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Over the years, the courts have adopted three different standards of proof for fraud in civil claims: (i) the balance of probabilities albeit a balance on a higher degree depending on the seriousness of the fraud; (ii) the criminal standard of beyond reasonable doubt; and (iii) either the standard on the balance of probabilities or beyond reasonable doubt depending on the nature of the fraud. The differing standards allowed the lower courts to pick and choose which authority to follow, giving rise to judicial uncertainty. To provide the much needed clarity and certainty, the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 ruled that when deciding on fraud allegations in a civil claim, the standard of proof to be used is that on the balance of probabilities. The Court also pointed out that to prevent floodgates of litigation, this case will have a prospective effect, i.e. it cannot be used as a springboard to set aside or review previous decisions decided on a different standard of proof.
This decision has been long awaited, given the judicial ambiguity on this issue that was drawn out over the last thirty years. It also simplifies the current law and provides much needed clarity and certainty.
Please note that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only
intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice.
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Christopher & Lee Ong
Level 22, Axiata Tower ,
No. 9 Jalan Stesen Sentral 5
Kuala Lumpur Sentral,
50470 Kuala Lumpur, Malaysia
www.christopherleeong.com
Contacts: Lee Hock ChyeManaging PartnerD +603 2273 1919F +603 2273 8310hock.chye.lee@christopherleeong.comYon See TingPartnerD +603 2278 8311F +603 2278 8322see.ting.yon@christopherleeong.comFiona SequerahPartnerD +603 7958 8310F +603 7958 8311fiona.sequerah@christopherleeong.comLim Wee HannPartnerD +65 62320606wee.hann.lim@rajahtann.comYau Yee MingPartnerD +603 2278 8311F +603 2273 8322yee.ming.yau@christopherleeong.comKuok Yew ChenPartnerD +603 7958 8310F +603 7958 8311yew.chen.kuok@christopherleeong.com| Rajah & Tann Asia is a network of legal practices based in Asia. |
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This update is solely intended to provide general information and does not provide any advice or create any relationship, whether legally binding or otherwise. Rajah & Tann Asia and its member firms do not accept, and fully disclaim, responsibility for any loss or damage which may result from accessing or relying on this update. |
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