operations in Malaysia and
  • A certified copy of the document setting out the detailed description of the duties to be performed by the applicant and activities and/or products of the foreign parent company.

Incorporation of a Local Subsidiary Company

A local subsidiary company of the foreign parent company can be incorporated in the form of a private limited company by shares, otherwise known as Sendirian Berhad (in short, “Sdn Bhd”) in Malaysia. A Sendirian Berhad is a separate legal entity from the foreign parent company and can conduct or carry on any and all business activities. As a separate legal entity, the Sendirian Berhad will be responsible for its own debts and liabilities incurred during the course of its business operations.

Shares in a Sendirian Berhad can be issued to individuals and bodies corporate. Although a Sendirian Berhad allows for 100% foreign ownership, the foreign parent company must be aware of regulations or requirements in certain strategic industries for a Sendirian Berhad to have a minimum local or Bumiputera equity, such as the oil and gas, telecommunications, water and electricity industries.

The requirements and procedure under the Companies Act 2016 to incorporate a Sendirian Berhad are as follows:

  • A Sendirian Berhad shall have a minimum of one shareholder and one local director;
  • A Sendirian Berhad shall have a minimum of a local qualified company secretary who is either a member of a professional body or licensed by the Companies Commission of Malaysia;
  • A name search needs to be conducted at the Companies Commission of Malaysia to determine the availability of the proposed company name;
  • Incorporation documents must be submitted to the Companies Commission of Malaysia within 30 days from the date on which the name search application was approved by the Companies Commission of Malaysia. Incorporation documents include a statement by every person who desires to incorporate the company with the following particulars
    • The approved name of the proposed company;
    • The private limited status of the proposed company;
    • The nature of business of the proposed company;
    • The proposed address of the registered office of the proposed company;
    • The particulars of every shareholder of the proposed company and, if any of these persons is a body corporate, the particulars of the body corporate;
    • The particulars of every person who is intended to be a director of the proposed company
    • The details of class and number of shares to be taken by each shareholder;
    • A statement from each director confirming his consent to his appointment as a director of the proposed company and that he is not disqualified under the Companies Act 2016 to act as a director; and
    • Any other information and/or document that the Registrar of Companies may require; and
  • Upon compliance with the incorporation procedure of the Companies Act 2016 and the submission of the incorporation documents, the Companies Commission of Malaysia will issue the Sendirian Berhad with a certificate of incorporation.

It must be highlighted that each and every company is advised to obtain any and all licences, permits or approvals from the relevant authorities that are required to commence business operations.

Conclusion

The Malaysian Government has traditionally been open to foreign direct investments, which have been, and will always be, an integral component of the country’s economic development. The manner in which a foreign parent company wants to establish its presence in Malaysia should take into account the various factors for its business expansion strategies, including its nature of business and the industry in which it intends to carry on business activities.

The registration of a foreign company as a branch office, the establishment of a representative office and the incorporation of a Sendirian Berhad all have their respective procedures and requirements, and it is important to comply with such procedures and requirements. Additionally, there are other regulatory equity requirements or prohibitions for certain industries.

Given these various procedures, requirements and prohibitions, we regularly advise foreign parent companies in their corporate expansion and structuring into Malaysia accordingly. Please reach out to us for a complimentary consultation if you wish to explore these options further.

By Tommy Wong

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Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.

A director is an individual who is appointed to manage the affairs, business and operations of the company. Under the Companies Act 2016, the term “director” includes any person occupying the position of a director by whatever name called and includes a person in accordance with whose directions or instructions the majority of directors are accustomed to act and an alternate or substitute director. For context, an “alternate director” or “substitute director” is an individual that is nominated by a director of the company to, among others, attend board meetings or perform the fiduciary and statutory duties on that director’s behalf.

Directors have fiduciary and statutory duties and responsibilities towards the company, and must always act in the best interests of the company and with reasonable care, skill and diligence. It is important for a person, who intends or consents to be appointed or to act as a director, to understand the implications and responsibilities of doing so, regardless of the type of directorship.

Qualifications of a Person as a Director of a Company

An individual must satisfy the statutory requirements under the Companies Act 2016 to qualify as a director of a company in Malaysia. These requirements include the following:

  • A director shall be a natural person who is at least eighteen years of age;
  • A director must not:
    • Be an undischarged bankrupt;
    • Have been convicted of an offence related to the promotion, formation or management of a corporation;
    • Have been convicted of an offence involving bribery, fraud or dishonesty;
    • Have been convicted of an offence under Section 213, Section 217, Section 218, Section 228 and Section 539 of the Companies Act 2016; or
    • Have been disqualified by the Court under Section 199 of the Companies Act 2016.

If an individual does not meet the requirements above, the said individual is disqualified from holding office as a director of a company. In addition to the above, where a company has more than its required minimum number of directors, the company must ensure that:

  • its minimum number of directors shall ordinarily reside in Malaysia by having a principal place of residence in Malaysia; and
  • its minimum number of directors shall not include an alternate or substitute director.

Appointment of Directors

A company has a duty to notify its company secretary and the Registrar of the particulars of any director intended to be appointed. The appointment of a director must be set out in the prescribed forms, which must be supported by:

(a)  In the case of the incorporation of a company, the resolution of the shareholders or, in the case of appointing a new director, the resolution of the board of the company; and

(b)  The written notice from the individual consenting to his appointment as a director of the company.

Other supporting particulars include the individual’s personal information, contact details, and residential and service addresses of the individual. These documents must be submitted to the Companies Commission of Malaysia. A company can enlist the services of its appointed company secretary to prepare, advise on, complete and submit the relevant forms, documents and information to the Companies Commission of Malaysia.

Differences between Executive, Non-Executive and Alternate Directors

There are companies that classify their directors according to the different roles on the board of directors that they were appointed to contribute to the company. The most common classifications of directors made by companies are executive directors and non-executive directors. An individual who is called upon to act in place of a director for a particular matter is known as an alternate director. As each classification of directors involves a different role on the board of directors, it is essential to understand the roles and functions of executive directors and non-executive directors.

Executive Directors

All directors have to adhere to and satisfy their fiduciary and statutory duties towards the company. The differences between executive directors and non-executive directors lie within their respective roles and functions. Executive directors are appointed to manage and run the operations of a company on a daily basis. While they sit on the company’s board of directors, they are also full-time employees of the company. In this regard, executive directors are paid salaries and benefits.

Non-Executive Directors

Non-executive directors are not employees of the company, and they are not involved in the daily management and operations of the company. Non-executive directors are commonly appointed for specific expertise, skill or knowledge that can contribute to the company’s board reserved matters, strategic plans and implementation. Such specific functions of non-executive directors often result in consultation on and criticism of, and opinion towards, the matters to be resolved by the company’s board of directors.

For their services and contributions rendered to the company, non-executive directors are remunerated in the form of fees and benefits that are different compared to those of executive directors. The remuneration of non-executive directors is typically lower than those of executive directors.

Alternate Directors

Alternate directors are persons who are called upon to act for and on behalf of the principal directors for a particular matter, such as attending a board meeting. Although alternate directors act only when called upon to do so, they are subject to the same fiduciary and statutory duties as a director when carrying out their functions as alternate directors. This is supported by the inclusion of alternate directors under the umbrella term of “directors” under the Companies Act 2016. It is worth noting that there is no specific provision in the Companies Act 2016 in relation to the appointment of alternate directors. Thus, the appointment of alternate shareholders can only be exercised if it is expressly provided in the company’s constitution (formerly known as the memorandum and articles of association).

Conclusion

As the saying goes, “with great power comes great responsibility.” Directors play a crucial role in promoting the success and good corporate governance of the company, and they all have fiduciary and statutory duties towards the company in which they are appointed. It is crucial for any person who intends or consents to, or is interested in, their appointment as a director of any company, whether executive, non-executive or alternate, to be aware of the degree of duties and implications of acting as a director.

By Tommy Wong

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Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.

Wednesday, 27 July 2022

3:00 pm – 4:00 pm Strata Living Issues: Inter-floor leakages & Short Term Rentals

About this talk

Inter-floor leakages and short term rentals are common issues faced by owners and the property management in a strata development. What does the law have to say about these problems? What are your rights and obligations? Join us for this online talk where our speakers will discuss the issues arising from inter-floor leakages and short term rentals and the solutions to these problems.

The talk will be delivered over video conference using Zoom.us. You can either view the talk from your web browser or download the Zoom app.

Talk Points

  • What is inter-floor leakage?
  • Remedies available to owners when facing inter-floor leakages
  • Short term rentals: Allowed or Not?
  • Latest case law on short term rentals

Speakers

  • Eric Toh, Senior Associate, Dispute Resolution Practice Group
  • Fung Kar Men, Associate, Dispute Resolution Practice Group
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Past Seminars

A software development contract is a legally binding agreement that governs the terms for developing a software product, typically between a software developer and its customer. Software products include programs, mobile applications and platforms, web applications and platforms , and online integration or upgrades of existing software. As companies and businesses seek to adopt digital technology and integration, the need for software development contracts is becoming increasingly common. Whilst it is important to understand standard terms in software development contracts, customers should ensure that legal requirements and/or clauses are drafted carefully in software development contracts to avoid ambiguity and future disputes.

The process of developing software is unique and each software development project or service may entail different timelines, milestones, testing requirements, specifications and obligations in the software development contract. There are also different types of services in relation to software development based on the needs of a client. For example, a software development contract will be prepared for a project to design and develop a software, and the services may include design, development, implementation, support and maintenance. In other instances, a software contract may only govern the terms for an update or upgrade of the software. Regardless, the terms under these software development contracts must be clear and concise to address the objectives of the contracting parties. These contracts bind the software developer and its customer, to ensure that service and payment obligations are fulfilled within the agreed time frame.

Importance of Software Development Contracts

Every software development project will undoubtedly face its own challenges. However, a contract setting out agreed timelines, milestones and obligations will afford parties the opportunity to reduce potential risks and disputes, ensure safeguards and manage expectations in a clear and concise manner. More importantly, it allows parties to define the way the project is to be delivered and its specifications.

Software development contracts should also include provisions to establish the ownership of the source codes created for the software. The intellectual property rights of the software created is an important aspect of these contracts to avoid future disputes in terms of ownership. Other key areas in software development contracts include variations and testing requirements for milestones depending on the project. By incorporating these elements, parties are able to gauge a rough timeline for completion, set out terms to address variations which may be requested during the project implementation, and set the criteria to determine whether the software is functional during testing in accordance with the agreed specifications before delivery of the final product.

Standard terms in a Software Development Contract

There are different types of software development contracts, the choice of which will depend on the type of software being developed and whether the contract is based on time and materials or is a fixed/lump sum contract. When it comes to clauses addressing termination, dispute resolution, governing law and other boilerplate clauses, these software development contracts are similar to a contract for service. Please see our article on boilerplate clauses which can be found here.

Below the clauses commonly found in a software development contract.

1.  Services to be provided and obligations

  • The type of service required of the software developer and type of software to be developed.

2.  Cost and payment terms

  • The total cost and payment terms will either be based on progressive milestone payments (time and materials) or a fixed/lump sum payment.

3.  Project timeline

  • The timeline sets out the commencement date of the project development and the term of the contract. It is also important to address whether extensions of time are allowed and the consequences of delays.

4.  Variation

  • Variation clauses address terms and conditions to cater for variations to the software required by the customer before completion of the project. These variations refer to changes to either the specifications, features or design of the software and usually come at an added cost to the customer by the software developer.

5.  Testing – User Acceptance Test/ Final Acceptance Test

  • User acceptance tests are based on user requirements and specifications to be carried out upon completion of the design, development and installation of the software which involve either a conditional trial run period or the client testing.
  • Final acceptance tests are the final stages of testing the software (if required) after the user acceptance test, which involves testing of rectified bugs, errors or other defects highlighted in the user acceptance test (if any).

6.  Liquidated Ascertained Damages

  • Liquidated ascertained damages clauses are included to compensate the customer at predetermined rates in the event of any delay towards completion of the project.

7.  Intellectual Property Rights

  • To address ownership rights of the software and other intellectual properties developed in connection with the contract upon completion and, in some cases, ownership rights of property relating to the software before completion.

8.  Confidentiality and Non-Disclosure

  • Confidentiality clauses for software development contracts is an important element to ensure parties maintain confidentiality during the development and implementation phases. Confidentiality obligations typically survive the expiration or termination of the contract.

9.  Support and Maintenance

  • It is common for software development contracts to include pre-agreed service level agreements to be attached as annexures to cater for support and maintenance of operating the software after development by the same software developer. This would cover technical elements of when, how and where the support and maintenance services will be provided as well as cost for such services for a specified period of time.

AIAC’s Standard Form Contract

On 19 November 2021, the Asian International Arbitration Centre (AIAC) released a standard form contract for software development under its AIAC Technology Expert Committee (TEC) which aims to provide an easy-to-use template encompassing the technology industry practices to ensure the rights of stakeholders involved are balanced.However, whilst the standard form includes most standard terms, customers should be weary to follow the template without legal advice and/or amendment. Each customer and project requires different needs on how software development is to be developed and implemented. Review of the standard form should be sought to include specific terms and conditions to address the needs of parties and the project.

Conclusion

The above standard clauses are non-exhaustive and should be drafted or reviewed carefully to address the needs of each project between a customer and the software developer. It is always helpful to engage lawyers to effectively advise on, assist with negotiations and draft clauses in a software development contract to meet the project objectives and effectively record agreed terms between the parties.

By Cassandra Nicole Thomazios

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Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.

“Malaysia has seen the emergence of a number of exceptional lawyers, who are standing out through brilliant performance at a young age. In this annual list, ALB features Malaysian lawyers under the age of 40 who are delivering high-quality work and earning accolades from their colleagues, superiors and clients.”
– Asian Legal Business, June 2022 Edition

MWKA is proud to announce that two of our Senior Associates, Denise Phang and Jasmine Wong, have been profiled by Asian Legal Business as Malaysia Rising Stars 2022.

View the full list in the June 2022 issue of ALB here.

Both Denise and Jasmine started their legal careers in MWKA as pupils-in-chambers before joining the firm as associates. As senior associates, they are now pursuing careers in their respective practice areas. Denise’s practice focuses on real estate, land acquisition and construction disputes, while Jasmine pursues her passion in citizenship, adoption, medical malpractice and negligence, and employment law.

The ALB editorial write ups are reproduced below:

Denise Phang

Senior Associate

“Admitted to the Malaysian Bar in 2015, Phang has been with MahWengKwai & Associates for eight years and was promoted to senior associate in 2019. As a litigator, she deals extensively with commercial and contractual litigation, adjudication and arbitration.

Phang leads the land disputes team, which handles cases such as land acquisition, land fraud, breach of land-related contracts and trespass.

In recent years, Phang has represented Iskandar Waterfront in its claim for approximately 709 million ringgit ($161 million) as compensation for the compulsory part-acquisition of land for a rapid transit system project, which involves unique legal matters in the valuation of land that is planned for reclamation, and underwater land adjacent to the border between Malaysia and Singapore.

She has also successfully argued on novel issues of law in a number of cases, including raising the issue of the High Court’s jurisdiction to hear land reference proceedings arising from a null and void Land Administrator’s Award in KCSB Konsortium Sdn Bhd v Pentadbir Tanah Johor Bahru & Anor [2019] MLJU 915, and substantiating that a non-paying Party may only raise a LAD (liquidated ascertained damages) claim as a defence to the unpaid party’s claim and not a standalone counterclaim in Tenaga Poly Sdn Bhd v Crest Builder Sdn Bhd.

Additionally, Phang is well-versed in town planning, land development, infrastructure and construction. She has particularly earned recognition in the niche area of environmental law and has contributed to the publication of legal textbooks on the topic.

Her major clients include, among others, Sime Darby Plantations, Metropolitan Square Joint Management Body, LBS Bina Group, Cicet (Malaysia) Corporation, and Estate of Tan Bok Yin.

Phang is well acknowledged among partners, colleagues and clients for her meticulousness, efficiency, analytical mind and in-depth knowledge of law. “Phang Phang is a hardworking, bright, brilliant and articulate lawyer,” says a client. “She was patiently working on all the materials and facts that I have brought to her for this case. Her legal team is always good in helping clients seek fairness and justice. Her submissions were good and her performance and lawyer instinct in open court was brilliant.”

Jasmine Wong

Senior Associate

“Upon admission to Malaysian Bar, Wong started her practice at MahWengKwai & Associates in 2017, and got promoted to senior associate in 2021. She is actively involved in a wide range of general litigation, particularly in citizenship, adoption, medical malpractice and negligence, personal injury, and employment law.

Wong co-heads the citizenship and family law Team and the medical and personal injury team in the firm. She has been invited to speak on the rights of stateless children and reforms on the citizenship laws in Malaysia in various roundtable discussions organised by various stakeholders. At the age of 25, she received recognition in Prestige Malaysia’s 40 Under 40 2020 for her work on the issue of statelessness.

Wong appeared in the landmark successful appeal at the Federal Court as co-counsel to Dato’ Cyrus Das and Raymond Mah in 2021, which declared that children born and abandoned at birth in Malaysia are citizens. The decision is considered to have wide ranging implications to abandoned children in Malaysia who are currently stateless.

Wong also acted as solicitor and counsel for a 23-year-old client born in India to a Malaysian mother and an Indian father, who was denied her right to Malaysian citizenship. The case has been widely publicized for the issue of inequality and gender discrimination faced by Malaysian mothers who gave birth to their children overseas.

Wong co-authored an article entitled Citizenship for Adopted and Legitimized Children: To the Federal Court and Back Again [2020] 2 MLJ vi which was published in the Malayan Law Journal in 2020. In 2021, the firm’s individuals & families department co-led by Wong has been awarded as the Matrimonial and Family Law Firm of the Year by ALB.

Wong has won great acclaim among partners, superiors, colleagues and clients. “We were immediately drawn to her professionalism and willingness to listen and were put at ease by her friendly and caring nature,” says a client. “Ms. Jasmine Wong was very willing, patient and helpful in answering all my questions pertaining to certain matters and also the legal jargon used in some of the documents too.”

The MWKA team proudly congratulates Denise and Jasmine on this wonderful recognition and is committed to supporting them in their professional career as lawyers

MahWengKwai & Associates (MWKA) has won the Labour & Employment Law Firm of the Year Award at the Asia Business Law Journal Malaysia Law Firm Awards 2022.

According to Asia Business Law Journal, the award winners were selected based on the votes, references and qualitative information received from in-house counsel and other legal professionals in Malaysia and around the world.

The editors’ write up features positive feedback received by the Journal from MWKA’s clients:

“My experience with MahWengKwai & Associates was excellent,” says Eric Mak, resource administration – Asia Pacific at staffing company eTeam in Kuala Lumpur. “We contacted the firm just a few days prior to our first hearing over an employment dispute. Our attorney gave our case all the time and attention that was needed in response to the hearing in such short notice. Our case went through successfully.”

Nicole Liew, senior human resources manager at Hitachi Construction Machinery (Malaysia) in Kuala Lumpur, concurs. “They have demonstrated high levels of professionalism, responsive in addressing our concerns and recommending practical solutions that put our company’s best interest as a priority,” says Liew.

MWKA’s managing partner, Raymond Mah, said that the team is honoured and encouraged by this recognition. “Of course we are grateful to our clients for their consistent support. We also thank our hardworking team for their dedication and commitment to maintaining the highest standards of legal service to our clients.” He credits the team for their consistent hard work in helping clients who include both employees and employers with various unfair dismissal cases, trade disputes involving unions, collective agreement disputes and also corporate employment matters.

The MWKA labour and employment team comprises experienced lawyers who understand that employment disputes may be stressful and daunting. With an employment team of 5 lawyers and 4 pupils, the firm handles all matters promptly, efficiently and strategically to ensure that the most cost-effective and efficient legal services are provided. The firm’s breadth of expertise and variety of practice areas allow our team to advise and assist on complex multi-practice area cases that may be beyond the scope of specialist firms that only advise on employment law.

The firm regularly represents and advises corporations, businesses and individual employees of diversified backgrounds. Our employment department has been engaged in matters relating to disciplinary procedures, termination of employees, unfair dismissal matters at the Industrial Court, executive and severance agreements, employment contracts, handbooks and policies, labour relations and negotiations, trade disputes, collective bargaining and collective agreement disputes.

Our employment department also offers consultation on a monthly retainer basis to businesses and employers. Our hassle-free retainer gives our clients access to our qualified lawyers for employment law enquiries and other services. Additionally, clients on our retainer also enjoy the benefit of additional legal services at special rates.

The firm’s employment department is always ready to assist employees and employers in whatever that they may need.

Read the full article by Asia Business Law Journal Malaysia here.

Thursday, 7 July 2022

3:00 pm – 4:00 pm “Serious Professional Misconduct” in MMC Disciplinary Inquiries

About this talk

The Code of Professional Conduct of the Malaysian Medical Council (MMC) provides a detailed process for complaints against a registered medical practitioner. How does the complaint process work and what constitutes “serious professional misconduct”? Join us for this online talk to know more about the proceedings in a disciplinary inquiry conducted by the Malaysian Medical Council.

The talk will be delivered over video conference using Zoom.us. You can either view the talk from your web browser or download the Zoom app.

Talk Points

  • Role of the Malaysian Medical Council
  • Proceedings in an MMC Disciplinary Inquiry
  • What is “serious professional misconduct”?
  • Possible outcomes and punishments

Speakers

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Past Seminars

The laws on marriage and divorce for non-Muslims in Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). A contested petition (also known as a single petition) is an application to the High Court for divorce in which both husband and wife dispute the terms of the divorce or even the divorce itself. This article will attempt to answer ten frequently asked questions regarding contested petitions.

Frequently Asked Questions

1.  Can I get a divorce if we have only been married for a short time?

No, you cannot petition for divorce unless you have been married for at least two years. However, the Court can allow exceptions if there are exceptional circumstances or you have suffered exceptional hardship.

There is also the possibility of applying to annul the marriage if there are grounds for annulment. There is no minimum time requirement for an application for annulment. (Read more about the annulment of marriage here.)

2.  How do I commence the contested divorce process?

To commence the divorce process, you will first have to register for marriage tribunal sessions (“Marriage Tribunal Sessions”) at the National Registration Department branch nearest to the Matrimonial Home.

After two to three sessions with the marriage tribunal, the marriage tribunal will issue a certificate under Section 106 of the LRA if the attempts at reconciliation are unsuccessful. This certificate will state that the marriage tribunal has failed to reconcile the disputes between you and your spouse. Your lawyer can then file the contested petition at the High Court for divorce after obtaining this certificate from the marriage tribunal.

3.  Is it possible to dispense with the Marriage Tribunal sessions?

Yes, it is possible to dispense with the reconciliation sessions at the Marriage Tribunal if any of the following circumstances apply to you:

  • Your spouse has deserted you;
  • Your spouse is residing abroad and it is unlikely that he/she will enter Malaysia within six months after the date of filing of the contested petition;
  • Your spouse is imprisoned for five years or more;
  • Your spouse is suffering from an incurable mental illness; or
  • There are exceptional circumstances which make reference to the marriage tribunal impracticable (e.g.: domestic violence, spouse unreachable/uncontactable etc.)

4. Do I have to live apart from my spouse for two years before filing for divorce?

No, living apart is not a requirement for the filing of a contested petition. However, it is necessary to prove that there has been a breakdown of the marriage in order to obtain an order for divorce. Living apart from your spouse for two years before filing for divorce is sufficient proof of the breakdown in marriage. The other factors which prove the breakdown of the marriage include:

  • Your spouse has committed adultery and you find it intolerable to live with him/her;
  • Your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her; and
  • Your spouse has deserted you for a continuous period of at least two years immediately preceding the filing for divorce.

5.  What is the court process like and how long will it take?

The court process begins with your lawyer filing a divorce petition supported by other cause papers including an affidavit and a statement as to arrangement for children (if there are children of the marriage). Your spouse will have an opportunity to file an Answer to your divorce petition and you will also have an opportunity to file a Reply to the Answer.

After all the aforementioned cause papers are filed and if there are no interlocutory applications, the petition will be fixed for trial wherein you will be a witness. As a witness, you may be cross-examined (asked questions) by your spouse’s lawyers regarding, among others:

  • The statements in your divorce petition and Reply;
  • The statements in your witness statement;
  • Any other documentary evidence which are filed by parties into court before the trial.

The trial will likely take more than a day depending on the number of witnesses called by either party and the complexity of the case. After the trial is completed, a date will be fixed for a hearing wherein each party’s lawyers will submit legal arguments to court (based on the available evidence) in support of each party’s respective positions.

A decision on the divorce petition will be made by the High Court after the hearing.

The High Court will try to complete the proceedings in nine months. However, the process can take if the Court is particularly busy or if there are interlocutory applications or other delays.

6.  What questions will the Court consider in a contested petition?

When hearing a contested divorce petition, the Court will, when applicable or relevant, consider decide on the following questions:

  • Whether there are grounds for divorce to be granted?
  • Whether allegations of adultery are proven? If so, the amount of damages to be paid by the third party adulterer or adulteress?
  • Which parent will have guardianship, custody, care and control over the children (if any)?
  • What are the periods of access allowed to the parent who does not have custody, care and control over the children?
  • How much child maintenance is required to be paid?
  • How much spousal maintenance is required to be paid?
  • How the matrimonial assets are to be divided between the spouses?

7.  Will mothers usually get custody of the children after divorce?

There is a rebuttable presumption that it is for the good of a child below seven years old to be with his/her mother. However, as this is a rebuttable presumption, a father can still attempt and furnish evidence to rebut this presumption and prove otherwise (e.g. by providing evidence to show that the mother is an unfit mother).

For children seven years old and above, the presumption will not apply and the child’s welfare will be the paramount consideration for the Court in deciding in whose custody a child should be placed.

The Court will also consider the wishes of the parents and the wishes of the child (if the child is old enough to express an independent opinion) when deciding on the question of custody.

8.  Are all assets divided 50-50 between husband and wife during a divorce?

No, the division of matrimonial assets may not be equal in all circumstances.

The Court will consider the following factors before making a decision on the division of assets:

  • the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family;
  • the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;
  • any debts owing by either party which were contracted for their joint benefit;
  • the needs of the minor children, if any, of the marriage; and
  • the duration of the marriage.

The contribution of each party to the acquisition of the assets and the contribution of each party to taking care of the home or caring for the family will usually play a significant part in determining how a matrimonial asset will be divided.

9.  How much maintenance do I need to pay my former wife after the divorce?

The Court will look at the means and needs of each party when assessing the quantum of maintenance that needs to be paid.
Generally, the Court will endeavour, subject to the husband’s financial position, to place a former wife in a position to enjoy the same standard of living as she had during the existence of the marriage.

Therefore, if there is a claim for maintenance by your former wife, it is important to look into the claim and examine whether the expenses claimed are justified.

On the other hand, a woman will only be required to pay maintenance to a former husband if he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the court is satisfied that having regard to the woman’s means it is reasonable to order her to pay such maintenance.

Nevertheless, an order for spousal maintenance can be varied if the necessary legal requirements are satisfied. To read more about variation, please refer to our article on Variation of Maintenance Orders.

10.  How is child maintenance determined and when will it end?

The Court will look at the means and station in life of the parent when assessing the quantum of child maintenance that needs to be paid. The child maintenance paid will usually need to cover areas such as accommodation, clothing, food and education for the child.

The court may order a man to pay child maintenance:

  • If he has refused or neglected reasonably to provide for the child;
  • If he has deserted his wife and the child is left with the wife;
  • During the pendency of matrimonial proceedings; or
  • When making or subsequent to the making of an order of custody

The Court will also have the power to order a woman to pay child maintenance if it is satisfied that she has the means to do so.

Payment for child maintenance will usually end when a child reaches the age of eighteen years. However, if the child is suffering from a physical or mental disability, or is pursuing further or higher education or training, child maintenance will have to be paid until the ceasing of such disability or completion of such further or higher education or training.

Similar to an order for spousal maintenance, an order for payment of child maintenance may also be varied in certain circumstances.

By Eric Toh

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Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.

Thursday, 23 June 2022

3:00 pm – 4:00 pm Land Acquisition for Redevelopment Projects in Malaysia

About this talk

In light of the recent large scale redevelopment projects in Malaysia, the legality acquisition of existing buildings for redevelopment is called into scrutiny by the landowners and stakeholders involved. This talk will examine the land acquisition process and discuss the rights and remedies of all persons interested in the acquisition.

The talk will be delivered over video conference using Zoom.us. You can either view the talk from your web browser or download the Zoom app.

Talk Points

  • Is redevelopment a public purpose?
  • Negotiations, settlement and other arrangements
  • Rights and remedies of persons interested
  • Comparison with other foreign jurisdictions

Speaker

  • Denise Phang, Senior Associate, Dispute Resolution Practice Group
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Past Seminars

From left to right: Mr Christopher Chan (Senior Associate Director, Capital Markets Division of Laurelcap), Mr Raymond Mah (Managing Partner, MWKA), Mr Tan San Yew (Group Managing Director of Laurelcap), Ms Denise Phang (Senior Associate, Real Estate Disputes, MWKA), Ms Sarah Kambali (Partner, Real Estate Transactions, MWKA)

Laurelcap signed a Memorandum of Understanding (MOU) with MahWengKwai & Associates (MWKA) for deeper collaboration and knowledge sharing. The signing took place at MWKA’s office at Dataran Prima on 31.5.2022.

Under the collaboration agreement, parties continue to work together for greater opportunities to bring value to each other’s teams and clients. Laurelcap recognises MWKA as its panel solicitors and welcomes MWKA to work closely with its real estate agents, real estate negotiators and clients.

Mr Tan San Yew, the Group Managing Director of Laurelcap Group said that he is confident that this “strategic collaboration with MWKA will lead to a win-win for both parties and their clients.”

Recognising that knowledge sharing is key to improvise the value and quality of services, Laurelcap and MWKA have also agreed to the sharing of legal and real estate insights and updates, as well as market opportunities.

Managing partner of MWKA, Mr Raymond Mah said that his team is excited to work with Laurelcap in the real estate space. “Our deep knowledge and experience in real estate legal services, including joint venture development, conveyancing, property financing, land acquisition, strata management issues and ownership disputes will hopefully allow us to bring real value to Laurelcap and its clients.”

Laurelcap Group is an award-winning professional real estate consultancy firm providing valuation, estate agency, property management, project management and real estate consultancy services. Established since 2008 in Selangor, Laurelcap Group has spread its wings and opened local and international branches, including various key cities in Peninsula Malaysia and East Malaysia.

MWKA is an award-winning law firm committed to delivering efficient and effective legal solutions to its clients. The firm was founded by Dato’ Mah Weng Kwai in 1985 and today is a full-service practice of more than 50 persons, including 22 lawyers, with a focus on small and medium enterprises (SMEs) and high net worth individuals. MWKA is also a founding member of the League of Lawyers, a network of more than 20 law firms across Europe and Asia.

REQUEST A FREE CONSULTATION →

Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
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