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2025 MarsdenLR 4016
HIGH COURT MALAYA KUALA LUMPUR
DONG MOON SOO – Appellant
Versus
SNC PROCESS SERVICES SDN BHD & ANOR (ENCLS 9 16 22 & 33) – Respondent
[Suit No: WA-24NCC-348-08/2021]
Substituted service procedures must be pragmatically applied when a defendant is evasive, and a mere assertion of a defense without evidence is insufficient to set aside a judgment.
Headnote:(A) Companies Act 2016 - Section 346 - Substituted service of originating summons - Defendant's application to set aside orders for substituted service and judgment dismissed on merits - Court confirmed that proper substituted service procedures were followed and the judgment was deemed served. Enclosure 33 filed after an inordinate delay of two years with no satisfactory explanation provided. (Paras 1, 14, 27, 36)
(B) Substituted service - Compliance with Practice Note No 1 of 1968 - Substituted service deemed effective where the judgment debtor has not updated their address and has been evasive - Court adopts a pragmatic approach to adherence to procedural rules. (Paras 15, 16, 19, 22)
(C) Defence on merits - Bare allegations without evidence do not suffice as a defense - Plaintiff's position as a majority shareholder in an oppression action does not negate the claim if evidence indicates a reduction in shareholding was orchestrated by the defendant. (Paras 30, 31)
Facts of the case:
The plaintiff initiated oppression proceedings against the defendant under Section 346 of the Companies Act 2016. The defendant failed to respond to the originating summons, resulting in orders for substituted service and judgment. Background included attempts at personal service and communication failure between parties.
Findings of Court:
The substituted service was validly performed, with no procedural irregularities identified, and the defendant's claims of poor defense were found to lack substance.
Issues: Whether substituted service was properly granted and whether the defendant had a legitimate defense on the merits.
Ratio Decidendi: The court held that effective substituted service was achieved despite efforts to avoid it by the defendant, and no sound basis existed to challenge the merits of the plaintiff's claims.
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. court's dismissal of application due to lack of merit. (Para 1 , 2 , 3) |
| 2. background facts regarding the originating summons and its service attempts. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. court's reasoning on the regularity of the substituted service process. (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. court's analysis of the merits of the defense raised by the 2nd defendant. (Para 27 , 28 , 29 , 30 , 31) |
| 5. discussion on the delay in filing the application to set aside judgment. (Para 32 , 33 , 34 , 35) |
Introduction
[1] Enclosure 33 is the 2nd Defendant's Notice of Application dated 14 May 2024 to set aside:
a) the Order dated 24 September 2021 for Substituted Service of the Originating Summons dated 17 August 2021 (Encl 9) ("the OS") ("SS Order for OS");
b) the Order dated 18 November 2021 granted by this Court in respect of the prayers in the Originating Summons dated 17 August 2021 (Encl 16) ("Judgment"); and
c) the Order dated 28 March 2022 for Substituted Service of the JID (Enclosure 22) ("SS Order for Judgment").
[2] Consequential and or in addition to the above prayers, the 2nd Defendant also prayed for:
a) leave to oppose and defend the Plaintiff's OS; and
b) if required, an abridgement of time and or extension of time be granted to the 2nd Defendant to file the application in Encl 33.
[3] After hearing submissions from counsel, this Court found Enclosure 33 to be without any merits and dismissed the same with costs for the following reasons:
a) the SS Order for OS was properly granted;
b) the Judgment obtained by the Plaintiff was regular and should not be set aside ex debito justitiae;
c) the Judgment was deemed served on the 2nd Defendant on 26 April 2022 after substituted service was effected according to the SS Order for Judgment. The 2nd Defendant's application in Encl 33 was filed only on 14 May 2024. There was an undue delay of 2 years. The 2nd Defendant has failed to show satisfactory reasons or grounds for this delay;
d) the 2nd Defendant did not have any defence on merits.
Background Facts
[4] The Plaintiff's claims in the OS was in the nature of an oppression action under s 346 of the Companies Act 2016 (" CA 2016").
[5] Prior to the filing of the OS, communication between parties had broken down and there was an exchange of correspondences and demands between parties' solicitors on record, namely, Messrs Skrine for and on behalf of the Plaintiff, and Messrs Christina Chia Law Chambers for and on behalf of the 2nd Defendant. Both the Plaintiff and the 2nd Defendant were at the material times Korean citizens.
[6] On 19 August 2021, Ms Annjili Gunendran of Messrs Skrine had written to Ms Yvonne Chang of Messrs Christina Chia Law Chambers to inform that the Plaintiff had taken out proceedings against the 2nd Defendant and to ask if Messrs Christina Chia Law Chambers had instructions to accept service on behalf of the 2nd Defendant. In respect of the OS, Ms Yvonne Chang confirmed on 20 August 2021 that they had no instructions to accept service of the cause papers.
[7] Personal service of the OS and Affidavit in Support was attempted on the 2nd Defendant's last known address which was The Hill Church, S-18-1, Wisma YNH (Kiara 163), Jalan Kiara, 50480 Mont Kiara, Kuala Lumpur ("The Hill Church") on 6 September 2021, 15 September 2021 and 17 September 2021, with a letter of appointment being posted to The Hill Church on 15 September 2021.
[8] Thereafter, the Plaintiff applied for and obtained an order for substituted service of the OS on 24 September 2021 ie the SS Order for OS. Substituted service of the OS was effected according to the terms of the SS Order for OS, by pasting a copy of the OS at The Hill Church on 11 October 2021 and advertisement in the New Straits Times on 11 October 2021.
[9] It was not in dispute that the 2nd Defendant did not file any affidavit in respect of the OS and neither did the 2nd Defendant attend at the hearing of the OS be it person
