Nov / Dec 2006 KDN PP 13829/7/2005 The articles in this newsletter are also available on our website: legalTAPS www.taypartners.com.my Contents 1 Is Self-Help Any Is Self-Help Any Help At All? Help At All? A Landlord & Tenant A Landlord & Tenant Situation Situation 2 Intellectual Self-help is a form of redressing or preventing is permissive and discretionary and it is not wrongs by one’s own action without recourse to obligatory on the part of a person entitled to the Property Assets as legal proceedings. Many a time, landlords resort possession of land to restore exclusively or solely Wealth-Creation to self-help eviction which can take many forms to a Court of law. In other words, sec. 7 of the Tools and Spinner including changing the locks to the apartments, Act does not exclude the common law remedy of the Economy removing a tenant’s belongings or shutting off the of self-help. This is a remedy which is always 5 utilities to the apartment without regarding if they available unless expressly excluded. are in violation of the law. Obedience to However, the remedy of self-help was alluded Orders from The beauty of self-help is that self-help will enable in Er Eng Hong & Anor v New Kim Eng Dan Superiors - Is landlords to enforce their contractual rights quickly Tiap-Tiap Pemegang Yang Menduduki Atas there a Limit? - An and efficiently without resorting to judicial process. Sebahagian Tanah Yang Dikenali Sebagai Update on the Law However, self-help measures are controversial HS (M) 2162 PTD 4403 Mukim Benut, Daerah because they amount to taking the law into one’s Pontian [2001] 1 CLJ 289. In this case, the 6 own hands. learned Abdul Malik Ishak J stated that the amended sec. 7(2) of the Act which came into Admissibility Landlords who engage in self-help evictions often force on 31 January 1992 by Act A 811 would of Evidence: argue that the tenant was in violation of the tenancy relegate the remedy of self-help into oblivion Information / lease in some manner in the first place and thus, as the owner of the property can only seek to obtained from the the landlord is entitled to possession. enforce his right to recover his property from the Internet occupier by way of a court action. Section 7(2) In the Supreme Court case of Trustees of Leong of the Act is as follows: 8 San Tong Khoo Kongsi (Penang) Registered “When a specific immovable property has Section 42 of the & Ors v Poh Swee Siang [1987] 2 CLJ 302, the been let under a tenancy, and that tenancy Copyright Act 1987 learned Hashim Yeop Sani SCJ said that sec. 7 of is determined or has come to an end, but the as a Useful Tool the Specific Relief Act 1950 (“the Act”) provides occupier continues to remain in occupation of the - How and When? that a person entitled to the possession of land property or part thereof, the person entitled to the may recover it in the manner prescribed by the possession of the property shall not enforce his 11 law relating to civil procedure. In the context of right to recover it against the occupier otherwise the provision of sec. 7 of the Act, the word “may” Restraint of Trade than by proceedings in court.” 12 Following the case of Dr. Harjit Singh v Suhaimi bin Samat & Anor [1995] 2 AMR 1988, Justice Material Adverse Haidar bin Mohd Noor (as he then was) opined Change Clause that sec. 7(2) of the Act clearly showed the 14 intention of the Parliament that possession of premises may not be obtained except by Developments in proceedings in the court. Similarly, in Nur-Islam Dispute Resolution Wordwide Industries Sdn Bhd v Yee Kok Sum in the Construction [2001] 7 CLJ 494, it was held that as a result of Industry legalTAPS the amendment to sec. 7(2) in 1992, the self-help remedy can no longer be used. Intellectual Property Assets as Wealth-Creation Tools and Spinner of the Economy In the recent case of SME Aerospace Sdn Bhd v Steyr It is an opportune time for this topic to be touched upon given Mannlicher (M) Sdn Bhd [2006] 5 CLJ 121, the learned the desire of our government to spur economic growth in the country using a tool which was hitherto not been widely regarded Rosnaini Saub JC held that the use of the word ‘shall’ in sec. on our shores as being a driver of the economy at large. That 7(2) of the Act imposed a precondition of obtaining a court order this desire is of importance was reflected in the theme chosen before attempting to recover possession of a property. Thus, for this year’s National Intellectual Property Day, “Intellectual the requirement to first and foremost obtain a court order was Property - Current Economic Spinner” which was held in April. a mandatory one. Further, the law does not allow any person to The theme was derived from the government’s recognition that take the law into his own hands and forcibly evict another person intellectual property (“IP”) already is a generator of wealth in from the property. the economy from its utilisation in the well-established forms of registration, assignment, licensing, franchising and sale The learned judge went on further to agree that sec. 8(1) of the and purchase as an intangible asset but has further potential Act reinforced the right of a person who has been wrongfully to contribute to the wealth-generation process of the nation in dispossessed of an immovable property ‘otherwise than in due newer forms and on a higher level. course of the law’. Section 8(1) of the Act provides: IP has spurred the growth of related areas of industries like IP consultancies and branding and IP-centric advertising “If any person is dispossessed without his consent of immovable and marketing agencies with consultants and branding and property otherwise than in due course of law, he or any person marketing gurus reciting the mantra for companies to position claiming through him may, by suit, recover possession thereof, IP at the heart of its management portfolio in order to improve notwithstanding any other title that may be set up in the suit.” its standing amongst its peers. Companies have embraced this principle realising the wisdom of branding as well as capitalising on other people’s brands to gain commercial edge, a prime Therefore, a tenant who holds over after the expiry of the period example being Air Asia. of tenancy, is entitled to sue his landlord for possession under sec. 8 of the Act, if forcibly dispossessed by him. Air Asia’s brand and slogan have gained a place not only in the hearts and minds of the public in its homeland but worldwide with its tour packages being promoted to routes and destinations which it covers. Air Asia cleverly struck a deal with the popular cartoonist, Datuk Mohd Nor Khalid or more popularly known as “Lat”, to use Lat’s livery on By Ashley Chew ([email protected]) its airplanes. Along with the use of brands on the local & Ong Li San ([email protected]) front, comes the realisation that products based on IP can spearhead development of international trade and be a component in the economic development of a country. As the country propels itself forward to achieve developed nation status, striving to meet the stated objectives of Vision 2020, the need for the economy to mature to match those in the developed nations looms nearer. The tools to achieve greater economic heights too will inevitably have to gain more sophistication and these tools have to be in place and operational in good time to meet the demands of a community of developed nations, which Ashley and Li San are Associates in the Litigation and Dispute Resolution Practice Group. Their area of work Malaysia aspires to become part of by year 2020, in order to is mainly in banking litigation with primary focus on debt coexist, communicate and conduct transactions in a common recovery and execution proceedings. economic lingo with each other. In order to harness IP and to commercialise it to drive For further information on this article, you can contact: the economy and generate wealth, we must first have an Leonard Yeoh ([email protected]) understanding of the fundamentals of IP and how IP assets are Asmet Nasruddin ([email protected]) created, valued and managed. It is the aim of the first of a two-part article to discuss the 2 3 legalTAPS following topics:- have to be viewed as being not merely legal instruments which • Management of IP assets; and protect against infringement by unauthorised third parties but income-generating assets which should be commercialised. • Valuation of IP assets; The second part of this article will touch upon:- In other words, IP rights should not merely be left in the form of static paper protection of the creativity, knowledge and research • Methods of commercialisation of IP assets currently practised and development invested by a corporation. IP assets should be amongst corporations and individuals in Malaysia; and made part of a business’ strategic thinking and planning portfolio. • What is to come in the area of exploiting and commercialising As such, IP assets have to be properly and effectively managed in IP assets in the future. order to maximise their commercial potential and value. This article is divided into two sections:- Basically, IP management has four stages - acquisition, legal 1.