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2022 MarsdenLR 1021
HIGH COURT MALAYA KUALA LUMPUR
ANG GEE GUAN – Appellant
Versus
JANICE NG KERH CHIN – Respondent
[Divorce Petition No: WA-33-180-04/2021]
Exceptional circumstances are required to set aside a decree nisi made absolute, which cannot be challenged collaterally unless procedural validity is established.
Headnote:(A) Law Reform (Marriage & Divorce) Act 1976 – Section 61 – Application to set aside the Divorce Order, Decree Nisi, and Decree Absolute – Respondent's contention of non-service of Cause Papers rejected due to overwhelming evidence of service – Court held that exceptional circumstances necessary for setting aside a decree nisi made absolute were not established. (Paras 27, 28, 33)
(B) Substituted service of Cause Papers – Respondent failed to challenge validity of substituted service order, rendering non-service claims untenable – Court emphasized that such orders can only be contested through appropriate proceedings. (Paras 12, 11)
Facts of the case: The Respondent's application sought to set aside divorce-related orders made in September and October 2021, claiming lack of knowledge regarding the proceedings. Evidence showed multiple notifications and attempts at personal service, leading to the conclusion that she was aware of the proceedings.
Findings of Court: The Respondent's claims were unsubstantiated, with sufficient evidence establishing service of the Cause Papers. Additionally, the court found no grounds for exceptional circumstances to set aside the decree.
Issues: The main issues included the validity of service of Cause Papers, the applicability of the Rules in divorce proceedings, and the presence of exceptional circumstances for setting aside the decree.
Ratio Decidendi: The court underscored the necessity of adherence to statutory provisions in matrimonial proceedings, emphasizing that a decree nisi cannot be set aside post-absolute without exceptional reasons, which were not shown here.
Result: Application dismissed.
JUDGMENT
Introduction
[1] This was an application ("this Application") by the Respondent wife to set aside the Divorce Order dated 15 September 2021 ("the Order"), the decree nisi dated 15 September 2021 ("the Decree Nisi"); and the decree nisi made absolute on 11 October 2021 ("the Decree Absolute").
The Factual Background
[2] On 12 April 2021, the Petitioner had filed a divorce petition ("the Petition"), together with an affidavit in support, statement as to the arrangement for the child, notice of proceedings and statement of acknowledgment of service ("collectively, the Cause Papers").
[3] Since the Petitioner was unable to serve the Cause Papers at the Respondent's addresses, he applied to Court for substituted service, which was allowed on 10 June 2021. After substituted service of the Cause Papers had been completed, the hearing date was scheduled for 15 September 2021.
[4] The Respondent had failed to attend the hearing, although the Petitioner claimed that he had informed the Respondent, by way of registered post, of the hearing of the Petition, and had enclosed the Arahan untuk Perbicaraan and the Notis Perbicaraan. The Court, therefore granted the Order, Decree Nisi, and eventually the Decree Absolute.
[5] On 30 March 2022, the Respondent filed this Application, which was dismissed for the following reasons.
Contentions, Evaluation, And Findings
Whether Service Of Cause Papers Was Proper
[6] The Respondent's contention was that she had not attended the divorce proceedings simply because she had no knowledge of the same, as she was at all times at the Melaka address.
[7] In my view, this argument was untenable for the simple reason that it was a bare averment and was inconsistent with contemporaneous documentary evidence, and sworn affidavits that showed otherwise.
[8] These included attempts made by one Leong Zhi Hong to personally serve the Cause Papers on the Respondent at the Melaka address on 20 April 2021, and the effort by one individual named Masrulnizam Bin Ramli, who had even pasted the Cause Papers at the Respondent's Melaka address.
[9] On 9 September 2021, for the purpose of notifying the Respondent of the hearing date, the Petitioner's solicitors had served, by way of registered post, a letter dated 8 September 2021 to the Respondent's Melaka address which had reached such address on 13 September 2021.
[10] Despite these attempts, there was no response from the Respondent. Furthermore, the Petitioner, in support of his contention, had adduced as evidence, affidavits of service, photos, postal receipts, and sworn statements made by various individuals. As such, the irresistible inference was that the Respondent had indeed knowledge of the divorce proceedings and Cause Papers, and, hence, it was inequitable for this Court to entertain the Respondent's bare averment that she had not received the Cause Papers or the notification for hearing.
[11] In any event, the Petitioner had applied and was allowed to resort to substituted service of the Cause Papers, and according to the facts and documents, the Petitioner had complied fully with the terms of the Order for substituted service. What was crucial to note was that the substituted service of the Cause Papers was not disputed by the Respondent. In fact, there was no application whatsoever by the Respondent to even challenge the validity of the Order for substituted service.
[12] It is trite law that the validity of an Order for substituted service can only be challenged by proceedings instituted for that very purpose. It cannot be challenged collaterally in other proceedings.
[13] On this point I found instructive the cases of Ng Han Seng & Ors v. Scotch Leasing Sdn Bhd (Appointed Receivers And Managers), and Ng Choon Mei v. Yap Kean Hong , where in the latter case, in referring to the Federal Court case of Development & Commercial Bank Berhad v. Aspatra Corporation Sdn Bhd & Anor, , the implications of failing to challenge an order for substitut
