A defendant's failure to comply with procedural rules regarding service challenges results in a presumption of submission to the court's jurisdiction.

JUDGMENT

Moses Susayan JC:

Introduction

[1] In this case, the Defendant seeks to set aside the service of the Writ and Statement of Claim on a jurisdictional point, arguing improper service due to the absence of leave of the court for serving documents outside Malaysia. However, having already taken procedural steps, including requesting extensions for filing a defence, the Defendant's actions raise a critical question: can the court allow setting aside in such situation? This judgment delves into the boundaries of procedural compliance and the implications of a Defendant's actions within court proceedings.

Background Facts

[2] This case involves a dispute between family members - the Plaintiff sues the Defendant who is the Plaintiff's cousin brother, and a business partner. The Plaintiff invested IDR17.927 billion (approximately RM6.01 million) in the Defendant's coal business based on a co-operation agreement dated 15 March 2017. Despite the agreement stipulating monthly interest payments and the principal amount's repayment over a year, the Defendant failed to pay according to the terms, paying only a fraction of the agreed sum, leaving the sum of IDR26.868 billion (about RM9.008 million) remaining unpaid as at 15 March 2018. As a result, the Plaintiff has initiated this action against the Defendant for the remaining sum unpaid for breach of contract including interest and costs. The dispute originated in Malaysia, with Malaysian law governing the agreement.

Commencement Of Action And Service Of Process

[3] The Plaintiff served the Writ and Statement of Claim to the Defendant's wife via AR Registered Post on 2 March 2023. At that time, the Defendant was in Jakarta, Indonesia, where he has allegedly been living since 2003. Nonetheless, there is no indication that the Defendant is domiciled in Indonesia. Hence, for all intents and purposes, the Defendant is considered a domicile of Malaysia.

[4] Despite service of the Writ and Statement of Claim to the Defendant's wife, on 9 March 2023, the Defendant through his solicitors filed a memorandum of appearance, indicating his intention to contest the case. Following this, the Defendant's solicitors sought and received two extensions of time, approximately one and a half months from the court to file the Statement of Defence. The extension was allowed by the court without any objection from the Plaintiff. This sequence of actions led both the court and the Plaintiff expecting the Defendant to file a Statement of Defence.

[5] The extensions were as follows:

a) The first extension was for two weeks, granted during the case management on 13 March 2023, with a deadline to file defence on 27 March 2023; and

b) Second extension was during the case management on 27 March 2023, the Defendant was granted an additional 3 weeks of extension.

[6] However, despite the extensions of time granted to file the defence, the Defendant instead filed encl 6 on 4 April 2023, to challenge the service of the Writ and Statement of Claim on the basis that the Defendant had never been affected proper service of the Writ and Statement of Claim. The Defendant contends that the Plaintiff ought to have obtained leave of the court to serve the writ and the statement of claim out of jurisdiction, as the action, begun by writ, sought relief against the Defendant, who is a resident outside the jurisdiction.

[7] The Defendant's challenge in encl 6, pertains solely to the service, asserting that the Plaintiff failed to obtain leave to serve the Writ and Statement of Claim out of jurisdiction. The Defendant does not dispute that the High court of Malaya in Ipoh is appropriate forum having jurisdiction over this matter to determine the dispute.

Plaintiff's 1st Challenge To Defendant's Application

[8] The crux of the Plaintiff's argument in this respect hinges on the procedural irregularity, ie the Defendant's failure to comply with O 12 r 10(1) of the Rules of 2012 ( ROC ). This court recognizes the importance of strict compliance w