PROPERTY & STRATA CONFERENCE 2018 TRIBUNAL FOR HOMEBUYER CLAIMS & STRATA MANAGEMENT TRIBUNAL.

Transcription

1 PROPERTY & STRATA CONFERENCE 2018 TRIBUNAL FOR HOMEBUYER CLAIMS & STRATA MANAGEMENT TRIBUNAL. Kementerian Perumahan dan Kerajaan Tempatan, Aras 3-4, No. 51, Persiaran Perdana, Presint 4, Selangor, Putrajaya, Malaysia

2 Topic Tribunal Legal Advice Claim Jurisdiction Judicial Review Non-Compliance of Award Lawyers Service of documents Etiquette

3 TRIBUNAL What is Tribunal? The seat of a judge; the place where he administers justice; a judicial court: the bench of judges(black's Law Dictionary)

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5 Decision of Tribunal

6 No Legal Advice Tribunal Legal Aid Department Legal Aid Department is a government agency that provides legal advice and legal assistance to the lower income group according to the Legal Aid Act 1971

7 What is your Claim?

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9 Claiming Be Clear Be Precise Be Accurate

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11 For the devil himself knows not the thought of man - Latham CJ in Greene v The Queen

12 Fourth Schedule Part 1 Jurisdiction of the Tribunal (2) Subject to subsection 16N(2) of the Housing Development (Control & Licensing) Act 1966 [Act 118], a dispute on cost or repairs in respect of a defect in a parcel, building or land intended for subdivision into parcels, or subdivided building or land, and its common property or limited common property.

13 Fourth Schedule Part 1 Jurisdiction of the Tribunal (12) A claim for compelling a developer, joint management body, management corporation or subsidiary management corporation to supply information or documents. Bandar Utama 1 JMB v Bandar Utama Development Sdn Bhh (2017) MLJU 1370: - Mahkamah ini berpandangan bahawa dokumen-dokumen yang berkaitan pekara 12 ini hendaklah dokumen-dokumen yang berhubungan dengan penyenggaraan dan pengurusan bangunan dan harta bersama/hakmilik strata

14 Judicial Review Chief Constable of North Wales Police v. Evans [1982] 3 All ER 141 Judicial review is not an appeal from a decision but a review of the manner in which the decision was made, and, therefore the court is not entitled on an application for judicial review to consider whether the decision itself was fair and reasonable. Judicial review is concerned, not with the decision, but with the decision-making process. Unless the restriction on the power of the court is observed, the court will in my view under the guise of preventing the abuse of power, be itself guilty of usurping power

15 Judicial Review Seraimas Bina Sdn Bhd v Tribunal Tuntutan Pembeli Rumah Negeri Pulau Pinang & Anor[2017] MLJU 216 1) It is neither an appeal nor a review of the decision itself, but a review of the decision-making process of the tribunal to see if there are errors of law on the face of the record;

16 Judicial Review 2) It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed; and an error may be disclosed if the decision-maker eg: (a) asks himself the wrong question; (b) takes into account irrelevant considerations; (c) omits to take into account certain relevant considerations; (d) misconstrues the terms of the relevant statute; or (e) misapplies or misstates a principle of general law.

17 Judicial Review 3) In process or substance, an impugned decision is flawed on ground of: (a) illegality, meaning that the decision must be based on law and the decision-maker must understand directly the law that regulates his decision-making power and must give effect to it, and whether he has or not is par excellence a justiciable question;

18 Judicial Review b) Irrationality Meaning Wednesbury unreasonableness, so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it, as enunciated in Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1948] 1 KB 223;

19 Judicial Review c) procedural impropriety covering failure: (i) to observe basic rules of natural justice; (ii) to act with procedural fairness; (iii) to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice; and

20 A representative must be sent to proceed with the hearing. All Postponements request must be made in front of the Presiding President.

21 AWARD Can be challenged on grounds of serious irregularity which has caused substantial injustice to applicant; Failure to act fairly & Impartiality & giving each party opportunity to present his case and to deal with opponent; Failure to deal with relevant issues; Uncertainty or ambiguity of award

22 No Judicial Review on a President Personally!

23 Non Compliance of Award Prosecution Act 118 -s.16ad Civil Enforcement File in Civil Court to enforce the Award. Act 757 -s.123

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25 Right to appear at Hearings Lawyers s.110 Act 757 When?

26 Right to appear at Hearings Criteria 1 st Limb Complex issues of law 2 nd Limb One party will suffer severe financial hardship

27 Service of notice or order s.144 Act 757 Personally by registered post attaching Cf : Act 118 AR Registered

28 Withdrawal of Claim Do it at the Tribunal hearing. Unauthorized withdrawal. Unauthorized signature. Cost

29 No Postponement

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31 Counter clerks are not Presidents

32 Who decides? S. 16C Act 118 S. 103 Act 757

33 Open Court Etiquette 1) Be present in the courtroom before 9.00am or at any time fixed by the court. 2) Rise and bow when the President enters and leaves the courtroom. 3) Come forward when your name is called upon by the interpreter. 4) Give your full attention during the proceedings. 5) Be silent during the proceedings. 6) Bow every time you enter and leave the courtroom during the proceedings. 7) No children are allowed in the courtroom unless instructed to do so by the court.

34 8) No weapons are allowed. 9) No recordings either audio or visual are allowed. 10) Mobile phones, pagers and other electronic devices are to be switched off.

35 Dressing Etiquette Dress decently and appropriately. You are not allowed to wear: 1. Short pants / mini skirts 2. Slippers 3. Helmet 4. Sun glasses 5. Informal jackets such as leather, denim and others

36 Discussion

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