SMALL CLAIMS PROCEDURE
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:
HOW TO USE THIS PROCEDURE ?
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.
A blank Form 164
(164.doc) the Summons Form. (You can open using Word or Save to disk and open
later.). Download the Payment Form. (payment.doc)
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
AFTER YOU HAVE FILED
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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. |
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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.
COSTS
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.
ENFORCING YOUR VICTORY
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
Form
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).
HEARING OF THE NOTICE 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.