The relevance of Quistclose trust in corporate insolvency for the benefit of a non-lending third party

Although the incidence of Quistclose trusts in case law is not a common occurrence, the interest it has spawned among judges and commentators in common law jurisdictions is legion and has been claimed ‘to represent the single most single most important application of equitable principles in commercial life.’79 The nature of the Quistclose trust raises a number of legal challenges: whether it is an express or a resulting trust, whether there is a combination of a primary and a secondary trust, does it comply with the beneficiary principle as an express trust and whether a third party designated by the payer-beneficiary can take advantage of the trust. Recently the Malaysian courts at all levels in PECD Sdn Bhd v Amtrustees Bhd80 had the opportunity to consider the position of a designated third party and they have positively endorsed the view that he can benefit under the primary trust. The objective of this paper is to assess the legal principles in the application of Quistclose trusts, critically analyse the judgment of the Federal Court in PECD Sdn Bhd and offer alternative solutions to the issue raised by the case. The paper adopts a comparative study and doctrinal analysis of relevant decisions clarifying important issues in relation to the use of the Quistclose trust in commercial transactions. It clarifies the appropriateness of applying a Quistclose trust to the commercial arrangements inherent in PECD Sdn Bhd and suggests the availability of alternative remedies

Fiscal advantage of waqf and the rule of tax exemption for charitable purposes under the Income Tax act 1967

This study explores the principle of waqf in the context of current tax policies governing waqf properties. In Islamic law, waqf is defined as charity where by the donor endows the property in the name of Allah SWT for the benefit of the public at large. However, for tax exemption purposes, there is no specific provision in the Income Tax Act 1967 (ITA). Waqf is under the State List in the Federal Constitution and it comes under the jurisdiction of state governments. Currently, there is a misunderstanding about tax deduction in Section 44(6) and Section 44(11C)of ITA that includes waqf as a gift and gets the same tax treatment. Nevertheless, there are strong justifications which state that waqf does not fall within the scope of Section 44(6). The study will analyse the status of waqf institutions which are eligible for tax deduction and the reason why waqf does not fall within the scope of donation under section 44(6) of the ITA. The methodology used in this study is doctrinal legal research whereby the analysis focuses on the legal principle of waqf in Islamic law and the rule of tax exemption under the ITA. As a result, the study found that there is inconsistency in implementing waqf for tax rebate purposes. The recommendation of this study is that a comprehensive waqf guideline should be introduced to ensure consistent development of waqf to enhance the public interest

Amending section 84 patents act 983 to encompass the health flexibilities leverage accorded by article 31 bis trips agreement

The significance of this study lies in its proposal to insert an appropriate provision into the Patents Act 1983 to embody the provisions of Article 31 bis TRIPS Agreement. The methodology adopted in this study is library-based, and relies extensively on primary sources such as the Paris Convention, the TRIPS Agreement and the Patents Act 1983. This is further supported through secondary sources such as articles, books, websites and newspaper reports. The research question posed in this study aims to identify the most appropriate provision that should be incorporated into the Patents Act 1983 in addressing the public health flexibilities provided under Article 31 bis. The purpose of this study is to demonstrate that Article 31 bis is best incorporated into the Patents Act 1983, under the right of the government mechanism rather than through the compulsory license mechanism. Furthermore, the scope of this study is limited to issues that address the abuse of monopoly, granted by the patent system, with respect to the dire needs of public health. Hence, this paper discusses the mechanisms that address the abuse of the patent system under Article 5(A) Paris Convention, Articles 31 and 31 bis TRIPS Agreement, the relevant corresponding provisions under the Patents Act 1983, and subsequently formulates new proposed amendments to Section 84 of the Patents Act 1983 to buttress the public health flexibilities provided under Article 31 bis. The outcome of this study proposes that the provisions of Article 31 bis should be incorporated into the Patents Act 1983 under the right of the government mechanism, by replacing the current Section 84 of the Patents Act 1983 with a newly proposed Section 84. 9-

Complaint management and redress mechanism: the effect of fragmented institutional approach in regulating consumer credit in Malaysia

Complaint management and redress mechanism constitute cardinal elements of financial consumer protection which should be provided by the financial consumer protection regulator. This study explores the role of the Central Bank of Malaysia, the Ministry of Domestic Trade and Consumer Affairs as well as the Ministry of Housing and Local Government to ensure proper complaint management and redress mechanism in favour of financial consumers of different segments of consumer credit. Applying doctrinal, qualitative and comparative law research methodology, the study finds that as a result of fragmented approach in regulating consumer credit in Malaysia, these aspects are pursued with different priorities and enthusiasm by respective regulators. Thus, the benefit of protection varies from one class of financial consumers to another. To ensure consistency and efficient protection, the study proposes for the establishment of a single regulator, the approach adopted by Australia, a jurisdiction renowned with an established track record in financial consumer protection regime. It is viewed that by establishing a single regulator, a uniform platform for complaint and redress will be provided thereby ensuring equal protection to wide array of financial consumers

Tackling responsible lending obligation in Malaysia: a diverse approach

This paper examines responsible lending obligation among various credit providers under the present legal and institutional framework in Malaysia. The scope of consumer credit industry includes banking, hire-purchase, money lending and pawnbroking. The study finds an inconsistent approach in dealing with responsible lending whereby only banking institutions regulated by the Central Bank of Malaysia are subject to this obligation while non-bank institutions are not. Several recommendations for future improvements are proposed by referring to the practice of several other jurisdictions. The suggestions will help the policymakers to seriously consider imposing this obligation on all credit providers. Eventually, the protection against the irresponsible lending practice is accorded to a wide range of financial consumers in consumer credit industry in Malaysia