Improper service of process renders a default judgment irregular, allowing for it to be set aside ex debito justitiae.

[1] The Defendant had applied to set aside a Judgment in default of appearance dated 22 June 2017 obtained by the Plaintiff.

[2] The Judgment was for a declaration for the Plaintiff to forfeit a deposit of RM250,000 paid by the Defendant under a Sale and Purchase Agreement dated 24 March 2016, a declaration for the said Sale and Purchase Agreement to be terminated, vacant possession of the property to be returned to the Plaintiff, general damages, costs and other relief.

[3] The Plaintiff had commenced action dated 14 March 2017, which an Affidavit of Service of the Writ of Summons and Statement of Claim affirmed by the process server on 11 April 2017 had been filed.

[4] A Notice of Application dated 30 May 2017 to enter default judgment was taken out, which Affidavit of Service dated 20 June 2017 in respect thereof was filed.

[5] Judgment in default of appearance was entered on the hearing date of 22 June 2017 and a Writ for Possession issued on 21 July 2017.

[6] The Defendant then filed its Application herein dated 12 September 2017 with a Supporting Affidavit, where an Affidavit In Reply affirmed on 2 October 2017 was filed.

[7] The mainstay of the Defendant's setting aside application was that the Judgment in default of appearance had been obtained irregularly.

[8] In its submission, the Plaintiff had maintained that the Writ of Summons and Statement of Claim had been served onto the Defendant at an address which was shown to be the address of a director of the Defendant from the results of a search conducted at the Companies Commission of Malaysia ("SSM"), and thus service was effected pursuant to O 62 r 4(1)(c) of the ROC 2012.

[9] The rules on service of process on an incorporated body can be found at O 62 r 4(1) of the Rules of 2012 (" ROC 2012"), which is set out below:

Order 62 r 4(1) reads as follows:

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; or

(b) by sending a copy of it by registered post addressed to the corporation at the office, or, if there be more offices than one at the principal office of the corporation, whether such office be situated within Malaysia or elsewhere; or

(c) by handing a copy of it to the secretary or to any director or other principal officer of the corporation;

(d) in the case of a foreign company registered under Part XI of the Companies Act 1965 by handing a copy of it to, or sending the same by registered post to, a person authorised to accept service of process on behalf of the foreign company."

[10] According to the Affidavit of Service of the Writ of Summons, the process server had attended to personal service onto the Defendant at 3 addresses.

[11] From the extract of particulars of the Defendant obtained from a search with the SSM, the First Address was the registered address. The Second Address was the business address. The Third Address can be seen from the said extract to be the address of the director of the Defendant.

[12] Service at the First Address, which was the registered address at a multi-storey building in downtown Johor Bahru, on Thursday, the 16 March 2017 at 2.30pm was unsuccessful for the reason given by the process server that he was unable to find the name of the Defendant at that address.

[13] The next day on Friday, the 17 March 2017 at 10.45am, the process server said that he went to the Second Address at Taman Nusa Bayu, 79200 Nusajaya, Johor but was unable to meet the Defendan