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CORPORATE AND COMMERCIAL LAW
On 15 June 2017, Bursa Malaysia announced the issuance of new Listing Requirements ("LR") and various amended rules for the Leading Entrepreneur Accelerator Platform ("LEAP") Market. The LEAP Market aims to provide small and medium-sized enterprises ("SMEs") with fund raising access and visibility through the capital market. The newly established market applies to qualified investors, mainly those who fall within Part I of Schedule 6 or 7 of the Capital Markets and Services Act 2007 ("Sophisticated Investors"), allowing them to broaden their investment options in SMEs in a transparent and regulated environment.
The listing framework governing the LEAP Market as set out under the LEAP LR includes:
- facilitating ease and timely secondary fund raisings by allowing a higher general mandate for directors to issue new shares or convertible securities and by allowing both renounceable and non-renounceable rights issue; and
- promoting a transparent and proportionate disclosure regime by requiring immediate announcements of material information/transactions, semi-annual financial statements and annual audited financial statements.
Bursa Malaysia also made amendments to the following rules which govern the trading, clearing and depository framework for the LEAP Market:
- the Rules of Bursa Malaysia Securities Berhad;
- the Rules of Bursa Malaysia Securities Clearing Sendirian Berhad; and
- the Rules of Bursa Malaysia Depository Sendirian Berhad.
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DISPUTE RESOLUTION
Letchumanan Chettiar Alagappan (as executor to SL Alameloo Achi (Deceased)) & Anor v Secure Plantation Sdn Bhd [2017] 5 CLJ 418
The question before the Federal Court in this case was whether the standard of proof for forgery in a civil proceeding is on a balance of probabilities or whether forgery must be proved beyond reasonable doubt.
The Federal Court re-affirmed that the standard of proof for forgery in a civil proceeding has always been on a balance of probabilities, even before the landmark decision of Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584 where the Federal Court held that the standard of proof for fraud in a civil proceeding is on a balance of probabilities. The Federal Court also held that a complaint of forgery is a complaint of fraud and hence it is sufficient for the appellants to allege forgery in their statement of defence, notwithstanding that the word "fraud" was not pleaded.
Deepak Jaikishan v A Santamil Selvi Alau Malay & Ors [2017] 5 CLJ 641
In this case, the plaintiffs filed a single notice of appeal against nine defendants in respect of a decision made by the learned High Court Judge on eight separate and distinct interlocutory applications. Save for the eighth defendant, all of the defendants filed separate notices of motion wherein they applied for the notice of appeal to be struck off on the ground that the notice of appeal was bad in law and a separate notice of appeal ought to be filed against the decision of the High Court.
The Court of Appeal allowed the defendants’ applications and struck out the plaintiffs’ notice of appeal. However, the Court of Appeal held that the plaintiffs’ notice of appeal against the eighth defendant was still valid on the basis that the eighth defendant had not filed a notice of motion to apply for striking out the plaintiffs’ notice of appeal.
The Court of Appeal dismissed the preliminary objection of the eighth defendant on the ground that the eighth defendant should have filed a proper application by way of notice of motion to strike out the plaintiffs’ appeal against him, hence this appeal by the eighth defendant to the Federal Court.
The eighth defendant’s appeal was allowed. The Federal Court held that since the notice of appeal filed by the plaintiffs has been deemed to be defective by the Court of Appeal, it will be a substantial miscarriage of justice if the case is to proceed solely against the eighth defendant. The plaintiffs should have filed a separate notice of appeal against all the defendants in respect of the decision made by the High Court Judge on separate and distinct interlocutory applications.
For further information regarding dispute resolution matters, please contact
Datin Jeyanthini Kannaperan
jeyanthini@shearndelamore.com
Robert Lazar
rlazar@shearndelamore.com
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INTELLECTUAL PROPERTY
Bank Negara Malaysia kicks off Fintech Sandbox
Subsequent to the Financial Technology ("Fintech") Regulatory Sandbox Framework ("Regulatory Sandbox Framework") that was issued by Bank Negara Malaysia ("BNM") in October 2016, BNM has recently approved four firms to operate within its "regulatory sandbox", marking a significant milestone in the growth of fintech in Malaysia. The Regulatory Sandbox Framework was enacted to provide a regulatory environment that is conducive for the deployment of fintech. The "regulatory sandbox" allows for innovation of fintech to be deployed and tested in a live environment within specified parameters and time frames.
The four approved participants in the "regulatory sandbox" are GoBear Ltd, GetCover Sdn Bhd, MoneyMatch Sdn Bhd, and WorldRemit Ltd. GoBear Ltd and GetCover Sdn Bhd are described as being both financial advisers and insurance aggregators while WorldRemit Ltd and MoneyMatch Sdn Bhd are allowed to conduct remittance services. MoneyMatch Sdn Bhd is further allowed to provide for money changing services. Interestingly, GoBear Ltd and WorldRemit Ltd are foreign-owned entities while GetCover Sdn Bhd and MoneyMatch Sdn Bhd are Malaysian owned start-up companies.
Further, BNM created a unit called the Financial Technology Enabler Group ("FTEG") in June 2016, which would oversee, formulate and enhance the entry and adoption of technological innovations in the Malaysian financial services industry.
We are pleased to attach herewith the Malaysian chapter in "International Comparative Legal Guide (ICLG) to Fintech 2017" (936kb) written by Shearn Delamore & Co for your reference.
Written by Timothy Siaw (Partner) and Elyse Diong (Associate)
Sources : www.thestar.com.my
www.myfteg.com
For further information regarding intellectual property law matters, please contact
Karen Abraham
karen@shearndelamore.com
Indran Shanmuganathan
indran@shearndelamore.com
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TAX & REVENUE
Tourism Tax Act 2017
The Tourism Tax Act 2017 ("Act") has been gazetted on 21 June 2017 and the provisions of this Act shall come into operation on a date(s) to be appointed by the Minister of Finance by way of notification in the Gazette.
Income tax
The Inland Revenue Board of Malaysia ("IRB") has recently issued two new public rulings on:
- Income Tax Treatment Of Goods And Services Tax Part III – Employee Benefits: GST Borne By An Employer Expenses (Public Ruling No 3/2017) — issued on 17 July 2017; and
- Basis Period For A Business Source For Persons Other Than A Company, Limited Liability Partnership, Trust Body And Co-Operative Society (Public Ruling No 4/2017) — issued on 20 July 2017.
Further to the above, the IRB has also published the following on its website:
- Updates to Chapters II, VIII, X and XI of the Transfer Pricing Guidelines 2012;
- Practice Note No 1/2017 dated 23 June 2017 on the Amendment of Section 15A of the Income Tax Act 1967 — Issues on Effective Date —published on 7 July 2017;
- Practice Note No 2/2017 dated 23 June 2017 on the Amendment of Section 15A of the Income Tax Act 1967 — Issues on Existing Double Taxation Avoidance Agreement ("DTAA") — published on 7 July 2017;
- an amended version of Public Ruling No 2/2017 on Income Tax Treatment Of Goods And Services Tax Part II — Qualifying Expenditure For Purposes Of Claiming Allowances — amended as at 12 July 2017.
Goods and Services Tax ("GST")
The Goods and Services Tax (Provision of Information) Regulations 2017 have been gazetted on 15 June 2017 and have come into operation on 1 July 2017.
The following have been published on the Royal Malaysian Customs Department's GST website:
- Minister’s Relief No 1 of 2017 (effective from 1 July 2017);
- Layanan Cukai Barang dan Perkhidmatan bagi Tuntutan di bawah Suatu Waranti kepada Pengilang Luar Negara (only available in the Malay language — effective from 1 July 2017); and
- General Guide (revised as at 12 July 2017).
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