Written by Richard Wee, Fatin Ismail and Tee Jae Ei
In 2021, the Domestic Trade and Consumer Affairs Ministry (“KPDNHEP”) has recorded a stark increase of 112.5% in online consumer complaints. This comes as no surprise, as the Covid-19 pandemic has become the turning point for businesses and consumers to go online. With that, the risks of online scams, manipulation of price and more have also grown along with the online business boom.
Yes, if you are a consumer that buys goods or services for your own personal use and, you have unfortunately encountered situations like paying for hidden charges, not receiving ordered items or more, then you may file a complaint at the Tribunal for Consumer Claims (“TTCM”).
What if you don’t fall under the category of consumer or buyer? What if it is the other way round? For instance, you are a college student that decided to sell your home-made crochet tank top online, and one day you received a big order worth RM1,000, but you had a dishonest customer that only paid for half of the order and refused to pay for the rest.
So what now?
Small Claims Procedure
With the abovementioned example, it is suggested that the Small Claims Procedure under O 93 of the Rules of Court 2012 (“the ROC 2012”) can be an option to go with, as it is introduced to be a “quick, simple and cheap” remedy for small claims under the Malaysian legal system.
Do take note of the prerequisites before going for this route, as follows:
- The person that is bringing the action in court/the party who is seeking for relief or remedy or the Plaintiff must be an individual person — O 93 r 1 of the ROC 2012;
- Subject Matter of the claim must be below RM5,000 — O 93 r 2 of the ROC 2012;
- The Defendant or person that is defending the claim/ the party against whom relief or recovery is sought in the claim is not limited to just an individual, any legal entity such as company or agent can be sued — O 93 r 1 of the ROC 2012; and
- No legal representation is allowed for both parties, except where the Defendant is required by law to be represented by an authorised person — O 93 r 7 of the ROC 2012.
Procedure of filing a Small Claim — Guide for Plaintiff
Go to the nearest Subordinate Court Registry and requesr for Form 198, a writ — O 93 r 3(1) of the ROC 2012
Once the Form 198 is obtained, Plaintiff should follow the instructions that are provided in the form and proceed to fill up the details in the form. Make sure that particulars like the amount and particulars are stated in the form — O 93 r 3(2) of the ROC 2012
Once the required details are properly filled up, the Plaintiff must remember to sign or thumbprint Form 198 personally — O 93 r 4 of the ROC 2012
Upon completing the Form 198, the Plaintiff should proceed to file the form in court. This can be done either through Manual Process or Online Process.
- The plaintiff should prepare four copies of the completed Form 198 and submit it to the Subordinate Court Registry upon payment of prescribed fee — O 93 r 5(1) of the ROC 2012
- The court will then inform the Plaintiff on the Hearing date.
- It is to be reminded that the Plaintiff shall serve the sealed Form 198 by way of personal service or prepaid registered post to Defendant’s last known address — O 93 r 5(2) of the ROC 2012
- Do take note that after the Form has been served, despite the provision is silent, the Plaintiff may file an affidavit of service and sign it in the presence of Commissioner for Oath. This is done so to prevent possible dispute from the Defendant on the service of the for.
Online Process (Currently only applicable for Sabah and Sarawak)
- The Plaintiff need to log on to the website at: (https://ekss-portal.kehakiman.gov.my/portals/) and subscribe as a user. The subscription is free of charge.
- The Plaintiff should then fill in the pre-registration steps by login into the system, and he will have the option to either fill in the e-form/template or upload the documents into the system.
- Reference slip will subsequently be emailed to the Plaintiff’s registered email once all the required details of the case are properly filled in.
- After acquiring the reference slip, the Plaintiff will need to bring the reference slip to the counter of the Subordinate Court’s Registry and pay the prescribed fees. The Court staff will assist in completing the registration process.
- All notifications of the case will be done through email, and the case number will be used as reference for future dealings.
- Secondary filings must be done via online.
Procedure for responding to a Form 198, Writ — Guide for Defendant
After receiving the sealed Form 198, the Defendant is given fourteen days (14) to file their defence in Form 199 — O 93 r 6(1) of the ROC 2012
- In the event that the Defendant wishes to dispute the claim, the Defendant would need to go to the nearest Subordinate Court Registry and requestr for Form 199, which essentially is a defence.
- Once the Form 199 is obtained, Defendant should follow the instructions that are provided in the form and include particular as to why the Defendant is disputing the claim. Additionally, if the Defendant has a counterclaim, it is to be reminded that the amount and the particulars of the counterclaim should also be stated inside the Form 199 — O 93 r 6(2) of the ROC 2012
- Once the required details are properly filled up, the Defendant should prepare four copies of the form and must remember to sign or thumbprint the Form 199 personally — O 93 r 6(3) of the ROC 2012.
- The Defendant should proceed to serve his defence and counterclaim (if any) in Form 199 either by way of personal service or by prepaid registered post to the Plaintiff’s last known address — O 93 r 6(4) of the ROC 2012.
- If the Defendant’s defence in Form 199 contains a counterclaim and, if the Plaintiff wishes to dispute the counterclaim, then the Plaintiff has the option to file a defence to the counterclaim in Form 200. The Plaintiff is then required to serve a copy of Form 200 to the Defendant — O 93 r 6(5) of the ROC 2012.
- The Defendant would need to log on to the website at: (https://ekss-portal.kehakiman.gov.my/portals/) and subscribe as a user. The subscription is free of charge.
- The Defendant would then need to search the case by key in the case number.
- The Defendant should proceed and click on the secondary filing menu to file his defence and counterclaim (if any). He will have the option to either fill in the e-form/template or upload the documents into the system.
- Reference slip will subsequently be emailed to the Defendant’s registered email once the defence and counterclaim is submitted into the system.
- After acquiring the reference slip, the Defendant will need to bring the reference slip to the counter of the Subordinate Court’s Registry and pay the prescribed fees. The Court staff will assist in completing the registration process.
- All notifications of the case will be done through email.
What happens next?
Once both parties have followed the procedure above, the small claims court will notify both parties to attend a Case Management. The court will assist both
- parties on the administration of the case;
- direct both parties to file the necessary documents for the subsequent court hearing; and
- fix a hearing date, which will usually be within one month from the date of filing the writ.
At the Court Hearing, the court will assist both parties to come to a settlement and must do so without bias — O 93 r 13(1) of the ROC 2012.
- If both parties agree to a settlement
The court will enter a consent judgement in Form 206 — O 93 r 13(2) of the ROC 2012.
- If both parties fail to settle
The court will proceed to hear the case and give its decision or, adjourn the court hearing to another date for final disposal. Both parties would need to produce witnesses and tender documentary evidence to prove his claim or defence.
End of Court Hearing
At the end of the hearing, the court will give its decision either allowing or ending the claim. The court may award costs not more than RM100 to any party — O 93 r 15 of the ROC 2012.
The judgement entered after the hearing will be in Form 207. It is to be reminded that the judgement given will be final and neither parties will be able to appeal to a higher court — O 93 r 13(3) of the ROC 2012.
Question: What if the Defendant failed to/did not file his defence within 14 days from the date of the writ served on him?
Answer: The plaintiff can pray for a judgement in default of defence on the hearing date, and if the court is satisfied, a default judgement in favour of the Plaintiff in Form 201 may be entered — O 93 r 8(1) of the ROC 2012
Question: What if the Defendant had entered his defence, but failed to appear at the Court Hearing?
Answer: The court will enter judgement for the Plaintiff in Form 202 — O 93 r 8(3) of the ROC 2012
Question: What if the Defendant is present at the hearing, but the Plaintiff is absent?
Answer: The court will proceed to enter judgement for the Defendant in Form 203 — O 93 r 8(3) of the ROC 2012
Question: I was absent at the court hearing, what can I do?
Answer: The parties, Plaintiff or Defendant, may make an application in Form 205 to set aside the judgement or order obtained — O 93 r 10 of the ROC 2012.
Question: Upon the court hearing, the judgement was made in favour of me, but the person against whom the judgement is made, also known as “judgement debtor”, still refused to pay me back?
Answer: The winning party, also known as “judgement creditor”, may file a notice to show cause in Form 208 in court, and serve the notice by way of personal service or by prepaid registered post on the judgement debtor. Upon receiving the notice, the court may give orders such as:
(a) ordering a writ of seizure and sale in Form 84 to the judgement debtor;
(b) allow the judgement debtor to settle the judgement debt owed;
(c) allowing the judgement debtor to pay the debt by way of instalment; or
(d) order the judgement debtor to be sent to prison.
— O 93 r 16 of the ROC 2012
Question: How much does it cost?
It is evident that the Small Claims Procedure has provided a relatively simpler and straightforward path for the general public to settle disputes. Not only does it help the litigants to save costs and time, it also provides the general public an equal chance of access to justice.