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.
Monday, April 20, 2009
Wednesday, April 15, 2009
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.
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.
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.
Tuesday, April 14, 2009
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.
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
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
Saturday, April 11, 2009
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.
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.
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.
Friday, April 10, 2009
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.
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.
Thursday, April 9, 2009
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.
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.
Wednesday, April 8, 2009
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.
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.
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.
Tuesday, April 7, 2009
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.
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.
Sunday, April 5, 2009
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.
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.
Thursday, April 2, 2009
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.
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.
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