CIVIL PROCEDURE I (UUUK4053)

HIZRI HASSHAN
LL.B (Hons), LL.M (UKM),
Executive Diploma in Islamic Law (Islamic Banking) (IIUM)
Advocate & Solicitor (High Court of Malaya)
Senior Associate Member of Chartered Institute of Islamic Finance Professionals (CIIF)
Associate Member of Insolvency Practitioners Association of Malaysia (iPAM)
Service of Originating Process
In Kekatong Sdn Bhd v Bank Bumiputra (M) Bhd [1998] 2 CLJ 266 at page 276 the
Court of Appeal held:

“It is axiomatic that the object of service of process 'is to bring the
proceedings to the notice of the person being served, and there must be
reasonable probability this object will be achieved'. The procedure of
'constructive service' is unknown in English law and is equally inapplicable in
the Federated Malay States …”

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
1. General provisions (O. 10 r. 1)

(1) Subject to the provisions of any written law and these Rules, a writ shall be served
personally on each defendant or sent to each defendant by prepaid A.R. registered
post addressed to his last known address and in so far as is practicable, the first
attempt at service must be made not later than one month from the date of issue of
the writ.

Suriyadi J (later FCJ) in the case of Ramlan Bin Kamal v. Perbadanan Nasional Bhd
[2004] 1 MLJ 425 held:

"....The phrase last known address means the most recent known residence
of the defendant and nowhere else”

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
Personal service: How effected (O. 62 r. 3)

Personal service of a document is effected by leaving a copy of the document with

the person to be served and, if so requested by him at the time when it is left,
showing him-

(a) in the case where the document is a writ or other originating process, the sealed
copy; and
(b) in any other case, an office copy.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
A.R. Registered Post

The Court of Appeal in Yap Ke Huat & Ors v. Pembangunan Warisan Murni
Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175 has explained:

In this instance, the plaintiffs had elected to serve the writ and statement of claim on
this defendant by way of sending it by prepaid A.R. registered post. This defendant did
not challenge that such process was never undertaken. Once this process was carried
out, it is our view that there is no provision in law to say that the plaintiffs must also
prove that the person so named in the post had received it.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
Suriyadi Halim J in Pengkalan Concrete Sdn Bhd v. Chow Mooi & Anor [2003] 6 CLJ
326 stated:

"In fact under sub-r 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" (not the name of the
defendants) did not vitiate that service".

This sentiment seems to be repeated in another High Court decision of MBF Finance
Bhd v. Tiong Kieng Seng [2001] 4 CLJ 38. Thus, once the writ and statement of claim
are sent by AR registered post it is prima facie proof of service unless the defendant is
able to rebut this.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
Goh Teng Whoo v. Ample Objectives Sdn Bhd [2021] 4 CLJ 348, [2021] 3 MLJ 159 (FC)

Where service of a writ is alleged to have been effected by way of sending

the same to a defendant by A.R. Registered post pursuant to O. 10 r. 1(1) of
the Rules of Court 2012 , the court cannot seal a judgment in default of
appearance where the affidavit of service does not exhibit the A.R.
Registered card containing an endorsement as to receipt by the
defendant himself or someone authorised to accept service of the
same on his behalf.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process

General provisions (O. 10 r. 1)

2) Where a defendant's solicitor endorses on the writ a statement that he accepts

service of the writ on behalf of that defendant, the writ shall be deemed to have
been duly served on that defendant and to have been so served on the date on
which the endorsement was made.

3) Where a writ is not duly served on a defendant but he enters an appearance in the
action begun by the writ, the writ shall be deemed to have been duly served on
him and to have been so served on the date on which he entered the appearance.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
3. Service of writ in pursuance of contract (O. 10 r. 3)

(1) Where-
(a) a contract contains a term to the effect that the Court shall have jurisdiction to hear
and determine any action in respect of a contract or, apart from any such term, the
Court has jurisdiction to hear and determine any such action; and

(b) the contract provides that, in the event of any action in respect of the contract
being begun, the process by which it is begun may be served on the defendant, or
on such other person on his behalf as may be specified in the contract, in such
manner or at such place (whether within or out of the jurisdiction) as may be so
specified,

then, if an action in respect of the contract is begun in the Court and the writ by which
it is begun is served in accordance with the contract, the writ shall, subject to
paragraph (2), be deemed to have been duly served on the defendant.
Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia
Service of Originating Process (Writ)

SERVICE OF NOTICE

Any notice, request or demand requiring to be served by either party hereto to the
other under the provisions of this Agreement shall be in writing and shall be deemed to
be sufficiently served :
(a) If it is given by the party or his or its solicitor or solicitors by post in a registered
letter addressed to the party to be served at his or its address hereinbefore
mentioned
(b) …..
…..”

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
In Syarikat Majutani Keda Sdn Bhd & Others v. CIMB Bank Berhad [2015] 1 LNS
131 at paragraphs [24] to [27], the High Court Judge has clearly elaborated the
distinction between clauses on “service of notice” and “service of legal process”:

“24. Peguam responden yang terpelajar telah menghujahkan serahan writ dan penyata
tuntutan atas perayu kedua dan perayu ketiga ianya mematuhi Klausa 22.1 Surat Jaminan
Dan Indemniti dan ianya tidak perlu mematuhi A. 10 k. 1 KKM iaitu secara "A.R. Berdaftar".
Mahkamah ini bersetuju dengan hujahan peguam perayu pertama hingga perayu
ketiga yang terpelajar iaitu Klausa 22.1 ianya berkaitan "Any demand for payment or
any other demand or notice given under this Guarantee and Indemnity". Klausa 22.1
tidak terpakai bagi tujuan "legal process" sebagaimana yang diperuntukkan dalam
"General Facility Agreement". Sebagai perbandingan Seksyen 13.02 (a) secara terang
menyatakan "...The service of any Legal Process..

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process

Service of legal process

Without prejudice to any other forms or service allowed in law, the service
of any writ, summons, statement of claim or any legal process in respect of
or arising out of this Agreement may be effected on the Customer by
forwarding a copy of the writ, summons, statement of claim or other legal
process by registered post to the registered office address as herein
mentioned or to the last known address of the Customer.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
In Arab-Malaysian Finance Bhd v. Chong Chin Shoong [1998] 1 CLJ 887, the High Court
made the following observation:

Clause 8 is a contractual provision regarding service. It is in the form of a deeming provision. By it, the
parties agreed that, if the notice is sent by registered post, it shall be regarded as having been received
within forty-eight hours after posting. That means they agreed that proof of actual receipt would not
be necessary. It is a contractual device for the convenience of the parties. A party to such a device may
not refuse to accept delivery, and then rely on proof of non-delivery to claim there has been no receipt,
because that would be to frustrate the device that he has agreed to. He must be taken to have received
the notice or whatever it was that was sent to him.

So in this case the fact that the letter came back marked "tidak dituntut" cannot displace the deeming
that it had been served, because to allow it to do so would be to permit the defendant, if he had chosen
to do so, to frustrate the device by refusing to accept delivery of the letter. As I said, the inescapable
implication is that in fact that was what happened. I do not have to decide whether, in law, it would be
open to the defendant to rebut the presumption of receipt provided by cl. 8, because he has not
attempted to do so. A bare denial of having received the letter of demand will not do.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
In Amanah Merchant Bank Bhd (formerly known as Amanah-Chase Merchant Bank Bhd) v.
Lim Tow Chon (Through Official Assignee) [1994] 2 CLJ 1, the Supreme Court held that:

On the proper construction of clause 17, since any notice may be served by sending the
same through the post addressed to the last known address of the addressee; the
deeming provision applied to the said notice, whether or not is sent by AR registered
post. It is not necessary that the appellant must show that the AR card has been duly
acknowledged to constitute effective service of the notice of demand. It is sufficient for the
appellant to show that the notice was correctly addressed, prepaid and delivered to the post
office and acknowledged for service by the postal authority. Once these facts have been
established, the deeming provision will inevitably apply.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
Service on corporation (O. 62 r. 4)

(1) Where an action is against a corporation, the writ may be served-

(a) by leaving a copy of it at the registered office (if any) of the corporation;
(b) by sending a copy of it by registered post addressed to the corporation at the office,
or, if there are more offices than one at the principal office of the corporation, whether
such office is situated within Malaysia or elsewhere;
(c) by handing a copy of it to the secretary or to any director or other officer of the
corporation; or
(d) in the case of a foreign company registered under Part XI of the Companies Act
1965 [Act 125] by handing a copy of it to, or sending the same by registered post to, a
person authorized to accept service of process on behalf of the foreign company.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
Service of writ on partnership (O. 77 r. 3)
(1) Where in accordance with rule 1 partners are sued in the name of a firm, the writ may,
except in the case mentioned in paragraph (2), be served-
(a) on any one or more of the partners; or
(b) at the principal place of business of the partnership within the jurisdiction, on any
person having at the time of service the control or management of the partnership
business there,
and where service of the writ is effected in accordance with this paragraph, the writ shall
be deemed to have been duly served on the firm, whether or not any member of the firm
is out of the jurisdiction.
(2) Where a partnership has, to the knowledge of the plaintiff, been dissolved before an
action against the firm is begun, the writ by which the action is begun must be served on
every person within the jurisdiction sought to be made liable in the action.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
Service of writ on agent of overseas principal (O. 10 r. 2)

(1) Where the Court is satisfied on an ex parte application that-

(a) a contract has been entered into within the jurisdiction with or through an agent
who is either an individual residing or carrying on business within the jurisdiction or
by a body corporate having a registered office or a place of business within the
jurisdiction;
(b) the principal for whom the agent was acting was at the time the contract was
entered into and is at the time of the application neither such an individual nor such a
body corporate; and
(c) at the time of the application either the agent's authority has not been determined
or he is still in business relations with his principal,

the Court may authorize service of a writ beginning an action relating to the contract
to be effected on the agent instead of the principal.
Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia
 Service of Originating Process
Substituted service (O. 62 r. 5)

(1) If, in the case of any document which in accordance with these Rules is required to
be served personally on any person, it appears to the Court that it is impracticable
for any reason to serve that document personally on that person, the Court may
make an order in Form 133 for substituted service of that document.

(2) An application for an order for substituted service shall be made by notice of
application supported by an affidavit in Form 134 stating the facts on which the
application is founded.

(3) A substituted service of a document, in relation to which an order is made under

this rule, is effected by taking such steps as the Court may direct to bring the
document to the notice of the person to be served.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
A service by facsimile may be effected where-
(a) the party serving the document acts by a solicitor;
(b) the party on whom the document is served acts by a solicitor and service is effected
by transmission to the business address of such a solicitor;
(c) the solicitor acting for the party on whom the document is served has indicated in
writing to the solicitor serving the document that he is willing to accept service by
facsimile at a specified facsimile number and the document is transmitted to that
number; and for this purpose the inscription of a facsimile number on the writing paper
of a solicitor shall be deemed to indicate that such a solicitor is willing to accept service
by facsimile at that number in accordance with this paragraph unless he states otherwise
in writing; and
(d) within three days after the day of service by facsimile the solicitor acting for the party
serving the document serves a copy of it on the solicitor acting for the other party by any
of the other methods of service set out in paragraph (1), and if he fails to do so, the
document shall be deemed never to have been served by facsimile.
Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia
Service of Originating Process
Affidavit of service (O. 62 r. 9)

An affidavit of service of any document shall state by whom the document was
served, the day of the week and date on which it was served, where it was served
and how, and shall be in one of the forms in Form 135.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
Proof of service of writ (O. 13 r. 7)

(1) A judgment shall not be entered against a defendant under this Order unless-
(a) the plaintiff produces a certificate of non-appearance in Form 12; and
(b) either an affidavit is filed by or on behalf of the plaintiff proving due service of the writ
on the defendant, or the plaintiff produces the writ endorsed by the defendant's solicitor
with a statement that he accepts service of the writ on behalf of the defendant.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Service of Originating Process
2. Service out of the jurisdiction in certain actions of contract (O. 11 r. 2)
Where it appears to the Court that a contract contains a term to the effect that the Court shall have jurisdiction
to hear and determine any action in respect of the contract, the Court may grant leave for service out of the
jurisdiction of the notice of the writ by which an action in respect of the contract is begun.

3. Leave for service of notice of writ (O. 11 r. 3)

A notice of a writ for service out of the jurisdiction shall be in Form 7.

4. Application for, and grant of, leave to serve notice of writ out of the jurisdiction (O. 11 r. 4)
(1) An application for the grant of leave under rule 1 or 2 shall be supported by an affidavit in Form 8 stating
the grounds on which the application is made and that in the deponent's belief, the plaintiff has a good
cause of action, and showing in what place or country the defendant is, or probably may be found.
(2) Such leave shall not be granted unless it is made sufficiently to appear to the Court that the case is a proper
one for service out of the jurisdiction under this Order.
(3) An order in Form 9 granting, under rule 1 or 2, leave to serve a notice of a writ out of the jurisdiction shall
limit a time within which the defendant to be served must enter appearance.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Entry of Appearance
Mode of entering appearance (O. 12 r. 1)

(1) Subject to paragraph (2) and Order 76, rule 2, a defendant to an action begun by writ
may, whether or not he is sued as a trustee or personal representative or in any other
representative capacity, enter an appearance in the action and defend the action by a
solicitor or in person.
(2) Except as expressly provided by any written law or any practice direction for the time
being issued by the Registrar, a defendant to an action which is a body corporate may not
enter an appearance in the action or defend the action otherwise than by a solicitor.
(3) An appearance is entered by properly completing a memorandum of appearance, as
defined in rule 2, and a copy thereof, and handing them in at the Registry.
(4) If two or more defendants to an action enter an appearance by the same solicitor and at
the same time, only one memorandum of appearance needs to be completed and delivered
for those defendants.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Entry of Appearance
Memorandum of appearance (O. 12 r. 2)

(1) A memorandum of appearance is a request to the Registry to enter an appearance for a

defendant or defendants as specified in the memorandum.
(2) A memorandum of appearance shall be in Form 11 and both the memorandum of
appearance and the copy thereof required for entering an appearance shall be signed by the
solicitor by whom the defendant appears or, if the defendant appears in person, by the
defendant.
(3) A memorandum of appearance shall specify-
(a) in the case of a defendant appearing in person, the address of his place of residence and, if
his place of residence is not within the jurisdiction or if he has no place of residence, the
address of a place within the jurisdiction at or to which documents for him may be delivered
or sent; and
(b) in the case of a defendant appearing by a solicitor, the business address of his solicitor
within the jurisdiction, and where the defendant enters an appearance in person, the address
within the jurisdiction specified under subparagraph (a) shall be his address for service, but
otherwise the business address of his solicitor shall be his address for service
Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia
Entry of Appearance
Time limited for appearing (O. 12 r. 4)

References in these Rules to the time limited for appearing are references-
(a) in the case of a writ served within Peninsular Malaysia, to fourteen days after
service of the writ or, where that time has been extended by or by virtue of these
Rules, to that time as so extended; and

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Entry of Appearance

Late appearance (O. 12 r. 5)

(1) A defendant may not enter an appearance in an action after judgment has been
entered therein except with the leave of the Court.

(2) Except as provided by paragraph (1), nothing in these Rules or any writ or order
thereunder shall be construed as precluding a defendant from entering an appearance in
an action after the time limited for appearing, but if a defendant enters an appearance
after that time, he shall not, unless the Court otherwise orders, be entitled to serve a
defence or do any other thing later than if he had appeared within that time.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

Entry of Appearance

Appearance not to constitute a waiver (O. 12 r. 9)

The appearance by a defendant in an action shall not be treated as a waiver by

him of any irregularity in the writ or service thereof or in any order giving leave
to serve a notice of the writ out of the jurisdiction or extending the validity of the
writ for the purpose of service.

Hizri Hasshan. Faculty of Law. Universiti Kebangsaan Malaysia

 HIZRI HASSHAN
LL.B (Hons), LL.M (UKM),
Executive Diploma in Islamic Law (Islamic Banking) (IIUM)
Advocate & Solicitor (High Court of Malaya)
Senior Associate Member of Chartered Institute of Islamic Finance Professionals (CIIF)