sabahlaw

Article 8 of the Federal Constitution which provides as follows:

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

PETROLEUM DEVELOPMENT ACT 1974
ACT 144

Preamble

An Act to provide for exploration and exploitation of petroleum whether onshore or offshore by a Corporation in which will be vested the entire ownership in and the exclusive rights, powers, liberties and privileges in respect of the said petroleum, and to control the carrying on of downstream activities and development relating to petroleum and its products; to provide for the establishment of a Corporation under the Companies Act, 1965 or under the law relating to the incorporation of companies and for the powers of that Corporation; and to provide for matters connected therewith or incidental thereto.

[Am. Act A613]

[1 October 1974]

BE IT ENACTED by the Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows:

Act done or transaction carried out before enactment of this Act.

(1)Every act done or transaction carried out by PETRONAS before the enactment of this Act that would have been lawful if this Act had been enacted and in force when such act was done or transaction was carried out is hereby declared to be and always to have been lawfully done or carried out by PETRONAS, and such act or transaction may be continued and dealt with under the principal Act as amended by this Act.

(2)The provisions of this Act shall apply to all legal proceedings of whatever from or nature now pending, or which may hereafter be instituted, in any court – see Act A613

1. Short title and commencement.

This Act may be cited as the Petroleum Development Act, 1974, and shall come into force on such date as the Prime Minister may notify in the Gazette.

2. Ownership.

(1) The entire ownership in, and the exclusive rights, powers, liberties and privileges of exploring, exploiting, winning and obtaining petroleum whether onshore or offshore of Malaysia shall be vested in a Corporation to be incorporated under the Companies Act 1965, or under the law relating to incorporation of companies.

(2) The vesting of the ownership, rights, powers, liberties and privileges referred to in subsection (l) shall take effect on the execution of an instrument in the form contained in the Schedule to this Act.

(3) The ownership and the exclusive rights, powers, liberties and privileges so vested shall be irrevocable and shall enure for the benefit of the Corporation and its successor.

3. The Corporation.

(1) Notwithstanding the provisions of section 22 of the Companies Act 1965, relating to the names of companies, the Corporation shall be styled as the Petroleum Nasional Berhad or in short form PETRONAS.

(2) The Corporation shall be subject to the control and direction of the Prime Minister who may from time to time issue such direction as he may deem fit.

(3) Notwithstanding the provisions of the Companies Act 1965, or any other written law to the contrary, the direction so issued shall be binding on the Corporation.

3A. Powers of the Corporation.

(1) In additional to all the powers of the Corporation as prescribed in its Memorandum and Articles of Association, the Corporation shall have the power to take over or acquire by agreement, assignment, purchase or by any other means the whole or any part of any commercial undertaking, business or enterprise of whatever form of any person or body of persons (corporate or unincorporate) and carry out or enter into any activity, whether mentioned in this Act or not, which prior to such taking over or acquisition was carried out by, and for the purpose of, that undertaking, business or enterprise.

(2) The powers conferred on the Corporation under subsection (1) shall be in addition to and not in derogation of any of the rights, powers, liberties, privileges and benefits conferred on the Corporation by this Act or any other written law.

(3A) Subsection (3) shall not apply to any person who is licensed under the Gas Supply Act, 1993 to supply gas to consumers through pipelines.

[Ins. Act A842]

(3B) For the purpose of subsection (3A), the terms “gas”,”consumers” and “pipelines” shall have the same meaning assigned to them respectively by the Gas Supply Act 1993.

[Ins. Act A613]

4. Cash payment by the Corporation.

In return for the ownership and the rights, powers, liberties and privileges vested in it by virtue of this Act, the Corporation shall make to the Government of the Federation and the Government of any relevant State such cash payment as may be agreed between the parties concerned.

5. National Petroleum Advisory Council.

(1) There shall be established a Council to be known as the National Petroleum Advisory Council consisting of such persons including those from the relevant States as the Prime Minister may appoint.

(2) It shall be the duty of the National Petroleum Advisory Council to advise the Prime Minister on national policy, interests and matters pertaining to petroleum, petroleum industries, energy resources and their utilization.

6. Prime Minister’s permission required for downstream operations.

(1) Notwithstanding the provisions of any other written law, no business of processing or refining of petroleum or manufacturing of petro-chemical products from petroleum, may be carried out by any person other than PETRONAS unless there is in respect of any such business a permission given by the Prime Minister.

[Am. Act A290]

(2) Any person who on the commencement of this Act is carrying on any business referred to in subsection (1) may continue to do so but shall, not later than six months from the date of the commencement of this Act, apply in writing to the Prime Minister for his permission referred to in subsection (1).

(3) Subsection (1) shall apply to any business of marketing or distributing of petroleum or petro-chemical products; and any person who on the commencement of this subsection is carrying on any such business may continue to do so but shall, not later than six months from the date of commencement of this subsection, apply in writing to the Prime Minister for his permission referred to in subsection (1).

(3A) Subsection (3) shall not apply to any person who is licensed under the Gas Supply Act 1993 to supply gas to consumers through pipelines.

(3B) For the purpose of subsection (3A), the terms “gas”, “consumers” and “pipelines” shall have the same meaning assigned to them respectively by the Gas Supply Act 1993.

(4) Where the Prime Minister grants his permission under this section he may, at his discretion, impose such terms and conditions as he may deem fit.

(5) Any person who acts in contravention of this section or fails to comply with any term or condition of any permission granted under this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding five years or to both, and in the case of a continuing offence he shall be liable to a further fine not exceeding one hundred thousand ringgit for each day or part of a day during which the offence continues after the first day in respect of which the conviction is recorded; and all machinery, tools, plant, buildings and other property or thing used or intended to be used in the commission of the offence and any petroleum or its products thereby obtained shall be liable to forfeiture.

(6) The Prime Minister may by notification in the Gazette exempt any business referred to in subsections (1) and (3) or any company or class of company carrying on any such business from the provisions of this section.

[Ins. Act A382]

7. Power to make regulations.

The Prime Minister may make regulations for the purpose of carrying into effect the provisions of the Act and, without prejudice to the generality of the foregoing, such regulations may, in particular, provide for -

(a) the conduct of or the carrying on of -

(i) any business or service relating to the exploration, exploitation, winning or obtaining of petroleum;

(ii) any business involving the manufacture and supply of equipment used in the petroleum industry;

(iii) downstream activities and development relating to petroleum;

(b) the marketing and distribution of petroleum and its products;

(c) penalties in the form of a fine not exceeding one hundred thousand ringgit or imprisonment not exceeding five years or both such fine and imprisonment for breach of any of the regulations and for non-compliance with any term or condition of any licence, permission or approval issued or granted under the regulations;

(d) the forfeiture of anything used or intended to be used in the commission of any such breach or non-compliance

7A Delegation.

The Prime Minister may; by notification in the Gazette, delegate, subject to such conditions and restrictions as may be prescribed in such notification, the exercise of any of his powers or the performance of any of his duties under this Act, other than his powers and duties under sections 3(2), 5(1) and 7, to any person described by name or office.

7B. Offences by bodies of persons and by servants and agents.

(1) Where an offence against this Act or any regulations made thereunder has been committed by any company, firm, society or other body of persons, any person who at the time of the commission of the offence was a director, manager or other similar officer or a partner of the company, firm, society or other body of persons or was purporting to act in such capacity shall be deemed to be guilty of that offence.

(2) Whenever it is proved to the satisfaction of the court that a contravention of the provisions of this Act or any regulations made thereunder has been committed by any clerk, servant or agent when acting in the course of his employment the principal shall also be liable for such contravention and to the penalty provided therefor:

Provided that nothing in this section shall be deemed to exempt the liability of the clerk, servant or agent in respect of any penalty provided by this Act or any regulations made thereunder for any contravention proved to have been committed by him.

7C. Jurisdiction of courts.

Notwithstanding anything contained in any other written law to the contrary, a Sessions Court or, in Sabah and Sarawak, a Court of a Magistrate of the First Class, shall have jurisdiction to try any offence under this Act or any regulations made thereunder and on conviction to impose the full penalty therefor.

8. Saving.

(1) Save for section 14 thereof, the Petroleum Mining Act 1966 shall not apply to the Corporation.

(2) In the application of section 14 of that Act to the Corporation, any reference to the licensee shall be construed as a reference to the Corporation, and any reference to the exercising of any rights contained in the licence shall be construed as a reference to the exercising of the rights, powers, liberties and privileges vested in the Corporation by virtue of section 2 (1) of this Act.

9. Transitional.

(1) Any exploration licences issued and any petroleum agreements entered into pursuant to the Petroleum Mining Act 1966, and any licences, leases and agreements issued or made under any written law in force relating to prospecting, exploration or mining for petroleum shall continue to be in force for a period of six months from the date of the coming into force of this Act or for such extended period as the Prime Minister may allow.

(2) Where the six months’ period has elapsed and no extension thereto under subsection (1) is allowed, the licences, leases or agreements mentioned in that subsection shall determine or cease to have effect and there shall be paid to the person whose rights under the licence, lease or agreement have been so determined, adequate compensation which may be in the form of a single sum or in the form of periodical payments of money or in such other form as may be determined by the Federal Government or under any arrangement agreed upon between such person and other person designated by the Federal Government.

10. DEFINITION.

For the Purpose of this Act, the expression “petroleum” means any mineral oil or relative hydrocarbon and natural gas existing in its natural condition and casinghead petroleum spirit including bituminous shales and other stratified deposits from which oil can be extracted.

27. Supremacy of Constitution.

Any Enactment passed on or after Malaysia Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

One need to be aware that any enactments made prior to Malaysia day (ie Sept 16 1963 and not Aug 31) can stand on its own even if it is inconsistent with the Constitution.

Obviously the question is whether the 20 Points Agreement (see below) is such that even the Constitution is not capable of infecting it. Remember it was this 20 points agreement that made it possible for Sabah to be created.

Now, the broader issue is the National Language where in 27/9/1973 the Sabah government enacted an National Language enactment that is contrary to one of the 20 points (ie English forever). And note that the Sabah Constitution was purposely amended to accommodate this on same day – 27 Sept 1973.

11A. Official language.

Without prejudice to clause (8) of Article 24, the official language of the State Cabinet and the Legislative Assembly shall be in Bahasa Malaysia:

Provided that –

(a) not withstanding the provisions of this Article, the English language may be used for such period and for such purposes as may for the time being be provided by or in accordance with Article 152 of the Federal Constitution; and

(b) an official English version shall be provided of anything which is required to be printed or reduced into writing and may be published in the Gazette.

AS can be seen, it is explicit that Bahasa Malaysia is the official language of the State Cabinet and the Legislative Assembly..nothing else or more (in fact at the local government level, this is not even mentioned). So how this Bahasa Melayu is now impose as an official language on Sabahan (outside of the State Cabinet and Legislative Assembly) for all purpose is a mystery to me. As far as I remember Malay is the NATIONAL language of the federation but this does not make it an OFFICIAL language. The difference between the TWO is that the later “OFFICIAL” means mandatory usage by law while “NATIONAL” means a language common or known to all.

CK

I was looking at the documents as below

A careful look at the deed will show that this is a State government trying to grant POWER to a Corporation (created by parliament). There is also a clear ADMISSION by the Federal govt at that time that this resources and power fell under the exclusivity of the State.

The problem here is that whether a State government could validate this Act merely by a GRANT under the Petroleum Development Act (PDA). In short, whether the PDA (not being a Federal government entity but a separate entity in the form of a Corporation) is capable of being granted such power, resources by an Act of Parliament.

There is also the issue of the word “Malaysia” which is beyond the power of the State government as its Constitution is only limited to within said State boundaries (whether onshore or off-shore).

Look at the Federal Constitution

74. Subject matter of federal and State laws.

(1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).

(2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

(3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

(4) Where general as well as specific expressions are used in describing any of the matter enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.

77. Residual power of legislation.

The Legislature of a State shall have power to make laws with respect to any matter not enumerated in any of the Lists set out in the Ninth Schedule, not being a matter in respect of which Parliament has power to make laws.

Under the CURRENT schedule 9 of the Federal Constitution

The federal govt is in charge of

4. Civil and criminal law and procedure and the administration of justice, including -

(j) Admiralty Jurisdiction;

8. Trade, commerce and industry, including -

(j) Subject to item 2 (c) in the State List: Development of mineral resources; mines, mining, minerals and mineral ores; oils and oilfields; purchase, sale, import and export of minerals and mineral ores; petroleum products; regulation of labour and safety in mines and oilfields;

9. Shipping, navigation and fisheries, including -

(a) Shipping and navigation on the high seas and in tidal and inland waters;

(b) Ports and harbours; foreshores;

(c) Lighthouses and other provisions for the safety of navigation;

(d) Maritime and estuarine fishing and fisheries, excluding turtles;

(e) Light dues; and

(f) Wrecks and salvage.

Now in the State list at 2(c) it says

(c) Permits and licences for prospecting for mines; mining leases and certificates;

Other than the admission above, common sense must prevail as these petroleum resources would be hidden under the sea (in the seabed) which are still State matters (being not in the Fed nor State list above). So while the Federal govt has power to legislate the development of the natural resources, it does not have the power to legislate the territories (sea-beds) where these resources are found.

And even assuming this Power is granted to Petronas, it is wrong to grant this in perpetuity (or irrevocable) as this is a state power and will prejudice the rights of the inhabitants of the State in the same way as usurping the territorial rights of the state government to an non-governmental entity (ie Petronas) which’s only concern is exploiting the resources.

The alternative view is that the State still has this power as it could not validly be granted to a corporation (even by an act of Federal Parliament as this power is a RESIDUAL power beyond the Federal being one that is not assignable or grantable) and as such the State still possess the power to make laws as to its sea-beds including all natural resources therein underground, ie petroleum.

More important if you must ask the obvious, is that there is NOTHING in the Federal constitution which expressly allow the granting of residual power to an non-government entity – ?? … Ops did Petronas know this ?
The other obvious question is what was the motive for state governments to grant away their natural resources for almost nothing ?

So what has this got to do with Sabah you asked ? Well, think about this for a while as this could be sensitive ?

Malaysia Federal Court’s decision (21.1.2010), in the case of Tan Ying Hong vs Tan Sian San reinforced defer indefeasibility back into West Malaysia under the NLC after overturning Adorna Properties Sdn Bhd vs Boonsom Boonyanit. The effect of Tan Ying Hong is that only a subsequent purchaser will gain title (for a bona fide and without notice) transaction. In Adorna, the original owner lost her titles to Adorna after a culprit forged her signature on the titles (copies issued by Land Office after the culprit declared them stolen) and transfer them to Adorna. The law as it stands now is that Adorna will not gain the titles but anyone buying from Adorna (‘subsequent’) will get good titles – this is the principle of deferred indefeasibility which means it is not immediate as in Adorna – ie upon registration anyone will get good title – the principle of Torrens. Immediate indefeasibility is clearly stated in countries like Australia and to mitigate fraud and forgery (as in Adorna’s case), a fund was setup and available to help the victims. In this way the original principle of Torrens (from South Australia) is maintained and continued in its spirit.

Now in Sabah, we do not have NLC and instead we have Sabah Land Ordinance (SLO). The most well known case here is Borneo Housing Mortgage Finance Bhd v Time Engineering Berhad [1996] 2 CLJ 561 (Borneo Finance Case). However this does not deal with the issue of fraud as in Adorna but merely confirmed Section 88 of SLO as paramount.

88. No title or claim to land valid unless registered.

No new title and no dealing with, claim to or interest in any land except land still held under native customary tenure without documentary title shall be valid until it has been registered in accordance with the provisions of this Part.

As can be seen in Sabah, we used “validility” as the test and not indefeasibility as in the NLC (see Section 340 where the word “indefeasibility” is clearly expressed). Obviously the fact that a dealing can be valid does not mean it is also indefeasible (say in fraud or forgery).

So the position in Sabah is unique and in a way modified the Torrens System much the same way as “deferred indefeasibility” do in practise. In the past, Courts’ decisions have been a mixed bag with some Judges calling to align with West Malaysia (ie with Adorna – even though as can be seen now was wrongly decided ) by endorsing the principle of immediate indefeasibility. Some enlightened would consider the validity to be paramount but be defeated by fraud or forgery. See Wee Yee Ying v Emin Bin Sadi (Civil Suit K 22-153-1995) unreported in open court 2005 in KK by Datuk Ian Chin J (now retired).

The problem with land dealings in Sabah is well known to all and want of transparency. Currently, there are still many without titles to their land as the master title is still undivided to individual titles despite over 30-40 years wait. There are provisional leases (unsurveyed) that date back to 70s. A first step is to computerise the entire registry and make it available online instantly with security such as using MyCard (Microchip Identification Card) for transfer etc. It currently takes more than 1 day to check a title (if you are located in KK).

One also notice in the majority of cases this will involve Native Titles – and the Native Court or Syariah Court endorsing the transfer ( the con-man, shamster, fraudster claiming to be the son or executor of the land – in many cases the owner is still alive). The buyers will argue that they are subsequent bona fide buyers without notice (ie the first transfer was to the fraudster who later sold to them).

I have even encountered a case where the Title was printed and issued under a wrong section but the Judge rebutted this and you can read the judgement here http://tinyurl.com/nu448p. This case was an eviction case and it went to the Court of Appeal.

But other than the technical and administrative problems, the SLO should not be amended given the reason that we already subscribed to “deferred indefeasibility”. Furthermore, this reversal in West Malaysia will also see a number of law firms being sued now by disgruntled bona fide owners without notice (like Adorna – first buyer from fraudster in owner’s name) and will make conveyancers to be more vigilant. Also consider if there is any limitation to action in fraud. www.mylawyer.com.my/pdf/Limitation_Act.pdf

Where there has been a fraud or concealment however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff’s cause of action was delibrately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff. The effect of this section is plainly seen in the case of Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571 where the defendant’s insurers took great pains to conceal themselves from the knowledge of the plaintiff and thus the latter’s claim was not held statute barred as a result. Limitation periods also do not run where a plaintiff is under disability until the expiry of such a disability under section 24 of the Act.

Cheers

STATE OF SABAH

I assent,

TAN SRI HAJI MOHD. FUAD STEPHENS,
Yang Dipertua Negara,

27TH SEPTEMBER, 1973.

No. 7 of 1973

An Enactment to authorise the extension of the provisions of the National Language Act, 1967, to restrict the use of the English language for official purposes and to provide for matters incidental thereto.

WHEREAS Clause (1) of Article 161 of the Federal Constitution provides that no Act of Parliament terminating or restricting the use of the English Language for any of the purposes mentioned in Clauses (2) to (5) of Article 152 shall come into operation as regards the use of the English Language in any case mentioned in Clause (2) of Article 161 of the Federal Constitution until ten years after Malaysia Day;

AND WHEREAS Clause (3) of Article 161 of the Federal Constitution provides that, without prejudice to Clause (1) of Article 161, no such Act of Parliament as is there mentioned shall come into operation as regards the use of the English Language for proceedings in the High Court in Borneo or for such proceedings in the Federal Court as are mentioned in Clause (4), until the Act or the relevant provision of it has been approved by enactments of the Legislatures of the Borneo States, and no such Act shall come into operation as regards the use of the English language in a Borneo State in any other case mentioned in paragraph (b) or (c) of Clause (2) of Article 161, until the Act or the relevant provision of it has been approved by an enactment of the Legislature of the State;

AND WHEREAS the period of ten years after Malaysia Day has lapsed;

AND WHEREAS the Legislature of the State of Sabah seeks to give its approval under Clause (3) of Article 161 of the Federal Constitution with regards the use of the English language for proceedings in the High Court in the State or for such proceedings in the Federal Court as mentioned in Clause (4) of Article 161 of the Federal Constitution and for purposes of restricting the use of the English language in the State in the Legislative Assembly or for other official purposes;

NOW THEREFORE, ENACTED by the Legislature of the State of Sabah as follows:

1. Short title

This Enactment may be cited as the National Language (Application) Enactment, 1973.

2. Approval under Article 161 of the Constitution.

The extension of any Act of Parliament terminating or restricting the use of the English language for any of the purposes mentioned in Clause (2) of Article 161 of the Federal Constitution is hereby approved.

3. Language used in native courts or for any code of native law and customs.

Notwithstanding anything in section 2, in the State a native language in current use in the State may be used in native courts or for any code of native law and custom.

CERTIFIED by me to be a true copy of the Bill passed by the Assembly on Tuesday, the 25th September, 1973.

DATUK HAJI MOHD. KASSIM BIN HASHIM,

Speaker.

161. Use of English and of native languages in States of Sabah and Sarawak.

(1) No Act of Parliament terminating or restricting the use of the English language for any of the purposes mentioned in Clauses (2) to (5) of Article 152 shall come into operation as regards the use of the English language in any case mentioned in Clause (2) of this Article until ten years after Malaysia Day.

(2) Clause (1) applies -

(a) to the use of the English language in either House of Parliament by a member for or from the State of Sabah or Sarawak; and

(b) to the use of the English language for proceedings in the High Court in Sabah and Sarawak or in a subordinate court in the state of Sabah or Sarawak, or for such proceedings in the Federal Court or the Court of Appeal as are mentioned in Clause (4); and

(c) to the use of the English language in the State of Sabah or Sarawak in the Legislative Assembly or for other official purposes (including the official purposes of the Federal Government).

(3) Without prejudice to Clause (1), no such Act of Parliament as is there mentioned shall come into operation as regards the use of the English language for proceedings in the High Court in Sabah and Sarawak or for such proceedings in the Federal Court or the Court of Appeals as are mentioned in Clause (4), until the Act or the relevant provision of its has been approved by enactments of the Legislatures of the States of Sabah and Sarawak; and no such Act shall come into operation as regards the use of the English language in the State of Sabah or Sarawak in any other case mentioned in paragraph (b) or (c) of Clause (2), until the Act or the relevant provision of it has been approved by an enactment of the Legislature of that State.

(4) The proceedings in the Federal Court or the Court of Appeal referred to in Clauses (2) and (3) are any proceedings on appeal from the High Court in Sabah and Sarawak or a judge thereof, and any proceedings under Clause (2) of Article 128 for the determination of a question which has arisen in proceedings before the High Court in Sabah and Sarawak or a subordinate court in the State of Sabah or Sarawak.

(5) Notwithstanding anything in Article 152, in the State of Sabah or Sarawak a native language in current use in the State may be used in native courts or for any code of native law and custom, and in the case of Sarawak, until otherwise provided by enactment of the Legislature, may be used by a member addressing the Legislative Assembly or any committee thereof.

I recently gave some comments on a debt problem and I think this may also benefit some here.

1. The bank sought and auctioned out a property (without title) at less than the current market price.
2. The bank then sought a summary judgment against the debtor for the balance.
3. Costs for self-represented defendant.

As to whether one can do anything in (1), my comment is nothing. This is because the Bank has no duty to the borrower to get the BEST price, although the Bank could not neglect (in conscience) the interest of the Borrower’s completely.  The Bank is however must provide the maximum exposure to sell the property (say if the bank advertising is defective in any way then you may raise this). (See Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676) But it is also important to bear in mind that the Bank does not need to ensure the property is sold with a vacant possession and it is up to the new owner (assignee) to get rid of the debtor (or tenants of the debtor) in the property. Now if you wish to stop the auction then you can also ask for an injunction against the Bank or Property Developer who is also registering the transfer (most property without title has a clause which says that all transfer to be effected by the Developer for a fee). However, injunctions are rarely granted subject to whether there are triable issues (fraud), balance of convienence. In most cases, an undertaking or a deposit of the debt amount is required with the Court (to maintain status quo). Obviously the Judge can decide the amount to be deposited but equity loath to do justice at last minute, so any action that is needed must be preferably with notice (inter-parte).  Once you stop the auction, then you can bring in your grievances like lack of notice, or amount is questionable etc. However, once it is sold then your rights are limited.

If you have a property with TITLE then your rights are much better and are governed by Land Ordinance or NLC (see charge) and there are steps that the bank must take. In particular the Bank cannot take dual action against you (ie applying the remedy in the charge AND suing to recover the same over in debt).

In (2), one must understand the principle of a summary judgment – which means the plaintiff (bank) is asking your case to be granted judgment in his favor as there is NO dispute of facts or law or there is no triable issues (as in the jargon). This means there is no full trial and the judge will make a decision based on what is stated in the Bank’s affidavit. This method is fast and cheap. Remember if you do not show up at Court then it is most likely you will get judgment in default (JID) (another type of judgment). The difference between the two is that in JID, it is by default (absent). What can you do in face of a summary judgment ? You need to reply and to state whether there are any dispute of facts or law. In debt cases, it is common for the bank to issue you with a certificate of indebtness. This is a very important document as it is conclusive evidence for the purpose that you owe the amount and can only be rebutted by evidence to the contrary (say something from the bank that says otherwise). Now if the Bank did not include this certificate for the remaining balance (as in this instance) then you may question this point. You should also pay attention to the format of a summary application which is unique and found in the Court Rule Book. An important element is that in the Bank’s affidavit, sources must be named (else this can be struck out). But remember even if you defeat this summary application, all it means is that the Judge will order for trial ( in short merely delaying the process). This may help you to renegotiate with the bank but it does not reduce the costs to you. Once a bank got a judgment against you then the bank will have to enforce this by either garnishee or bankruptcy. There are consequences to each of the methods here which you can find on the net. Suffice to say they are not pretty or helpful to your future.

In (3) and this is most frustrating because as a self-represented defendant you are not entitle to costs and in most bank cases (assuming you actually owed the bank money) will win, then you will need to face the costs of the bank’s legal costs. This amount may range from 5-50K depending on the complexity – the number of mentions – the interlocutories -the trial – etc. In my experience, unless the bank made a mistake or its lawyers made a mistake, then your chances of winning is not great or at all. The law on debt is old and clear which is to say a debtor must repay his/her debt and contracts are designed for this purpose. Again, my personal advice is that if you are in trouble with the bank please negotiate with them. There are facilities to help you without losing your home and even the banks will be reluctant to foreclose them. You can suggest a longer term, more guarantees, get a second job, anything to avoid the bank from initiating proceedings against you (which costs will be in your account). BTW, you are allowed to be present at the auction of your own home. The bank’s lawyers will be present as well and up to this time (before auction starts) it is still within your power to redeem your home by paying the full due amount.

Hope this may help some who are facing this problem and remember this is not legal advice and I do not have any relationship with you.

CK

Title: Airlines say fares will go up under ETS (at The West Australian 26.12.2009 at page 13)

(sorry I could not find the online version, so have only included parts of the article)

Domestic passengers face higher fares to cover the estimated $100 million cost of airlines’ greenhouse gas emissions if the emissions trading scheme is passed by Parliament next year, airlines warn…

Qantas and its low-cost sibling Jetstar says by 2012 they could be looking at an extra $50-$60 million in emissions costs to comply with the scheme and new emissions schemes in NZ and EU…….

The emissions scheme would cost Virgin Blue $50 million to $70 million, according to the arilines’ chief executive , Brett Godfrey……

Comments – I am thinking why can’t airlines be more proactive ? For example designing a plan/promotion to encourage its customers to reduce their carbon footprint and channel accumulate those fly credits to setoff in carbon credits ? The airlines could negotiate some arrangement with the government to modify JI to share credits with their customers. In this way, the airlines could use this situation to guide behavior changes of their clients and to earn somePR by involving its clients and environment in the same breath.

Alternatively, they could get into the market now and buy some CERs on the cheap. They could also do some CDM with non-Annex I countries and pick some CERs also on the cheap. Airlines could do a lot but whining is not one of them.

I also check Qantas’s Annual Report for 2008 and this 50 million is a drop in the ocean as compared to its 14 Billion in expenses (30 June 2009) or 0.4 %. ( http://annualreport.qantas.com.au/assets/pdfs/QantasFinancialReport200902IncomeStatements.pdf )

By footing this $50 million by buying CERs on the open market, the airlines could even write this off as expense or alternatively create new solutions to reduce their own carbon footprint (the costs here could also be write-off as R&D, investments in new equipment etc), researching in green fuels, optimising flight plans, buy fuel efficient planes, reduce the weight on board, etc.

Even if there is a complete failure to reduce their own carbon footprint, by simply transferring the cost to its passengers (Qantas has 25 million clients in June 2008), the max cost to each client is merely 2 dollars only (or the costs of a cup of coffee at the airport lounge). The ETS can never be used as a reason to hike price for profits.

CK

http://www.i4ilp.com/papers.php

here is a link for documents/files of i4i against M$ in a patent infringement case. Not only do you need the funding but also the time and energy.