The Federal Court had ruled on 5 March 2021 that AR card confirming the defendant’s receipt needs to be exhibited to obtain a JID against the defendant.
Facts of the Case
Ample Objectives Sdn Bhd, the respondent filed a writ on 11 August 2016 in the High Court and the appellants were the fourth and fifth defendants. Upon the extraction of the writ, the respondent by its solicitor attempted to serve it to the appellants through A.R. registered post on 22 August 2016 pursuant to Order 10 rule 1(1) of the Rules of Court 2012 (“ROC 2012”).
The appellants did not entered appearance. Thus, respondent entered judgment in default (“JID”) against the appellants. Appellants claimed that they did not receive the writ and applied to set aside the JID. Their application to the High Court was dismissed on 21 March 2018 and their appeal to the Court of Appeal was also dismissed on 17 April 2018. Hence this appeal.
Issue of the Case
Where the plaintiff elects to effect service of a writ by A.R. registered post rather than by personal service, whether 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 against the defendant?
Judgment of the Case
The law on the service of writ and obtaining a JID against the defendants are as follows:
Order 10 rule 1(1) of the ROC 2012
“(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 A.R. 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.”
Order 10 rule 1(4) of the ROC 2012
“(4) Where a writ is duly served on a defendant otherwise than in accordance with paragraph (2) or (3), then subject to Order 11, rule 5, unless after service the person serving it endorses on it the following particulars, that is to say, the day of the week and date on which it was served, where it was served, the person on whom it was served, and, where he is not the defendant, the capacity in which he was served, the plaintiff in the action begun by the writ is not entitled to enter final or interlocutory judgment against that defendant in default of appearance or in default of defence, unless the Court otherwise orders.”
Order 13 rule 7 of the ROC 2012
“(1) A judgment shall not be entered against a defendant under this Order unless –
(a) the plaintiff produces a certificate on non-appearance in Form 12; and
(b) either an affidavit is filed by or on behalf of the plaintiff proving due service of the writ on the defendant, or the plaintiff produces the writ endorsed by the defendant’s solicitor with a statement that he accepts service of the writ on behalf of the defendant.
(2) Where an application is made to the Court for an order affecting a party who has failed to enter an appearance, the Court may require to be satisfied in such manner as it thinks fit that the party is in default of appearance.”
The provisions above shows that a writ can be served by A.R registered post and the person serving the writ is required to endorse the particular on when, where and whom the writ was served to be entitled to enter a JID against the defendant.
The appellants argued that the JID entered by the respondent was not regular and ought to be set aside ex debito justitiae (as of right which cannot be refused by the Court). It was submitted that the service of writ was not proved by the respondent because the AR cards was not exhibited. In contrast, the respondent claimed that it was entitled to rely on the postal receipt issued by the post office to prove service without further proof. In other words, proof of posting is conclusive proof of service.
The respondent relied on section 12 of the Interpretation Act 1948 and 1967 which provides as follows:
“12. Where a written law authorises or requires a document to be served by post, then, until the contrary is proved, service –
(a) shall be presumed to be effected by properly addressing, prepaying and posting by registered post a letter containing the document; and
(b) shall be presumed to have been effected at the time when the letter would have been delivered in the ordinary course of the post.”
The respondent also cited a few cases to support its argument that mere posting is sufficient to prove service. In Pengkalen Concrete Sdn Bhd v Chow Mooi & Anor [2003] 6 CLJ 326, it was held that there was no need for proof that the named person in the writ must be the very same person who had received it if it was sent by A.R. registered post. In that case, the writ was received by one “Yanti" and not the appellant but this did not render the service void. This decision was approved by Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175 (“Yap Ke Huat”). The Court held that there is no requirement of law that the plaintiff must prove that the person named in the post had received the writ, and that once the writ is sent by AR registered post it is prima facie proof of service unless there is rebuttal evidence by the defendant. There was no reference however to section 12 of the Interpretation Acts. In 2012, Yap Ke Huat was followed in the Court of Appeal case of Sivamurthy Muniandy & Ors v Lembaga Kumpulan Wang Simpanan Pekerja [2012] 9 CLJ 598 which held that there was no necessity for the plaintiff to prove receipt of the writ by the person named in the A.R. registered post.
The appellant relied on several cases to support their argument that the AR cards must be produced as proof of service before JID could be entered against them. In the High Court case of Ali bin Jeman v Indranika Jaya Sdn Bhd & Ors [2016] MLJU 1485, it was decided that since the AR card was never returned, most probably the writ was never served and that in any event the plaintiff bore the burden of proving service which he was unable to do conclusively in the absence of the AR card. Another High Court case of High Court case of Azhar bin Wahab v ANS Development Sdn Bhd [2017] MLRHU also ruled that the production of the AR card is a prerequisite to prove service.
Besides, the Court of Appeal case of Chung Wai Meng v Perbadanan Nasional Berhad [2017] 1 LNS 892; [2018] 1 MLRA 331 (“Chung Wai Meng”) held that the production of the AR card is a prerequisite before JID can be entered against the defendant and this decision is consistent with the two High Court case mentioned above. Subsequently, Chung Wai Meng was followed by The High Court case of Tajudeen MK Syed Mohamed v ZMS Construction [2018] 5 MLRH 72 which decided that posting is not sufficient to prove service of the writ and that actual receipt by the defendant of the envelope containing the writ must be proved at the time JID is sought to be entered.
According to learned counsel for the appellants, which learned counsel for the respondent did not dispute, it is common knowledge that the ordinary business of delivery by A.R. registered post is only completed by any of the following events taking place:
(a) the return of the envelope and document to the sender and the document with the notation “tidak dituntut”; or
(b) the return of the AR card to the sender with the acknowledgment of receipt by the intended recipient; or
(c) the return of the AR card to the sender with the receipt acknowledged by a third party.
Since none of the above events had been implied taking place in the respondent’s AOS, the Court ought not to have accepted the service of writ as completed and sealed the JID. Furthermore, appellants submits that the Court should have adopted the purposive approach in interpreting the rules in deciding whether service had been properly carried out because service of the writ, whether in person or by A.R. registered post must be effected personally on the named defendant and when the respondent elected to serve the writ by A.R. registered post, it was necessary for the respondent to produce the AR card as evidence of the named defendant received the writ.
Section 12 of the Interpretation Acts must be read in its proper context. What it says is that where a document is served by registered post, service and time of service are “presumed” “until the contrary is proved”. There is nothing in the section to say that posting by registered post is conclusive proof of service. What is clear is that it is a rebuttable presumption of law that can be displaced by evidence to the contrary. Thus, if there is evidence that the defendant has not been served with the document, the presumption is rebutted and the court will make a finding that there has been no service of the document in an application for setting aside. It is anathema to the concept of justice and fair play that a defendant who has no knowledge of the action is attached with liability without being given the opportunity to explain why the default judgment should not be entered against him.
It must be appreciated that the presumption of service under section 12 of the Interpretation Acts only kicks in if the document has been sent by registered post to the proper address of the defendant, in the case of Order 10 rule 1(1) of the ROC 2012 to his last known address. Failure to do so will render the service bad in law and consequently no JID can be entered against the defendant, unless there is evidence direct or circumstantial to prove that service by post had been effected without the aid of the presumption.
the question is whether the respondent had sent the writs by A.R. registered post addressed to the last known addresses of the appellants as required by Order 10 rule 1(1). If that had been done, service by post would be presumed to have been effected by operation of section 12 of the Interpretation Acts and the burden would then shift to the appellants to prove to the contrary that they had not been served with the writs.
The Federal Court held that both courts below were wrong to conclude that posting of the writs by A.R. registered post was conclusive proof of service. The appellant claimed that they had succeeded in rebutting the presumption of service as established by the following facts:
(a) The first appellant exhibited evidence that he was not residing at the address of service at the material time. His estranged brother had signed on the AR card and did not inform him of the same;
(b) The second appellant admitted residing at the stated address but denied receiving the writ. No AR card was ever produced by the respondent in respect of the second appellant.
The Court are of the view that there is sufficient merit in the point raised. Since the appellants denied receiving the writs, which denials were corroborated by the respondent’s failure to produce the AR cards duly signed by the appellants or their authorised representatives, the presumption of service under section 12 of the Interpretation Acts had been rebutted by the appellants on the balance of probabilities. The appellants had asserted under oath that they did not receive the writs but the respondent chose not to or failed to contradict the assertions by producing the AR cards duly signed by the appellants or their authorised representatives. Therefore, the respondent’s failure to contradict the appellants' assertions that they did not receive the writs must be taken as an admission of the facts asserted.
The Federal Court then held that where service of a writ is alleged to have been effected by way of sending the same to a defendant by A.R. Registered post pursuant to Order 10 rule 1(1) of the ROC 2012, the court cannot seal a judgment in default of appearance where the affidavit of service does not exhibit the A.R. Registered card containing an endorsement as to receipt by the defendant himself or someone authorized to accept service of the same on his behalf. Hence, the appeal is allowed. The decisions of the courts below are aside and the appellants' application to set aside the JID is allowed. (Court can set aside JID under Order 13 rule 8 ROC 2012)
Principle of the Case
Where the plaintiff elects to effect service of a writ by A.R. registered post rather than by personal service pursuant to Order 10 rule 1(1) of the ROC 2012, the court cannot seal a judgment in default of appearance where the affidavit of service does not exhibit the AR card containing an endorsement as to receipt by the defendant himself or someone authorized to accept service of the same on his behalf.
Author’s Opinion
It is now clear that the plaintiff must exhibit the AR card in their AOS to show conclusive proof of service before JID can be entered against the defendant. This approach can prevent JID entered against the defendant without his knowledge.
However, this decision might not affect service of a writ done pursuance to a contract. A contract may contain clauses or terms which specify how a writ is deemed to be duly served. For example, writ can be served through ordinary post or registered post to the defendant’s last known address and that proof of posting is conclusive proof of service. If an action in respect of the contract being begun and the writ is served on the defendant through the specify manner, under Order 10 rule 3(1) ROC 2012, the writ is deemed to have been duly served on the defendant if it is served in accordance with the contract. Hence, JID can still be obtained against the defendant without the need of exhibiting the AR card.
The full judgment can be accessed from the link here.
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