The Small Claims Procedure was devised to help people sue without using lawyers. There are however restrictions. The small claim can be used to sue for the following claims only:
It cannot be used for the following claims:
If your claim qualifies as in the conditions (A) above and not prevented in prohibitions (B) above, first wite a Notice of Claim to the Defendan giving him time to pay and in it warn that if he doesn’t you will sue him in court. This warning may enable you to claim your costs, otherwise the Defendan may turn around and say that he would have paid and you on your own went to Court unnecessarily.
You may use this sample of Notice of Claim
After the expiry of time for Defendan to pay, next download these two forms.
Fill up the Form 164. Prepare 4 sets. (See a filled up Form 164 (164.htm) to see how it is done. Not much filling is needed. You may replace the blue sample wordings to suit your case) The form can be filled using black or blue pen, ball-point pen, or typewritten but you cannot use a pencil. Or if you have it downloaded into your computer, open it and edit it using MS Word and print it out. Get help from your son or daughter who knows how to use computer and internet.
Write legibly and clearly and if possible in block letters.
Fill up the Payment form. One enough. (Again replace the blue sample wordings to suit your case)
Send to the court with a Money Order / Postal Order valued RM 20.00 to the Registrar, Magistrates’ Court, Melaka (Pendaftar, Mahkamah Majistret, Melaka ) personally or by post
1. The Court will process your documents.
2. The Court will set a Trial Date and place the Court seal on the Summons.
3. The Court will keep one set and send back three sets for your action.
4. You give or serve personally the second copy on the Defendan or by AR Registrered post to his address.
5. If you serve him personally, get him to acknowledge at the back of the 4th copy.
6. If he refuses to sign, just leave the copy in his presence.
7. Next indorse at the back of 4th copy: “I did on (date) (time) serve a copy of Summons Form 164 the defendant personally. He acknowledged receipt at the back of this copy of Summons / he refused to sign.“
8. Prepare an Affidavit of Service (you can download and print a ready to use sample here) and attach the acknowledged copy (the 4th copy) to the Affidavit.
9. If you have served it by AR Registered post, get the AR Card back, attach this AR card to gether with the 4th copy. You have to prepare an Affidvit of Service. You have see a Commissioner for Oaths to get the Affdavit sworn. Send the original Affidavit to the Court. On the date fixed for Trial go to the Court with all your evidence, proof and witnesses,if any.
If you have used the Court Process Server’s services, he will serve the Summons, prepare Affidavit and file it in Court for you. You may have to pay a small servie fee (about RM 40) depending on how far Defendan’s address is from court and filing fee (RM 4)
See the flowchart for the stages that happen next.
IF YOU ARE SUED BY SMALL CLAIMS PROCEDURE HOW TO DEFEND?
If you are sued as an individual, a registered business, or as a Sdn.Bhd and
(a) admit the claim:
Download the Defence Form. Download the Payment Form.
The Form 165 (165.doc) for Defence Form.
Fill up If you have a counter-claim against the Plaintiff you can state in the form.
Send to the Court with a Money Order / Postal Order for RM 20.00
(b) if you dispute the claim you may have to consult a lawyer to file Statement of Defence.
Companies registered as Sdn Bhd have to employ a lawyer to represent the company in the Court.
The case then onwards will be treated as though has been filed in the First Class Magistrates’ Court.
TRIAL OF THE SMALL CLAIMS PROCEDURE
The Rules provide that the trial of the Small Claims procedure be done informally. Most probably the Magistrate will call the parties to his chambers, talk to them informally, ask for proof, and see the case himself. His aim is to settle the case. If the parties can not come to an agreement, he may conduct the trial in open court. In open court the Plaintif may have to go into the witness box and give evidence orally and tender proof of his claim. He may be asked to call his own witnesses who will do the same. Then the defendan will be asked to give evidence, tender proofs and call his own witnesses.
After the trial, the Magistrate may decide in one of the following ways:
I am satisfied that the Plaintiff’s Case is probable. I give judgment in favour of the Plaintiff with costs.
I am satisfied that the Plaintiff’s case is not probable. I dismiss the case with costs.
(If Defendant had made a counter claim ) Counterclaim is allowed with costs or dismissed with costs.
If you intend to somebody you can go to the Magistrates’ Court and watch the proceedings to accustomize yourself with the court settings.
The decision of the Small Claims case is NOT APPEALABLE to the High Court, except on points of law. You have to get legal advice on appealing on points of law.
The maximum costs allowable in the Small Claims Procedure is RM 100.00. You can include the cost of sending Notice of Claim, expenses of sending by AR Registered Post or expenses with Process Server, cost of preparing the Affidavit, filing fees, swearing fees, filing fees for Judgment.
If you won you have to file a Draft Judgment in one of these forms and send it to the court for approval free of charge.
Form Judgement for Plaintif where defendant was absent
Form Judgment for Plaintif after trial
The draft will be approved and sent back to you. Now you have to prepare four fair copies of the Judgment abiding by any amendments in the approved draft, in 4 copies, enclose payment of RM 20.00, payment form, together with the approved draft for placing the court seal and signature of the Magistrate/Registrar. Three copies will be sent back to you.
You now got the philosophical “paper judgment.”
When you get back three sealed copies of the fair Judgement. Send 1 sealed copy together with a letter demanding payment to the Defendant and give him specific time, like 2 weeks, one month to pay up. If he doesn’t pay up, now file a Notice to Show Cause in Form . You will have to do what you did for the Summons (Form 164 – file 4 copies, when you get back sealed copies, serve on the Defendan, prepare Affidavit, and file it in Court and for the Date for Defendant to show cause).
On the date fixed for Defendant to Show Cause go the Court. If the Defendan does not attend, or attends and the Magistrate deems that the Defendant failed to cause, he may order that execution can proceed. If the defendant can prove that he already paid you, he may strike out the Show Cause Notice and the matter ends there.
After this stage you have seek legal advice to proceed to execute your judgment.
The small claims procedure saves legal fees incurred for engaging a lawyer for the period between beginning the proceedings, to trial and upto the judgment stage.
After this stage you may still have to engage a lawyer to realize your fruits of winning.