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2021 MarsdenLR 2646
FEDERAL COURT PUTRAJAYA
GOH TENG WHOO & ANOR – Appellant
Versus
AMPLE OBJECTIVES SDN BHD – Respondent
[Civil Appeal No: 02(i)-35-04-2019(W)]
Service of writs by AR Registered post is not deemed valid without proof via acknowledgment receipts, ensuring defendants are properly notified.
Headnote:(A) Rules of Court 2012 – Orders 10, 13, and 62 – Evidence Act – Section 114(f) – Interpretation Acts 1948 and 1967 – Writ service by AR Registered post – Requirement of AR card for proof of service before sealing judgment in default of appearance. (Paras 1-43)
(B) The court held that mere posting of a writ by AR Registered post does not amount to conclusive proof of service; the acknowledgment receipt card must be presented to demonstrate proper service. (Paras 30-43)
Facts of the case: The appellants contested a judgment entered against them in default of appearance due to the respondent's alleged failure to prove service of the writ via AR Registered post, lacking the necessary AR cards.
Findings of Court: The Court ruled that the absence of AR cards constituted a failure of proof of service, leading to a miscarriage of justice.
Issues: The main issues were whether posting a writ by AR Registered post suffices for service and if the AR card is crucial before entering judgment in default.
Ratio Decidendi: The court reasoned that the presumption of service under s 12 of the Interpretation Acts is rebuttable and requires adequate proof, including the production of AR cards.
Result: Appeal allowed, and judgments set aside.
[1] The question of law for our determination concerns the service of a writ and statement of claim ("the writ" for convenience). The question is as follows:
1"Whether, considering the relevant provisions in O 10, O 13 and O 62 of the Rules of and s 114(f) of the Evidence Act and s 12 of the Interpretations Acts 1948, 1967, where service of a Writ is alleged to have been carried out by way of sending the same to a defendant by AR Registered post pursuant to O 10, r 1(1) of the Rules of , 2012, can the Court seal a judgment in default of appearance notwithstanding that the Affidavit of Service does not exhibit the AR Registered Card containing an endorsement as to receipt by the defendant himself or someone authorised to accept service of the same on his behalf?"
[2] The proposition behind the question is that where the plaintiff/respondent elects to effect service of a writ by AR Registered post rather than by personal service, he must produce the acknowledgement of receipt card ("AR card") as proof of such service before the Court can enter final judgment in default of appearance ("JID") against the defendant/appelant.
[3] The appellants' submission is that the answer to the leave question should be in the negative, ie the Court cannot seal a JID in the absence of proof of service and that this proof can only come by:
(a) the affidavit of service exhibiting the AR card;
(b) the AR card showing an endorsement acknowledging receipt by the defendant himself;
(c) or, if the endorsement is not made by the defendant himself, the affidavit of service showing that the endorser was someone authorised by the defendant to accept service of the writ on his behalf.
[4] The facts material to the issue are as follows. The appellants were the 4th and 5th defendants respectively in the High Court. The respondent filed the writ on 11 August 2016. Upon extraction, the respondent by its solicitor attempted to serve the writ separately on the appellants by AR Registered post on 22 August 2016. This was done pursuant to O 10, r 1(1) of the Rules of 2012 ("the Rules") which provides:
"(1) Subject to the provisions of any written law and these Rules, a writ shall be served personally on each defendant or sent to each defendant by prepaid AR Registered post addressed to his last known address and in so far as is practicable, the first attempt at service must be made not later than one month from the date of issue of the writ."
[5] The provision is clear and unambiguous. It says that subject to the provisions of any written law and the Rules, it is mandatory for a writ to be served on the defendant either personally or sent by AR registered post. Where the plaintiff elects to effect service by AR Registered post instead of personal service, he must send the writ to the last known address of the defendant within the specified period.
[6] As a step towards entering JID against the appellants, the respondent's solicitor affirmed an affidavit of service stating that he had posted the writ by AR Registered post to the appellants' last known addresses. But he did not exhibit the AR cards, nor did he inform the Court whether the AR cards were returned or otherwise. He merely exhibited proof of posting by indorsing the day and date of service on the flip side of the writ. This is what he said in para 6 of his affidavit of service:
"[6] Saya juga telah pada tarikh yang sama membuat suatu pengindorsan tentang hari dan tarikh penyampaian di belakang Writ tersebut."
[7] The indorsement was to comply with O 62 r 9 of the Rules which provides that the affidavit of service shall state inter alia the day of the week and date on which the writ was served. It is in fact a requirement of O 10 r 1(4) of the Rules which if not complied with disentitles the plaintiff from entering final or interlocutory judgment against the defendant. The provision reads:
"(4) Where a writ is duly served on a defendant otherwise than in accordance with para (2) or (3), t
