Thursday, July 31, 2008

Court Local Jurisdiction: To the Advantage of Plaintiff?



Picture taken from www.mycen.com.my/.../kl_court-complex_duta.html

Salam,

  1. I went to the beautiful Kuala Lumpur court last Wednesday (30-7-2008) to defense one case of my corporate client. I arrived early, and while waiting in front of the complex I met three guys travelled all the way from Kuantan, Pahang just to attend or appear before a magistrate court for a case against one of them. What a long journey for a small case! (having told that it is only a magistrate court, so the subject matter must be bellow RM25, 000-00 in civil case). I was getting more curious and start asking about their case all about.
  2. One of them told me that he faulted in paying his credit card installment. And the amount of default is RM1, 000 plus ONLY. The loan has been granted in Kuantan Pahang and he has been living in Kuantan all this while. Not being satisfied, I asked him again, would that amount be the whole balance of the loan or merely the default monthly arrears? He said the whole balance of loan outstanding.
  3. Well, I then ask him, why took the trouble to travel to Kuala Lumpur that cost you more than RM400-00, why not just pay the installment? He told me that he has been trying to pay monthly installment at his ability but the bank refused to accept and only willing to consider if the monthly installment more than RM200-00 (which he is not in financial position to pay).
  4. In his case, the bank chooses to file the civil suit in Kuala Lumpur, despite the defendant and the loan contract was executed in Kuantan. I am not saying that is wrong, this is because the plaintiff headquarters in Kuala Lumpur and the basic rule is that a suit may be filed where the location of plaintiff is.
  5. But the rule also said the suit may also be file at the local court where the location of defendant and the contract executed. So, it is two against one. And moreover having considered the amount of the claim is relatively small and forcing the defendant to travel to Kuala Lumpur would create injustice to him. The court should consider seriously this matter.
  6. Yes the law says there are only two general local jurisdictions of high courts, namely the local jurisdiction of high court of Malaya (ie the peninsular Malaysia) and the local jurisdiction of high courts of Borneo (ie Sabah and Sarawak). Thus, plainly the party may file at anywhere in peninsular Malaysia.
  7. But looking at the case above, I feel that it has been long overdue 'improper' practice allowed for these banks to file his claim in court in Kuala Lumpur without considering at all the trouble of the defendant. These poor defendants will be press further to the very limit of their financial ability.
  8. The bank and its lawyers at the luxury and technically at the expense of defendant's money (claimable or debited back into the loan account), happily and without any trouble file the suit at where they are. Why can't the bank just appoint local lawyers to file the suit at the location of the defendant?
  9. I do not know when the court can start give direction regarding the matters, but for now if you face the same problem, what you can do is to put an application in court to have the whole suit transferred at your locality by the reasons (as I mentioned above); first, defendant (you) location and second, where the loan or contract executed at. The court may or may not granted your application but it is worth a try (comparing every time travelling and spending unnecessary cost, unless your petrol subsidy is much more then I am, please disregards my advise).

Regards,

Kamarul Irzuan Bin Busu Piah

Advocate & Solicitor, High Court of Malaya.

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