- 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 13.10.2000, two separate writs and statements of claim were filed and served, as alleged by the plaintiff against the defendants. On 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.
- The defendants, on 25.07.2002 applied to have that judgment in default set aside but failed, thereafter to be followed by an appeal to the judge in chambers. On 16.01.2003, after hearing the appeal, I dismissed it with costs.
- 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.
- According to the defendants, they were outside the shores of Malaysia from 13.03.2001 and had only returned on 06.04.2001, 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 statements of claim. The plaintiff had ready answers to those averments. It had countered by stating that the summonses had been sent by AR registered post on 02.03. 2001 with the receipt of them being on 08.03.2001. 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, that everything necessary to effect service by using the post office had been carried out (MBf Finance Bhd v Tiong Kieng Seng  MLJU 405). 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.
Order 10: Personal Service & AR Registered Post
- As regards service, for purposes of this case, 0 10 r 1 (1) of the Rules of the High Court 1980 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 . . .(‘second portion’)”
- 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. The 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 Order 10 of the Rules of the High Court 1980. If that writ is free of the requirements of any written law, and of rules under Order 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.
- 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 Order 10), a plaintiff must convince the court that:
- a writ was sent;
- there is proof of sending;
- it was sent by prepaid AR registered post;
- there is proof of it being sent by prepaid AR registered post;
- the address sent to was the last known address; and
- the court is convinced (requiring proof in the like of admitted facts, unrebutted affidavits, etc) that that address was the last known address.
- 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 sub-rule 1(1) of Order 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, i.e. if it was sent by prepaid AR registered post. It 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 Section 12 of the Interpretation Acts 1948 and 1967 would immediately come into play when invoked. Under the latter section, where a written law authorizes 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.
- 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, the court in RHB Bank Bhd v FGG Wood Mouldings Industries Sdn Bhd & Ors  4 MLJ 86 held 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.
Requirements of Setting Aside: (1) Irregular Service
- It is trite that in a default judgment case, the setting aside of that judgment in default 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 adduced before the court (Tan Ooi Chee & Anor v Kanching Realty Sdn Bhd  1 MLJ 519). The supposed good reason given by the defendants, as I scrutinized the evidence was that they were unaware of the case being called up in court on 09.04.2001, founded on the abovementioned reason of non-service of the writs. Factually, even if I were to submit to those evidential assertions, by 06.04.2001 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.
(2) Defence of Merits
- 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 bin Haji Salleh v Federal Auto Holdings Bhd  2 MLJ 141:
“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.”
- The court in Tan Chiang Brother’s Marble (S) Pte Ltd v Lightwetght Concrete Sdn Bhd  MLJU 170:
“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 prospect of success or that it has to carry some degree of conviction.”
- In the current case, it was indisputable that the defendants had failed to produce that all important draft statements of defence. 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 Sdn Bhd & Ors v United Malayan Banking Corp Bhd  1 MLJ 132). 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 tin-les, and waiting for better ones, being one of the conclusions that I could arrive at.
- Defendants’ appeal dismissed.
Source: Pengkalen Concrete Sdn Bhd v. Chow Mooi (Guarantor of Kin Hup Seng Construction Sdn Bhd) & Anor  3 MLJ 67. High Court Shah Alam. Suriyadi J.
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