CODE OF CIVIL PROCEDURE IN MALAYSIA

This article will provide guidance on the Code of Civil Procedure in Malaysia? Malaysia is a constitutional monarchy, with a King as the head of state and a Prime Minister as the head of government. The King is elected for a five-year term by the Conference of Rulers, which is made up of the hereditary rulers of nine of the country's thirteen states. The Prime Minister is appointed by the King and is responsible for leading the government and managing the country's day-to-day affairs.

The legislative branch of the government is the Parliament, which consists of the House of Representatives and the Senate. The Parliament is responsible for making laws and setting the national budget, and its members are elected in a general election held every five years. The executive branch of the government is responsible for implementing and enforcing laws and comprises several government departments and agencies. The judiciary is an independent branch of the government, and it is responsible for interpreting and applying the law.

The judiciary comprises several courts, ranging from the Magistrates' Courts to the Federal Court, and the King appoints its judges. By using Undisputed Legal to serve your papers, you can avoid the hassle of dealing with Malaysia's complex procedures and regulations. We will handle everything for you, from receiving the documents to arranging their proper service and providing proof of service. With our expertise, you can focus on other aspects of your legal matter and have peace of mind knowing that professionals will do serving papers in Malaysia.

BACKGROUND

The Courts of Judicature Act of 1964 establishes the rules for Malaysia's superior courts, while the Subordinate Courts Act of 1948 regulates the lower courts. The civil courts in Malaysia deal with disputes between private parties, such as disputes over contracts, property, and personal injury. The civil court system consists of the Magistrates' Courts, the Sessions Courts, the High Courts, and the Court of Appeal.

The Magistrates' Courts are the lower courts in the civil court system, and they deal with minor civil cases. The Sessions Courts are intermediate courts that hear a wider range of civil cases and have the power to hear criminal cases. The High Courts are the highest in the civil court system, and they hear the most complex civil cases and appeals from the lower courts. The Court of Appeal is the highest appellate court in the civil court system and hears appeals from the High Courts.

The criminal courts in Malaysia deal with crimes and criminal offenses. The criminal court system comprises Magistrates, Sessions, and High Courts. The Magistrates' and Sessions Courts hear less serious criminal cases, while the High Courts hear more serious criminal cases and appeals from the lower courts. Finally, the Federal Court is the highest in the country and hears appeals from the Court of Appeal and the High Courts. The Federal Court also has the power to hear constitutional challenges and to interpret the Federal Constitution.

Undisputed Legal will receive your legal papers electronically or through traditional mail. Thereinafter, we will ensure that your documents adhere to the legal requirements of the Hague Service Convention, the originating court, and the specific court system in Malaysia. International service of papers often is very variable, and at Undisputed Legal, we ensure that we take every step to prevent your documents from being misplaced or considered void.

SUMMONS AND CIVIL PROCEDURE IN MALAYSIA

An originating summons or writ used to initiate a civil claim in Malaysia is valid for six months from the day it was issued. When serving a sealed writ, you must provide a statement of claim or a brief explanation of the claim made and the relief sought. After being served with a writ and statement of claim, the defendant has fourteen days to make an appearance and submit a statement of defense and counterclaim. The plaintiff has fourteen days to serve a reply and a reply to the defense and counterclaim. A judgment in default may be made against the defendant if they fail to enter an appearance within the allotted period.

By filing for summary judgment, a plaintiff may get a win without having to go to trial. After the statement of claim has been served and the defendant has given an appearance, the plaintiff may file for summary judgment if the defendant has nothing to defend against. The burden of proof is on the defendant to show that factual and legal questions still need to be addressed at a trial, lest summary judgment is granted.

In order to ensure a fair, quick, and cost-effective resolution of the case, the parties are required to appear before the court in accordance with the pre-trial case management rules. Malaysia's unique legal system incorporates common law and civil law traditions. This can make service of process difficult for those unfamiliar with the country's laws and procedures. At Undisputed Legal, we are very experienced in serving legal documents across the globe. We will ensure that your documents are in adherence with Malaysian requirements.

DOMESTIC SERVICE OF PAPERS IN MALAYSIA

One method of effecting service is to leave a copy of the document with the recipient physically. If the document is a writ or other originating process, the server must provide the sealed copy to the person served. Otherwise, an unsealed copy of the document must be presented. Suppose the Court determines that personal service is not feasible, that the person to be served is avoiding service, or that there is some other reason why service cannot be made in the usual manner. In that case, the Court will issue an order for a substituted serving of that document.

There are many different ways to serve a defendant with court documents. Personal service (placing a copy of the writ with the defendant) or service by prepaid A.R. registered post delivered to his last known address are the two most common methods of effecting service on an individual under regulations. A person not a party to the proceedings cannot enforce any judgment or order given in proceedings except with the leave of the Court. A judgment or order given in proceedings under this rule is binding on all the persons representing whom the plaintiffs sue or, as the case may be, the defendants are sued.

A request for a pre-action discovery order must be filed by originating summons, and the party against whom discovery is being sought must be named as a defendant in the originating summons. If a non-party seeks a discovery order after a procedure has begun, they must first file a notice of application with the court, which must be served on the non-party in person and on all parties to the case.

Suppose the Court determines that serving a sealed notice of judgment on a particular party is impractical. In that case, it may order that the notice be delivered personally or in another way the Court may designate. A Memorandum in Form 77 must be attached to the Notice of Judgment before it may be served. An order under this rule must be in Form 96. It must be physically served on the judgment debtor and any official of a corporate body required to appear for the examination.

OUT-OF-STATE SERVICE IN MALAYSIA

The application must accompany an affidavit proving the applicants standing in the case and identifying where the defendant may be. Whether or not the foreign jurisdiction has a civil process convention affects how a writ or an originating summons may be served. Service may be made via the local courts or a Malaysian diplomatic office if a convention exists between the two countries; otherwise, it may be made by the applicant or an agent. Serving legal documents in Malaysia can be slow, as the local courts and government agencies are often overwhelmed with work. Undisputed Legal can help expedite the process and ensure that your papers are served in a timely manner. We will ensure that your papers are in order and sent speedily to Malaysia’s Central Authority,

The Reciprocal Execution of Judgements Act 1958 governs the recognition and enforcement of judgments outside of Malaysia (REJA). To register a foreign judgment in Malaysia, the foreign judgment must originate from a country on the list of reciprocating nations in REJA, as per the concept of international reciprocity governing the execution of foreign judgments. A foreign judgment creditor has to start a summons with an affidavit of origin.

After determining that it has jurisdiction, a court will consider whether or not to try a matter based on the concept of forum non conveniens. The courts will start from the assumption that Malaysian law applies to any factual and legal questions that come before them, with the caveat that this assumption will be subject to conflict of law principles, such as those that look to the place where the contract was negotiated or entered into, the place with the closest connection to the dispute, or the place where enforcement of the contract would have the greatest impact.

The courts in Malaysia typically enforce the choice of court provisions. Without unusual circumstances, courts cannot ignore a choice of jurisdiction provision without implicitly approving a violation of the contract. However, Malaysian courts may still use their discretion case-by-case basis to determine which jurisdiction applies. The Supreme Court, the forerunner to the current Federal Court, has said that the courts should consider the concept of forums non-conveniens while making their decisions (that is, whether the Malaysian courts are the most appropriate tribunal to try the case.

FOREIGN SERVICE OF PAPERS IN MALAYSIA

Order 11 of the ROC governs the service of foreign proceedings in Malaysia. Papers related to legal proceedings must be delivered in person or by AR to the defendant at their last known address. The document is personally served by leaving a copy with the individual served (Order 62 rule 3, ROC). However, the defendant must be made aware of the service and the contents of the document for it to be effective.

Serving papers to the central authority of Malaysia can be a complex process, especially for our international litigants. In Malaysia, the Central Authority for Service of Foreign Process is the Ministry of Foreign Affairs. When serving papers internationally, Undisputed Legal always respects the rules and procedures of the receiving country, including those established by the Hague Service Convention or other international treaties. A verified authentic Malay or English translation of any foreign papers necessary for service that is not written in Malay or English must be provided.

Witnesses may be examined before the registrar of a Malaysian court or before any other person the applicant for the order deems appropriate and proper. The witness will be interrogated, cross-examined, and re-examined just as they would be at a trial unless the judge rules otherwise. For use outside of the High Court's jurisdiction, the examiner will forward the witness's deposition to the registrar, who will subsequently issue a certificate to be sealed by the High Court. Following this, the registrar will provide this certificate to the authorized individual for onward submission to the foreign court or tribunal.

It is important to note that the Central Authority may take several weeks or months to serve the papers, depending on the complexity of the case and the backlog of requests. Additionally, the Central Authority may require additional information or clarification before it can proceed with the service of process. For these reasons, many litigants choose to work with a private process service agency like Undisputed legal that can assist with the service of process in Malaysia and navigate the complexities of the legal system. Our experienced process servers can help ensure that the papers are served properly and in a timely manner, helping to minimize the risk of delay and ensure that your case moves forward smoothly.

THE HAGUE CONVENTION AND MALAYSIA

Serving foreign papers in Malaysia refers to delivering legal documents from a foreign jurisdiction to a person or entity in Malaysia. This is necessary in cases where a foreign court has jurisdiction over a matter involving a person or entity in Malaysia. In Malaysia, the process of serving foreign papers is governed by the Reciprocal Enforcement of Judgments Act 1958 and the Hague Service Convention 1965. These laws provide the legal framework for recognizing and enforcing foreign judgments in Malaysia.

To serve foreign papers in Malaysia, the person seeking to enforce the foreign judgment must first obtain a certified copy and file it with the relevant Malaysian court. The person must then request permission from the court to serve the foreign papers on the person or entity in Malaysia. The foreign papers can be served by personal service or substituted service, depending on the circumstances of the case. Personal service involves delivering the papers directly to the person or entity, while substituted service may be allowed if personal service is not possible.

Serving foreign papers in Malaysia is a complex process that requires compliance with the Reciprocal Enforcement of Judgments Act 1958 and the Hague Service Convention 1965. It is important to engage the services of a private Malaysia process service agency like Undisputed Legal which is experienced in these matters, to ensure that the process is carried out correctly and in accordance with the law.

OUR PROCESS

Documents can be faxed at (800) 296-0115, emailed to ps@undisputedlegal.com, or uploaded to our website. We do require prepayment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; Our receptionist will receive all documents.

DOMESTIC COVERAGE AREAS:

INTERNATIONAL COVERAGE AREAS:

OFFICE LOCATIONS

New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 - 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 - 1101 Pennsylvania Avenue, N.W. Suite 300, Washington DC 20004

FOR ASSISTANCE SERVING LEGAL PAPERS IN MALAYSIA

Simply pick up the phone and call Toll-Free (800) 774-6922 or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your Malaysia process service needs; no job is too small or too large! For instructions on How To Serve Legal Papers in Malaysia, Click Here.

Contact us for more information about our process-serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

"Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives"- Foster, William A

Sources

1. Recent revisions to the Rules of Court now permit the electronic serving of the writ of summons on the defendant in addition to physical service and registered mail.

2. If the plaintiff's writ or statement of claim does not establish a valid cause of action, is scandalous, frivolous, or vexatious, may prejudice a fair trial, or is an abuse of the court's procedure, the opposing party may move to strike out all or part of it.

3. When a representative action is brought before the courts, it must pass a three-pronged test, as outlined in Vellasamy Pennusamy & Ors v. Gurbachan Singh Bagawan Singh & Ors. These are as follows:

There must be many parties who stand to gain from the case at hand;
The plaintiff and those it represents must have a similar grievance or complaint;
And the remedy sought must be in everyone's best interest.

4. Personal service on the party against whom enforcement is sought is required for an application for leave

5. In an action for the administration of an estate, execution of a trust, or sale of any property, the Court may, when giving the judgment or at any stage of the proceedings under the judgment, direct that notice of the judgment be served on any person whose rights or interests are affected by the judgment or upon whom an account is to be taken or inquiry made.

6. At least seven days prior to the period set for further consideration of the case, an order to show cause issued under Rule 1 must be served— (a) personally on the garnishee; and (b) unless the Court otherwise directs, on the judgment debtor.

7. The requirements for a foreign decision to be registered in accordance with Section 3(3) of REJA are as follows.

Judgment must be final,
Must specify an amount due (excluding taxes, fines, and penalties),
And must originate from a nation that recognizes other countries' judgments, as REJA requires.

Once Section 3(3) requirements are completed, registration becomes necessary under Section 4 of REJA, which governs the registration procedure.

8. The United Kingdom, Hong Kong, Singapore, India, Sri Lanka, New Zealand, and Brunei are all on the current list of nations that provide reciprocal treatment under REJA.

9. World Triathlon Corp v SRS Sports Centre Sdn. Bhd [2019] 4 MLJ 394

10. Among the factors taken into account are:

Benefits and costs of having the case heard in Malaysia rather than another jurisdiction.
Ability to locate witnesses.
Relevant legal framework for the business deal at hand.

11. For the following cases, this does not apply:

When attorneys for the defendant accept service of process.
In cases when the defendant has submitted an appearance (that is, that they have filed a memorandum of appearance in court to acknowledge the claim initiated against them and to indicate that they will be defending the claim).

12. Banque Russe v Clark [1894] WN 203