Purchase Bar Council Sticker

Letter of Authorisation Template :)

Counter Settlement Proposal

Remember to mark it as WITHOUT PREJUDICE.

1. We refer to the above matter and to your letter dated 27 April 2020 (“Proposal”).

2. Our client maintains that the amount due and owing by your client to our client is RM222,861.89 (“Outstanding Sum”) as claimed by our client in the Writ and Statement of Claim dated 9 January 2020. Our client is therefore not agreeable to the Proposal.

3. Notwithstanding the above, our client is willing to settle the above matter amicably and instructed us to propose the following terms and conditions:-

(a) Your client should pay the sum of RM250,759.39 to our client as full and final settlement of the above matter. The particulars of the Settlement Sum are as set out in Annexure A and are briefly as follows:-

(i) Outstanding Sum of RM222,861.89; and

(ii) Interest at the rate of 5% per annum from the due date of the invoices until full and final settlement, amounting to RM27,897.50 (“Interest”),

(b) The sum of RM250,759.39 should be paid by your client to our client by 6 instalments as follows:-

(i) 1st instalment on 15 May 2020 RM41,385.91

(ii) 2nd instalment on 15 June 2020 RM42,157.28

(iii) 3rd instalment on 15 July 2020 RM42,388.87

(iv) 4th instalment on 15 August 2020 RM40,697.50

(v) 5th instalment on 15 September 2020 RM42,349.00

(vi) 6th instalment on 15 October 2020 RM41,780.83

(c) The payment stated in paragraph 3 (b) above shall be made by 6 post-dated cheques all of which shall be payable to our client and forwarded to us, as solicitors for our client, on or before 14 May 2020 (“Post-Dated Cheques”).

(d) In the event of default or non-payment of any one of the instalments as stated in paragraph 3 (a) to (c) above, the sum of RM222,861.89 (less actual amount paid) shall become immediately due and payable by your client to our client, and in this respect, our client shall be at liberty to commence legal proceedings against your client for the recovery of the sum of RM222,861.89 (less actual amount paid) together with interests, without further reference to your client, in which event, your client shall be fully and solely responsible for all further costs and interest incurred in the same.

(e) Parties should enter a Consent Judgment within 7 days of your client’s acceptance of paragraphs 3 (a) to 3 (d) above.

4. Kindly take note that the terms set out in paragraph 3 above are final and revert with your client’s agreement on the above terms on or before 11 May 2020, failing which this settlement proposal will automatically lapse. We look forward to your client’s favourable response.

5. For the avoidance of doubt, our client expressly reserves its rights.

6. Kindly acknowledge receipt of this letter and its enclosures.

How To Draft a Settlement Proposal

TIPS

1. Remember to mark the proposal as WITHOUT PREJUDICE. Without prejudice means it cannot be produced as an exhibit in Court (unless the maker voluntarily discloses it first).
2. Identify what your client wants, how he/she wants it.
3. Identify what your client can offer to your opponent's client, how your client wants to do it, and when.
4. Include dateline to accept offer!
5. No further claims.
6. Expressly reserve your client's rights.

SAMPLE CONTENT

We refer to the above matter, to our letter dated [when] / telephone conversation between [who] and [who] on [when].

Strictly on a without prejudice basis, we are instructed by our client to propose the following terms and conditions, as full and final settlement of the above matter:-     

(a) Your client should pay a sum of [amount] to our client, particulars of which are as follows:-

(i) A sum of [amount], being our client's initial share capital contribution.

(ii) A sum of [amount], being commission owed to our client for the period of [date]

(iii) A sum of [amount], being our client’s salary for the period of [date] to [date] or until date of the settlement.

(b) The payments stated in paragraph 2 (a) above shall be made by your client to us as solicitors of our client, on or before [date].

(c) In consideration of payment under paragraph 2 (a)(i) above, our client will transfer all its shares to a person nominated by your client. In this respect:-

(i) Kindly forward the relevant shares transfer form duly executed by your client to us for our client’s execution on or before [date]; and

(ii) Upon receipt of payment stated in paragraph 2 (a) above and within 5 days from the date of receipt of payment, we should forward the duly executed shares transfer form to you for your onward transmission to your client.

(d) In relation to paragraph 2 (a)(ii) above, your client is required to provide our client with the actual total number of sales which has been audited by your client’s auditor on or before [date].

(e) Our client should withdraw the above matter against your client with no liberty to file afresh and with no order as to costs.

(f) The above terms shall constitute full and final settlement of all claims, rights, actions and/or recourse that our client may have against your client, and your client may have against our client.

3. Kindly revert with your client’s agreement on the above terms on or before [date], failing which this settlement proposal will automatically lapse. We look forward to your client’s favourable response.

4. For the avoidance of doubt, our client expressly reserves all its rights.

How Garnishee Proceedings Work

1. There must be a debt due or accruing due from the garnishee to the judgment debtor. What it does is essentially to make the Defendant's bank pay to you the debt that Defendant owes you (under banking law banks are your debtor/owe you money). See Order 49 of the Rules of Court.

2. The steps are generally a writ and SOC, and if no appearance is entered by the Defendant, proceed to get a judgment in default of appearance.Or, if the Defendant enters appearance, proceed to Summary Judgment (if straightforward case, no triable issues) / Trial, obtain Judgment against Defendant.

3. Once you get the Judgment, apply for Garnishee by Notice of Application and Affidavit.

4. Court will grant an Order with a date for the Garnishee to Show Cause.

5. Serve this on the Garnishee (ASAP) and the Defendant (7 days before Hearing of Order to Show Cause).

6. Garnishee (bank) will produce a statement saying how much is in the Defendant's account that can be garnished. Sometimes where the amount in the account is not enough to cover your Judgment sum, then you can only garnish the sum that is available and recover the rest due and owing through other modes of execution.

5. On the date to show cause, in the absence of Garnishee or Garnishee/Defendant has no objection, then court will grant a Garnishee Order Absolute.

6. If the Defendant opposes, then you can forward few reasons to Court why the Garnishee Order should be made absolute, for example:-

(a) Plaintiff obtained Judgment against Defendant, Plaintiff should not be barred from enjoying the fruits of litigation.

(b) Defendant did not appeal to the Judgment.

(d) There is debt due or accruing due from the Garnishee to the Defendant, and Garnishee has no objections whatsoever to release the amount sought to be garnished to the Plaintiff.

7. If Court grants Garnishee Order Absolute, serve the sealed Garnishee Order Absolute on the Garnishee bank and the Garnishee bank will pay the Plaintiff (or its solicitors) directly.

Civil Law (Amendment) Act 2019

The Civil Law (Amendment) Act 2019 was published in the Gazette on 31 May 2019. There are a few major changes to note:

1. Persons with disabilities - refer to meaning in Persons with Disabilities Act 2008. [1]

2. Previously, if a person has died caused by wrongful act (neglect or default), under s7(2) only parents, spouse and child can claim. Now, it includes "any person with disabilities under the care" of the deceased.

3. Previously, no loss of earnings (after death of person or after personal injury) shall be considered if his age exceeds 55. With the amendment, the age is increased to 60.

4. The upper limit of multiplier for loss of future earnings in a claim for damages (for both loss of dependency and personal injury) is increased to 60.

5. In relation to personal injury, good health before injury is NO LONGER a criteria of assessing loss of earnings, as long as he was working before death.

6. Bereavement is increased to RM30,000 - and now 'spouse', 'parents' and 'child' can claim (previously only spouse can claim if deceased was married, or parents can claim if deceased was under 18 and single).

_______________

[1] “persons with disabilities” include those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society;

First Time in KLHC

So what happened today was that Shermal got a call from pihak atasan, then came back with a list of printing materials with 280+ stuff on it. He threw the whole list to Yew Xian. Yew Xian was supposed to go to Shah Alam High Court with Grace as they were going to arrange some items there. But since Shermal is throwing his whole workload unto Yew Xian, he can't go. So I said perhaps I can help out.  

Then 11.30am came, Grace and I went down to 6th floor, and we saw my master Mr Toi. And he was like, "where are you going Yin Chien?" and I was like shit I forgot to ask my master's permission before I go. So I told him I'm going to SAHC to help Grace arrange some files for the trial tomorrow. And he was like, "Oh, I was thinking of asking you to go court with me this afternoon at 2pm." And so I tried to find a replacement for myself but failed. So in the end Grace went alone, and I went to KLHC with Mr Toi. I feel super bad for Grace for having to do this alone. 

The matter today was a hearing of an interlocutory injunction of GDSP. Basically the dispute between Datuk Lim Chee Wah suing on behalf of his late mother and the 2nd grandchild of the eldest son of Lim Goh Tong, Benjamin Lim, who was given 75% shares for free from his late grandpa. 

So what happened was BL kicked his grandma off the BOD, and is now trying to sell of 29/40 plots of land around Genting that belonged to the family company. What we were trying to argue is that there is a family arrangement that gives rise to quasi partnership, and the lands have special value to the family and damages is not an adequate remedy as the location and circumstances surrounding those lands are unique. 

The other side, represented by Izral & Partnership, were basically saying that LCW has no locus to sue as his late mother's POA did not give him such authority. And in any case, LCW cannot make an affidavit based on what is personal to his mother as it wouldn't have been in his knowledge. 

It's definitely an eye-opening experience. And I'm really grateful that my master was willing to let me tag along to KLHC.

When we got back to the office, the bag that I borrowed from Iris got accidentally locked. And she didn't know her own password. We were dismayed but obviously the problem has to be solved cos Iris is having a court case tomorrow. So me and Michael tried the number combinations one by one (1000 combinations) but it still wouldn't open. Then everyone gave up and were resolved to get one of the Abangs to cut it open the next day. I really felt super bad at this point of time. 

Then I went back down, tried all the numbers again from 1-1-0. And when I reached 1-1-8, it suddenly clicked open! Imagine my excitement! Everybody was saying I should go buy toto hahaha. So problem solved, and the bag was reset to 0-0-0.

I owe Iris a meal for giving her a heart attack! XD

It was an eventful day, but thank God it ended on a positive note.

Land Acquisition Cases

Article 13(1): Accordance with Law

Ng Chin Siu & Sons Rubber Estate Sdn Bhd v Pentadbir Tanah Hilir Perak & Anor 

[2013] MLJU 1590 COURT OF APPEAL (PUTRAJAYA) 

Issue: Form D and E (mandatory procedure under LAA) issued to wrong entity. 

Held: It was of no consequence that the respondents had in fact substantially complied with the essential provisions of the Land Acquisition Act 1960, that the appellant was not prejudiced because it was fully aware of the whole acquisition exercise or that it was open to the appellant to seek the remedy of a higher compensation for the said land. All these do not detract from the fact that the acquisition was not made in accordance with law and thus ipso facto null and void by virtue of Article 13(1) of the Federal Constitution.

Ee Chong Pang & Ors v The Land Administrator Of The District Of Alor Gajah & Anor [2012] MLJU 1366 COURT OF APPEAL (PUTRAJAYA)

Issue: Appellants contended that as a result of the failure of the State Authority to publish in the Gazette Form A, the land acquisition exercise was not carried out in accordance with the law. Thus the land acquisition by the State Authority was contrary to Article 13(1) and should be declared null and void.

Judge's Opinion: In this regard, we are in agreement with the view expressed by Gopal Sri Ram JCA (as he then was) in his dissenting judgment in Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, proposed intervenors) [2004] 3 MLJ 301 where his lordship said (at p. 328):

[74] The draft judgment of my learned brother accepts in entirety the appellants' contention that Form A was never issued and that Form E was never served. However, my learned brother has gone on to hold that issuance of Form A is not mandatory despite the imperative language of s 4(1). With respect, this approach disregards well settled principles of statutory construction. We are here dealing with a statute which is aimed at the prevention of arbitrary escheatment of proprietary rights, the protection of which the supreme law of the Federation guarantees as a fundamental right. To read mandatory provisions in such a statute in a generous and favourable manner towards those whose duty is to ensure their due observance is to condone and promote maladministration in a manner so important as the deprivation of property. It is a message from the judicial arm of the Government to bureaucrats that due compliance with mandatory provisions of the Act will produce no consequences for them. I am therefore unable in the face of compelling authority as I have found and cited in this judgment to accept an ipse dixit based on no authority that compliance with s. 4(1) is not mandatory.

Held: Based on the above judicial authority, the issuance of Form A under section 4(1) of the Act is mandatory and the failure of the State Authority to comply with this mandatory provision can only mean that the land acquisition exercise is not in accordance with the law.

S KULASINGAM & ANOR v COMMISSIONER OF LANDS, FEDERAL TERRITORY & ORS [1982] 1 MLJ 204 

Issue: Tamil Association land to be acquired for building hockey stadium. It was argued that Article 13(1) FC would render any law providing for deprivation of property without a pre-acquisition hearing invalid.

Held: Acquisition could not be impugned on any ground of natural justice since the legislation imposed no obligation for any inquiry and hearing in respect of the acquisition. The legislature can by clear words exclude the principles of natural justice in the absence of specific constitutional guarantees and Article 13(1) in no way vitiates the provisions of the Land Acquisition Act. 

In a Nutshell: Federal Court negatived right to pre-acquisition hearing under the LAA as a matter of natural justice, saying that there is nothing in the legislation imposing any such obligation in contrast to the specific provisions for an inquiry and hearing in respect of the quantum of compensation payable. 

However, MP Jain said that, "Any argument that if one provision of a statute specifically stipulates natural justice and another provision therein is silent, then natural justice is impliedly excluded in the latter case, is now NOT accepted in other common law jurisdictions." See SL Kapoor v Jagmohan AIR 1981 SC 136; Swadeshi Cotton Mills v Union of India AIR 1981 SC 818.

In India, Swadeshi Cotton Mills v Union of India AIR 1981 SC 818, the court observed:

"The audi alteram partem rule ... is a very flexible, malleable and adaptable concept of natural justice. To adjust and harmonize the need for speed and obligation to act fairly, it can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation. Thus, in the ultimate analysis, the question (as to what extent and in what measure) this rule of fair hearing will apply at the pre-decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case."

In Canada, in Nicholson v Haldimand Norfolk Regional Board of Commissioners of Police, a probationary constable in a municipality was dismissed without a hearing. There was a statutory provision requiring hearing only for those who crossed the probationary period, but not for one who was yet on probation. Still, the Supreme Court of Canada ruled that the probationer must be treated ‘fairly’. The consequences of dismissal to the concerned person were serious. The dismissal was thus quashed by the court. The moral of the case is that when a statute provides for hearing in one situation, but not in another, the court can still read the right of hearing in the latter situation on the ground of fairness. 

Also, it is submitted that once the word ‘law’ in art 13(1) is read broadly so as to include natural justice therein, then natural justice becomes a constitutionally-guaranteed procedural safeguard and will have to be implied in every statute falling within the scope of art 13. The Constitution being the supreme law of the land, it will be beyond Parliament to dilute the effect of art 13 and exclude natural justice when a person is being deprived of his property.