A claim that is filed with the Strata Management Tribunal (SMT) may be classified either for negotiation or for hearing pursuant to the Strata Management (Strata Management Tribunal) Regulations 2015 (SMT Regulations).
The term negotiation is defined by BusinessDictionary.com as bargaining (give and take) process between two or more parties (each with its own aims, needs, and viewpoints) seeking to discover a common ground and reach an agreement to settle a matter of mutual concern or resolve a conflict. Uslegal.com defines negotiation as any communication process between individuals that is intended to reach a compromise or agreement to the satisfaction of both parties.
Negotiation involves examining the facts of a situation, exposing both the common and opposing interests of the parties involved, and bargaining to resolve as many issues as possible.
A hearing is a legal proceeding where an issue of law and fact is tried and evidence is presented to help determine the issue (legal-dictionary.thefreedictionary.com). A right to a hearing when one’s legal rights or obligations are poised to be compromised is a fundamental rule of law (www.duhaime.org’s Legal Dictionary). A hearing is generally distinguished from a trial. A hearing is usually shorter and often less formal than a trial.
Pursuant to the SMT Regulations, where the claim is fixed for hearing, the secretary of the SMT will issue on both the claimant and respondent a notice of hearing in Form 4 of the SMT Regulations.
Where the claim is fixed for negotiation, the secretary of the SMT will issue on both the claimant and respondent a notice of negotiation in Form 5 which will specify the date, place and time of negotiation.
The parties are requested to bring all witnesses, documents, records, materials or properties, in support of their claim/defence and counterclaim during negotiation. Where the claimant or the respondent fails to appear for negotiation after a notice of negotiation in Form 5 has been served upon him, the SMT will give a direction as it thinks fit and just.
The SMT will assess whether it is appropriate for it to assist the parties to negotiate an agreed settlement in relation to a claim. Where the SMT makes an assessment, it will have regard to any factors that, in its opinion, are likely to impair the ability of either one or both the parties to negotiate an agreed settlement. Where an agreed settlement is reached by the parties, the SMT will approve and record the settlement in Form 6. The settlement will then take effect as if it were an award of the SMT.
When the parties are unable to reach an agreed settlement during the negotiation process, the secretary of the SMT will issue a notice of hearing to the parties in Form 4 and the SMT will proceed to determine the claim. The date, place and time of the hearing will be specified in Form 4.
During the hearing, the parties will be entitled to put forward evidence, call any witness or produce any document, record or thing in support of their case. The SMT may decide whether to hold oral hearings for the presentation of evidence or oral arguments, or whether the proceedings will be conducted on the basis of documents and other materials. Where the SMT relies on any expert report or evidentiary document in making its decision, it will be communicated to the claimant and the respondent.
The SMT determines the rules and procedure when conducting the proceedings for the purpose of ascertaining the facts or law in order that it may determine a claim. It may conduct the proceedings in such manner it considers appropriate, necessary or expedient for such purpose. Every party will be entitled to attend and be heard at the hearing of a claim. All proceedings before the SMT will be open to the public.
After the claimant has presented his case, the respondent will then present his case. After both the claimant and the respondent have closed their respective cases, a brief oral or written submission may be made by the respondent and thereafter by the claimant. An award made after the hearing will be in Form 11 of the SMT Regulations setting out the order(s) of the SMT.
The official portal of the Housing and Local Government Ministry at www.kpkt.gov.my provides the contact details and location of the various strata management tribunals where the claimant may commence and file a claim against the respondent.
The writer is a member of the Malaysian Bar and practices at Amir Toh Francis & Partners. For feedback, email cphchambers @gmail.com
* This column is for your information only and does not constitute legal advice for your specific needs. It cannot disclose all of the risks and other factors necessary to evaluate a particular situation. You should seek and obtain independent legal or professional advice for your specific needs and situation. Neither the writer nor NST shall be liable to any reader who suffers whatsoever losses in reliance on this column.