Sie sind auf Seite 1von 9

CHECKLIST: JDS

CHECKLIST FOR JUDGMENT DEBTOR SUMMONS


S.4 DEBTORS ACT 1957
O.74 r.11A-11D ROC 2012
Steps
1. Drafting
and
preparing
for JDS

Action

Person In Charge

Preparation of Judgment Debtor


Summons
(s.4 of Debtors Act 1957, o.74
r.11A-11D):

*Clerk
(to draft)
(1) Refer to the standard JDS and
Leave to Issue JDS.
> F.175; 176; 177 ROC 2012
|
(2) Enter diary of the relevant
dates.
|
(to extract)
(1) Upon extraction, double
check on the details and form
used
|
(2) Clerk to enter diary and
proceed with distribution to the
respective process server.
|
(3) Please observe the first
Hearing date; service need to be
done within 7 days prior to the
hearing.
|
(4) Double check the details to
avoid unnecessary amendment
later.

1. Check JID
If more than 6 years?
-to
prepare
leave
to
execute/enforce Judgment OR
for Corporation JD, leave also
need
to
be
prepared
to
execute/enforce
Judgment
against the Director.
|
2. Make sure Feasibility Search
(FS) has been conducted by
client/ in the event client has
not done so to proceed with our
own FS (additional costs will be
billed to client).
Identification of the JDs
location is IMPORTANT
|
3. Inform client the risk if such
premise belongs to a third
person or Judgment Debtor
shared
with
any
other
person.
|
4. Make
sure
the
balance
outstanding is the latest one
If the balance outstanding
> RM30,000.00?
-to advise client to proceed with
1 | Page

*LA/Pupil
(1)Identify JD;
If the Judgment or order is
against a Corporation?
-an officer of the JD may be
summoned that includes past
officers.
>[s.4(1),(2) Debtors Act
1957];

CHECKLIST: JDS
Bankruptcy (or if it is suitable to
wait until accumulating and
reaching such amount).
|
5. Prepare the JDS (and leave
if necessary).
6. Filing of the documents:
(a) Request for Judgment Debtor
Summons [F.174 ROC];
(b) to attach a sealed copy of
the Judgment
(c) Judgment Debtor Summons
in either one of the forms [in
F.177]

1. Personal Service: r.11D(2)


7 days
hearing.

before

the

date

of

|
2. If JD evading service?
>r.11D(2)
Generally
O.74
r.11D(2)
provides that the JDS must be
served personally to JD.
Nonetheless, the wording of the
rule suggest that the Court may
order otherwise: unless the
Court otherwise orders
O.62.r.5: is required to be
served personally on any
personit appears that it is
impracticable for any reason
to serve
>F.133
(F.134)
Case:
2 | Page

(Order);

Cf: Kwek Seow Kee & Anor v


KT Packaging Sdn Bhd (No.2)
[1998] 1 MLRH 425.

If there are more than one


JD?
> r.11B;
If the judgment is against a
firm (partnership)?
- r.11C [cross-refer to O.77]
*Process server:

7. Extraction of JDS

2. Service

OR

Affidavit

(1)Process server to inform JD


during service on the risk of
being imprisoned in the event
the JD failed to attend court
during hearing date.
(2)Give JD
Borang
Pemeriksaan

Untuk

(3)inform JD to send to us before


the hearing date so that we
can analyze their financial
capability upon consultation
with Bank.
(to expedite the process)
(4)If Personal Service cannot
be effected?
- try to get latest contact
number of JD from the
premise owner etc.
(5)Ideally, take JDs phone
number for future purpose.

CHECKLIST: JDS
>Lim Gag @ Lim Hua Chuan v
Ng Sen Yap (Berniaga Sebagai
Swee Choon Hin Trading Co.)
(2000) MLJU 706 HC Melaka,
Ahmad Maarop, JC

*Clerk:
(1)Get outcome from process
server
(2)Adhere to the hearing date
(3)If JD evade service?
-Inform lawyer
(4)To prepare application for SS
in timely manner.
*Lawyer:
Confirm and/or verify that there
is such event warrant for SS
application.

3. Court

Hearing:
1. 1st Hearing:

*Clerk:

(a)If JDS is served


If JD present
to examine JD
OR
try to get
settlement
figure from the
JD
OR
proceed with
examination of
JD
3 | Page

/ \
If JD not
present
request
for
Perintah
Untuk
Menangkap

Request from client the whole


outstanding amount on the
examination date (hearing date)
and calculate the bill in advance
so that can be included in our
cost. Cost that can be claim
during recording the agreed
amount payable by the JD.
In the event the JD was not
present, upon instruction from
lawyer, to prepare application for
Perintah Untuk Menangkap.
F.172 ROC 2012

CHECKLIST: JDS
OR
JDS is served & JD absent
Request
for
Order to be
recorded under
s.4(5) of the
Debtors Act

*LA/Pupil
(only in Magistrate Court):

Request
for
another date
to
enable
party to file
application for
order of arrest.

Adhere to the ROC 2012.


Reference for examination can
be made to O.48 ROC 2012.
If JD present;
Examination:

(b)If JDS has not been served:


Request next date to enable service
of the JDS. Observe the 7 days rule.
2. Subsequent hearing:
Refer
back
to
the
above.
Nonetheless, in the event service
still cannot be affected to consult
client and to withdraw the JDS
accordingly. (Exception to JD who
try to evade service; see item 2
(2) JD Evading Service.)

To refer to the Borang


Pemeriksaan and ask the
relevant questions therein.
Please add the questions
depending on the suitability.
Refer: Kwek Seow Kee & Anor
v KT Packaging Sdn Bhd
(No.2) [1998] 1 MLRH 425
Court will determine the figure,
however, in the event the JD is
agreeable for a larger sum, try to
contact Bank and discuss about
it. (Advisably to approach and
discuss with JD first before
proceeding
with
the
examination.)
Questions ask to the JD MUST be
able to extract the following
information:

4 | Page

(i) The

JD
financial
status,
preferably the JD need to
prove by tendering any payslip, receipts and so on;

(ii)

Existence of other creditor(s)


to alert the bank of any risk
of losing payment from the
JD or any action taken

CHECKLIST: JDS
against the JD;
(iii)

Any means of repayment,


garnishee or writ seizure and
sale.

(iv)

To show to the Court that the


JD is able to pay according to
the earlier payment schedule
as agreed in the Agreement.

(v)

Additional questions relevant


to the need/objective as
stated above.

(vi)

Proposed or instigate JD to
propose
amount
of
installment
payment/lump
sum
with
terms
(after
collecting details during JDs
examination).

(vii)

Record
terms
examination

after

*The whole process is to prove or


show the means of the debtors
to
repay
the
debt.
(see
Sathappan v Lim Chooi Hock
& Anor [1962] 1 MLRH 243) If
during the process attendee of
the view that JDs testimony is
unacceptable, try to obtain
another date to enable the JD to
file the relevant documents to
prove it.
If JD failed to attend:
Request from Court for another
date to enable us to file
application to arrest JD OR if
the Court reluctant or if the
Client
is
persistent
on
5 | Page

CHECKLIST: JDS
committing JD into prison, to
refer to item 4(b) below.

4. Once
recorded

(a) Inform Bank on the agreed sum


payable by the JD or as ordered
by the Court.
(b) Failure to comply with the order
or breach of the order:
(i)

(ii)

(iii)

(iv)
6 | Page

Application for Judgment


Notice by way of praecipe in
F.178 verified by the oath of
the applicant; O.74 r.12
ROC
To file Judgment Notice ( the
JD
to
show-cause
why
he/she did not comply with
the
arrangement):
O.74
r.13 ROC
Service of the Judgment
Notice personally 4 days
before the day appointed for
the debtors attendance,
UNLESS OTHERWISE THE
COURT ORDERS.
During

the

hearing,

the

*Clerk:
To inform client on the terms
recorder/directed by the Court.
Informing other relevant details
or information to the client as
well.
In the event of item (b) happens,
to
prepare
praecipe
and
Judgment Notice: F.178,174
Order for commitment: F.180
*LA/Pupil:
Make sure the Judgment Notice is
served accordingly before the
date appointed. Not less than 4
clear days.
In the event Judgment Notice has
not been served, to apply for
another date.
To understand the purpose of
Judgment Notice and the hearing
therein.

CHECKLIST: JDS
court may:
(a) The JD must be heard, to
show cause for his/her
non-compliance.
(b) Make
an
order
of
commitment to vary the
installment order; or
Cf; s.13 Debtors Act
1957
Case in point:
Leow Wei Pin v Meyappa
Chettiar [1959] MLJ 265;
(c) Make
an
order
of
commitment and direct
the execution to be
suspended until JD pays
the amount according to
the Order. [F.180 ROC
2012]
(v)

Commitment:
Ref: s.4(8) and (9) of the
Debtors Act 1957:
(8) Court may commit JD to
civil prison if there is no
sufficient cause is shown
until earlier payment of any
instalment(s) or other sum.
Imprisonment
may
be
extended up to 6 weeks.
(9) However, before JD can
be committed to prison, it
must appear that, since the
date of the Order directing
payment the JD has had
sufficient means to comply
with the Order.

Case in point:
1. Sathappan v Lim Chooi Hock
& Anor [1962] 1 MLJ 378
7 | Page

During the hearing date, the JD


will have to give reasons for
his/her non-compliance to Court
and the court may order either
for commitment or variation of
the first order.
As such attendee needs to get
full
information
about
the
payment agreed earlier and the
terms therein before the hearing
date.
Commitment to imprisonment is
only applicable when we can
prove that JD has the means to
pay the debt after the date of the
order (during examination) and
the JD

CHECKLIST: JDS
2. Leow Wei Pin v Meyappa
Chettiar [1959] 1 MLRH
486 .
(c) Imprisonment:

5. Others

(i)

Before arrest can be made


or imprisonment can be
made the Court will require
some sum of money to be
deposited to the Court , this
is for the purpose of putting
JD
into
imprisonment
(s.10(1)
Debtors
Act);
Arrest can only be made
upon such payment .

(ii)

If
there
is
further/subsequent order be
made for the deposit, and
the JC failed to make such
payment, the Court may
order that
the
JD
be
discharged.
(s.10(2)
Debtors Act).

1. Recoverability of expenses
and costs incurred
S.11 Debtors Act: it shall be
claimable and recoverable under
the Judgment Debt.
2. Satisfaction or payment by
debtor
r.16 of ROC 2012: payment can
be made to the sheriff or bailiff
during his imprisonment.
r.17 once payment is made and
debt is satisfied.
3. Special

8 | Page

situation

in

*Clerk:
Once the Judgment Debt is
satisfied in respect of an
imprisoned debtor, the Judgment
Creditor shall lodge F.181 signed
by the JC to the Court.
*LA/Pupil:
Make sure all the payment has
been made to confirm with client
as well on the payment received
by client.

CHECKLIST: JDS
bankrupt or administration
order against debtor.
If receiving Order has been made
against the JD or an administration
order is made under s.106
Bankruptcy Act 1967 no order
shall be made.
If order for commitment has been
made the order if not executed
shall be recalled and cancelled, if
he is in prison he shall be
discharge.
Costs:
r.23 the costs and any incidental to
order for arrest, commitment and
attachment and any amount spent
by the Plaintiff shall be the
Plaintiffs costs in the cause in
any event. s.11 Debtors Act
1957.

9 | Page