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Appeal Submissions 3.0

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asked on Nov 2, 2010 at 03:05
by   notalawyer
(i) Dakwaan Defendan/Perayu di atas tidak berasas dan tidak disokong oleh apa-apa bukti.
Appellant need not show any proof as the respondents had admitted to the allegation by choosing not to deny it in an affidavit.
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answered on Nov 2, 2010 at 03:21
by   1818
@notalawyer,

Which part should I add in this... Appellant need not show any proof as the respondents had admitted to the allegation by choosing not to deny it in an affidavit.

(i) Dakwaan Defendan/Perayu di atas tidak berasas dan tidak disokong oleh apa-apa bukti.

Appellant need not show any proof as the respondents had admitted to the allegation by choosing not to deny it in an affidavit.

* * * * *

So I shouldn't print out the written sub. yet? (I'm taking a bus to KL tomorrow, I need to leave home to catch the bus latest by 2.30 p.m.)

By the way, is light PURPLE (lilac) colour paper ok?
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answered on Nov 2, 2010 at 03:22
by   notalawyer
(ii) Plaintif/Responden berhujah bahawa Plaintif/Responden telah menolak tawaran pembayaran yang dibuat oleh Defendan/Perayu kerana amaun pembayaran yang ditawarkan oleh Defendan/Perayu adalah terlalu rendah. Plaintif/Responden menegaskan bahawa Plaintif/Responden berhak untuk menolak pembayaran sebahagian dan/atau kekurangan oleh Defendan/Perayu sebagai penyelesaian jumlah yang wang terhutang dan kea dibayar oleh Defendan/Perayu.

Respondent is trying to twist the facts by saying the payment offer is too low.
The payment that was refused full settlement payment and not a partial payment.
Please refer to affidavit, page XXX on the appeals record.
Respondent has no rights to refuse full settlement payments.


(iii) Plaintif/Responden juga berhujah bahawa Plaintif/Responden mahupun Defendan/Perayu tidak harus dibenarkan untuk membangkitkan isu berkenaan tawaran dan/atau penyelesaian di antara kedua-kedua pihak yang dibuat tanpa prasangka (“without prejudice”) apabila tiada persetujuan dan/atau penyelesaian dicapai di antara kedua-dua pihak.

To reply paragraph (iii), the appellants state that offer to pay in full and the wrongful refusal to accept payment was not a negotiation but an incident that had happened. How can it be a "negotiation" when the creditor has no rights to refuse full settlement payment?
Because what transpired was not a "negotiation", there is no question of "with or without prejudice at all".
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answered on Nov 2, 2010 at 03:27
by   notalawyer
Light purple is ok.

The Skeletal Written sub should be as I had printed earlier.  Don't add anything to it and don't change appellant to appellant/defendant as you will will have difficulty reading it out loud.

All the other argument I had written should be printed in a separate branching argument sheet which will also be used when you give your final rebuttal speech.  Do not give a copy of this sheet to the judge or the monkey.

We are running out of time, I still need to give you some tips on the final rebuttal speech.
What time are you sleeping tonight?
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answered on Nov 2, 2010 at 03:49
by   1818
12.30 A.M. if necessary.
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answered on Nov 2, 2010 at 03:51
by   1818
But if everything is ready by 11.00 A.M. tomorrow (2 Nov), I'll still have enough time to print and copy.
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answered on Nov 2, 2010 at 04:01
by   notalawyer
TIPS ON THE HEARING DAY.

1. Before the hearing starts, talk to the monkey and tell her that you will start speaking to the judge because you are the moving party. Tell her not start speaking.  This is important so you will have the final rebuttal. (final speech)

As usual,

YOU: Dengan izin Tuan Yang Arif.
Nama sama 1818 perayu, mewakili diri sendiri.  Cik Monkey, peguamcara responden juga hadir tuan.
(Wait for judge to write down the names )
Tuan, hari ini telah ditetapkan untuk bicara rayuan defenden terhadap keputusan Mahkamah Sesyen membenarkan permohonan plaintif untuk Aturan 26A.

Pihak perayu telah menyediakan rangka hujahan ringkas.  Pass a copy to judge and a copy to the monkey.
Make sure the judge has a copy of your skeleton in front of him.
Tuan ada tak salinan hujahan ringkas saya?
Untuk menerangkan kes ini kepada Tuan yang Arif, izinkan saya bacakan Kronologi dan Fakta Kes.

After the Chronology and Facts of Case, continue reading the rest of the skeleton.
At the end of the skeleton, do not try to add oral arguments, let the monkey speak first.

What will happen next is that your issues are about chickens and the monkey will talk about ducks.
You talk about apple, they talk about orange. They simply will not talk about the issue you raised.
For example, she may start talking about "you did not receive a copy of the agreement issue" which is not an issue at all.  Their objective is to make the judge confused and tired.
So, your final rebuttal speech is extremely important to make things clear again.
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answered on Nov 2, 2010 at 04:34
by   notalawyer

10. Plaintif/Responden tidak menerima apa-apa bantahan bertulis daripada Defendan/Perayu mengenai Penyata-Penyata Akaun Bulanan yang telah diberikan kepada Defendan/Perayu. Oleh yang demikian, Defendan/Perayu adalah kini diestop dari mempertikaikan tuntutan Plaintif/Responden.


If they press on this issue, your defence would be that this issue is not pleaded in the Statement of Claims or any affidavit. Challenge the respondents to show that this issue was pleaded.
If they had properly pleaded this issue, you could have produced letters in a reply affidavit to show that you had sent them written objections to the monthly statements.
But this issue was only raised today at the appeals.
The respondents must know that no new issues can be raised at the appeals unless with written permission from the High Court.

On the other hand, the respondents are estopped from claiming that you owe them money since they already admitted that they refused full payment from you.
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answered on Nov 2, 2010 at 04:35
by   1818
Sorry, what is my final rebuttal again? Is it already here?
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answered on Nov 2, 2010 at 04:39
by   1818
If the judge has the Appeal Recod in front of him, he should have the skeleton from my 026A hearing too, right? Or should I make an extra copy of the skeleton - just in case?
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answered on Nov 2, 2010 at 05:02
by   notalawyer
The final rebuttal sheet should look something like this.

Tuan, I refer to paragraphs 1 - 9 of the respondent's written submission.
All these points are inconsequential and irrelevant, because if the respondents had accepted the full payment by the appellant, the amount owing would be zero.

I now refer to paragraphs 10 of the respondent's written submission.
(Copy and improve my arguments posted here)

I now refer to paragraphs XXX of the respondent's written submission.
This is an non-issue as it was merely an allegation in the affidavit but was not raised as an issue in the Order26a hearing, bla bla bla. (copy my arguments and clean up a bit )

I now refer to paragraphs (i) of the respondent's written submission.
(i) The appellant does not require proof of the incident as the respondents did not deny....  bla bla bla

I now refer to paragraphs (ii) Respondent is trying to twist the facts by saying the payment offer is too low.
The payment that was refused full settlement payment and not a partial payment.
Please refer to affidavit, page XXX on the appeals record.
Respondent has absolutely no rights to refuse full settlement payments.

I now refer to paragraph (iii), The offer to pay in full and the wrongful refusal to accept payment was not a negotiation but an incident that had happened. How can it be a "negotiation" when the creditor has no rights to refuse full settlement payment? Because what transpired was not a "negotiation", there is no question of "with or without prejudice at all".

CLOSING.

Tuan yang arif, as the appellant has clearly shown that the respondents have no proper answer to the fatal issue raised, the appellant asks that this appeal is granted with costs of RM 5,000 to the appellant.
( this aggressive end statement is to force the hand of the judge to grant the appeal )

Prepare the Final Rebuttal Oral Sheet and post it here.

Good Luck and may the force be with you.
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