Legal proceedings can be a daunting prospect for any company or corporation, especially when navigating the complexities of the Malaysian legal system. In this article, we'll explore why this requirement is so essential, what it means for body corporates in Malaysia, and how engaging a solicitor can help mitigate risks and liabilities.
1. In Malaysia, legal proceedings before the Court are governed by the Rules of Court 2012. One specific rule that applies to body corporates, such as companies or corporations, is Order 5, rule 6.
2. This rule expressly states that a body corporate may not begin or carry on any legal proceedings before the Court otherwise than by a solicitor. In other words, a body corporate must be represented by a solicitor in any court proceedings before the High Court.
3. The requirement for a body corporate to engage a solicitor for court proceedings is based on the fact that a body corporate is an artificial entity.
4. Unlike a natural person, such as an individual, a body corporate is not a physical being and cannot attend court or argue its case "personally." As such, it requires a legal representative, in the form of a solicitor, to act on its behalf in court proceedings.
5. In the case of Kok & Co Tax Services Sdn Bhd v. Eastway Engineering Sdn Bhd, it was observed that:
Order 5 r. 6 Rules of the High Court 1980 expressly provides that a body corporate may not begin or carry on any such proceedings before the High Court otherwise than by a solicitor. It would therefore appear that the rule does not contemplate for a body corporate to sue "in person" as being an artificial entity, it cannot attend and argue "personally.
6. The need for a solicitor to represent a body corporate is not a new legal requirement. It has been a longstanding practice in many common law jurisdictions, including Malaysia.
7. The High Court in the aforementioned case, further states the following:
The right of audience before the Court in respect of a body corporate is necessarily limited to a solicitor who had been instructed on that body corporate's behalf. Henceforth, as the law stands, the managing director or any officer of a body corporate cannot substitute his persona to that of the company of which he is a director.
8. There are various reasons why a body corporate may need to engage in legal proceedings before the High Court. This may include disputes with other parties, breach of contract claims, or seeking redress for damages.
9. Whatever the reason, it is essential that the body corporate engages the services of a qualified and experienced solicitor to represent its interests in court.
10. In addition to ensuring proper legal representation, engaging a solicitor can also help to mitigate any potential risks or liabilities that a body corporate may face in court proceedings.
11. A solicitor can provide valuable legal advice on the strengths and weaknesses of the case, assess the potential damages or liabilities that may arise, and offer guidance on how to minimize any negative outcomes.
SUMMARY
In Malaysia, Order 5, rule 6 of the Rules of Court 2012 stipulates that a body corporate, such as a company or corporation, cannot begin or continue legal proceedings before the High Court without the representation of a solicitor. This requirement is necessary because a body corporate is an artificial entity and cannot attend court or argue its case personally.
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Disclaimer: This article is published for the purpose of awareness and general knowledge. Any part contained in this article should not be considered as a guide to initiate legal action independently without first consulting an experienced lawyer.
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Nor Hafeez adalah seorang peguamcara sivil yang beramal sebagai seorang peguam dan pemilik penuh sebuah firma guaman yang mempunyai pejabat kecil di pinggir Kuala Lumpur. Beliau mengendalikan pelbagai kes-kes sivil dan pelbagai masalah berkait dengan undang-undang sivil Malaysia seperti kes saman malu, langgar kontrak, hutang peribadi dan korporat, pencerobohan tanah, penceraian bukan islam, harta pusaka, pemecatan kerja, konsultan tuntutan CIPAA dan sebagainya. Di masa lapang, beliau berkongsi ilmu melalui penulisan blog dan sekali sekala menggunakan telefon untuk mengambil dan mengedit gambar secara amatur. Beliau juga adalah seorang glory hunter yang meminati Manchester City dan juga segelas Nescafe Ais diwaktu pagi.
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