Category Archives: Law

房屋单位与示范屋不符．仲裁庭：不能索赔

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If I am reading this correctly, purchaser can’t claim if the actual unit build by developer defer from model unit.

（柔佛．新山30日讯）发展商兴建的房屋单位与示范屋不符，本地购屋者是否能索赔？房屋仲裁庭主席：不能。 房屋仲裁庭主席拿督比里丹星上午在庭上回应入禀者提出的要求时，针对房屋单位与示范屋不符的情况，阐明我国尚未有相关的立法，因此购屋者不能根据示范屋的各项条件来进行索赔。 他指出，新加坡确实有法令阐明，购屋者若发现真实单位与示范屋的条件不符，可向发展商索赔，但在马来西亚尚未有相关的法令。

Source: http://www.sinchew.com.my/node/1677803

If I Can’t Have You, Nobody Can: Applicability of Non-Compete Clauses in Employment Contracts

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Imagine being in a relationship where your significant other tells you that in the event of a break-up, you are not allowed to date anyone else for a period of 12 months.

The request sounds absurd and irrational, yet many employees in Malaysia willingly sign employment contracts which have similar covenants. It has become quite common for employers to include a “non-compete” clause in their employment contracts (especially for high level employees) which purports to prohibit employees from joining competitors for a fixed period of time after their resignation from the company.

A typical non-compete clause looks something like this:

“For a period of 12 months after cessation of your employment with the Company for whatever reason, you shall not be directly or indirectly engaged or interested in (whether as employee, principal, agent, consultant or otherwise), or conduct any trade or business in Malaysia which is wholly or partly in competition with any business carried on by the Company at the date of cessation of your employment.”

Employers include such non-compete clauses in the belief that it will help them retain key employees, protect their confidential information and customers, and also prevent their competitors from capitalising on investments made in their employees. These may be valid concerns… but are non-compete clauses even enforceable in Malaysia?

The simple answer is NO.

Non-compete clauses in employment agreements are not enforceable in Malaysia due to Section 28 of the Contracts Act 1950. Section 28 provides that every agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is void.

Malaysian Courts have interpreted Section 28 to mean that where the non-compete clause attempts to cover a period after the employment has ended, it will be void and unenforceable against the employee.  It does not matter that the non-compete clause appears reasonable, or is only for a short period of time. This position was recently affirmed in 2014 in the Court of Appeal case of Visioncast Sdn Bhd & 1 Or v Dynacast (Melaka) Sdn Bhd & 2 Others [an appeal to the Federal Court was dismissed in 2016].

Simply put – there’s nothing to stop a former employee from joining a competitor (provided of course they do not use their former employer’s confidential information). The rationale behind Section 28 and the courts’ decisions is that no one should be prevented from pursuing legitimate work or business.  Further, employees with specialised skill and knowledge in niche areas would naturally only be able to work within a small industry – preventing them from working with competitors would effectively limit their ability to make a living.

Take note however that Section 28 does not apply to: (a) agreements involving the sale of goodwill of a business; (b) agreement between between partners prior to dissolution or during continuance of the partnership; and (c) non-compete clauses applicable during the currency of the contract (eg: “exclusivity contracts”).

Non-compete clauses may still serve their purpose if an employee does not seek legal advice and voluntarily refrains from joining a competitor in the mistaken belief that the non-compete clause is enforceable. However, the expectation of employers should be managed accordingly – Malaysian employers who attempt to enforce a non-compete through civil action may find themselves having no greater rights than an obsessive and vindictive ex.

Source: http://dnh.com.my/if-i-cant-have-you-nobody-can-applicability-of-non-compete-clauses-in-employment-contracts/

Court Rules Against Man Who Refused To Park Inside His Own House But Park In Front Of His Neighbour’s House

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The Penang High Court has ordered a man to pay RM5,000.00 to his neighbours and granted an injunction against the man to stop him from parking in front of his neighbours’ house.

The Judge said :
“Although the defendant had denied he had parked his vehicle in front of the plaintiffs’ house, I find the defendant was not telling the truth”.
“From the photographs and CCTV recording, it is obvious to me that the defendant always parked at a corner and opposite the plaintiffs’ house”.
“Before this case, he had parked two vehicles in his house compound. But, now, he refused to park his second vehicle inside his house compound. He only parked one car in his house compound. He purposely parked his vehicle in front of the plaintiffs’ house to cause annoyance and intimidate the plaintiffs”.

Source: Facebook

Malaysia Small Claim Court

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Just sharing an article found online source: Click Here

What is ‘small claim procedure’?

  1. Small Claim Procedure is where an individual (not agent or company or person holding power attorney or etc) wants to claim from someone else (debt) using court procedure, i.e. suing in court of law.
  2. The total amount of claim must not exceeding RM5,000
  3. The claim must be made through summons in Magistrate Court
  4. No lawyer can get involve in this small claim proceeding , everything is done by the plaintiff himself with the guidance of court (staff).
  5. To illustrate, if B owes A RM 5,000 and B refuses to pay, A can sue B in Magistrate court under this ‘small claim’ procedure.

How to initiate this small claim procedure?

  1. Small Claim Procedure is governed and provided under Order 54 of Subordinate Court Rules, 1980.
  2. Go to court (registration office) and ask for Form 198 (remember it is FREE) or you can download it here, and start fill in the form (type it nicely)
  3. Rename KUALA LUMPUR and WILAYAH PERSEKUTUAN in the header to your local court location
  4. Prepare in 4 copies (at least, you may want to prepare more for ‘spare’)
  5. In the form indicate clearly, the amount of claim (not exceeding RM5,000-00) and other details of your claim
  6. Once finished, sign the form yourself
  7. File the form in court (at the registration counters) and pay a small amount of court fee (RM20).
  8. Once you got a seal copy from court, go and serve the form to your ‘defendant’
  9. You may serve by yourself (by hand) or by AR registered post

So what’s next?

  1. Once the defendant receives your claim, he may defend himself or just admit the claim
  2. Assume that defendant defend himself and deny your claim, now the defendant should file his defend in form 199 explaining why he denies the claim
  3. If the defendant fails to file his defence, the court may give judgement for you! On the first or next mention date (the date stated in the form for parties to attend court)
  4. If the defendant chooses not to attend at all the proceeding, the court may also give judgement for you.
  5. Now, say for example you got a stubborn defendant who wants to fight your case, don’t worry, because the judge will guide you and defendant through out the proceeding collecting all relevant facts and evidences.
  6. The court then will decide and give judgement after the proceeding.

Some Important Info

  1. Filing must be done at magistrate court within the same district / state as the defendant address. Example, if the defendant is located at Putrajaya then small claim must be filed at Putrajaya small claim court and not in any other states such as Selangor or WPKL

ABOUT SECTION 114A

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What is Section 114A?

Section 114A is the second of two amendments made to Malaysia’s Evidence Act 1950.

Law Minister Nazri Aziz tabled the second amendment, formally known as Evidence (Amendment) (No2) Act 2012, in Dewan Rakyat on 18 April. James Dawos Mamit supported the motion, and Section 114A was passed after the second and third reading. On 9 May, Dewan Negara passed the amendment.

The amendment was gazetted on 31 July 2012. This means the law is now operational.

What is the purpose of Section 114A?

Section 114A deals with allegedly illicit or harmful content on the Internet. In short, the amendment enables law enforcement officials to swiftly hold someone accountable for publishing seditious, defamatory, or libelous content online.

How does Section 114A affect you?

Titled “Presumption of Fact in Publication”, Section 114A holds the following people accountable for publishing content online:

(1) those who own, administrate, or edit websites open to public contributors, such as online forums or blogs;

(2) those who provide webhosting services or Internet access; and

(3) those own the computer or mobile device used to publish content online.

In other words, if allegedly defamatory content is traced back to your username, electronic device, and/or WiFi network, Section 114A presumes you are guilty of publishing illicit content on the Internet.

But what if you were the victim of identity theft and a hacker wrongfully used your Twitter or Facebook account to post defamatory content?

Under Section 114A, you are still considered guilty until proven innocent.

What is wrong with Section 114A?

Section 114A is problematic for a number of reasons:

i) It disproportionately burdens average Internet users who are wrongfully accused of publishing seditious or defamatory content.

ii) It makes Internet intermediaries–parties that provide online community forums, blogging and hosting services–liable for content that is published through their services.

iii) It allows hackers and cyber criminals to be free by making the person whose account/computer is hacked liable for any content/data which might have changed.

iv) It is a bad law passed in haste and does not take into account public interest and participation.

To get more details on how Section 114A could affect you, check out the infographic below:

How will Section 114A affect the freedom of expression?

Section 114A threatens the right to freedom of expression. Internet users may resort to self-censorship to avoid false accusations made under Section 114A. Bloggers, for example, may excessively censor comments made by their readers. As a result, Section 114A inadvertently stifles public discussion about pertinent political or social issues and protects public authorities, such as the State, from public scrutiny.

Source: http://stop114a.wordpress.com/what-is-section-114a/