17 March 2021
Court in its recent decision in Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd (Civil Appeal No: 02(i)-35-04/2019(W) ("the Case") has dropped the hammer on litigants (“the respondent plaintiff”) who have sought a judgment in default (“JID”) without proof that the defendants have actually received the Writ of Summons (“Writ”) and Statement of Claim (“the appellant defendants”).
BEFORE THE CASE
There were a plethora of authorities going both ways on the need for proof of service for a Writ and Statement of Claim served via A.R. Registered Post in dealing with the grant of a JID. Here are some examples: –
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The Court of Appeal in Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175 took the position that there was no provision of law that the plaintiff must also prove that the person so named in the post had received the writ of summons and statement of claim and upon the same being sent by A.R. Registered Post, this is prima facie proof of service unless rebutted by the defendant.
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However, the Court of Appeal in Chung Wai Meng v Perbadanan Nasional Berhad [2017] 1 LNS 892 stepped in with a contrary verdict based on the “majority decisions of the High Court decisions and authorities in Malaysia and Commonwealth cases” that the Affidavit of Service must prove due service of the writ on the defendant and that the lacuna in Order 10 Rule 1(1) of the Rules of Court, 2012 (“ROC”) must be interpreted in favour of the intended recipient.
AFTER THE CASE
Q: Can one simply drop the writ off at the post office and call it a day?
A: The simple answer – No, the same should not be treated as a mechanical process. The Case takes into account that the service of a Writ by way of A.R. Registered Post does not conclusively mean that the defendant has received the same. The absence of an A.R. Registered Card (“A.R. Card”) containing an endorsement as to receipt of the Writ by the defendants or someone authorised to accept service on their behalf, would result in the JID being set aside.
Q: How will A.R. Registered post be interpreted?
A: In answering the question on effective service via A.R. Registered Post, the Federal Court considered section 12 of the Interpretation Acts 1948 and 1967 and held that where a document is served by registered post, service and time of service are “presumed” “until the contrary is proved” and there is nothing in the section that says that by just posting the Writ by registered post, the plaintiff has conclusively proven he has served the document. Therefore, the Courts below were held to have erred in holding that the posting of the writs by A.R. Registered Post was conclusive proof of service, thus leaving no room for the appellant defendants to discharge their burden of proving that they did not receive the writs.
Q: What if the Writ is served at the proper address but there is not acknowledgment of receipt?
A: Failure to serve the Writ to the proper address of the defendant being his last known address will also render the service bad in law. In the Case, the second appellant defendant admitted residing at the address stated in the Writ but denied receiving the Writ and the A.R. Card was never produced by the respondent plaintiff. This was enough for the Federal Court to set aside the JID entered against the second appellant defendant.
Q: Must it be the defendant himself who signs off on the A.R. Card?
A: Not necessarily. In its decision, the Federal Court held that only the defendant or someone authorised by the defendant can accept service of document. In the Case, the estranged brother of the first appellant defendant who signed the A.R. Card but failed to inform the first appellant defendant was held not to be an authorised person/representative of the first appellant defendant. Where there is no certainty on who an “authorised person” is by the defendant to accept service, this may mean that it becomes a factual contention before the trial judge on the authority of the recipient (other than the defendant) who signs off on the A.R. Card.
Q: What happens if ‘effective service’ is not carried out?
A: If the defendant succeeds in rebutting the presumption of service, the court may set aside the JID as a matter of right on grounds that they were obtained irregularly.
Q: Where does that leave the plaintiffs in respect of A.R. Registered Posts as tools of service?
A: The Federal Court appears to have left the presumption of service by way of A.R. Registered Post as one to be (capable of being) rebutted by the defendants. In this Case, the appellant defendants rebutted that they had not received the writs and the failure to produce the returned A.R. Card by the respondent plaintiff was fatal. As a matter of prudence, it is now a necessity for plaintiffs to minimise the risk of having their JIDs set aside solely because of the absence of an A.R. Card (if service is by way of A.R. Registered Post) evincing receipt of the Writ by the defendant or his/her representatives.
CONCLUSION
This decision was clearly made with an intent to ensure that defendants are not caught by surprise in instances where they are held liable for a judgment stemming from a Writ that was never received.
It is a move against the mechanical manner in which some plaintiffs seek a JID and treat service of the Writ as a “check box” requirement instead of ensuring that the defendant has received the said cause papers and failed to respond to the same before moving the Court to grant such judgment.
Meanwhile, it is left to be seen how the lower Courts will apply the judgment in the Case with necessary modifications based on findings of fact to avoid frivolous assertions by evasive defendants to be upheld in setting aside a JID.
For further information, please contact:
Brian law, partner, Law Partnership
