Prepared by:Farah Amalina bt Ab Ghani 2011846642Afifah Shariha bt Mohd Supi 2011873464Nurul Farah Amira bt Rusni 2011884368

Questions:David purchased a wedding package (inclusive of clothes and photographs) worth RM3,500 from Syarikat Cinta Sejati. However, he was dissatisfies with the services rendered particularly with the quality of the photographs taken. He had specifically instructed Syarikat Cinta Sejati to use its expertise to ensure that his fiancée, Anna, who is dark skinned, to appear fairer in the photographs. However, when the photographs were produced, Anna appeared darker than her usual self.

David was also dissatisfied with the clothes that he had rented from Syarikat Cinta Sejati as they appeared no to have been washed. To make matters worse, some of the clothes were torn and faded. Consequently, David who is allergic to unwashed clothes suffered from rashes and other skin related problems all over his body.

David wants to seek compensation form Syarikat Cinta Sejati.

Advise David on: (a) The most appropriate method for him to

choose other than litigation. Cite reasons for the chosen method.

The most appropriate method for David to choose other than litigation is through a statutory body called the Tribunal for Consumer Claims. This statutory body is established to support the application of ADRs in Malaysia. The tribunal is set up to assist the disputing parties to negotiate for an agreed settlement which the tribunals will hold a hearing to determine the dispute.

The first reason David’s claim should be brought to the Tribunal for Consumer Claims is on the ground that David has suffered loss for the cost of wedding package worth RM3,500. According to Section 98(1) of the Consumer Protection Act 1999, the tribunal shall have jurisdiction where the total amount in respect of the award does not exceed RM25,000. Thus, it is appropriate if David seek compensation for his loss under the Tribunal for Consumer Claims because his claim is less than RM25,000.

Secondly, the Tribunal for Consumer Claims is also a specialised court to determine disputes between consumers and traders. The Tribunal for Consumer Claims is an independent body with the primary function of hearing and determining claims lodged by consumers under the Consumer Protection Act 1999 subject to the provisions of the Act. Therefore, David can make his claim to the Tribunal for Consumer Claims because it provides jurisdiction specifically applicable over claims brought by consumers.

Thirdly, the Tribunal for Consumer Claims offers a simple, inexpensive and speedy manner dispute for all claims. It is as an alternative channel, apart from courts, for a consumer to file a claim for any loss suffered in respect of any goods or services purchased even though every state has Small Claim Courts which provides hearing for claims involving amounts of RM5000 and below.

Fourthly, the Tribunal for Consumer Claims would provide for a more flexible hearing. This is because it is less demanding and more approachable method rather than the complicated procedures of litigation process in court. This is one of the reasons why consumers with small amount of claims like David should choose Tribunal for Consumer Claims to hear and determine their disputes.

Thus, the Tribunal for Consumer Claims will be the most appropriate method other than litigation for David to seek compensation from Syarikat Cinta Sejati.

(b) The procedure for the chosen method, from

its initiation until its completion.

The most appropriate method for David to claim

the damages suffered are by claiming under

Tribunal for Consumer Claim. Tribunal for

Consumer Claim is governed under Consumer

Protection Act 1999 (CPA 1999). In doing so, he

must comply with the laid down procedures of

the tribunal.

Firstly, David must have cause of action to make claims. In this problem, David purchased a wedding package worth RM3,500 whereby both clothes and photographs are included.

He had also specifically instructed Syarikat Cinta Sejati to use its expertise to ensure that his fiancee, Anna, who is dark skinned, to appear fairer in the photographs.

However, the photographs he received were not complied with his instruction because Anna appeared darker than her usual self. Syarikat Cinta Sejati also failed to practice reasonable care and skill which caused the clothes appeared not to have been washed. Plus, some of the clothes were torn and faded.

In application, David has cause of action to make claims against Syarikat Cinta Sejati due to the fact that he has purchased a wedding package worth RM3,500 whereby both clothes and photographs are included.

Thus, David has cause of action to make claims against Syarikat Cinta Sejati. Therefore, he is entitled to bring the matter to the tribunal. On top of that, in order for a consumer to make a claim against a trader to the Tribunal for Consumer Claims, the consumer must ensure that his claims does not exceed RM25,000. This is by virtue of Section 98(1) of the CPA 1999 where it states that the tribunal shall have jurisdiction where the total amount in respect of the award does not exceed RM25,000.

In this question, David has suffered loss for a wedding package including clothes and photographs worth RM3,500. Therefore, David has the rights to bring up his claims to the tribunal because it is less than RM25,000.

Besides that, after filing Form 1, a consumer needs to

serve the claim to the trader. In this case, David needs

to serve the claim to Syarikat Cinta Sejati. In the

notice of claim and hearing where upon the claim

being lodge, the Secretary of the Tribunal shall give

notice of the details of the day, time and place of

hearing in the prescribed form to the claimant and the

respondent as provided in Section 106 of CPA 1999.

After that, it will proceed with negotiation for settlement. According to Section 107(1) of CPA 1999, the tribunal shall assess whether it is appropriate in all circumstances for the tribunal to assist parties to negotiate an agreed settlement in relation to the claim. In making the assessment, the tribunal shall have regard to any factors that are likely to impair the ability of either or both parties to negotiate an agreed settlement by virtue of Section 107(2) of CPA 1999.

In this stage, the trader can contact the consumer to discuss the claim for purpose of explaining the dispute or to discuss on how to settle it. If the parties reach an agreed settlement, the tribunal shall approve and record the settlement and the settlement shall take effect as it is an award of the tribunal as provided in Section 107(3) of CPA 1999.

However, if it appears to the tribunal that it would not be appropriate for it to assist the parties to negotiate an agreed settlement or where the parties are unable to reach an agreed settlement in relation to the claim, the tribunal shall proceed to determine dispute as stated in Section 107(4) of CPA 1999.

In this situation, the trader (Syarikat Cinta Sejati) should file Form 2 to the tribunal. Form 2 should state their defence or explanation to the claim.

Prior to the hearing, the parties must prepare for the relevant documents regarding the claims and get ready any witness for the hearing.

During the hearing, any party can bring along family members, friends, and etc to assist the party at the hearing. However, no lawyers are allowed to represent parties at the hearing. According to Section 109 of CPA 1999, the proceeding is open to the public.

In order to get evidence, the tribunal can issue a summons and served it and enforced it as if it were a summons issued by a subordinate court.

On the other hand, according to Section 16Z of CPA 1999, before the tribunal makes an award under Section 112, it may in its discretion refer to the High Court a question of law which arose in the course of proceedings. The tribunal may do so if that matter may raise sufficient merit or doubt to the case. If the Tribunal refers any question of law to the judge of High Court, it shall make award in conformity with such decision. In that situation, a Federal Counsel authorized by the Attorney-General may appear on behalf of the Tribunal in proceedings before the High Court.

If the claim is settled with the consent of both parties, according to section 112, the tribunal shall make its award without delay and where practicable within 60 days from the first hearing before the tribunal commences. An award of the tribunal may contain one or more of the following:

a)That a party to the proceeding pay money to any other party;

b)That the goods be supplied or resupplied in accordance with this Act or the contract to which the consumer is a party;

c)The goods supplied or resupplied to the consumer be replaced or repaired;

d)That the price or other consideration paid by the consumer or any other person be refunded to the consumer or that person;

e)That a party comply with the guarantee;

a) That money be awarded to compensate for any loses or damage suffered by the claimant;

b) That the contract be varied or set aside

c) That costs to or against any party be paid

d) That interest be paid on any sum or monetary award at rate not exceeding eight percent per annum, unless it has otherwise be agreed between the parties.

e) That the claim is dismissed.

Nothing in paragraph (1) (j) shall be deemed to empower tribunal to award any damages for any pecuniary loss or damage.

In this case, if David manages to win his claims, the tribunal may give any of the above awards to him. For this problem, the most probable award is under Section 112(c), (d), (e) and (f).

In giving award, the Tribunal shall give its reasons for its decision in the proceeding. It is stated under Section 114 of CPA 1999. If there is agreed settlement between David and Syarikat Cinta Sejati, the Tribunal shall make written record of terms of the agreed settlement reached by them also every award made by it under Section 112 of CPA 1999.

According to Section 116 of CPA 1999, every agreed settlement may be recorded by the Tribunal and every award made by the Tribunal shall be final and binding on all parties to the proceeding. It is deem to be an order from the Magistrate Court and can be enforced accordingly by any party to the proceeding.

Next, the secretary of tribunal shall send a copy of the award made by the Tribunal to the Magistrate Court and it will be recorded.

After the award is given, David and Syarikat Cinta Sejati need to comply with the award. The failure to do so within 14 days may result to criminal penalty by virtue of Section 117 of CPA 1999. In such event, the offender may be convicted to a fine not exceeding RM 5,000 or imprisonment for a term not exceeding two years or both. In the case of continuing an offence, the offender will be liable to a fine not exceeding RM 1,000 for each day or a part of a day which offence continues after conviction.

The Tribunal shall adopt such procedure as it thinks fit and proper. In applying the above provision, if David and Syarikat Cinta Sejati were failed to comply with the award made by the tribunal, they could be convicted to a fine not exceeding RM5,000 or imprisonment not exceeding two years or both. If any of them continuously fails to comply with the award, they would be liable to a fine not exceeding RM 1,000 for each day or a part of a day.

Lastly, in accordance with Section 120 of CPA 1999, at the conclusion of the proceeding, the Tribunal shall order any document, record, material or other property produced during the proceedings be delivered to the rightful owner or be disposed in such manner as it thinks fit. If no person has taken delivery of those documents and materials within six months, the ownership of the documents should be deemed to have passed to and become vested in the Government.