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Negotiations Related Articles
Typically, when there is a legal dispute between parties, the trial is often the last stage that parties have to undergo to achieve an outcome. However, trials are a costly and time-consuming affair. As such, there are other methods of dispute resolution available for one to take. In recent decades, the legal landscape in Singapore has shifted and geared towards the development of the ADR sector. Two very common and popular means of alternative dispute resolution (“ADR”) is mediation and arbitration. In this article, we shall explore the arbitration as one of the other methods of ADR, after having addressed mediation in our other article.
What is Arbitration?
Arbitration is another common ADR process which involves the parties in a dispute heard before a neutral third party, such as an arbitrator, to make a decision after hearing the respective parties. This is a fundamental difference between mediation and arbitration – the outcome of mediation is dependent on parties’ voluntary decision to come to an agreement to settle, as opposed to arbitration whereby the arbitrator makes the decision. As such, if the disputing parties are unsure of what they wish to gain or achieve and are open to solutions given to them, having the dispute heard by an arbitrator to make a final decision may be more suited.
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An arbitration hearing is a more formal process than that of mediation. As such, parties and their appointed solicitors shall present their cases and positions to the arbitrator, who shall hear both parties before making a decision. This naturally would mean that there is ultimately a winning and losing party involved in arbitration and that it is a more adversarial process than mediation. As such, arbitration is commonly used in resolving business disputes.
Another issue to note would be that parties cannot be forced to attempt arbitration. Often, there are provisions or clauses in business contracts determining the dispute resolution mechanism. In such a case, if provided for, parties have to adhere to the dispute resolution provision in the business contract. However, there can be circumstances whereby it is not provided for, and the disputing parties may not agree to resolve the matter by way of mediation or arbitration. Alternatively, in cases whereby either one or both parties do not wish to attempt to participate in mediation or arbitration, disputing parties will find it more effective to commence a lawsuit in those circumstances.
Given that an arbitrator’s decision is final, binding and enforceable, disputing parties considering arbitration should also note that there are limited avenues for appeal. Ultimately, as the decision is made by the arbitrator, the disputing parties do not have as much control over the outcome like that in mediation, and that outcomes achieved often will determine a winning party and a losing party in the arbitration.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
Please consult a lawyer for specific review of your case and advise.
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What can you do if you have obtained a Judgment against a company debtor who owes you and cannot (or do not want to) repay the debts owed to you of at least $10,000.00?
One of the options available to you as a creditor is to apply to wind up the company debtor to enforce the Judgment against the company debtor.
How Does Winding Up Application Help in Repaying your Debts?
Immediately upon the winding up of the company debtor, all assets and properties belonging to the company debtor will be vested in the hand of the liquidator appointed by the Court or a trustee appointed for the liquidation of the company debtor. The company debtor will no longer be allowed to deal with their assets/properties, and any attempt to transfer their assets/property are voidable. The liquidator/trustee of the company will also be responsible for the dealing of the company.
The liquidator/trustee will then “managed” the assets/properties and distribute the assets/properties to the creditors. The liquidator/trustee has the power to sell, auctioned or to allow the Debtor to keep his / her assets/properties to repay the debt owed to his / her creditors. The liquidator/trustee will also hold the power to carry out any dealings of the company including continuing the performance of a contract entered into by the company debtor or to initiate and defend the company for and from any legal action.
Once all the assets of the company had been realized to repay all the accrued debts, the company debtor then will be dissolved.
When can you apply for winding up against the Company Debtor?
You may only apply for a creditor winding up against the company debtor if the debt owed to you is more than $10,000.00 and the company is deemed by law that the company debtor is unable to repay the debt to you.
Under the law, a company will be presumed to be unable to pay its debt if:
It failed to comply with the Statutory Demand, i.e. by failing to make good of the debt within 21 days from the date of the service of the Statutory Demand or does not set aside the Statutory Demand within 14 days (21 days if it was served to a Debtor overseas) from the date of service of the Statutory Demand;
Judgment obtained by a creditor remains unsatisfied in part or in whole; or
It is proven to the Court’s satisfaction that the company debtor is unable to pay its debt, usually when a company debtor is insolvent.
As the application for a creditor’s winding up can be complex, it may be advisable to seek legal advice before proceeding with such application.
How do you apply for a winding-up against the Company Debtor?
An application for a winding up of a company debtor can only be made by way of an originating summon application to the Court. The application must be filed together with a supporting affidavit.
You may wish to seek legal assistance to prepare the application of winding up for you. Once the order for winding up has been given, the creditors must then file their proof of debt to the company liquidator to claim their debts.
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Order of Payment
Once the winding-up has commenced and a liquidator/trustee has been appointed, the assets and the properties of the company debtor will be “liquidated” (i.e. converted to cash) before distributing the cash to the creditors. However, not all creditors will be given the same priority when the money is distributed.
Subject to the amount of funds available in the company debtor, the order of the payment of the liquidated sum by the liquidator will be in accordance with the priority as follows:
The secured creditors with fixed charges on the assets/properties of the debtor company;
“Preferential creditors” in accordance with the Companies Act (Cap. 50), and in the following order:
The cost and expenses of winding up, including the cost of appointing the liquidator;
The salaries of the employees;
The retrenchment benefits of the employees;
Any work injury compensation claim by the employees of the company;
CPF contribution due to the employee;
Payment in lieu of the employee’s vacation leave; and
The taxes due and owing by the company.
The secured creditors with floating charges;
The rest of the creditors; and
Shareholders of the company.
Why Winding Up and Why Not Winding Up?
In most circumstances, a creditor that is claiming by way of legal action and executing the Judgment against the company debtor is an unsecured creditor. As the payment of the debt will be made in full from the top of the priority list to the bottom of the priority list, debtors, especially unsecured debtors may usually not be able to obtain the full payment of the debt accrued and owing to them.
Consequently, as the company debtor will be dissolved after the winding-up, the debt will be extinguished and can no longer claimable in the due process of law.
You may, therefore, wish to obtain legal advice before pursuing by way of winding up application against the Debtor.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
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A security deposit refers to the sum of money typically provided by a tenant to a landlord when renting property or entering into a tenancy agreement. Typically, most residential tenancies in Singapore require deposits that are the total of 1-2 months’ rent but may be negotiable depending on the individual landlord. A security deposit is typically taken as a form of insurance for landlords so that in the event a tenant causes damages or breaches the terms of their lease agreement, the landlord will be able to be compensated for the loss without having to resort to going to court. Even though the security deposit must typically be refunded come the end of the lease, there have been many instances wherein a landlord illegally withholds the security deposit – in this article; we will discuss the scenarios in which your landlord is legally entitled to retain your security deposit.
Your landlord will be legally entitled to retain or deduct from your security deposit in accordance with the terms of the lease. These scenarios and stipulations would usually include:
When there is outstanding rent at the end of the rental period
Whilst is legal for a landlord to use the security deposit to offset any outstanding rent amounts at the end of the tenancy, tenants should not purposefully withhold payment of rent towards the end of the tenancy so as to compel the landlord to use the security deposit in lieu of rent payments. Tenants should also take note that landlords can commence legal action in the event costs of repair to damage of property cannot be deducted due to the security deposit being used to cover the unpaid rent.
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When there are unsettled utility bills
To cover any cleaning costs of restoring the property to a clean, rentable condition
To repair any damages or to replace property or fixtures in excess of ‘fair wear and tear.’
Most tenancy agreements will include a clause that requires tenants to keep the property and any furniture and fixtures provided in the same condition as when the rent period started, save any deterioration due to ‘fair wear and tear’. Resultingly, there should be no deductions from a security deposit to remedy ordinary wear and tear. However, many disagreements stem from the differences between what landlords and tenants would consider normal wear and tear. Normally, issues such as small marks or the natural discolouration of walls should not be borne by the tenant’s security deposit. Sometimes, tenants and landlords also disagree on the original condition of the property. It is therefore very important for tenants to properly document the condition of the property before they move in. Tenants should document any defects in the property and have their landlord acknowledge said defects in advance of signing the tenancy agreement. This will minimise any potential problems of landlords and tenants not agreeing on the damages incurred.
In the event, your landlord does not return your security deposit even when you have fully adhered to the terms in the tenancy agreement, ask your landlord to substantiate his decision. If he refuses to do so or his reasoning is unsound, consider sending a letter of demand or applying the Small Claims Tribunal if the lease is a residential lease for a period not exceeding two years, the value of the claim is less than $10,000 and if the claim is made within a year of when the security deposit should have been returned. Tenants should also check if there is a dispute resolution clause stipulated in their lease agreement and if so, they will have to follow the process laid out in the agreement.
If you have questions on the returning or deduction of security deposits, do contact us at Emerald Law where we have a team of lawyers who are experienced in property matters and regularly act for tenants in claims against their landlords.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
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There are different recourse available to those who face employment disputes in Singapore.
Ministry of Manpower (MOM)
What claims/disputes does MOM oversee?
MOM is in charge of Work Injury Compensation, Employment Infringements and other employment-related complaints.
Work Injury Compensation
Who is Work Injury Compensation for?
The Work Injury Compensation Act (WICA) covers local or foreign employees of any age or nationality who are under contracts of service or apprenticeship. It is important to note, however, that the self-employed, independent contractors, uniformed workers and domestic workers are not covered by WICA.
WICA works to provide a low-cost alternative for employees to make claims for injuries or diseases that have occurred in the workplace or transpired as a result of work-related activities. Instead of having to engage a lawyer, WICA aims to provide an economical substitute for settling compensation claims.
WICA claims cover wages lost due to medical leave, medical expenses and compensation for permanent incapacity or death. Claims must be made within one year from the date of the accident.
WICA claims can be made using the WicSubmit online service. However, all work-related accidents or illnesses and compensation for medical leave income or treatment must be first reported to your employer.
WICA claims will require you to undergo a mandatory medical assessment so as to allow MOM to calculate the compensation amount owed to you. Once they have assessed said amount, an NOA will be issued to inform you, your employer and your employer’s insurer. In the event there are no objections from either party, a compensation cheque must be issued within 21 days from the date on which the NOA is received.
If there is a dispute as to the compensation amount by any party, the objection form attached to the NOA must be completed and submitted within 14 days from which the NOA is received.
Employment Infringements
Once you have filed a report of employment infringement, a MOM officer will contact you to establish the validity of your claim and to advise you as to what steps to take next.
Other employment-related issues
To report any employment infringement issues, you may use MOM’s 24-hour online service to lodge a complaint.
Tripartite Mediation for NTUC Union Members
What claims/disputes does Tripartite Mediation oversee?
Tripartite mediation covers employment disputes such as Payment of retrenchment benefits, re-employment, employer’s breach of employment contract, non-payment of salary, infringement of statutory employment benefits and wrongful dismissal claims.
Who is Tripartite Mediation for?
Tripartite mediation serves eligible Professionals, Managers and Executives (PMEs) who are NTUC union members and their respective employers. PMEs eligible for tripartite mediation include employees who have executive and/or supervisory functions and make a maximum of $4500 a month, are members of any registered trade union and are employed in a non-unionised company.
After submitting your claim for tripartite mediation, you will be contacted by an NTUC case officer who will advise you on the process after accessing your case. Typically, before referring the case for tripartite mediation, NTUC will first seek to reach a peaceful resolution by contacting your employer. Should there be no resolution, the NTUC case officer will then assist you with lodging your case for tripartite mediation.
A session for tripartite mediation will then be scheduled between you and your employer. The session will be facilitated by a mediator from the TADM who will be assisted by Tripartite Mediation Advisors (TMAs). TMAs are typically industry or human resource experts and will help you explore appropriate avenues and provide guidance in order to help parties reach a settlement.
However, in the event that the tripartite mediation does not result in an agreeable outcome, you may choose to:
Make a claim with the ECT
Only for employment disputes with regard to statutory and contractual claims and wrongful dismissal
File a civil suit in court
For employment disputes with regard to retrenchment benefits payment that has not been provided for in the employment contract.
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Tripartite Alliance for Dispute Management (TADM)
What claims/disputes does TADM oversee?
TADM primarily provides mediation and advisory services to resolve salary-related and wrongful dismissal claims.
Who is TADM for?
Mediation at TADM is offered to salary-related claims under an employee’s employment contract or if it is covered by the Employment Act (EA) as well as wrongful dismissal claims under the EA and wrongful dismissal related to maternity claims.
TADM mediation is available to those facing the above and is employees who are not domestic workers, seafarers or public servants. Self-employed persons must make appointments to undergo an advisory session so that officers can determine if the case is suitable for mediation.
Advisory services at TADM is for employees and self-employed persons who are trying to decide on the most applicable avenue for their dispute. TADM will make recommendations on the best way to resolve the respective dispute.
For wrongful dismissal and salary-related claims, a mediation request can be made online. Employees will be required to provide details of the claim, the claim amount, and information to support the claim. If you have claims that pertain to both wrongful dismissal and salary disputes, you must file both claims separately. Non-maternity related claims must be filed within one month after your last day of employment whilst maternity-related claims must be filed within two months of the child’s birth.
For other employment disputes, an appointment must be made for advisory services at TADM.
A mediation session will be scheduled within four weeks of a request for mediation. Upon successful mediation, a written settlement agreement will be made between the two parties which can be registered as a binding order through CJTS. Registration of the binding order must be made within four 4 weeks from the date of issue of the settlement agreement. In the event mediation is unsuccessful, the TADM mediator will issue a Claim Referral Certificate for the purposes of filing a claim at the Employment Claims Tribunal (ECT).
Employment Claims Tribunal (ECT)
What claims/disputes does ECT oversee?
The ECT acts as a forum for employees and employers that have salary-related and wrongful dismissal disputes. ECT is only applicable when the dispute remains unresolved despite mediation at TADM.
Both parties to the dispute must be located in Singapore, and claims must be below $20,000.
Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP)
What claims does TAFEP oversee?
TAFEP primarily caters to employees who have met with workplace discrimination and/or harassment. Workplace discrimination encompasses those who have been discriminated against due to age, language, marital status, gender, race, religion and disabilities.
After the submission of an online form that details your name, contact number, NRIC and information with regard to the incident of discrimination or harassment, TAFEP may contact you with a request for further information and will then investigate the matter.
TAFEP will also educate the employer with regard to fair employment practices and to safeguard employees from discriminatory practices.
TAFEP may refer organisations that take part in discriminatory practices which do not adhere to the Tripartite Guidelines on Fair Employment Practices to MOM who will take appropriate action against the organisation.
Civil Court
The remedies above provide for a good and cost-effective avenues to resolve workplace disputes. However, in the event, a dispute cannot be settled; you may wish to file a civil suit.
Please note, however, that work injury claims must be filed within one year from the date of the accident. Also, if a claim has been filed under WICA, a civil suit must be filed before MOM issues your NOA. If the NOA has been serviced, you will need to file your civil suit within 14 days from the date of the service of the NOA if there are no objections. If there are objections, the claim must be filed within 28 days of the service of the NOA.
If you are facing workplace harassment, you may wish to apply for a Protection Order or file a suit through the District Court against your harasser for monetary compensation. For workplace harassment, it is highly suggested that you seek legal advice from a lawyer.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
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Typically, when there is a legal dispute between parties, the trial is often the last stage that parties have to undergo to achieve an outcome. However, trials are a costly and time-consuming affair. As such, there are other methods of dispute resolution available for one to take. In recent decades, the legal landscape in Singapore has shifted and geared towards the development of the ADR sector. Two prevalent and popular means of alternative dispute resolution (“ADR”) is mediation and arbitration. In this article, we shall explore the mediation as one of the methods of ADR.
What is Mediation?
Mediation is a typical ADR process which involves the parties in a dispute heard before a neutral third party, such as a mediator, who shall guide and expedite negotiations between parties to, hopefully, reach an agreement to settle the dispute. A significant role of the mediator is that he or she will not force any of the parties to come to an agreement; this agreement shall be a voluntary one. Parties are also actively encouraged, before trial, to attempt in a session of mediation, although parties cannot and will not be forced to do so by the Courts.
There are several agencies and tribunals available for mediation, such as the Centre for Dispute Resolution in the State Courts, and the Singapore Mediation Centre, which is located within the Singapore Supreme Court.
Pros and Cons of Mediation
More Cost-friendly
Mediation is more economical and cost-friendly for parties as proceeding for trial is more costly. From the commencement of a suit to trial can be a very lengthy process in comparison. Moreover, parties in dispute often underestimate the effects of litigation, whereby it can result in a reduction in productivity and even profits, especially for business owners. As such, the courts are highly encouraging when it comes to having parties attempt mediation; unless they cannot come to an agreement to settle or do not show any interests in attempting mediation, parties will then proceed to trial. This also gives parties an extra chance to attempt to resolve the dispute earlier without having to hear the matter at trial.
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Preservation of Relationships
As the process of mediation is naturally less adversarial and confrontational than litigation, the relationship between the parties in dispute is maintained. This is often a consideration of business owners who wish to retain good relationships for the benefit of the business in the long-run.
Confidentiality
For parties concerned with the confidentiality of the process, one can be assured that the information shall only remain with the parties present at the mediation session. There are no judgments to be released to the public and do not attract the media’s attention like that of high-profiled cases at trial. If one is concerned with one’s reputation or one’s business’s reputation, mediation is a highly beneficial method to resolve the dispute discreetly.
Other benefits of mediation in comparison to going for trial would be that in mediation, parties have to come to an agreement to settle voluntarily. As such, often it is a fairer outcome or a win-win situation for both parties, instead of leaning heavily to one winner, with the other party deemed to have lost the suit. However, one should bear in mind that this is not a guaranteed outcome of the mediation. Ultimately, the ability to settle and how favourable the outcome is, depends on the disputing parties involved – how willing are parties willing to settle? That being said, it can be observed that parties may find that there is more control with mediation as opposed to a trial.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
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Discrimination and prejudice are painful things to experience, and it can come in many different forms. What happens if such discrimination and prejudice happen to you at your workplace? You may be ostracised at work by your superiors, or your salary withheld for vague reasons or may have your benefits and entitlements deprived.
In Singapore, employers may generally terminate employees at will, and there is no legal obligation on the employer to give the reasons for termination to the employee. However, that does not mean that you cannot have a claim against your employer.
Due to changes in the Employment Act, the meaning of dismissing now also includes the situation where the employee was forced to resign due to the action or conduct or omission of the employer. This means that the resigning employee can bring a claim for wrongful dismissal under the ground of Statutory Constructive Dismissal.
What is constructive dismissal
Constructive dismissal refers to a situation where an employer has breached the employment agreement with the employee in a manner that would mean the employment agreement can no longer function effectively. It is a serious enough breach that the employee is forced to resign. Therefore, despite the employee being the one who terminates the contract, the employee is considered as having been ‘constructively dismissed’ by the employer.
Proving constructive dismissal
Previously, before the amendments, it is for the employee to prove that:
There was be a breach of a fundamental condition of the employment agreement;
The employee must have accepted the breach;
The breach must have caused the employee to leave his or her employment.
After the amendments, what the employee now needs to prove is similar. The employee needs to show that the resignation was not voluntary but was forced to do so due to the conduct or omission of the employer. This can be in the form of multiple instances of such conduct or omission or a single instance of such conduct or omission.
An illustration is as follows:
A had informed her employer of her pregnancy. She had worked for her employer for four years. The employer did not pay A from when she informed her employer of the pregnancy, removed her from the workflow, and did not pay her maternity benefits stated in the contract. As a result, A resigned from the company.
The scenario envisioned above may be sufficient to constitute a ground constructive dismissal under wrongful dismissal as A was no longer able to perform her function and was not being paid, and her maternity benefits were not paid. A resigned due to these acts.
What this means is that it is now easier to bring a claim for wrongful dismissal on the ground of statutory constructive dismissal under the Employment Act where the employee chooses to resign rather than wait to be terminated where the employer creates a condition or environment of employment that causes the employee to resign.
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What you can do?
If you have been the subject of such a hostile environment, you may be able to bring a claim for wrongful dismissal under the ground of statutory constructive dismissal under the Employment Act. An employee who was forced to resign can apply for reinstatement or compensation instead of reinstatement.
However, it is crucial bear in mind that if the dismissal were effected with notice or payment instead of notice in accordance with the terms of the employment agreement, even though no reason was given for the dismissal, this dismissal would be presumed not to be wrongful. The employee must be able to prove that the dismissal was wrongful.
When dismissal is not wrongful?
Under the guidelines provided by the Tripartite Guidelines on Wrongful Dismissal (“Tripartite Guidelines”), there are certain scenarios where dismissals are considered legitimate. They are:
Where the employee commits some form of misconduct
e.g. theft, dishonesty at work, bringing the organisation into disrepute, insubordination; the Tripartite Guidelines further state that misconduct is the only permissible ground for summary dismissal;
The employee performs poorly consistently
i.e. the poor performance is documented in performance reviews, and the employee failed to improve despite reasonable chances to do so; and
Redundancy
e.g. where the employer has excess manpower or the company is undergoing restructuring, or the old job is no longer required.
However, the employer must be able to prove the relevant ground for termination. Therefore, any decision by the employer to terminate the employment agreement must be able to support the decision.
How we can help
Being unfairly treated and pressured into resigning from your employment is a painful experience, but you may have a case of constructive dismissal against your former employer. Our lawyers are experienced in these matters, and if you feel you have been harassed and bullied into resigning, please contact us. We will have a fruitful consultation with you on your available options.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
Please consult a lawyer for specific review of your case and advise.
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A letter of demand is a letter, usually drafted by lawyers, to assist the sender in making a legal claim against the recipient of the letter. While anyone can usually draft a letter of demand, a lawyer can assist in pinpointing the legal issues at hand and in providing clarity to the type of demand that are feasible and are due recoverable by the due process of the law. A letter of demand from a lawyer can also demonstrate clearly that the sender of the letter of demand is serious and is willing to take legal action to resolve the matter.
The letter of demand, therefore, must be able to show your intention, your demand and your resolve in the settlement of the matter at hand.
How does a letter of demand work?
The letter of demand will set out the claim from the sender to the recipient. While a letter of demand is generally for a claim for the monetary sum due and owing, a letter of demand can also be used to:
To carry out an obligation that had been previously agreed upon;
Ask the other party to refrain from doing something;
To ask for assurances when the sender is anticipating a breach of contract; or
To request for clarification.
Is a letter of demand necessary?
Letter of demand is not necessary to initiate legal action against the recipient of the letter. However, it is usually highly advisable to issue a letter of demand to attempt a final effort to settle the matter amicably before proceeding with further legal action.
Why letter of demand (instead of legal action)?
A legal suit is expensive and time-consuming. A letter of demand can potentially save the sender a lot of legal costs if the recipient of the letter of demand complies with the demand, or initiated a settlement with the sender.
A letter of demand can also be seen as an effort taken by the sender to attempt to settle the matter amicably with the recipient before resorting to legal action. This can help the sender to look reasonable and sincere in the eye of the court.
Why engage a lawyer to send a Letter of Demand?
Before proceeding with a Letter of Demand, it is advisable to seek legal advice in respect of your claim to understand the viability of your matter. The due process of the law can recover not all claim or action, and as such, it will be best to ascertain the strength of your claim before proceeding. The lawyer can also assist you to give you a better understanding of the outcome of your matter if you choose to proceed to issue the letter of demand.
A lawyer may also assist you in providing a clear and reasonable claim in your letter of demand to help in any possible amicable settlement with the recipient of the letter of demand. A letter of demand from a law firm can also demonstrate the seriousness of your claim and your willingness to take legal action to resolve the matter. Following the issuance of the letter of demand, the lawyer can also advise you on the best steps to take after the letter of demand has been issued.
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Can a Recipient ignore the letter of demand?
It is usually not advisable to ignore a letter of demand, especially one that is sent by a lawyer or a law firm. As a letter of demand is a strong indication of further legal action, silence will be deemed as denial to the sender’s claim. It is therefore highly advisable to respond to a letter of demand or run the risk of the matter proceeding to the court.
What happened after a letter of demand is sent?
A good letter of demand will usually provide a deadline for a response from the recipient of the letter.
The recipient will usually reply to the letter of demand by suggesting a settlement with the sender. The senders then can counteroffer or accept the recipient suggestions. The back-and-forth process may continue until parties can find an agreed position. However, if parties are unable to agree, the sender may then consider proceeding with further legal action.
If no response is obtained from the recipient at the end of the deadline, the sender may wish to consider taking further legal action against the recipient. At this juncture, it is highly advisable to seek legal assistance and legal advice before proceeding further as the tremendous cost may be incurred from here onwards.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
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WHAT ARE RESTRAINT OF TRADE CLAUSES?
Restraint of trade clauses are common clauses which governs various commercial relationships. It is frequently deployed in employment contracts to restrain key employees of the company from competing with the company during and after the period of employment. Restraint of trade clauses are typically in the form of non-compete or non-solicitation clauses.
As restraint of trade clauses can be very restrictive in nature, the court have held that take would take a more liberal approach when assessing the enforceability of such clauses in the context of a Joint Venture or a business to business agreement as compared to a scenario where such clauses are applied to individuals in their employment contract.
WHAT ARE NON-COMPETE AND NON-SOLICITATION CLAUSES?
A non-compete clause is a legally binding document whereby an employee agrees not to enter employment with a rival company or start a business in a similar field, profession or trade for a specified period of time after leaving employment.
In the event an employee decides to work for the competition or start his/her own business, such an agreement can prevent employees from exploiting valuable and sensitive information such as trade secrets, client lists, marketing plans, proprietary technology and other confidential information.
On the other hand, non-solicitation clauses prevent former employees from soliciting away clients or other employees from the previous employer.
These clauses should always be applied to key employees in management as well as employees who come in frequent contact with sensitive and confidential information as part of their work.
ARE RESTRAINT OF TRADE CLAUSES LEGALLY ENFORCEABLE IN SINGAPORE?
Under Singapore Law, restraint of trade clauses in are prima facie unenforceable unless the employer can show that the following elements are fulfilled:-
They protect a legitimate interest of the employer;
The Court of Appeal held that there cannot be a bare and blatant restriction of the freedom to trade and there must be a legitimate proprietary interest which the court will then seek to protect by way of the doctrine of restraint of trade. Client and trade connections are considered legitimate proprietary interest in that regard. Clauses that do not protect any legitimate proprietary interests but instead seek to restrain competition may not be enforceable.
The restrictions are reasonable in the interests of the parties and reasonable in the public interest.
To establish reasonableness, the court will first consider whether the restrictive covenants was reasonable between the parties themselves, next, the court would then turn to consider separately whether the restrictive covenant was reasonable in the interests of the public. In this regard, the court will ensure the impact of local circumstances are taken into account.
Non-compete clauses that covers all employees regardless of their seniority, nature of work or level of access to confidential information is considered unreasonable. Unlimited or unreasonably wide coverage on industry, geographical scope and time will also be considered unreasonable.
The burden is on the employer to show that the restraint of trade clause fulfils both elements.
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WHAT IF A RESTRAINT OF TRADE CLAUSE IS UNENFORCEABLE?
If the scope of the clause is too wide, the courts will either, strike down the non-enforceable parts of the clause or strike down the entire clause.
Under the doctrine of discretionary severance, the court may apply a “blue pencil test” to cancel out parts of the restraint of trade clause that are unreasonable. However, this can only be done if the remaining words still makes sense and retains their original meaning, further, this cannot be used to repair an unreasonable clause if there is nothing that can be cancelled out to make the clause reasonable.
WHAT CAN BE DONE IF THERE IS A BREACH IN A RESTRAINT OF TRADE CLAUSE?
If there is a breach of an enforceable restraint of trade clause, the employer can either claim damages from the former employee or apply for an injunction to stop further breach of the restraint of trade clause.
DRAFTING AN ENFORCEABLE RESTRAINT OF TRADE CLAUSES
Although a restraint of trade clause is prima facie unenforceable, a well-crafted clause can be enforced. Generally, a clause that can be enforced is one that is reasonable.
How We Can Help You
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
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Both employer and employees have the right to contractually terminate their relationship, however, incidents have occurred wherein an employee feels that he has been wrongfully dismissed. In this article, we will discuss dismissals, the validity of dismissals and the options an employee has should such a situation arise.
A dismissal is the act of ordering or allowing someone to leave their position, and occurs when your employer has terminated your contract of service or when they have asked you to resign involuntarily. Whilst a dismissal may occur with or without notice, it is important to note that misconduct is the only legitimate reason for dismissal without notice.
A dismissal will be considered valid if it is due to reasons such as:
Unsatisfactory work performance
When an employee cannot or does not perform up to the standard which is required of them
Misconduct
When an employee engages in inappropriate work conduct
Redundancy
When an employee’s job requirements no longer exists due to changes in the company or automation
However, if an employee is dismissed or asked to resign by their employer without sufficient or just cause, a dismissal may be considered wrongful.
The Tripartite Guidelines on Wrongful considers dismissals to be wrongful when they occur due to:
Discriminatory reasons based on gender, race or age
Deprivation of an employee’s benefits or entitlements
Punish an employee for exercising employment rights due to an employee
If you are working in Singapore, it is likely that your employment is covered by the Employment Act, the Ministry of Manpower (MOM) expects organisations to comply with the Tripartite Guidelines on Wrongful, and have warned that they will take action against those who do not.
If an employee feels that their dismissal is unfair or wrongful, they should firstly, scrutinize their employment contract to ensure that they have indeed, been wronged. If so, an unfairly dismissed employee has the below options:
Option 1: Try to seek internal channels in order to resolve the matter
Employees should, first appeal to their Human Resources (HR) department against their unfair dismissal. Arrange to meet with your HR department, bring documents that justifies your case as evidence, seek to clarify any misunderstandings that may have led to your dismissal, and attempt to resolve the matter in an amicable manner, after all, the goal is to get reinstated in the company!
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Option 2: Lodge an official Complaint
Depending on the reason you have been dismissed, you may choose to lodge an official complaint.
Submit an appeal to the Ministry of Manpower
If you feel that you have been wrongfully dismissed or if you have been denied re employment due to your of age, you may appeal to the Ministry of Manpower via: https://form.gov.sg/#!/5c656ce2a1770a0010563ad4
File a claim at the Alliance for Dispute Management (TADM)
From 1 April 2019, employees will be able to resolve wrongful dismissal disputes through TADM. TADM was established in order to provide advisory and mediation services prior to a claim being heard at the Employment Claims Tribunals (ECT). You will have to first make a claim at TADM before any claims can be heard at ECT. Most employees in Singapore will come under the purview of TADM with the exceptions of domestic workers, seafarers and public officers. However, there is a minimum employment period for the following:
6 months for managers or executives who have been dismissed without notice
3 months for those who have been dismissed whilst pregnant
Depending on whether you are part of a union or not, there are 2 different procedures to file a claim:
Non-union members
Non-union members must file a claim for mediation with TADM and claims must be filed within 1 month of the last day of employment or, if you were wrongfully dismissed during your pregnancy, within 2 months of the birth of your child.
Non-union members may file a claim online with TADM using Singpass or via an appointment should Singpass not be available to you. The claim must be supported with documents such as your employment contract, payslips and CPF statements, letter of resignation or termination as well as any other documents that can support your claim.
Union members
Union members may approach your union to file a claim for mediation. Claims must be filed within 1 month of the last day of employment and NTUC members must have joined at least 6 months prior to filing a claim.
TADM will then determine if there is a case for wrongful dismissal, if so, a mediation session will then be arranged. Mediation is conducted by TADM’s professional mediators and is strictly between you and your employer.
If the mediation is successful, a settlement agreement will be issued by the mediator which can be registered as a binding order. This must be done within 4 weeks under the Community Justice and Tribunals System (CJTS) and will cost you a registration fee of $10. The employer will pay the stipulated settlement amount to you within 2 weeks or by a mutually agreed date. Upon receiving the amount, you will have to inform TADM via an Updating Payment Status of Settlement Agreement form or the ECT Order form. In the event your employer does not pay you, TADM will make a report to MOM on your behalf.
If the mediation session fails, you may then choose to bring the case to Employment Claims Tribunals (ECT).
ECT will provide for further mediation in the event that mediation at TADM fails. A TADM mediator will provide you with a Claim Referral Certificate to file an ECT claim. This claim must be filed within 4 weeks of receiving the certificate.
ECT Mediation can result in these possible orders:
Reinstatement by the employer and the employer to pay income lost from the date the wrongful dismissal occurred to the date of reinstatement
Compensation by the employer for wrongful dismissal
Claim to be dismissed
In the event that your claim is unsuccessful after ECT mediation, your final option is to consult a lawyer and file a civil claim in the Magistrate’s court. At Emerald Law, we have lawyers who are experienced in handling employment related matters in Singapore. Contact Us today to schedule a free consultation where we can advise you on your situation and provide you with solutions.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
Please consult a lawyer for specific review of your case and advise.
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What is an Employment Contract?
An employment contract is in essence, an agreement of a contract of service between a company and its potential employee. This agreement can be made in writing or verbally. The terms of the agreement may also be express or implied. Both parties must enter into the contract voluntarily.
Whilst Singaporean law follows a freedom-of-contract approach where both parties are at liberty to include whatever legal terms they please, contracts must still adhere to the Employment Act. The Employment Act covers all persons including foreigners who work in Singapore with the exception of seamen, domestic workers and Government and statutory board employees.
Drafting an Employment Contract
When drafting an employment contract employers must take care to ensure that in the scenario the position is covered by the Employment Act, all required terms stipulated in the Act are included in the employment contract. These terms may include salary, overtime, maternity, paternity, annual and medical leave as well as childcare. The Employment Act also sets out specific mandatory guidelines for employment contracts which include stipulations that salary payments be made at the minimum of once a month and that holiday in lieu are given should work on a public holiday be required.
If an employment contract does not follow the Employment Act in Singapore even though the said employee is covered by the Act, the employer will be found guilty of a criminal offence which is punishable with a fine of up to $5000, up to six months in prison, or both. Repeat offenders could face fines of up to $10 000, up to 12 months in prison, or both.
It is important to note that whilst it is not mandatory for employment contracts to be in writing, it is advisable so that both parties are fully informed of their respective obligations and rights. Furthermore, employers must note that if the position in question falls under the Employment Act, and the employment is for 14 days or more, the Employment Act mandates that employers must disseminate a written list stipulating key employment terms. Failure to do so could lead to a fine of $100-$200 per incident and/or a an order from the Ministry of Manpower to rectify the breach. Failure to comply with a MOM order will constitute a criminal offence punishable by fines up to $5000, imprisonment of up to 6 months, or both.
Altering an Employment Contract
Terms of a contract can only be varied once a contract is formed if both parties agree to the changes.
Whilst there are many reasons why the terms of an employment contract may be altered (the most common being a change in salary or role), for the sake of clarity and fairness, these amendments should be made in writing and signed off by both the employee and employer.
Terminating an Employment Contract
If either party to an employment contract wishes to terminate an employment, terms stipulated in the employment contract must be followed. In the case an employment contract does not have a termination clause, the courts will imply a reasonable notice period instead. It is therefore important as an employer to include your desired notice period when drafting an employment contract.
For contracts that fall under the purview of the Employment Act, either party to the contract may terminate the contract without reason or notice if either party has breached a term of the contract. In lieu of notice, contracts under the Employment Act may be terminated by payment of salary.
Breach of Employment Contract by an Employee
In the event an employee does not perform the duties he or she is obligated to under their contract, an employee may file a civil suit to sue for breach of contract and obtain damages. Competently drafted contracts would include provisions that stipulate “liquidated damages” that a party that breaches a contract will have to pay. Compensation clauses must be well drafted as in recent years courts have held such compensation clauses to be unenforceable as they were disproportionate to the amount of loss actually suffered by the employer.
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Non-compete and Non-solicitation clauses
Many employers include non-compete clauses in employment contracts in a bid to prevent former employees from opening competing business or working for competitors. These clauses typically prevent employees from working in the same field for a stipulated period of time or within a certain area. Non-solicitation clauses serve to prevent ex-employees from soliciting clients or employees from the employer’s business.
These clauses are also known as restraint of trade clauses and are only enforceable in Singapore if:
(a) The non-complete clause protects a “legitimate proprietary interest” of the employer
(b) The scope of the non-compete clause is reasonable
It is thus essential that when a contract includes a non-compete clause, the employer should ensure that the clause is well drafted so that it meets enforceability requirements and it will, accordingly, be enforceable in court should there be a violation of the clause.
Non-disclosure Agreements
Non-disclosure agreements (NDA) are legally binding contracts in which one party undertakes a responsibility not to disclose information that has been deemed as confidential. This is especially important when an employee’s role allows for him to have access to trade secrets, personal information, or proprietary information that may harm business should it be leaked.
There are no restrictions as to the types of confidential information that is protected under an NDA.
In the event an employee breaches their NDA, the employer will then be allowed to claim damages or seek an injunction to prevent future breaches of contract.
How We Can Help You
At Emerald Law, we have lawyers who are experienced in handling employment related matters in Singapore. Contact us so that we can schedule a free consultation for you in order to advise you on your matter.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
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Seeking and securing a tenancy with a landlord is often thought to be a tedious and troublesome process. One may think that this process ends the moment one has moved into the rented property. Many a times, however, tenants find themselves encountering problems at the end of their tenancies, whereby landlords have been unscrupulous and unreasonably withheld their security deposits.
If you have and/or are concerned with the return of your security deposit, read on to find out what you could do.
What is a Security Deposit?
A security deposit is a one-time, refundable sum of money that a landlord would typically collect from a tenant to protect a landlord financially from damages to a rental or leaves unexpectedly without paying rent, whereby a landlord can then off-set from the said security deposit.
Although it is not required by law, it is typically for landlords in Singapore to collect a security deposit that is equivalent to one or two months’ rent. Often, this is decided by the landlord and depending on price of the property, and furniture and tenants, take for example, a property that is rented to a group of students, that may be considered high-risk, the landlord may ask to secure a higher amount of security deposit.
This security deposit is then refunded to the tenants when the rental period expires. Should any deductions made by the landlord due to damages to the rental property during the tenancy period or unpaid rent, the landlord can set-off the monies used to rectify the damages or rent and the balance of the security deposit, if any, is returned to the tenant.
Can My Landlord Deduct From Security Deposit For Wear And Tear?
Ordinary ‘wear and tear’ includes small scuff marks on walls, or the reasonable wearing down of furniture, such as a blown light-bulb or reasonable fraying of carpets. Generally, these would not constitute as damages to the property to amount to a deduction of the security deposit. It is for the landlord to bear the cost of routine refurbishment, such as painting of the walls.
So What Can I Do If My Landlord Does Not Return My Security Deposit?
One may think that in order to prevent a situation whereby a landlord withholds the return of the security deposit, one can intentionally withhold the payment of rent towards the end of tenancy. However, this will constitute as a breach of contract and the landlord may commence legal proceedings against you for the said breach, if he is able to show some proof of damage. An example of such would be, a landlord shall be eligible for a claim for damages to the rental property, if the security deposit has been used to fully pay up the unpaid rent.
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Commercially, however, there may be situations whereby a tenant may wish to withhold the last month’s rent, although in breach of the tenancy agreement. Such situations could involve dealing with a dishonest or exploitational landlord, whereby a tenant is concerned that his security deposit will not be returned. In such circumstances, a tenant may wish to consider withholding the rent for the final month, and have the security deposit to cover the said rent, provided that there are no damages to the property.
For the avoidance of doubt, one should consult a lawyer to determine if one should withhold the rent for the final month, as each case could differ.
When Does My Security Deposit Gets Returned?
Although there are no strict deadlines imposed on landlords as to the return of the a tenant’s security deposit, it is generally not atypical for landlords to take from anytime between a week to a month. This allows for the landlord to assess the damages (if any) to the property and to make any rectification of the damages, which can then be set-off against the security deposit. To avoid any delays, it would thus be advisable for parties to include a clause within the tenancy agreement that imposes a deadline on when the landlord should return the security deposit.
What Do I Do When Security Deposit Is Not Returned?
Should the landlord refuse to return the security deposit within the stipulated timeframe as set out in the tenancy agreement, despite you having fulfilled your obligations, you may demand for the landlord to provide you with reasons and substantiate any deductions made with any receipts or invoices in relation to repairs of damages to the property.
However, if the landlord refuses to provide the above, you should engage a lawyer to have a letter of demand sent to the landlord, whereby your demands for the security deposit or actions in relation to the same can be set out. Generally, this is an affordable and efficient method to compel a landlord to return the monies.
Should a landlord persist in refusing the return of the security deposit or you are unable to afford engaging a lawyer, you may file your claim with the Small Claims Tribunal (“SCT”) if your claim is under $20,000, for a nominal fee. If the tribunal makes a finding that your security deposit has been wrongfully withheld, an order shall be made on the landlord to return the said deposit to you. However, if you are a foreign expat in Singapore, you should note that your physical presence is required in Singapore, should you wish to file a claim with SCT.
At Emerald Law we have lawyers who are experienced in handling landlord and tenancy related matters in Singapore. Contact Us today to schedule a free consultation where we can advise you on your situation and provide you with solutions.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
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IS MEDIATIONS USEFUL IN HELPING ME RESOLVE MY CASE?
WHAT IS MEDIATION?
Mediation is a method of non-compulsory dispute resolution involving a neutral third party (a mediator) who tries to help the disputing parties with a view to facilitate a resolution of the whole or part of a dispute.
Mediation aims to:
Identify the issues in dispute.
Explore and generate options and solutions.
Allow parties to communicate freely with each other.
Helps the parties to voluntarily reach an agreement.
In family disputes such as divorce, child custody arrangements, maintenance, division of assets, care of mentally incapacitated persons or distribution of a deceased’s assets, mediation serves to help resolve family disputes in a less acrimonious way.
This is because when such disputes are brought to the Court, they can be a very expensive, traumatic and miserable experience for the parties involved. Often, the judgment by the Court does not ultimately resolve the relational aspects of the dispute.
Mediation sessions are conducted in English. A translator can be provided by the Family Justice Courts for translation in Mandarin, Malay or Tamil.
WHAT ARE THE ADVANTAGES OF MEDIATION?
Unlike Court proceedings, mediation is a non-adversarial and non-confrontational process. It allows the parties involved to avoid the emotional trauma and stress of undergoing a contested hearing in Court.
It assists parties in finding a practical and acceptable solution by taking into account the parties respective concerns and objectives without deciding who is right or wrong. Parties will likely be happier with terms that they have agreed upon themselves as there are no “winners” or “losers” in a mediation.
Parties may have more flexibility to make certain arrangements that may not be possible in court as a Judge may not be aware of certain practical consequences that parties might face.
Mediation sessions are confidential and conducted on a without prejudice basis. All communications made in the course of mediation will be treated in strict confidence and will not be admissible in any court unless otherwise stipulated by law.
Resolving a dispute at mediation is generally less expensive and faster than if a matter proceeds to trial.
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WHAT IS THE MEDIATION PROCESS LIKE?
At the start of the mediation, the solicitors of the respective parties will introduce the parties and set out the background of the matter to the mediator. The mediator will ascertain from each party their views and positions on the dispute.
The mediator then summarises the issues and the respective positions of each party. Parties are then given a chance to confirm or dispute the mediator’s summary. The mediator will try to de-escalate any tension so that meaningful progress can be made in the mediation.
The mediator will proceed to facilitate the negotiation process between the parties. This is done by explaining and pointing out any impracticalities of the proposals and any exaggerated or impossible positions of the parties.
In certain cases, the mediator will give an indicative assessment of the case as well.
Any consensus reached during the process can be recorded as a draft agreement wherein if an agreement can be reached between parties, the terms of the agreement will be recorded before the mediator who may sit as a Judge as a consent order and become binding to both parties.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
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What Is A Shareholders’ Agreement?
A shareholders’ agreement is a contract between the persons (or even companies) who are parties to it, and set outs and regulates the different rights, powers and obligations of various parties. These include shareholders, directors and, if applicable, investors of the company.
A shareholders’ agreement may be enforced in other jurisdictions so long as it is set out inside the agreement and agreed upon. In Singapore, shareholders’ agreements are governed by Singapore Contract Law.
Where there is no shareholders’ agreement in place, the relationship of shareholders between themselves and with the company are governed by the Constitution, or by the Memorandum of Association and Articles of Association (“M&AA”) for companies incorporated before 2014, prior to amendments to the Companies Act.
Why The Need For A Shareholders’ Agreement If There Is A Constitution or M&AA?
Where not covered by the Constitution, a Shareholders’ Agreement may supplement it by implementing additional rules and regulations, and sets out the understanding of the various business parties.
More importantly, as a general rule, only the parties to a contract can sue or be sued under the contract, as it only binds only the parties who sign the agreement and can only be altered by the same contracting parties.
Highlighting Some Advantages Of A Shareholders’ Agreement
No.1 – As a shareholders’ agreement can introduce any new rules or regulations that were not incorporated into the Constitution at the time it was written, it allows for changes and flexibility to accommodate the growth and changes of the company.
No.2 – Unlike that of a Constitution, the shareholders’ agreement is confidential and not available for public viewing.
No.3 – The Singapore laws do not prescribe any limit on the term of a shareholders’ agreement.
No.4 – A shareholders’ agreement can be drafted and signed at any point of time of the company’s life-span.
No.5 – Although the shareholders’ agreement is not mandatory document, it is still highly recommended for incorporated companies with more than one shareholder. This is to ensure that all shareholders are informed and aligned as to what they are contracting into. A shareholders’ agreement allows for shareholders to gain all prerequisite knowledge they require before buying into the company.
No.6 – As shareholders’ disputes are largely common, a shareholder’s agreement minimises disputes and streamlines the process and procedures for dispute resolution. This will prevent unnecessary legal action amongst shareholders or against the company.
No.7 – A shareholders’ agreement can also protect shareholders’ rights as it is typical for a shareholders’ agreement to set out specifics such as shareholders’ voting rights. Minority shareholders in particular can be made aware of their rights and be assured of protection, if properly set out in the shareholders’ agreement.
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For business owners, here are some questions that you need to ask yourself;
“Are you a shareholder of a company?
Do you have a shareholders’ agreement signed and set in place or are about to sign one?
Do you have concerns about your shareholders’ agreement?
Or do you not have a shareholders’ agreement and is concerned about the necessity of having a shareholders’ agreement drafted?”
If any of the questions above apply to you, feel free to consult us. Our lawyers at the firm are experienced and more than happy to provide you with our services for consultation, advice and drafting shareholders’ agreement.
Beyond shareholders’ agreements, our lawyers at the firm are also experienced with dealing with businesses of all sizes. Should you have any enquiries regarding shareholders’ agreements or other corporate related matters, feel free to contact us.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
Please consult a lawyer for specific review of your case and advise.
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The law is an extensive domain that covers countless legal issues. One of the common areas is Commercial Litigation. Commercial litigation is a general term that encompasses and describes any kind of dispute that arises from business related matters.
All You Need To Know To Have A Better Understanding of Commercial Litigation
It covers any dispute between businesses or companies. This form of litigation refers to two or more parties trying to solve a conflict that involves business transactions by appealing through to the legal system.
As such commercial litigation is an umbrella term applying to any business related issues.
Some examples of such issues are such as breach of contracts and agreements, partnership disputes, shareholder issues and many more. Legal services for business are usually required in all these cases.
Aside from commercial litigation, other legal services for business such as contract/agreement reviews, tax advice, and form fulfillment and filing are just as essential.
What Can A Commercial Litigation Lawyer Do For Me?
A commercial litigation lawyer is a legal professional that represents a company’s interest in their financial issue within the business or any disputes that may arise related to the business.
The lawyer’s objective and goal is to defend the company’s rights and do their best to achieve the best possible outcomes at the end of the litigation process.
When you get in touch with a commercial litigation lawyer, the first thing he/she will do is to listen to your issue and assess how to go about resolving it.
You will be required to answer all their questions to the best of your abilities and provide relevant evidence so as to help them get a better understanding of your situation and better plan on how they should tackle the issue with you.
You might be seeking for a representative, or you might be acting as a claimant. It is in the best interest of a commercial lawyer to identify and choose the best legal option that will minimize the financial risks for your business.
Upon thorough assessment, they will then establish your claim’s potential, and inform you whether it’s best to go for a court lawsuit or an out-of-court settlement.
Either way, the lawyer’s role implies various responsibilities. They manage all the legal matters on your behalf, from proof-gathering to the actual filing.
These are some of the most common duties commercial litigation lawyers usually have to undertake during a litigation process:
conducting the initial case evaluation
drafting the necessary motions or pleadings
formulating responses to the other party’s complaint
exchanging information with the other party during the discovery process
preparing the necessary documentation for the court lawsuit
choosing the best strategy to deploy in court based on the existing evidence
presenting the case in court
negotiating with the opposing party’s lawyers during the settlement phase
appealing the case if negotiation does not work out.
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When Should I Get In Touch With A Commercial Litigation Lawyer?
Here are some of the most common examples of commercial disputes that require legal assistance:
breach of contracts
corporate disputes
fraud disputes
intellectual property disputes
debt collection
partnership or shareholder disputes
employment disputes
breach of fiduciary duty
tortuous interference
product liability claims
Most of the time, commercial lawyers are not masters of all trades, they have excellent experience in their own expertise and may not be experts in all these different areas of litigation.
Hence, it’s essential to seek a lawyer who has proven experience in the niche that interests you if you have a dispute to solve.
What Should I Look For?
Commercial litigation is a complex legal area. Commercial disputes and conflicts can lead to significant complications if they are not solved quickly. The only way to address such issues is to efficiently get in touch with a commercial litigation lawyer.
Here is what you should look for when in search for experts;
1 – Competence And Proficiency
First and foremost, when you are looking for your future commercial litigation lawyer, you must ensure that you choose someone that has significant expertise in this niche. Working with a lawyer who is not specialized or trained in this specific area might compromise the outcome of your results.
Run a background check before you make the decision to sign a contract with a litigation lawyer. Look up for the name of your lawyer in the local directory and court records to have a broader view of their experience and repertoire.
2 – Excellence And Positive Reviews
Subsequently you will have to check your lawyer’s reputation. Surely would not want to work with someone who is inexperienced and also difficult to talk to. Nowadays, there are multiple ways of finding out how popular a lawyer is.
Just type in their name on an internet search engine and have a look on what other clients have to say about them.
If you are searching for an experienced litigation lawyer, you should most likely find many reviews and comments related to that person’s performance and approach. Furthermore, you might also discover other peers’ opinion which will weigh heavily on your decision.
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3 – Affordable Litigation Lawyer?
After having a better understanding of the competence and personality of the lawyer you are searching for, you will probably want to know how much working with this them costs. When you are about to start a commercial litigation, financial factors play a major role before you actually decide to proceed.
If your dispute is not worth much money, you might be better off not hiring the most expensive commercial lawyer in your area. Counter check several lawyers and the costs of hiring them before you decide to work with one.
Also, you should be clear when asking for an estimated value of how much your case is worth.
You must ask directly from your commercial litigation lawyer and get them to anticipate the outcome in both the best and worst-case scenarios.
4 – Availability And Trust
When you decide to start a litigation procedure together with a commercial lawyer of your choice, you should ensure that they guide you throughout your journey. In many law firms, lawyers have a whole team with them by their side.
This team normally includes associates and paralegals who are often required to take over some of the lawyer’s cases because he or she is too busy to handle all of them.
Do not hesitate to ask whether the lawyer you’ve chosen will be the one directly in charge of your case. You should know right from the very beginning who will do the actual work and then decide whether you still want to sign with that firm or not.
5 – Transparency & Open Communication
Lastly, you need to have a clear understanding of how your commercial litigation lawyer operates and how he or she charges. Before deciding to sign an agreement with a legal representative, make sure you are fully aware of the terms and conditions that will govern the relationship you have with your lawyer.
You will be required to sign an official agreement with them and it’s crucial that you understand everything that is written in that contract. If you have any doubts, do not hesitate to ask your future lawyer to explain it to you clearly.
These are just some of the essential factors that you should take into account when selecting a commercial litigation lawyer. Besides what has already been mentioned, another point that needs to be highlighted is the importance of a personal approach.
You certainly want to work with someone who shows genuine interest in your case. So, don’t rush in to sign a contract until you feel satisfied and comfortable with the lawyer who will be fully dedicated to helping you out.
Handling A Dispute With Business Partner, Customer or Supplier?
Before taking any action, you should ask yourself if you can settle the dispute amicably first. The other party may very well be open to negotiating a compromise. That way you can avoid unnecessary court or legal fees.
If you cannot work it out, then you might want to decide on hiring a lawyer and go to court. If the dispute is for a small amount of money, it might be better to represent yourself.
The Singapore Court System includes the State, Supreme and Family Justice Courts. If you have a civil case (e.g. a claim for breach of contract, or damage caused by negligence), the amount of your claim will determine which court you commence your action in.
In general, civil cases involving claims not exceeding $60,000 are dealt with by the Magistrates’ Courts. Claims of more than $60,000 but not exceeding $250,000 are dealt with by the District Courts. Claims above $250,000 are dealt with by the High Court.
The law does not require you to be represented by a lawyer unless you are a body corporate (e.g. a limited company or a private limited company).
The larger the dispute or the more complicated it is, and the more sense it makes to hire a lawyer. Remember hiring a lawyer means you pay the legal fees and costs of experts. The opposing party is rarely ordered to pay your expenses in litigation.
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Should I Engage A Litigation Lawyer?
Selecting a lawyer familiar with commercial litigation can quite the formidable task. You can check with other businesses about who they usually hire or you can also check online to find out what lawyers specialize in commercial litigation.
For some disputes it is far less expensive to just do it yourself. For other matters, they may require a lawyer. who has your best interest at heart.
Cheating Case Or Just A Breach Of Contract?
The most common conflict found in businesses are that of a breach of contract. It means to say someone failed to follow through on a promise. It could be as simple as not paying a bill, or it could be poor workmanship, or even misrepresentation of what someone’s goods or service.
Disputes can also be two sided, one party may claim they were cheated, and the other party make the same allegations. For example, a supplier may demand $20,000 for delivery while the recipient counterclaims that the product was shoddy and cost them loss of customers and so on.
Do You Have Enough Evidence?
Your lawyer will need to see the relevant evidence and documents, such as contracts or proposals. The most difficult suits to litigate are those where the parties have a verbal agreement and expect the court to enforce it, and the two parties have completely different memories of what was promised.
Court procedure normally includes an exchange of written questions and answers (interrogatories) and depositions (question and answer sessions before a court reporter. Then the matter may go to arbitration and/or mediation to avoid a trial.
Mediation or Arbitration
These are procedures where another lawyer or business person works together with the parties to resolve the issue. They can go for many days or be over in an hour. Some courts mandate them, sometimes parties prefer them, and sometimes they succeed.
If they do not, then the matter goes to court.
Experts As A Witness
Complicated matters require experts for both sides. For example, a breach of contract involving the wholesale purchase of items, could be easily resolved without an expert. The supplier shipped some items which costs a certain amount and is owed a certain amount.
The consumer has the proposal, the shipping order and proof of delivery. Obviously anyone can see that no expert is needed for such a dispute. Others might be much more complicated.
Conclusion
As a business owner or leader, you may most likely encounter business disputes and conflicts which can range from internal issues to external fights and attack profits or endanger ongoing operations.
Business disputes seldom explode immediately into full blown litigation. Instead, like all disputes, they usually begin small and snowball into a lengthy and expensive litigation.
The earlier you take proactive steps along the litigation the better off you and your business will be. Therefore, while business disputes and any litigation they spawn must be dealt with quickly and aggressively.
It is always useful to consider preventive measures that avoid disputes or at least ensure that you have developed the best defenses in advance.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
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Dispute Between Condominium Owners And Condo Management
Subsidiary proprietors or home-owners of condominiums are no strangers to the fact that there are numerous condominium by-laws to abide by. For those unfamiliar, briefly, by-laws are stipulations prescribed under Schedule 2 of Building Maintenance (Strata Management) Regulations 2005 under the BMSMA and additional by-laws may be made, or amended, pursuant to a special resolution by the Management Corporation (“MC”).
One of the many common problems that home-owners of condominiums may find themselves facing is making alterations to their home-units, such as, inter alia, the installation of windows or grilles or screens or nettings, only to be met with rejections from the MC or worse, violating by-laws and facing legal proceedings taken up by the MCST.
The Management Corporation Strata Title (MCST), also known as the managing body for your condominium, manages private properties in Singapore. These, generally, shall be heard or mediated by the Strata Title Board (“STB”), although parties may appeal to the High Court to overturn STB’s judgment.
Castle Green Condominium Case Study
In a very recent case of Low Yung Chyuan v the MCST Plan No. 2178 (the “Castle Green case”), the main dispute was whether Low Yung Chyuan (“Low”) should be permitted to install sliding windows at her yard pursuant to Section 111(b) of the BMSMA.
Citing the case of Management Corporation Strata Title Plan No. 940 v Lim Florence Marjorie SGHC 254 (“Lim Florence”), the Court had decided based on the evidence of photographs that there was a discernible difference between the façade of the defendant’s flat and that of other flats in her block, both individually and taken as a whole.
The High Court in Lim Florence held that “hether an improvement effected to a particular flat affects the façade of its building is not to be ascertained as a theoretical exercise but from the viewpoint of a reasonable observer who looks at the building from the position which is practically possible or likely.”
Despite Lim Florence not being a case on Section 111(b) of the BMSMA, the view of the court on comparing the façade comparing the façade by the flat in question with other similar flats and all the flats as a whole, was instructive to STB.
Uniformity Of The Condominium Can’t Be Preserved
In Low’s case, the STB looked at photographs and compared Low’s flat with the other units in the building. In the Castle Green case, the MC had permitted other home-owners to install yard windows, screens, nettings, blinds and even grilles of different designs even though there are guidelines on a specific design and colour for grilles.
The Board found that where the uniformity of the building can no longer be preserved and there was no benefit to be gained by the MC, it would be unreasonable to withhold consent to the improvement works.
Further, the STB held that in Low’s case, her installation of sliding windows did not detract from the appearance or is in keeping with the rest of the building, as there were other yard units with a variety of installations.
It was clear to the board that the building of Castle Green could not be said to be aesthetically uniform as screens, blinds, different designs in grilles, netting and Ziptrak were already installed. There was also no dispute as to affecting the structural integrity of the building. Thus, the onus fell on the MC to have a reasonable basis for rejecting her application, based on the facts and appearance of the buildings.
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Castle Green’s Annual General Meeting For Home Owners
Another argument raised by the MC was the issue of voting at the 20th Annual General Meeting (“AGM”) where home-owners of Castle Green had voted against the installation of the sliding windows. However, the STB held the view that motion tabled at the AGM was ambiguous, confusing and inherently unfair.
The general body had been asked to vote on two issues with one vote. Further citing the case of Zou Xiang v MCST Plan No. 2360 SGSTB 5, STB found that it was unnecessary for the MC to hold an AGM in order to decide on her installation of sliding windows at her yard, when the MC could decide on a case-by-case basis.
It was found that the MC was arguably unreasonably, in not approving Low’s installation of sliding windows at her yard when the same were allowed for ground floor units, and where installations of screens, blinds, different designs in grilles, nettings and Ziptrack were permitted.
Low’s installation of clear sliding windows could not be said to detract further the aesthetic uniformity of Castle Green. Further, there were no complaints by other home-owners with regard to Low’s sliding windows. Thus, there was no reasonable basis for the MC not to consent to or refuse Low’s application to install the sliding windows.
A WIN! But Can You Make Alterations As You Please?
But does this mean as a home-owner, one can install sliding windows or make alterations as one pleases?
The short answer will be NO. As home-owner, one still has to abide by the by-laws of the condominium. However, there are unique circumstances like that in Low’s case whereby even though the installation of the sliding windows did affect the appearance of the building, it did not detract from the appearance of the building as a whole – given that other home-owners were permitted the same. AGM is also not necessary to decide on such a matter when the MC could decide on a case-by-case basis.
For those of you experiencing issues as such, one should always seek legal advice before the matter escalates. Please feel free to contact us at our firm for a FREE consultation on your case. Our Civil Litigation Lawyers are also experienced in handling other common disputes regarding MCST and the STB.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
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The Fundamentals Of Breach Of Contract
A well-drafted contract can often prevent or resolve a dispute before the parties take their dispute to court. But when both parties cannot resolve their issues, and resort to litigation, it is important to understand the rules governing the breach of contract claim.
While some breaches are avoidable with detailed negotiations and well-drafted document, others are not. Poorly drafted documents and oral contracts frequently lead to disputes. It is always in your best interest to draft clear and comprehensive written contracts.
Definition Of Breach Of Contract
A contract is a valid and binding legal agreement, which could be made orally or in writing. A breach of contract occurs when one party fails to perform his or her obligations under the contract, without lawful excuse.
The pitfalls that many individuals face is that we go about our day without knowing that in one way or another, we are constantly living in a ‘contractual’ world. Some simple examples would be the way we go about our employment, the way we deal with goods and services and/or companies and even between family and friends.
Breach Or No Breach?
What happens when there is a valid and binding legal contract and you ‘think’ someone has breached a contract or you ‘think’ you have breached a contract?
The first question to ask brings us back to the definition of a breach of contract, which is when one party fails to perform his or her obligations under the contract, “without lawful excuse”.
Thus, a breach of contract, in general, could be said to constitute two (2) crucial elements:
Defaulting party must have failed to perform a contractual obligation; and
There must be no lawful excuse for the defaulting’s party’s failure to perform.
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“Lawful Excuse”
Therefore, there may not be a breach of contract under the following circumstances (i.e. lawful excuse):
1 – Discharge By Agreement:
As parties are free to agree to bind themselves to a contract, they are free to negotiate with each other to release themselves from the obligations of that contract. Some examples of these are in the contracts themselves such as notice of termination or entering into a subsequent contract of release thereby releasing parties from their obligations.
There are also situations where the obligation which has not been performed is conditional upon the prior occurrence of certain specified events.
Alternatively, parties may contractually provide for non-performance of contractual obligations following certain events not amounting to a breach, for example, in the form of a ‘force majeure’ clause.
2 – Discharge By Frustration
Where failure of performance of contractual obligations lies in events beyond the control of the contracting parties and which neither party could have reasonably foreseen, the contract is said to be ‘frustrated’.
Examples include destruction of the subject matter of the contract or even death. However, there are statutory rules which may govern such ‘frustrated’ contracts.
These are some limited scenarios which may constitute a lawful excuse. In the absence of a lawful excuse, failure to perform contractual obligations usually results in a breach of contract, which may carry consequences.
“Failure To Perform A Contractual Obligation”
A contract obligation is usually written down in the contract and it is known as an express term.
Before determining if there is a failure to perform the obligation, one must first know what the express term required the defaulting party to do or not do. Through contractual interpretation, the court ascertains the meaning of the express term as intended by the contracting parties.
Once the meaning of the express term is ascertained, the issue of whether there has been a failure to perform the obligation can then be determined based on the evidence available.
Express terms may include late performance, defective performance or simply not performing what the party has contracted to do.
Aside from express terms, there are other sources of contractual obligations such as Acts of Parliament (e.g. Sale of Goods Act) or Implied terms. Implied terms refer to terms that are “read” into the contract by the Court to fill a gap in the contract.
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Remedies For Breach Of Contract
1 – Monetary Compensation
The common remedy for a breach of contract is of course monetary compensation, also known as damages. In most circumstances, a breach entitles the innocent party to damages for losses suffered as a result of the breach.
However, there are laws governing damages such as remoteness of the damage, whether the innocent party has taken reasonable steps to mitigate their losses and whether parties are claiming for reliance loss or expectation loss.
2 – Contract Termination
A breach of contract may also entitle the innocent party to terminate the contract. However, unlike damages, not every breach of contract entitles the innocent party to terminate the contract.
The right of termination depends on whether how the term that was breached is classified by law or whether certain situations provided by the Courts when met, allows the innocent party to terminate the contract.
Hence, it is important for innocent parties to note that termination is not an automatic entitlement and jumping the gun may land you in more legal troubles.
3 – Specific Performance
Another remedy used in certain circumstances is specific performance. As the name suggests, it requires the defaulting party to perform the contractual obligations. This remedy is usually implemented in scenarios where monetary compensation is an insufficient or inadequate remedy, common in disputes relating to property or land.
To Sue Or Not To Sue?
This is is the all-important question all innocent parties face. To put it simply, the decision is yours. Nevertheless, as this article suggests, there are multiple complex factors to process and understand before commencing legal action.
Thus, it is important to consult a lawyer when facing a legal issue such as breach of contract.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
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In Singapore, an agreement which is achieved by signing a contract is the norm and so too, the standard practice worldwide. You know that you are legally bound by the terms and conditions stated on the contract.
It is imperative that you know what you are signing for. You should read every line, even the fine prints as some terms are included in the fine prints as some are not cautious enough or rather lazy to read all the terms in a contract.
Be it an employment agreement, a renovation agreement, rental agreement or any agreement that requires you to pen down your signature, requires your attention to details stated on the contract.
But what if the agreement is not written? The agreement was made verbally during a meeting or through the telephone. Can you sue based on that oral agreement that you have made with the other party?
Yes, however proving an oral agreement can be difficult. A contract can certainly be entered into orally, provided all the elements of a contract is satisfied.
They are namely as follows: that an offer has been made and accepted, there was consideration (i.e. some form of quid pro quo) and that there an intention between the parties to enter into legal relations.
The trouble with oral agreements is that it can be difficult to prove. However, this does not mean that oral contracts cannot be proved as it is possible to adduce witness testimony to try to support the existence of an agreement, as well as the conduct between parties.
An oral agreement can also sometimes be proven to exit based on documents generated subsequently, such as correspondences that may suggest or references to the existence of an agreement.
What are the elements of a Contract in Singapore?
In general a contract contains several elements, namely:
An offer
Acceptance
Consideration
Mutual agreement
Typically, when you are in a discussion and exchanging ideas, something must be written down to show understanding and also for the purpose of the discussion. Both parties would have something written down, but it is just that the contract is not done up and signed yet.
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Email exchanges or text messages following that discussion can be used as proof to build the case and as evidence to enforce the oral contract.
Conclusion
In summary, whenever you come across or entered a verbal agreement with another party, it is best to document it down as a proper agreement containing the elements mentioned above.
It can be a simple document stating the intent, what is being offered and whether you and the other party both agree to what is written and sign off on the document.
A good example is when a friend of yours wants to borrow your car for a weekend trip. In this instance, while lending your car may seemed harmless, there may be unforeseen circumstances like damages due to wear and tear or even a minor accident.
What may complicate things in the future is the cost of damages to your car. You may be able to look the other way if the damages amount to a few hundred dollars. But what if the damages amount to a few thousand dollars? Even your future insurance premium will be affected.
With a written agreement signed by both parties, the chance of you having a dispute will be lesser. Do cover pointers like wear and tear of vehicle parts. Document whether is there any current damages or scratches.
This is to safeguard both parties should a dispute arise in the future. With a documented agreement inclusive of photographs, it is easier to bring up to court of law if need be.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
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An agreement basically means a negotiated and legally binding arrangement between parties for a course of action.
There are many forms of agreements such as Non-Disclosure Agreement, Settlement Agreement, Contract, Memorandum of Understanding, Loan Agreement or Grant just to name a few.
In this scenario, let us take a look at the differences between loan and settlement agreement.
What Is A Loan Agreement?
A loan agreement typically refers to an agreement between a creditor and debtor whereby the terms of the loan granted by the creditor to the debtor are encapsulated.
Common terms in such agreements include the sum of the loan, the interest payable, the repayment terms and whether the loan is secured against any assets or backed by a guarantee from a third party.
These loan agreements are proof that both parties, that is the borrower and the lender have a commitment that the sum on loan is being used for a specified purpose, how and when the loan will be paid back as well as the interest rates being tagged to the principal amount.
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What Is A Settlement Agreement?
A settlement agreement on the other hand typically refers to an agreement between parties to resolve an ongoing dispute. Such a dispute could potentially have arisen from a loan agreement in which parties are engaged in litigation over.
Parties often enter into such settlement agreements to avoid further legal proceedings which can be costly.
It is common for settlement agreements to include a payment provision from one party to another, which could include terms not dissimilar to that of loan agreements such as a payment of the settlement sum by installments, and a default clause that accelerates payment.
For settlement agreements, even if they are not registered with the Court, they are still legally binding.
By registering with the District Court, it is made enforceable as an Order of the District Court, and this make future legal proceedings easier when compared to not having the cases registered.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
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What Is A Contract?
A contract is a legal document that binds at least two parties to one another and requires them to meet certain obligations detailed in that contract. In some instances, a contract may be terminated making it void from any legal binding. Often, the contract may be prematurely terminated by parties involved.
Generally, for an aggrieved person to have a right to terminate a contract, the offending party must have breached a term of the contract that is considered a condition as opposed to a warranty.
While there is extensive case law that help explain the difference between a condition and a warranty, it suffices for our explanation here that a term that is a condition can be said to be a one that goes to the root of a contract, whereas a warranty is a term that does not.
When There Is A Breach Of Contract
When a contract is intentionally not honored by one party or more, it is called a breach of contract and is grounds for contract termination. A breach of contract may exist because one party failed to meet his obligations at all or did not meet his obligations fully.
Issuing A Letter Of Demand To Terminate A Contract
Applying law to facts, let’s take for example that you have a long-term contract with another person for him to deliver certain goods to you every month.
However, on one of these months you are not satisfied with some of the goods you receive and realized you have already made payment for it. Arising from this you decide to issue a letter of demand to terminate the contract and demand damages.
Your termination may however be wrongful if there was only a breach of a term that is considered a warranty as opposed to a condition of the contract, and you may from this be exposed to liability for the wrongful termination.
Problems may similarly arise from the same set of facts even if you are entitled to terminate the contract because there was a breach of a condition, but now decide you prefer the contract to have continued to stay in force.
To understand this problem, it is useful to note that generally speaking, once an aggrieved party elects to terminate a contract, the contract is brought to an end and ceases to bind the parties from the time the election is communicated to the other party.
Applying this principle to a factual scenario, let’s say that after terminating the contract you realize that you would rather have not done so.
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Pursuing Civil Action For Damages And Not Terminate A Contract
Perhaps you realize that the better option for you was to keep your long-term contract going and just pursue damages for those unsatisfactory goods and not terminate the long-term contract.
You perhaps reach this conclusion after realising that you cannot find a new alternative supplier, and that pursuing the party in breach purely for damages may be of little use as it was a company dependent on you for business and will not have enough assets to pay you even if you get a judgement in your favour.
Another scenario arising from the same facts is that under certain circumstances, failing to terminate a contract but simply issuing a letter of demand for damages regarding the unsatisfactory goods may be considered an election to affirm the contract. If so, you may lose your right to terminate the contract later.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
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A Cost Effective Way To Avoid Risks When Signing Business Contracts
For Singapore businesses, engaging a lawyer is always a good idea especially if a matter involves a substantial amount of money or involves substantial risks.
For example, if you are about to enter into a large contract it may cost you far less to engage a lawyer to draft/review the agreement and advise you than failing to do so. Sadly, a lot of people that we come across, have ended up getting caught in a bad deal.
One example is when a business contract is no longer valid.
Partly because – when things started out, a lot of them rely on their feelings and trust. It’s also a known fact that sometimes, you don’t know who you can or cannot trust.
When a matter is already contentious and on its way to Singapore Court, it is always useful to have a lawyer as trying to litigate the matter yourself may be complicated.
Further, unless you are familiar with the law, a lawyer may be necessary for you to even understand whether you even have a case or not. Assuming you do not have a case, your instructions to your lawyer would be to find a way to settle the matter for you, which may be better for you to negotiate through a lawyer.
Ultimately deciding whether to engage a lawyer will require you to perform a cost benefit-analysis. In this regard, you will most likely find it more worthwhile to engage a lawyer to assist you with more important and larger matters.
This is opposed to smaller less important ones whereby it may be more cost effective to run the risk of not having a lawyer. An important consideration in this equation is of course the cost of engaging a lawyer.
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Make Informed Decision To Avoid Costly Mistakes
As this ultimately varies and depends on your matter, you should consider talking to a lawyer to find out what this cost would be so you can make an informed decision on whether or not to engage a lawyer.
Engaging a lawyer will cost you money, however doing so earlier rather than later can help you avoid making mistakes which may be more costly and more likely result you having to pay higher legal fees to resolve.
Just like seeing a doctor, prevention is better than cure, and a simple check up is far less costly than an open heart surgery.
If you are considering finding out more about how a lawyer may be of assistance for you, please feel free to contact us.
It is not uncommon for individuals and businesses to shy away from lawyers for fear that they may end up having to pay a huge bill. However totally shunning legal advice until a serious dispute arises may not be wise and can end up costing you far more in future.
A Simple Mistake Can Render A Will Void
For example, some individuals believe that they do not need a lawyer to draft their own Will, as they believe they can do it themselves.
While it is indeed true that anyone can draft their own Will, there may be nuances in the law or technicalities to comply with to ensure that the Will is made validly and is clear.
For instance, a simple mistake such as having a beneficiary sign as an attesting witness would render the gift to that attesting beneficiary void. Poor use of wordings in a Will could result in beneficiaries fighting and going to Court over the meaning of the words.
Furthermore, not all property such as CPF monies, or land held under a joint tenancy is able to be passed by way of a Will. As the cost of making a Will these days are relatively inexpensive compared to the potential trouble and expense it would cost if not done properly.
Making a Will is one example where engaging a lawyer early – makes a lot of sense.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
Please consult a lawyer for specific review of your case and advise.
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Do You Need A Civil Litigation Lawyer In Singapore?
Before we get into the direct answer whether or not you need a Civil Litigation Lawyer, let us explain the term what does civil litigation means here in Singapore;
What Is Civil Litigation?
Civil litigation is a term of art which refers to contentious Court proceedings involving non-criminal streams of actions in law.
Common disputes referred to as falling within the category of civil litigation include but is not limited to, contractual disputes, shareholder disputes, bankruptcy proceedings against individuals, winding-up proceedings against a company and claims in tort.
Such contentious Court proceeding are also commonly known as a civil suit.
Unlike criminal proceedings which are commenced by Singapore State against an accused, a civil suit is commenced by a party seeking relief from another party.
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Who Can Commence A Civil Suit And Why?
A civil suit is a means for a party to seek the Singapore Court’s assistance for an order to be made in his favour, against another party for some other form of relief.
As such, barring any special circumstances (such as bankruptcy) and provided the Singapore Court has jurisdiction, any party who has a legal basis to claim a relief from another party may commence a civil suit.
What To Consider Before Commencing A Civil Suit?
A civil suit can be an expensive and long drawn matter. As such, it is important to take into consideration the following factors before commencing a civil suit. And if you are planning to engage a lawyer, discuss these matters with them.
This will help you decide whether or not you should commence a civil suit. The factors include;
strength of your case
complexity of your case
quantum of your claim
the likely cost involved
will defendant have assets to satisfy your claim
1 – The Strength Of Your Case And Complexity
It is important to know in advance the strength of your case as well as its complexity. This will usually depend on the basis in law for your claim, and the evidence available to support your claim.
It is important to know this in advance so that you can estimate the prospect of a successful civil suit and the likely costs which will be involved.
For example; Generally, the weaker and more complex your case is the greater the likelihood the civil suit will be harder to win and the more expensive for you to pursue.
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2 – The Quantum Of Your Claim And The Likely Cost Involve To Pursue The Case
The quantum of your claim and the likely cost involved to pursue is something you will want to consider, as the cost involved in pursuing a claim may quickly erode your gains from a successful civil suit.
As such, it may not make sense to pursue a complex civil suit if the quantum of the claim is relatively small, unless your aim is to sue as a matter of principle.
To make a proper assessment, it is a good idea to try and understand from your lawyers the likely cost involved from the outset and a fee estimate in advance.
You should be aware however, that for complex matters it would be difficult for a lawyer to provide an accurate upfront estimate as it may be difficult for the lawyer to know in advance the amount of work that will be required to be done for such matters.
This will usually depend on how parties choose to litigate the matter. In these circumstances lawyers will typically inform you of their hourly charge-out-rate.
3 – Additional Costs To Pay In Civil Suit
You should also be aware that in Singapore, the losing party to a civil suit would usually be also ordered by the Court to pay the winning party some of its costs in respect of the civil suit.
This means that if a plaintiff is successful in his claim, the defendant will usually in addition to the claim amount, also pay costs to the plaintiff.
Similarly, if the plaintiff is unsuccessful in his claim, or drops his case mid-way, he will usually have to pay the defendant costs. It should be noted however, that such costs awarded would usually be insufficient to fully cover all the professional legal fees (and other expenses such Court filing fees and disbursements) that you will need to pay your lawyers.
4 – Whether The Defendant Has Assets To Satisfy Your Claim
Assuming you have considered your case carefully and intend to proceed with the civil suit, it is a good idea to also consider in advance whether the defendant will have assets to satisfy your claim.
This is because although the Court may make an Order in terms of your claim, it may end up being just a paper judgement if the defendant does not have enough assets to pay you.
For example – if you are aware that the defendant is already close to having a bankruptcy application being made against him, commencing and sustaining a civil suit against him might not make commercial sense.
It may be more efficient to simply file a proof of debt against his estate in bankruptcy. You should also be aware that in Singapore, enforcement proceedings cannot be taken against a defendant’s HDB Flat or CPF account.
You should however take with a pinch of salt, when a defendant claims that he does not have assets, as it is not uncommon for debtors to tell their creditors they have no assets to try and avoid having to make payment.
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5 – Searching For Defendant’s Assets
In this regard, you should be aware that it is possible to conduct searches on individuals and companies to try and find out what property they might own, as well as whether there is ongoing litigation against them.
These searches can thus help you to assess the situation better. You should also be aware nonetheless, that it is also not uncommon for debtors to want to avoid being declared bankrupt if possible, and the threat of bankruptcy may convince a debtor to make payment either immediately or through a negotiated installment schedule.
If you are aware and have evidence that the defendant has assets but is dissipating them to frustrate the enforcement of a potential Court order against him, then it may be open for you to consider filing for a Mareva Injunction (a court order freezing defendant’s assets) in the Singapore Court to restrain the defendant from dissipating his assets.
Getting Professional Help In Civil Litigation Cases
As the above matters may be difficult to assess on your own, you may wish to discuss these issues with a lawyer who can help you better whether or not you should commence a civil suit in Singapore.
Depending on the complexity of your case, your lawyer may charge you for providing their professional legal advice in assessing your case.
However, if your case is straight-forward it is not uncommon for lawyers to provide you with a preliminary assessment of your case for free at the initial consultation, together with a fee estimate should you wish to engage them to pursue the matter further.
Conclusion
Aside from the five issues discussed above (which is not meant to be exhaustive), you should also bear in mind that depending on the circumstances of your case there would be variety of other factors that may be relevant for you to consider before commencing a civil suit in Singapore.
As it is impossible to list down all the different circumstances and relevant factors that may be useful for you to consider. It is always advisable to ask your lawyer what are the things that matters when you want to consider a civil suit.
Do also bring to your lawyer’s attention, things that are important to you so that he can advice on how a civil suit might affect such matters.
If you find the above article informative and helpful, you may want to consider making an appointment with one of our lawyers, who can help guide you through this process so that you can make an informed and educated decision on whether to commence a civil suit.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
Please consult a lawyer for specific review of your case and advise.
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If you are thinking about lending some money to someone in Singapore, it is important to have it down in writing if you want to be able to collect your money back later.
There are many different kinds of documents that are used to manage debt, in this article, we will discuss the two most common ways, IOUs and Loan Agreements in Singapore.
What Are IOUs?
An IOU is a simple document where the debtor acknowledges the debt. It is generally viewed as an informal written agreement rather than a legally binding commitment. IOUs can be used to record the parties’ initial intentions on the loan before they follow-up with a more formal written agreement.
IOUs may or may not be binding due to its informal nature. There may be uncertainty about whether an IOU is a binding document depending on the language used in the IOU. If an IOU is not held to be binding, there may be limited legal remedies available.
Most of the time, IOUs are produced on a temporary and urgent basis to show the parties intentions and may be followed up with more formalised agreements.
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What Are Loan Agreements?
Loan agreements are formally binding signed documents that promises a sum of payment to a specified creditor. It should contain information such as how the debt was incurred, what is the total payment sum, date of payment due, instalment details and payment type. Some different types of loan agreements include “working capital loans”, “term loans”, “facilities agreements” and “personal loans”.
A good loan agreement not only encompasses the terms of the loan, but it also protects you if the borrower defaults on the loan. It should also include interests payable, repayment schedule and default consequences.
One method of protecting yourself is to get security over your loan. This can be in the form of a collateral or a guarantor. A collateral is an asset which can be used to secure the loan. If the borrower defaults on payments, the lender can take possession of this asset and sell it to recover his monies. Collateral can typically be real estate, motor vehicles, shares and stocks of companies and even jewellery.
Another way of securing your loan can be in the form of guarantors. Guarantors are typically individuals who you know have sufficient assets or cash to repay the loan. When the borrower defaults on the loan, the lender is entitled to claim this amount from the guarantor as well.
Should You Use An IOU Or A Loan Agreement?
Having read this article up to this point, you should have a pretty good idea when to use which document.
If the loan amount is small and you do not expect the borrower to default on the loan, an IOU is sufficient. It can be quickly completed and serves as a reminder to the party that there is a sum owing from the borrower to the lender.
If the loan amount is significant or if there is a possibility that the lender may default payments, you may want to engage lawyers to draft a loan agreement for you to best protect your interests.
At B Rao & K S Rajah, we have lawyers who are experienced with debt recovery and can advise you on how best to collect your debt or claim. Please contact us for a free consultation at our office.
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The information contained within this website contains general information about our lawyers, Law Firm and procedures and is not intended to constitute legal advice.
Any person viewing or receiving information from this Website should not act or refrain from acting, on the basis of any such information without first seeking appropriate legal advice.
Please consult a lawyer for specific review of your case and advise.
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