MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
tory in nature and will not exceed the actual loss suffered by a plaintiff. If the claim is for contractual liquidated dam- ages, the maximum damages will be that stated in the liquidated damages clause. See Section 75 of the Contracts Act 1950. A party may also contractually limit the amount of damages to be paid. 9.3 Pre-judgment and Post-judgment Interest A successful party may obtain interest based on the pre-judgment period where a contract expressly provides for it, and at such rates pro- vided for in the contract. The court also may award pre-judgment interest on debts or dam- ages at such rates as it thinks fit for the whole or any part of the period between the date when the cause of action arose and the date of judg- ment. See Section 11 of the Civil Law Act 1956. A successful party is entitled to obtain post- judgment interest on judgment debts based on the rates contractually provided for, or at the rate of 5% per annum as prescribed by the Chief Justice through Practice Direction No 1 of 2012, to be calculated from the date of judgment to satisfaction. See Order 42 Rule 12 of the Rules of Court 2012. 9.4 Enforcement Mechanisms of a Domestic Judgment A domestic judgment can be enforced through the following means: • a writ of seizure and sale, where the judg- ment debtor’s property is seized by the court and sold through an auction (Order 47 of the Rules of Court 2012);
• a garnishee order made against a debtor of the judgment debtor, to pay sums due to the judgment debtor directly to the judgment creditor (Order 49); • a charging order imposed on any interest to which the judgment debtor is beneficially entitled in any securities (Order 50); • the appointment of a receiver to manage income from the judgment debtor’s assets and make payment to the judgment creditor (Order 51); • bankruptcy proceedings against a judgment debtor who is an individual, whose property will vest in the Director General of Insolvency for payment of all their debts; • winding-up proceedings against a corporate judgment debtor, whose property will vest in a liquidator for payment of all its debts and thereafter the company will be dissolved; or • a judgment debtor summons requiring the judgment debtor (in the case of an individual) or an officer of the judgment debtor (in the case of a company) to attend court and be orally examined on the judgment debtor’s ability to satisfy the judgment (Section 4 of the Debtors Act 1957). 9.5 Enforcement of a Judgment From a Foreign Country Under the Reciprocal Enforcement of Judg- ments Act 1958, a foreign judgment which is a monetary judgment made by a superior court from the reciprocating jurisdictions listed in the First Schedule (namely the UK, Hong Kong, Singapore, New Zealand, Sri Lanka, Brunei and certain states in India) may be registered in Malaysia. The judgment creditor may apply to the High Court within six years from the date of the judg- ment to have it registered by filing an originating summons supported by an affidavit, which:
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