Pengkalen Concrete Sdn Bhd

[2003] 2 MLRH v. Chow Mooi & Anor i

PENGKALEN CONCRETE SDN BHD

v.
CHOW MOOI & ANOR
[2003] 2 MLRH 311

High Court Malaya, Shah Alam

Suriyadi Halim Omar J
[Suit No: MT 1-22-702-2000]
31 March 2003

Civil Procedure: Service - Writ of summons — Whether person named in writ must be
the same person to acknowledge AR card — Whether there was effective service of writ
at defendants' address — Whether plaintiff free to send writ by prepaid AR registered
post addressed to defendants' last known address

The defendants had stood as guarantors in favor of the plaintiff for a sum
of money owed by a company ('KHSC'). The company defaulted and two
separate writs and statement of claims were filed and served by the plaintiff
against the defendants. Both defendants were absent on the return date and a
'judgment in default' ('JID') was implemented. The defendants application to
have the JID set aside was dismissed. The defendants appealed and contended
that the AR card had been returned with the name 'Yanti' inscribed on it whilst
their names were far from that, thus someone else had acknowledged the said
AR card. According to the defendants, since they had stood as guarantors,
service must be personal as anything less was bad service.

Held (dismissing the defendants' appeal):

(1) The defendants were out of Malaysia at the material time. The summonses
were sent by AR registered post and the relevant dates indicated that service
and receipt of the summonses had taken place before the defendants left
Malaysia. By obtaining the written receipt from the post office and the AR
card, the plaintiff had done everything necessary to effect service by using the
post office.

(2) The personal service requirement under O 10 r 1(1) of the Rules of the
High Court 1980 ('RHC') must be adhered to if the writ was 'subject to any
written law and these rules'. The expression 'these rules' meant the RHC. If
that writ was free of the requirements of any written law, and of the RHC, or
subsequently freed when permitted by a court pursuant to, say, a substituted
service application, the plaintiff was thus free to send the writ by prepaid AR
registered post addressed to the defendants' last known address.

(3) Nothing was indicated in O 10 r 1(1) of the RHC that the plaintiff must
evidentially prove that, if the writ was sent by prepaid AR registered post,
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ii v. Chow Mooi & Anor [2003] 2 MLRH

the named person in the writ must be the very person who had received it.
In the present case, all the prerequisites were fulfilled, and the fact that the
recipient of the writ was 'Yanti' did not vitiate that service. Whether that writ
had physically arrived, or had been received at the last known address was
not even legislated into O 10 r 1(1) of the RHC. 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 former. Under s 12 of the Interpretation Act 1967 ('the
Act'), where a written law authorised postal service, then until the contrary
was proved, service shall be presumed to have been effected at the time when
the letter would have been delivered, in the ordinary course of the post. Thus,
unless rebutted by the defendants, service thus must be deemed to have taken
place. Since there was no rebuttal evidence before the court, good service of the
writ thus had taken place here. There was no requirement of personal service
for cases which involved guarantors.

Case(s) referred to:

Allied Bank (Malaysia) Bhd v. Yau Jiok Hua [1998] 2 MLRH 17; [1998] 6 MLJ 1;
[1998] 2 CLJ 33; [1998] 3 AMR 2233 (refd)

Hasil Bumi Perumahan & Ors v. United Malayan Banking Bhd [1993] 1 MLRA 642;
[1994] 1 MLJ 312; [1994] 1 CLJ 328; [1994] 1 AMR 297 (refd)

Idris Haji Salleh v. Federal Auto Holdings Bhd [1976] 1 MLRH 421; [1979] 2 MLJ
141 (refd)

MBf Finance Bhd v. Tiong Kieng Seng [2001] 2 MLRH 91; [2001] 4 CLJ 38 (refd)

OCBC Bank (M) Bhd & Anor v. Livision Sdn Bhd & Ors [2000] 4 MLRH 278; [2001]5
MLJ 129; [2001] 5 CLJ 433 (refd)

RHB Bank Bhd v. FGG Wood Mouldings Industries Sdn Bhd & Ors [2000] 4 MLRH
129; [2001] 4 MLJ 86; [2001] 3 CLJ 661 (refd)

Tan Chiang Brother's Marble (S) Ptd Ltd v. Lightweight Concrete Sdn Bhd [1996] 3
MLRH 361; [1997] 4 CLJ 759 (refd)

Tan Ooi Chee & Anor v. Kanching Realty Sdn Bhd [1988] 3 MLRH 187; [1989] 1 MLJ
519 (refd)

Legislation(s) referred to:

Interpretation Act 1967, s 12

Rules of the High Court 1980, O 10 r 1(1)

 Pengkalen Concrete Sdn Bhd
[2003] 2 MLRH v. Chow Mooi & Anor iii

Counsel:

For the plaintiff: Prakash Mehta; M/s Prakash & Co

For the defendant: Yokinee Selvam; M/s Manjit Singh Sachdev, Mohammad Radzi &
Partners
 Pengkalen Concrete Sdn Bhd
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 Pengkalen Concrete Sdn Bhd
[2003] 2 MLRH v. Chow Mooi & Anor 311

JUDGMENT

Suriyadi Halim Omar J:

[1] The defendants who are husband and wife, also business partners, had
stood as guarantors for a sum of money owed by a company called Kin Hup
Seng Construction Sdn Bhd to the plaintiff. The former had defaulted, and the
defendants thereafter became the soft target of the plaintiff. Both defendants
had agreed in their respective agreements, to use the same premises as their
last known address. On 13 October 2000 two separate writs and statements of
claims were filed, and served, as alleged by the plaintiff against the defendants.
In April 2001 the senior assistant registrar had meted out the order of ‘judgment
in default’ against both, as they were absent on the return date. He adjudged
that the defendants were to pay the plaintiff RM1,115,149.50 inclusive of
interest, and costs of RM225.

[2] The defendants, on 25 July 2002 applied to have that judgment in default set
aside but failed, thereafter to be followed by an appeal to the judge in chambers.
On 16 January 2003 after hearing the appeal I dismissed it with costs.

[3] Two separate summonses were indisputably posted to that impugned

address. Regretfully, as stressed intensely by the defendants, on no account
were there effective services at the address of the defendants, as confirmed by
the AR card. The defendants admitted that the address was correct and was not
disputed, but what was disputed was the service on them. They submitted that
the AR card had been returned, with the name “Yanti” inscribed on it, whilst
their names were far from that (exh k3 as in encl 7). The defendants ventilated
that as they had stood as guarantors, then service must also be personal,
anything less being bad service.

[4] According to the defendants they were outside the shores of Malaysia from
13 March 2001 and had only returned on 6 April 2001, with a passport and
a ticket as their evidence. As they knew nothing of the summonses or claims,
they did nothing to counter the alleged statement of claims. The plaintiff
had ready answers to those averments. It had countered by stating that the
summonses had been sent by AR registered post on 2 March 2001 with receipt
of them being on 8 March 2001 (see S1). Those dates indicated that service
and receipt of the summonses had taken place before the supposed exits of the
defendants from Malaysia. Evidentially, I was convinced that by obtaining the
written receipt from the post office, and later to be rewarded by the return of
the AR card, satisfied me that everything necessary to effect service by using
the post office had been carried out (MBf Finance Bhd v. Tiong Kieng Seng [2001]
2 MLRH 91; [2001] 4 CLJ 38). Returning to those two earlier exhibits, namely
the passport and the ticket, I was also satisfied that they merely accentuated
the assertion of the plaintiff that on the date of the services of the summonses,
the defendants were in fact in Malaysia. To make things worse for the second
defendant, there was a dearth of any exhibits, be they in the form of passport
or tickets, to confirm that he was abroad at any time.
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312 v. Chow Mooi & Anor [2003] 2 MLRH

[5] As regards service, for purposes of this case, O 10 r 1(1) would be pertinent,
and the relevant portion reads as follows:-

Subject to the provisions of any written law and these rules, a writ must
be served personally on each defendant or by sending it by prepaid
AR registered post addressed to his last known address ... (emphasis
added and hereinafter referred to as ”the second portion”).

[6] Reading the above provision, it is my view that a plaintiff has to consider
first of all whether the writ must be served personally or not. Personal service
requirement must be adhered to if the writ is “subject to any written law and
these rules”. The latter two words of “these rules” must mean the rules under
O 10 of the Rules of the High Court. If that writ is free of the requirements of
any written law, and of rules under O 10 , or subsequently freed when permitted
by a court pursuant to, say, a substituted service application, the plaintiff is thus
free to allude to the “second portion” of the latter sub-rule ie, by sending it by
prepaid AR registered post addressed to the defendant’s last known address.

[7] To have a successful postal service under that “second portion” (apart from
establishing that there are no impediments in the like of any requirements by
any written law and the rules under O 10), a plaintiff must convince the court
that:-

i. a writ was sent;

ii. there is proof of sending;

iii. it was sent by prepaid AR registered post;

iv. there is proof of it being sent by prepaid AR registered post;

v. the address sent to was the last known address; and

vi. the court is convinced (requiring proof in the like of admitted facts,
unrebutted affidavits etc.) that that address was the last known address.

[8] To conjure or add something out of that brief “second portion”, which had
not been provided for, would tantamount to importing certain ingredients that
were not envisaged by Parliament. In fact under subrule 1(1) of O 10, nothing
is indicated that the plaintiff must evidentially prove that the named person
in the writ must be the very person who had received it ie, if it was sent by
prepaid AR registered post. I therefore was satisfied that as in this case, if all
the prerequisites were fulfilled, as the plaintiff had done so, the recipient being
“Yanti” did not vitiate that service. In fact, whether that writ had physically
arrived, or had been received at the last known address, normally confirmed
by direct evidence, is not even legislated into that impugned provision. On
that score, 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 former,
otherwise s 12 of the Interpretation Act 1967 would immediately come into
 Pengkalen Concrete Sdn Bhd
[2003] 2 MLRH v. Chow Mooi & Anor 313

play when invoked. Under the latter section, where a written law authorises
postal service, then until the contrary is proved, service shall be presumed to
have been effected at the time when the letter would have been delivered, in
the ordinary course of the post. 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.

[9] Further, contrary to what the defendants had ventilated, I had also failed
to identify anywhere in that provision of the requirement of personal service,
for cases which involved guarantors. Regretfully and with respect, I was thus
unable to acquiesce and subscribe to the view put forward by the court in OCBC
Bank (M) Bhd & Anor v. Livision Sdn Bhd & Ors [2000] 4 MLRH 278; [2001] 5
MLJ 129; [2001] 5 CLJ 433, where it opined that as the fourth defendant there
was being sued as a guarantor, the service must be personal. It must be stressed
that O 10 r 1(1) talks of a writ and not of, say a notice of demand (Allied Bank
(Malaysia) Bhd v. Yau Jiok Hua [1998] 2 MLRH 17; [1998] 6 MLJ 1; [1998] 2
CLJ 33; [1998] 3 AMR 2233). A dissertation of the latter case revealed that the
court was discussing the mode, methodology and requirement of service of a
notice of demand by postal method, a legal requirement prior to the issuance
of a writ (and not discussing the service of a writ). Suffice for me to merely
advert to the portion of held (5c) in the latter case, which reads:-

In order to prove service of the notices of demand and the AR card, it

must have been properly admitted in evidence. This was not done by
the plaintiffs. In the absence of any evidence to show that the AR card
had been returned duly acknowledged to constitute effective service
of the notice of demand on the defendant, ... Therefore, there could
be no presumption that the notices of demand were received by the
defendant.

[10] To complete the picture, in the event there is no dispute of the regularity of
the service on the defendants, coupled with there being no objection pertaining
to the address, or the procedure adhered to by the plaintiff, Kang Hwee Gee J in
RHB Bank Bhd v. FGG Wood Mouldings Industries Sdn Bhd & Ors [2000] 4 MLRH
129; [2001] 4 MLJ 86; [2001] 3 CLJ 661, also had occasion to opine that it
must be construed that the defendants had constructive notice of the issuance
of the summonses. Whether one wishes to call it constructive notice or deemed
to have been served, either way, the complaint of the defendants here was not
that there were infringements as to the preconditions of the postal service, but
merely that someone else had acknowledged that AR card. Regardless of the
nomenclature, given the facts before me I was satisfied that, with no rebuttal
evidence adduced, and every precondition having been adhered to, good
service of the writ thus had taken place.

[11] It is trite that in a default judgment’s case, the setting aside of that JID
order is generally the norm. The presiding court before so doing, on the other
hand must have some good reason and that there is a defence on the merits
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314 v. Chow Mooi & Anor [2003] 2 MLRH

adduced before the court (Tan Ooi Chee & Anor v. Kanching Realty Sdn Bhd
[1988] 3 MLRH 187; [1989] 1 MLJ 519). The supposed good reason given by
the defendants, as I scrutinised the evidence was that they were unaware of the
case being called up in court on 9 April 2001, founded on the abovementioned
reason of non-service of the writs. Factually, even if I were to submit to those
evidential assertions, by 6 April 2001 they were already in Malaysia, three days
before their cases were called up in court. As I was satisfied that good service
had taken place, this part of the ingredient ie, ‘good reason’ had fallen flat.

[12] The next ingredient to be established by the defendants was whether there
was a defense of merit before me for consideration ie, by at least filing their
draft defences. In Idris Haji Salleh v. Federal Auto Holdings Bhd [1976] 1 MLRH
421; [1979] 2 MLJ 141 Syed Agil Barakbah J, had occasion to say:-

... The courts in a case of this nature prefer that it be decided on

merits and do not invoke procedural rules to prevent a defendant from
defending an action unless it has no merits in his application.

[13] The court in Tan Chiang Brother’s Marble (S) Pte Ltd v. Lightweight Concrete
Sdn Bhd [1996] 3 MLRH 361; [1997] 4 CLJ 759 in similar vein had remarked:-

A defence on the merits means a defence which discloses an arguable

and triable issue. It does not have to show that there is a real aspect of
success or that it has to carry some degree of conviction.

[14] In the current case, it was indisputable that the defendants had failed to
produce that all important draft statements of defense. Without them, I was
thus without any option but to find again for the plaintiff, even on this second
ingredient. Not only was there no prima facie defence, raising serious issues as
bona fide reasonable defence that ought to be tried, but there was not even a
sham one (Hasil Bumi Perumahan & Ors v. United Malayan Banking Bhd [1993]
1 MLRA 642; [1994] 1 MLJ 312; [1994] 1 CLJ 328; [1994] 1 AMR 297). Not
wishing to encourage a sham defense, and rhetoric aside what else could have I
done? Common sense would convince anyone that to allow the appeal, and set
aside a default judgment when no prima facie defence worthy of consideration
was before the court, would portray the court as lame ducks prolonging the
agony of all parties. Without them before me, I could only conclude that
the defendants were definitely not serious in their attempts to challenge the
plaintiff-delaying and defeating the latter from taking up more anticipatory
drastic actions during these bad times, and waiting for better ones, being one of
the conclusions that I could arrive at.
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[2003] 2 MLRH v. Chow Mooi & Anor 315

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