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  • How to calculate liquidated ascertained damages Malaysia?
    Schedule G Booking fees + 24 months = legally prescribed time of delivery of Vacant Possession (Legal VP) (Legal VP) to (Actual Date VP Notice was delivered to the purchasers) = Days of delay Schedule H Booking fees + 36 months = legally prescribed time of delivery of Vacant Possession (Legal VP) (Legal VP) to (Actual Date VP Notice was delivered to the purchasers) = Days of delay Formula To Calculate Liquidated Ascertained Damages ('LAD'): Purchase price x LAD for parcel (10%) x days of delay Divided by 365 days = LAD for Parcel (Schedule G and H) Purchase price x LAD for parcel (2%) x days of delay Divided by 365 days = LAD For Common Area (Schedule H)
  • Liquidated ascertained damages in Malaysia
    the Federal Court decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162 (“Ang Ming Lee”) has declared extensions of time pursuant to Sub-regulation 11(3) of the HDR, as illegal and void. In simpler terms, that means any extensions given by the Housing Controller to extent the period prescribed under Schedule H (36 months) and Schedule G (24 months) is of no legal effect. In such cases, the purchasers are entitled to claim for LAD based on the period prescribed under Schedule H and G respectively.
  • What is liquidated ascertained damages?
    Liquidated ascertained damages ('LAD') is a contractually ascertained damages that are claimable by the affected party in an event of a breach of contract. The statutory template agreement of Schedule H (high rise projects) and G (landed projects) of the Housing Development (Control and Licensing) Act 1966 and the Housing Development (Control and Licensing) Regulation 1966 provides that the developer ought to pay LAD to purchasers in the event of a delay in providing Vacant Possession ('VP').
  • When does the prescribed period start from?
    Pursuant to the case of PJD Regency , purchasers are entitled to calculate their respective LAD from the time booking fees were paid. Housing Development (Control and Licensing) Regulation clearly prohibits the collection of any prior payment before the signing the SPA, in reality, collections of booking fee / deposit do occur. As the Housing development (Control and Licensing) Act is a social legislation and the judiciary ought to consider the protection of the home buyers, it would only be appropriate to consider the date of collection of the booking as the date of the Sale and Purchase Agreement ('SPA'), as the SPA would have been formed when the booking fee / deposit was collected.
  • Enforcement of Judgment
    if a party fails to comply with a Court judgment, the winning party may pursue an Enforcement Proceedings against that party. There are various types of method of enforcement which depends on the nature of the case.
  • What is a Default Judgment ?
    A Default Judgment or Judgment In Default is a given when the Defendant does not or failed to enter an appearance within the prescribed timeframe.
  • What is the Process in a Legal Proceedings?
    1. Pleadings - Upon receiving the writ and statement of claim, the defendant will then file a Statement of defence and if applicable, a counterclaim. 2. Reply - The Plaintiff will then file a reply to the Statement of Defence and Counterclaim (if applicable) 3. Case Management - The Court will allocate timelines and set trial dates and gives pre-trial directions such as filing of documents and witness statements 4. Trial - Witnesses from both sides will testify and be cross examined. 5. Legal Submissions - Parties will then file their respective legal submissions which summarises the evidence and set out legal principles. The court may order an oral hearing for further submissions. 6. Judgment - The judgement / decision of the court is then delivered, specifying the relief granted.
  • Filing of Interlocutory Applications
    The filing of interlocutory applications can be done in the middle of the legal proceedings. Examples of Interlocutory applications are: Injunction - To stop or compel a party to do a particular act Summary Judgment - to seek the Court to decide the case based on the documents without the need for trial (Ie: the calling of witnesses and etc) Striking Out - To strike out (dismiss) the claim Discovery - To compel a party to disclose specific and relevant evidence and documents.
  • Service of Documents (Delivery of documents)
    The writ and statement of claim must be served on the Defendant. If the service is Successful, the Defendant has 14 days to enter an appearance via a Memorandum of Appearance. If the service is Unsuccessful, substituted service must be done. Such as by advertising on the newspaper.
  • How to start a Civil Suit?
    A Writ informs the Defendant that they are being sued. A Statement of Claim specify the key facts giving rise to the claim. The Civil Suit begins upon the filing of these documents. The writ is usually accompanied with the statement of claim.
  • Step 3: Consult Lawyers
    Depending on the size and value of the claim, it is advisable to consult a lawyer for advise. A Company Must be represented by a lawyer for claims above RM 5,000.
  • Step 2: Enter your Memorandum of Appearance
    You have to file a Memorandum of Appearance within 14 days from the receipt of the Writ and Statement of Claim! In the event you failed to do so, a judgment in default maybe given against you!
  • Step 4 : Attend Court
    If you have not appoint a lawyer in time, you need to attend the case management or mention to obtain court directions for the conduct of the case. If you have appointed lawyer, they will attend on your behalf.
  • Step 1: Read the Writ and Statement of Claim
    Make sure that the proper party has been named in the Writ and Statement of Claim. Remember the time starts from the time you received the document !
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