Suggestion - read the contract

Do we need more regulation of spas or other service providers? Perhaps. But part of the problem lies with customers not reading the contract.

But contracts are so complicated, you cry. Yes, but you are the one with the power of the dollar. As the recent minibond scandal has shown, sign documents without reading them at your peril. If any service provider uses contracts that are too complicated, do not sign them. If the staff makes any promises to you, write down on both copies of the contract that you are signing (on your copy and the company's copy). This is not 100% protection but at least there is some written record of the promises made to you. Spa contracts often involve thousands of dollars in fees so surely you can spare a few minutes to read the contract and question the staff if anything is unclear.

Clemen Chiang Appeal to be heard on 26 November 2009

Options trader and lecturer Clemen Chiang will be have his appeal against the decision of the Small Claims Tribunal heard in the High Court on 26 November 2009. He will successfully sued by his former students for misrepresentation over his doctorate in options trading which actually awarded by an unaccredited US university.

The name of the case is Freely Pte Ltd v Ong Kaili. Freely Pte Ltd is Chiang's company and is represented by Senior Counsel Giam Chin Toon. The case will be heard in Court 6D.

It is understood that Clemen Chiang is now running a successful website covering women's cosmetics.

Wellness chain with bad reputation

There is a well-known wellness chain about which many readers have complained to me. This wellness chain promises free sessions but attendance there is an opportunity to hardsell.

Unfortunately, for legal reasons, I am unable to provide the name of this chain. However, if any reader is angry enough to file a claim against them or any other shop, gym, contractor or seller or service provider, let me know, and I will report your claim in this blog so that others will be warned.

Exclusive sale agreement for property and misrepresentation

A reader has asked about the success rate relating to misrepresentation. I know of no statistics but I do know that taping your conversation with a lying agent is the best remedy.

For example, if the agent promises you that an exclusive sales agreement can be terminated within 7 days, even though this is not in the sale agreement, tape the conversation for your own protection. This taping method can also be used at a later stage.

Call the agent up, ask him or her about their past promises. If they admit on tape their past promises, then your case is very strong.

Another suggestion - get a friend or relative to pose as a customer to call this agent. If the agent makes the same 7-day cancellation promise to your friend/relative, again, your case becomes stronger.

Food poisoning cases

Some readers suffer food poisoning as a result of eating at a particular restaurant or fast food joint. If proven, this would be a breach of an implied promise by the food outlet to serve you hygienic food. You can claim for your medical expenses, loss of income and pain and suffering. Of course, in most cases, your damages are not likely to be in the thousands of dollars or even hundreds of dollars range.

Proof is also another problem. Because we consume numerous types of food, it is difficult to know the source of any poisoning, especially since symptoms may not occur immediately. However, if several persons eating at the same place all had the same poisoning, the case becomes stronger - in other words, the greater the number of customers affected, the stronger your case. Alternatively, if enough persons fall ill, complain to the National Environment Agency which regulates food outlets. They should be able to investigate and the results of the investigation may support your case

Defamation suits against complainants and consumers

A reader has asked whether you can be sued for defamation over your Small Claims Tribunal claim against a company. You cannot be sued for defamation as regards your claims in any lawsuit or in respect of anything you say inside court. This is called absolute privilege.

However, as regards what you say outside court - beware. The defence of qualified privilege (which is partial protection) might protect you if you make your defamatory comments only to those who have a duty or interest in receiving your comments. 2 examples of this -

a)complaints to the government regulator of the company you are complaining about;

b)complaints about the behaviour of a club or association member in relation to club matters, to fellow members of a club of which you are also a member.

Please note that being a busybody about other's behaviour may lead to you losing this protection of qualified privilege.

Casey Chua correction

A reader has corrected me - Casey Chua claimed a doctorate in psychology and not hypnotherapy.

Thanks

Options guru sells house

A source informs me that a well-known "options expert" had sold his multi-million dollar house on Sentosa. However, completion (the time when the contract is completed and most of the price is paid by the buyer) is not due for several months.

Liquidation of assets takes place often when a person is facing a liquidity crunch eg when he faces numerous lawsuits.

Hypnotherapist dies in Court

Casey Chua, a defendant in the Small Claims Court, died suddenly in the court. He was being sued by for $60,000 by 11 claimants over his claims that he had a doctorate in hypnotherapy and 25 years' practice in this field. The claimants were suing for return of their course fees and their associate fees to his hypnotherapy centre.

Mr Chua had earlier refused to show proof of his qualifications but later stated that he received his doctorate from a university (East View University) that does not appear to be accredited in the United States of America.

It is unclear if the lawsuits against him would carry on. The general rule is that the death of a defendant does not terminate a lawsuit. The claims could thus continue against Mr Chua's estate. In this case, those handling his assets (his personal representatives) would have to pay off his debts against court judgments against him before they can distribute his assets. However, the procedure is slightly complicated (for more on this area, see the Probate and Administration Act).

Getting out of a contract

Someone inquired about getting out of a contract. However, this query is extremely vague as it could mean any of the following -

a) not wanting to perform any future obligations under the contract but not wanting to have anything to do with the other party either;

b) wanting to terminate the contract and recover all of some payments previously made to the other party, because of a change of mind about wanting the benefit of the contract; and

c) same as b) except that the other party is alleged to have done something wrong under the contract.


Option b) is normally not valid since both parties have signed a contract and it cannot be changed without both parties agreeing.

a) is possible but if you owe money under the contract, it is possible that the other party may sue you.

c) is the most likely option. There are 2 main legal arguments used to terminate a contract -

1. if the other party did something wrong before the contract eg made a false statement of fact (called a misrepresentation) to you, such as telling you that certain beauty treatment was compatible with the medication that you were on; or

2. if the other party breached an express or implied term of the contract which was an important promise in the whole contract.

However, in both cases, recovering all or some of your payments will require going to the Small Claims Tribunal.

Dirty tactics

Several readers have complained about a well known spa. If any of these readers will file a Small Claims Tribunal claim against the Spa, I will mention details of the case here. It is easy to complain, but if you feel strongly about a matter, please take the time to teach the Spa a lesson.

Another reader was given a free session at a gym and was promised no hard selling tactics during this session. Of course, this promise turned out not to be true. She asked whether that was fraudulent misrepresentation. This occurs when the promising party knows that the statement made is not true. Probably such did occur since the hard selling can almost be guaranteed at some gyms and spas. However, proving damage is difficult - what loss did you suffer? It is not something serious like a person harassing you for days or weeks.

ACCA Law examination

If you have any queries relating to the ACCA Law paper, Singapore variant,

you are welcome to post to the blog -
http://accalawsg.blogspot.com/.

Depending on my time constraints, I will try to answer your queries.

True Spa - new allegations?

Some posters claim that True Spa tries to pressure its customers to buy more packages from the company.

I have no idea how persistent their sales persons are, but it is unlikely that this will constitute duress or undue influence which are quite different.

However, it is arguable but not certain that there is an implied term that any gym or spa will allow you to enjoy the facilities in peace. Extreme harassment and persistent high pressure tactics may well be a breach of the implied term allowing you to claim damages or perhaps to even terminate the contract. A lot will depend on how bad the situation is so no definite answer can be provided.

Hiring a lawyer

Should you hire a lawyer instead of using the Small Claims Tribunal?

The Tribunal process is cheap and simple but may be time consuming with several meetings for mediation, etc. A lawyer is definitely more expensive but may well save you time in the end.

If you can find several persons who have similar claims, then hiring a lawyer is much cheaper as the legal fees can be shared. However, note that a lot depends on the situation - for example, if the facts of each customer's situation are quite different, then the lawyer will have to do more work and therefore charge more.

Also, remember that when you sue in the normal courts and you win, you can recover most of your legal fees. But make sure that the other party will not go bust or your lawsuit win is not of much use.

Oral promises

Oral promises by vendors are difficult to prove. There are also legal difficulties, such as the parol evidence rule, which may sometimes prevent oral promises from being introduced. However, the main problem appears that the court has to decide who to believe - the vendor or the customer.

As mentioned previously, the use of tape recordings are very useful in proving your case. Even if you did not tape record the conversation in relation to which you are suing, if you can prove that the sales persons of the vendors systematically lie and over promise, you have a strong case but of course, there are no guarantees of winning.

On the other hand, if you are complaining only of hard selling, that this not normally a defence except perhaps in rare cases.

The best defence to bad vendors is information. If you are suing anyone, send me details and I will post details about your claim. If you have won a lawsuit, even better - let the whole world know about your win. Good luck and if in doubt, consult a lawyer.

Clemen Chiang, Freely Business School

It looks like Clemen Chiang will be liable for hundreds of thousands or even millions of dollars in compensation if his appeal to the High Court against the Small Claims Tribunal judgments do not succeed. Although he did business under the name Freely Business School, this appears to be a sole proprietorship, not a limited company (to be sure, those interested should do a full Accounting and Corporate Regulatory Authority search at

https://www.psi.gov.sg/NASApp/tmf/TMFServlet?app=MYBIZFILE-DIR-ENTITY#ClientValidationSummary, and pay the necessary fees.)

If he had used a limited company, as most readers will know, only his company will be liable for its debts, and not him personally.

Clemen Chiang - suing him for losses?

Some internet posts have suggested suing Clemen Chiang for their trading losses. Is this possible?

My view is that this would be difficult but not impossible. Some questions to consider - did he promise a fool-proof no-loss trading method in his course? If he did, then perhaps you could sue provided you followed his instructions exactly.

On the other hand, if he taught you methods that do not work at all. That would be a breach of an implied term in the contract between you and him for him to provide you with knowledge of options trading. Not very familiar with options so can't really say for sure, but my view is you would need other options experts to come to court to prove that his methods do not work at all. All in all, claiming your losses would not be easy.

Consult your lawyer if the amounts involved are large to make a claim worth your while.

Clemen Chiang, Freely Business School 4

This post is about teaching standards at commercial schools and training organisations including Clemen Chiang's.

If a school or trainer does not keep its/his promises, then you can sue them for breach of contract. However, what kind of level of teaching can we expect from the school or trainer - this is not easy to determine. There will be of course some clear cases. For example, if a school promises to prepare you to take the 'A-level" General Mathematics examination but only teaches you basic arithmetic, that would be a clear case of breach of contract. On the other hand, if it teaches you calculus in a confusing way, is it their fault or your fault for not understanding?

Proving that teaching or training is below the standard that can be reasonably expected is time-consuming and messy. It is interesting to note that based on newspaper reports, the claims against Clemen Chiang are based more on his lack of educational credentials then on the standard of his teaching. Some internet posts claim that his teaching is not worth much but this is hard to verify. Teaching standards even amoung Singapore government schools vary greatly, so it would be difficult to say if the teaching of Clemen Chiang was up to the expected standard.

In Singapore, on the other hand, the usual test of a good teacher is what "paper" (i.e. qualifications) he has.

Legal jargon

This post will clarify some legal terms which you may encounter when suing in the Tribunal. These terms may have been explained in earlier posts.

Jurisidiction - the power of the Tribunal to decide claims. The Tribunal can only hear some types of cases depending on the dollar amount and the type of claim.

Enforcement - also known as execution. This refers to the procedures to seize assets of the debtor if he does not pay even after you have won the case against him.

Evidence - facts in support of your case. This may include personal accounts of what was witnessed, documents and photographs.

Hearsay - oral or written reports by persons who are not telling their story in court. Normally, such reports are considered hearsay and not allowed since these persons are not in court to tell their story. This area of law is complicated.

Mediation - a procedure where a 3rd party tries to persuade both parties not to figt their case fully, but to settle it. The settlement may include one party paying some money or correcting certain defects. Note that agreement to settlement is voluntary - either party may decide that they wish to carry on with the claim.

Employment matters

Can the Tribunal hear employment claims eg, claims for unpaid salaries?

The answer is no. Under section 5 of the Small Claims Tribunal Act, contract claims for the sale of goods or the provision of services are within the Tribunal's power.

An employment contract is referred to by lawyers as a "contract for service", whereas a independent contractor's contract is called a contract for services. A typical example from legal textbooks - a chaffeur would be an employee whereas a taxi-driver is an independent contractor. The line between the 2 is usually clear but some companies have become creative and structured their dealings to try to convert employees into independent contractors for tax and financial reasons. In these situations, some factors the court may consider will be what risk the "employee" takes, what type of control does the "employer" have over the "employee", etc.
A current example, although the law is maybe only 60% similar, is the class action lawsuit brought in the US by "employees" of Federal Express against the company.

For those who are employees, for minor disputes, you may wish to approach the Ministry of Manpower for assistance.

Clemen Chiang, Freely Business School 3 - appeal?

Today, 15th April 2009, it was reported in the local press that Clemen Chiang intends to appeal to the High Court in relation to the recent Tribunal rulings against him.

A group of 49 students had earlier sued him and won a combined court decision worth over $130,000. Another group of students numbering about 116 have filed claims against him that could lead to refunds of nearly a $1 million.

Under section 38 of the Small Claims Tribunal Act, appeals are only allowed to the High Court on 2 grounds -

a) on a question of law (in other words, the Tribunal made an error of law), and

b) the claim was outside the Tribunal's jurisdiction (or power). For example of this, if the Tribunal made a ruling on a contract claim of $30,000 or decided an employment claim. These claims would not be within the scope of the the Tribunal's juridiction under the relevant statute.

However, the appeal can only proceed if the District Court gives leave (permission) to appeal to the High Court. This special procedure is to sieve out frivilous appeals

Enforcement - garnishee order

A garnishee order is used to seize debts owing to the judgment debtor. For example, if Y owes you money as your judgment debtor, and in turn, Z owes him money, then the garnishee order can be delivered to Z. Z will then be ordered to pay you the amount owed up to the debt owed to you by Y.

For a business, their accounts receivable would be a good source for serving garnishee orders. An examination of judgment debtor can be used to determine who the appropriate parties are and the amounts owing.

For businesses and individuals, banks accounts also represent a major source of debts owing to judgment debtors.

Note again, garnishee orders costs money to execute.

Enforcement - writ of seizure and sale

A writ of seizure and sale is used to seize assets belonging to the debtor for later sale.

A court official (a bailiff or sheriff, for the Subordinate Courts and High Court respectively), together with the creditor or his representative will go to premises occupied by the debtor. If the premises are locked, then another appointment will have to be made. At the second appointment, the creditor can bring along a locksmith to open any locked premises.

On the premises, the creditor will point out assets which he thinks belong to the debtor. The court official will then affix official stickers to show that the assets are under control of the court, and must not be sold or otherwise disposed off.

At a later date, an auction will be held. (Note, that auction fees must be paid first by the creditor). From any auction proceeds, after deduction of expenses of the auctioneer and court official, and any legal costs, the balance is used to pay the judgment creditor. Any surplus will then belong to the debtor.

Enforcement - examination of judgment debtor

Examination of judgment debtor.

This is a procedure where the debtor has to answer questions relating to this assets eg, his bank accounts, his vehicles, etc. Questions are also asked about past transactions relating to his assets.

The questions are asked in written form and answers are done likewise. The Subordinate Courts has a standard list of questions that can be used by any creditor. This can of course be modified where necessary.

Normally, there is no actual appearance in court of the judgment debtor. However, where necessary, an application can be made to court for the personal attendance of the debtors for cross-examination.

Several years ago, 2 Mediacorp actors were fined in court for not answering the examination of judgment debtor questions in relation to a company of which they were directors.

Enforcement of Tribunal orders - general

Once you have won an order from the Tribunal for payment by the other party, you still have to worry about getting payment. Sometimes, you have to apply more pressure on the other party in order to actually get money.

Enforcement or execution refers to the steps that you take to get payment. They are -

a) examination of judgment debtor,
b) writ of seizure and sale,
c) garnishee order, and
d) winding up or bankruptcy.

(A lawyer may quibble with some of the above being classified as enforcement, but this post is intended to be a general guide only).

Later posts will elaborate on these.

Point to note however is that usually these steps will require hiring a lawyer, and therefore incurring more costs.

Call to action

To a great extent, we depend on the government to do everything for us.

It is a good time for us to use the law where necessary. If a dishonest or over-promising seller or service provider breaches a contract, we should consider using the Small Claims Tribunal to take action. For some persons, they may weigh the costs against the benefits and decide that it is not worth the effort. This is especially so where the amount involved is relatively small compared to their wealth. For example, if I earn $10,000 a month, it may not be worth my while to spend 5-10 hours are the Tribunal for a defective product costing "only" $100.

However understandable this view may be, I hope that more persons will look at the bigger picture. If more consumers take their rights seriously, vendors will "wake up" and realise that they had better conform to the higher expectations of Singaporeans or face the legal consequences.

INVITATION -If you have filed a claim against any vendor, and wish to let the world know about it, send me your email contact and particulars of your claim including the case number.

Rental scam - Eric Heng Jit Siang jailed

Some good news for unfortunate victims of rental scams - Eric Heng Jit Siang who cheated 127 persons for over $240,000 in his rental scam was jailed for 6 years and 3 months. However, if he behaves well while in jail, he could be released after serving only 2/3 of his sentence. He made no restitution to his victims.

His method of cheating was to rent the same residences to more than one person for the same period. Therefore he obviously he could not perform his contract obligations even when he signed the relevant contracts. This was proof of his intent to cheat. Remember - cheating is shown when you can prove the criminal had no intention of carrying out the contract right at the start (not easy to show in most cases).

Sadly, his jail time will not get the victims there money back. However, if he owns any property, there is a chance to sue him later but this may well cost more money.

For the very poor, contact the Legal Aid Bureau under the Ministry of Law at http://app.minlaw.gov.sg/lab/default.asp
for legal advice.

Rental deposits and cheating

A previous post dealt with cheating by dishonest flat owners or agents, in relation to rental deposits.

How to prove cheating? If the other party knew that he could never deliver on his promises. For example, if the landlord rents out a flat that is occupied by a legal tenant, and there are no grounds for the landlord to evict the existing tenant.

Another common example - renting one flat out to several tenants promising each of them occupation of the entire flat. Obviously, the landlord would not be able to carry out his promise to each of them.

Report such cases to the police and follow up with them to find out the progress of investigations.
Many offenders found guilty of cheating end up in jail. What factor that is important in deciding on punishment is whether restitution has been made. In other words, whether the offender has repaid all or some of the illegally obtained money.

Dishonest flat owners

Today's Sunday Times newspaper deals with dishonest flat owners and agents.

Singapore has generally a low crime rate. However, this does not mean everyone here is an angel. Like any other place, one should take basic precautions.

Some general advice - before handing a cheque to anyone, find out who they are. Take down their particulars including their full name, identity card number (or passport number) and address. Name cards can easily be printed by anyone and since most do not have photographs, they are next to useless as a means of identification.

Nowadays with handphone cameras are so common, you should even consider taking a picture of the person making promises to you. A picture is worth a thousand words but in court, a picture may be worth 5 witnesses.

Avoiding the Small Claims Tribunal

The previous post referred to the fact that in the normal courts (not the Small Claims Tribunal), the loser pays the winner's legal fees but usually only about 75%.

How to recover your full legal fees? If you draft a contract with your customers, include a clause which is often used by banks, credit card and finance companies. This clause states that if you have to sue, the other party will pay your legal costs on an indemnity basis. These key words mean that you will in all probability be granted your full legal costs. Of course, remember, this is only useful if the other party has funds to pay.

Consult your lawyer for more information.

The Tribunal and mediation

The Small Claims Tribunal uses mediation to help parties settle their dispute before the matter is actually heard by a referee or judge. In fact, the Subordinate Courts website states that this is used extensively in the Tribunal -
see http://app.subcourts.gov.sg/sct/page.aspx?pageid=8617

What is mediation? This is a process where the mediator tries to persuade the parties to settle their dispute without a normal hearing. The keyword here is persuade. He cannot force any parties to agree to the settlement.

The mediation process is meant to be confidential so anything that a party says here cannot be repeated elsewhere. To preserve confidentiality, the mediator is also a different party from the referee who hears the case.

The mediator will try to convince both parties that a settlement is in their best interests rather than an acrimonous hearing where each side makes allegations about the other. Options to satisfy both parties are explored including apologies, partial payment of the claim, and promises to remedy defects or shortfalls in expected services.

In a normal court mediation (not one in the Tribunal), the mediator will often point out the high risk and costs of fighting a case in court with a party having to pay his own lawyer for court preparation as well as time spent in court. In addition, the rule is that the loser of a lawsuit has to pay the winner's legal fees. However, these points will not be relevant to a Tribunal claim.

When not to use the Small Claims Tribunal

Suing in a Tribunal often takes more time compared with Subordinate Courts lawsuits, especially if you are not familiar with court procedures, but in the end, it is often cheaper.

However, if you decide to sue in the Subordinate Courts, the Magistrate's Court can handle claims of up to $60,000. You can hire a lawyer to handle all your paperwork. And the usual rule applies - the loser pays legal fees of the winner.

Note however, that this rule does not mean that you get all your legal fees. As a very rough guide, you may receive about 75% of your legal fees. Also, if the other party is insolvent, then you will not recover either this amount or the money owing to you under your claim.

So the question is whether it is worth the risk in order to have a lawyer handle all the court procedures.

Law - what is a claim?

As readers may know, the Small Claims Tribunal has a $10,000 limit on claims, which limit is increased to $20,000 if both parties agree.

The issue to be examined here is what is a claim? Every breach of contract can be considered a claim. Of course, one cannot divide a single claim into smaller claims in order to come within the Tribunal limit. However, every allegation of breach of contract can be considered a separate claim.

For example, if you bought a computer package consisting of CPU unit, monitor, printer, every instance where the package did not conform to the contract could be considered a claim. For example, if the processor and the graphics card were different from what was promised, these could be considered 2 separate claims.

The above suggestion would of course only be useful if you entered into an expensive contract worth much more than $10,000, so that your claims if not carefully drafted may well exceed the Tribunal limit.

Proof of your contract

In an earlier post, I mentioned that for breach of contract cases, you may have to prove the terms of the contract between you and the other party.

Besides any written document that you sign, what other documents might contain other contract terms? Some of the documents that the other party may have used and which you may argue form part of the contract -

a) newspaper advertisements of the other party;
b) television commercials;
c) brochures;
d) catalogues; and
e) even webpages (print these out if necessary and noting the date on the print out).
Copies of all these documents should be provided to the court and to the other party during any Tribunal hearing.

Advertisements are important in showing what can be expected by a customer from a vendor or service provider. I remember a case (not in the Small Claims Tribunal) where the other party, a awning installer, had sued a food court operator for the installation fees. The awning installer had advertised the safety aspect of its products and services in the Yellow Pages. Yet, the awning collapsed after a heavy rain. The court was not impressed with the awning installer's claim and dismissed it.

Contract - damages

Even if you cannot prove a direct financial loss for the other party's breach of contract, you may be able to claim damages for loss of amenities. This means in simple English, that you suffered from less enjoyment.

Some simple examples -

• you buy an high end stereo system costing $10,000 and the sound that comes out sounds like a $200 system, which you used for 3 months before you obtained compensation,
• you buy a high end sports car that is supposed to accelerate from 0-100 km/h in 5 seconds but it takes 10 seconds to do so;
• you are promised a beautiful view when you rent a holiday chalet for a week at East Coast Park but the chalet only faces the rubbish dump.

There is of course no easy way to ascertain how much the loss of amenities is worth but the judge will use the cost of the entire contract as one of the guiding factors.

Misrepresentation 2

This posting is to further clarify what is meant by the phrase that "a misrepresentation must be operative".

The other party may make false statements of facts to you but to show misrepresentation, you have to show that the statement was important to you.

For example, before you buy a Porsche sports car, the salesman tells you that the car was designed by the famous designer Guigaro and its top speed is 350 km/hour. Both statements are untrue but if you can convince the judge who the designer is, was important to you, then the misrepresentation is operative. On the other hand, the salesman may be able to show that you are a careful driver who never exceeds the speed limit and who does not drive the car to Malaysia. In that case, the judge may well conclude that the top speed was unimportant to you and therefore the mispresentation was not operative.

Suing for breach of contract - contract terms

Proving the terms of a contract -

If there is a written document, then the document will be proof of the terms of the contract. If the contract was made orally, then it can still be proved. However, if the other party disputes your account of the terms, then the judge will decide who is more likely to telling the truth.

Solution - tape record any promises made by the other party. This can even be done after the contract has been made - e.g. you get the other party to admit that he failed to do certain things promised under the contract.

Note that Singapore law allows tape recordings to be used in court but some other countries do not.

It is possible for a contract to be made partly in writing and partly orally so don't give up if the other party is relying on a written contract. But trying to argue that the contract is partly written or partly oral may not always be easy.

Suing for breach of contract

If you are suing for breach of contract, you have to prove the following -

• the terms of the contract with the other party,
• the other party breached one or more of the contract terms, and
• you suffered loss due to the breach.

A later post will deal with these issues separately.

law - misrepresentation

The case of Clemen Chiang raised the issue of misrepresentation.

This area is part of tort law although it is closely related to contract law. Misrepresentation refers to false statement of facts not opinions. Importantly, the misrepresentation must be operative or act as an inducement. This means that the false statement must affect the contracting party and induce him into entering the contract.

In the light of the Lehman Brothers fiasco, there are questions about whether a mass lawsuit can be filed against the sellers of Minibonds and other exotic instruments for misrepresentation. If the misrepresentations are made in a written document, then there are no major problems (see for example, the Raffles Town Club lawsuits, although the court found there was no misrepresentation). However, where the statements are made wholly or partially orally, trying to start a mass lawsuit (or what lawyers would call a class action lawsuit) would pose many problems.

Clemen Chiang, Freely Business School 2

Another 122 people are going to the Small Claims Tribunal to sue Clemen Chiang after the Straits Times reported a few days ago about successful mass claims against him and his school for misrepresentation. This 2nd group of persons want refunds of between $3,500 to $15,000 which they had paid in seminar fees.

Since the Small Claims Tribunal can only award up to $10,000 in one claim, it is likely that those claiming more than this limit are willing to give up their claim for the remainder, and are using the tribunal in order to avoid expensive legal fees and complicated court procedures.

It is thought that the claims made against Chiang are the largest number filed against any party in the Tribunal.

Clemen Chiang, Freely Business School 1

In March 2009, the Straits Times reported that 49 customers of well known options trading lecturer Clemen Chiang won their lawsuits against him and his business school, Freely Business School. The suits were filed in the Small Claims Tribunal.

The court found that there was misrepresentation by Chiang as he had claimed that he had a doctorate or PhD in options trading (something that is quite rare) but that this degree was from an unaccredited university.

For compensation, the court ordered a refund of 80% of lecture fees and 100% refund of software and web seminar fees.

Time limit to sue in Small Claims Tribunal

The Consumer Protection (Fair Trading) Amendment Act 2008 has now increased the time limit to sue in the Small Claims Tribunal from 1 year to 2 years.

This is indeed a welcome move. However, it is puzzling why the normal contractual time limit of 6 years is not applied to small claims.

True Spa - complaints

Complaints against the the True Group which runs yoga, wellness and spa businesses are accumulating. There are newspaper reports about some unhappy customers hiring a lawyer from Clifford Law Corporation to start a lawsuit against this group. The unhappiness appears to be caused by their inability to get appointments to use their spa treatments packages.

What if you are also an unhappy customer? First suggestion is that you should have clear records relating to your unhappiness. For example, everytime you make an attempt to fix an appointment, you should record the date and time of your call and the result. These records will be important evidence in your case if you should decide to sue.

One tactic to consider is to wait and see what happens to the lawsuit started by Clifford Law Corporation. If you need more information on progress of this lawsuit, maybe the law firm would be willing to provide updates. However, if you follow this tactic, remember that if you later decide you want to sue in the Small Claims Tribunal, these is time limit of 1 year to sue. This time limit is measured from the date that the other party breached their contract.

PLEASE TAKE LEGAL ADVICE WHERE NECESSARY.

Lawsuit against ERA Realty Network

The recent lawsuit against ERA Realty Network where the company was successfully sued by 2 clients for its agents' misconduct was an eye-opener as to the dirty tricks used by some agents.

For more comments on this case, please go to my other blog which cover professional negligence and misconduct in Singapore -

- http://professionalnegligencesg.blogspot.com/

Pet farm successfully sued - Ericcson Pet Farm

The New Paper of 11 February 2009 has a story of a wealth manager successfully suing a pet farm that sold her a puppy that died miserably of illness a few days later.

The claimant had done a lot of research to prove that the illness was the pet farm's fault - she obtained a copy of the autopsy report on the puppy and she performed a lot of research on the internet relating to the disease that killed her puppy. She also took photographs to show the dirty conditions at the pet farm.

All this work she compiled into a 40 page report which she presented to the Small Claims Tribunal referee (or judge) to prove that when the puppy was sold to her, it was already infected. In the end, she won back the $2,000 plus that she paid for the puppy.

I salute Ms Phaebe Chau for her hard work and what she has done for her puppy, all pet animals and for consumer rights.

Contracts - implied terms

Most Small Claims Tribunal cases are based on contract law. However, often a written contract does not state all of one's expectations. What can be done in such a situation?

One possible solution is to use the implied term argument. You will try to persuade the court that certain promises are to be implied into the contract. The test the courts often use is the business efficacy test - whether the implied term is necessary to give the contract business efficacy. This test is not always easy to understand or apply. You may wish to think of whether the implied promise is so obvious that there is no need to state it in the written contract.

2 obvious examples of implied terms -

a) an eating establishment eg a restaurant will serve you food that is fit to eat and will not give you food poisoning;

b) a taxi driver will drive you safely to your destination.

Please note that the abovepost is only information, and you may wish to take legal advice in this area.

Small Claims Tribunal - what kind of cases

Those thinking of using the Small Claims Tribunal should be aware of the type of cases that it can hear.

Under section 5 of the Small Claims Tribunal Act, only the following types of cases are covered -

1. contract disputes over the sale of goods or the supply of services (note that this does not cover employment contracts)
2. tortious claims for damage to any property (but not covering traffic accidents) and
   
3. contract disputes for rental of residential properties for 2 years or less.

The amount claimed can also not exceed $10,000, or $20,000 if the other party agrees to have the dispute heard by the Tribunal. In addition, the right to sue must not be more than 1 year old.

A later post will examine some of the issues relating to this Tribunal's jurisdiction (in other words, the type of cases it has power over).

Small Claims Tribunal - jurisdiction

When lawyers use the word "jurisdiction", they mean the type of cases that the particular court can hear and the limits on that court's powers.

As stated previously, the Tribunal can normally only hear claims for amounts of up to $10,000. The Singapore High Court in the case of Mohammed Akhtar v Schneider has clarified that this claim amount is not related to the value of the contract. The claim amount depends on what is claimed. If you are claiming compensation only, then the claim amount is the amount of compensation that you want. On the other hand, if you want the entire contract cancelled (or rescinded), then the claim amount would be the value of the entire contract.

Also, the Tribunal can only hear claims not more than 1 year old - to use legal jargon, up to 1 year from the date that the cause of action accrued. In simple English, it means up to 1 year from the time you had a right to sue.

So when do you have a right to sue? For the payment of money, the relevant day is the contractual date of payment. For other promises, when was the last day that the other party was allowed to perform his promise eg paint your house or repair your computer. You would have a right to sue on the day following that day.

Small Claims Tribunal case - Gym True Fitness pays up

The Straits Times on 15 January 2009 reported that gym operator True Fitness at Suntec City paid up a Small Claims Tribunal judgment for the sum of over $2500 after a court official showed up at their door.

Madam Au-Yong, a former customer of True Planet which was taken over by True Fitness, had won a case against True Planet in relation to a refund for the unused portion of an exercise package that she had signed up for. She had ended the contract with True Planet when they were no longer able to provide her a trainer with expertise in rehabilitation.

This incident shows very well consumer rights at work.

The Small Claims Tribunal

AIM of this blog

To provide consumer information regarding bad service providers.

It is easy to complain about bad service or defective goods but the only way to show you are serious about the situation is to file a claim with the Small Claims Tribunal.

If you have do so, then contact me with the name of the other party you are suing, the case number and a short summary say 200 words about the problems.

This site will serve as a warning to other potential customers of bad service providers. Do not let them get away with it.

DISCLAIMER - Nothing in this blog should be considered as legal advice. The blog provides only information and users are advised to consult their lawyers before making any legal decisions.