Service of Court Process by Whatsapp, IG, or FB anyone?

Service of court documents via social media apps and electronic means have been sanctioned officially by amendments to the Rules of Court 2012 (ROC 2012) which came into force on 15 December 2020. 

This is great news.  

It has helped us greatly in serving documents on elusive and challenging personalities, especially when dealing with contested matters. 

For our practice, it does help when faced with serving notices and cause papers related to single petitions for divorce, contentious probate, and for debt recovery. 

We also find social media mechanisms useful for the efficient service of relevant correspondence, notices, and matters related to contentious litigation that could not otherwise be served with ease, on the opposing party. 

Of course the above is not legal advice but our commentary of the day after handling a particularly vexing case. 

Please do check with your counsel if service of documents via the above means is a mode that is applicable to your case. 

Anne & Melani @ Messrs Varghese & Co

TEMPORARY MEASURES FOR REDUCING THE IMPACT OF CORONAVIRUS DISEASE 2019 (COVID-19) ACT 2020

Preliminary thoughts on the COVID-19 law gazetted today

The legislation for COVID-19 was just gazetted today after the Royal Assent a week ago on 16 October 2020.  There are 59 sections in total covering modifications to the legislation pertaining to the Public Authorities Protection Act 1948, the Insolvency Act 1967,  the Hire-Purchase Act 1991, the Consumer Protection Act 1999, the Distress Act 1951, the Housing Development (Control and Licensing) Act 1966, the Industrial Relations Act 1967, the Private Employment Agencies Act 1981, the Land Public Transport Act 2010, the Commercial Vehicles Licensing Board Act 1987, the Courts of Judicature Act 1964, the Subordinate Courts Act 1948, and the Subordinate Courts Rules Act 1955.

For now for our introductory post on this new piece of legislation, we will focus briefly on the very real issue of creditors being unable to collect their debts from shady debtors, and genuine debtors being unable to meet their obligations to settle their debts and basically needing more time to make good on their debts.  

Obligations for Inability To Pay

All obligations for inability to pay since the governmental COVID-19 restrictions started in April 2020, under contract, hire-purchase, debt-repayment, are by this legislation, put on hold until 31.12.2020 for debtors to have some breathing space in handling the prospect of debt collectors coming a-knocking to breathe down their necks. 

Creditors to give Time (For Contractual Obligations affected by COVID-19)

The Act provides that the inability of any party to perform their contractual obligations due to COVID-19 shall not give rise to the other party exercising their rights under the contract. The categories of contract include any work related to contracts for supply services, performance contracts, professional services, leases and tenancies of non-residential properties whether landed or stratified,  contracts for goods obtained under hire-purchase and credit arrangements. 

Moratorium

At first glance it appears that no creditor can sue for inability to pay, as the COVID-19 ACT 2020 extends a moratorium for debtors until 31.12.2020. Different categories of legislation modified above, have differing start and end dates for the moratorium. After a further look at the clauses of the Act, it is seen that this is only in respect of the inability to pay arising as a result of the COVID-19 pandemic. This might give a line to debt recovery options for creditors to go after shady debtors. 

As for those who bought goods under credit arrangements, the debtor who bought things on credit and cannot pay, can return the items to perhaps cancel out the debt. The question arises what happens then when these items have depreciated in value upon purchase, as the debt value would not be paid back in full by the return of the goods. 

Mediation

It must be noted that Section 7 to Section 12 seems to provide that a client may renege on the monthly professional fee due to their service provider if during the Covid period their inability to comply with payment obligations resulted from actions taken by the Government under the Prevention of Diseases Act. And it appears that the sole and only resolution to that breach as seen in Section 9, is for the parties to come to mediation and  achieve settlement. 

Is Mediation the Only Option Then? 

Failure or Success of Mediation:  if aggrieved creditors are seeking dispute resolution in respect of breach of contract for inter alia, unpaid debts, breach of hire-purchase and credit arrangements, it appears that under Section 9, their only option is binding mediation settlement. One complication though, in the event of inability to pay resulting in contract breach, if parties cannot agree and no settlement is reached, the question then arises whether reneging the contract plus failure of mediation settlement necessarily results in reference for dispute resolution to the Honourable Courts of Malaya. The COVID-19 Act cannot, in the interests of justice and equity, fully cancel out the jurisdiction of the Courts, at best what it can do, is to give debtors with a genuine inability to pay due to COVID-19 reasons, some breathing space. For all else, the Courts of Law await you and your dispute resolution processes. 

Appoint a lawyer for all your legal advisory, assistance and representation needs where your COVID-19 debt recovery options or debt defence needs are concerned. You may look at the Malaysian Bar Directory online to find lawyers in active private practice who may be the best fit for you.

Be safe in this new normal. Best regards from Messrs Varghese and Co

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Transfer of Property (with Title) by Way of Love and Affection within Kuala Lumpur

Our public service article today is about Transfer of Property (with Title) by Way of Love and Affection within Kuala Lumpur

(1) Land Search of the Property

• You will need the details of the property such as the Lot number, the title type, the title number and the Mukim where the property is situated. 
• If you don’t know where to find this, it is also on the Quit Rent bill you get every year. 
• Then go to the appropriate Land Office, fill up the forms, pay the fee to conduct a land search. 

An initial land search is helpful and necessary because: -

• you will know what is the current status of the land and whether there are any restrictions on the title, i.e. for example whether it has been caveated or whether any other encumbrances are present that will affect any dealings to the land that you may have planned. 
• Note that the land search will also indicate whether a certain land/property will need state consent before any dealings can take place. The transferor would then require to seek consent and pay the fees to the state land authority.
•  if the property has been within your family for a very long time, there is a good chance that the title that you are currently holding is an old one. 

The Land Office may then require you to apply for the extraction of a new title (Tukar Ganti Hakmilik) before any dealings on the property can take place. This procedure is free of charge at the PTGWPKL (Pejabat Tanah dan Galian Wilayah Persekutuan Kuala Lumpur) [www.ptgwp.gov.my]. The Tukar Ganti Hakmilik application would require you to fill in the current information of the property which you can obtain from the Land Search that you had done earlier. What you will need for the application:

• Details of the property
• Original Title of the property
• Recent bill and receipt/proof of payment of Quit Rent

(2) Preparation of Documents

• Forms from LHDN/Stamp Office: CKHT 1A, CKHT 2 and CKHT 3 (if applicable)
• Form from Land Office: Memorandum of Transfer (Borang 14A)

These can be prepared and executed simultaneously. What you will need for the transfer:

i) Original Title of the property (or the new Original Title you extracted)

ii) Copies of Identity Cards of parties (In full colour).

iii) Latest Bill and Receipt/Proof of Payment of Quit Rent

iv) Latest Bill and Receipt/Proof of Payment of Assessment

v) Copies of Birth Certificate and/or proof of relationship

vi) Duly prepared and executed CKHT 1A, CKHT 2A, CKHT 3 (if applicable), Borang 14A

(3) Submission of Documents to LHDN/Stamp Office

LHDN
Stamp Duty (is usually borne by Transferee/Purchasers) - It is the tax calculated on the market value of the property at the time of acquisition. Although there is 100% exemption of stamp duty for transfers between spouses and a 50% exemption for parent to child/child to parent dealings and grandparent-grandchild/grandchild-grandparent dealings, LHDN/Stamp Office will still require the forms below to be completed for their adjudication.

RPGT (usually borne by Transferor/Sellers) – Real Property Gains Tax is tax charged on gains arising from the disposal/selling of real properties. For the purposes of a transfer by way of love and affection/gift of family members stated above, there is no RPGT payable.

• The CKHT1A for the person disposing the property (Transferor).
• The CKHT 2A for the person receiving the property (Transferee).
• The CKHT 3 for a once in a lifetime exemption of RPGT for transfer of residential properties. This only applies if it is a transfer by way of love and affection/gift to others not within the family relationships stated above. 

Stamp Duty
Due to the crippling effects of Covid-19, pursuant to the National Economic Recovery Plan on 5
June 2020, the following Exemption Orders were gazetted on 28 July 2020 and are effective from 1 June 2020. These Exemption Orders may not directly affect transfers by love and affection/gifts but we shall put it here for some useful bed-time reading.

NOTE:

Stamp Duty (Exemption) (No. 3) Order 2020

Stamp Duty (Exemption) (No. 4) Order 2020

Real Property Gains Tax (Exemption) Order 2020


What is needed for Submission to LHDN/Stamp Office which is done online:

i) PDFs of Title of the property (or the new Original Title you extracted)

ii) PDFs (in colour) of Identity Cards of parties

iii) PDFs of Birth Certificates and/or proof of relationship

iv) PDFs of the duly prepared and executed CKHT 1A, CKHT 2A, CKHT 3 (if applicable), Borang 14A

4. Payment of Stamp Duty
Once the above documents are submitted online [https://stamps.hasil.gov.my/stamps/] to the Stamp Office, within a few days, you will get a Notis Taksiran on the adjudicated amount that you will need to pay the LHDN/Stamp Office. Payment must be made within 1 month and the mode of payment is advised in the letter. After successful payment has been effected, the LHDN/Stamp Office will issue a Sijil Setem as proof of payment of the Stamp Duty and a certification that all is good to go.


5. Presentation of Documents to Land Office
Presentation of documents to the Land Office is necessary for the name of the new owner be updated in the Title of the Property. Also, the Land Office will take the liberty to update the Jabatan Penilaian & Pengurusan Harta of the relevant Municipal Council of the state that there has been a change in ownership. It must also be stated here that every document must follow the specifications of the Land office right up to the type and colour of the pen used for signing. The presentation fees differ in each state, so does the penalty fees if it is filed out of time. Yes, we emphasise this here that the lawyers will have to present all documents within 3 months of the date of the Borang 14A. So the settlement of the Stamp Duty and all the relevant searches and preparation must be done without delay. What you will need/ your lawyers will need for successful presentation of documents to the Land Office:

i) Cover Letter of all documents to be submitted

ii) Original Title

iii) Copy of the Notis Taksiran issued by LHDN/Stamp Office

iv) Original Sijil Setem

v) Copies of Identification Cards of Parties (in colour).

vi) Latest Bill and Receipt/Proof of Payment of Quit Rent

vii) Latest Bill and Receipt/Proof of Payment of Assessment

viii) Copies of Birth Certificate and/or proof of relationship

ix) Presentation Fees

6. Collection of new Original Title
Once presentation is made, thus begins your waiting period for the email from Land Office to arrive. If there is any rejection of the presentation, there will be a letter stating the things that have to be corrected/amended/added/taken out. Conversely, if it is good news and there is an acceptance of the presentation, there will be an email for the collection of the updated Original Title. Remember to bring the original receipt and your identification card for the documents to be released to you. Definitely there is a need for a professional eye for detail here. The guidelines are very stringent and often different land offices may have differing internal guidelines causing documents to be rejected. It has not been standardized fully yet though there are improvements with mechanisms at the land office being put in place to streamline and modernize processes. The best way at the moment in the event you face any complications is to appoint counsel to assist you. Otherwise you may arrange to meet with the intrepid land officers to seek their step-by-step guidance to ensure a successful presentation of documents at the Land Office.


Conclusion
In the event you face any complications or roadblocks which arise if you are doing this for the first time, it may be best to look for lawyers in active private practice who practice land law and conveyancing from the Malaysian Bar Directory to get things started and to handle your transaction. Many of the online systems cater to lawyers and a legal firm registration with the governments online vendors is necessary to do much of the work smoothly. You can also alternatively see if you can do it yourself if you can work through the steps and the timelines. Perhaps consider finding a lawyer you can connect with and trust, and for property matters, bear in mind that fees are chargeable according to a fixed statutory scale, with some provision made for 25% reduction of legal fee on a case-by-case basis.

Good luck.
Best regards from all of us at Messrs Varghese and Co.

DISPUTE RESOLUTION 101 CONTINUED: Family Law, Divorce Petitions

DISPUTE RESOLUTION 101 CONTINUED:  Family Law, Divorce Petitions

In the event there is indication that a marriage is going on the rocks: For the purposes of this blogpost we will write as if this is you, dear Reader:

Ground Zero: Go for family counselling with your counsellor of choice to see if counselling helps with repairing your marriage. The irretrievable breakdown of a marriage otherwise, ends in divorce or annulment of the marriage (separate Family Law 101s will be shared for annulments at a later date). For purposes of this  Divorce Petition101, we will focus on the preliminary processes leading up to the intention to litigate and to end the marriage with a decree of divorce. 

1.  Get your paper trail in order. 
This is for any assets owned by the parties, both jointly and separately. Keep a record also of all joint and single expenditure made on behalf of the family, and of the spouses. Marriage is after all a contract between the parties. 

2.  Try to keep things non-acrimonious, hard we know, for some breakups. 
At the very least, consider the savings of keeping things friendly. Joint petitions cost a quarter of contested petitions. Contested petitions are high stress for all parties concerned, the counsels included. You will be billed accordingly. 

3.  Keep copies of all communication between parties. 
This includes communication over social media. If you can export that chat text history, do it. Remember to take screen grabs too. 

4.  Write a chronology of events from the start of the marriage to the intention to file for divorce. This will be pages - long if it was a long marriage. It will be necessary for your counsel to have, in order to prep your case. Leave nothing out. Include all things related to the marriage which your lawyers need to know: 

• Mention in the chronology how and when you met your estranged spouse, how and when the relationship started, whether the families of both parties were on cordial terms, who proposed, and how was it carried out. 

• Mention how and when you became engaged and then married. Indicate whether you registered at JPN first through the civil ROM processes (that would be the point the marriage became legal), was there a religious wedding ceremony thereafter, how the reception was, and where was the first home you lived at, what would the parties consider their family home.

• Mention if there are children of the marriage if there are any. Detail when were they born, particulars of their main caregiver, the spouse who looked after the household and the kids day-to-day rearing and care, whether either parent had been a stay-at-home parent, did both parties work outside the home, how did things go in the initial years, how were the finances shared between the parties - "his, hers and ours" or one party held the purse strings. 

• State the moment when did the marriage start getting strained,  did the marriage start to break down, notable events relating to the strain and the breakdown (e.g. SGBV, domestic violence, affairs, financial mismanagement, et cetera), when did the breakdown reach a no-turning back point (irretrievable/point of no return).

• Set out if whether a separation of household occurred, when was the intention to separate, whether there had been any attempts to reconcile and work on the marriage to fix things, and if so how many attempts. What happened during all the attempts at reconciliation?

• Finally do set out the date the decision to file for divorce happened, and so on, the particulars of this i.e. whether this decision was mutual or not, and whether the parties can agree or not to things such as maintenance, joint/full child custody arrangements, taking into account the children's wishes and feelings, whether there would be joint living arrangements but separate households, or whether there is any intention for a total clean break of the family into two, and the parties are to live in 2 physically separate households, then the decision will be who the details pertaining to rights to the children for custody/visitation, the joint contents of the marital home, movables and personal assets, the library books, the motorbike, the car, the dog, the cat, and the goldfish. 

This is just a little semi-illustration of what to include in the chronology, you could go a different way following what is happening in your life of course. 

5.   Did we mention try to keep things non-acrimonious?
We did, and this is hard but important to attempt. Especially if there are children of the marriage. If this is impossible, then just try to avoid any additional stress in unnecessary confrontations, and leave things to your lawyer after you have instructed them accordingly. 
 
6.   Go for marriage counselling at JPN. 
The government will try to see if it is possible to resolve the differences and salvage the marriage. 

7.   Go to the marriage tribunal hearings at JPN. 
If matters are unable to be resolved and things are irretrievable, then the divorce is happening, isn' t it? :( Our sympathies on the ending of your marriage. Keep on keeping on and be strong.  

8.   Find family lawyers from the Malaysian Bar Directory and get things started. 
Just find a lawyer you can connect with, and whose fees you can afford to pay. Otherwise, approach the Legal Aid Centre at Bar Council for assistance (note that there is a means test requirement there). 

Best regards from Anne and Melani at Messrs Varghese and Co.

Copyright Law in Malaysia

For all matters related to Copyright it is always best to go back to the legislation and case precedents. The legislation governing copyright matters was enacted by Parliament to make better provisions in the law relating to copyright and for other matters connected therewith. Copyright is the exclusive right to control creative works created by the author, copyright owner and performer for a specific period as governed under the Copyright Act 1987, Act 332.  

Works eligible for copyright in Malaysia are:

1. literary works;
2. musical works;
3. artistic works;
4. films;
5. sound recordings;
6. broadcasts; and
7. derivative works

There is a governing organisation in Malaysia that dictates on all matters related to Copyright Law, and for best steps forward it is always best to start with them, the Intellection Property Corporation of Malaysia. 

For any protection-related matters and worries about infringement, feel free to contact them or an IP lawyer of your choice. Apart from us, there are legal firms that can assist and you can obtain their details from Bar Council's legal firm directory. 

Best regards from Anne and Melani at Messrs Varghese and Co.