Zakaria Yatim J:

This is an application by the defendant (Lorrain) to set aside the order for substituted service granted by the Senior Assistant Registrar on 8 February 1985. Lorrain also asks the Court for an order that the service of the writ of summons be set aside.

The plaintiffs' claim against Lorrain is for a sum of RM27,652,853.06 which they alleged, Lorrain received as constructive trustee for them. In their statement of claim, the plaintiffs averred that they are entitled under common law and/or under s. 169 of the Contracts Act, 1950 to claim from Lorrain the said sum. The plaintiffs alternatively averred that Lorrain made secret profits to the extent of RM27,652,853.06 in the course of managing the plaintiffs' affairs. Further or alternatively, Lorrain is also liable to pay the plaintiffs under s. 132(3) of the Companies Act, 1965 all profits made by him to the extent of RM27,652,853.06. According to the first plaintiff (the Bank), Lorrain was at all material times a Director of the Bank and by reason of his position as Director and/or agent was in a fiduciary relationship with the Bank. Lorrain was a subscriber to the Memorandum and Articles of Association of the second plaintiff (BMF) and its first Director. Between 1 January 1977 and 31 October 1983, Lorrain was Chairman of the Board of Directors of BMF. He held the position of Director and Chairman as a nominee of the Bank with the express obligation to represent the Bank's interest on the Board. By reason of his position as Director/Chairman, Lorrain was in a fiduciary relationship with the Bank and BMF.

The plaintiffs filed their writ of summons against Lorrain for the said sum on 10 January 1985. Since the filing of the writ, the plaintiffs' solicitors made every attempt to serve the writ on Lorrain at his known addresses but without success.

The efforts made by the plaintiffs' solicitors to serve the writ on Lorrain were described fully in the affidavit of Mr. Lee Kim Cheng, a clerk working in the firm of the plaintiffs' solicitors, affirmed on 5 February 1985. On 10 January 1985, at 5.50 p.m. he went to Lorrain's residence at No. 26, Jalan Kia Peng but no one was there. At about 6.45 p.m. he again went to the same address and met the caretaker of the house. He enquired about Lorrain and was told that Lorrain was residing at No. 4, Jalan Stonor, Kuala Lumpur. He then went to Jalan Stonor and met a security guard at the gate of the premises. The guard told him that he had not seen Lorrain for sometime and that Lorrain could be contacted at his office, Aspatra Sdn. Bhd. at Wisma Stephens. On 11 January 1985, Mr. Lee went again to the house at Jalan Stonor but Lorrain was not there. He then proceeded to Lorrain's office at Wisma Stephens. There he was told by Lorrain's secretary that Lorrain was not in. According to her Lorrain had not come to the office for sometime and she did not know whether Lorrain would come to the office or not. At 6.00 p.m. on the same day, he went again to the house at Jalan Stonor but he was told by the guard there that Lorrain was not in. When he wanted to enter the premises he was prevented by the guard. On 19 January 1985, the plaintiffs' solicitors, sent, by an AR Registered Post, a copy of the writ together with a letter informing Lorrain that Mr. Lee would call on him. The letter was duly delivered to Lorrain as the AR card was returned by the Postal Authorities. On 25 January 1985 between 9.45 a.m. and 10.00 a.m. Mr. Lee went to the premises at Jalan Stonor to effect service of the writ. On the same day, Mr. Lee went twice to the same address, but Lorrain was not there. According to Mr. Lee, Lorrain had full knowledge that the plaintiffs' solicitors were trying to serve the writ on him but he wilfully evaded personal service.

On the basis of the evidence contained in Mr. Lee's affidavit and the exhibits thereto, in my view the Senior Assistant Registrar was right in granting the order of substituted service. It was i