Zakaria Sam JC:

The Application

By summons-in-chambers dated 8 March 1999 (encl. 106) the 4th defendant applied inter aliafor the following orders:

1.The purported service of writ of summons and statement of claim both dated 17 March 1998 on him be set aside;

2.That the judgment-in-default of appearance obtained by the plaintiff against him dated 8 July 1999 be set aside, on the grounds that:

1.He was at all material time residing outside the jurisdiction of Malaysia at or after the date of commencement of this action;

2.He was not evading service;

3.The purported service of the writ of summons and statement of claim dated 17 March 1998 on him was not regularly obtained;

4.The judgment-in-default of appearance dated 8 July 1998 was irregular; and/or

5.Alternatively, he has a good defence on the merits to the plaintiff's claim.

Facts

The plaintiff company is a bank registered under the Companies Act 1965with a branch office operating in Kuching at No. 35 Leboh Khoo Hun Yeang.

On 12 October 1994 and 25 November 1995 the plaintiff had granted a total sum of RM7.2 million loan facilities to the 1st defendant. Out of this RM7.2 million, RM4.2 million was for term loan facility and RM3 million for overdraft facility.

These facilities were for the purpose of part financing the purchase of an eightstorey hotel building together with that piece of land, refurbishment of the hotel and working capital for the running of hotel business.

The 2nd, 3rd and 4th defendants were the directors of the 1st defendant's company and became joint and several guarantors of the said facilities under two letters of guarantee dated 5 December 1995 and 18 December 1995 respectively.

This action was commenced by the plaintiff against the defendants herein claiming for the sum of RM4,432,269.03 in respect of the term loan facility and RM3,337,365.03 in respect of the overdraft facility together with the stipulated interest accruing thereof, when the 1st defendant defaulted in the payment of monthly instalments and was in arrears for six months as at 13 October 1997 and that the 1st defendant failed to operate the overdraft account satisfactorily and exceeded the overdraft limit to the extent of RM193,152.72 as at 13 October 1997.

The plaintiffs claim against 2nd, 3rd and 4th defendants for:

i)(a) RM4,432,269.03 in respect of term loan facility.

(b) Interest thereon at the rate of 13.35% p.a. on monthly rests from 9 February 1998 until the date of full and final settlement.

ii)(a) RM3,337,365.03 in respect of the overdraft facility.

(b) Interest at the rate of 13.35% p.a. on monthly rests from 9 February 1998 until the date of full and final settlement.

Judgment-in-default had been entered against the 4th defendant on 8 July 1998.

It is to be noted that the plaintiff had also taken out two similar applications against the 1st, 2nd and 3rd defendants. First summons-in-chambers (encl. 50) was to strike out the amended defence and counter-claim of the 1st defendant and the other dated 29 August 1998 (encl. 61) was to strike out the defence of the 2nd and 3rd defendants. Both applications had been dismissed by Muhammad Kamil Awang J on 24 November 1998.

The Service - Regular Or Irregular?

Wong Lee Kiong (f) in her affidavit-in-opposition (encl. 110) affirmed on 10 November 1999 deposed that several attempts to serve the writ on all the defendants at the address shown in the loan documents, ie, at 47 Jalan Tun Ahmad Zaidi Adruce, 93150 Kuching were unsuccessful. However, on 14 April 1998 she managed to contact the 2nd defendant through his phone and informed him that she intended to serve the writ on them failing which substituted service in the newspaper was to be effected. Upon hearing this, the 2nd defendant requested the said writ to be sent by post to him and all the other defendants care of the address of his other company, Lakbima (M) Sdn. Bhd at No. 44 Jalan Radin Tengah, Bandar Baru, Seri Petaling, 57000 Kuala Lumpur.

On 22 April 1998 the writs w