LEGAL CIVIL REMEDIES IN MALAYSIA: DEVELOPMENTS AND CHALLENGES - PowerPoint PPT Presentation

DISPUTE RESOLUTION LEGAL CIVIL REMEDIES IN MALAYSIA: DEVELOPMENTS AND CHALLENGES Assoc. Prof. Dr. Nuraisyah Chua Abdullah Faculty of Law, Universiti Teknologi MARA (UiTM) Shah Alam, Selangor, Malaysia

The Structure of Malaysian Judiciary (Civil Jurisdiction) Federal Court Court of Appeal High Court of High Court of Malaya Sabah & Sarawak Sessions Court Sessions Court Magistrates Court Magistrates Court Native Court

Changes in the civil jurisdiction of the Sessions Court The Subordinate Courts (Amendment) Act 2010 (Act A1382) has been • enacted and 1st March 2013 is the date of coming into operation of the Subordinate Courts (Amendment) Act 2010 [A1382]. Under the amended Subordinate Courts Act 1948, the jurisdiction of the • Subordinate Courts, in particular, the Sessions Court, has been enhanced significantly.

The pertinent changes to the jurisdiction of Sessions Court , effected • by Act A1382 are as follows: a) The monetary jurisdiction of the Sessions Court has been increased from RM250,000.00 to RM1,000,000.00 [s. 7(a)(ii) of Act A1382]; b) The Sessions Court has been conferred with jurisdiction to try all actions and suits of a civil nature for the specific performance or rescission of contracts or for cancellation or rectification of instruments, within the jurisdiction of the Sessions Court [s. 7(a)(iii) of Act A1382]; and

c) A Sessions Court may, in respect of any action or suit within the jurisdiction of the Sessions Court, in any proceedings before it - (i) grant an injunction; and (ii) make a declaration, whether or not any other relief, redress or remedy is or could be claimed [s. 7(b) of Act A1382]. Changes in the civil jurisdiction of the Second Class Magistrates Prior to 1st March 2013, the First Class Magistrate have civil jurisdiction to • try all actions and suits of a civil nature where the amount in dispute or value of the subject matter does not exceed RM 25 000 under section 90 of the Subordinate Courts Act, 1948. The pertinent changes to the jurisdiction of the First Class Magistrates’ • Courts by virtue of Act A1382 is that the monetary jurisdiction of a First Class Magistrate has been increased from RM25,000.00 to RM100,000.00, effective on the 1st March 2013 [s. 11 of Act A1382].

Changes in the civil jurisdiction of the Second Class Magistrates Prior to 1st March 2013, a Second Class Magistrate shall only have • jurisdiction to try original actions or suits of a civil nature where the plaintiff seeks to recover a debt or liquidated demand on money payable by the defendant, with or without interest, not exceeding RM 5,000.00 under section 92 of the Subordinate Courts Act, 1948. However, the monetary jurisdiction of a Second Class Magistrate has been increased from RM5,000.00 to RM10,000.00 [s. 13 of Act A1382], effective on the 1st March 2013. Penghulu Court is also being abolished by the Act Al382. •

SMALL CLAIMS PROCEDURE • Limit: maximum: RM5,000. • Legal representation is not allowed. • Plaintiff initiate the proceeding by serving the claim in Form 164 (4 copies). • Defendant: Defence in Form 165 to be filed in 4 copies within 14 days after service of the claim. • Judgment: Absence of one party, or both parties.

• Filing fee: I. Plaintiff – RM20 for statement of claim II.Defendant – RM4 for statement of defence – RM20 for counterclaim (if any). • If the matter 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, and the judgment to be entered after a hearing shall be in Form 173.

Civil Disputes & Tribunals The Malaysian legal system experiences a drastic change in its civil • dispute litigation with the establishment of the Tribunal for the Consumer Claims in 1999 and Homebuyer’ Tribunal in 2003.

Tribunal for Consumer Claims Statistics for service sector, 2010-2012 No Category 2010 2011 2012 Total 1 Maid agencies 228 495 463 1186 2 Treatment & beauty centres 253 441 419 1113 3 Tour agencies 267 439 241 947 4 Umrah package 183 569 404 1156 5 Workshop 189 483 419 1091 6 House renovation 141 373 332 846 7 Higher learning institutions 109 149 115 373 8 Telcos 96 0 122 218 9 Transport 95 0 109 204 10 Club membership 201 249 213 663 Grand total 1762 3198 2837 7797

Statistics for service sector, 2013 No Category Total 1 Tour agencies 210 2 Time sharing 6 3 Workshop 262 4 Employment agencies 15 5 Maid agencies 303 6 House renovation 205 7 Small repair 47 8 Treatment/beauty centres 226 9 Higher learning institution 75 10 Umrah package 426

Statistics for goods sector, 2013 (cont’d ) No Category Total 1 Scratch & win/ lucky draw 606 2 Car 253 3 Handphone 553 4 Electrical appliances 304 5 Furniture 257 6 Computer 136 7 Motorcycle 64 8 Spare parts 113 9 Clothing 37 10 Camera 17

Statistics for goods sector, 2013 (cont’d ) No Category Total 11 Jewellery 16 12 Watch 24 13 Computer Scheme (EPF) 0 14 Toys 14 15 Cloth 6 16 Pets 7 17 Stationary 1 18 Other goods 964 Grand total 3372

TRIBUNAL FOR CONSUMER CLAIMS Action before the Tribunal for Consumer Claims can only be initiated by • the consumer. Limitations: • i. Claims not exceeding RM25,000; i. Petition must be made within three years of the claim accruing [section 99(2)]; ii. Under the act, parties are entitled to attend and be heard [section 108(1)] but are not entitled to legal representation [section 108(2)].

The success of the cases in the tribunal very much depends on the • following: i. the capability of consumer and sometimes there is no equality in legal capacity; ii. the understanding of the president. On technical issues, presidents do not have adequate knowledge.

According to S 112(1), an award must be made within 60 days from the • first day the hearing before the tribunal commences. Comment: Speed sometimes denies justice. Experts are rarely called • during trial since tribunal is a speedy and less formal forum.

The tribunal has very wide powers . Enables the tribunal to direct the payment of money or to direct the • refund of the consideration paid for goods or services or to direct payment of compensation or to vary or set aside a contract wholly or in part. Judgement is final. No right of appeal . Comment: Sometimes judgment is wrongly decided. No redress for • consumer except for review of the case in court. Non application of precedent . Comment: Inconsistency of judgements between presidents and • sometimes cases are wrongly decided.

Tribunal for Homebuyer’s Claim Objective: The tribunal was established with the objective to hear and • adjudicate homebuyer’s claims in in an easy, cheap and fast way. 5 tribunals in Msia: Zone: North (Penang), East (Terengganu), south (Johor), • middle (Putrajaya), Sabah and Sarawak Composition of the tribunal: The Tribunal consists of a Chairman and • Deputy Chairman and not less than 5 other members, all of whom are members of the judicial and legal services. They are appointed by the Ministry of Housing and Local Government.

The jurisdiction of TTPR is limited to a claim that is based on a cause of • action arising from the sale and purchase agreement entered into between the homebuyer and the licensed housing developer which is brought by the homebuyer not later than 12 months from: i. the date of the issuance of the certificate of completion and compliance (CCC); ii. the expiry date of the defects liability period as set out in the sale and purchase agreement; or. iii. the date of the termination of the sale and purchase agreement by either party before the date of issuance of CCC, whichever is later.

Fee – RM 10 for filing a claim, Max claim: RM 50K • Documents need to be filed: 4 copies of Form 1 and copies of the • following: i. Sale and Purchase Agreement; ii. Letter of vacant possession; iii. Certificate of Fitness of Occupation (if any;) iv. Letter of Notice of Claim issued by the buyer to the developer (if available); v. Any other documents which support your claim. The developer may file his defence or counter-claim in Form 2 (4 copies) • with a fee of RM10 within 14 days of the date of receiving a copy of Form 1.

Tribunal for Homebuyer’s Claim – Form 1

Tribunal for Homebuyer’s Claim – Form 2

Tribunal for Homebuyer’s Claim – Hearing Procedures The Tribunal will issue a notice in Form 4 stating the date, venue and time • of the hearing on both the claimant and the developer, in not less than 14 days before the date of the hearing. No party shall be represented by an advocate and solicitor during a • hearing before the Tribunal. Both parties have the right to adduce evidence, call any witness, or tender any documents, records or things necessary in support of their respective claims. At the hearing, the Tribunal shall, where appropriate, assist the parties to • effect a settlement of the claim by consent (negotiation stage). Upon completion of the hearing, the Tribunal will make an award.