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Writ Summon for Breach of Contract

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asked on Oct 8, 2017 at 12:42
by   Sharil
edited on Oct 8, 2017 at 12:50
by   Sharil
Hi Gents.
On 03/10/2017 my wife & her guarantors (2) received Writ Summon from her previous Company AAA that sponsored her study and bind to work with them for 10 years after finish her study. The court hearing stated in the letter was on the 03/10/2017 itself. The next day we called up the court and been informed that the first hearing was on the 19/09/2017, second hearing 03/10/2017, third hearing 19/10/2017. Therefore, we called the plaintiff's lawyer to clarify why we did not been informed on the first hearing and why the writ summon were only served to us yesterday. They told me that the first hearing got some amendment on the writ so postponed, the second hearing was postponed to 19/10/2017 because the defendant have not received the writ.

She have been demanded for a sum of RM70,000.00 due to breach of contract. But now she is a fulltime housewife with no income and a daughter to take care of and we cant afford to pay them that amount.

Few points to highlights:
She was a minor when the agreement was made. Besides that, there were no original copy of the agreement handed over to her till this date. In fact, based on the soft copy provided by them recently, there were no initials on each page of the contract and as far as she concerned,she don't recall on agreeing on such terms (compensation of RM70,000).

Anyhow to avoid further complication, we have made appeal letter to the plaintiff to settle outside the court and offer them two options to consider as to withdraw the case and discharge my wife from the agreement.
Still waiting for approval.

So my concerns are:
1) Can we ask the plaintiff to postponed the hearing date as we are still waiting for approval from their commitee. Is it possible for them to postponed the date in court procedure, do they have the rights to do that? Or else, on the hearing date itself we ask the majistret to postponed the prosiding as we waiting confirmation from plaintiff.

2) if on the hearing date i would like to request to postponed the prosiding because I would like to engaged a lawyer just because to delay the case as we are still negotiating with plaintiff. But then, on the next hearing, I didnt engaged a lawyer. Will this be a problem? 

3) should they disagree with the proposed settlement, and proceed with legal action till bancruptcy, what happen to our house which is in my name only but under joint loan with her? 

4) Will the social guarantors been declared backrupt also?

5) if they agree on the proposed settlement. How can we know that they have withdraw the case from the court? Is there any specific terms inside the e-filing should mention?

I hope some of you would be able to clarify & help me on this.

Thank you
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answered on Oct 8, 2017 at 15:47
by   Jeff Lee
@ Sharil,

I shall reply briefly as I am not in town. The Avengers Malaysia will guide you on the court process.

My Personal views, not that of others, different interpretations of litigation laws.

1.  Being a minor does not discharge her of being sued. Sponsorship study loans is for self enrichment.

2.  Unlike Hire Purchase Agreements, there is no need to sign on every page.

3.  There is no need for lawyers services. This is a straight forward case. You can Self Represent with guidance from the honourable Avengers Malaysia.

4.  You have to attend court and seek postponement.

Note  you = Your wife

5.  Your wife does not qualify as social guarantor. This is where she lives and she is not being sued for this housing loan. The most the bank would do is to recall the loan or get you to tambah another guarantor. If your payments is good, the bank will do nothing to it. It is under your name only.

Personal views again.. Other will join in soon
6.  Attend court to postpone this hearing. The court will allow. Meanwhile, try to reach an amicable settlement.

7.  Read on another case @ RoseRose (not sure) six months ago. The varsity withdrew the bankruptcy proceedings after nego for settlement, also sponsership loans. Yours is only writ of summons. So no undue worries.
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answered on Oct 8, 2017 at 16:07
by   jeff005
edited Oct 8, 2017 at 16:14
by   jeff005
@ Sharil

1.  You have to file a Notis Kehadiran in court fast. A sample copy is available in William's Chan book. If there is no time, those court counters which have e-filing would have a standard format but you have to ask them nicely. Sometimes out of stock.. hahaha

2. The Avengers Malaysia have ladies too, not only Gents. Those sensitive ladies may get hurt and may not comment. The Avengers are multiracial, of different religions incl Atheism.

3. The fact this case has been postponed twice by the plaintiff, could mean that there could be defects. So,
Hakuna Matata
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answered on Oct 8, 2017 at 16:19
by   notalawyer
edited Oct 30, 2017 at 10:12
 
Hi Sharil,

1) Can we ask the plaintiff to postponed the hearing date as we are still waiting for approval from their committee.
If you are the plaintiff, why should you postpone when you can win first and then use the Judgement as a tool at the negotiations.  To postpone will also increase the legal costs for the plaintiff.
This is why you have to attend the Court to fight it.

Prepare your Notis Kehadiran and post it here asap.   Do not delay.
Then you need to file it at the Court counter.  Do not wait until the hearing date.

She was a minor when the agreement was made.
No contract can be binding on a minor.

However, it is binding on the Guarantors.
Fortunately, they are Social Guarantors so they cannot bankrupted unless your wife is bankrupted.
So if your wife cannot be bankrupted due to "no contract can be binding on a minor",
the guarantors are fairly safe.
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answered on Oct 8, 2017 at 17:07
by   Sharil
edited Oct 8, 2017 at 17:12
by   Sharil
Hi @jeff @notalawyer

Thanks for your inputs. I appreciated that.

1.  Being a minor does not discharge her of being sued. Sponsorship study loans is for self enrichment. 
2.  Unlike Hire Purchase Agreements, there is no need to sign on every page. 
A: Noted on your points above. It seems like it would be an uphill battle to fight with the company in this situation. Therefore, fter talking to one of the officer in the JBG (Jabatan Bantuan Guaman), they also suggest us to negotiate with the plaintiff directly on the repayment plan that we can afford as the court only decide on the judgment. For reduced payment and/or installment plan still up to the plaintiff to decide/agree. Finally, we decided and sent an appeal letter to settle out of court for a reduced payment in lumpsum or in installment payment which we hope they will agree. 

3.  There is no need for lawyers services. This is a straight forward case. You can Self Represent with guidance from the honourable Avengers Malaysia. 
4.  You have to attend court and seek postponement. 
A: For the time being, we didn't intend to engage any lawyer and yes, we understood that it is pertinent that appearance to be filed in court within the prescribed time to avoid JIDA.

5.  Your wife does not qualify as social guarantor. This is where she lives and she is not being sued for this housing loan. The most the bank would do is to recall the loan or get you to tambah another guarantor. If your payments is good, the bank will do nothing to it. It is under your name only. 
A: I mean Social guarantor are the guarantor that signed the sponsorship agreement with my wife. Will they be bancrupt also if the plaintiff insist on legal proceeding till banckruptcy as the guarantors also mentioned in the writ summon as second defendant & third defendant. But it have been clarified by @notalawyer.

7.  Read on another case @ RoseRose (not sure) six months ago. The varsity withdrew the bankruptcy proceedings after nego for settlement, also sponsership loans. Yours is only writ of summons. So no undue worries.
A: Thanks for the lead. Will search for it, read and gone through it

2. The Avengers Malaysia have ladies too, not only Gents. Those sensitive ladies may get hurt and may not comment. The Avengers are multiracial, of different religions incl Atheism. 
A: Understood and sorry for that. Will include ladies in the next post at I cant edit it anymore. Hopefully no one will get hurt on my post.

Prepare your Notis Kehadiran and post it here asap.   Do not delay. 
Then you need to file it at the Court counter.  Do not wait until the hearing date
A: Noted @notalawyer. Will prepare notis kehadiran and post it here.

No contract can be binding on a minor. 
However, it is binding on the Guarantors. 
Fortunately, they are Social Guarantors so they cannot bankrupted unless your wife is bankrupted. So if your wife cannot be bankrupted due to "no contract can be binding on a minor", the guarantors are fairly safe.
A: Thanks for clarifying on this. Unfortunately, the date on the soft copy of the contract that we received recently were left blank and did not mention any date. But after we gone through the Writ Summon, the date mentioned for the contract stated otherwise where my wife have attained age 18.

Thanks again. In the interim, I will prepare notis kehadiran & try to explore/negotiate with them on the best settlement options
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answered on Oct 8, 2017 at 17:10
by   jeff005
edited Oct 8, 2017 at 17:18
by   jeff005
@ Sharil

I suggest you bring in the other 2 guarantors too. Work as a team.
Although it is over the treshold bkcy limit of 70k, and if any bkcy proceedings is initiated, it could be defective.... 
But
If the 2 other Guarantors are made Judgement Debtors on this writ summons, other actions like WSS, beku bank accs, can be initiated. The pressure can be on your wife and you..!!! They will come after you two if they are relatives.

Any successful settlement in this writ Must include the other 2 Guarantors.
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answered on Oct 8, 2017 at 17:24
by   jeff005
PDF and JPEG the writ and email me. I will fwd to notalawyer.
Postpone this hearing then find me after 28.
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answered on Oct 8, 2017 at 17:54
by   Sharil
edited Oct 8, 2017 at 18:17
by   Sharil
Hi @jeff005
Noted on yours above. Will try our best to settle this case without the guarantors are made as JD.

@notalawyer @jeff005
I have prepared the notis kehadiran as below, can correct me if i did wrong. I'm abit confused wether shall I include all the defendant name in the same Notis Kehadiran or prepare for each defendant? We only manage to contact second defendant (my mother in law) but not the third defendant. If only 2 defendant attending the hearing will it be ok if I file the appearance for all the defendant (i assume other people can file on behalf of defendant). 
Will go through the William Chan book the moment i got it this monday.

Understood that after filing appearance, I still have to file SOD and serve the plaintif's lawyer within 14 days after appearance have been made.. can it be done after the hearing if it still within 14 days period?

*********************************
Dalam Mahkamah Magistret Di Seremban 
Dalam Negeri Sembilan, Malaysia 

WRIT SAMAN NO: XX-XXXXXXX-XXX-XX/2017

                     Antara

AAA (S) PTE LTD (XXXX-M)                          ................Plaintif

                   Dan

1. DEFENDAN (xxxxxx-xx-xxxx)     
2. DEFENDAN (xxxxxx-xx-xxxx) 
3. DEFENDAN (xxxxxx-xx-xxxx) 
              ................Defenden-Defenden

NOTIS KEHADIRAN 

Kepada Pendaftar,
       Masukkan kehadiran untuk (Nama Defendan).......... dalam tindakan ini. AMBIL PERHATIAN bahawa defendan mempertikaikan tuntutan Plaintif.

Alamat saya untuk penyampaian ialah 
xx, xxxxxxxxx, 
Xxxxxxxxxxxxx, 
71800, Nilai,
N.Sembilan 
Tel: +6019-xxxx-xxxx 

Bertarikh pada 9hb.Oktober,2017

...................... 
Defendan 
***********************************
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answered on Oct 8, 2017 at 18:37
by   Jeff
All defendants must file separately.
No 3rd party filing, unless represented by their own lawyers.
Find the 2nd defendant fast.
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answered on Oct 8, 2017 at 18:39
by   jeff005
Separate filings for individual defendants.
All must attend the court case and make the same request for postponement.
No 3rd party filing of notis. Must go personally. No on behalf unless it is an appointed lawyer who will/ can attend the hearing on behalf.
This is to allow Lawyers to make moneys.
Depending on the type of cases and reputation of lawyers firm, per court lawyer attendance fees can be rm300 to rm500. Rm3,000 for drugs cases.
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answered on Oct 8, 2017 at 18:46
by   jeff005
I hv internet problem 
Just buat bodoh, attend and postpone this hearing first.
No time to prepare SOD. Submit later.
U hv a solid defence.?
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