[6] Mode, Writ and Service

CHAPTER 6
Mode, Writ And Service

A. MODE OF COMMENCEMENT

A1 Writ or OS?
A2 Wrong Mode

B. THE WRIT

B1 Indorsements on the Writ

B2 Validity and Renewal

2.1 The Test

2.2 Renewal post limitation
2.3 The Procedure

C. SERVICE

C1 Individuals
C2 Companies
C3 Other methods of service
C4 Substituted Service
C5 Foreign Defendant within Jurisdiction
C6 Service out of Jurisdiction

______________________________________________________________

A. M ODE OF COM M ENCEM ENT

[6.01] Save for the proceedings set-out in Appendix C, the plaintiff must commence his
action by using a Writ of Summons (“W rit”) or an Originating Summons (“OS”).1

A1 W rit or OS?

[6.02] O5 r4 provides a guide in deciding whether a Writ or OS would be the appropriate

mode for cases falling outside the mandatory provisions of r2 and r3. In National Land
Finance Corporation Society Ltd v Sharidal Sdn Bhd 2 D agreed to sell its land to
P, subject to the Foreign Investments Committee’s approval. No approval was granted. P
accordingly took out an OS to declare the agreement as void. D argued that P should have
used a Writ as there were issues of fact which could only be determined by oral evidence.

1
O5 r1
2
[1983] 2 MLJ 211

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 [6] Mode, Writ and Service

Salleh Abas CJ (Malaya) (as he then was) said:

“Counsel for [D] objected to the respondents taking the proceedings by an Originating Summons
instead of by a writ. He argued that there are matters of credibility of witnesses and issues of
facts which could only be decided by oral evidence instead of by sworn affidavits. With respect,
we disagree with the submission. The issue involved in this case is purely a matter of
construction of the sale and purchase agreement between the parties. No other evidence is
needed to determine the issue than the massive correspondence that passed between them and
their solicitors. We think that the learned judge was right in holding that the issue can be decided
on the basis of the documents exhibited in court together with the undisputed facts disclosed
and that there are no issues relevant to the case which require evidence to be called at a trial.
We would further add that there is nothing to prevent [D] from cross-examining [the deponent] if
3
they were not happy with his affidavits. In this case [D] surely had the opportunity to cross-
examine him, but they did not avail themselves of it and let this opportunity to pass by. We are
therefore of the view that the procedural objection raised by [D] had no substance.” (emphasis
added)

In Abdul Majid v Haji Abdul Razak 4 P took-out an OS for an order to administer a

trust, in respect of which he claimed he was a beneficiary. The Court foundthat there was
dispute as to the existence of the trust.5 Chang Min Tat J (as he then was) said: “This must
clearly mean .. that evidence would have to be led, and .. that an originating summons is
not a suitable medium or process for the determination of the issues raised .. the
originating summons [is] dismissed in limine.”6

A2 W rong M ode

[6.03] The effect of using the wrong mode to commence proceedings is governed by
O1A, O2 r1 and O28 r8. The scope and application of O1A has been previously
considered.7

[6.04] The scope of O2 r1 was explained by Gopal Sri Ram JCA (as he then was) in
Cheow Chew Khoon v Abdul Johari :8

Before the Rules of 1980, there was a distinction made between mere irregularities and nullities.
The former were excused and the proceedings were allowed to continue. The latter were serious
and resulted in the setting aside of the proceeding, the striking out of originating process and in
the discharge of orders .. But the position is now different under the present Rules, O 2 r 1(1) ..

3
O28 r4(4)
4
[1971] 2 MLJ 228
5
In Re Yeap Chor Ee [1954] MLJ 248, an OS was correctly used where the question was whether a deed of
settlement made by the testator constituted a good and valid trust of certain shares. In Foon Seong v Chan
San Choon [1947] MLJ 85, the OS was not a suitable process as P was asking for a decision as to whether
there was a valid trust by the deceased in his favour.
6
In Ng Wan Siew v Teoh Sin [1963] MLJ 103, Thompson J (as he then was) said: “.. when it is known
there is going to be a conflict of testimony and a necessity for taking parol evidence, the proceedings should be
commenced by writ ..”
7
See Para 1.08
8
[1995] 1 MLJ 457

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In Harkness v Bell's Asbestos & Engineering Ltd [1966] 3 ALL ER 843 Lord Denning explained
the change brought about by this Rule. He said: ‘This new rule does away with the old distinction
between nullities and irregularities. Every omission or mistake in practice or procedure is
henceforward to be regarded as an irregularity which the court can and should rectify so long as
it can do so without injustice.’”

O2 r1 was applied in Sunkyong International Inc v Malaysian Rubber

Development Corp Bhd 9 where Peh Swee Chin SCJ said:

“The second point was the failure of the local defendant to state in its affidavit supporting its
application for leave to serve out of jurisdiction that in its belief, it had a good cause of action. In
our view, this omission could not amount to anything more than a mere failure to comply with a
rule .. in regard to form and content of an affidavit, an irregularity curable by costs without any
10
need for any amendment herein, vide O 2 rr 1(1) and (2) of the Rules of the High Court 1980.”

[6.05] O28 r8 was applied in Ting Ling Kiew & Anor v Tang Eng Ironworks Co
Ltd .11 P took out an OS12 against D pursuant to s.304 of the Companies Act 1965.13
Jemuri Serjan SCJ said:

“[Counsel for D] .. submitted that the learned trial judge erred in law in dealing with the
application summarily by an originating summons .. especially in the light of the plea of fraud and
the conflicting affidavit evidence .. Apart from the various inconsistencies in the affidavits .. we
also observe other matters which have not been satisfactorily explained in the affidavits and
could be resolved if the proceedings have been begun by writ .. Unquestionably, these conflicts
in the evidence can only be properly and satisfactorily resolved if oral evidence is adduced and
witnesses cross-examined on their evidence which, however, is not possible in proceedings
begun by originating summons. To add to the uncertainty of the facts the deponents of both
affidavits of the [P and D] were not cross-examined to ascertain the veracity or otherwise of their
evidence. It would seem that both parties were contented to rest their case on their affidavits
only where such affidavits do not unequivocally bear testimony conclusively and positively to the
various allegations but are themselves open to more than one interpretation ..

9
[1992] 2 MLJ 146
10
It is, however, not a “get out of jail free” card. In Metroinvest Ansalt v Commercial Union Assurance
Co Ltd [1985] 2 All ER 318 Cumming-Bruce LJ said: “As I construe O 2 r 1, from the moment a step in
proceedings is tainted by irregularity through failure to comply with the rules, the irregular step or document
remains irregular inter partes until the matter has been brought before the court and the court has decided in
which way to exercise the jurisdiction conferred by O 2 r 1(2). Order 2 r 2 does not restrict the power of the
court in the sense of restricting its jurisdiction, and does not have the effect of suspending the irregularity until
the application under O 2 r 2 is made. The purpose and effect of O 2 r 2 is to prescribe the procedure if and
when an opposite party decides to apply so that the court on recognising the irregularity, may exercise its
powers under r 1(2) by taking the action of killing or curing the irregular proceeding.”
11
[1992] 2 MLJ 217
12
As was required by O88 r2 RHC 1980.
13
If in the course of the winding up of a company or in any proceedings against a company it appears that any
business of the company has been carried on with intent to defraud creditors of the company or creditors of
any other person or for any fraudulent purpose, the Court on the application of the liquidator or any creditor or
contributory of the company, may, if it thinks proper so to do declare that any person who was knowingly a
party to the carrying on of the business in that manner shall be personally responsible, without any limitation of
liability, for all or any of the debts or other liabilities of the company as the Court directs.

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 [6] Mode, Writ and Service

In any case it is most inappropriate and iniquitous to decide disputed facts summarily by relying
14
simply on affidavit evidence .. this is a proper case for the application of O 28 r 8(1) .. [we]
order the proceedings to continue as if begun by writ and the parties to deliver their pleadings in
accordance with O 18 ..”

[6.06] In Cheow Chew Khoon (supra), P, the owner of a piece of land, took-out an OS
against D (the tenant of the former owner of the land) claiming vacant possession. D
argued that the OS was wrongly taken-out pursuant to O89. P denied that it was an O89
application. Gopal Sri Ram JCA (as he then was) said:
15
“The summons does not .. state any particular rule of court in its intitulement. Now, I think that
that is not only wrong but plainly embarrassing. How, might one ask, is a defendant or the court
to determine which rule of court the plaintiff is invoking unless he explicitly specifies it? If a
defendant and the court should have to conduct a close examination of the supporting affidavit in
each case in order to determine the particular jurisdiction or power that is being invoked by an
originating summons or other originating process that requires an intitulement, then a plaintiff will
be at liberty to shift from one rule to another or indeed from one statute to another as it pleases
him without any warning whatsoever to his opponent or the court. It would make a mockery of
the .. fundamental principle that a party must not take his opponent or the court by surprise .. an
originating process requiring an intitulement must state, with sufficient particularity, either in its
heading or in its body, the statute or rule of court under which the court is being moved:
otherwise it would be an embarrassing pleading and be may be liable to be struck out, unless
sooner amended .. Having taken into account all that has been said on both sides of the Bar,
having read and reread the summons and the affidavits filed by the plaintiff several times and
having given the matter my most anxious consideration, I am left with the indelible impression
that the plaintiff did in fact resort to the O 89 procedure for the purpose of obtaining vacant
possession of the premises with all due haste.”

The High Court had invoked O28 r8. Should that have been done? Gopal Sri Ram JCA
said:

“..I am entirely uncertain as to whether a judge .. should, act under r 8(1) of O 28 and direct
proceedings commenced by originating summons under O 89 to be continued as though they
were commenced by writ. There is absolutely no doubt that he may, generally speaking,
exercise the power under r 8(1) of O 28 where it appears to him that viva voce evidence is
required to decide upon factual disputes for the determination of which the originating summons
procedure is manifestly unsuitable. Equally, he may, in an appropriate case, dismiss the
summons and leave the plaintiff to commence an action by writ. Cases in which a dismissal may
be appropriate include those in which it is patent upon the face of the summons or the affidavit in
its support that the complaints raised cannot but be tried in a writ action. The plaintiff, in such a
case as that alluded to, must be taken to know ab initio that the mode he selected to commence
the proceedings was manifestly unsuitable .. Ultimately it is for the judge, in the exercise of his
pure discretion, to decide which course he prefers to adopt and he cannot be faulted for
choosing one course rather than the other ..

14
In Eng Mee Yong & Ors v V Letchumanan [1972] 2 MLJ 212, Lord Diplock said: “Their Lordships must
therefore turn to the evidence .. bearing in mind that if there appears to be any conflict of evidence which is not
on the face of it implausible, such a conflict ought not to be disposed of on affidavit evidence only. It leaves a
serious question to be tried.”
15
O7 r2(1A)

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 [6] Mode, Writ and Service

Yet I have seen in this court .. several cases in which O 89 has been invoked on the basis of
facts that plainly fall outside its scope. Where this occurs, I cannot but reach the conclusion that
there is an abuse of the court's process which, in my judgment, is not sufficiently punished by
16
the mere conversion of the summons to a writ.”

B. THE W RIT

[6.07] Legal proceedings commence when the plaintiff issues a writ. Issuing a writ is a
two stage process – (i) the plaintiff’s solicitor files the requisite number of copies at the
Registry of the High Court and (b) the Registrar will assign a serial number to the writ and
sign, seal and date the writ.17 Following this, the writ is deemed to be issued.18

B1 Indorsem ents on the W rit

[6.08] O6 r2(1) requires certain indorsements to be made on the writ: (i) it must be
indorsed with a statement of claim19 or at the least with a concise statement of the nature
of the claim made or the relief or remedy required in the action20 and (ii) there must be an
indorsement as to capacity when the plaintiff sues or the defendant is sued in a
representative capacity.

[6.09] In Khoo Kay Hock v E J Ketting 21 P issued a writ against D for negligently
causing the death of the deceased. The writ was indorsed to be for benefit of the estate of
the deceased but it did not contain an indorsement that the plaintiff was also claiming
damages for the benefit of the dependants.22 However, the statement of claim stated that
the action was brought for the benefit of the estate as well as for benefit of the dependants.

16
This observation is purely obiter. D, who was dissatisfied with the conversion order, had appealed to the
Supreme Court. The appeal was dismissed. So the correctness of the conversion order was no longer an
issue.
17
O6 r6(3). In Jumatsah v Voon Kin Kuet [1981] 1 MLJ 254, Chong Siew Fai J (as he then was) said:
“Now what has a plaintiff to do .. when he wants to issue a writ of summons? He or his advocate will properly
prepare and sign the required copies of the writ and the praecipe, and submit them to the proper officer in the
court registry for dating, signing and sealing after paying the prescribed fee. Once these are done the plaintiff
has completed his part in the issue of a writ. What is required thereafter is some act of the court official e.g. the
affixing of the seal of the court and so on, to give the writ its validity ..”
18
In Jumatsah , P filed a writ on 2.11.1977 (within the period of limitation). The writ that was issued bore the
date 14.11.1997 - which was the date the writ was sealed. Limitation had expired on 6.11.1997. The court held
that the writ should be dated on the day the writ is filed and ordered that the date 14.11.1997 appearing in the
writ be amended to read 2.11.1997.
19
This is referred to as a Specifically Indorsed Writ
20
A general indorsement is meant to bring to the attention of D the precise claim that is being made against
him (without discussing particulars). The claim is further particularised by a subsequent delivery of a proper
statement of claim.
21
[1978] 2 MLJ 57
22
A dependency claim is made pursuant to s 7 of the Civil Law Act 1956 and the he procedure is set-out in
s.7(7).

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 [6] Mode, Writ and Service

Raja Azlan Shah FJ (as he then was) said:

“If the writ contains technical defects amounting to an irregularity, the subsequent delivery of a
proper statement of claim cures the defects provided they do not prejudice the defendant’s
rights, eg depriving him of the benefit of a period of limitation … As long as the action is
commenced or in other words the writ is issued within the prescribed period this court is not
concerned with good or bad indorsements.”

The Federal Court was not so forgiving in Mat Shah Bin Mohamed v Foo Say
Meng .23 P sued D, who was the administrator of the estate of the deceased but D’s
representative capacity was not indorsed on the writ. Wan Suleiman FJ said:

“[P] brought [D] to court. It is for them to state clearly in what capacity they were suing [D] .. It is
for them to say that they are suing [D] as administrator and not in his personal capacity .. The
learned Judge considered that the failure to make the estate of [the deceased] a party was fatal
to [P’s] claim. This alone was enough to dispose of their claim.”

B2 Validity and Renewal

[6.10] Once a writ is issued, it is valid for 6 months24 from the date of issue and it must be
served within this period.25 O6 r7(2) deals with the procedure and circumstances whereby
the Court may extend the validity of the writ. This is necessary when P is unable to serve
the writ within its initial 6 month validity period.

2.1 The Test

[6.11] In Lloyd Triestino Societa v Chocolate Products (Malaysia) Sdn Bhd 26

the Federal Court adopted judgment of Goddard LJ (as he then was) in Battersby & Ors
v Anglo-American Oil Co. Ltd. & Ors 27:

“.. the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a plaintiff
who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on
an application which is necessarily made ex parte. In every case care should be taken to see
that the renewal will not prejudice any right of defence then existing, and in any case it should
only be granted where the court is satisfied that good reason appear to excuse the delay in
service, as, indeed, is laid down in the order. The best reason, of course, would be that the
defendant has been avoiding service, or that his address is unknown, and there may well be
others, but ordinarily it is not good reason that the plaintiff desires to hold up the proceedings
while some other case is tried or to await some future development.” (emphasis added)

23
[1984] 1 MLJ 237
24
A writ expires a day earlier from the date of its issue – Trow v Ind Coope (west Midlands ) [1967] 2 QB
899. So, a writ issued on 14.10.2011 expires on 13.4.2012 and not on 14.4.2011. This is an exception to the
normal rule of computation in O3 r2 as it includes the date of the event.
25
O6 r7
26
[1978] 2 MLJ 27
27
[1944] 1 KB 23 CA

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 [6] Mode, Writ and Service

[6.12] There are a few interesting examples of how the courts have exercised its
discretion.

In New Ching Kee v Lim Ser Hock 28 P was injured in a road accident 18.11.1970. His
solicitors issued a writ on 7.8.1973 but did not serve it. On 31.7.1974, P obtained an order
renewing the writ a further 6 months. The writ was eventually served on D on 3.1.1975. D
then applied to the court to set aside that service and the renewal of the writ. P’s reasons
for not serving the writ were that (i) the writ was filed to preserve P’s claim as limitation
would have set in on 18.11.197329 (ii) his solicitors had entered into negotiation with D’s
insurers with a view to settling P’s claim and (iii) P’s solicitors had misplaced the files when
they moved office.

Chua J (as he then was), after holding that (i) the fact that negotiations for a settlement
were in progress did not afford a sufficient reason for not serving the writ nor did it afford
sufficient reason for the court to exercise its discretion to renew the writ, (ii) it was the duty
of the P’s solicitors to serve the writ in time even though negotiations were in progress30
and (iii) the temporary loss of the files by P’s solicitors was not sufficient or good reason as
they were recovered before the expiry of the writ and service could have been attempted
then, said:

“ .. the plaintiff’s solicitors [did not act] reasonably in this matter. It is the duty of a plaintiff who
issues a writ to serve it promptly. I am afraid the plaintiff’s solicitors have been negligent in not
serving the writ in time and the plaintiff has a remedy against them.”

A different decision was reached in Kun Kay Hong v Tan Teo Haut .31 This was, yet
again, another running down matter which occurred on 26.11.1978. P issued his writ on
25.11.1981 (which was the last day of the 3 year limitation period). P informed D’s insurers
of the issue of the writ. On 30.12.1981, the insurers solicitors asked P’s solicitors to
suspend the service of the writ pending their investigations. There was no further progress
for the next 8 months. On 18.11.1982, P's solicitors asked D’s solicitors whether they had
instructions to accept service of the writ. On 24.9.1982 D’s solicitors replied and said that
they were still in the process of investigations and again requested P’s solicitors to ‘stay
(their) hands’ until the same was completed. On 12.10.1982, D’s solicitors wrote to P’s
solicitors asking for the amount which the P would accept by way of settlement out of
court. P’s solicitors did not indicate the amount. Thereafter, P's solicitors wrote to D’s
solicitors on 25.4.1983, again asking if they had instructions to accept service of the writ.
D’s solicitors were silent. P then filed an application on 12.5.1983 to extend the validity of
the writ.

28
[1975] 2 MLJ 183
29
This is referred to as a Protective Writ
30
Easy v Universal Anchorage Co [1974] 2 All ER 1105
31
[1985] 1 MLJ 404

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 [6] Mode, Writ and Service

Lai Kew Chai J (as he then was) in dismissing the application, said:

“.. there is a distinction between mere negotiations on the one hand and the situation in which a
defendant or his representative has stated that there is no need to serve the writ pending
negotiations for a settlement. The mere fact that negotiations for a settlement were in progress
has been held as not amounting to a good reason to extend the validity of a writ .. On the other
hand, it has been held that it was a sufficient reason that the defendant’s insurers have stated
32
that there was no need to serve the writ pending negotiations for a settlement.” (emphasis
added)

2.2 Renewal post lim itation

[6.13] Is there a more stringent test if P makes an application to renew after limitation has
set in? There was a time when it was thought there was. That changed in Jones v
Jones 33 where the Court of Appeal explained that the test was the same.34 This was
confirmed by the House of Lords in Kleinworth Benson Ltd v Barbrak Ltd 35 where
Lord Brandon said:

“I regard [Jones v Jones] as a significant milestone on the road of authority with regard to cases
of this kind and I do so for two reasons. First, it strengthens the view already adumbrated in
earlier cases that what is required to justify extension is "good cause" or "good reason" rather
than the more stringent "exceptional circumstances." Secondly, it introduces for the first time as
a relevant consideration the balance of hardship to the plaintiff if extension is refused and
hardship to the defendant if it is allowed.”

2.3 The Procedure

[6.14] O6 r7(2A) introduces a stringent procedural requirement that is prefaced by the

word “must”.36 The position prior to r7(2A) is found in Arab Malaysian Credit v Tan
Seang Meng .37

32
In Chittenden v Doe [1970] 1 WLR 1618, Ungoed Thomas J (as he then was) said: “It seems to me quite
immaterial whether the delay resulted from the defendant asking the plaintiff to withhold service or from his
agreeing with the plaintiff that service should be withheld. In each case, the defendant was party to service
being withheld and without his being party to the delay the originating process was liable to be duly served.”
33
[1970] 2 QB 576
34
Sachs LJ said: “Where it is desired to deprive a defendant of his ability to plead a Statute of Limitations,
naturally the good cause to be put forward must be strong. It is quite impossible to define the circumstances
which can constitute 'good cause.' It is sufficient in the present case to say that here we find a most unusual
set of circumstances. Probably they are and will remain unique.”
35
[1987] 2 All ER 289
36
The application is made by an ex parte summons. This imposes a duty on P to make a full and frank
disclosure of material facts. The Court of Appeal made this clear in Castle Inn Sdn Bhd v Bumiputra-
Commerce Bank Bhd [2009] 2 CLJ 445, relying on Baly v Barrett [1988] N1 368 where Lord Brandon of
Oakbrook said: “.. it is a well established general rule of law that, when a party makes an ex parte application
to the court of any kind, he must make a full and frank disclosure of all relevant matters. This general rule
applies in particular to an ex parte application for extension of the validity of a writ ..” and on The King v The
Special Commissioners for The Purposes of the Income Tax Acts for The District of
Kensington, ex parte Princess Edmond De Polignac [1917] 1 KB 486 where Warrington CJ held as
perfectly well settled that a person who makes an ex parte application to the court is under an obligation to the

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 [6] Mode, Writ and Service

On 22.8.1985, P issued a writ against D and on 8.1.1986, P obtained an order for

substituted service (SS),38 which was effected on 13.1.1986. No appearance having been
entered, P entered judgment in default (JID) against D on 20.5.1986. Thereafter P took out
bankruptcy proceedings. On 21.8.1992, D filed an application to have the JID set aside.39
That application was allowed on 7.6.1993. The judge found the SS order to be fatally
flawed. So, he set aside the JID ex debito justitiae. This meant that the service of the writ
was bad and that the writ had never been served at all.

P could not now serve the writ as it had expired. P was also barred from applying for more
than one order of extension at any given time. P met these difficulties by a simple yet
ingenious method. It made 8 separate and distinct applications, by each of which it sought
for and obtained a 12 month extension40. The total of all these extensions had the effect of
bringing back to life the expired writ. D, on being served with the extended writ, applied to
set aside the several orders extending the writ. The Court of Appeal held that the High
Court had the jurisdiction to make the orders it did. This is how Gopal Sri Ram JCA (as he
then was) put it:

“.. we are satisfied that the High Court had ample jurisdiction to grant .. the several extensions
sought by it of its writ. Quite apart from O 6 r 7, there is wide power under O 3 r 5 conferred
upon the High Court to extend time. Even the restriction of granting more than one extension of
12 months expressed in O 6 r 7 may, in appropriate cases, be overcome by having resort to O
92 r 4. Further .. reference has been made to the important principle that a rule of court should
not be construed so as to produce unfairness or a manifest injustice. … Surely, this principle
may be invoked to overcome any technical obstacles in the way of achieving substantial justice
in a case where a pedantic approach to a rule of court will result in injustice.”

[6.15] Has the position changed with r7(2A)? In Captain Hamzah 41 the Federal Court
held that the requirements of r7(2A) were mandatory. Zaki Tun Azmi CJ said:

“The word "must" appearing in O. 6 r. 7(2A) is not usually used in Malaysian legislations.
Normally the word used is "shall". So in this case, when the word "must" is used, the intention is
to fully ensure that it is complied with and no discretion is to be given as far as the compliance
with the prerequisites is concerned .. The words "Subject to para. (2A)" in .. O. 6 r. 7(2) further
strengthens the argument that before the court could exercise its discretion to renew a writ,
para. (2A) must be satisfied .. When plaintiffs apply to extend the validity of writs, courts should
examine closely the affidavits filed in support of applications for extensions. Before granting an
extension, courts must be satisfied that serious efforts had been made to serve. A simple and
plain statement that efforts had been made to serve cannot be a sufficient ground. The
affidavits must provide detailed facts as to when, where and how attempts to serve were made.

court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make
that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be
deprived of any advantage he may have already obtained by reason of the order which has thus wrongly been
obtained by him.
37
[1995] 1 MLJ 525
38
O62 r5
39
Is such a delay permissible? See O42 r13
40
As was the position prior to 21.9.2000.
41
See Para 1.09

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 [6] Mode, Writ and Service

Otherwise O. 6 r. 7 (2A) RHC will become a dead letter. The object of the rule will be defeated ..
Having said that, I am fully aware of defendants who avoid service. There must be evidence to
support this claim. If serious efforts are made, I am sure defendants are traceable. In
appropriate cases, substituted service may be ordered if they are not traceable. Accordingly, I
have no hesitation in answering the first question posed in the positive, that is to say, the
requirements of O. 6 r. 7(2A) are mandatory prerequisites.” (emphasis added)

The Federal Court then held that O1A could not be invoked to cure the failure to comply
with O6 r7(2A). Zaki Tun Azmi CJ, after holding that the phrase ‘technical non-compliance’
only refers to non-compliance with a rule which is “not fundamental or mandatory in
nature”, said:

“..a failure to renew a writ for service as a breach of a fundamental kind. The answer to the first
question also shows that O. 6 r. 7(2)(2A) RHC which deals with the service of a writ is
mandatory. It follows that O. 1A RHC cannot be invoked to cure the failure to comply with the
prerequisites O. 6 r. 7(2A) RHC.”

[6.16] In Yap Seng Hock v Southern Finance Bhd 42 P issued a writ dated
19.9.2003 against D and obtained a JID of Appearance on 25.3.2004. D became aware of
the JID when a bankruptcy notice was served on him on 21.1.2010. He then applied to set-
aside the JID on the basis that the service of the writ was defective. On 29.6.2012, the
Court of Appeal agreed and remitted the matter back to the High Court for case
management. D then applied to strike-out the writ on the basis that it had expired. The
Court of Appeal agreed and struck-out the writ. David Wong JCA said:

“.. when the [case] was remitted back to the High Court for case management [the] writ of
summons had undoubtedly expired where there had not been any extension applied for .. Just
because the Court of Appeal remitted the suit back for case management, there cannot be any
assumption that the writ of summons which had expired need not to be renewed .. what we have
here is a nullity and that simply means is that 'there is no valid document in Court' until the writ of
summons has been renewed.”

42
[2015] 2 MLJ 675

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 [6] Mode, Writ and Service

C. SERVICE

[6.17] Upon being issued, the Writ or OS must be served on the defendant.43 The
methods of service are prescribed by the Rules and written law.44

C1 Individuals

[6.18] The general rule is that an individual must be served personally.45 The exceptions
are found in O10 r1(1), O10 r1(2), O10 r1(3)46, O10 r3, O10 r4, O11 r5(3) and O62 r 5.

[6.19] Service by AR Registered post was explained in Pengkalan Concrete Sdn Bhd
v Chow Mooi .47 P sent the writ to D by AR registered post. The AR card was returned
with the name 'Yanti' inscribed on it. The court held that all that P needed to prove was:
(i) a writ was sent by AR registered post and (ii) the address was the last known address.
Nothing more was required of P. This is how Suriyadi J (as he then was) explained the
position:

“.. the recipient being 'Yanti' did not vitiate that service .. if the plaintiff had direct and cogent
evidence of that writ having been received by the intended person, that was a plus factor for the
48
former, otherwise s 12 of the Interpretation Acts 1948 and 1967 would immediately come into
play when invoked .. Therefore, unless rebutted by the defendants, service thus must be
deemed to have taken place. As it were, I found no rebuttal evidence before me.”

43
In Kekatong Sdn Bhd v Bank Bumiputra (M) Bhd [1998] 2 MLJ 440, Gopal Sri Ram JCA (as then
was) said: “It is axiomatic that the object of service of process ‘is to bring the proceedings to the notice of the
person being served .. The procedure of “constructive service” is unknown [and] inapplicable in the Federated
Malay States ..” It is an example of the fundamental rule of natural justice expressed in the maxim audi alteram
partem.
44
In PT Pelajaran Nasional Indonesia v Joo Seang & Co Ltd [1958] MLJ 113, Rigby J held that
“where the law provides a particular method or form of procedure for effecting service .. then there must be
strict compliance with those provisions, and the Court will set aside a judgment obtained by default where the
requirements have not been complied with.”
45
O10 r1(1).The method of affecting personal service is explained in O62 r3 - putting a copy through a crevice
of the door of the room in which D is and telling him that it is a copy of the writ, is not sufficient (Christmas v
Eicke (1848) 6 D&L156); if D refuses to take the copy it is not necessary to leave it in his actual corporeal
possession, but it is sufficient to inform him of its nature and throw it down in his presence (Thomson v
Pheney (1832) 1 Dowl 441) - the copy of the writ must be left with, and not merely shown to D (Worley v
Glover (1730) 2 Stra 877) even though he refuses to take it; it is not sufficient to hand D the copy writ
enclosed in an envelope without informing him that it is a copy writ (Banque Russe v Clarke [1894] WN
203); service on the wife, or a known agent of D, is not good service (Frith v Donegal (Lord) (1834) 2 Dowl
527) but service on the wife or agent at the request of D would be sufficient (Montgomery & Co. v
Liebenthal & Co [1898] 1 QB 487).
46
When D enters appearance gratis, he is taken to have waived personal service: Pike v Nairn & Co Ltd
[1960] 2 All ER 184.
47
[2003] 3 MLJ 67. This decision was approved by the Court of Appeal in Yap Ke Huat v Pembangunan
Warisan Murni Sejahtera Sdn Bhd [2008] 5 MLJ 112.
48
“Where a written law authorizes or requires a document to be served by post, then, until the contrary is
proved, service—(a) shall be presumed to be effected by properly addressing, prepaying and posting by
registered post a letter containing the document; and (b) shall be presumed to have been effected at the time
when the letter would have been delivered in the ordinary course of the post.”

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 [6] Mode, Writ and Service

[6.20] O65 r2 was considered by the Court of Appeal in Commerzbank (South East
Asia Ltd) v Tow Kong Liang .49 P issued a writ in Singapore and obtained leave to
serve the writ out of jurisdiction on D. The writ was served on D in Malaysia by an agent.
Clearly the service was not in compliance with O65 r2. The Court of Appeal held that this
provision was not exclusive and service could be effected in Malaysia pursuant the other
methods set-out in the Rules. Heliliah JCA (as she then was) said:

“.. in the case of service of the foreign process emanating from a court or tribunal of a non-
convention country, where no letter of request is issued by such court or tribunal, the service
should be effected by personal service on the defendant in accordance with O. 10 r. 1, read
with O. 62 .. Although these rules by their express terms apply only to an originating process
issued locally, we see no reason in principle why that mode of service prescribed for service of
an originating process issued in Singapore cannot and should not be followed and adopted in
the absence of any rule of procedure to the contrary .. Counsel for [D] seeks to impress upon us
that such a conclusion would effectively render O. 65 r. 2 nugatory, as foreign litigants would
prefer to effect the service of foreign process through private agents instructed by them .. Order
65 r. 2 therefore remains a facilitative provision which sets out an official channel for service of
foreign process .. if the foreign jurisdiction requests for such service to be effected .. The total
50
effect is that .. Order 65 is not exclusive.”

C2 Com panies

[6.21] Service on a company must be effected pursuant to the methods in O62 r4. In
Yew Leek Enterprise v Foong Engineering Sdn Bhd 51 service of the writ was
effected by registered post to the principal office of the company. VC George J (as he then
was) said:

“Service of the writ can be effected at an office of a company which may not be its registered
office. No doubt a prudent solicitor will not take the risk of attempting to serve a writ at what he
understands to be the principal office of the defendant corporation because whether it is the
principal office or not could be the subject of dispute. But where in fact service is effected in the
manner prescribed by the rule at the office and if there be more than one office at the principal
office of the corporation, then such service is good service even though the principal office is
52
not the registered office.”

49
[2011] 3 CLJ 127
50
The new r2A gives effect to this decision. The position is similar in Singapore – see Fortune Hong Kong
Trading v Cosco Feoso (Singapore) [2000] 2 SLR 717.
51
[1990] 2 MLJ 62
52
In Lee Boon Tatt & Ors v Takhdir Trading Sdn Bhd [1984] 2 MLJ 341, the writ was served by AR
registered post to D at No 39, Chulia Street, Penang (it’s business offices). The registered office was at No 31,
China Street Ghaut, Penang. Dzaiddin J (as he then was) said: “[r4(1)(b)] says if there be more offices than
one, then service may be effected at the principal office which should mean the principal place of business of
the corporation .. [here] the principal place of business of the defendants at the material time was No 39,
Chulia Street, Penang and the service of the Writ by AR Registered post was good and effective service.”

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 [6] Mode, Writ and Service

C3 Other m ethods of service

[6.22] Service on other entities are as follows:

Government O73 r3 and s.26 Government Proceedings Act 195653

Persons under a Disability O76 r14

Partners O77 r3

Societies s 9(c) Societies Act 196654

C4 Substituted Service

[6.22] In Re S Nirmala 55 VC George J (as he then was) explained Practice Note No 1 of

1968:

(a) where the whereabouts of the person to be served is known, compliance of Practice
Note No 1 of 1968 will ensure that the application for substituted service is grounded
on other than a mere statement that the person to be served is evading service;

(b) the Practice Note does not have the effect of prohibiting other procedures that bring
about the same result;

(c) where the whereabouts of D is not known, the Practice Note has no application in
respect of an application for substituted service;

(d) however, again it is not sufficient that the application for substituted service is
grounded on a mere statement that D is evading service; and

(e) the affidavit in support of the application must set out (i) facts that demonstrate the
bona fides of the application which could be by a statement of the circumstances that
had resulted in the whereabouts of D not being known; (ii) the belief and the reason
for such belief that D is within or outside the jurisdiction of the court; and (iii)
proposals for the manner in which the substituted service is to be effected having in
mind that the intention is that D will thereby probably get to hear of the proceedings.

53
“.. all documents required to be served on the Government .. in the case of proceedings by or against the
Federal Government, on the Attorney General or such other officer as may be designated in that behalf, either
generally or specially, by the Attorney General by notification in the Gazette, and, in the case of proceedings
by or against the Government of a State, on the State Secretary..”
54
See Chap 4 Part 8
55
[1988] 2 MLJ 616

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 [6] Mode, Writ and Service

[6.23] In Leow Boke Chooi v Asia Motor Company Ltd 56 P did not comply strictly
with the terms of the SS Order. Gill J (as he then was) held that “.. the effect of such non–
compliance with the order was that there had been no good and sufficient service on the
defendant, so that the plaintiffs had obtained judgment against the defendant irregularly.”

C5 Foreign Defendant within Jurisdiction

[6.24] Service on a foreign D, who is within jurisdiction, may be effected in the usual way.
This is clear from Atmaram v Essa Industries Ltd .57 P, a Singaporean company
issued a writ against D, a company incorporated in Pakistan. The writ was served on the
chairman of D, at his hotel, while he was on a temporary visit to Singapore. D applied to
set aside the service on the ground that (i) the chairman was not Ds agent (ii) he had no
authority to accept service on D’s behalf (iii) he was in Singapore on a temporary visit (iv)
D had neither an office nor an agent in Singapore (v) D’s entire business was conducted
by their office in Karachi (vi) he had neither control nor management of D’s business in
Singapore and (vi) he held no power of attorney on behalf of D. Chua J (as he then was)
dismissed the application and held that service was properly effected.

C6 Service out of Jurisdiction

[6.25] In order to serve a writ of jurisdiction, the plaintiff must first obtain the leave of
court pursuant to O11, whcih confers extra-territorial jurisdiction on the court.58 The
application of O11 was explained by the House of Lords in The Al Wahab where the
House of Lords held that to achieve its object of pursuing its claim against the insurers in
the English court P had two obstacles to overcome i.e P had to show that:

(i) O11 conferred jurisdiction on the English court in this matter; and

(ii) this was a “proper case” for leave to be granted, within the meaning of r4(2).

[6.26] If the plaintiff successfully obtains leave under O11, he must then serve the notice
of the writ and the writ by the methods set-out in O11 rr5 & 6. In Ma Boon Lan v Uob
Kay Hian Private Ltd 59 P, using an agent, served the notice of the writ and the writ on D
at its registered address in Singapore.60 D argued that this service was defective as it did
not comply with O11 r5(8). The Court of Appeal held that the word “may” meant that the
provision was permissive and not obligatory. P’s service was valid pursuant to r5(3) and
r6(2).

Ravindran Shanmuganathan ∗

56
[1967] 2 MLJ 109
57
[1969] 1 MLJ 44
58
Only in cases falling outside s 23 CJA 1964. For cases that come within s 23, O11 becomes a mere
procedural formality – see Para 3.15.
59
[2013] 5 CLJ 740
60
As is permitted by s. 387 of the Singapore Companies Act which provides that a document may be served
on a company by leaving it at or sending it by registered post to the registered office of the company.
∗
The views expressed herein are my own, as are all the mistakes. I welcome feedback and may be contacted
at ravi@sreeneyoung.com

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 [6] Mode, Writ and Service

PRACTICE NOTE NO. 1 OF 1968

The practice governing applications for, substituted service in the High Court In Malaya
shall follow that in the High Court in England, as provided for in order 10 rule 2 of the
Rules of the Supreme Court 1957. The practice, taken from the 1957 White Book, page
88, is here reproduced.

1. Two calls should be made

2. The calls should be made at the defendant's residence, permanent or temporary, if

known; other wise, or if the claim relates to the defendant's business, at his business
address. If the defendant has left the address given on the writ, this shun Id be stated in
the affidavit. if a copy of the document to be served is left, it must be in a sealed envelope
addressed to the defendant.

3. The calls should be made on weekdays and at reasonable hours.

4. Each call should be on a separate day.

5. The second call should be made by appointment by letter sent to the defendant by
ordinary prepaid letter post, giving not less than two clear days' notice, enclosing . copy of
the document to be served, and offering an opportunity of making a different appointment.

6. On keeping the appointment the process server should inquire whether the defendant
has received the letter of appointment with the copy document, and if it is stated that the
defendant, is away, inquiry should be made whether ., not letters ace being or have been
forwarded to an address within the jurisdiction ; the object is to show that the defendant
has received communications sent to him.

7. The affidavit in support of the application should deal with all the forego rig requirements
and should further state whether the letter of appointment has been returned or not, and
any answer received should be exhibited. A copy of the document to be served should
accompany the affidavit.

No prescribed form is necessary for the tenor of appointment

The letter of appointment should ordinarily be sent by the solicitor for the plaintiff after
ascertaining from the process servers in the High Court and other Courts their available
times and dates from the second call. The facts regarding the letter of appointment should
be stated in the affidavit in support.

Compliance with the above practice will ensure that the application for substituted service
will be grounded on other than a mere statement that the defendant is evading service.
Such a statement should never be sufficient to apply for an order for substituted service. If
the above practice is followed, as required by the Rules of the Supreme Court 1957, the
effects which have been made to find the defendant and the reasons for believing that he

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 [6] Mode, Writ and Service

is keeping out of the way to avoid service will be before the Senior Assistant
Registrar/Assistant Registrar before the order is made.

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