Malaysian Small Claims Court (Low Recommended Approach)
MALAYSIAN SMALL CLAIMS COURT
Procedures Provided By
Malaysian Session & Magistrate Court Judges and Lawyers
(All NGV users)
WHAT ARE SMALL CLAIMS ?
In Malaysia, small claim proceedings are heard in the Magistrate Court. Small claims are governed under the Order 54 Small Claims Procedures of the Subordinate Courts Rules 1980. The Magistrate Court will handle disputes between individuals or an individual making a claim against a business.
Your claim can be filed under the Small Claims Procedure if the amount in dispute or the value of the subject-matter of the claim DOES NOT EXCEED RM5,000.00.
IS IT COMPLICATED TO TAKE A CASE TO SMALL CLAIMS PROCEDURE?
Small Claims Procedure is a very simplified procedure. Nevertheless, those who are first-timer will find it a bit complicated mainly the legal jargon (or wordings) in the forms. Furthermore, words such as "judgment debtor", "defendant", "judgment", "hearing" and "adjourn" can be easily explained by a friend of yours, who is a lawyer. Just ask him/her on what the words means.
Knowing these legal jargons, it will be ultimately scary for your irresponsible installer to comprehend (understand). You knowing the small claims wordings work wonders in getting your irresponsible installer to cooperate.
Thus, you should learn to use these words during your negotiation with the irresponsible installer on issues of warranty, after sales services and repair disputes.
DOES IT MAKE SENSE TO FILE IN A SMALL CLAIM ?
It depends on the unique facts and the circumstance of your situation. Before filing a small claim you should try to settle the matter on an informal basis including sending a formal written demand (refer to LETTER OF DEMAND) to the other side. This should be the first action that you be doing, sending a Letter of Demand and Private Settlement.
An important issue you should take into account is the possibilities of collecting the money from the defendant if you win. It is likely that the irresponsible installer will not pay or drag payment until you become second-time frustrated. This had happens to several NGV users before. If the irresponsible installer does not pay up, you may contact CTOS (refer to CTOS) and providing them the court judgement to be placed into their FINANCIAL RECORDS. This will affect their financial status with financial institutions and other related parties.
HOW MUCH IS THE COST TO FILE A SMALL CLAIM ?
All you have to pay is the filing fee to start this action. The filing fee to file in a Small Claim is only RM10.00 only. You may also need to pay for prepaid register postage if you are effecting (executing) the service of Form 164 by post. Where you consult a lawyer, you will need to pay for advocacy costs.
Kindly tell your irresponsible installer it take RM10.00 to place him/her into alot of trouble with the Malaysian legal system. It will be much wise for him/her to warrant/repair/resolve your problem against a cheap RM10.00 legal action by Small Claims Court. Tell him that it is all about the Principle of Justice on Consumer Rights instead of the money.
Your small claims legal sue will start off with a simple Form 164, where it can be found at any Magistrate Court nearest to you. If not, you may just contact one of your lawyer friend (mainly litigation or law-sue lawyers) to obtain the form for you.
HOW DO I START A SMALL CLAIM ACTION ?
It does make sense to go to the Magistrate Court nearest to where you reside or where the person you want to sue resides or where the accident occurred, to file in a Small Claim. Obtain Form 164 - Summons Form from the Court Registry Clerk. The form is given free of charge.
In the first part of the form, fill in your full name, address and Identity Card number.
In the second part of the form, you should then state the company name, last known workshop address and company registration number of the defendant or the person you are suing.
In the third part, you must state the exact amount claimed and the particulars of your claim. The particulars must state the relevant date and how the claim has arisen or what is the basis of the claim. Having filled in the particulars, the form must be signed or right thumbprinted by you personally (no proxy or third party).
Having completed the form, you must file in the Form 164 in 4 copies in the Registry of the Second Class Magistrate's Court. You will be required to pay the filing fee of RM10.00. The Registry will put the seal of the Court on the 4 copies of the form and fill in the hearing date. A copy of the form will be returned to you.
Then you are done. You have established a legal action against your irresponsible installer over the disputed claims amount, what you are claiming on, who you are claiming against and getting a hearing date for an amount of RM10.00 only.
FROM LIMITED INFORMATION ABOVE, You would be successful in scaring your irresponsible installer to rectify your NGV problems on your car. Your ability to mention the SMALL CLAIM COURT PROCEDURE will be very intimidating to alot of NGV Installers, including responsible ones. This is how far you should go, unless your irresponsible installer challenges to sue him. If so, you should continue to read on.
WHAT SHOULD I DO AFTER THE FORM 164 IS SEALED BY THE COURT ?
You should serve the copy of the form duly sealed by the court on the defendant (your irresponsible installer).
The legal action of the Form 164 must be effected (executed) by:
Once the defendant received the form, he or she should be aware that your are suing him or her. Instruction and order to the defendant are stated in the sealed form.
You and the defendant will be requested to appear in the Court on the trial date stated in the sealed form. It is an interesting experience to appear in court in person. You will feel 'Justice Being Served' since you are suing, and NOT the other way around. You should look at the face of the irresponsible installers, and you will understand the expression 'death-duck-look'.
<<< THE FIGHT IS ON! >>>
WHAT HAPPENS IF MY DEFENDANT DENIES OR DISPUTE THE CLAIM ?
Dispute may refer to a situation where the defendant (your irresponsible installer) disagrees with the claim amount you filed in or question the truth of the statement of your claim. Where the defendant being duly served with the sealed Form 164 disputes the claim, he or she must file in a statement of defence in Form 165 - Statement Of Defence/Counter Claim Form before the date stated in the sealed form.
Form 165 is given free of charge. Form 165 must be filed in 4 copies and before the date stated in the sealed form which is normally 14 days after the service of claim. The defendant will have to fill in the particulars as to why he or she disputes the claim. If the defendant counterclaim, he or she will have to state the amount and the particulars of the counterclaim in the form. Counterclaim means the defendant is in the opposite manner making a claim on you. Form 165 must be signed or right thumbprinted by the defendant personally. Form 165 must then be filed in the Court Registry and he or she has to pay RM10.00 for filing fee. The Registry will put the seal of the Court on the 4 copies of the Form 165 and return a copy to the defendant.
The defendant will then serve the copy of the sealed Form 165 to you by
- personal service or
- prepaid registered post addressed to your last known address.
Thereafter, the defendant must appear in the Court on the trial date and time shown on the sealed form if he or she does not agree with your claim. To support the defendant case, he or she should bring all witnesses, books and other papers.
You may explain the entire administrative procedure for a counterclaim by your irresponsible installer. It is very tedious (for poor education installers) and an unnecessarily hassle (for high education installers). They need to fill up Form 165 to counterclaim, with the necessary facts and unjustification. In most cases, irresponsible installers do not practice good book-keeping or complaint records. They rely solely on 'frustrated customer walking away' instead of a Smart Consumer knowing how to claim against them. Explaining to them the hassle and effort to counter your legal action is normally sufficient to make them resolve your problem, Free-of-Charge or with a compromise.
DO I HAVE TO DO ANYTHING IF I DO NOT ADMIT THE DEFENDANT'S COUNTERCLAIM IN FORM 165 ?
Yes, you can. Where you have been duly served with Form 165 (irresponsible installer counterclaim) and that you want to dispute the claim, you must file in Form 166 - Defence to Counterclaim Form. Form 166 is given free of charge.
You must state the particulars as to why you dispute the counterclaim in Form 166. Thereafter, you have to sign or right thumbprint the form personally.
You should then file in the form in 4 copies in the Court Registry and pay a filing fee of RM10.00. The Registry will put the seal of the Court on the 4 copies of the form and return to you a copy.
This situation does exist among irresponsible and recklessly STUBBORN irresponsible installers. This is what you should do before taking any legal action (refer to 'How to Win Against Your Irresponsible Installer'):
(a) You need to go another installer for a problem diagnostic;
(b) Take digital picture (camera) as pictorial evidence for the Small Claim Court Judge (providing physical evidence that the conversion has not been done in accordiance to SIRIM MS1096:1997);
(c) Next, go to Your Car Original Service Center (Toyota at Toyota Services, etc) to get a check-up on the petrol engine and its condition. You can obtain a service report on the engine and its problem, caused or not caused by NGV conversion.
During your evidence gathering, your irresponsible installer will be thinking that you have gave up on claiming from him/her over the poor workmanship. In fact, you have disappeared to prepare a factual legal sue against him/her based on technical reports and pictorial evidence. These evidences are sufficient enough to make most irresponsible installer to SETTLE OUT OF COURT, before any legal action is taken. They know their chances of winning is low or impossible. His/Her counterclaim will be made almost impossible as there are factual evidence, and it is wiser for him/her to resolve your problem quietly (without any legal sue brought against him/her).
WHAT HAPPENS DURING THE HEARING OR TRIAL DATE ?
Trial for Small Claim is a simplified procedures and will not be like a trial you normally see on television. If both parties do not appear on the hearing, the action may be struck out, without prejudice, however to the restoration thereof, on the direction of the Judge.
An application for restoration must be made within 14 days of the hearing. Where an action is restored, notice of restoration in Form 73 must be given by the Registrar to the parties.
If the defendant does not file in his or her defence or counterclaim in Form 165, the Court may give judgment in Form 167 for you, the plaintiff, on the hearing date or may in its discretion adjourn the hearing to enable the defendant to file his or her defence.
If the defendant admits the claim in the statement of defence, the Court will give judgment in Form 170. Where you the plaintiff appear, the defendant is absent and on proof of service, the judgment to be entered shall be in Form 168. The Court may also dismissed the counterclaim with costs, if the defendant has a counterclaim.
Where the you the plaintiff are absent and the defendant appears, the Court may dismiss the action with costs if the defendant has no counterclaim. The Court may also give judgment for the defendant on his counterclaim if the defendant has counterclaim. This judgment to be entered shall be in Form 169.
YOU MUST APPEAR IN 1ST COURT HEARING AS STATED IN THE FORM 164 SEALED BY THE COURT REGISTRAR. Your absence can lead to losing the legal action against your irresponsible installer. We recommend you apply for ANNUAL LEAVE after filing in the Form 164 (with the confirmed TRIAL or Court Hearing date).
Where both parties appear at the hearing of the matter before the Court, the Court shall where possible assist the parties to effect the settlement of a case by consent. Judgment by consent shall be in Form 172.
Where both parties appear at the hearing and the matter is not settled, the Court may proceed to hear the case and give a decision thereon or may adjourn it to another date for final disposal. Judgment entered after a hearing shall be in Form 173.
Before deciding the case and giving judgment, the Court has the power to ask the parties for further information and in particular for a short description of the claim and defence as the case may be, if such description is not adequately supplied earlier.
The Court may also consider the documentary or other evidence, including affidavit evidence, tendered by the parties and in their presence shall bear such oral evidence and argument, including written argument, as the parties may submit.
The sealed judgment or order given must be served on the person against whom the judgment or order is made or given by prepaid registered post by the Court. Under Order 54 rule 15(1) of the Subordinate Courts Rules 1980, the Court may in its discretion award costs not exceeding RM100.00 to any one party.
It is correct to note that it is a long and inconvenient process. We recommend that you know the Malaysian Small Claims Court Procedure as a bargain tool. Let your irresponsible installer know that you have the knowledge to take legal action against them, thanks to NGV Users who are litgation lawyer, and several court judges in this community. You will probably win by explaining this legal process and without really filing in FORM 164 to execute LEGAL ACTION. It is the fear factor effect that we are providing you with - 'the ability/knowledge to Sue'.
WHAT IS A JUDGMENT ?
Where a party wins, the result is confirmed by way of a judgment.
A judgment is a statement or decision made by the Court and it can be in favor of the plaintiff or the defendant. If you win with a judgement, you may want to lodge a formal complaint with JPJ Technical Department against your irresponsible installer (together with the court JUDGEMENT). The installer may have his/her license revoked upon investigation by JPJ Officers (refer to Complaints to JPJ Technical Department).
Examples of the content in a Judgment are as follow :
"The summons having been duly served on the defendant (your irresponsible installer) and the defendant having failed to file his defence within the stipulated time, it is hereby ordered that the defendant do pay the plaintiff RM$2,800.00 and RM$200.00 costs."
"This action having this day been called on for hearing before His Honour (name) in the presence of the plaintiff, and the defendant not appearing, it is ordered that -
(a) the defendant do pay the plaintiff RM2,800.00 and RM200.00 costs;
(b) the defendant's counterclaim be dismissed."
WHAT SHOULD I DO IF THE JUDGMENT DEBTOR DOES NOT COMPLY WITH THE JUDGMENT GIVEN ?
Judgment debtor is the person against whom the judgment or order is made or given. It is generally called the losing party. In most cases, the judgment debtor will pay the judgment, in order to clear the judgment from the public record.
Where the judgment or order has been duly served on the person against whom the judgment or order is made or given by prepaid registered post by the Court, and that the person against whom the judgment or order is made has not complied with the judgment or order, the party who has obtained the judgment or order may file in the Court a notice to show cause in Form 174.
Form 174 must be served on the judgment debtor by
- personal service or
- prepaid registered post addressed to the defendants last known address.
Under the Form 174, the judgment debtor is required to appear before the Court on a certain date and time to show cause why an order for the enforcement of the judgment or order should not be made against him or her.
Enforcement of judgment or orders consists of a variety of procedures to enforce collection, where the judgment debtor is not paying voluntarily.
For the enforcement of judgments or orders, the Court after examining the judgment debtor may :
- order a writ of seizure and sale to be issued in Form 78 with such modification as may be necessary as to endorsement.
- allow the judgment debtor time to settle the judgment debt, or pay the debt by installments or
- order the judgment debtor to be committed to prison.
If you do not get paid, you may want to contact CTOS and file in a judgement record into their database. This way financial institution will be wary with your irresponsible installer, and he needs to settle any due payment with you before it can be financially clear (or record removed from CTOS database). We have found this method to be most effective, as well as filing a complaint with JPJ Technical Department over the judgement or non-payment.
The Malaysian Small Claims Court pathway (approach) is recommended if you are looking at amount between RM4000 to RM5,000 and you must be VERY ANGRY!. Alternatively, you have a lawyer as a best friend who is assisting you to get 'Justice Served' on your irresponsible installer.
If not, you should be just using the knowledge here to 'knock sense' into your irresponsible installers on what 'legal action' looks like. It is a great hassle for him during the process, and judgement against him can lead to 'Official Complaint with JPJ Technical Department' and bad CTOS record for no-payment.
Our legal advisors (court judges and lawyer who are NGV users) recommends this approach as your LAST action, or you must be MAD ANGRY and what the judgement to close down your irresponsible installer. If you are just angry, this is NOT your first choice, period.
But using the knowledge to scare is just a great effect with 100% fear impact to any irresponsible installer.