Event

Event

 

Liquidated Damages, Penalties and Deposits

31 Mar 2020 - Tue / 1 day / 2:00pm - 5:00pm / Seminar Room, Mezzanine Floor, 163 Wisma MCA, Jalan Ampang, Kuala Lumpur

In Robophone Facilities Ltd v Blank [1966] 3 All ER 128, Diplock LJ said of liquidated damages clauses: “I see no reason in public policy why the parties should not enter into so sensible an arrangement under which each knew where they stand in the event of a breach by the defendant and can avoid the heavy costs of proving the actual damage if litigation ensues.”However, the Malaysian courts chose to travel a different path — one trodden by the Indian courts — by not recognising such clauses and equating them with penalties under which damages have to be proved in the usual way except that the stipulated sum operates as a ceiling on recoverable damages.

Highlight: Please note that this training session has been postponed until further notice.
Organisers: Bar Council

CPD: Legal Learning Lab
CPD Points: 2
Circular No: 031/2020
Event Code:
T3/31032020/BC/BC194887/2

Description

In Robophone Facilities Ltd v Blank [1966] 3 All ER 128, Diplock LJ said of liquidated damages clauses: “I see no reason in public policy why the parties should not enter into so sensible an arrangement under which each knew where they stand in the event of a breach by the defendant and can avoid the heavy costs of proving the actual damage if litigation ensues.        ”However, the Malaysian courts chose to travel a different path — one trodden by the Indian courts — by not recognising such clauses and equating them with penalties under which damages have to be proved in the usual way except that the stipulated sum operates as a ceiling on recoverable damages.

Then recently, along came the case of Cubic Electronics Sdn Bhd (in Liquidation) v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 which sought a formula applicable to both liquidated damages and deposits that reconciles with the latest English position. That formula is perceived to be more precise, easier to apply, makes better commercial sense, of more universal application, and cuts down on the uncertainties of the exercise of the court’s discretion. Has the Federal Court succeeded in achieving the desired objectives? At the heart of this matter is the construction of section 75 of the Contracts Act 1950 which
has perplexed many a judicial mind. Does this section also prevail over the liquidated damages clauses for late delivery of vacant possession by the developer and late payment interest imposed on the purchaser in the statutory sale and purchase agreements under the housing legislation?

These issues will be discussed in this seminar.

Learning outcomes

  • Understand the nature of liquidated damages, penalties and deposits
  • Aware of the evolution of the law on these issues in Malaysia as well as in the relevant
    jurisdictions of England and India to gain a better perspective
  • Know the current law on these issues in Malaysia
  • Comprehend these issues as pertain to contracts
    under the housing legislation
  • Know the uncertainties and controversies that
    still prevail
  • Able to identify the best course to adopt when
    faced with these issues

Speaker

Dr Teng Kam Wah holds a PhD in construction law from the University of Malaya. He obtained both his LLB Hons and LLM degrees from the University of London. He first graduated with a science degree from the University of Malaya, where he was awarded the University of Malaya Book Prize. He is a Fellow of the Chartered Institute of Arbitrators.
He was, for a brief period, the Group Legal Manager of one of the largest construction, infrastructure and property
development companies in Malaysia where he gained industry experience. He was the 1st prize winner of the
Vincent Powell-Smith Competition in construction law. He has more than twenty law articles published in journals. He
has taught law part-time at the University of Malaya. He is the author of the book Construction Defect Claims in Malaysia
(Sweet & Maxwell, 2019). He practises in construction dispute resolution under his own law firm as counsel, adjudicator, and arbitrator.

Terms and Conditions

Places are limited and registration is on a first-come, first-served basis.

For events with registration fees, all payments must be made in advance, including bank charges. Registration will be confirmed once proof of payment is provided by email or fax, and full payment is received.

For events that are not organised by Bar Council, please note that you are subject to the relevant terms and conditions specified by the external providers.

Cancellation 

Cancellations must be made in writing at least 48 hours prior to the event.

If you have failed to inform the organiser on your cancellation for three consecutive times, you may be blacklisted for future events.

Refunds 

Refunds will be processed after the event is completed. This may take up to 30 business days. The conditions for refunds are as follows:

  • Full refunds will be issued if the cancellation is notified to the organiser three business days before the event.
  • No refunds will be issued if the cancellation is notified to the organiser less than three business days from the event.

The organiser reserves the right to modify, cancel or postpone the event, should circumstances arise that make such action necessary, whereupon all registration fees paid will be refunded.

Transferral

You are allowed to transfer your place to another participant, but you must notify the organiser with the necessary details.

Attendance 

CPD points will not be awarded to lawyers and pupils in chambers from Peninsular Malaysia who arrive more than 15 minutes late, are not present throughout the event, or leave before its scheduled end.

Privacy 

The personal information that you provide to the Bar Council, whether now or in the future, may be used, recorded, stored, disclosed or otherwise processed by or on behalf of the Bar Council for the purposes of facilitation and organisation of this event, research and audit, maintenance of a participant database for the promotion of this event, and such ancillary services as may be relevant.

Disclaimer

  • Materials will be emailed only. No printed notes will be provided.
  • No recording of the event is permitted via any means at any time.
  • No part of the event content may be used/reproduced in any form without the written and explicit consent of the Bar Council and speaker(s).

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