Service of Originating Process
Service of Originating Process
Service of Originating Process
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 …”
(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”
(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.
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.
"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.
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.
(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) …..
…..”
“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..
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.
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.
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.
(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.
(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.
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.
(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.
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.
(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.
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
(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.