CHAPTER 2: JURISDICTION

1. The issue is whether the Malaysian Courts have jurisdiction to hear the case.
2. Whether Malaysian Courts are the best court to hear the case / whether Malaysian Courts should hear the case.

Jurisdiction can be determined in two ways which are firstly, via statute. According to Section 23 of Courts of
Judicature Act 1964, it provides a general rule where subject to the limitation contained in Article 128 of the
Constitution the High Court shall have jurisdiction to try all civil proceedings where (a) the cause of action arose, (b) the
defendant or one of several defendants resides or has his place of business, (c) the facts on which the proceedings are
based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated within the local
jurisdiction of the court and notwithstanding anything contained in this section in any case where all parties consent in
writing within the local jurisdiction of the other court.

In Malaysia, place of business means it should be a registered company under the Companies Act 2016. Whereas
under common law principle, place of business is defined as a place as long as business is conducted regardless of
registration. In the case of South India Shipping Corporation Ltd v Export-Import Bank of Korea, the court held that in
order for a business to fall within “place of business”, it is not necessarily that the company should carry on the whole of
its business in the country.

Another definition of “place of business” can be seen in the case of Cleveland Museum of Art v Capricorn Art
International SA where an art dealer’s house was held to be place of business because it was used for storing artwork.
Although there were no employees in the house nor any transaction had ever taken place there but it was used to store art
works which were displayed there and people could buy them. It was held that the activity of viewing the art is an integral
part of business thus, the house is held as a place of business.

Section 24 of Courts of Judicature Act 1964 provides that civil jurisdiction of the High Court shall include (a)
jurisdiction under any written law relating to divorce and matrimonial causes, (b) the same jurisdiction and authority in
relation to matters of admiralty as is had by the High Court of Justice in England under the United Kingdom Supreme
Court Act 1981, (c) jurisdiction under any written law relating to bankruptcy or to companies; (d) jurisdiction to appoint
and control guardians of infants and generally over the person and property of infants; (e) jurisdiction to appoint and
control guardians and keepers of the person and estates of idiots, mentally disordered persons and persons of unsound
mind; and (f) jurisdiction to grant probates of wills and testaments and letters of administration of the estates of deceased
persons leaving property within the territorial jurisdiction of the Court and to alter or revoke such grants.

According to the Common Law Principle, the general rule is once a person enters into the Malaysian territory, it
means that he has come within the jurisdiction of either High Court in Malaya or Sabah & Sarawak. He then can be
brought before the court by way of an appropriate writ of summons. This is the foundation of a civil action in personam.
The writ can be served on a person who is not a citizen or anyone merely passing through Malaysia on his way
somewhere else. The duration and the reason of his stay in Malaysia are immaterial where even if it is only for one day,
the writ of summon can still be served. In Maharanee of Baroda v Wildenstein, the court held that mere presence is
sufficient regardless of whether the defendant was foreigner. In this case, the defendant was briefly present for a race at
Ascot but he was still subject to the jurisdiction of the court. Similarly, in Colt Industries Inc v Sarlie where the court
held that it makes no difference if a defendant is in a jurisdiction for a short period of time which in this case the
defendant was staying for one night at a London hotel.

However, there is an exception to personal jurisdiction in the situation where there is an element of fraud. This can be
seen in the case of Lim Guan Teet v Tengku Akobe where the defendant came within the jurisdiction of the Penang High
Court at the invitation of the plaintiff. The defendant then was arrested for debt against the plaintiff. The court held that
the plaintiff could not bring a case against a defendant that was induced to enter into the court’s jurisdiction for an entirely
different purpose than on a purpose of being a party to a proceeding. The court also held that that a case must be brought
to the court of law with clean hands. If the defendant is physically forced to enter jurisdiction so he could be served with a
writ of summon, the same principle will be applied as decided in John Sanderson v Giddings.

The other general rule of jurisdiction under common law is that where the parties start the proceedings at the
Malaysian Courts and submit the case in Court. In Barclays Bank of Swaziland v Hahn, the court held that as long as
there is knowledge that the writ has been received or it has been suspected when it was sent, the writ is considered served.
Hence, in order for a writ to be established, defendant must be physically present within the jurisdiction and he/she must
have the actual knowledge that the writ has been served. It is immaterial whether he/she did not look or open it so long as
he/she knows about it.

Jurisdiction via common law can be determined where the defendant enters an appearance and defends the case
on its merits, he will be precluded from challenging the jurisdiction of the courts at a later stage as decided in
Marketmaker Technology Ltd v CMC Group PLC.
According to the common law principle, the other situation is a defendant is taken to have submitted to the
jurisdiction of a foreign court if he had appeared there voluntarily to protest against the jurisdiction of the foreign court as
decided in Henry v Geoprosco International. Even if an individual appear to protest the jurisdiction without considering
that he has submitted to the jurisdiction of a foreign court, he cannot submit that the court has no jurisdiction to hear his
case before the court. Even applying to strike out the case is also considered as submitting and accepting the jurisdiction
of court.

A writ is served on the defendant when there is a case that is brought against him. However, if the
defendant is in overseas, a notice of writ will be served to him to inform that there is a case in Malaysia that will be
going to be heard involving him. It is permissible to do so according to Order 11, rule 1(1) of Rules of Court 2012 but
with the leave of the court; whether it is granted or not depends on the discretion of the court. A writ will be issued under
Order 11, rule 1(1) Rules of Court 2012 if it falls within one of the situations which is (a)land situated in Malaysia, (b)
deed, will, contract regarding land, (c) person who is domiciled in Malaysia/living in Malaysia or carrying on business in
Malaysia, (d)management of estate of a person who died domiciled in Malaysia, (e)person who holds the trust is not in
Malaysia, (f) Malaysian contract, (g)Breach of contract happened in Malaysia, (h)tort happened in Malaysia, (i) injunction
to refrain the defendant from doing something in Malaysia, (j)a person out of the jurisdiction who is necessary for a
proceeding in which an action has already begun by serving writ properly against a person within the jurisdiction, (k)
property matters, (l) matters relating to carriage by air or (m) enforce judgement or arbitral award. Furthermore, order 11,
rule 1(1) also provides that no notice of writ can be served if it is a claim for damage, loss of life or personal injury arising
out of a collision between ships. In The Hagen, the court lays down the principles to use Order 11. Firstly, the plaintiff
must have a good arguable case. The court must be exceedingly cautious before
allowing a writ to be served to a foreigner outside Malaysia. Next, the plaintiff must make a full and
fair disclosure of all relevant facts and any doubt in the construction of the rule should be resolved in the defendant. In
exercising its jurisdiction, the court must consider whether it or a foreign court is the appropriate forum for the case.
Lastly, both parties have agreed that any dispute is to be referred to the exclusive jurisdiction of a foreign court.
Therefore, since all the principles are fulfilled, the Malaysia court will not hesitate to use Order 11 and serve a
notice of writ on the defendant.

As for stay of action, according to Paragraph 11 of the Schedule of the CJA 1964, power to dismiss or stay
proceedings where the matter in question is res judicata between the parties, or where by reason of multiplicity of
proceedings in any court or courts the proceedings ought not to be continued.

According to Order 18, rule 19 of Rules of Court 2012, the court may order any pleadings or endorsement of
any writ in the action to be struck out or amended on the ground that (a) it discloses no reasonable cause of action or

defence, (b) it is scandalous, frivolous or vexatious, (c) it may prejudice, embarrass or delay the fair trial of the action, or
(d) it is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgment to
be entered accordingly.

Forum non conveniens can be defined as where the defendant seeks to stay the Malaysian proceedings on the
basis that trial in Malaysia is not appropriate and that a foreign forum is clearly more suitable. In St Pierre v South
American Stores, it was held that a mere balance of convenience is not a sufficient ground for depriving a plaintiff to the
advantages of prosecuting his action in an English Court. The court will only stay the proceeding if the defendant can
prove 2 conditions which is firstly, the defendant must satisfy the court that the continuance of the proceeding will lead to
an injustice as it will be oppressive and vexatious towards him or it would be an abuse of the process of the court in some
other way. Secondly, this stay must not cause an injustice to the plaintiff. The burden of proof lies on the defendant to
prove both conditions. However, the rigidity of the St Pierre test was modified by the English Courts in The Atlantic Star
where stay was granted. It was further held that the St Pierre Test was regarded as valid but the words oppression and
vexation should be interpreted liberally. It can be seen in Mac Shannon v Rockware Glass Ltd where the defendant had to
satisfy the court that there was another forum in another country to which justice could be done between the parties at
substantially less inconvenience and expense. Furthermore, the defendant in this case also had to prove that the stay must
not deprive the plaintiff of any legitimate personal or juridical available to him in England. In The Abidin Daver, the court
held if the foreign court was the natural and appropriate forum, the plaintiff had to prove by cogent evidence that there
was some personal or juridical advantage in the English action of such importance that it would be unjust to deprive him
of it.

In Spiliada Maritime Corp v Cansulex Ltd, The Spiliada, it was held that the court should exercise its discretion
in favour of that forum in which the case could be tried more suitably for the interests of the parties and the needs of
justice which is the appropriate forum where the case has its closes and most real connection. The court will look at the
factors which are expense and convenience such as availability of witnesses and also matters like the law governing the
transaction or the parties' places of residence or business. The possibility that the plaintiff may be deprived of a legitimate
advantage if a stay is granted is undoubtedly relevant to this issue, but it is far from conclusive. The burden of proof is on
the defendant that is seeking the stay.

In Malaysia, the test of forum non conveniens from The Spiliada was adopted in the case of American Express
Bank Ltd v Mohamed Toufic Al-Ozeir which was followed by the subsequent cases. Thus, there is a clear development of
the Malaysian courts to follow the forum non conveniens doctrine. However, in an Australian case of Oceanic Sun Line
Special Shipping Co Inc v Fay, the court rejected the English development of the doctrine of forum non conveniens but
applied the traditional St Pierre test instead. In a later case of Voth v Manildra Flour Pty Ltd, the court came up with
their own brand of determining stay of action cases by looking at whether the forum is clearly an inappropriate forum for
determination of the dispute and in that event, the continuation of the case in the forum will be regarded as oppressive or
vexatious and the proceedings should be stayed.

Foreign Jurisdiction clause means that clauses that declare a transaction is to be governed by the law of a
particular country. Common in international commercial contracts. In The Fehmarn, it was held that the parties' choice of
law was irrelevant since no one can oust these courts of their jurisdiction in a matter that in a matter that properly belongs
to them. It was all a matter of determining which country is the dispute most closely connected. This case is applied in a
Malaysian case of Elf Petroleum v Winelf where despite there is an existence of an arbitration clause, the court held that it
was not sufficient to oust the jurisdiction of the Malaysian Courts.

In The Eleftheria, the court held that where there is an application for a stay on the basis of foreign jurisdictional clause,
the court had a discretion in the matter and this should be exercised in favour of granting a stay unless strong cause for not
doing so was shown. The burden of proof lies on the plaintiff to prove such strong cause. The court further held that in
exercising its discretion, the court should consider all the circumstances in the case including, if relevant which are firstly,
in in what country the evidence on the issues of fact was available, and the relative cost and convenience of trials.
Secondly, whether foreign law applied and, if so, to what extent it differs from English law in any material respect.
Thirdly, with what country either party is connected, and how closely. Next, whether the defendant genuinely desires trial
in a foreign country, or only seeks procedural advantages there. Lastly, whether the plaintiff will be ‘prejudiced’ by
having to sue in a foreign country, either by losing security for his claim, being unable to enforce the judgment obtained
there, being faced with a time-bar not applicable locally, or being unlikely to get a fair trial.
 The court in a Malaysian case of Globus Shipping v Taiping Textiles referred to both The Fehmarn and The
Eleftheria and held to be more in favour of the The Fehmarn. It was held that even though parties had decided to refer
disputes to a foreign court, the Malaysian court where the cause of action in relation to the contract arises and is properly
within its jurisdiction has a discretion whether or not to adjudicate. The case of The Eleftheria was applied in the
Malaysian case of Sabah Gas Industries v Trans Samudera Lines where the court allowed the defendant’s application to
set aside the injunction to stay the arbitration proceedings and set aside the plaintiff’s writ of summons. In American
Express Bank Ltd v Mohamed Toufic Al-Ozeir, the court held that foreign jurisdiction clauses would in any event, in
some significant way, militate against any argument for the bank customers, such as the plaintiffs, that the Malaysian
court was the most appropriate forum.
In Inter Maritime Management v Kai Tai Tim, the court made a comparison between forum non conveniens
cases and forum selection clause cases. The court decided not to give effect to the forum selection clause as there were
stronger links on the facts of the case with Malaysia which the court applied both The Fehmarn and The Eleftheria.

Lis Alibi Pendes means a lawsuit pending in another jurisdiction. Whereas Anti-suit injunction is where the
court may try to stay the action going on in another country because Malaysia is the best forum to hear the case. The court
does this by placing an injunction on the plaintiff forcing him to stop his actions abroad. In Societe Nationale Industrielle
Aerospatiale v Lee Kui Jak & Anor, the court held that the natural forum for the trial will be selected by looking at
whether legal relief could be obtained at the forum and whether the selection of the forum would be oppressive to the
party. It was further held that the basic principles of the law relating to injunctions restraining a party from commencing
or pursuing legal proceedings in a foreign jurisdiction are firstly, the jurisdiction to stay was to be exercised when the
‘ends of justice’ required it. Secondly, since such an order indirectly affected the foreign court, the jurisdiction was one
which had to be exercised with caution. Lastly, an injunction will only be issued restraining a party who was amenable to
the jurisdiction of the court.

In BSNC Leasing v Sabah Shipyard, it was held that whether the institution of proceedings in a foreign court would be
vexatious or oppressive would depend on the peculiar facts of the case. When deciding this question, a court must have
regard to all the circumstances of the case including such matters as comity, the interest of the parties, the connection that
the dispute has with the alternative forum and the need to exercise caution when restraining foreign proceedings. In this
case, the proceedings in the Ecuadorian court was vexatious and oppressive and due to the strong links with Malaysia,
Malaysia is the natural forum for the resolution of the dispute. Anti-suit injunction was therefore allowed (even mandatory
injunction was given to stop the arrest of the barge and to stop all proceedings before the Ecuadorian court).

CHAPTER 3: DOMICILE
1. DOMICILE OF ORIGIN

1) No person shall be without a domicile.

 Domicile of origin is assigned by law to a child at his or her birth. A child
younger than 18 years old would have his or her domicile depending on
the parent’s domicile. This is based on the doctrine of domicile of
dependency.
 In Udny v Udny, the court held that a legitimate child is assigned the
domicile of the father.
 However, if an illegitimate child is later legitimated, the domicile of
origin will remain same as that of the mother. According to the case of
Bell v Kennedy, a domicile of origin cannot be lost by mere
abandonment which can only be lost by the acquisition of a domicile of
choice. It is not a matter of free will communicated to a person by
operation of law. It is distinguished by mere removal with the intention
of not to return. An existing domicile is presumed to continue until it is
proven that a new domicile has been acquired. This is decided in the
case of Winans v AG where the burden of proving a change lies on those
who allege that a change has occurred.
 In Tee v Tee, the court held that a domicile of choice can be lost by
abandonment and if it is, and a new domicile of choice is not
simultaneously acquired, the domicile of origin revives to fill the gap.

2) No person can at the same time have more than one domicile, at any
rate for the same purpose as in Udny v Udny.
 Domicile of origin is merely placed in abeyance for the time being when
you acquire a
domicile of choice. It will revive as soon as you abandon your domicile
of choice – in Udny v Udny.
 3) - An existing domicile is presumed to continue until it is proven that a
new domicile has been acquired.
- The burden of proving a change lies on those who allege that a change
has occurred: Winans v AG
- Re Fuld’s Estate (No 3): unless the judicial conscience is satisfied by
evidence of change, the domicile of origin persists and the acquisition
of a domicile of choice is a serious matter not to be lightly inferred from
slight indications or casual words.
2. DOMICILE OF CHOICE

 Every independent person who has reached age of majority (18 and
above) can acquire a domicile of choice on his own. There are two
requirements that needed to be established before one is said to have
successfully acquired a domicile of choice.
i. The first requirement is residence.
 In IRC v Duchess of Portland, the court held that for the purposes of the
law of domicile, it must have a physical presence in the country as an
inhabitant of it. It was held in Levene v IRC where to be resident in a
country a person need not own or rent a house there. It is sufficient if
he lives in a hotel.
 Hitech international
 Long residence does not mean domicile is established nor does brief
residence mean that domicile is not established. Length of time of
residence does not matter, it is the nature of the presence. As
illustrated by White v Tenant - mere arrival was enough to satisfy this
element; also because he intended to live there permanently and left all
his belongings there.
 To be resident in a country a person need not own or rent a house there.
It is sufficient if he lives in a hotel (Levene v IRC), or in the house of a
friend (Stone v Stone) or even in a military camp (Willar v Willar).
 > However a domicile of choice cannot be established by illegal
residence  Puttick v AG
 The Court in Plummer v IRC held that for a dual or multiple residence, a
domicile of choice can only be acquired in a country if this can be
shown to the chief residence.

ii. The second requirement is intention.

 In udny v udny, the court held that the law infers domicile of choice
from the facts of a man voluntarily establishing his sole chief residence
in a particular location with the aim of remaining there indefinitely. It
must be a permanent habitation, not just for a short time or for a certain
purpose, but for the foreseeable future.
 It must be unambiguous, realistic and clear to show that he has no
intention to permanently live in the said country as decided in IRC v
Bullock.
 If there is suspicion of the motive of a person to leave or remain in a
country, the court may be reluctant to allow for a change of domicile as
decided in Spence v Spence.
 In Joseph Wong Phui Lun v Yeoh Loon Goit , the court considered his
matrimonial home, employment, social link and political move in order
for intention to be established and in this case, it was successful.
Special cases may arise in certain circumstances and in the present
case, the element of fugitive from justice seems to be present.
 In Re Martin, a professor in France committed a crime related to his
professorship and fled to England. The court held that he had acquired
the necessary intention to stay there permanently when he decided to
marry his housemaid and settle down there, hence he obtained DOC in
England.
 The intention may come either before or after the establishment of
residence.
 Time at which intention is relevant:
o There must be a present intention of permanent residence merely

means that so far as the mind of the person at the relevant time was
concerned, he possessed the requisite intention.
o The relevant time varies with the nature of the inquiry. It may be

past or present.
o For e.g., in inquiring the domicile of a deceased person or the

domicile of a person whose essential validity of marriage depends on

the law of domicile.
 A bona fide intention: in the sense of being genuine and not
pretended for some other purpose such as getting a divorce to
which one would not be entitled by the law of the true domicile
as in Mark v Mark.

 Evidence of intention:
 The question whether a person has formed the requisite intention
is a question of fact.
 It is not possible to lay down any positive rule saying what
evidence is necessary to prove intention.
 All that can be said is that every conceivable event and incident in a
man’s life is a relevant and an admissible indication of his state of
mind.
 Things said and done before and after the time when it is alleged
that the chosen domicile has been acquired will be taken into
account.
 More reliance is to be placed on conduct rather than declarations
of intention, especially if they are oral as in McMullen v
Wadsworth.
 A person abandons his domicile of choice in a country by ceasing to
reside there and by ceasing to intend to reside there permanently or
indefinitely and not otherwise.
 In Re Raffenel’s Goods, the court held that there cannot be
abandonment of domicile of choice by relying on intention alone.
 In Re Addams, it was held that there must be physical departure from
the country for the domicile to change.

 Fugitives from justice:

 the natural inference is that he has left for ever and that a
presumption arises in favour of the acquisition of a fresh domicile
in the country of refuge. Even though his departure was forced
upon him, it doesn’t necessarily mean that he intends it to be
temporary.
 Re Martin- obtained domicile of choice in refuge country because he
eventually got the voluntariness.
 Refugees: Where there is continued retention of the residence in the
refuge country after a return to the original country has become safe
and practicable then the domicile has changed to the refuge country as
in May v May.

 Illness: If a person changes residence due to his health condition does

his domicile change? Differing opinions exist, consider Hoskins v
Matthews and Re James.
 Members of the armed forces: Generally their domicile does not change
with the country that they are sent to for service. But they can obtain a
domicile of choice at the country that they are stationed if they have
formed the necessary residence and intention (Donaldson v Donaldson).
The same situation goes for other kind of public or private employees
and diplomats.
iii. DOMICILE OF DEPENDENCY

a. SPOUSE

 Domicile of a married woman falls under the domicile of

dependency which means a dependent person has the domicile of
the person on whom he or she is legally dependent. Such domicile
of dependency changes with the latter’s domicile and the
dependent person cannot by his or her own act, change such
domicile.
 In the situation of death, divorce or desertion of husband hits, the
domicile of dependency now becomes the domicile of choice and
necessary steps must be taken to acquire a new domicile of
choice. If not, domicile reverts back to domicile of origin.
 In the case Charnley v Charnley & Betty, the court held that a
married woman acquires the domicile of her husband while the
marriage subsists, even though the parties may be living apart.
 In the case of Re Scullard Estate, after the death of her husband,
if the wife has done all that is necessary to acquire a new
domicile of choice, that choice automatically becomes her
domicile.
 In the case of Plummer v IRC, the court held that as for dual or
multiple residence a domicile of choice can only be acquired in a
country if this can be shown to be the chief residence.

b. CHILD
 A minor cannot obtain a domicile for himself or herself.
Determination of domicile of children under 16 years old could
also fall under the domicile of dependency which his or her
 domicile is dependent on and usually changes with the domicile of
someone else, such as the parent of a child.
 A person on attaining his/her majority returns to the last domicile
he/she had during his/her minority until he/she changes it.
 According to the case of D’Etchegoyen v Détchegoyen, the court
held that the domicile of a legitimate child automatically changes
with any change that occurs in the domicile of the father. A child
acquires on the death of the father, the domicile of the mother.
 In Pottinger v Whitman, the court held that the mother can’t
change the domicile of the child if it is disadvantageous to them
or it is for some fraudulent purpose. In Johnstone v Beattie, the
court held that after the death of the father, if the child continues
to live with the mother then any new domicile acquired by the
mother is prima facie also communicated to the child.
 In the case of Re Beaumont, the court held that a mother has the
power to change the child’s domicile upon the death of the father
either by taking them to a new domicile acquired by her or by
leaving them where their father was domiciled at the time of his
death.

c. MENTALLY DISABLED PERSON

 Follows the domicile of their parent/guardian at birth even though the

parent/guardian have died. If they are put in an institution, no one can
change their domicile in order to prevent abuse.
 If you are born sane but later become mentally disabled, the domicile will
be the one you had at the point of insanity. No one can change it.
 CHAPTER 4: MARRIAGE

For a valid marriage under private international law, 2 elements need to be fulfilled which are
formal validity and capacity. The case of Brook v Brook put a distinction between these two
elements where it was held that the capacity to marry is regulated by the law of domicile and
the form of marriage is to be regulated by lex loci celebrationis which means law of the
country in which it is celebrated.

The general rule of formal validity is that a marriage is deemed to be valid if it is

conducted according to the law of the country where the marriage takes place. This rule is
governed by the doctrine of lex loci celebrationis. According to the case of Starkowski v AG,
the formal validity of a marriage is determined according to the ceremonies of marriage in the
country where it was solemnised. In Berthiaume v Dastous, the court held that the formal
validity rule does not follow the domicile of the couple, but it follows the country where the
marriage is conducted. However, there are exceptions to the general rule of formal validity
where marriage may still be recognised even if it is not solemnized according the lex loci
celebrationis. One of the exceptions is where the party is a member of the military force in an
occupied country. In Taczanowska v Taczanowski, the court held that the marriage that is
solemnized in an occupied country need not follow that country’s law of marriage. The
marriage will still deemed to be valid as the marriage is recognised as conforming to the
English common law.

The second element is capacity. In determining the capacity of the couple, the case of
Brook v Brook provided two different tests; dual domicile test and intended matrimonial
home test. The former test provides that each party must have capacity to marry under the law
of the country of their domicile at the time of marriage, whereas the latter provides that parties
should be governed by law of a country of their contemplated matrimonial domicile.

As for the dual domicile test, both parties must have capacity to marry according to
their law of the country of the parties’ domicile. There are three situations where a dual
domicile test will present which are if there’s only a party who has the capacity to marry, the
marriage will be held as invalid as decided in Re Paine, secondly, if either party does not
conform with the other party’s domicile law as in the case of Pugh v Pugh and lastly, if the
initial divorce was not valid, there was no capacity to enter into a new marriage as decided in
the case of Padolecchia v Padolecchia.

As for the intended matrimonial home test, an individual’s capacity to marry is

determined by looking at the law of the country where the couple intends to live as husband
and wife. However, this test is usually less preferred compared to the dual domicile test. In
Brook v Brook, this case was between English man and woman which both were domiciled in
England. They celebrated their marriage in Denmark. The woman was the deceased wife's
sister of English man. It was illegal by England but legal by Danish law. Matrimonial home
was intended to be in England. The intended matrimonial home was the crucial element in
deciding that the marriage was invalid. However, it was also held as invalid according to the
dual domicile test as both were domiciled in England. In Radwan v Radwan, the court held
that the marriage is valid as per the Intended Matrimonial Home test. Here, Egypt is the
country where the couple intended to have their matrimonial home, so, according to the
Egyptian law, polygamous marriages are valid.

In M v M, they talked about the character of the marriage.

According to the dual domicile rule, the marriage is said invalid but the court held that the
character of the marriage is not determined by the form of ceremony but by the law of the
country in which it takes place. Whether it is polygamous or monogamous, the validity is
determined by the law of the place where it takes place.
CHAPTER 5: CONTRACT
 CHAPTER 5: TORT

I. The tort occurred abroad.

II. One or both of the parties are Malaysians so they filed a claim for tort in Malaysia.
III. Whether Malaysian court has the jurisdiction to hear the case.
IV. Hence, which law is the most appropriate to be used.

1. General rule in Phillips v Eyre (Before)

a. In order to file a suit in Malaysia, two conditions must be fulfilled which are the wrong
must have been actionable in Malaysia if it was committed here.
 If it happens in Malaysia, there can be action taken.
 Prior to this case, there was the case of The Halley1 where the defendants were held
not liable because they were not liable by English Law. The Privy Council held that
English Court will not enforce Belgian law to award damages in tort against the
defendants because under there was no such liability under English Law.
 So the rule was established that whatever the foreign elements in the case may be, a
defendant is not liable in tort in an English court unless his conduct was actionable by
English law. Even though tort occurred in another country, it must be tort liability in
England in order to bring an action in England.
 This rule does not change even in Chaplin v Boys.

b. The act complained about must have been unjustifiable in the country where it occurred.
 Phillips v Eyre
 The plaintiff sued Eyre in England for damages in Tort. The first rules was fulfilled
because assault is the tort in England at that time as well. However, the governor was
not liable under the lex loci delicti (the law of the country where the alleged tort was
committed) because whatever they did during the rebellion is lawful. Hence, the
second rule is not satisfied.
 Unjustifiable. What amounts to unjustifiable?
 In Machado v Fontes, the plaintiff sued the plaintiff in England for libel that occurred
in Brazil. There was no civil action that can be taken for libel in Brazil, but the accused
1
The first rule in Phillips v Eyre was taken from this case.
 can be criminally prosecuted for libel in Brazil. Since the libel was not actionable in
Brazil, it is not actionable in England as well. The court of appeal held that the plea
was bad and it must be struck out. So the judge upon reasoning contend that if an act
was criminal, and he was innocent and therefore, not justifiable in the country where it
was done. Even though the defendant’s conduct was not actionable by Brazilian law,
nevertheless it was not justifiable by the law if it was a criminal offence. Since it is a
crime there, hence it is unlawful and thus unjustifiable. However, the interpretation
was widely criticized as a crime is an action by the state. The conduct has to be civilly
actionable. This case was overruled by Chaplin v Boys.
 Double Actionability in Scotland.
 In Scotland, the Scottish courts adopted the rule in Phillips v Eyre and they rejected
the interpretation in Machado. They applied a rule of double actionability where the
defendant must be civilly liable and liable in respect of the particular loss in both lex
fori (law of the forum) and the lex loci delicti (law of the alleged tort was committed).
 This can be seen in MacKinnon v Iberia Shipping
The Scottish plaintiff was employed as an engineer on a ship owned by a Scottish firm.
While the ship was in water territorial in Dominica, the plaintiff was injured as a result
of negligence by fellow employee. He sued his employers in Scottish court claiming
for damages for pain and suffering. Under Scottish law (lex fori), such damage was
recoverable. However, under the law of Dominica (lex loci delicti), even though the
defendants were liable in tort, compensation was recoverable only for actual pecuniary
loss but not for pain and suffering. So the claim failed because the particular loss was
not recoverable under the law of lex loci delicti.
 Hence, under this rule, the claim for damages must be available in both countries in
order for it to be recoverable.
 Similarly in M’Elroy v M’Allister where the plaintiff’s husband was killed in an
accident which he was the passenger due to the negligence of the defendant. All the
parties were Scottish but the accident occurred in England. The plaintiff sued the
defendant for damages in Scottish Court. Under the Scottish law, the plaintiff had a
claim for bereavement but by English law, no such claim existed. Accordingly, this
claim failed under the second branch of Phillips v Eyre. Under both laws, the plaintiff
claimed for loss of support but for the fact that under the English Fatal Accident Act,
 the action was time barred. So the effect of double actionable rule was that the plaintiff
who had substantial claim under each law separately, so because of that she could
recover only small amount of funeral expenses for which defendant admitted liability
and she had a good claims under both laws.
 So the claim for damages which is available in both countries is the only thing that can
be claimed.
 Chaplin v Boys incorporated this rule as well as they took out the rule of Phillips v
Eyre.

c. Chaplin v Boys (Current applicable rule)

 The plaintiff and defendants were both Britishmen were members of British Armed
Force which both of them stationed in Malta. The plaintiff was injured in a road
accident as a result of defendant negligence. The action was brought in an English
Court. Under both laws, defendant were liable for negligence. Hence, the first rule of
Phillips v Eyre was fulfilled. However, under Maltese Law, the plaintiff was entitled
only for pecuniary loss. Whereas under English Law, he was entitled also for damages
for non-pecuniary loss in the form of pain, suffering and loss of amenities. However,
there was an issue under actionability rule where the plaintiff can claim 2250 pounds
by English Law but by Maltese law, he can only claim 53 pound. Based on the double
actionability rule, the losses must be recoverable in both countries. In the House of
Lords, majority agreed that normal choice of law rule for tort is the rule in Phillips v
Eyre. However, there were two members held that the rules in Phillips v Eyre are
subject to a proper law type exception. Since he could not claim all the non-pecuniary
loss under English law in Maltese law, these judges wanted to still and try to reward
damages that he entitled under English law even though it was not available under
Maltese Law.

 The general rule in Phillips v Eyre must now be read to provide that one cannot
recover damages in Malaysia for a foreign wrong unless the wrong would have been
actionable if committed in Malaysia and also, at least as a general rule, gave rise to a
 civil liability under the law of the state where it was done. It is no longer
unjustifiable but now it has to be civilly liable.
 The Scottish double actionability rule was also incorporated. Each kind of loss claimed
must be recoverable by both the lex loci delicti and the lex fori.
 The defendant can rely on any defence available to him (such as contributory
negligence) under the lex fori or the lex loci delicti.
 There can be any kind of civil liability under the lex loci delicti, it does not have to be
tortious liability.

The reasoning that is followed in subsequent cases from the case of Chaplin v Boys is
the ratio by Lord Wilberforce.
- Lord Wilberforce and Lord Hodson held that the claim for non-pecuniary
loss would failed because it was not recoverable under Maltese Law but
then they subject this Phillips v Eyre rule to an exception in order to avoid
unjust decision. This is because it would be unjust to the plaintiff to not get
the claim for non-pecuniary loss. Hence, an exception is established.
- The exception is that the policy or the purpose behind the law in the foreign
country will be analysed to inquire in what situations, with what contexts it
was intended to apply; whether or not to apply it in the circumstances of the
instant case, would serve any interest which the rule was devised to meet.
- The way the exception works in Chaplin is that if the court ignores this
foreign law, will it affect the purpose and objective of this law? That is
what we need to see. Maltese law award very little damages, if the courts
ignore this law, will it affect the objective and purpose of that law? The
reason they were limiting the economic loss in Malta was because they
wanted to keep the insurance premium in Malta low. So, two Englishmen
involved in an accident which it did not involve any Maltese people, if that
law is ignored, will it affect the Maltese insurance industry? The link
between the country and the parties was so small. If the law was ignored, it
would not have any effect on Malta’s insurance system. Hence, they could
 ignore this maltese law and they finally awarded the plaintiff with the
damages that he was entitled under English Law.
- However, it is flawed to just ignore other decision and only take the
reasoning made by Lord Wilberforce.
- According to Lord Wilberforce, this exception only applies when it comes
to damages. This exception is only applicable when the damages is not the
same in both countries and inquire in both countries what is the reason the
damages not being the same.
- It can also be expanded in scope as well to include substantive law as well.
- The exception of Chaplin v Boys is illustrated in the case of Corcoran v
Corcoran where a wife was injured by her husband’s negligence driving.
They were domiciled in Victoria but the accident occurred in New South
Wales. Under the New South Wales, they had the common law rule of
inter-spousal immunity but under the Victoria law where the action was
brought, one spouse was entitled to sue his or her spouse in tort. So they
both came from Victoria which they brought an action.
The court held that the effect of the case was that the normal rule was
double actionability but this was subject to qualification that in a particular
case where there is a special circumstances warranting it in the interest of
justice, the rule should be modified or departed from. Both parties in this
case were from Victoria, hence the interest of that state is clearly more
involved compared to New South Wales. The interest of New South Wales
in maintaining the law of interspousal immunity primarily concerned with
spouses who are connected with New South Wales. Hence, the Victoria law
alone applied and the action succeeded. (In this case, the law of New South
Wales belongs to the people of NSW and the parties in this case belong to
Victoria thus they need to follow the law of Victoria.)
The judges looked into the purpose of law of interspousal immunity in New
South Wales which the purpose was to protect the husband and wife who
are connected to New South Wales. So the purpose of the law would not be
affected if it was ignored.
 This approach in Chaplin v Boys is similar to the proper law of the tort approach in United
States which is also similar to contract. If the country’s law has an interest to be applied, then
the general rule should be departed from.

2. State of the Law in Malaysia.

 In Chan Kwon Fong v Chan Wah, the court approved the double actionability rule in
Chaplin v Boys. The plaintiff in this case, a Malaysian citizen was employed by the
defendants as a lorry driver and worked in their logging operation in Kalimantan. There was
an accident occurred which injured the plaintiff and incapacitating him from work for about
15 months. He brought an action against his employers for negligence alleging the failure to
provide a safe system of work. The plaintiff was awarded by the Trial judge for 19000$
general damages and 8000$ special damages. The defendants then appealed to the Court of
Appeal. They followed the Phillips v Eyre rules but he could not prove that the second limb is
actionable in Indonesia. Hence, the plaintiff lost the case on appeal. The court also held that it
is for the plaintiff to prove actionability by both the lex fori and the lex loci delicti. This is
said to be a highly flawed view as the accepted proposition is that it is for the defendant to
plead that the act was not actionable by the lex loci delicti, not the plaintiff.
 In AG of Hong Kong v Zauyah Wan Chik followed the case of Chan Kwon Fong v Chan
Wah which it was held that the first branch of the branch of the test where the claim must be
actionable in the lex fori was not fulfilled. (they took out the same test in Phillips v Eyre and it
does not fulfil).

3. Place of Tort
 The place of tort is determined by looking at where in substance the cause of action arose.
 In Metall & Rohstoff A.G. v Donaldson Lufkin & Jenrette Inc, the general rule is
that it has to look back at the whole sequence of events and consider, where in
substance the cause of action arose which where the real key issue occurred. The
court held that the tort of inducing a breach of contract took place in England,
where the damage was suffered and not in New York where the acts of inducement
occurred.
  In Distillers Co (Biochemicals) Ltd v Thompson, the plaintiff was born with
defects caused by thalidomide tablets bought and used by his mother in NSW. The
defendant manufactured and packaged the tablets in the UK. The packaging
information did not warn that the tablets caused birth defects if taken by pregnant
women in the first trimester.
 The court applied the same principle as the Metall’s case in determining the place
of tort, the court has to look at where the real key issue occurred which means that
the act on the part of the defendant that gives the plaintiff which has given the
Plaintiff a cause of complaint in law. The negligent act was a failure to warn which
it occurred in New South Wales.
 In Bata v Bata, the court held that Tort of libel is committed where the defamatory
statements are published and not where they are written since publication is the
material element that completes the tort of libel.
 Similarly in Jenner v Sun Oil Co where the defamatory remarks broadcast in a US
radio station which was heard in Ontario, it was held that the tort occurred in
Ontario.
 Hence, for defamation, the tort occurred is where it is published.
 Diamond v Bank of London & Montreal, the court held that the fraudulent
misrepresentation by telex or telephone is committed where the message is
received and acted on and not in the country from which it is sent.
 Armagas Ltd v Mundogas SA, the court held that the tort of fraudulent
misrepresentation was committed in Denmark where the misrepresentation was
orally communicated and acted upon.
 It is not the source of tort that matters, it is where it acted upon or heard.
 The place of tort is important to determine because of the double actionability rule.

4. Tort with a contractual element.

 Questions of tort and contract may interact in the same case. The defendant to a tort claim
may set up as a defence, a clause in a contract which exempts him/her from the liability in
question.
 The leading case is Sayers v International Drilling Co NV where the action was brought
in tort for negligence in the course of employment. The employment contract contained an
 exemption clause exempting the defendants from liability for any injury which the
plaintiff might suffer in the course of employment. The majority approach was simply to
identify the proper law of the contract as being Dutch law, hence the exemption clause
being valid and the employers were not liable. No reference was made to the choice of law
rule for tort even though the action was brought in tort.
 Whether defence of contractual clause is a good defence in both laws.
 Also consider Brodin v A/R Seljan where the statutory prohibition against exemption
clauses was applied and the defence based on such an exemption clause was not available
to the defendant; and Canadian Pacific Railway Co v Parent where the exemption clause
was held to be valid and exempted the employer from a claim in tort.
 It has not been satisfactory solved and it has been contentious area in tort.
 CHAPTER 6: REJA

A foreign judgment can be enforced either by statute that is through Reciprocal Enforcement of
Judgements Act 1958 or by way of enforcement at common law.

In Malaysia, foreign judgments may be enforced without the need to commence a fresh
action. Reciprocal Enforcement of Judgements Act 1958 (“REJA”) is reciprocal and applies to
countries that agree to enforce Malaysian judgements as well as and can be extended to others by
orders of the YDPA. Furthermore, it applies only for High Court, Court of Appeal and Federal Court.
The reciprocating countries stated under Schedule 1 are United Kingdom, Hong Kong, Sri Lanka,
Australia, Singapore, New Zealand, India and Brunei. It is also provided that before the foreign
judgement may be registered, the Malaysian court must first recognise it. The court that delivered
the judgement must have jurisdiction to hear the case which the requirements of jurisdiction are
stipulated under Section 5(2) of REJA. Firstly, if the judgment debtor, being a defendant in the
original court had already submitted to the jurisdiction of that court by voluntarily appearing in the
proceedings. Secondly, if the judgement debtor was plaintiff in the proceedings of the original court.
Thirdly, if there was a choice of forum clause in the contract to submit to the jurisdiction of that
court or of the courts of the country of that court. Next, the defendant is a resident of the country of
the court or being a body corporate had its principal place of business in, the country of that court.
Lastly, jurisdiction of the original court is recognized by the Malaysian court.

Furthermore, the defendant must be notified that the decision is being registered so that he
can defend himself. Section 5(1) of REJA provides for defences which are, firstly, the said
registration is in contravention of REJA itself. Secondly, the foreign court has no jurisdiction to
decide the matter. Thirdly, the judgment debtor, being the defendant in the proceedings in the
original court, did not receive notice of the said proceedings within appropriate time to enable him
to defend himself. Next, the judgement was obtained by fraud. Furthermore, the enforcement of
the said judgement would contravene public policy as decided in the Ritz Hotel Casino v Datuk Seri
Osu Haji Sukam. Other than that, the judgment was not registered by the claimant in the original
judgment. Lastly, the judgement was not final and conclusive.
 Enforcement by common law can be seen where the courts enforce the foreign judgment
and request for a summary judgment. The first requirement is the foreign court must have
jurisdiction to hear the case in the first place. Hence, the defendant must either be a resident or has
a place of business in the country where the case was heard as decided Emanuel v Symon, Vogel v
RA Kohnstamm Ltd. Next, debtor has submitted himself or herself to the jurisdiction of the foreign
court which the issue is contractual and there is a choice of forum clause where the parties had
chosen the foreign court. Furthermore, the debtor appears before the foreign court to defend
substantively. Lastly, he or she appears before the foreign court to claim that the court has no
jurisdiction to hear the case as decided in Harris v taylor or the case was subsequently remitted to
the case of arbitration as decided in Henry v Geoprasoco. Exceptions to this general rule is that
firstly, if foreign judgment was obtained by fraud as decided in Syal v Heyward. Next, foreign
judgement appears before the foreign court during duress as decided in Israel Discount Bank v
Hadjipateras. The second requirement is that judgement must be final and conclusive. However, if
the same court can reopen the case, then the said judgement is not conclusive. Even if there is an
appeal, the judgement can still be final and conclusive. Even if an appeal is underway, Malaysian
courts can still hear the case but the summary decision will not be granted until the appeal is
resolved. The last requirement is that the judgement must be for a fixed sum of money, not for fine,
tax, injunction or specific performance.