YOU HAVE BEEN SERVED…

The 6 Things You Must Know After Receiving a Malaysian Court Summons to Avoid DIRE Consequences

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WHAT HAPPENS IF I DO NOT REACT IN TIME?

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We share with you a sad story of a happy Semi Detached  buyer turned Bankrupt…

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Actually I would like to know more about debt recovery.

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In this article we will discuss

1 What is a Writ of Summons?
Substituted Service
2 What will happen if I do nothing after receiving the Writ of Summons?
3 How much time do I have after receiving the Summons?
4 What is a Memorandum of Appearance?
5 What is Summary Judgment?
6 What is a trial/ full hearing?
7 AFTER JUDGMENT

8 Writ of Seizure and Sale Prohibitory Order

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Writ of Summons (Writ Saman) And Other Procedures, Receiving One

In this article we will discuss the fastest way to get a Judgment and then how can you recover your debts vide the execution of the Judgment.

1 What is a Writ of Summons?

1.1 When you want to sue someone to recover a debt, you may file a Writ of Summons. In other circumstances when a matter involves a substantial dispute of facts, it is preferable that the action (court case) should  begin by way a Writ of Summons.

In the writ, there would be a memorandum and endorsement of claim which briefly state the Plaintiff’s claim. It is a document to inform the Defendant of the suit and command the Defendant to enter appearance for the suit within the period stated in the writ.

1.2 Writ of summons shall be issued in conjunction with the Statement of Claim of the Plaintiffs. If the Plaintiff does not file the Statement of Claim when the Plaintiff issued the writ, Plaintiff will need to file the Statement of Claim within 14 days after the Defendant entered into appearance.

1.3 The Writ of Summons will command/ direct the Defendant to enter appearance for the suit within the period stated therein.

Substituted Service

1.4   if the Writ of Summons cannot be served, the Plaintiffs will have to apply for it to be served by way of substituted service.

Substituted Service of Court Summons Kuala Lumpur Malaysia

2 What will happen if I do nothing after receiving the Writ of Summons?

2.1 If the Defendant failed to enter appearance within time stipulated in the Writ of Summons, the Plaintiff may enter a judgment in default of appearance against the Defendant.

2.2 In the event the Defendant failed to enter a Memorandum of  Appearance upon receiving the writ, the Defendant is not be entitled to serve the Defendant’s defence unless consent from the Court is granted.

2.3 If the Defendant should fail to file a Statement of Defence after entering a Memorandum of Appearance, a Judgment in Default may also be entered against the Defendant.

2.4 WHAT is a Case Management

A case management is an opportunity for the lawyers to inform the court the status and receive further instructions from the Court on what to do next.

3 How much time do I have after receiving the Summons?

3.1 The Defendant has to enter appearance within 14 days after the service of the writ. The Defendant can either appear personally or through a solicitor at the Registry of the Court.

3.2 If the Defendant intend to defend against the suit, the Defendant have to file and serve a Statement of Defence to the Plaintiff within 14 days after the Defendant entered appearance. If the Statement of Claim has not been served on the Defendant, within 14 days after the Statement of Claim is served on the Defendant.

4 What is a Memorandum of Appearance?

4.1 Memorandum of Appearance is a mode for the Defendant to enter into appearance. It is a court document to request the court Registry to enter appearance of the Defendant.

4.2 The Memorandum of Appearance have to be served to the Plaintiff on the date the Defendant entered appearance.

5 What is Summary Judgment?

5.1 Summary Judgment is an action applied by the Plaintiff to obtain judgment against the Defendant without going to trial. A summary judgment is applied when the Plaintiff believes that the Defendant has no defence to the Plaintiff’s claim. Plaintiff can apply for summary judgment after:

5.1.1 The Writ of Summons and Statement of Claim has been served on to the Defendant; and

5.1.2 The Defendant entered an appearance

5.2 Defendant may also apply for a summary judgment for counterclaim with the believe that the Plaintiff has no defence to the counterclaim.

5.3 The court will only grant summary judgment if the court is satisfied that there are no triable issues or questions. If there is an issue in dispute which in the court’s opinion needs to be tried, the summary judgment application will be dismissed.

Fastest Way to Get a Judgment in Debt Recovery Summary Judgment

6 What is a trial/ full hearing?

6.1 A trial is a proceeding before the court to examine the cause or matter of the suit, and will involve the examination of oral evidence from the witnesses of both sides.

6.2 Whereas a hearing is an examination of a cause or matter before the court. There are usually no examination of witnesses during a hearing.

6.3 During the pandemic in 2020 and 2021, hearing in court and Trial may be conducted via Zoom, click on the following articles for more details:

A Trial Via Zoom In The Wake Of The Covid-19 Pandemic

Zooming In The Court Of Appeal In E-Appellate

Online Hearings In Court – A New Era In The Covid 19 Pandemic

6.4 To understand more about the Trial procedures, please refer to this article: 6 Tips To Trial Procedures In Malaysian Courts

7 What happens after a judgment is entered against me?

7.1 When a judgment is entered against the losing party, the winning party may enforce the judgment against the losing party. The judgment can be enforced in one or more of the several manner shown below.

7.2 However, the losing party may apply to the court for a stay of execution to stay the enforcement of the judgment against the losing party.

AFTER JUDGMENT: Order for payment/ recovery of money – Writ of Seizure and Sale and Prohibitory Order

8 After you have obtained a JUDGMENT, you may wish to execute the JUDGMENT vide a writ of seizure and sale is a direction to the Sheriff or Bailiff with respect to the Magistrates’ and the Sessions Court, to seize the movable properties of the debtor in order to satisfy the amount of the judgment debt with interests and the costs of execution.

8.1 However, the Sheriff or Bailiff is not entitled to seize the Judgment Debtor’s properties listed under section 3 of the Debtors Act 1957.

8.2 For immovable properties (land, factories, shops, houses) of the debtor you may prevent the dealings (transfer and charge) on these properties for 6 months, you must apply for an order to sell these properties the said period.

Fastest Way to Recover Judgment Debt Writ of Seizure and Sale

9 Possession of Immovable Property – Writ of Possession

9.1 A writ of possession is a direction to the Sheriff or Bailiff with respect to the Magistrates’ and the Sessions Court Judgment to take possession of the immovable property belonging to the judgment debtor.

9.2 However the judgment creditor will need to obtain leave from the court before a writ of possession can be issued.

9.3 The judgment creditor will need to serve a notice of the proceedings to every person in actual possession of the immovable property in order to satisfy the court that leave should be granted.

Delivery of Movable Property – Writ of Delivery

10 A writ of delivery is a direction to the Sheriff or Bailiff with respect to the Magistrates’ and the Sessions Court, seize and deliver a specific movable property as defined in the order or judgment to the judgment creditor.

Bankruptcy

11 In Malaysia, the law provides that before a judgment creditor can issue a bankruptcy petition, the minimum sum of the indebted sum must be RM100,000.

11.1 The creditor normally takes a course of action to obtain a judgment against the debt.

11.2 Thereafter the judgment creditor will issue a bankruptcy notice against the judgment debtor.

11.3 Upon failure of judgment debtor to settle the debt in compliance with the bankruptcy notice, the judgment debtor commits an act of bankruptcy and the judgment creditor may commence a bankruptcy action against the judgment debtor.

12 For further information, please refer to
http://alexchanglaw.com/index.php/bankruptcy-malaysia-general-information/

Companies Winding Up

13 Compulsory (Companies) Winding-up Petitions  in Malaysia are filed  pursuant to section 218 of the Companies Act 1965.

13.1 It is a legal process by which the Director General of Insolvency or a liquidator is appointed by the court to wind up the affairs of a company.

13.2 After a winding up order is granted, the liquidation process of the company begins. However, it does not mean that the creditors of the company will necessarily get paid.

13.3 The purpose of winding up a company is to ensure that all the company’s affairs will be dealt properly.

13.4 For further reading, please refer to
http://alexchanglaw.com/index.php/what-is-compulsory-winding-up/

13.5 To know more about what happens after compulsory winding up, please refer to
http://alexchanglaw.com/index.php/what-happens-after-compulsory-winding-up/

Garnishee Proceedings

14 Judgment creditor who has obtained a judgment for payment of money against a judgment debtor may apply to the court to order a third party indebted to the judgment debtor (Garnishee) to pay the debt which is due or accruing due to the judgment debtor to the judgment creditor.

14.1 The garnishee includes but not limited to the judgment debtor’s bank or other financial institution in which the judgment debtor has a current or deposit account with.

Charging Order

15 The court may impose a charge on any interest to which the judgment debtor is beneficially entitled to secure the payment of the judgment sum.

15.1 Charging order can be applied to securities, including but not limited to, any Government stock and any stock of a registered company under any written law. This also includes the dividend or interest payable under stocks.

Order of Committal

16 In the case where the judgment debtor disobeys the judgment or order given by the court, an order of committal can be issued by the court.

16.1 The order of committal is to enforce the judgment or order should the person the order or judgment is made against disobeys the order or judgment given.

16.2 The court may issue an order for committal in the following:

16.2.1 Failure to do an act within a specific time;

16.2.2 Failure to deliver any movable property in accordance to the order or judgment; and

16.2.3 Failure to abide to a judgment or order for the payment of money.

HIU JING YIN, JENNIFER

THE NATIONAL UNIVERSITY OF MALAYSIA, UNIVERSITI KEBANGSAAN MALAYSIA

September 2, 2016.