WHERE TO SUE?
This procedure is carried out in the Small Claims Court (or the Magistrate Court) which hears cases between an individual plaintiff and a defendant whereby the amount claimed shall not exceed RM5,000.00.
HOW TO START?
Before proceeding to sue, we advise you to issue a Letter of Demand (LOD) to your debtor, provided they are reachable and you have all the evidences to prove your debts. The purpose of the issuance of LOD is to inform the debtors to pay the sum of debts within the time period stipulated, failing which you may commence any legal action against them. (A copy of this LOD could also be one of your proof that the debtors refuse to pay back the debts.)
HOW TO SUE?
The procedure to commence a small claims action is straight forward.
1. Obtain and submit the Form 198
- Head to the local Magistrate Court and request from the counter officer Form 198 (or it is called Small Claims Writ) and fill in accordingly. You are advised to keep the details easy and straight to the points. The details are as follows:-
- Sign the form or thumbprint it and hand over 4 copies to the Registry together with payment of RM10.00.
- The Court will inform you of the hearing date by returning you an extraction copy of the Form which includes the seal of the Court.
2. Serve the sealed Writ to the Defendant
- You need to serve the sealed Writ to the Defendant by way of personal service or by prepaid registered post addressed to the last known address of the Defendant.
- Do not try to serve the sealed Writ with a normal post because you need to prove that you have actually served the sealed Writ to the Defendant!
- You will need to file the Affidavit of Service. The fee is RM8.00.
3. The Defendant may defend or counterclaim your action
- The Defendant who has been duly served with the said Writ, may deliver the defence and counterclaim (if any) in Form 199 to be filed in four copies within 14 days after the service of the said Writ.
4. The Plaintiff may defend the counterclaim
5. Case Management (“CM”)
Once all the above is filed, the Magistrate Court will formally notify both parties to attend a CM. The parties are required to attend this CM for the administrative purpose in order to make the case to be efficient and time-saving, and also to get further directions from the Court. The Court may fix a hearing date on the CM date.
6. Hearing or Trial
Both parties are required to attend to a hearing or trial. The Court has the power to make any order that it thinks fit upon any absence of any parties.
- If the Plaintiff does not attend the hearing, the Magistrate can rule in favour of the Defendant and order the Plaintiff to be liable for the counterclaim (if any).
- If the Defendant does not attend the hearing, the Magistrate can rule in favour of the Plaintiff and order to Defendant to pay back the money claimed by the Plaintiff.
- If neither of the parties attends the hearing, the Magistrate can dismiss the action and throw out the case.
The official language of the Magistrate Court is Bahasa Malaysia. However, depending on the Magistrate, he, upon request, may allow the hearings to be conducted in the language of English.
You may have been watching some dramas about lawyers and you may imagine how does a hearing or trial looks like. Usually, the parties are allowed to cross-examine each other regarding all the facts and evidence of their case. Occasionally, the Magistrate would also conduct the hearing in an interview manner by asking questions to the parties.
7. Decision
The Magistrate will make a decision based on the facts, evidence and the submission made by the parties. It is entirely up to the Magistrate to decide whether to grant cost not more than RM100.00 to the winner of the case. If the Plaintiff wins, he is required to file an Order for the decision to be sealed by the Court. After that, he may proceed to execute the Order and seek payment from the Defendant.
WHAT IF THE DEFENDANT STILL REFUSES TO PAY?
Generally, the Defendant (or we call him as Judgment Debtor) is required to comply with the Order. However, you may be curious about what could happen if some stubborn people refuse to listen to the Court?
1. Let’s tell the Court!
The Plaintiff who just won the case, may make an application through Form 208 (also known as a Notice to Show Cause).
- After submitting this Notice to Show Cause, the Court will endorse it and you will need to serve it to the Defendant by using the same methods mentioned above, i.e. either by way of personal service or prepaid registered post)
- It will summon the Defendant to appear before the court and ask him the reason he is not complying with the Order.
2. What if he does not appear?
3. What if he appears?
- If the Defendant appears in court, the Magistrate may question him for the non-compliance.
- The Magistrate may make one of the following decisions:-
LEARNED SOMETHING TODAY?
Despite above saying no lawyers are required to represent you, but of course, you may consult our lawyers anytime if you need any professional advice and services to assist you in analysing the case and preparing the documents to strengthen your case.
If you have not heard about small claims procedure at all, please read our article: http://yeepartners.com.my/small-claims-procedure-sue-without-a-lawyer/
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Disclaimer:
The information published in this article is provided for general informational purposes only and does not constitute any legal advice from the Yee & Partners. Feel free to seek legal advice from our professional lawyers.