JWS Ko JC

[1]I dismiss the appellants'/defendants' appeal in chambers against the 30 ruling of the senior assistant registrar in dismissing the defendants' application to set aside judgment in default of appearance and for leave to enter defence and/or counterclaim:

SERVICE OF WRITSignificance of registered office

[2]Counsel for the defendants has strongly relied on the failure of the plaintiff to serve the writs to them by AR registered post to their respective registered office addresses which would be reliance on Companies Act 1965s350O 62 r 4(1)(b) of the RHC 1980.

[3]It is noted that the plaintiff's affidavit of service affirmed 30 November 2007 for service of the writ upon the first defendant (exh CLF3 of the defendants' affidavit in support of Datuk Kour Nam Ngum affirmed 5 March 2009) is fraught with errors on the date of service in relation to the exhibited registered post slips. Noted also that the plaintiff was peppering each of the defendants with due process in the matter through three different addresses.

[4]It has been held by Mohamed Dzaiddin J (as he then was) in Lee Boon Tatt & Ors v Takhdir Trading Sdn Bhd s 350 O 62 r 4(1)(b) which 'says if there be more offices than one, then service may be effected at the principal office which should mean the principal place of business of the corporation'.

[5]Notwithstanding the multiplicity of addresses used by the plaintiff, there is no dispute by the parties that the writ of summons was not served at or sent to the registered office of the defendants as lodged at the Companies Registry at the material time as No 30, Lorong 6A/91, Taman Shamelin Perkasa, 56100 Kuala Lumpur.

Contractual address for service of the first defendant

[6]The defendant's contention of bad service on the first defendant is adequately rebutted by the plaintiff's contention that they are relying on service using an agreed address for service or for convenience here called the contractual address adopted by the first defendant as the borrower under section 19 of the facility agreement (exh 'ASM3' of the plaintiff's affidavit in opposition of Aanatha Sambu a/l Mayavu affirmed 10 April 2009), which states as follows:

19.1 Service of Notice And Legal Process

(i)The service of any notice and Legal Process may be given by prepaid registered or ordinary post sent to the respective address or addresses specified in Section 19.2 and such notice and Legal process shall be deemed to have been duly served after the expiration of five (5) days from the date it is posted and if delivered by hand, on the day it was delivered.

(ii)No change in the address howsoever brought about shall be effective or binding on either party unless that party has given to other actual notice of the change of address or addresses …

19.2 Address

(i)The Borrower

TB266 Lot 4, Third Floor, Block 27, Fajar Complex, Jalan Mahkamah, 91000, Tawau, Sabah.

[7]It must be noted that the wording of section 19 of the facility agreement is that process 'may be given' and therefore not mandatory to be used. This means that the plaintiff may resort to other addresses for service and is not restricted to having to send to the contractual address for service to be effective.

[8]On the facts here, in the writ of summons, at para 2, the first defendant was stated as having its address for service at the contractual address.

[9]According to the affidavit of service affirmed 30 November 2007 (exhCLF3 of the defendants' affidavit in support), the writ was sent by AR registered post to the first defendant at the contractual address in addition to a former registered office and another address on 17 October 2007 but the postal slip stamps it as 22 October 2007. Nonetheless, thereafter the judgment in default of appearance was entered against the first defendant on 30 November 2007 well after the stipulated time for entering appearance whether from 17 or 22 October 2007.

[10]The plaintiff's service of the writ on the first defendant using the contractual address in this res