13 December, 2018
If you have a debt of RM5,000.00 or less owed to you, you have the right to initiate a civil action against the debtor to claim back the amount owed. This process is called a small claims action and it is done through the Magistrates Court pursuant to Order 93 of the Rules of Court 2012. No legal representation is allowed in a small claims action. This means that parties are to represent themselves individually. Only a defendant is able to be represented by an authorized person if that is expressly required by law . For example, if you are a Company, and you are being sued by a Plaintiff in a small claims action, you must be represented by a lawyer pursuant to Order 12 rule 1(1) of the Rules of Court 2012. This is because a Company cannot “self-represent” under law.
The process to file a small claims action is straightforward. Here are the procedures involved to initiate a small claim action:
- obtain Form 198 or also called the Small Claim Writ and Statement of Claim from any Magistrates Court in Malaysia and draft out the particulars and details of your claim that you intend to seek. Once that is done, you must sign the Form personally or thumbprint it accordingly;
- prepare four (4) copies of the Form and e-file it to Court accordingly;
- once you have e-filed the Form, you will obtain an extraction copy of the Form which includes the seal of the Court;
- determine the address of the Defendant and serve the extracted copy of the Form to the Defendant;
- the Defendant will then respond to the particulars of your claim through Form 199 of also known as Defence and Counterclaim (if any). Similarly, the Defendant must include all the details and particulars of in disputing the Plaintiff’s claim, signed it and e-file it to Court accordingly; and
- if there is a counterclaim, the Plaintiff may file a further document under Form 200, also known as Defence to Counterclaim.
Once all of the above is filed, the Magistrates Court will formally give notification to both parties to attend a Case Management (“CM”) date. CMs are attendance in Court required by both parties to sort out the administrative aspects of the case. Once the Court fixes a CM to the case, parties are required to attend to get further directions and also to fix a hearing date.
Together with the hearing date, the Court will also fix for a date for parties to prepare and file Witness Statements and Bundle of Documents if needed. Witness Statements are written statements used in Court during the hearing, usually in a question and answer (Q&A) format. It’s prepared for purposes of setting out the chronology and facts of the case pertaining to the claim. Usually, the witness involved would be the primary person that is directly involved in the case, for instance, the debtor or the creditor. The Bundle of Documents are documentary evidence that may include correspondences, agreements and other relevant documents that are relevant to establishing the Plaintiff’s small claim action.
Once Witness Statement is filed, parties would then be required to attend the hearing day, or trial. The official language of the court is Malay. However, depending on the magistrate, hearings may also be conducted in English. More often than not, the hearing would be conducted akin to a trial format. In this regard, parties are allowed to cross-examine each other or question each other in regards to the facts and evidence of the case. Sometimes, the Magistrate would also conduct the hearing in an interview manner, whereby instead of the parties cross-examining each other, the Magistrate would be the person posting the questions to the parties.
The Court would then usually allow parties for a closing submission whereby both parties are given a chance to present their points in summary to convince the Magistrate to decide in their favour. Once this is done, the Magistrate would then deliver the decision and verdict of the hearing and decide whether the Plaintiff’s claim is allowed or dismissed. At any time before deciding on the case, the Magistrate is empowered to ask the parties for further information.
The winning party is then required to file an Order to Court for the decision to be sealed by Court. Once the Order is sealed and extracted from Court, if the decision favours the Plaintiff, he may proceed to execute the Order and demand payment from the Defendant. The winner will usually also be entitled to costs, but the amount is subject to the discretion of the Magistrate and it will not exceed RM100.00.
The entire process for a small claim action is intended to be swift and efficient. It may be completed within the timeline of 3 to 4 months from initiation to the extraction of the Order, subject to the court’s schedule and barring any unforseen delays.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
