The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

The Hybrid Spirit Animating Chinese Pentecostals in Malaysia

This dissertation interrogates the assertion in postcolonial scholarship, especially from the work of Homi Bhabha that the construction and performance of hybrid identities act as a form of resistance for marginalized communities against structures of oppression. While this study supports this assertion, it also critiques how hybridity fails to address issues of unequal power relations. This has led to an uncritical use of hybridity that reproduces the very idea of static identity which its proponents claim to transcend. Through qualitative study of Chinese members of a Pentecostal church in Malaysia, this study argues that church members engage in "unequal belonging" where they privilege certain elements of their identities over others. In concert with Pierre Bourdieu's conceptions of habitus, field, and capital, unequal belonging highlights how hybridity fails to capture the intersecting and competing loyalties, strategies, and complexities of identity formation on a contextual level. Unequal belonging challenges postcolonial scholars to locate the subtle workings of power and privilege that manifest even among marginalized communities. The study first situates the Chinese through an analysis of the historical legacy of British colonialism that has structured the country's current socio-political configuration along bounded categories of identification. The habitus constrains church members to accept certain Chinese ethnic markers as "givens." Although they face continuous marginalization, interviewee data demonstrates that church members negotiate their Chineseness and construct a "Modern Chinese" ethnic identity as a strategic move away from Chinese stereotypes. Moreover, conversion to Christianity affords church members access to cultural capital. Yet, it is limited and unequal capital. In particular, the "Chinese Chinese," who church members have demarcated as backward and traditional, are unable to gain access to this capital because they lack fluency in English and knowledge in modern, westernized worldviews. Unequal belonging nuances monolithic conceptions of hybridity. It demonstrates how church members' privilege of Christianity over Chineseness exposes the complex processes of power and privilege that makes westernized-English-speaking Chinese Christians culturally "higher" than non-English-speaking, non-Christian, Chinese. This study provides significant contribution to the complex aspect of hybridity where it is both a site of resistance and oppression.

Advertising Colonial Romance and Imperial Masculinity: The Promotion of Philip Meadows Taylor's Novels in Britain

The comments of Charles Kegan Paul, the Victorian publisher who was involved in publishing the novels of the nineteenth-century British-Indian author Philip Meadows Taylor as single volume reprints in the 1880s, are illuminating. They are indicative of the publisher's position with regard to publishing - that there was often no correlation between commercial success and the artistic merit of a work. According to Kegan Paul, a substandard or mediocre text would be commercially successful as long it met a perceived want on the part of the public. In effect, the ruminations of the publisher suggests that a firm desirous of acquiring commercial success for a work should be an astute judge of the pre-existing wants of consumers within the market. Yet Theodor Adorno, writing in the mid-twentieth century, offers an entirely distinctive perspective to Kegan Paul's observations, arguing that there is nothing foreordained about consumer demand for certain cultural tropes or productions. They in fact are driven by an industry that preempts and conditions the possible reactions of the consumer. Both Kegan Paul's and Adorno's insights are illuminating when it comes to addressing the key issues explored in this essay. Kegan Paul's comments allude to the ways in which the publisher's promotion of Philip Meadows Taylor's fictional depictions of India and its peoples were to a large extent driven in the mid- to late-nineteenth century by their expectations of what metropolitan readers desired at any given time, whereas Adorno's insights reveal the ways in which British-Indian narratives and the public identity of their authors were not assured in advance, but were, to a large extent, engineered by the publishing industry and the literary marketplace.

The Scots in Ireland: culture, colonialism and memory, 1315-1826

This thesis examines three key moments in the intersecting histories of Scotland, Ireland and England, and their impact on literature. Chapter one Robert Bruce and the Last King of Ireland: Writing the Irish Invasion, 1315- 1826‘, is split into two parts. Part one, Barbour‘s (other) Bruce‘ focuses on John Barbour‘s The Bruce (1375) and its depiction of the Bruce‘s Irish campaign (1315-1318). It first examines the invasion material from the perspective of the existing Irish and Scottish relationship and their opposition to English authority. It highlights possible political and ideological motivations behind Barbour‘s negative portrait of Edward Bruce - whom Barbour presents as the catalyst for the invasion and the source of its carnage and ultimate failure - and his partisan comparison between Edward and his brother Robert I. It also probes the socio-polticial and ideological background to the Bruce and its depiction of the Irish campaign, in addition to Edward and Robert. It peers behind some of the Bruce‘s most lauded themes such as chivalry, heroism, loyalty, and patriotism, and exposes its militaristic feudal ideology, its propaganda rich rhetoric, and its illusions of freedom‘. Part one concludes with an examination of two of the Irish section‘s most marginalised figures, the Irish and a laundry woman. Part two, Cultural Memories of the Bruce Invasion of Ireland, 1375-1826‘, examines the cultural memory of the Bruce invasion in three literary works from the Medieval, Early Modern and Romantic periods. The first, and by far the most significant memorialisation of the invasion is Barbour‘s Bruce, which is positioned for the first time within the tradition of ars memoriae (art of memory) and present-day cultural memory theories. The Bruce is evaluated as a site of memory and Barbour‘s methods are compared with Icelandic literature of the same period. The recall of the invasion in late sixteenth century Anglo-Irish literature is then considered, specifically Edmund Spenser‘s A View of the State of Ireland, which is viewed in the context of contemporary Ulster politics. The final text to be considered is William Hamilton Drummond‘s Bruce’s Invasion of Ireland (1826). It is argued that Drummond‘s poem offers an alternative Irish version of the invasion; a counter-memory that responds to nineteenth-century British politics, in addition to the controversy surrounding the publication of the Ossian fragments. Chapter two, The Scots in Ulster: Policies, Proposals and Projects, 1551-1575‘, examines the struggle between Irish and Scottish Gaels and the English for dominance in north Ulster, and its impact on England‘s wider colonial ideology, strategy, literature and life writing. Part one entitled Noisy neighbours, 1551-1567‘ covers the deputyships of Sir James Croft, Sir Thomas Radcliffe, and Sir Henry Sidney, and examines English colonial writing during a crucial period when the Scots provoked an increase in militarisation in the region. Part two Devices, Advices, and Descriptions, 1567-1575‘, deals with the relationship between the Scots and Turlough O‘Neill, the influence of the 5th Earl of Argyll, and the rise of Sorley Boy MacDonnell. It proposes that a renewed Gaelic alliance hindered England‘s conquest of Ireland and generated numerous plantation proposals and projects for Ulster. Many of which exhibit a blurring‘ between the documentary and the literary; while all attest to the considerable impact of the Gaelic Scots in both motivating and frustrating various projects for that province, the most prominent of which were undertaken by Sir Thomas Smith in 1571 and Walter Devereux, 1st Earl of Essex in 1573.

A "Greater Britain": colonial kin in fictions of settlement, 1850-1890

This dissertation traces the ways in which nineteenth-century fictional narratives of white settlement represent “family” as, on the one hand, an abstract theoretical model for a unified and relatively homogenous British settler empire and on the other, a fundamental challenge to ideas about imperial integrity and transnational Anglo-Saxon racial identification. I argue that representations of transoceanic white families in nineteenth-century fictions about Australian settler colonialism negotiate the tension between the bounded domesticity of an insular English nation and the kind of kinship that spans oceans and continents as a result of mass emigration from the British isles to the United States, Canada, New Zealand, and the Australian colonies. As such, these fictions construct productive analogies between the familial metaphors and affective language in the political discourse of “Greater Britain”—-a transoceanic imagined community of British settler colonies and their “mother country” united by race and language—-and ideas of family, gender, and domesticity as they operate within specific bourgeois families. Concerns over the disruption of transoceanic families bear testament to contradictions between the idea of a unified imperial identity (both British and Anglo-Saxon), the proliferation of fractured local identities (such as settlers’ English, Irish Catholic, and Australian nationalisms), and the conspicuous absence of indigenous families from narratives of settlement. I intervene at the intersection of postcolonial literary criticism and gender theory by examining the strategic deployments of heteronormative kinship metaphors and metonymies in the rhetorical consolidation of settler colonial space. Settler colonialism was distinct from the “civilizing” domination of subject peoples in South Asia in that it depended on the rhetorical construction of colonial territory as empty space or as land occupied by nearly extinct “primitive” races. This dissertation argues that political rhetoric, travel narratives, and fiction used the image of white female bourgeois reproductive power and sentimental attachment as a technology for settler colonial success, embodying this technology both in the benevolent figure of the metropolitan “mother country” (the paternalistic female counter to the material realities of patriarchal and violent settler colonial practices) and in fictional juxtapositions of happy white settler fecund families with the solitary self-extinguishing figure of the black aboriginal “savage.” Yet even in the narratives where the continuity and coherence of families across imperial space is questioned—-and “Greater Britain” itself—-domesticity and heteronormative familial relations effectively rewrite settler space as white, Anglo-Saxon and bourgeois, and the sentimentalism of troubled European families masks the presence and genocide of indigenous aboriginal peoples. I analyze a range of novels and political texts, canonical and non-canonical, metropolitan and colonial. My introductory first chapter examines the discourse on a “Greater Britain” in the travel narratives of J.A. Froude, Charles Wentworth Dilke, and Anthony Trollope and in the Oxbridge lectures of Herman Merivale and J.R. Seeley. These writers make arguments for an imperial economy of affect circulating between Britain and the settler colonies that reinforces political connections, and at times surpasses the limits of political possibility by relying on the language of sentiment and feeling to build a transoceanic “Greater British” community. Subsequent chapters show how metropolitan and colonial fiction writers, including Charles Dickens, Anthony Trollope, Marcus Clarke, Henry Kingsley, and Catherine Helen Spence, test the viability of this “Greater British” economy of affect by presenting transoceanic family connections and structures straining under the weight of forces including the vast distances between colonies and the “mother country,” settler violence, and the transportation system.

Technology strategy : findings from adoption and adaptation of Japanese manufacturing management (JMM) to ASEAN and Australasian automotive manufacturers

The purpose of this study is to demonstrate the appropriateness of “Japanese Manufacturing Management” (JMM) strategies in the Asian, ASEAN and Australasian automotive sectors. Secondly, the study assessed JMM as a prompt, effective and efficient global manufacturing management practice for automotive manufacturing companies to learn; benchmark for best practice; acquire product and process innovation, and enhance their capabilities and capacities. In this study, the philosophies, systems and tools that have been adopted in various automotive manufacturing assembly plants and their tier 1 suppliers in the three Regions were examined. A number of top to middle managers in these companies were located in Thailand, Indonesia, Malaysia, Singapore, Philippines, Viet Nam, and Australia and were interviewed by using a qualitative methodology. The results confirmed that the six pillars of JMM (culture change, quality at shop floor, consensus, incremental continual improvement, benchmarking, and backward-forward integration) are key enablers to success in adopting JMM in both automotive and other manufacturing sectors in the three Regions. The analysis and on-site interviews identified a number of recommendations that were validated by the automotive manufacturing company’s managers as the most functional JMM strategies.

Energy efficient multi storey residential developments

Worldwide, the current pattern of urban development is unsustainable and metropolitan planning and development strategies deliver poor environmental outcomes in relation to energy production. As a result, an increasing number of governments and private sector development companies are initiating projects that aim to deliver enhanced environmental outcomes rather than a ‘business as usual’ approach. This paper will summarise the findings from a study that explored the link between building orientation and energy efficiencies in sub-tropical and tropical climates. The study used a new thermal modelling software tool developed by CSIRO that responds more accurately to residential heating and cooling energy performance in those climate zones. This software tool responds to industry criticisms regarding cold climate modelling systems that do not make sufficient allowance for natural ventilation. The study examined a range of low, medium and high-density dwelling types and investigated the impact of orientation, insulation, ventilation and shading devices on energy efficiencies. This paper will examine the findings from the medium and high-density case study developments as these are relevant to residential developments in many South East Asian countries, such as Singapore, Hong Kong and Malaysia. Finally, the paper will explore the potential benefits that medium and high-density residential developments have in the development of ‘solar cities’ and ‘solar suburbs’.

How to achieve sustainability : regulatory challenges

The importance of designing sustainable buildings is gaining greater acceptance worldwide. Evidence of this is how regulators are incorporating sustainable design principles into building regulations and requirements. The aim being to increase the number of sustainable buildings and move from a traditional voluntary compliance to one that is mandatory. However, developing regulations that actually achieve these aims can be a difficult exercise. Several countries in South East Asia, such as Singapore and Malaysia, have performance based building regulations that are supplemented by prescriptive measures for achieving the desired performance. Australia too has similar building regulations and has had energy efficiency regulations within the Building Code of Australia for over a decade. This paper explores some of the difficulties and problems that Australian regulators have experienced with the performance-based method and the prescriptive or “deemed-to-comply” method and measures that have been taken to try and overcome these problems. These experiences act as a useful guide to all regulators considering the incorporation of sustainable design measures into their countries building regulations. The paper also speculates on future environmental requirements being incorporated into regulations, including the possibility of non-residential buildings being required to meet minimum energy efficiency requirements, and the possible systems that would need to be in place before such requirements were included. Finally, the paper looks at a possible way forward using direct assessment from electronic designs and introduces several software tools that are currently being developed that move towards achieving this goal. Keywords: Sustainable buildings, Performance-based, Regulations, Energy efficiency, Assessment tools.

Authentic and conventional assessment in Singapore schools : an empirical study of teacher assignments and student work

This is an empirical examination of the quality of teacher assignments and student work in Singapore schools. Using a theoretical framework based on principles of authentic assessment and intellectual quality, two sets of criteria and scoring rubrics were developed for the training of expert teachers to judge the quality of assignments and student work. Following rigorous training, the inter-rater reliability of expert teacher scoring was high. Samples of teacher assignments and student work were collected in English, social studies, mathematics, and science subject areas from a random stratified sample of 30 elementary schools and 29 high schools. For both grade levels, there were significant differences for the authentic intellectual quality of teachers’ assignments by subject area. Likewise, the differences of authentic intellectual quality for student work were significant and varied by subject area. Subject area effect was large. The correlations between the quality of teachers’ assignment tasks and student work were strong and significant at both grade levels. Where teachers set more intellectually demanding tasks, students were more likely to generate work or artefacts judged to be of higher quality. The findings suggest that teacher professional development in authentic intellectual assessment task design can contribute to the improvement of student learning and performance. It is argued that this will be a key requisite of educational systems like Singapore that are seeking to expand pedagogy and student outcomes beyond a focus on factual and rote knowledge.