Suriyadi Halim Omar J:

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 October 2000 two separate writs and statements of claims were filed, and served, as alleged by the plaintiff against the defendants. In 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 July 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 January 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 (exh. k3 as in en. 7). The defendants ventilated that as they had stood as guarantors, then service must also be personal, anything less being bad service.

According to the defendants they were outside the shores of Malaysia from 13 March 2001 and had only returned on 6 April 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 statement of claims. The plaintiff had ready answers to those averments. It had countered by stating that the summonses had been sent by AR registered post on 2 March 2001 with receipt of them being on 8 March 2001 (see S1). 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, satisfied me that everything necessary to effect service by using the post office had been carried out (MBf Finance Bhd v. Tiong Kieng Seng[2001] 4 CLJ 38). 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. To make things worse for the second defendant, there was a dearth of any exhibits, be they in the form of passport or tickets, to confirm that he was abroad at any time.

As regards service, for purposes of this case, O. 10 r. 1(1)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... (emphasis added and hereinafter referred to as "the 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. 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 O. 10of the Rules of the High Court. If that writ is free of the requirements of any written law, and of rules under O. 10, or subsequently freed when permitted by a court pursuant to, say, a substituted service application, the plaintiff is t