HOW TO FILE A CLAIM
Before you file a claim in Court you should first consider the following:
- Cause of action. Is there a proper basis for your claim?
- Limitation period. Are you within time to file your claim?
- Evidence. How will you back up your claim? Do you have the necessary evidence in the form of documents or witnesses?
- Costs of litigation. You will need to incur Court filing fees and litigation may take up a substantial amount of your time. You should also consider the possibility of losing your case and the consequences of that - such as being ordered to pay your opponent’s costs.
MODE OF COMMENCEMENT
1. Writ of Summon
2. Originating Summons
1.Writ of Summons
If your claim involves a substantial dispute as to the facts, then it must be commenced by way of Writ.
- The writ must be endorsed with a Statement of Claim or a concise statement of what your claim or the relief or remedy you seek.
- There must be sufficient information and particulars in the statement for the Defendant to be clear about what it is you are claiming against him/her for.
- State the number of days that the Defendant(s) has to enter an appearance to your Writ.
1.1. Service of Writ
The writ can be served in the following manner:
- Personal Service / by way of Prepaid AR Registered Post addressed to his last known address
- If personal service failed, an application for substituted service shall be filed
1.2.Important Information to be stated on your Writ
- The address of your residence
- If your address is not in Malaysia, or if you do not have a place of residence in Malaysia, then give an address within Malaysia that documents may be delivered to you at.
- Your occupation
2. Originating Summons
i) What is Originating Summons (“OS”)
OS is to be used when it is required by a statute, a dispute which is concerned with matters of law and where there is unlikely to be any substantial dispute of facts. Hence, OS should not be used if there are dispute of facts.
ii) Features of OS
- The OS must be filed together with an Affidavit in Support exhibiting documentary evidence intended to be relied on
- It is heard by a Judge
- No pleadings are required.
iii) Contents of an OS
A statement for determination or for direction or a concise statement of the relief or remedy claimed, •Particulars to identify cause or causes of action in respect of which the Plaintiff claims that relief or remedy
Filing can be done at the Court Registry depending on your location. You will then need to extract a sealed copy of the same and serve your Court papers to the Defendant within 6 months.