Scheme of Arrangement (SOA) in the Rehabilitation of Abandoned Housing Projects: A Case Study of Malaysia

Md Dahlan, Nuarrual Hilal (2013) Scheme of arrangement (SOA) in the rehabilitation of abandoned housing projects: A case study Of Malaysia. Asian Studies International Journal, 1 (1). pp. 36-53. ISSN 2279-1949

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Abstract

If a company is insolvent and is unable to pay its debts, it may be subject to a scheme of arrangement (SOA) on the application of the creditors or members or the liquidator or the company itself. The usual purpose of SOA is for the SOA manager to take over the affairs and business of a debtor insolvent company in order to settle off the debts of the creditors and once all the debts are fully paid, the control of the debtor insolvent company will be handed over back to the previous management. The SOA manager is armed with certain powers and duties in the SOA administration. The benefit of obtaining SOA is to give some time to the SOA manager to run the debtor insolvent company in order to settle its debts. Moratorium power will be given to SOA Manager against any actions and proceedings by the creditors in the course of the SOA administration. This moratorium power is to allow the SOA manager to exercise the SOA effectively without any interference by the creditors and the members of the debtor insolvent company. In respect of insolvent housing developer company which becomes subject to SOA, similar duties are carried out by the appointed SOA manager, viz to take over the affairs of the company, to settle off all the debts of the creditors, to carry on any project and business left by the company if this is expedient in accordance with the law and the wish of the creditors or the members. Once all these have been dispensed with, the affairs and management of the company will be handed back to the previous management.

Keywords: Scheme of Arrangement (SOA); Insolvency Administration; Rehabilitation; Abandoned Housing Projects; Grievances of Purchaser.

Doctrine of laches and its application in actions founded on contract in Malaysia

Md Dahlan, Nuarrual Hilal (2002) Doctrine of laches and its application in actions founded on contract in Malaysia. Malayan Law Journal, 2 (2002). Ixxx-xcvi. ISSN 0025-1283

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In a remedial contractual action, the limitation period plays an important part before one commences an action against the defaulting party to a contract. The provision of a limitation period to enforce a contract is found in section 6 of the Limitation Act 1953 (‘the Act’). By virtue of this provision, one has to commence remedial action either in the form of specific performance or damages within six years from the date of accrual of the cause of action, failing which his action is deemed to have failed and shall be struck out by the court. Apart from this, at common law and in statutory footing under the Malaysian Limitation Act 1953 (Act 254), there is another equitable doctrine that could affect the plaintiffs action.This doctrine is called the doctrine of laches.In short, this doctrine states that if the plaintiff commences an action with unreasonable delay (laches) after the accrual of the cause of action, his action will be defeated.

Keywords: Doctrine of Laches; Contract; Limitation Period; Equity.

Konvensyen Akademik Kebangsaan Universiti Awam Malaysia 2016 (KAKUAM2016)

poster kakuam

A national convention assembling all academics in Malaysian public universities to discuss issues related to the academic welfare and higher education in Malaysia.

Working papers that will be delivered and discussed by invited distinguished speakers and experienced panelists:

  1. Peranan, Sumbangan Pensyarah,  dan Perkhidmatan Pensyarah Universiti Awam  dalam Perkhidmatan Awam di Malaysia: Dasar, Cita-cita dan Cabaran;
  2. Dasar, Pelaksanaan & Cabaran Autonomi Universiti Awam;
  3. Gerakan Persatuan  Staf Akademik di Universiti Awam, Cabaran dan Realiti;
  4. Amalan Semasa dan Cabaran dalam Bidang Pendidikan Tinggi – Melahirkan Cendikiawan Bertaraf Dunia & Ranking Dunia;
  5. Amalan Semasa dan Cabaran dalam Bidang Pendidikan Tinggi – Tadbir Urus; and,
  6. Kelestarian Kepimpinan Universiti Awam: Cita-cita, Dasar, Pelaksanaan dan Cabaran.

 

Shariah and legal issues in house buying in Malaysia: The legality of Bay’Bithaman-Al-Ajil(‘BBA’) with special reference to abandoned housing projects

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Md Dahlan, Nuarrual Hilal and Syed Abdul Kader, Sharifah Zubaidah (2011) Shariah and legal issues in house buying in Malaysia: The legality of Bay’ Bithaman al-Ajil(‘BBA’) with special reference to abandoned housing projects. Pertanika Journal of Social Sciences & Humanities , 19 (2). pp. 349-361. ISSN 0128-7702

Abstract

The primary duties of Islamic banks and financial institutions in Malaysia are to carry out Islamic banking and financial activities and to offer products that are in accordance with the Islamic teachings. These products are subject to the scrutiny and approval of Bank Negara’s Shariah Advisory Council (SAC) and the internal Shariah Advisory Bodies (SAB) or the Shariah Committees of the respective financial institutions.Despite having been in existence for more than 25 years, in the authors’ view, it is still questionable whether or not the Islamic banks and financial institutions in Malaysia have been satisfactorily carrying out these duties. One area worth examining is the transaction involving house buying, particularly the one that falls under the purview of the Housing Development (Control and Licensing) Act 1966 (Act 118) and transactions involving houses pending completion. This paper examines this area of transaction and the loan agreement, affected via Bay’ Bithaman al-Ajil (BBA), provided by Islamic banking and financial institutions in Malaysia.The purpose is to see to what extent the sale and purchase agreement and the loan agreement have complied with the requirements of the Islamic Law in protecting stakeholders and to provide practical suggestions to improve the existing practice.The paper concludes that the current practice of the BBA contradicts with the teachings of Islam and should therefore be modified and revamped until it is fully able to protect the interests of the purchasers/borrowers.

Keywords: Bay’ Bithaman al-Ajil, Gharar al-Fahish, Islamic Banking Law, abandoned housing projects, Malaysia

Comparative legal analysis between the rehabilitations of the failed residential projects of the liquidated housing developer companies in Malaysia and the Republic of Singapore

Md Dahlan, Nuarrual Hilal (2012) Comparative legal analysis between the rehabilitations of the failed residential projects of the liquidated housing developer companies in Malaysia and the Republic of Singapore. Journal for Global Business Advancement, 5 (2). pp. 126-149. ISSN 1746-966X

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Abstract

This paper discusses the liquidation law and practice in the rehabilitation of failed residential projects in Malaysia of the liquidated housing developer companies in comparison with the position in the Republic of Singapore.This paper is the fruit of a legal case studies research funded by the Ministry of High Education Malaysia (MOHE) through the FRGS Grant. The objective of this paper is to highlight the problems in the current liquidation laws applicable in Malaysia and Singapore in the face of the failed residential projects’ problems and the grievances of the purchasers. This paper suggests that there are lacunae in the current law of liquidation and insolvency in Malaysia and Singapore in dealing with the rehabilitation of failed residential projects for protecting the rights of the aggrieved purchasers. This paper also proposes solutions for the lacunae and the problems.

Keywords: liquidation law issues; failed residential projects; rehabilitation; liquidation of housing developer companies; Malaysia; Republic of Singapore.

Issues of Khiyar (option) in housing agreements in Peninsular Malaysia

lestari30Md Dahlan, Nuarrual Hilal (2014) Issues of Khiyar (option) in housing agreements in Peninsular Malaysia. Malayan Law Journal, 1. pp. 1-21. ISSN 0025-1283

Abstract

It is well entrenched in lslamic Law that khiyar is an inherent right of the contracting parties in a contract.This right provides the contracting parties with a right of option to void the contract they entered into if the subject matter of the contract does not comply with the specifications, terms and conditions of the contract.In Peninsular Malaysia, all house purchasers who wish to buy houses built by the licensed housing developers who are subject to the Housing Development (Control and Licensing) Act 1966 (Act 118) and subject to the control of the Ministry of Housing and Local Government (MHLG) are required to use the prescribed housing statutory standard sale and purchase agreements as contained in Schedules G, H, I and J (‘the said agreements’). However after close scrutiny over the said agreements, there is no term of khiyar provided.  Thus, due to the absence of term of khiyar in the said agreements, the said agreements, it is submitted, are null and void under lslamic Law. Likewise, it follows that due to this nullity, the subsequent housing transactions involving loan agreements, effected through Bai’ Bithaman al-Ajil (BBA), Musharakah Mutanaqisah, ljarah Thamma al-Bay’ and Istisna’ used by lslamic banks, may also be affected and are void.This academic paper is a fruit of a completed research undertaken by the author.Its objective is to discuss and explore the issues of khiyar in the said agreements, particularly when the housing projects are abandoned.The author used qualitative legal research methodology to unravel the issues of khiyar in the said agreements.This paper contends that due to the absence of khiyar in the said agreements, the said agreements have not complied with the requirements under lslamic law and could cause the housing transactions and the subsequent loan transactions entered into by the purchasers/borrower, developers and lslamic banks, void too.This paper also provides certain proposals to improve the current terms and conditions in the said agreements in order to render them harmonious with the spirit and intent of lslamic law.

Keywords: khiyar; housing statutory standard sale and purchase agreements; abandoned housing projects in Peninsular Malaysia; housing law in Peninsular Malaysia; lslamic law.

Issues in the statutory housing sale agreements in Peninsular Malaysia: A case study of abandoned housing projects

Md Dahlan, Nuarrual Hilal (2015) Issues in the statutory housing sale agreements in Peninsular Malaysia: A case study of abandoned housing projects. The Law Review. pp. 377-397. ISSN 1985-0891

Abstract

The use of statutory housing sale agreements (“the said agreements”) as enshrined in the Housing Development (Control and Licensing) Regulations 1989 is mandatory for all housing developers in Peninsular Malaysia.The use of the said agreements is to ensure protection to house purchasers against irresponsible housing developers.However, in practice, it is evident that the terms of the said agreements are inadequate to provide purchasers with the required protection particularly in abandoned housing projects. This paper aims to highlight this issue.This paper is also the fruit of a research exercise using legal research and qualitative case study methodologies. It finds that there are certain lacunae in the terms of the said agreements that have caused the said agreements’ inability to face the problems of abandoned housing projects to the detriment of the house purchasers’ rights.Further, there are certain housing transaction practices that have caused grievances to the house purchasers. The author provides, at the ending part of this paper, some proposals to overcome the highlighted problems.This is a part of the initiatives to strengthen the said agreements to become more protective to house purchasers.

Keywords: Statutory housing sale agreement, issues, abandoned housing projects, Peninsular Malaysia, grievances to purchasers.

Issues in the Malaysian statutory housing agreements (Schedules G, H, I and J): “Defect Liability Period”

Agreement

Md Dahlan, Nuarrual Hilal (2015) Issues in the Malaysian statutory housing agreements (Schedules G, H, I and J): “Defect Liability Period”. The Law Review (2). pp. 254-273. ISSN 1985-0891

Abstract

Defect liability period clause is provided in the statutory housing agreements-Schedules G, H, I and J (“the said agreements”). However, this liability may not be provided if the housing project is abandoned. Thus, in the event of housing abandonment, the purchasers may not be able to get protection under defect liability period clause. Due to this lacuna, the rights of purchasers can be undermined. This paper aims to highlight this issue-defect liability period in the said agreements, particularly involving abandoned housing projects in Malaysia. This research paper used a pure legal research methodology.This paper finds that due to the absence of specific clause of defect liability period in the said agreements in the event of housing abandonment, the rights of the purchasers will be denied and they will suffer irreparable damage. At the ending part of this paper, the author suggests some recommendations to settle the issues identified.

Keywords: Abandoned Housing Projects in Malaysia, Defect Liability Period, Statutory Housing Agreements, Legal Issues, Purchasers’ Grievances, Recommendations.

Comparative legal analysis on the viability of judicial management on insolvent residential developer companies in Malaysia, The Republic of Singapore and The United Kingdom

Md Dahlan, Nuarrual Hilal (2015) Comparative legal analysis on the the viability of judical management on insolvent residential developer companies in Malaysia, The Republic of Singapore and The United Kingdom. Malayan Law Journal, 2 (20). pp. 1-15. ISSN 0025-1283

Abstract

Recently, the corporate law reform committee (‘CLRC’) operating under the companies commission of Malaysia (‘CCM’) has recommended that judicial management (‘JM’) be introduced in Malaysia as one of the ways to deal with corporate insolvency matters. The application for appointment of judicial manager may be made by the company itself, the directors or the creditors. The judicial manager is armed with a moratorium power against any action taken which may be commenced by the creditors and others to ensure that he can effectively carry out his duty. The moratorium power will enable him to prepare and implement the approved restructuring plan for the benefits of the insolvent company and its creditors.This paper aims to elaborate the CLRC’s recommendations on JM and study its strengths and weaknesses particularly in dealing with the problems of failed residential projects of insolvent residential developer companies. This paper is also a result of research conducted through a comparative legal research methodology. Two jurisdictions, viz the Republic of Singapore and the United Kingdom have been selected for comparative analysis over their respective laws and practices on JM. Further, this comparative study is to investigate, identify and find the respective jurisdictions’ strengths and weaknesses on JM, which Malaysia can learn from particularly in the face of the failed residential projects’ problems. This paper finds that the recommendation by the CLRC for the appointment of judicial manager is commendable. Nonetheless, it is submitted that, in the insolvency management of insolvent residential developer companies with failed residential projects, the judicial manager who is armed with certain statutory and legal powers still cannot fully provide comprehensive solution in dealing with the rehabilitation of failed residential projects and cater to the rights of the aggrieved purchasers. Equally, this paper suggests certain proposals to improve the corporate rehabilitation mechanism carried out by the judicial manager in insolvency Administration involving insolvent residential developer companies whose residential projects failed.In the course of carrying the JM, this paper also suggests certain ideas on how to protect the rights and interests of the aggrieved purchasers in failed residential projects.

Keywords: Failed Residential Projects; Judicial Management (‘JM’); Rights of Aggrieved Purchasers; Rehabilitation; Malaysia.

Legal issues and prospects in the protection and assistance of internally displaced persons (IDPs) in Nigeria

Ekpa, Shedrack and Md Dahlan, Nuarrual Hilal (2016) Legal issues and prospects in the protection and assistance of internally displaced persons (IDPs) in Nigeria. Journal of Law, Policy and Globalization, 49. pp. 108-116. ISSN 2224-3240

Abstract

Internally displaced persons (IDPs) lived within the borders of their own country thus the responsibility for their protection and assistance rests on their national government. IDPs are not so privileged like refugees whose protection is guaranteed in international law. The protection and assistance of IDPs is encumbered by series of legal and institutional constraints in Nigeria. These concerns are interminable and preponderates all phases of internal displacement such as pre-displacement, displacement and post displacement. This paper aims at exploring into these bulging challenges with a view to bringing to the fore their intractable influence on the protection needs of IDPs.The paper also delves in examination of laudable efforts of Nigerian Government in a bid to ameliorate these challenges either by way of statutory interventions or policy initiatives. The paper as a conceptual analysis relies on primary sources such as international legal instruments, Nigerian domestic legislations, case law, and secondary sources such as textbooks, journal articles and other library based sources. This study is significant as it brings to the fore the imperative needs to address the prevailing difficulties faced by internally displaced persons as a result of unending surge in internal crises in Nigeria At the end of this discourse, the paper founds inter-alia that good laws and policies without the appropriate political will to implement them for the betterment of IDPs as part of the entire citizenry would remain dead letters. The paper recommends the adoption and implementation of relevant instruments and policies on IDPs’ protection in Nigeria and review of extant laws and policies as a way of bridging the gaps in the protection cycle of IDPs in Nigeria.

Keywords: Displacement, Persons, Protection, Responsibility, Challenges, Nigeria