JUDGMENT

Abdul Malik Ishak J:

Introduction

The first defendant by the name of Nippon Seiko KK is a company resident in Japan and the plaintiff seeks to serve the concurrent writ of summons and the notice of the concurrent writ of summons (here in after referred to as the legal documents ' ) on the first defendant. How must the plaintiff effect the service of the legal documents on the first defendant bearing in mind that the latter is a company resident in the land of the rising sun? The land of the famous Samurai is certainly a distance away from Malaysia. This judgment dwells on the service of the legal documents upon the first defendant and its ramifications.

Background Scenario

Enclosure 164 was the first defendant's application pursuant to ( ' RHC ' ) for an order that the issuance and the purported service of the legal documents on the first defendant be set aside. The learned deputy registrar heard encl. 164 and she refused to allow it. Aggrieved, the first defendant filed an appeal to the judge in chambers in encl. 176. In dismissing encl. 164, the learned deputy registrar gave no reasons for doing so.

It now falls on me to decide encl. 176. For starters, I have this to say.

Order 12 r. 7 of the RHC confers a statutory right on the first defendant. It is a substantive right. The first defendant has an unqualified right to enter a conditional appearance and thereafter, within the time limited, to apply to the Court for an order to set aside service of the legal documents. Order 12 r. 7 of the RHC is worded in the following manner:

Application to set aside writ, etc (O. 12 r. 7)

(1) A defendant to an action may at any time before entering an appearance therein, or, if he has entered a conditional appearance, within 14 days after entering the appearance, apply to the Court for an order setting aside the writ or service of the writ, or notice of the writ, on him, or declaring that the writ or notice has not been duly served on him or discharging any order giving leave to serve the notice on him out of the jurisdiction.

(2) An application under this rule must be made by summons.

It must be recalled that the first defendant is a company resident in Japan. The plaintiff, on the other hand, is a Malaysian incorporated company. The service of the legal documents which the first defendant is disputing and which is also the subject matter of the application in encl. 164 and the appeal in encl. 176 took place on 8 May 2001 (see exh. ' MI1 ' of encl. 165). The plaintiff purported to serve the legal documents onto the first defendant in Japan via courier. I say categorically that Malaysian and Japanese laws do not permit service of foreign legal process direct by way of courier. I too say that service in Japan can only take place in the following manner: through the competent District Court, by special mail service and through the Japanese Supreme Court.

I will now say something about the second and the third defendants. It would be germane to state that on 28 October 1991, the suit against the second defendant was withdrawn. In so far as the third defendant is concerned, the matter is still ongoing and it is at the stage of case management as reflected in encl. 177.

I will pause here for a moment. I now propose to set out the chronology of events in relation to the various attempts at service of the legal documents by the plaintiff. It is certainly appropriate for me to do so.

Chronology Of Events

28 June 1989 - Letter from Messrs McKenna & Co to the plaintiff's solicitors.

29 June 1989 - Letter from Messrs Mitsuyoshi Kumagai to Messrs McKenna & Co.

3 July 1989 - Letter from Messrs McKenna & Co to the plaintiff's solicitors.

11 November 1989 - Date of filing of this suit.

27 July 1991 - Letter from the Jabatan Kehakiman Malaysia to the Foreign Ministry.

10 August 1991 - Letter from the plaintiff's solicitors to Jabatan Kehakiman Malaysia.

6 September 1991 - Letter from Jabatan Kehakiman Malaysia to the Ministry of Foreign Affairs.

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