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 Lawyer's Corner v2, One-stop centre for any legal queries

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TSdariofoo
post Feb 15 2012, 12:40 AM

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QUOTE(wongmunkeong @ Feb 14 2012, 06:58 PM)
Dario, if i may throw in a wildcard - if the bro/sis is a Muslim, it's a different story right?
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If Muslim, they have this concept of 'harta sepencarian' which is similar to the concept in civil cases. power is given to the Syariah Court to determine the division, but more often than not the Court will order an equal split. But the burden would be on the wife to prove that the assets were procured during the subsistence of the marriage. nod.gif

QUOTE(wongmunkeong @ Feb 14 2012, 06:58 PM)
In addition, from what i understand, whether non-muslim or muslim, if he/she can prove that certain assets were acquired BEFORE marriage, then those assets are NOT part of the 50% split right?
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Yes, if acquired before marriage, then it would not be considered for purposes of division.

If I may add a bit - in reality, more often than not, parties arrive at a settlement with regard to division of assets. Perhaps the wife will get to keep the matrimonial home. The husband would continue paying the monthly instalments. The husband will keep the main car, and the second car will go to the wife. Custody will be with the mother, with visitation rights by the father. Father has to pay maintenance (or alimony, as they call it in the US) to the wife (quantum depends on whether wife is working or otherwise) and kids. Husband has to pay insurance and pay all education expenses until kids turn 18. More often than not, these are common terms agreed upon in a divorce.

Only the ugly separations - probably caused by abusive or adulterous spouses - which end up in bitter, long, drawn-out court battles filled with lies, baseless and exaggerated accusations and allegations, scheming conniving lawyers who spit and spew venomous words in their submissions on behalf of their beleaguered clients and a poor judge in the middle scratching his/her head wondering how to decide as to which party is a better liar (as opposed to which party is telling the truth!) doh.gif

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TSdariofoo
post Feb 15 2012, 02:35 PM

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QUOTE(wongmunkeong @ Feb 15 2012, 08:21 AM)
On the Custody will be with the mother, with visitation rights by the father, if i may share from experience (ouch!), as a father, press for joint-custody even though the mother may get daily care (ie. child stays with mother), else you may as well say your final goodbyes to your child. In addition, it's hard to fight for your child to stay with you, as a father, when the courts traditionally grant young children's care to the mother - onus of proof of "unfit parent" is on the father (and we know how hard that is even if it's true) cry.gif
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Joint custody may be difficult if the wife is the vindictive type. coupled with the evil creative genius of a lawyer who can conjure up magical tales of adultery, abuse, late nights out, or drunkenness on the part of the father, even though it may not be true at all.

That is why contested divorces lawyers are those who specialise in that field and not many others dare to venture into it. Those naive lawyers who do not have a clue as to what they are up against would seriously be in for a shock as to what their opponent is capable of coming up with. It's a dirty game, sad to say.

Not in all 100% of divorces cases though. Just the seriously contested ones. It never ends up well..not for the couple that is..The lawyers get paid at the end of the day, nonetheless.
TSdariofoo
post Feb 15 2012, 02:36 PM

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QUOTE(ralph_lauren @ Feb 15 2012, 07:55 AM)
i would like to buy 2nd house with my wife , but i do have 1 unit previously under my name d....

my wife entitled for the 50% rebate on stamp duty ? Thanks
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Didn't I answer that question in my last answer which you quoted? rclxub.gif doh.gif
TSdariofoo
post Feb 15 2012, 02:54 PM

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QUOTE(TheNew @ Feb 15 2012, 11:50 AM)
My friend purchase a 2nd hand house in quite good location. She paid booking, signed letter offer from bank and as well as SPA. Before that she had informed the owner that she'll be withdraw money from EPF to pay the 1st 10%. The owner agreed to wait even after signing SPA but she has one month to do so.

When she asked the owner about MOT because EPF need it with SPA then only she's able to withdraw to pay the owner.
However the owner is in the processing of transfering MOT from developer and it would take one month to do so. Owner's lawyer sent my friend a form called 14A. To her dismay, EPF rejected because the form 14A need to be stamped by land officer.

So according to owner's lawyer, unless she's able to pay the remaining 1st 10% using her own saving then the transition will be smooth. Otherwise owner will be having a big risk that is ; losing the property and as well as the 1st downpayment if my friend just in case she refuse to pay her after withdraw from EPF. Then if this is going to court case, according to the lawyer, my friend will have high possibility to win which frightened the owner.

And now, the owner doesn't want to proceed the selling unless she comes out with the remaining 1st 10% cash.But my friend doesn't have that big amount of cash.
The lucky part is there's no penalty and forfeited by lawyer and the estate agent.But afraid the bank will charge her penalty becasue she has signed the offer letter.

Now What should be done? Terminate the buying or ??? She's so depressed... icon_question.gif
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Actually the owner has a good case to win as your fren has signed the SPA and agreed to buy the property. The owner can compel your fren to proceed to buy it. Why would the owner be worried?

Of course the owner would want some security - that is the purpose of the 10% deposit. It would be forfeited if the purchaser does not proceed with the purchase or if the completion date is expired.

So what is the exact clause provided for in the SPA? 1 month to pay 10% failing which it will be terminated? What was the arrangement between the parties? Or is it silent? hmm.gif

More info needed.
TSdariofoo
post Feb 15 2012, 03:04 PM

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QUOTE(feizaiII @ Feb 15 2012, 11:52 AM)
Good day dariofoo..

Just curious, normally it's take how long for MOT process? Puchong property.
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Not sure la boss. Hard to say. If staff cuti or kursus camne? doh.gif

1-2 weeks on average. If Shah Alam they promise within 3 working days.

Just to add - if it is for your loan, it is not an issue as the presentation receipt is enough for the bank to issue the cheque for the balance purchase price. Later the bank's lawyer can collect the MOT and forward it to the bank.

This post has been edited by dariofoo: Feb 15 2012, 03:05 PM
TSdariofoo
post Feb 15 2012, 06:31 PM

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QUOTE(shneo70 @ Feb 15 2012, 06:28 PM)
Good day dariofoo,

I had recently bought a condo unit which is tenanted. The tenancy agreement shall expired in a few months. I had asked the tenant and he is keen to continue renting the apartment.

My query is, how should I get the rental deposit from the vendor? Or shall I just sign a fresh agreement with the tenant, let the tenant deal with his landlord for the refund of his rental deposit? Many thanks.
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You can either get the vendor to refund it back to you simultaneously upon handing over of vacant possession at the end of the transaction OR even simple would be to incorporate the deposit in the purchase price, i.e. it will be deducted from the balance purchase price [BPP] and be deemed to have been paid to the vendor. Something along those lines. Your lawyer ought to know how to go about it. The second option is better as you still take a gamble if the vendor fails to pay you at the end of the day. Better just deduct from BPP.

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TSdariofoo
post Feb 15 2012, 06:57 PM

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QUOTE(shneo70 @ Feb 15 2012, 06:36 PM)
Sorry, dariofoo, I forgot to ask, which lawyer should I inform regarding the rental deposit? The S&P lawyer or the bank loan lawyer? Thanks.  smile.gif
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SPA lawyer nod.gif
TSdariofoo
post Feb 16 2012, 01:51 PM

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01356033:

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Of course you need to refund the deposit. It doesn't matter if he moves in or moves out. The deposit can only be withheld if there is outstanding rental or if there is damage to the property caused by that person which needs to be repaired and the cost will be deducted/contra from the deposit.

That agent gave you a different scenario. In such case, there is black and white Letter of Offer to Purchase (LO) between the parties and the earnest deposit is to book the property. Of course if the purchaser does not proceed the vendor can forfeit it. Furthermore, it would be stated in the LO that it is not refundable , and this is because it goes into the agent's pocket.

In your case, there is no agreement. between you and the sub-tenant. You can't forfeit it. I would advise you to return it to the sub-tenant.

Do you even have a tenancy agreement with the landlord? A standard agreement would prohibit sub-letting, unless with landlord's consent. Inherently, what you are doing now is also wrong. So you can't profit from it.

Cheers.

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TSdariofoo
post Feb 16 2012, 08:29 PM

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QUOTE(1356033 @ Feb 16 2012, 02:37 PM)
thx for ur reply, but do i have any method that dun have to pay bek the deposit ? coz i really no money 1, i din earn any single sen by doing tis. i rent the hse and rent out the room with the price give n by the landlord , and then divided it and rent it to them.

or if i nid to pay it bek, can i delay it until year end ? coz all the deposit those thing i have pass to the landlord , and i held ntg on my hand. and i have a tenency agreement with my landlord, would u like to have a look 1st ? i email it to u.

Added on February 16, 2012, 2:40 pm

and, if really nid to pay it bek, can i minus the deposit as a rental since i pay bek him the feb rental.
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You need to pay it back. Whether can delay or not is up to the sub-tenant. You're not supposed to use that deposit. Deposits are refundable and must be returned upon request once the deal is done. I only give out advice via this thread so no PM or e-mails will be entertained. Do put it up here so I take a look, if you want. I doubt if it would help anything though. That is between you and the landlord.

My advice is basically the same as before,bro.

Cheers.

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TSdariofoo
post Feb 16 2012, 08:36 PM

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QUOTE(nujikabane @ Feb 16 2012, 04:17 PM)
Good Day dariofoo smile.gif

A question, say that X & Y went to set up a Sdn Bhd company.
X suspected Y has embezzled/misappropriate company's funds.

What are the course of actions that X can take?

Please advice. Thanks
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Lodge a police report. If it is true then it is a case of CBT.

Is Y a director? Then the company has to sue Y for breach of director's duty. By way of civil suit. You can get an injunction to freeze Y's assets if you have proof that the embezzled funds are in his account and that you have reasonable grounds to believe that he about to dissipate the funds out of the jurisdiction of the Court. Not easy, but it sure would put some pressure on Y as all his accounts will be frozen (if the injunction is granted). How many directors? If only 2 of them then have to forget it as both directors must agree for the company to appoint a lawyer. If 3 directors then X can gang up with the other to go ahead with the suit.

X as a director/shareholder can also file a Petition pursuant to Section 181 of the Companies Act against Y. Can ask the Court to cancel or vary any transaction made. However, clear proof of embezzlement must be shown, or the Court would not intervene. Various orders can be sought under this Section, even up to asking the Court to wind up the company.

Police report first. Very important.
TSdariofoo
post Feb 17 2012, 10:47 AM

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QUOTE(nujikabane @ Feb 16 2012, 11:11 PM)
^ Thanks a lot dariofoo for the information.

By the way, the company has only 2 directors, which are X & Y.

By the way, the company is due for its annual submission of audited financial report to the LHDN. However, since there is no one to check the account (as Y is withholding the financial record / the records were not kept properly), the audit cannot begin.

Question;

[1] Do X needs to inform LHDN of this?
[2] & winding up legal costs, should it be borne by both directors, or from the sales from the inventories of the company?

Kindly advise, and I thank you in advance for the time you took to understand & answer our (other forumers & I) questions.
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1. Question - the comp secretary (CS) is on whose side? If it's from X side, then X has to instruct CS to come up with a board reso to appoint auditors for the company. X signs it and Y mus also sigh it. Y has disappeared, is it? If so, then CS should write to SSM to inform them of this, to place it on record of the director's refusal to sign the board reso AND refusal to provide the company's financial records. SSM can take action against Y. Probably the accounts would only be submitted late and this would attract a penalty. That is when X can show all the documents to prove that he acted in good faith at all times and that the delay was from Y.

2. Legal fees - X would have to cough it up to pay his lawyers, as he would be suing Y in his personal capacity. Note that the company cannot sue Y in its capacity as 2 directors need to sign the reso to appoint the law firm to act on its behalf. Surely Y would not sign it to consent to the appointment of the law firm to sue him!

Costs of winding up - would be paid out of company's assets. If no assets, then X would probably have to cough it up and bear the expenses, since he is the one who is seeking the winding up order. Whether he wants to pursue Y for indemnity and damages later is up to him

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TSdariofoo
post Feb 17 2012, 11:01 AM

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I think you have put the cart before the horse in this case. The first and foremost thing which you have to do is to inform the Insolvency Department of your father's death. Has this been done? The Dept would have a file on him and all his affairs are to be managed through the Dept. You have no power to appoint a lawyer or deal with the developer on behalf of your father's estate. You need to check with the Dept first. They would advise you further on this. If the estate wants to appoint a lawyer, consent (called sanction) of the Dept has to be obtained first.

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TSdariofoo
post Feb 19 2012, 09:49 PM

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QUOTE(kosinus @ Feb 18 2012, 01:35 PM)
Hi Dariofoo,

I got a situation here. I was in a process of buying a 2nd hand house 33 years ago. 10% deposit had been given to the owner. SNP was ready and signed. I've also singed bank agreement for loan. Everything went good.

After a while, bank has noticed me that the house cannot be bought due to the owner is declared bankrupt. It hangs there.

SNP lawyer suggested to sue the owner for not being honest not telling he is a bankrupt. But until today, nothing is done. I've taken my own initiative to deal with the owner for returning my deposit back as i didn't get the house and dont want to pursue my intention onto the house anymore. The owner agreed to pay back by installment. It's fine for me.

The thing is i've paid the lawyer. I would say he failed to do his job. Was he supposed to do property searching before proceed with anything e.g snp, etc? Can I get the money back frm the lawyer or my money is wasted already?
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Your SPA lawyer is pretty smart - trying to deflect it and blame it on the vendor for not disclosing his bankruptcy. What the SPA lawyer ought to have done was to do a bankruptcy search on the vendor ASAP, preferrably before execution of the SPA and before the balance deposit changes hands.

What you need to do now is to sue your SPA lawyer for negligence. What money back are you referring to? Legal fees or the deposit?
TSdariofoo
post Feb 19 2012, 09:53 PM

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QUOTE(jimme @ Feb 19 2012, 02:05 PM)
hi dariofoo,

I just bought an 2nd hand house with 8 years, apartment, leashold. Paid 3% booking fee. Assigning lawyer to prepare S&P, and applying loan.

My Qs is:
1. Shall I use the same lawyer of seller? (seller use same lawyer with developer, in the process of MOT now) Seller intend to transfer the Strata to my name directly, as the MOT just start.
2. How do I ensure the house tax, indah water, water & elec bills has been clear before hand over to me? Is this lawyer job?
3. Agent & seller try to persuade me to use same lawyer, to save time & money. But I not sure which part to be exactly saving money. Can you help?

Many thanks.
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1. Be careful. You can't share lawyers with the vendor. Only the vendor can tumpang your lawyer to do the redemption and discharge of charge/deed of RnR. I think what the agent n vendor is trying to do is to push you to appoint the vendor's choice of lawyer and then, you would pay full scaled fees while the vendor is the one who saves money, as the he doesn't pay full scaled fees. I'd suggest appointing your own lawyer as you're the purchaser and you would be paying full scaled fees nonetheless.

2. Depends on whether the lawyer includes it in the terms of the SPA. Most of the time, it is provided that all outgoings must be settled by the vendor in advance, and if there are any apportionments, it would be done at the end when the balance purchase price is handed over to the vendor.\

3. Vendor will be saving money. That's all.

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TSdariofoo
post Feb 19 2012, 10:04 PM

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QUOTE(TamaUser @ Feb 19 2012, 04:56 PM)
Hi, a simple question here.

I planned to operate a business, trading related shop. What is the requirement to operate a store in Malaysia? Any procedure I can refer to?
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Well, to open up a business - a sole proprietorship, is quite easy. Go to SSM and with RM70 payment, you can register your business in slightly more than an hour. A Sdn Bhd might take longer, and is a bit pricey as folks always appoint a management firm to do it for them and then appoint the qualified person in that firm to be their company secretary.

After that you need to check whether licenses/permits are needed for your venture.

Thirdly, at the location where you're setting up - check with the local authority (DBKL,MPAJ,etc) as to their rules and regulations.

That's about all I can think of.

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TSdariofoo
post Feb 19 2012, 10:05 PM

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QUOTE(TamaUser @ Feb 19 2012, 04:56 PM)
Hi, a simple question here.

I planned to operate a business, trading related shop. What is the requirement to operate a store in Malaysia? Any procedure I can refer to?
*
Well, to open up a business - a sole proprietorship, is quite easy. Go to SSM and with RM70 payment, you can register your business in slightly more than an hour. A Sdn Bhd might take longer, and is a bit pricey as folks always appoint a management firm to do it for them and then appoint the qualified person in that firm to be their company secretary.

After that you need to check whether licenses/permits are needed for your venture.

Thirdly, at the location where you're setting up - check with the local authority (DBKL,MPAJ,etc) as to their rules and regulations.

That's about all I can think of.

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TSdariofoo
post Feb 20 2012, 11:52 AM

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QUOTE(kosinus @ Feb 20 2012, 08:51 AM)
Thanks for your feedback. I wish to have my legal fees back from the lawyer. I've settled deposit from the vendor after 3 years installment. What is the procedure to sue a lawyer?
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There's no special procedure. Just appoint a lawyer to do the necessary to file a civil suit in Court.

You can also file a complaint with the A&S Disciplinary Board but that would be disciplinary action against the lawyer and has nothing to do with the fees, which you have to recover by way of a civil suit as stated above.

However, a complaint, especially one which goes through and gets a hearing date fixed, would definitely put pressure on the lawyer to settle with you.

Good luck.

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TSdariofoo
post Feb 20 2012, 11:56 AM

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QUOTE(irise.ufall @ Feb 20 2012, 11:10 AM)
Hi Dario Foo, good morning.

Hope u can still remember me.  blush.gif

So.... new problems arise.

To make it short:

My bank has paid to the vendor the 1st payment to clear their loan with their bank since early of January 2012.

But unfortunately they are still dragging and keep delaying as at today. I am still waiting for them to hand over the documents required from the bank to my bank.

May i know:
1) Is there any legal way to force them to give the documents within a certain period? Their lawyer has been sitting with it until now.
2) The vendor is supposed to bear for the interest charged to me by the bank right?
3) They hav been ignoring my loan solicitor's letters (3 letters) which they request for the necessary documents. What can i or my loan solicitor do?

Pls help.  notworthy.gif
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1) Nothing. You just get your completion date extended if there is a delay from the vendor's side. Unless there is something special in your SPA which states you can do something? Read it. Otherwise, there is nothing you can do.

2) Not in a normal agreement. Unless your SPA states something to that effect?

3) Nothing except send more reminders. Unless your SPA states something else which you can do?

Nothing much to help you as everything which a party is entitled to do or claim would be in the SPA. Nothing else which is contrary or not provided for in the SPA can be valid.

Cheers.

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TSdariofoo
post Feb 20 2012, 02:36 PM

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QUOTE(valentinonkk @ Feb 20 2012, 12:01 PM)
I also have a problem...

I hv bought a hse about 3 years ago. The developer borne all the stamp duty & etc.

I am going to purchase an unit of apartment now.

Do i still entitle for the 50% discount on the stamp duty?

Do i need to apply for it?

Thanks in advance.
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No you can't. It is for first time purchaser only. nod.gif
TSdariofoo
post Feb 21 2012, 01:36 AM

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QUOTE(calvins @ Feb 20 2012, 10:31 PM)
Hi,

I have a query.

Recently i have purchased a 2nd-hand unit and currently at the last stage (3rd month) where pending my SPA lawyer to submit final documents to my bank's lawyer in order for the bank to make final payment to the vendor. 1st payment from my bank to vendor's bank already done.

The delay is because pending for vendor to clear the house taxes.

I have obtained the keys from owner. Is it ok to start my renovation now ? Please advise as I'm rushing to get it completed.
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Sorry mate but if you want a guarantee that there would be any foul-ups resulting in the balance loan sum not released and jeopardising the whole transaction, you should directly ask your lawyer and ask your bank to guarantee you that. There's always a risk involved. I don't see it dragging more than a week or two, just to complete the whole transaction. If you really can't wait then you need to bear the risk. Cheers.

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This post has been edited by dariofoo: Feb 21 2012, 01:44 AM
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