Rules of Court 2012

Rules of Court 2012

Rules of High Court 1980/

Subordinate Courts Rules 1980

a)Mode of commencement of proceedings

Order 5 Rules of Court 2012:

1. It will be either by way of writ (in cases where substantial dispute of fact may arise) or originating summons only.

2. For debt recovery actions, there will be no more petitions except for bankruptcy and winding-up proceedings.

a) Mode of commencement of proceedings

Order 5 Rules of High Court 1980

1. Civil proceedings in the High Court may be begun by writ, originating summons, originating motion or petition.

Order 4 of Subordinate Courts Rules 1980

2. Civil proceedings may be begun by summons, originating application or Petition.

b)Entry of Appearance To Writ

Order 12 Rules of Court 2012:

1. For West Malaysia, time limit for entering appearance is now 14 days regardless of whether within local jurisdiction or outside of local jurisdiction.

2. In Sabah & Sarawak, time limit is 14 days except where the Defendant is not within the Division or Residency in which the court that issued the Writ was situated.

3. For Writ served out of jurisdiction, time limit to enter appearance will be 14 days.

4. Provisions relating to conditional appearance and application to set aside writ has been deleted.

5. If a defendant intends to set aside writ for irregularity or stay of proceedings on the grounds of forum, it has to be done within the time specified for serving defence.

6. Time to file defence is extended to 14 days from dismissal of such application to set aside

7. Order 12 Rule 8 is deleted and new rule 12 is introduced which provides that Appearance need not be entered for OS.

b)Entry of Appearance To Writ

Order 12Rule 4 Rules of High Court 1980

1. Writ served within the local jurisdiction of each High Court in Malaya to 8 days and served outside such local jurisdiction but within the jurisdiction of Malaya to 12 days after service of writ

2. In the case of a writ served within Sabah and Sarawak, to 10 days after service of the writ

3. In the case of a notice of a writ served out of jurisdiction, to the time limited under Order 10 Rule 2 (2) or Order 11 Rule 4 (3) or where that time has been extended as aforesaid, to that time as so extended.

Order 12 Rule 8(3) Rules of High Court 1980

1. Subject to the foregoing provisions of this rule, the foregoing rules of this Order shall apply in relation to an originating summons to which an appearance is required to be entered as they apply in relation to a writ except that for the reference in rule 4 (b) Order 11 rule 4 (3) there shall be substituted a reference.

Order 12 Rule 6 Rules of High Court 1980 – Conditional Appearance.

Order 12 Rule 7 Rules of High Court 1980 - Application to set aside writ, etc

Order 4 of Subordinate Courts Rules 1980

ii)   Civil proceedings may be begun by summons, originating application or

Petition.

c) Pleadings

New Order 18 Rule 12 (1A) Rules of Court 2012 is introduced.

No party shall quantify any claim or counterclaim for general damages.

c) Pleadings

- Order 18 Rules of High Court 1980

- Order 14 Subordinate Courts Rules 1980

d)Amendments

New Order 20 Rule 12 Rules of Court 2012 is introduced.

Amendment on pleadings is allowed by written agreement/consent of parties before commencement of the trial.

d)Amendments

-Order 20 Rules of High Court 1980

-Order 15 Subordinate Courts Rules 1980

e) Originating Summons (“OS”) procedure

Order 28 Rules of Court 2012

1. Order 28 Rule 2 is deleted as no appearance is required for OS.
2. New Order 28 Rule 3B is introduced for applications disputing jurisdiction and for setting aside OS must be done within 21 days from the date of service of the OS and supporting affidavits or affidavits on him.

3. New Order 28 Rule 3C provides that the affidavit in support is to be filed and served not later than 7 days from the date of service of OS. The affidavit in reply by the defendant shall be filed and served on the Plaintiff not later than 21 days from the date of service of the affidavit by Plaintiff and any further Affidavit in reply has to be filed within 14 days from the date of service of the affidavit he intends to reply to.

e) Originating Summons (“OS”) procedure

Order 28 Rules of High Court 1980

1. Order 28 Rule 2 – any defendant served with the summons has entered, or has within the time limited for appearing failed to enter an appearance, the Plaintiffmay obtain an appointment for the attendance of the parties before the Court for the hearing of the summons.

f) Interlocutory Injunctions, Interim Preservation of Property

Order 29 Rules of Court 2012

i)    the new amended rule allows a defendant to make an ex-parte application.

ii)       the Court must fix inter-partes date within 14 days from the ex-parte Order.

3. the new amended rule also provides that if originating process is not issued within 2 days of the order, the injunction may be discharged on application by the Defendant.

f) Interlocutory Injunctions, Interim Preservation of Property

Order 29 Rules of High Court 1980

1. Only the Plaintiff is allowed to make such urgent application by way of ex-parte by summons.

2. The Court when granting the injunction must forthwith fix a date for inter-partes hearing to be held before the expiry of 21 days.

g)Applications and Proceedings in Chambers

Order 32 Rules of Court 2012.

1. All modes of application are now by “Notice of Application” and not “Summons in Chambers”.

2. Affidavit in Reply to be served 14 days from the service of the sealed copy of application.

g)Applications and Proceedings in Chambers

Order 32 Rules of Court 2012.

1. Mode of application in Chambers must be made by summons.

2. Affidavit in Reply to be served 14 days from the service of the sealed copy of application.

h) Case Management

Order 34 Rules of Court 2012

• Case management has been substantially changed to encapsulate all pre-trial directions.

i) Judgment and Orders

Order 42 Rules of Court 2012

i)    Rule 12 no longer specifies the interest rate post judgment (ie. 4% p.a.) and is subject to what is determined by the Chief Judge

ii)  New rule 12A covers compensation sum on judgment debts for Islamic finance matters

     Late payment charge shall follow Rule 12 but :-

• Judgment creditor shall only be entitled to ta’widh as a result of late payment
• The amount of late payment shall not exceed the outstanding principal amount
• If the amount of ta’widh is less than the amount of late payment, the balance shall be channelled to any charitable organization as determined by the Shariah Advisory Council

i)Judgment and Orders

Order 42 Rule 12 Rules of High Court 1980

1. Every judgment debt shall carry interest at the rate of 4 per centum per annum or at such other rate not exceeding the rate aforesaid as the Court directs (unless the rate has been otherwise agreed upon between the parties)

Order  29 Rule 12 Subordinate Court Rules 1980

ii)       Every judgment debt shall carry interest at the rate of 8 per centum per annum, or at such other rate not exceeding the rate aforesaid as the Court shall direct (unless the rate has been otherwise agreed upon between the parties), such interest to be calculated from the date of judgment or order.

j)Appeals to High Court from Subordinate Courts

Order 55 Rules of Court 2012

i) New procedures for appeals to high court from lower courts.

Order 55 (3) Rules of Court 2012-Notice of appeal against a decision made after trial.

1. A notice of appeal against the whole/part of a judgment made after trial shall be filed in the Court from which the decision is appealed from. Within 14 days.
2. The appellant shall lodge in the court appealed a sum of RM1,000.00 by way of security for the costs of the appeal within the time limited for filing of the appeal.
3. A duplicate copy of the notice of appeal must be served by the appellant within the time limited for the filing of an appeal on all respondents.
4. Order 55 Rule 4 Rules of Court 2012 :-

The appellant shall within one month from the date of filing the notice of appeal prepare and file the record of appeal.

Order 55 Rule 5 Rules of Court 2012-Notice of Appeal against any decision other than a decision made after trial.

1.  An appeal from any decision other than a decision made after trial by the Subordinate Court shall lie to a Judge in Chamber of the High Court.
2.  The appeal under this rule shall be brought by filing notice of appeal within 14 days from the date on which the decision was pronounced and served on all parties.
3.            The appellant shall file record of appeal within one month after filing of the notice of appeal.

j) Appeals to High Court from Subordinate Courts

Order 55 Rule 1 & 2 Rules of High Court 1980

i)    On receiving an appeal record under Order 49 of the Subordinate Courts Rules, 1980, the Registrar shall enter the appeal in a list of appeals from Subordinate Courts.

Rule 2. Memorandum of Appeal.

ii)       The appellant shall, within fourteen days from the date of service on him of the notice in Form 141 under Order 49, file in the High Court in duplicate a memorandum of appeal in Form 113A.

iii)      The appellant shall within the like period serve each respondent with a copy of such memorandum and a copy of the appeal record.

ORDER 49  Rule 2 Subordinate Courts Rules 1980

i)        Appeals to the High Court shall be brought by giving notice of appeal in Form 140.

ii)       An appellant may appeal from the whole or any part of a decision

(iii)     The notice of appeal shall be filed within 14 days from the day on which the decision was pronounced.

k) Appeals from Registrar of the High Court to a Judge In Chambers

Order 56 Rules of Court 2012

i)         Time period for appeal from Registrar to a Judge is changed from 10 days to 14 days

ii)        The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice to attend the hearing before the Judge.

k) Appeals from Registrar of the High Court to a Judge In Chambers

Order 56 Rules of High Court 1980

i)          Unless the Court otherwise orders, the notice must be issued within 10 days after the judgment.

l) Costs

Order 59 Rules of Court 2012

i)       No more taxation of costs. It provides the Court discretion to award gross sum instead by inviting parties to submit on the issues of costs.

ii) It introduces new table for disbursement for proceedings in the High Court and the subordinate Courts. It also introduces new scale costs for proceedings in the Subordinate Courts.

iii)     The allocator fee is fixed at 4% of the costs that is allowed by the court. There will be separate Order drawn up for costs so that the extraction of the main Order/Judgment will not be held up by non-payment of allocator fees

l) Costs

Order 59 Rule 9 Rules of High Court 1980

i)      Subject to this Order, where by or under these rules or under any order or direction of the Court costs are to be paid to any person, that person shall be entitled to his taxed costs.

ii)     The Court in awarding costs to any person may direct that, instead of taxed costs, that person shall be entitled-

(a) to a proportion specified in the direction of the taxed costs or to the taxed costs from or up to a stage of the proceedings so specified; or

(b)  to a gross sum so specified in lieu of taxed costs.

iii)    When the bill has been taxed the solicitor shall cast up the deductions therefrom, which, the casting of the bill, shall be checked by the Registrar, and the Registrar shall proceed to make his certificate or allocatur for the amount of such costs less the deductions.

m) Charge Actions

Order 83 Rules of Court 2012

i)     Rule 2(2) - the Plaintiff shall serve on the Defendant the OS and a copy of the affidavit in support of the OS not less than 4 clear days before the day fixed for the first hearing of the OS,

ii)  Rule 2(4) - Where the hearing is adjourned and the Defendant was absent from the hearing, then, subject to any directions given by the Court, the Plaintiff must serve a written notice of the adjourned hearing, together with a copy of any further affidavit intended to be used at the hearing, on the Defendant not less than 2 clear days before the day fixed for hearing.

iii)    Rule 3(3) and (6) - Has been amended to now only require particulars of the amount due under the charge as at the date of the hearing of the OS only. This is in line with Sec.257 of the National Land Code.

m) Charge Actions.

Order 83 Rule2(2) of Rules of High Court 1980.

i)    Not less than 4 clear days before the day fixed for the first hearing of the originating summons the plaintiff must serve on the defendant a copy of the notice of appointment for the hearing and a copy of the affidavit in support of the summons.

Order 83 Rule 2(4) of Rules of High Court 1980.

ii)  Where the hearing is adjourned, then, subject to any directions given by the Court, plaintiff must serve notice of the appointment for the adjourned hearing, together with a copy of any further affidavit intended to be used at the hearing, on the defendant not less than 2 clear days before the day fixed for the hearing.

Action for possession or payment.

Order 83 Rule 3(3) of Rules of High Court 1980.

iii)  Where the plaintiff claims delivery of possession the affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class otherwise directs, the state of the account between the chargor and chargee with particulars of-

1. the amount of the advance;
2. the amount of the repayments;
3. the amount of any interest or instalments in arrear at the date of issue of theoriginating summons and at the date of the affidavit; and
4. the amount remaining due under the charge.