In cases involving foreign companies, Malaysian courts must apply the agreed foreign law governing contracts, despite having jurisdiction over the dispute.

JUDGMENT

Tee Geok Hock JC:

Introduction

[1] Conflict of laws, or private international law, is a field of law which is fraught with complexities and uncertainties and which is seldom well-understood by the practitioners of law.

[2] This case is an example where the subordinate court as well as the solicitors for both parties overlooked the impact of the conflict of laws in the context of a foreign company suing in the Malaysian court a person resident in Malaysia under a contract which has an express term that the foreign law of contract shall apply to the contractual relationship between the parties. The oversight has led both parties' solicitors to make submissions based on the Malaysian law of contract which culminated in a decision of the subordinate court granting a summary judgment based on the Malaysian law of contract.

[3] On a fundamental point of law as to the applicable substantive contract law in a court suit involving a foreigner company and a local resident, the court is not bound by the parties' error of law as to the applicability of the substantive law of contract.

Background Facts

[4] The foreign Plaintiff, Singapore Airlines Ltd, entered into a contract with the Defendant, its ex-employee. The contract is described as Deed for a Course of Training dated 21 February 2000 ("the Deed of Training").

[5] Although there is an express clause of the Contract which stipulated that the dispute between the parties shall be submitted to the non-exclusive jurisdiction of the Singapore courts and the termination of the Defendant-employee's employment occurred in Singapore, the defendant herein did not raise jurisdictional objection and by virtue of O 12 r 10(6) of the Rules of 2012 (" ROC 2012") the Malaysian courts is deemed to have jurisdiction over the dispute in the present suit.

[6] In cl 13 of the Deed of Training dated 21 February 2000, the parties agreed that the Deed shall be governed by the laws of Singapore.

The Suit In The court Below

[7] In the Sessions court below, the Plaintiff sued the Defendants for the sum of S$78,094.83 s the balance amount outstanding.

[8] The said sum of S$78,094.83 is computed as follows:

[9] In the Statement of Defence, the Defendants pleaded inter alia that:

(1) The 1st Defendant was wrongfully terminated by the Plaintiff: paragraph 2;

(2) The Defendants deny owing any amount to the Plaintiff: paragraphs 3 and 4;

(3) The Defendants deny the amounts claimed by the Plaintiff: paragraphs 3, 4 and 5:

(4) The 2nd and 3rd Defendants deny there was any contract between them and the Plaintiff: paragraph 6;

(5) The Defendants avers that the Plaintiff's claims are barred by Limitation Act 1950 and/or by laches: paragraphs 7 and 8.

[10] In the Sessions court the Plaintiff applied for summary judgment under O 14 of ROC 2012, and the Sessions court granted summary judgment in favour of the Plaintiff in the amount of S$78,894.93.

[11] In the Sessions court proceeding, the Plaintiff's counsel and the Sessions court relied on s 75 of the Malaysian Contracts Act 1950 and Malaysian decided cases of Cubic Electronic Sdn Bhd (In Liquidation) v. Mars Telecommunications Sdn Bhd, [2019] 6 MLJ 15; Selva Kumar Murugiah V. Thiagarajah Retnasamy, 1995 MarsdenLR 736 and similar Malaysian decided cases in considering and/or deciding whether or not summary judgment can be granted in the present case.

[12] The Defendants appealed against the summary judgment granted by the Sessions court.

[13] On 8 November 2021, this court held that there are defences and/or triable issues which ought to go for full trial and therefore this court allowed the appeal and set aside the summary judgment.

[14] Dissatisfied with the said decision on appeal, the Plaintiff has applied to the court of Appeal for leave to appeal to the court of Appeal.

[15] Pursuant to para 3(a) of the Circular No 1 of 2021 of the Chief Judge of Malaya, the court of Appeal has required this court to write the Grounds of Judgment before the court of Appeal hears the leave ap