GASING POTENSI CONSTRUCTION SDN BHD 1. ) ABDUL HAKIM BIN JAAPAR 2. ) NORHIZZAN BINTI MEGAT HARUN 3. ) GCCP GRIDLAND SDN BHD

GASING POTENSI CONSTRUCTION SDN BHD 1. ) ABDUL HAKIM BIN JAAPAR 2. ) NORHIZZAN BINTI MEGAT HARUN 3. ) GCCP GRIDLAND SDN BHD

The Contract of Indemnity was enforceable; it did not nullify the statutory protection under the SOCSO Act because the Civil Law Act excludes SOCSO payments from damage assessment and enforcement of the indemnity does not defeat the SOCSO scheme's purpose; even if illegality were arguable, applying the Patel v Mirza considerations denial of Gridland's indemnity would not enhance SOCSO's purpose and would be a disproportionate intrusion on commercial freedom of contract, therefore Gasing must fully indemnify Gridland (appeal dismissed).

Citation
AA-12B-9-03/2020 (Mahkamah Tinggi)
Parties
Appellant/1st Third Party: Gasing Potensi Construction Sdn Bhd; Respondent/plaintiff: Abdul Hakim bin Jaapar; Respondent/plaintiff: Norhizzan binti Megat Harun; Respondent/defendant: GCCP Gridland Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
10 March 2021
Case Number
AA-12B-9-03/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / High Court Judgment on Consolidated Appeals
Outcome
Gasing's appeal dismissed; Gasing ordered to indemnify Gridland for the judgment as varied; costs awarded against Gasing.
Legal Topics
Indemnity Clause, Illegality of Contract, SOCSO S31 Bar, Double Recovery, Pleading Requirements for Illegality, Public Policy Analysis
Source Language
Malay/English
Tort Contract Law Employment Law Social Security Law Indemnity Clause Illegality of Contract SOCSO S31 Bar Double Recovery +2 more

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Parties

Gasing Potensi Construction Sdn Bhd

Appellant/1st Third Party

Abdul Hakim bin Jaapar

Respondent/plaintiff

Norhizzan binti Megat Harun

Respondent/plaintiff

GCCP Gridland Sdn Bhd

Respondent/defendant

Procedural Posture

Civil Appeal / High Court Judgment on Consolidated Appeals

Legal Issues

  1. 1 Whether an indemnity clause in a commercial contract may be enforced against a contractor who paid SOCSO contributions when section 31 SOCSO Act appears to bar recovery against the employer
  2. 2 Whether enforcement of the Contract of Indemnity would be illegal or contrary to public policy and thus void
  3. 3 Whether SOCSO compensation constitutes double recovery and should be deducted from common law damages

Ratio Decidendi

The Contract of Indemnity was enforceable; it did not nullify the statutory protection under the SOCSO Act because the Civil Law Act excludes SOCSO payments from damage assessment and enforcement of the indemnity does not defeat the SOCSO scheme's purpose; even if illegality were arguable, applying the Patel v Mirza considerations denial of Gridland's indemnity would not enhance SOCSO's purpose and would be a disproportionate intrusion on commercial freedom of contract, therefore Gasing must fully indemnify Gridland (appeal dismissed).

Court Disposition

Gasing's appeal dismissed; Gasing ordered to indemnify Gridland for the judgment as varied; costs awarded against Gasing.

Orders

  • Gasing Potensi Construction Sdn Bhd's appeal dismissed
  • Gasing to fully indemnify GCCP Gridland Sdn Bhd in respect of the judgment as varied