Writ Service

Topic : Writ, Originating Summons and Service
Writ of Summons
• Writ
It is one of the two modes of originating process available for commencing an action in the
High Court as well the subordinate court. When a party wants to commence an action, this may
be done by filing a writ in court.
• Form of Writ
O6 R1: Every writ must be in Form 2 (high Court) or Form 2A (Subordinate court)
• The writ endorsed with a statement of claim
O6 R2: A writ must be endorsed with a statement of claim. This means that a writ must be
filed together with a statement of claim. If a statement of claim is not filed together with a writ,
then a concise statement of the nature of the claim or the relied, remedy sought may be included
in the writ. A writ can only file on its own where limitation period is about to set in and there
is no time to file the statement of claim but it must be with the endorsement in the writ itself.
The statement of claim may be filed later.
However, plaintiff can cure the defect of the general indorsement vt serving defendant a full
statement of claim after the defendant has entered appearance:
Tan Chew Wah v Teoh Kang Swee
The court held that an incorrect statement of the defendant’s address in the writ by itself did
not vitiate the writ in the circumstances where evidence disclosed that the defendant resided at
the stated address from time to time and the writ was successfully served on the defendant
personally. However, if the writ altogether omitted the address it may be irregular.
Khoo Kay Hock v E.J Ketting
In a fatal accident claim, the general indorsement only stated the estate claim and did not
include the dependency claim. The court held that the general indorsement was acceptable as
a subsequent statement of claim contained both the dependency claim and estate claim.
Ban Hin Lee Bank Bhd v Long Hua Corporation
Whether defendant was prejudiced by plaintiff failure to indorse the writ in aqccordance with
o6r2(1). The court held that defendant is not prejudiced by plaintiff’s failure to state the amount
claimed in the indorsement of claim column in the writ as it is mere irregularity which is curable
under Order 2.
Voest-Alpine Intertrading Eeselschaft mbH v Lee Chung Chuan t/a Doras Trading Co &
Anor
The court held that it was not irregular for a statement of claim to be dated a few days before
the writ was filed. Differences between affidavit and statement of claim. A statement of claim
must be prepared before the writ is filed. However, for an affidavit, if it was filed before the
writ certainly not admissible as there is no pending cause or matter to consider that particular
affidavit because there is already in existence a pending case or matter.
*Endorse is public indication of approval which is the court
*Indorse is a statement of claim under O18 or concise statement of the nature of claim made
or relief in the action begun thereby o6r2. A concise statement is to let defendant to know
concisely what the nature of the claim against him.
• Issuance of Writ
→ Order 6 must be read together with order 63A (for e-filing system)
→ R6(2): The issue of writ takes place when the plaintiff presents the writ and copies
to the registrar of the high court.
→ R6(3): The registrar then issues a serial number to the writ, signs it, date it and
affixes the seal of the court. Writ is effective when it is issued by the court.
→ R6(4): The original writ must be filed in the registry and an entry made in the cause
book
→ Copy of the writ will then forwarded to the plaintiff and a copy to the defendant as
the case may be. Thus, while this is so when a writ is physically filed in hard copy
at court registry counters, the process will slightly different when the writ is filed
through electronic filing system.
Jumatsah bin Daud v Voon Kin Kuet
The court held that an action is commenced when the plaintiff files the writ at the registry and
pays the requisite fees not necessarily when the writ is subsequently sealed.
Kok Song Kong v Brunei Shell
The plaintiff filed the writ and paid the fees at the registry on 18 th april 1984. The writ was
sealed on 23rd April 1984. The defendant contended that the action is deemed to have
commenced only at the time the writ was sealed and as such the plaintiff was time-barred to
bring his action. The court held that the action was commenced on 18 th April 1984 before the
expiry of the limitation period.
Aly v Aly
The court held that it did not make sense that a party that had done everything required of him
by the rules should be penalized for something not done in time by court.
Duration and Renewal of Writ
→ O6 r7(1) : A writ is valid for 6 months from the date issuance.
→ R7(2) : A writ may be renewed twice (the renewal is not automatic). Each time may make
an application to the court.
→ As such, if not served on the defendant and renewed twice, would have a life span of 18
months. Eg: 6 months (validity of initial writ) + 6 months (first renewal) + 6 months
(second renewal)
→ Battersby v Ors v Anglo American Oil Co. & Ors : It is the duty of a plaintiff who issues
a writ to serve it promptly. And renewal is certainly not to be granted as of course of on an
application which is necessarily made ex parte. In every case, care should be taken to see
that the renewal will not prejudiced any right of the defendant and it should only be granted
where the court is satisfied that good reasons appear to excuse the delay in service.
→ Llyod Treiestine Societa v Chocolate Products (M) Sdn Bhd (pg 117 BAC): The court
held that the court still has discretion to renew the writ even though the application is made
within 12 months of the date issue and the limitation period has expired. In this case, no
reason was given for court to exercise its discretion to renew the writ. The court may renew
the writ if there is good reason to do so.
→ R7(2A): The application for renewal of writ must be made before the expiry of the writ. It
would be made by filing an ex-parte notice of application supported with an affidavit. In
the affidavit, the plaintiff must show that efforts were made to serve the writ on the
defendant within 1 month of the issuance of the writ and efforts were made subsequently
as well.
→ This order required for it to be shown that steps have been taken to serve the writ
within one months of its issuance. The purpose is to ensure that the plaintiff take steps to
serve the writ expeditiously. There must also be continuous effort to serve the writ on the
defendant. The application to renew the writ must be made before the expiry of the writ.
→ Khoo Kim Hock v Mayban Finance Bhd : The high court has the power to extend the
validity of the writ twice and not exceeding 6 months at any one time. The other
requirement is that the application must be made before the expiry of the writ. The plaintiff
or respondent’s solicitor has the responsibility to find out if the writ had been served. In
this case, there was no effort and steps taken by the plaintiff solicitor to write to the high
court johor enquiring on the progress of the service of writ.
Cases for renewal of writ (pg 116 & 117 BAC pg 283-green)
1. Heaven v Road & Rail Wagon : This is an older case where it is stated that renewal
after the limitation period has expired will only be permitted in the most exception
circumstances.
2. Kleinwort Benson Ltd v Barbrak Ltd : The court held that the reason for renewal
can be based on good reasons and not necessarily on exceptional circumstances.
Whether a good reason exist depends on the circumstances of each case.
3. Ng Ching Kee v Lim Ser Hock : The file was mislaid for some time and that
negotiations were continuing with defendant were held irrelevant.
4. Kun Kay Hong v Tan Teo Huat : The court allow for the renewal of the writ after the
limitation period had expired on the ground that plaintiff’ delay of service was because
the solicitor of the defendant’s insurers asked plaintiff to withhold service.
5. Arab Malaysian Credit Bhd v Tan Seang Meng : The court held that the court has
discretion to extend the writ for 12 months each for a period of 8 years under O6r7 and
O92 r4.
6. Duli Yang Maha Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v
Datuk Captain Hamzah Mohd Noor (pg 114 BAC) :
Issue : Whether the requirement of showing such effort that have been made to effect
service of a writ under r7(2A) is a mandatory prerequisite to the exercise of discretion
under r7(2)?
Held :
- A writ issued in the first instance is valid for only 6 months. Rule 7(2) confers a
discretionary power on the court to extend the validity of the writ and such discretion
is to be exercised subject to r7(2A). There are 3 pre-requisite under r7(2A) which an
application for renewal of a writ must prove. They are that it must (a) be made before
the expiry of the writ (b) Be made ex parte by summons (c) be supported by an affidavit.
- Thus, the requirement of O6r7(2A) are mandatory pre-requisites
*The court held that o6 r7(2A) is a subsidiary legislation created pursuant to S16 COJ.
The court held that S23 of the interpretation act 1948 and 1967 stated that a subsidiary
legislation containing inconsistent provision to an act shall be void. It also stated that
refer s45 of the interpretation act 1948 and 1967 allows the court to extent time even if
it is made after the expiration of time, therefore order 6 r7(2A) is ultra vires this
provision and to that extent it is void. The court relied on O1A and O2 to cure the
procedural error.
Originating Summons
→ O7 R2 : Form 5 or 6
→ O7 R3 : Contents Statement in questions
→ O7 R5 : Issue of OS
→ O7 R6 : Duration and renewal of OS
→ O28 R3A : Hearing of the OS
→ O28 R7 : Counter claim by Defendant
→ O28 R4 : Directions by Court
→ O28 R5 : Adjournment of hearing of OS
Service of Writ
→ Service of process is an essential procedural step in properly constituted judicial
proceedings. Its objective is to give notice to the party who will or may be affected by the
court’s judgment or order
→ There is a need to serve personally on each defendant or by sending it by prepaid A.R
registered post addressed to his last known address. If no serve writ on the defendant, it
will become irregularity. This irregularity is incurable.
A. Service of writ on an individual defendant
→ Order 10 R1(1) : A writ may be served on the defendant either personally or
by sending it by prepaid A.R registered post addressed to his last known address.
The service of this writ must be done so far as it practical, done within one
month of issuance of the writ.
→ R1(2) : Service may be made on the defendant’s solicitor where he endorses a
statement on the writ that he accepts service on behalf of the defendant.
→ R3 : Allows service of writ pursuant to terms of contract, where a contract
between parties provides the manner of service of writ. These rules are generally
also applicable to service of originating summons. The court must also first have
the jurisdiction to hear and determine the case. However, this may not apply if
the writ is served out of the jurisdiction in accordance with the contract.
How the personal service been affected?
o O62 r 3: Personal service is affected by leaving with the defendant
a copy of the writ or OS and by showing him the sealed copy of the
same if requested. But there is no requirement to serve the sealed
copy of the writ on the defendant, only by request.
o It also stated that the writ is to be left with the defendant to
constitutes personal service of the writ. The only requirement is to
leave the writ in the presence of the defendant.
o The affidavit of service must be in the manner prescribe in Form 135
and comply with the requirements of O62 r9 in that in this affidavit
of service the following must be stated (a) by whom the document
was served (b) when was it served (c) where was it served (d) how
was it served
o The Supreme Court Practice 1997 : to effect personal service of
the writ the clerk or other person entrusted with the task should first
satisfy himself that he as found the correct person. He should then
hand to or leave with the person to be served a copy of the writ. If
the person served will not take the copy he should tell him what it
contains and leave it as nearly in his possession as he can
o Sashidaran v Magnum Finance Bhd : A person effecting personal
service of summons or writ has 2 functions to perform. He must
make an indorsement of certain particulars on the summons and
must also affirm an affidavit of service.
o Examples of leaving the writ in the presence of the defendant (pg
119 BAC pg 285 green)
o Thomson v Pheney : The court stated that if a person to be served
refuses to accept service of a document it could nevertheless be
proper. If the server informed the person to be served of the nature
of the document and throws it down in his present. Plaintiff solicitor
clerk threw it to defendant and said “im serving it on you” was held
to be a good service
o Roase v Kempthone : The defendant had refused to accept service
of the writ. The plaintiff slipped the writ into the defendant’s coat
when the defendant was opening his coat. The court held it was good
service.
o Banque Russe v Clarke : The writ was handed over to the
defendant in an envelops. The defendant was not informed that it
was a writ. The court held that this was not good service.
o Kenneth Allison Ltd v A.E. Limehouse & Co : If one party
knowing that another wishes to serve process upon him, the party so
served cannot be heard to say that the service was not valid unless
there was rules prohibited him.
→ O10 R2
→ Montgomery & Co v Libenthal & Co : The court hekld that a writ was properly
served on a Scottish person when it was left with his agent in Engliand appointed for
the purpose of accepting the service.
→ The Owners of the Ship or Vessel MT Rowan v The owners of the ship or Vessel
or property ‘Singapura Timur’ : Whether admiralty jurisdiction of the court could
be invoked on a submerged vessel and whether court appointed diver can effect valid
and proper service. The court held that S24 COJ states that civil jurisdiction of the high
court shall include the same jurisdiction and authority in admiralty matter as is
conferred ti the high court in England under UK supreme court act 1981.(pg 286 green)
→ Tsang ong Stockbrothers Ltd v Joseph Ling Kuok Hua : Whether a writ issued by
Singaopre high court and served by a local agent was valid in law. The ocurt stated that
service by a local agent other than by a court process server is a recognize mode of
service by any court.
→ Order 10 Rule 4: Where an action for recovery of land, the court has made an order to
affix the copy of the writ on some conspicuous part of the land.
→ Order 11 Rule 5(3): Where service is affected in foreign country, notice of writ need
not be served personally.
B. Service on Disabled Person

→ O76 R14 : If the person under a disability is a minor then the case paper must
be served on the father or the guardian. If there is no father or guardian, then
the doc can be served on the person the minor resides with.
→ R14(3) : If duno which one to be served, then the court has the discretion to
make an order that the court paper be served on the person.
→ O76R14(2)(b) : require the document to be served on a person who is authorise
under the mental health act 2001 to act on behalf of the patient. A person so
authorised will be a committee of person appointed by the court to take in charge
of the person and his estate under S58 of the mental health act 2001. If no, then
will be served on the person whom the patients resides.
→ Can also served on the patient itself but must obtain from the court.
C. Service on partners
→ O77 R3 : The writ may served on (a) either on any one or more of the
partners(serve to any partner) (b) at the principal place of business of the
partnership within the jurisdiction on any person having at the time of the
service, the control or management of the partnership business(serve at the
business place)
→ Where a writ is serve on a person who is having control of the partnership the a
written notice in Form 191 must be given to the person. If no such notice is
given then will be deemed that the writ is served on a partner.
→ If the partnership is dissolve, then the writ must be served to all partners under
O77 r 3(3)
→ Can be served personally or by prepaid registered post
D. Government Proceedings Act 1956
→ The writ must be served on the attorney general or such other officer as may be
designated in that behalf if the case against the federal government
→ O73 R3
→ No need to serve the writ to AG personally, suffice to just send it to AG office.
→ O73 r 3(2)(b): If against state government, then it must serve on the state
secretary of each state.
→ May be served personally or by prepaid registered post
E. Service on corporations
→ O62 R4
→ R4(1)(a) : the writ may be served by leaving a copy of writ at the registered
office.
→ R4(1)(b) : The writ may be sent by registered post to the office of the
corporation
→ R4(3) : the person served shall entitle to inspect the original writ
→ Lee Boon Fatt v Takhdir Trading Sdn Bhd : Plaintiff served the writ at the
place of business. Defendant argue that the writ should have served at the
registered office. The court stated that it was not the legislative intention to limit
service only at the registered office. O62r4(1)(b) 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.
→ Yew Leek etc Bhd v Foong Engineering etc Bhd : The court held that the
service of writ on a company cannot be at the principal office. (it is prudent to
serve on registered office)
*pg 229 green
→ Summit Company (M) Sdn Bhd v Nikko Products Sdn Bhd : The court held
that the change of the registered office was effective on the date of filing with
the registrar of companies which was 24.2.82. Thus, the service was bad.
Plaintiff could have inspected any documents files with the registrar by paying
a prescribed fee to ensure that a writ would be served at the proper place.
(effective on the date of the lodgment of the notice to the registrar of companies)
→ United Malayan Banking Corporation Berhad v Richard Trade &
Development Sdn Bhd : The court held that the fact that the particular of
change had not been entered in the register by the registrar of company was
irrelevant as the relevant date was date of notification by the respondent and not
the date of entering of registration in the register by the registrar.
→ Yeo Hiap Seng v Australian Food Corp Pte Ltd : The defendant failed to
notify the registrar of company the change of the registered address. The court
held that the service as per the address at the registry was good service.
Substituted Service
→ O62 R5 : If a document cannot be served personally and it has become impracticable
for the document to be served personally, then the court may order the document to be
served by way of substituted service.
→ SS means to advertise the writ in the local newspaper and this advertisement is
deemed to give notice to the defendant of the impending civil suits in court
→ The plaintiff would apply for an order of SS if the plaintiff knows that the defendant is
in Malaysia but not sure as to the exact location of the defendant.
→ O62 r5(2): An application for SS is made by way of ex parte application supported by
an affidavit. (pg 289 green)
→ O62 r5(1) : make an order in from 133. The application must comply with practice note
1 of 1968.
→ Bank Bumiputera Malaysia Bhd v Lorraine Esme Osman : The court allow the
plaintiff application for SS because the defendant had left the country was to avoid the
service of writ.
→ Re S.Nirmala a/p Muthiah Selvarajah Ex Parte The New Straits Times Press (M)
Bhd: NST obtain a SS order and advertise the service. Nirmala applied to set aside the
SS as Practice note no 1/68 was not complied with. The ocurt held that the whereabout
of N was not known. Thus, practice note did not apply. NST had made out a bona fide
application and had given good reasons for a SS order in its affidavit. (pg123 BAC)
→ Development & Commercial Bank Bhd v Astrid Jorum Saniman: The court held
that an order for substituted service could be made where defendant was outside the
jurisdiction as D left the jurisdiction to evade service provided that O62r5 has been
complied with and the terms of the order has been followed.
→ Leow Boke Chooi v Asia Motor Co Ltd: The court held that plaintiff had not
complied with the terms in the substituted order by not posting the statement of claim
on the notice board of the court house in kl. Thus, defendant’s appeal to set aside the
irregular service of the substituted service was allow. Hence the judgment plaintiff had
obtained was irregular and set aside
→ Three document must be file (i) notis permohonan (ii) affidavit sokongan (iii) affidavit
tanpa penyampaian
→ O62 R6 (1) (2)
Service on a Foreign Defendant
→ Myerson v Martin and Ng Swee Hong v Singmarine Shipyard Pte. Ltd: Service of
writ can be validly effected on a foreign defendant if he is within the local jurisdiction
of the court
→ Atmaram & Sons v Essa Industries Ltd : The court held that the service of a generally
endorse writ which was served on a Charmian of a foreign company while he was on a
temporary visit to Singapore was valid although the defendant in an application to set
aside the service of the writ after entering conditional appearance argues that the
company had no office nor agent in Singapore and the chairman had no control of the
management
→ If d resides outside Malaysia, the writ cannot be served on D unless leave of the
court is obtained to serve the notice of writ. (Form 7) : O11 r1(1)
Service out of jurisdiction

→ O11
→ Where the defendant resides in a place outside the jurisdiction of the local court, the
plaintiff must apply for leave to serve the writ notice out of jurisdiction
→ O11r1(1): Service of a notice of writ out of jurisdiction is allow with leave of court if
it falls under any of the case.
→ O11r4(2) : made by notice of application supported by an affidavit
→ O11r4(2): leave of court will not be granted unless it appear to the court that the case
is proper for service out of jurisdiction. (pg 193 yellow)
→ Re Busfield : courts exercise jurisdiction only over person within territorial limits of
their jurisdiction
→ Societe General de Paris v Dreyfus Brother : The court ought to be exceedingly
careful before it allows a writ to be served out of jurisdiction.
→ Amin Rasheed Corp v Kuwait Insurance Co: Courts have a discretion which will
only be exercised with care. Court usually wont interfere however, it will only interfere
where the exceptions apply such as excessive cost, delay and inconvenience, cannot
obtain justice
→ Leal v Dunlop Bio-Process International Ltd : The court held that serving the writ is
an irregularity of such importance that the court is unlikely to waive or disregard it. (the
general rule is that no originating process can be served on any person residing outside
the jurisdiction of the court unless the court grants leave.
→ Kampung Kuantan Rubber Co Ltd v V.K.G. Menon: an order granting leave to
issue a writ for service out of jurisdiction will be set aside if the affidavit in support of
the application does not state that the deponent believes that the plaintiff has a good
cause of action as require under O11r4.
*pg294 green
→ Mode of service : Ma Boon Lan v UOB Kay Hian Private Ltd & Another Appeal :
O11r5(3) RHC provides that a notice of writ which is to be served out of jurisdiction
need not to be served personally on the person required to be served so long as it is
served on him in accordance to law of the country the writ is served. Thus, the notice
of writ of summons to be served out of jurisdiction and the writ of summons together
with the statement of claim at the defendant registered office in Singapore through the
plaintiff agent in Singapore was in compliance with the law in Malaysia and Singapore .
Affidavit of Service
→ O62 R9
→ Form 135
→ An affidavit of service of originating process or an application must unless the
respondent appears , generally be filed before further steps are taken in the proceedings.
An affidavit of service of any documents must state by whom the document was served,
the day and the date on which it were served and where and on whom it was served
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[Chap 6] Mode, Writ and Service
Jurisprudence (Universiti Malaya)
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[6] Mode, Writ and Service

CHAPTER 6
Mode, Writ And Service
A. MODE OF COMMENCEMENT
A1 Writ or OS?
A2 Wrong Mode
B. THE WRIT
B1 Indorsements on the Writ

B2 Validity and Renewal
2.1 The Test

2.2 Renewal post limitation
2.3 The Procedure
C. SERVICE
C1 Individuals
C2 Companies
C3 Other methods of service
C4 Substituted Service
C5 Foreign Defendant within Jurisdiction
C6 Service out of Jurisdiction
______________________________________________________________
A. M ODE OF COM M ENCEM ENT
[6.01] Save for the proceedings set-out in Appendix C, the plaintiff must commence his
action by using a Writ of Summons (“W rit”) or an Originating Summons (“OS”).1
A1 W rit or OS?
[6.02] O5 r4 provides a guide in deciding whether a Writ or OS would be the appropriate

mode for cases falling outside the mandatory provisions of r2 and r3. In National Land
Finance Corporation Society Ltd v Sharidal Sdn Bhd 2 D agreed to sell its land to
P, subject to the Foreign Investments Committee’s approval. No approval was granted. P
accordingly took out an OS to declare the agreement as void. D argued that P should have
used a Writ as there were issues of fact which could only be determined by oral evidence.
1
O5 r1
2
[1983] 2 MLJ 211
Ravindran on Civil Procedure (2018) 1

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Salleh Abas CJ (Malaya) (as he then was) said:
“Counsel for [D] objected to the respondents taking the proceedings by an Originating Summons
instead of by a writ. He argued that there are matters of credibility of witnesses and issues of
facts which could only be decided by oral evidence instead of by sworn affidavits. With respect,
we disagree with the submission. The issue involved in this case is purely a matter of
construction of the sale and purchase agreement between the parties. No other evidence is
needed to determine the issue than the massive correspondence that passed between them and
their solicitors. We think that the learned judge was right in holding that the issue can be decided
on the basis of the documents exhibited in court together with the undisputed facts disclosed
and that there are no issues relevant to the case which require evidence to be called at a trial.
We would further add that there is nothing to prevent [D] from cross-examining [the deponent] if
3
they were not happy with his affidavits. In this case [D] surely had the opportunity to cross-
examine him, but they did not avail themselves of it and let this opportunity to pass by. We are
therefore of the view that the procedural objection raised by [D] had no substance.” (emphasis
added)
In Abdul Majid v Haji Abdul Razak 4 P took-out an OS for an order to administer a

trust, in respect of which he claimed he was a beneficiary. The Court foundthat there was
dispute as to the existence of the trust.5 Chang Min Tat J (as he then was) said: “This must
clearly mean .. that evidence would have to be led, and .. that an originating summons is
not a suitable medium or process for the determination of the issues raised .. the
originating summons [is] dismissed in limine.”6
A2 W rong M ode
[6.03] The effect of using the wrong mode to commence proceedings is governed by
O1A, O2 r1 and O28 r8. The scope and application of O1A has been previously
considered.7
[6.04] The scope of O2 r1 was explained by Gopal Sri Ram JCA (as he then was) in
Cheow Chew Khoon v Abdul Johari :8
Before the Rules of 1980, there was a distinction made between mere irregularities and nullities.
The former were excused and the proceedings were allowed to continue. The latter were serious
and resulted in the setting aside of the proceeding, the striking out of originating process and in
the discharge of orders .. But the position is now different under the present Rules, O 2 r 1(1) ..
3
O28 r4(4)
4
[1971] 2 MLJ 228
5
In Re Yeap Chor Ee [1954] MLJ 248, an OS was correctly used where the question was whether a deed of
settlement made by the testator constituted a good and valid trust of certain shares. In Foon Seong v Chan
San Choon [1947] MLJ 85, the OS was not a suitable process as P was asking for a decision as to whether
there was a valid trust by the deceased in his favour.
6
In Ng Wan Siew v Teoh Sin [1963] MLJ 103, Thompson J (as he then was) said: “.. when it is known
there is going to be a conflict of testimony and a necessity for taking parol evidence, the proceedings should be
commenced by writ ..”
7
See Para 1.08
8
[1995] 1 MLJ 457

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In Harkness v Bell's Asbestos & Engineering Ltd [1966] 3 ALL ER 843 Lord Denning explained
the change brought about by this Rule. He said: ‘This new rule does away with the old distinction
between nullities and irregularities. Every omission or mistake in practice or procedure is
henceforward to be regarded as an irregularity which the court can and should rectify so long as
it can do so without injustice.’”
O2 r1 was applied in Sunkyong International Inc v Malaysian Rubber

Development Corp Bhd 9 where Peh Swee Chin SCJ said:
“The second point was the failure of the local defendant to state in its affidavit supporting its
application for leave to serve out of jurisdiction that in its belief, it had a good cause of action. In
our view, this omission could not amount to anything more than a mere failure to comply with a
rule .. in regard to form and content of an affidavit, an irregularity curable by costs without any
10
need for any amendment herein, vide O 2 rr 1(1) and (2) of the Rules of the High Court 1980.”
[6.05] O28 r8 was applied in Ting Ling Kiew & Anor v Tang Eng Ironworks Co
Ltd .11 P took out an OS12 against D pursuant to s.304 of the Companies Act 1965.13
Jemuri Serjan SCJ said:
“[Counsel for D] .. submitted that the learned trial judge erred in law in dealing with the
application summarily by an originating summons .. especially in the light of the plea of fraud and
the conflicting affidavit evidence .. Apart from the various inconsistencies in the affidavits .. we
also observe other matters which have not been satisfactorily explained in the affidavits and
could be resolved if the proceedings have been begun by writ .. Unquestionably, these conflicts
in the evidence can only be properly and satisfactorily resolved if oral evidence is adduced and
witnesses cross-examined on their evidence which, however, is not possible in proceedings
begun by originating summons. To add to the uncertainty of the facts the deponents of both
affidavits of the [P and D] were not cross-examined to ascertain the veracity or otherwise of their
evidence. It would seem that both parties were contented to rest their case on their affidavits
only where such affidavits do not unequivocally bear testimony conclusively and positively to the
various allegations but are themselves open to more than one interpretation ..
9
[1992] 2 MLJ 146
10
It is, however, not a “get out of jail free” card. In Metroinvest Ansalt v Commercial Union Assurance
Co Ltd [1985] 2 All ER 318 Cumming-Bruce LJ said: “As I construe O 2 r 1, from the moment a step in
proceedings is tainted by irregularity through failure to comply with the rules, the irregular step or document
remains irregular inter partes until the matter has been brought before the court and the court has decided in
which way to exercise the jurisdiction conferred by O 2 r 1(2). Order 2 r 2 does not restrict the power of the
court in the sense of restricting its jurisdiction, and does not have the effect of suspending the irregularity until
the application under O 2 r 2 is made. The purpose and effect of O 2 r 2 is to prescribe the procedure if and
when an opposite party decides to apply so that the court on recognising the irregularity, may exercise its
powers under r 1(2) by taking the action of killing or curing the irregular proceeding.”
11
[1992] 2 MLJ 217
12
As was required by O88 r2 RHC 1980.
13
If in the course of the winding up of a company or in any proceedings against a company it appears that any
business of the company has been carried on with intent to defraud creditors of the company or creditors of
any other person or for any fraudulent purpose, the Court on the application of the liquidator or any creditor or
contributory of the company, may, if it thinks proper so to do declare that any person who was knowingly a
party to the carrying on of the business in that manner shall be personally responsible, without any limitation of
liability, for all or any of the debts or other liabilities of the company as the Court directs.

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In any case it is most inappropriate and iniquitous to decide disputed facts summarily by relying
14
simply on affidavit evidence .. this is a proper case for the application of O 28 r 8(1) .. [we]
order the proceedings to continue as if begun by writ and the parties to deliver their pleadings in
accordance with O 18 ..”
[6.06] In Cheow Chew Khoon (supra), P, the owner of a piece of land, took-out an OS
against D (the tenant of the former owner of the land) claiming vacant possession. D
argued that the OS was wrongly taken-out pursuant to O89. P denied that it was an O89
application. Gopal Sri Ram JCA (as he then was) said:
15
“The summons does not .. state any particular rule of court in its intitulement. Now, I think that
that is not only wrong but plainly embarrassing. How, might one ask, is a defendant or the court
to determine which rule of court the plaintiff is invoking unless he explicitly specifies it? If a
defendant and the court should have to conduct a close examination of the supporting affidavit in
each case in order to determine the particular jurisdiction or power that is being invoked by an
originating summons or other originating process that requires an intitulement, then a plaintiff will
be at liberty to shift from one rule to another or indeed from one statute to another as it pleases
him without any warning whatsoever to his opponent or the court. It would make a mockery of
the .. fundamental principle that a party must not take his opponent or the court by surprise .. an
originating process requiring an intitulement must state, with sufficient particularity, either in its
heading or in its body, the statute or rule of court under which the court is being moved:
otherwise it would be an embarrassing pleading and be may be liable to be struck out, unless
sooner amended .. Having taken into account all that has been said on both sides of the Bar,
having read and reread the summons and the affidavits filed by the plaintiff several times and
having given the matter my most anxious consideration, I am left with the indelible impression
that the plaintiff did in fact resort to the O 89 procedure for the purpose of obtaining vacant
possession of the premises with all due haste.”
The High Court had invoked O28 r8. Should that have been done? Gopal Sri Ram JCA
said:
“..I am entirely uncertain as to whether a judge .. should, act under r 8(1) of O 28 and direct
proceedings commenced by originating summons under O 89 to be continued as though they
were commenced by writ. There is absolutely no doubt that he may, generally speaking,
exercise the power under r 8(1) of O 28 where it appears to him that viva voce evidence is
required to decide upon factual disputes for the determination of which the originating summons
procedure is manifestly unsuitable. Equally, he may, in an appropriate case, dismiss the
summons and leave the plaintiff to commence an action by writ. Cases in which a dismissal may
be appropriate include those in which it is patent upon the face of the summons or the affidavit in
its support that the complaints raised cannot but be tried in a writ action. The plaintiff, in such a
case as that alluded to, must be taken to know ab initio that the mode he selected to commence
the proceedings was manifestly unsuitable .. Ultimately it is for the judge, in the exercise of his
pure discretion, to decide which course he prefers to adopt and he cannot be faulted for
choosing one course rather than the other ..
14
In Eng Mee Yong & Ors v V Letchumanan [1972] 2 MLJ 212, Lord Diplock said: “Their Lordships must
therefore turn to the evidence .. bearing in mind that if there appears to be any conflict of evidence which is not
on the face of it implausible, such a conflict ought not to be disposed of on affidavit evidence only. It leaves a
serious question to be tried.”
15
O7 r2(1A)

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Yet I have seen in this court .. several cases in which O 89 has been invoked on the basis of
facts that plainly fall outside its scope. Where this occurs, I cannot but reach the conclusion that
there is an abuse of the court's process which, in my judgment, is not sufficiently punished by
16
the mere conversion of the summons to a writ.”
B. THE W RIT
[6.07] Legal proceedings commence when the plaintiff issues a writ. Issuing a writ is a
two stage process – (i) the plaintiff’s solicitor files the requisite number of copies at the
Registry of the High Court and (b) the Registrar will assign a serial number to the writ and
sign, seal and date the writ.17 Following this, the writ is deemed to be issued.18
B1 Indorsem ents on the W rit
[6.08] O6 r2(1) requires certain indorsements to be made on the writ: (i) it must be
indorsed with a statement of claim19 or at the least with a concise statement of the nature
of the claim made or the relief or remedy required in the action20 and (ii) there must be an
indorsement as to capacity when the plaintiff sues or the defendant is sued in a
representative capacity.
[6.09] In Khoo Kay Hock v E J Ketting 21 P issued a writ against D for negligently
causing the death of the deceased. The writ was indorsed to be for benefit of the estate of
the deceased but it did not contain an indorsement that the plaintiff was also claiming
damages for the benefit of the dependants.22 However, the statement of claim stated that
the action was brought for the benefit of the estate as well as for benefit of the dependants.
16
This observation is purely obiter. D, who was dissatisfied with the conversion order, had appealed to the
Supreme Court. The appeal was dismissed. So the correctness of the conversion order was no longer an
issue.
17
O6 r6(3). In Jumatsah v Voon Kin Kuet [1981] 1 MLJ 254, Chong Siew Fai J (as he then was) said:
“Now what has a plaintiff to do .. when he wants to issue a writ of summons? He or his advocate will properly
prepare and sign the required copies of the writ and the praecipe, and submit them to the proper officer in the
court registry for dating, signing and sealing after paying the prescribed fee. Once these are done the plaintiff
has completed his part in the issue of a writ. What is required thereafter is some act of the court official e.g. the
affixing of the seal of the court and so on, to give the writ its validity ..”
18
In Jumatsah , P filed a writ on 2.11.1977 (within the period of limitation). The writ that was issued bore the
date 14.11.1997 - which was the date the writ was sealed. Limitation had expired on 6.11.1997. The court held
that the writ should be dated on the day the writ is filed and ordered that the date 14.11.1997 appearing in the
writ be amended to read 2.11.1997.
19
This is referred to as a Specifically Indorsed Writ
20
A general indorsement is meant to bring to the attention of D the precise claim that is being made against
him (without discussing particulars). The claim is further particularised by a subsequent delivery of a proper
statement of claim.
21
[1978] 2 MLJ 57
22
A dependency claim is made pursuant to s 7 of the Civil Law Act 1956 and the he procedure is set-out in
s.7(7).

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Raja Azlan Shah FJ (as he then was) said:
“If the writ contains technical defects amounting to an irregularity, the subsequent delivery of a
proper statement of claim cures the defects provided they do not prejudice the defendant’s
rights, eg depriving him of the benefit of a period of limitation … As long as the action is
commenced or in other words the writ is issued within the prescribed period this court is not
concerned with good or bad indorsements.”
The Federal Court was not so forgiving in Mat Shah Bin Mohamed v Foo Say
Meng .23 P sued D, who was the administrator of the estate of the deceased but D’s
representative capacity was not indorsed on the writ. Wan Suleiman FJ said:
“[P] brought [D] to court. It is for them to state clearly in what capacity they were suing [D] .. It is
for them to say that they are suing [D] as administrator and not in his personal capacity .. The
learned Judge considered that the failure to make the estate of [the deceased] a party was fatal
to [P’s] claim. This alone was enough to dispose of their claim.”
B2 Validity and Renewal
[6.10] Once a writ is issued, it is valid for 6 months24 from the date of issue and it must be
served within this period.25 O6 r7(2) deals with the procedure and circumstances whereby
the Court may extend the validity of the writ. This is necessary when P is unable to serve
the writ within its initial 6 month validity period.
2.1 The Test
[6.11] In Lloyd Triestino Societa v Chocolate Products (Malaysia) Sdn Bhd 26

the Federal Court adopted judgment of Goddard LJ (as he then was) in Battersby & Ors
v Anglo-American Oil Co. Ltd. & Ors 27:
“.. the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a plaintiff
who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on
an application which is necessarily made ex parte. In every case care should be taken to see
that the renewal will not prejudice any right of defence then existing, and in any case it should
only be granted where the court is satisfied that good reason appear to excuse the delay in
service, as, indeed, is laid down in the order. The best reason, of course, would be that the
defendant has been avoiding service, or that his address is unknown, and there may well be
others, but ordinarily it is not good reason that the plaintiff desires to hold up the proceedings
while some other case is tried or to await some future development.” (emphasis added)
23
[1984] 1 MLJ 237
24
A writ expires a day earlier from the date of its issue – Trow v Ind Coope (west Midlands ) [1967] 2 QB
899. So, a writ issued on 14.10.2011 expires on 13.4.2012 and not on 14.4.2011. This is an exception to the
normal rule of computation in O3 r2 as it includes the date of the event.
25
O6 r7
26
[1978] 2 MLJ 27
27
[1944] 1 KB 23 CA

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[6.12] There are a few interesting examples of how the courts have exercised its
discretion.
In New Ching Kee v Lim Ser Hock 28 P was injured in a road accident 18.11.1970. His
solicitors issued a writ on 7.8.1973 but did not serve it. On 31.7.1974, P obtained an order
renewing the writ a further 6 months. The writ was eventually served on D on 3.1.1975. D
then applied to the court to set aside that service and the renewal of the writ. P’s reasons
for not serving the writ were that (i) the writ was filed to preserve P’s claim as limitation
would have set in on 18.11.197329 (ii) his solicitors had entered into negotiation with D’s
insurers with a view to settling P’s claim and (iii) P’s solicitors had misplaced the files when
they moved office.
Chua J (as he then was), after holding that (i) the fact that negotiations for a settlement
were in progress did not afford a sufficient reason for not serving the writ nor did it afford
sufficient reason for the court to exercise its discretion to renew the writ, (ii) it was the duty
of the P’s solicitors to serve the writ in time even though negotiations were in progress30
and (iii) the temporary loss of the files by P’s solicitors was not sufficient or good reason as
they were recovered before the expiry of the writ and service could have been attempted
then, said:
“ .. the plaintiff’s solicitors [did not act] reasonably in this matter. It is the duty of a plaintiff who
issues a writ to serve it promptly. I am afraid the plaintiff’s solicitors have been negligent in not
serving the writ in time and the plaintiff has a remedy against them.”
A different decision was reached in Kun Kay Hong v Tan Teo Haut .31 This was, yet
again, another running down matter which occurred on 26.11.1978. P issued his writ on
25.11.1981 (which was the last day of the 3 year limitation period). P informed D’s insurers
of the issue of the writ. On 30.12.1981, the insurers solicitors asked P’s solicitors to
suspend the service of the writ pending their investigations. There was no further progress
for the next 8 months. On 18.11.1982, P's solicitors asked D’s solicitors whether they had
instructions to accept service of the writ. On 24.9.1982 D’s solicitors replied and said that
they were still in the process of investigations and again requested P’s solicitors to ‘stay
(their) hands’ until the same was completed. On 12.10.1982, D’s solicitors wrote to P’s
solicitors asking for the amount which the P would accept by way of settlement out of
court. P’s solicitors did not indicate the amount. Thereafter, P's solicitors wrote to D’s
solicitors on 25.4.1983, again asking if they had instructions to accept service of the writ.
D’s solicitors were silent. P then filed an application on 12.5.1983 to extend the validity of
the writ.
28
[1975] 2 MLJ 183
29
This is referred to as a Protective Writ
30
Easy v Universal Anchorage Co [1974] 2 All ER 1105
31
[1985] 1 MLJ 404

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Lai Kew Chai J (as he then was) in dismissing the application, said:
“.. there is a distinction between mere negotiations on the one hand and the situation in which a
defendant or his representative has stated that there is no need to serve the writ pending
negotiations for a settlement. The mere fact that negotiations for a settlement were in progress
has been held as not amounting to a good reason to extend the validity of a writ .. On the other
hand, it has been held that it was a sufficient reason that the defendant’s insurers have stated
32
that there was no need to serve the writ pending negotiations for a settlement.” (emphasis
added)
2.2 Renewal post lim itation
[6.13] Is there a more stringent test if P makes an application to renew after limitation has
set in? There was a time when it was thought there was. That changed in Jones v
Jones 33 where the Court of Appeal explained that the test was the same.34 This was
confirmed by the House of Lords in Kleinworth Benson Ltd v Barbrak Ltd 35 where
Lord Brandon said:
“I regard [Jones v Jones] as a significant milestone on the road of authority with regard to cases
of this kind and I do so for two reasons. First, it strengthens the view already adumbrated in
earlier cases that what is required to justify extension is "good cause" or "good reason" rather
than the more stringent "exceptional circumstances." Secondly, it introduces for the first time as
a relevant consideration the balance of hardship to the plaintiff if extension is refused and
hardship to the defendant if it is allowed.”
2.3 The Procedure
[6.14] O6 r7(2A) introduces a stringent procedural requirement that is prefaced by the

word “must”.36 The position prior to r7(2A) is found in Arab Malaysian Credit v Tan
Seang Meng .37
32
In Chittenden v Doe [1970] 1 WLR 1618, Ungoed Thomas J (as he then was) said: “It seems to me quite
immaterial whether the delay resulted from the defendant asking the plaintiff to withhold service or from his
agreeing with the plaintiff that service should be withheld. In each case, the defendant was party to service
being withheld and without his being party to the delay the originating process was liable to be duly served.”
33
[1970] 2 QB 576
34
Sachs LJ said: “Where it is desired to deprive a defendant of his ability to plead a Statute of Limitations,
naturally the good cause to be put forward must be strong. It is quite impossible to define the circumstances
which can constitute 'good cause.' It is sufficient in the present case to say that here we find a most unusual
set of circumstances. Probably they are and will remain unique.”
35
[1987] 2 All ER 289
36
The application is made by an ex parte summons. This imposes a duty on P to make a full and frank
disclosure of material facts. The Court of Appeal made this clear in Castle Inn Sdn Bhd v Bumiputra-
Commerce Bank Bhd [2009] 2 CLJ 445, relying on Baly v Barrett [1988] N1 368 where Lord Brandon of
Oakbrook said: “.. it is a well established general rule of law that, when a party makes an ex parte application
to the court of any kind, he must make a full and frank disclosure of all relevant matters. This general rule
applies in particular to an ex parte application for extension of the validity of a writ ..” and on The King v The
Special Commissioners for The Purposes of the Income Tax Acts for The District of
Kensington, ex parte Princess Edmond De Polignac [1917] 1 KB 486 where Warrington CJ held as
perfectly well settled that a person who makes an ex parte application to the court is under an obligation to the

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On 22.8.1985, P issued a writ against D and on 8.1.1986, P obtained an order for

substituted service (SS),38 which was effected on 13.1.1986. No appearance having been
entered, P entered judgment in default (JID) against D on 20.5.1986. Thereafter P took out
bankruptcy proceedings. On 21.8.1992, D filed an application to have the JID set aside.39
That application was allowed on 7.6.1993. The judge found the SS order to be fatally
flawed. So, he set aside the JID ex debito justitiae. This meant that the service of the writ
was bad and that the writ had never been served at all.
P could not now serve the writ as it had expired. P was also barred from applying for more
than one order of extension at any given time. P met these difficulties by a simple yet
ingenious method. It made 8 separate and distinct applications, by each of which it sought
for and obtained a 12 month extension40. The total of all these extensions had the effect of
bringing back to life the expired writ. D, on being served with the extended writ, applied to
set aside the several orders extending the writ. The Court of Appeal held that the High
Court had the jurisdiction to make the orders it did. This is how Gopal Sri Ram JCA (as he
then was) put it:
“.. we are satisfied that the High Court had ample jurisdiction to grant .. the several extensions
sought by it of its writ. Quite apart from O 6 r 7, there is wide power under O 3 r 5 conferred
upon the High Court to extend time. Even the restriction of granting more than one extension of
12 months expressed in O 6 r 7 may, in appropriate cases, be overcome by having resort to O
92 r 4. Further .. reference has been made to the important principle that a rule of court should
not be construed so as to produce unfairness or a manifest injustice. … Surely, this principle
may be invoked to overcome any technical obstacles in the way of achieving substantial justice
in a case where a pedantic approach to a rule of court will result in injustice.”
[6.15] Has the position changed with r7(2A)? In Captain Hamzah 41 the Federal Court
held that the requirements of r7(2A) were mandatory. Zaki Tun Azmi CJ said:
“The word "must" appearing in O. 6 r. 7(2A) is not usually used in Malaysian legislations.
Normally the word used is "shall". So in this case, when the word "must" is used, the intention is
to fully ensure that it is complied with and no discretion is to be given as far as the compliance
with the prerequisites is concerned .. The words "Subject to para. (2A)" in .. O. 6 r. 7(2) further
strengthens the argument that before the court could exercise its discretion to renew a writ,
para. (2A) must be satisfied .. When plaintiffs apply to extend the validity of writs, courts should
examine closely the affidavits filed in support of applications for extensions. Before granting an
extension, courts must be satisfied that serious efforts had been made to serve. A simple and
plain statement that efforts had been made to serve cannot be a sufficient ground. The
affidavits must provide detailed facts as to when, where and how attempts to serve were made.
court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make
that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be
deprived of any advantage he may have already obtained by reason of the order which has thus wrongly been
obtained by him.
37
[1995] 1 MLJ 525
38
O62 r5
39
Is such a delay permissible? See O42 r13
40
As was the position prior to 21.9.2000.
41
See Para 1.09

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Otherwise O. 6 r. 7 (2A) RHC will become a dead letter. The object of the rule will be defeated ..
Having said that, I am fully aware of defendants who avoid service. There must be evidence to
support this claim. If serious efforts are made, I am sure defendants are traceable. In
appropriate cases, substituted service may be ordered if they are not traceable. Accordingly, I
have no hesitation in answering the first question posed in the positive, that is to say, the
requirements of O. 6 r. 7(2A) are mandatory prerequisites.” (emphasis added)
The Federal Court then held that O1A could not be invoked to cure the failure to comply
with O6 r7(2A). Zaki Tun Azmi CJ, after holding that the phrase ‘technical non-compliance’
only refers to non-compliance with a rule which is “not fundamental or mandatory in
nature”, said:
“..a failure to renew a writ for service as a breach of a fundamental kind. The answer to the first
question also shows that O. 6 r. 7(2)(2A) RHC which deals with the service of a writ is
mandatory. It follows that O. 1A RHC cannot be invoked to cure the failure to comply with the
prerequisites O. 6 r. 7(2A) RHC.”
[6.16] In Yap Seng Hock v Southern Finance Bhd 42 P issued a writ dated
19.9.2003 against D and obtained a JID of Appearance on 25.3.2004. D became aware of
the JID when a bankruptcy notice was served on him on 21.1.2010. He then applied to set-
aside the JID on the basis that the service of the writ was defective. On 29.6.2012, the
Court of Appeal agreed and remitted the matter back to the High Court for case
management. D then applied to strike-out the writ on the basis that it had expired. The
Court of Appeal agreed and struck-out the writ. David Wong JCA said:
“.. when the [case] was remitted back to the High Court for case management [the] writ of
summons had undoubtedly expired where there had not been any extension applied for .. Just
because the Court of Appeal remitted the suit back for case management, there cannot be any
assumption that the writ of summons which had expired need not to be renewed .. what we have
here is a nullity and that simply means is that 'there is no valid document in Court' until the writ of
summons has been renewed.”
42
[2015] 2 MLJ 675

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C. SERVICE
[6.17] Upon being issued, the Writ or OS must be served on the defendant.43 The
methods of service are prescribed by the Rules and written law.44
C1 Individuals
[6.18] The general rule is that an individual must be served personally.45 The exceptions
are found in O10 r1(1), O10 r1(2), O10 r1(3)46, O10 r3, O10 r4, O11 r5(3) and O62 r 5.
[6.19] Service by AR Registered post was explained in Pengkalan Concrete Sdn Bhd
v Chow Mooi .47 P sent the writ to D by AR registered post. The AR card was returned
with the name 'Yanti' inscribed on it. The court held that all that P needed to prove was:
(i) a writ was sent by AR registered post and (ii) the address was the last known address.
Nothing more was required of P. This is how Suriyadi J (as he then was) explained the
position:
“.. the recipient being 'Yanti' did not vitiate that service .. if the plaintiff had direct and cogent
evidence of that writ having been received by the intended person, that was a plus factor for the
48
former, otherwise s 12 of the Interpretation Acts 1948 and 1967 would immediately come into
play when invoked .. Therefore, unless rebutted by the defendants, service thus must be
deemed to have taken place. As it were, I found no rebuttal evidence before me.”
43
In Kekatong Sdn Bhd v Bank Bumiputra (M) Bhd [1998] 2 MLJ 440, Gopal Sri Ram JCA (as then
was) said: “It is axiomatic that the object of service of process ‘is to bring the proceedings to the notice of the
person being served .. The procedure of “constructive service” is unknown [and] inapplicable in the Federated
Malay States ..” It is an example of the fundamental rule of natural justice expressed in the maxim audi alteram
partem.
44
In PT Pelajaran Nasional Indonesia v Joo Seang & Co Ltd [1958] MLJ 113, Rigby J held that
“where the law provides a particular method or form of procedure for effecting service .. then there must be
strict compliance with those provisions, and the Court will set aside a judgment obtained by default where the
requirements have not been complied with.”
45
O10 r1(1).The method of affecting personal service is explained in O62 r3 - putting a copy through a crevice
of the door of the room in which D is and telling him that it is a copy of the writ, is not sufficient (Christmas v
Eicke (1848) 6 D&L156); if D refuses to take the copy it is not necessary to leave it in his actual corporeal
possession, but it is sufficient to inform him of its nature and throw it down in his presence (Thomson v
Pheney (1832) 1 Dowl 441) - the copy of the writ must be left with, and not merely shown to D (Worley v
Glover (1730) 2 Stra 877) even though he refuses to take it; it is not sufficient to hand D the copy writ
enclosed in an envelope without informing him that it is a copy writ (Banque Russe v Clarke [1894] WN
203); service on the wife, or a known agent of D, is not good service (Frith v Donegal (Lord) (1834) 2 Dowl
527) but service on the wife or agent at the request of D would be sufficient (Montgomery & Co. v
Liebenthal & Co [1898] 1 QB 487).
46
When D enters appearance gratis, he is taken to have waived personal service: Pike v Nairn & Co Ltd
[1960] 2 All ER 184.
47
[2003] 3 MLJ 67. This decision was approved by the Court of Appeal in Yap Ke Huat v Pembangunan
Warisan Murni Sejahtera Sdn Bhd [2008] 5 MLJ 112.
48
“Where a written law authorizes 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.”

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[6.20] O65 r2 was considered by the Court of Appeal in Commerzbank (South East
Asia Ltd) v Tow Kong Liang .49 P issued a writ in Singapore and obtained leave to
serve the writ out of jurisdiction on D. The writ was served on D in Malaysia by an agent.
Clearly the service was not in compliance with O65 r2. The Court of Appeal held that this
provision was not exclusive and service could be effected in Malaysia pursuant the other
methods set-out in the Rules. Heliliah JCA (as she then was) said:
“.. in the case of service of the foreign process emanating from a court or tribunal of a non-
convention country, where no letter of request is issued by such court or tribunal, the service
should be effected by personal service on the defendant in accordance with O. 10 r. 1, read
with O. 62 .. Although these rules by their express terms apply only to an originating process
issued locally, we see no reason in principle why that mode of service prescribed for service of
an originating process issued in Singapore cannot and should not be followed and adopted in
the absence of any rule of procedure to the contrary .. Counsel for [D] seeks to impress upon us
that such a conclusion would effectively render O. 65 r. 2 nugatory, as foreign litigants would
prefer to effect the service of foreign process through private agents instructed by them .. Order
65 r. 2 therefore remains a facilitative provision which sets out an official channel for service of
foreign process .. if the foreign jurisdiction requests for such service to be effected .. The total
50
effect is that .. Order 65 is not exclusive.”
C2 Com panies
[6.21] Service on a company must be effected pursuant to the methods in O62 r4. In
Yew Leek Enterprise v Foong Engineering Sdn Bhd 51 service of the writ was
effected by registered post to the principal office of the company. VC George J (as he then
was) said:
“Service of the writ can be effected at an office of a company which may not be its registered
office. No doubt a prudent solicitor will not take the risk of attempting to serve a writ at what he
understands to be the principal office of the defendant corporation because whether it is the
principal office or not could be the subject of dispute. But where in fact service is effected in the
manner prescribed by the rule at the office and if there be more than one office at the principal
office of the corporation, then such service is good service even though the principal office is
52
not the registered office.”
49
[2011] 3 CLJ 127
50
The new r2A gives effect to this decision. The position is similar in Singapore – see Fortune Hong Kong
Trading v Cosco Feoso (Singapore) [2000] 2 SLR 717.
51
[1990] 2 MLJ 62
52
In Lee Boon Tatt & Ors v Takhdir Trading Sdn Bhd [1984] 2 MLJ 341, the writ was served by AR
registered post to D at No 39, Chulia Street, Penang (it’s business offices). The registered office was at No 31,
China Street Ghaut, Penang. Dzaiddin J (as he then was) said: “[r4(1)(b)] 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 .. [here] the principal place of business of the defendants at the material time was No 39,
Chulia Street, Penang and the service of the Writ by AR Registered post was good and effective service.”

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C3 Other m ethods of service
[6.22] Service on other entities are as follows:
Government O73 r3 and s.26 Government Proceedings Act 195653
Persons under a Disability O76 r14
Partners O77 r3
Societies s 9(c) Societies Act 196654
C4 Substituted Service
[6.22] In Re S Nirmala 55 VC George J (as he then was) explained Practice Note No 1 of

1968:
(a) where the whereabouts of the person to be served is known, compliance of Practice
Note No 1 of 1968 will ensure that the application for substituted service is grounded
on other than a mere statement that the person to be served is evading service;
(b) the Practice Note does not have the effect of prohibiting other procedures that bring
about the same result;
(c) where the whereabouts of D is not known, the Practice Note has no application in
respect of an application for substituted service;
(d) however, again it is not sufficient that the application for substituted service is
grounded on a mere statement that D is evading service; and
(e) the affidavit in support of the application must set out (i) facts that demonstrate the
bona fides of the application which could be by a statement of the circumstances that
had resulted in the whereabouts of D not being known; (ii) the belief and the reason
for such belief that D is within or outside the jurisdiction of the court; and (iii)
proposals for the manner in which the substituted service is to be effected having in
mind that the intention is that D will thereby probably get to hear of the proceedings.
53
“.. all documents required to be served on the Government .. in the case of proceedings by or against the
Federal Government, on the Attorney General or such other officer as may be designated in that behalf, either
generally or specially, by the Attorney General by notification in the Gazette, and, in the case of proceedings
by or against the Government of a State, on the State Secretary..”
54
See Chap 4 Part 8
55
[1988] 2 MLJ 616

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[6.23] In Leow Boke Chooi v Asia Motor Company Ltd 56 P did not comply strictly
with the terms of the SS Order. Gill J (as he then was) held that “.. the effect of such non–
compliance with the order was that there had been no good and sufficient service on the
defendant, so that the plaintiffs had obtained judgment against the defendant irregularly.”
C5 Foreign Defendant within Jurisdiction
[6.24] Service on a foreign D, who is within jurisdiction, may be effected in the usual way.
This is clear from Atmaram v Essa Industries Ltd .57 P, a Singaporean company
issued a writ against D, a company incorporated in Pakistan. The writ was served on the
chairman of D, at his hotel, while he was on a temporary visit to Singapore. D applied to
set aside the service on the ground that (i) the chairman was not Ds agent (ii) he had no
authority to accept service on D’s behalf (iii) he was in Singapore on a temporary visit (iv)
D had neither an office nor an agent in Singapore (v) D’s entire business was conducted
by their office in Karachi (vi) he had neither control nor management of D’s business in
Singapore and (vi) he held no power of attorney on behalf of D. Chua J (as he then was)
dismissed the application and held that service was properly effected.
C6 Service out of Jurisdiction
[6.25] In order to serve a writ of jurisdiction, the plaintiff must first obtain the leave of
court pursuant to O11, whcih confers extra-territorial jurisdiction on the court.58 The
application of O11 was explained by the House of Lords in The Al Wahab where the
House of Lords held that to achieve its object of pursuing its claim against the insurers in
the English court P had two obstacles to overcome i.e P had to show that:
(i) O11 conferred jurisdiction on the English court in this matter; and
(ii) this was a “proper case” for leave to be granted, within the meaning of r4(2).
[6.26] If the plaintiff successfully obtains leave under O11, he must then serve the notice
of the writ and the writ by the methods set-out in O11 rr5 & 6. In Ma Boon Lan v Uob
Kay Hian Private Ltd 59 P, using an agent, served the notice of the writ and the writ on D
at its registered address in Singapore.60 D argued that this service was defective as it did
not comply with O11 r5(8). The Court of Appeal held that the word “may” meant that the
provision was permissive and not obligatory. P’s service was valid pursuant to r5(3) and
r6(2).
Ravindran Shanmuganathan ∗
56
[1967] 2 MLJ 109
57
[1969] 1 MLJ 44
58
Only in cases falling outside s 23 CJA 1964. For cases that come within s 23, O11 becomes a mere
procedural formality – see Para 3.15.
59
[2013] 5 CLJ 740
60
As is permitted by s. 387 of the Singapore Companies Act which provides that a document may be served
on a company by leaving it at or sending it by registered post to the registered office of the company.
∗
The views expressed herein are my own, as are all the mistakes. I welcome feedback and may be contacted
at ravi@sreeneyoung.com

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PRACTICE NOTE NO. 1 OF 1968
The practice governing applications for, substituted service in the High Court In Malaya
shall follow that in the High Court in England, as provided for in order 10 rule 2 of the
Rules of the Supreme Court 1957. The practice, taken from the 1957 White Book, page
88, is here reproduced.
1. Two calls should be made
2. The calls should be made at the defendant's residence, permanent or temporary, if

known; other wise, or if the claim relates to the defendant's business, at his business
address. If the defendant has left the address given on the writ, this shun Id be stated in
the affidavit. if a copy of the document to be served is left, it must be in a sealed envelope
addressed to the defendant.
3. The calls should be made on weekdays and at reasonable hours.
4. Each call should be on a separate day.
5. The second call should be made by appointment by letter sent to the defendant by
ordinary prepaid letter post, giving not less than two clear days' notice, enclosing . copy of
the document to be served, and offering an opportunity of making a different appointment.
6. On keeping the appointment the process server should inquire whether the defendant
has received the letter of appointment with the copy document, and if it is stated that the
defendant, is away, inquiry should be made whether ., not letters ace being or have been
forwarded to an address within the jurisdiction ; the object is to show that the defendant
has received communications sent to him.
7. The affidavit in support of the application should deal with all the forego rig requirements
and should further state whether the letter of appointment has been returned or not, and
any answer received should be exhibited. A copy of the document to be served should
accompany the affidavit.
No prescribed form is necessary for the tenor of appointment
The letter of appointment should ordinarily be sent by the solicitor for the plaintiff after
ascertaining from the process servers in the High Court and other Courts their available
times and dates from the second call. The facts regarding the letter of appointment should
be stated in the affidavit in support.
Compliance with the above practice will ensure that the application for substituted service
will be grounded on other than a mere statement that the defendant is evading service.
Such a statement should never be sufficient to apply for an order for substituted service. If
the above practice is followed, as required by the Rules of the Supreme Court 1957, the
effects which have been made to find the defendant and the reasons for believing that he

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is keeping out of the way to avoid service will be before the Senior Assistant
Registrar/Assistant Registrar before the order is made.

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Service of OS
Civil Procedure I (Universiti Utara Malaysia)

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SERVICE OF OS
1. O 10, R 1: OS shall be served personally or by prepaid AR registered post addressed to his last known
address, first attempt must be made not later than one month from date of issue of OS. Where the
defendant’s solicitor accepts the OS on behalf of the defendant, the OS shall be deemed to have been
duly served.
2. O. 10, R2: OS to be served on agent instead of principal, satisfied the three requirements.
3. O. 10, R3: OS in pursuance of contract containing term to the effect that the court shall have jurisdiction
to hear, the OS shall be deemed to have been duly served out of jurisdiction only if leave has been
granted under O 11 R1/2.
4. O. 10, R4: for OS endorsed with claim for possession of immovable property, the court may, if satisfied
on an ex parte application that no person appears to be in possession of immovable property and that
service could not have been effected any defendant, authorize service to be effected by affixing copy of
OS to some conspicuous part of the property, and shall be treated as good service.
5. O10 R5: all abovementioned applies to OS with necessary modifications except R1(3) and R1(4).
6. O 62: contains service of all documents or all forms of originating process in details.
Personal Service
1. O 10 R1(1):
i. OS shall be served to defendant personally,
ii. to defendant’s last known address,
iii. on each defendant.
iv. First attempt to be within 1 month from date of issue of OS.
2. Personally:
i. By hand
ii. By AR registered post
3. By hand:
- Form 2: the wording of endorsement did not require acknowledgement.
- Endorsement as to service: if it is served by office boy, he shall be pointed out by the neighbor or
anyone else, that he was the defendant.
- The receiver refused to sign or accept: once the requirement (point out) is satisfied, the server can
leave a copy, otherwise other types of service is required.
4. O 62 R3: personal service is effected by leaving a copy of document with the person and by request
showing him the sealed copy and office copy.
5. Arab-Malaysian Merchant Bank Bhd v Dominance Resources Sdn Bhd & Anor
F: plaintiff claimed against defendant for credit facilities granted. After the service of writ, the defendant
applied for leave to enter conditional appearance to enable them to apply to set aside the writ as well
as service of the writ on the grounds that the writ was invalid, bad or ineffective and ought to be set
aside for irregularity. One of the issues was whether a defendant must be served with a sealed copy of
the writ.
H: dismissed defendant’s applications. there is no need to serve a sealed copy of writ on a defendant.
The rules and practice indicate the opposite of serving a sealed copy because when service of writ is
effected by way of personal service on a defendant, O 62R3(a) RHC requires that if a defendant so
requests, he must be shown the sealed copy of the writ. If the defendant is to be served with a sealed
copy, there would be no need for him to be shown, on request, the sealed copy. On issue of writ, only
two copies are sealed; one of which is retained by the registry as original and the other is returned to
the plaintiff. If there were more than one defendant to be served with sealed copy, it would be
impossible. / the rules did not require acknowledgement from the defendant.
6. By AR registered post:
- With a card returned after received by the receiver. / advice of Receipt (costs RM2.20)
- By postman
7. AR registered post
i. Cover letter / letter of service
ii. Copy of writ/ OS
iii. AR card (yellow)

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iv. Registered post slip (red sticker)

v. Additional text affixed
8. By postman
- Instead leaving copy in the box, postman will ask to sign AR card as an acknowledgement of
receipt
- Disadvantages: opportunity to refuse. / someone else signed the card
- In case AR card was not signed/ refused to sign, postman will need to take the document back and
keep in postal office. The postal authority will notify the recipient to collect within one week
(normally). If the recipient did not come and collect, the postal authority will return it to the plaintiff’s
solicitor/ sender. The plaintiff will then need to apply for substituted service.
9. Pengkalen Concrete Sdn Bhd v Chow Mooi (Guarantor of Kin Hup Seng Construction Sdn Bhd)
& Anor
F: defendants stood as guarantors in favor of plaintiff for a sum of money owed by a company KHSC.
The plaintiff sued the defendants when KHSC failed to repay the loan. The registrar entered JID as
defendants were absent. The defendant applied to set aside JID but failed. Defendant appeal to judge
in chamber. The defendant admitted that the address for service was correct but contended that there
was no effective service because the AR card had been returned with name of ‘Yanti’ which was not
any of their names. Even though they are guarantors, service must be personal as anything less was
bad service.
H: dismissed the defendant’s appeal. Nothing indicated in O 10 R1(1) RHC that the plaintiff must
evidentially prove that if the writ was sent by AD registered post, the named person in the writ must be
the very person who had received it. In this case, all the prerequisites were fulfilled: a writ was sent;
there was proof of sending; it was sent by AR registered post; address sent was the last known
address. The recipient was ‘Yanti’ did not vitiate that service. / As long as it was delivered to correct
address, someone else may sign it.
10. United Merchant Finance Bhd v Magpie Resources Sdn Bhd
F: the petitioner finance company filed winding-up petition against the respondent on ground that the
respondent was unable to pay a judgement debt. One of the issues was whether the respondent failed
to comply with Section 218 of Companies Act 1965 by serving the notice by AR registered post to the
respondent’s registered office.
H: the service of notice by AR registered post to repondent’s registered office was in fact actual delivery
and thus should be accepted as good service of the said notice.
11. O 10 R 3: service pursuant to a contract
- Shall be effected by registered post
- Deemed delivered after 3 working days of posting.
- Conclusive proof of delivery: red slip/ Pos Daftar slip
- Pursuant to O 11 R1/R2.
Service on the Solicitors
1. O 10 R1(2): where a defendant’s solicitor endorsed on the OS that he accepts the service on behalf of
the defendant, the OS shall be deemed to have been duly served.
2. When party has their own solicitors in proceedings, the service must be on solicitors, personal service
had been dispensed.
Service on agent of overseas principal
1. O 10 R2: serve on agent instead of principal, if court is satisfied that
i. Entered into contract within jurisdiction with or though agent having registered place of business
with the jurisdiction
ii. Principal was at time of contract entered and is at time of application neither individual nor body
corporate; and
iii. At time of application, either agent’s authority has not been determined or he is still in business
relations with his principal.
2. Eg: For overseas company entered into contract through agent in Malaysia, the writ may serve on the
agent.
Service under disability

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1. O 76 R14: service of certain documents on person under disability

i. For minor having no father or guardian, shall serve on the person with whom he resides or in
whose care he is;
ii. For patient, on the person authorized under the Act to conduct in the name of the patient or on
behalf of the proceedings, if there is no such person, on the person with whom he resides or in
whose care he is.
- Serving on such persons shall de deemed to have been duly served on the person under disability.
Service on partners
1. O 77 R 3(1): where partners are sued in the name of the firm, except that the partnership been
dissolved before action begun, the writ may be served
i. On any one or more of partners; or
ii. At the principal place of business of partnership, on any person having de facto control or
management of the business at the time of service.
2. Eg: if anyone overseas, serve on any one is sufficient
3. OCBC Bank (M) Bhd & Anor v Livision Sdn Bhd & Ors- sued as guarantor, so must be served
personally.
F: the plaintiff bank granted loan facilities to the first defendant while the other defendants were
guarantors. The defendant defaulted and the plaintiff commenced action against all defendants. The
plaintiff attempted to serve the writ on all defendants but unsuccessful. Subsequently, the plaintiff
served the writ on all defendants at an address given by the second defendant. JID entered against 4 th
defendant. 4th D applied for service of writ to be set aside as it was not regularly obtained and that JID
to be set aside as he was outside jurisdiction and not evading service. Issue was whether the service of
writ was regular.
H: since the 4th D has been sued as guarantor, the writ must be personally served on him. There was
no evidence that the 2nd D had represented that he was authorized by the 4th D to accept service of the
writ on his behalf. Hence, the purported service of the writ was irregular and bad in law. He was not
evading service as he at all material time was outside the jurisdiction of Malaysia.
4. Kenneth Allison Ltd & ORs v AE Limehouse & Co
F: the plaintiff instructed a process server to effect personal service of writ on the defendants. The
senior partner’s personal assistants in defendant office consulted one of the partners and told the
process server that she was authorized to accept the writ, and received from him a sealed copy of writ
and a form of acknowledgement of service. Defendant argued that no personal service pursuant to O
10 R1(1) had been effected. Issue was whether the service is valid.
H: service of writ was valid. One party knowing that the other party wished to service process upon him,
requested or authorized the other to do so in a particular way which was outside the rules and the other
did so, was valid and legally effective as there was nothing in the rules restricting consensual service of
writ. The partner has expressly authorized the acceptance of service.
Service on Corporation
1. O 62 R 4: service on corporation, writ must be served:
i. By leaving a copy at registered office of corporation
ii. By sending a copy by registered post addressed to the corporation at office
iii. By handing a copy to secretary of director or any officer of the corporation
iv. In case of foreign company, by handing / sending a copy to person authorized to accept service
of process on behalf of foreign company.
2. Hong Leong Finance Bhd v Pasir Permata Sdn Bhd & Ors
F: 3rd defendant applied to set aside the JID of appearance against him. The application was made 1.5
year after judgement was entered when bankruptcy notice served on him. The process server went to
3rd defendant office to serve the writ. The 3rd D refused to see the process server or to acknowledge the
receipt of writ. The writ was served on the 3 rd D secretary (being left on secretary table). Issue was
whether the service is regular.
H: there was good personal service of writ on 3rd D. The plaintiff had brought the writ to the knowledge
and attention of the 3rd D. it was not necessary for the process server to hand the writ personally to the
3rd D. The purpose of the writ was to make defendant to be aware of the proceeding commence against
him.

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Service against the government

1. O 73 R 3(2): proceedings are by or against the government, service must be effected
i. In case of proceedings by or against the federal government, serve on Attorney General or
other officer designated on behalf by the AG.
ii. In case of proceedings by or against the Government of State, serve on State Secretary of such
State.
Substituted Service
1. Applies after personal service failed
2. O 62 R 5(1): when personal service is required but it appears to be impracticable to serve personally,
the court may make order in Form 133 (Appendix A) for substituted service.
3. Practice Note / Direction- No. 1 1968: satisfy the court for substituted service:
i. There are reasons to believe that the defendant evades or refused to sign; or other reason
ii. Plaintiff shows that the service was impracticable.
4. O 62 R 5(2): application for an order for substituted service shall be made by notice of application
supported by affidavit (affidavit of non-service and affidavit on application for substituted service) in
Form 134 (notice of application)
5. O 62 R 5(3): court may direct to bring the document of substituted service to the notice of the person to
be served:
i. Post or paste with substituted service order at last known address
ii. Paste at court notice board
iii. Advertise or publish at newspaper locally in language known to the defendant.
File an affidavit of service (to prove service of court documents)
1. O 62 R 9: affidavit of service, in Form 135, shall state
i. By whom the document was served
ii. The day of the week
iii. Date on which it was served
iv. Where it was served
v. How it was served
2. Only applies for service of court documents
3. BSN Commercial Bank (M) Bhd v KDG Holdings (M) Sdn Bhd & Ors
F: in this appeal by the plaintiffs, the defendants raised issues resisting summary judgement. One of
the issue was with regard to the service of letter of demand. The defendants relied on O 62 R 9 and
contended that proof of service of a document must be by affidavit of the person who served the
document.
H: order 62 applies only to court documents, hence reliance on O 62 R 9 could not avail the defendants
for the contention that posting of the notice of demand must be proved by the affidavit of the person
who actually did the posting. Furthermore, there was no denial by affidavits by the defendants of receipt
of the letter of demand; thus, they must be taken to have received them and there could be no place in
the summary judgement proceedings for the question of actual proof of their posting. / letter of demand
is not a court document.

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Service of OS

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SERVICE OF OS
1. O 10, R 1: OS shall be served personally or by prepaid AR registered post addressed to his last known
address, first attempt must be made not later than one month from date of issue of OS. Where the
defendant’s solicitor accepts the OS on behalf of the defendant, the OS shall be deemed to have been
duly served.
2. O. 10, R2: OS to be served on agent instead of principal, satisfied the three requirements.
3. O. 10, R3: OS in pursuance of contract containing term to the effect that the court shall have jurisdiction
to hear, the OS shall be deemed to have been duly served out of jurisdiction only if leave has been
granted under O 11 R1/2.
4. O. 10, R4: for OS endorsed with claim for possession of immovable property, the court may, if satisfied
on an ex parte application that no person appears to be in possession of immovable property and that
service could not have been effected any defendant, authorize service to be effected by affixing copy of
OS to some conspicuous part of the property, and shall be treated as good service.
5. O10 R5: all abovementioned applies to OS with necessary modifications except R1(3) and R1(4).
6. O 62: contains service of all documents or all forms of originating process in details.
Personal Service
1. O 10 R1(1):
i. OS shall be served to defendant personally,
ii. to defendant’s last known address,
iii. on each defendant.
iv. First attempt to be within 1 month from date of issue of OS.
2. Personally:
i. By hand
ii. By AR registered post
3. By hand:
- Form 2: the wording of endorsement did not require acknowledgement.
- Endorsement as to service: if it is served by office boy, he shall be pointed out by the neighbor or
anyone else, that he was the defendant.
- The receiver refused to sign or accept: once the requirement (point out) is satisfied, the server can
leave a copy, otherwise other types of service is required.
4. O 62 R3: personal service is effected by leaving a copy of document with the person and by request
showing him the sealed copy and office copy.
5. Arab-Malaysian Merchant Bank Bhd v Dominance Resources Sdn Bhd & Anor
F: plaintiff claimed against defendant for credit facilities granted. After the service of writ, the defendant
applied for leave to enter conditional appearance to enable them to apply to set aside the writ as well
as service of the writ on the grounds that the writ was invalid, bad or ineffective and ought to be set
aside for irregularity. One of the issues was whether a defendant must be served with a sealed copy of
the writ.
H: dismissed defendant’s applications. there is no need to serve a sealed copy of writ on a defendant.
The rules and practice indicate the opposite of serving a sealed copy because when service of writ is
effected by way of personal service on a defendant, O 62R3(a) RHC requires that if a defendant so
requests, he must be shown the sealed copy of the writ. If the defendant is to be served with a sealed
copy, there would be no need for him to be shown, on request, the sealed copy. On issue of writ, only
two copies are sealed; one of which is retained by the registry as original and the other is returned to
the plaintiff. If there were more than one defendant to be served with sealed copy, it would be
impossible. / the rules did not require acknowledgement from the defendant.
6. By AR registered post:
- With a card returned after received by the receiver. / advice of Receipt (costs RM2.20)
- By postman
7. AR registered post
i. Cover letter / letter of service
ii. Copy of writ/ OS
iii. AR card (yellow)

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iv. Registered post slip (red sticker)

v. Additional text affixed
8. By postman
- Instead leaving copy in the box, postman will ask to sign AR card as an acknowledgement of
receipt
- Disadvantages: opportunity to refuse. / someone else signed the card
- In case AR card was not signed/ refused to sign, postman will need to take the document back and
keep in postal office. The postal authority will notify the recipient to collect within one week
(normally). If the recipient did not come and collect, the postal authority will return it to the plaintiff’s
solicitor/ sender. The plaintiff will then need to apply for substituted service.
9. Pengkalen Concrete Sdn Bhd v Chow Mooi (Guarantor of Kin Hup Seng Construction Sdn Bhd)
& Anor
F: defendants stood as guarantors in favor of plaintiff for a sum of money owed by a company KHSC.
The plaintiff sued the defendants when KHSC failed to repay the loan. The registrar entered JID as
defendants were absent. The defendant applied to set aside JID but failed. Defendant appeal to judge
in chamber. The defendant admitted that the address for service was correct but contended that there
was no effective service because the AR card had been returned with name of ‘Yanti’ which was not
any of their names. Even though they are guarantors, service must be personal as anything less was
bad service.
H: dismissed the defendant’s appeal. Nothing indicated in O 10 R1(1) RHC that the plaintiff must
evidentially prove that if the writ was sent by AD registered post, the named person in the writ must be
the very person who had received it. In this case, all the prerequisites were fulfilled: a writ was sent;
there was proof of sending; it was sent by AR registered post; address sent was the last known
address. The recipient was ‘Yanti’ did not vitiate that service. / As long as it was delivered to correct
address, someone else may sign it.
10. United Merchant Finance Bhd v Magpie Resources Sdn Bhd
F: the petitioner finance company filed winding-up petition against the respondent on ground that the
respondent was unable to pay a judgement debt. One of the issues was whether the respondent failed
to comply with Section 218 of Companies Act 1965 by serving the notice by AR registered post to the
respondent’s registered office.
H: the service of notice by AR registered post to repondent’s registered office was in fact actual delivery
and thus should be accepted as good service of the said notice.
11. O 10 R 3: service pursuant to a contract
- Shall be effected by registered post
- Deemed delivered after 3 working days of posting.
- Conclusive proof of delivery: red slip/ Pos Daftar slip
- Pursuant to O 11 R1/R2.
Service on the Solicitors
1. O 10 R1(2): where a defendant’s solicitor endorsed on the OS that he accepts the service on behalf of
the defendant, the OS shall be deemed to have been duly served.
2. When party has their own solicitors in proceedings, the service must be on solicitors, personal service
had been dispensed.
Service on agent of overseas principal
1. O 10 R2: serve on agent instead of principal, if court is satisfied that
i. Entered into contract within jurisdiction with or though agent having registered place of business
with the jurisdiction
ii. Principal was at time of contract entered and is at time of application neither individual nor body
corporate; and
iii. At time of application, either agent’s authority has not been determined or he is still in business
relations with his principal.
2. Eg: For overseas company entered into contract through agent in Malaysia, the writ may serve on the
agent.
Service under disability

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1. O 76 R14: service of certain documents on person under disability

i. For minor having no father or guardian, shall serve on the person with whom he resides or in
whose care he is;
ii. For patient, on the person authorized under the Act to conduct in the name of the patient or on
behalf of the proceedings, if there is no such person, on the person with whom he resides or in
whose care he is.
- Serving on such persons shall de deemed to have been duly served on the person under disability.
Service on partners
1. O 77 R 3(1): where partners are sued in the name of the firm, except that the partnership been
dissolved before action begun, the writ may be served
i. On any one or more of partners; or
ii. At the principal place of business of partnership, on any person having de facto control or
management of the business at the time of service.
2. Eg: if anyone overseas, serve on any one is sufficient
3. OCBC Bank (M) Bhd & Anor v Livision Sdn Bhd & Ors- sued as guarantor, so must be served
personally.
F: the plaintiff bank granted loan facilities to the first defendant while the other defendants were
guarantors. The defendant defaulted and the plaintiff commenced action against all defendants. The
plaintiff attempted to serve the writ on all defendants but unsuccessful. Subsequently, the plaintiff
served the writ on all defendants at an address given by the second defendant. JID entered against 4 th
defendant. 4th D applied for service of writ to be set aside as it was not regularly obtained and that JID
to be set aside as he was outside jurisdiction and not evading service. Issue was whether the service of
writ was regular.
H: since the 4th D has been sued as guarantor, the writ must be personally served on him. There was
no evidence that the 2nd D had represented that he was authorized by the 4th D to accept service of the
writ on his behalf. Hence, the purported service of the writ was irregular and bad in law. He was not
evading service as he at all material time was outside the jurisdiction of Malaysia.
4. Kenneth Allison Ltd & ORs v AE Limehouse & Co
F: the plaintiff instructed a process server to effect personal service of writ on the defendants. The
senior partner’s personal assistants in defendant office consulted one of the partners and told the
process server that she was authorized to accept the writ, and received from him a sealed copy of writ
and a form of acknowledgement of service. Defendant argued that no personal service pursuant to O
10 R1(1) had been effected. Issue was whether the service is valid.
H: service of writ was valid. One party knowing that the other party wished to service process upon him,
requested or authorized the other to do so in a particular way which was outside the rules and the other
did so, was valid and legally effective as there was nothing in the rules restricting consensual service of
writ. The partner has expressly authorized the acceptance of service.
Service on Corporation
1. O 62 R 4: service on corporation, writ must be served:
i. By leaving a copy at registered office of corporation
ii. By sending a copy by registered post addressed to the corporation at office
iii. By handing a copy to secretary of director or any officer of the corporation
iv. In case of foreign company, by handing / sending a copy to person authorized to accept service
of process on behalf of foreign company.
2. Hong Leong Finance Bhd v Pasir Permata Sdn Bhd & Ors
F: 3rd defendant applied to set aside the JID of appearance against him. The application was made 1.5
year after judgement was entered when bankruptcy notice served on him. The process server went to
3rd defendant office to serve the writ. The 3rd D refused to see the process server or to acknowledge the
receipt of writ. The writ was served on the 3 rd D secretary (being left on secretary table). Issue was
whether the service is regular.
H: there was good personal service of writ on 3rd D. The plaintiff had brought the writ to the knowledge
and attention of the 3rd D. it was not necessary for the process server to hand the writ personally to the
3rd D. The purpose of the writ was to make defendant to be aware of the proceeding commence against
him.

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Service against the government

1. O 73 R 3(2): proceedings are by or against the government, service must be effected
i. In case of proceedings by or against the federal government, serve on Attorney General or
other officer designated on behalf by the AG.
ii. In case of proceedings by or against the Government of State, serve on State Secretary of such
State.
Substituted Service
1. Applies after personal service failed
2. O 62 R 5(1): when personal service is required but it appears to be impracticable to serve personally,
the court may make order in Form 133 (Appendix A) for substituted service.
3. Practice Note / Direction- No. 1 1968: satisfy the court for substituted service:
i. There are reasons to believe that the defendant evades or refused to sign; or other reason
ii. Plaintiff shows that the service was impracticable.
4. O 62 R 5(2): application for an order for substituted service shall be made by notice of application
supported by affidavit (affidavit of non-service and affidavit on application for substituted service) in
Form 134 (notice of application)
5. O 62 R 5(3): court may direct to bring the document of substituted service to the notice of the person to
be served:
i. Post or paste with substituted service order at last known address
ii. Paste at court notice board
iii. Advertise or publish at newspaper locally in language known to the defendant.
File an affidavit of service (to prove service of court documents)
1. O 62 R 9: affidavit of service, in Form 135, shall state
i. By whom the document was served
ii. The day of the week
iii. Date on which it was served
iv. Where it was served
v. How it was served
2. Only applies for service of court documents
3. BSN Commercial Bank (M) Bhd v KDG Holdings (M) Sdn Bhd & Ors
F: in this appeal by the plaintiffs, the defendants raised issues resisting summary judgement. One of
the issue was with regard to the service of letter of demand. The defendants relied on O 62 R 9 and
contended that proof of service of a document must be by affidavit of the person who served the
document.
H: order 62 applies only to court documents, hence reliance on O 62 R 9 could not avail the defendants
for the contention that posting of the notice of demand must be proved by the affidavit of the person
who actually did the posting. Furthermore, there was no denial by affidavits by the defendants of receipt
of the letter of demand; thus, they must be taken to have received them and there could be no place in
the summary judgement proceedings for the question of actual proof of their posting. / letter of demand
is not a court document.

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Service OF WRIT

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TOPIC: SERVICE OF WRIT

• A writ of summons (also known as a “writ”) is used to commence an action.
• It is a mode of commencement of an action.
• So, when a party wants to commence an action, this may be done, by filing a writ, in court.
1. SERVICE OF WRIT
• There is a need to serve the writ on the def.

• This is in line with the principle that the def must be given a fair chance to defend the claim
brought against the def and the first step towards achieving this rule of fairness is by serving
the writ on the def.
• It is necessary to serve the writ on the def applying the prescribed rules of service otherwise
it becomes an irregularity.
• This irregularity is incurable unless the def chooses to waive the irregularity.
*POINTS BOLD IN GOLD COLOUR ADALAH APA YANG SIR MENTIONED DALAM KELAS*
A) SERVICE OF WRIT ON AN INDIVIDUAL DEFENDANT
• O.10, R. 1(1)- States that a writ may be served on the def either personally or by way sending
the writ by AR Registered Post addresses to the def’s last known address. The service of this
writ must be done within one month of issuance of the writ.
- A writ may be served:
a) personally, on each def
➢ O.62, R.1- explains when personal service is required.
➢ O.62, R.3- explains how personal service is affected. It states that a copy of writ may
be left with the def and if the def, so request, then the sealed copy of the writ may be
shown to the def. There is no requirement to serve the sealed copy of the writ on the
def.
➢ the writ is to be left with the def to constitute personal service of the writ.
➢ In an ideal situation, the def would accept the writ and acknowledge acceptance of
the writ by signing on any document given to the def by the process server (the person
asked to serve the writ).
➢ The usual question would be, what if the def REFUSED to accept the writ?
RULE: it requires the writ to be left with the def. It does not require the def to accept the
writ.
➢ Thus, it does not matter if the def does not want to accept the writ. The only
requirement is to leave the writ in the presence of the def.
➢ If the def refused to accept, the process server should just leave the writ at the def’s
house, in the physical presence of the def and leave the place. This is good service.
➢ The process server then would have to file an affidavit of service explaining the
incident and that the writ was left in the presence of the def.
➢ The affidavit of service must be in the manner prescribed in FORM 135 and comply
with the requirements of O.62, R.9 of the ROC. In the affidavit, it must be stated:
a) by whom the doc was served

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b) when was it served

c) where was it served; and
d) how was it served.
*all of these requirements are stated in O.62, R.9 ROC
➢ O.63A, R.10(1)- time of service begin to run when the notification of acceptance (of
the document filed with the Registrar by electronic transmission) by the Registrar is
received.
CASE: THOMPSON V PHENEY

-Upon informing the defendant the nature of the writ, the plaintiff threw it in the def’s
presence. The ct held it was good service.
CASE: ROASE V KEMPTON

-The def had refused to accept service of the writ. the plf slipped the writ into the def’s coat
when the def was opening his coat. The court held it was good service.
CASE: BANQUE RUSSE V CLARKE

-The writ was handed over to the def in an envelope. The def was not informed that it was a
writ. The court held that this was not good service.
b) prepaid AR registered post addressed to his last known address

➢ AR- acknowledgement return, basically registered post where the AR card is signed
by the recipient of the writ and sent back to the sender.
➢ CASE: RAMLAN BIN KAMAL V PERBADANAN NASIONAL
-last known address refers to most recent known residence.
➢ In case, def refused to sign the AR card, it must be returned back to the
firm/plf/sender.
➢ What is the AR card is signed by another member of the household/other than the
def?
ANSWER: Valid, as long as it is written and acknowledge.
➢ CASE: PENGKALAN CONCRETE SDN BHD V CHOW MOOI
- The court held that, there is no indication under O10, r1(1) of the ROC that the Plf
must prove that the named person in the writ must be the very person who had
received it i.e. If it was sent by prepaid registered post.
CASE: YAP KE HUAT & ORS v PEMBANGUNAN WARISAN MURNI 2008 4 CLJ 175
- In this case, the COA approved and followed the principle laid down in the case of
Pengkalan Concrete.
EXCEPTIONS TO PERSONAL SERVICE
1) SERVICE OF THE SOLICITORS

• O.10, R. 1(2)- Provides that the writ may be served on the def’s solicitors. The solicitors must
endorse on the writ that service of the writ is accepted on behalf of the def.

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• There are 3 requirements:

I. The def must have appointed solicitor
II. The def solicitor must have accepted the service of the writ on his behalf
III. The def’s solicitor must signed on the original copy of the writ that he accepts service
on behalf of the def.
2) SERVICE OF AN IRREGULAR WRIT
• O.10, r.1 (3)- states that if the writ is not duly served on the Def in accordance with the ROC,
but the def chooses to enter an appearance in court, then the writ shall be deemed to be duly
served on the def. In other words, the def has waived any irregularities by the non-compliance
with the rules of personal service. The def also cannot complain that the service of writ is
irregular.
3) SERVICE OF IMMOVABLE PROPERTY
• ORDER 10, R.4- Where an action for recovery of land, the court has made an order to affix the
copy of the writ on some conspicuous part of the land. In regards of immovable property
4) SERVICE OF AN AGENT OF OVERSEAS PRINCIPAL
• O.10, R.2
5) SERVICE OF A PERSON UNDER DISABILITY
• Person under disability can be divided into 2 category:

A) MINOR
➢ SEC 2 of Age of majority Act- minority of all males and females in Malaysia shall cease
at the age of eighteen years.
➢ O.76, R.14 (2)- States that is the person under a disability is a minor then the cause
papers (ct documents) must be served on the father/guardian. If there is no
father/guardian, the doc must be served on the person with whom the minor resides
or the person who is caring for the minor.
➢ For example, the minor’s father is around but no one knows the actual whereabouts
and this minor’s mother had died. So, how to effect service of the writ?
ANSWER: O.76, R.14(3)- allows the court to make and order that the court papers to
be served on the caregiver. In order for the court to make such an order, there is a
need to file an application by way of Notice of Application (NOA) and supported by
affidavit.
B) MENTALLY DISTURBED PERSON/PATIENT/DISABILITY

➢ a mentally disturbed person is categorized as a patient in O.76, R.1
➢ Section 3 of the Mental Health ACT 2001 defines “mental disorder” as mental illness,
server dementia, or significant intellectual disability where there is a serious
likelihood of the person concerned causing immediate and serious harm to
himself/herself or to other persons.

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➢ O.76, R.14 (2)(b)- requires the doc to be served on a person who is authorized under
the Mental Health Act to act on behalf of the patient.
➢ Where there is no such committee appointed, then the doc may be served on the
person with whom the patient resides.
➢ O.76, R. 14 (3)- court may also order the documents to be served on the patient.
6) SERVICE OF WRIT ON A PARTNERSHIP
• O.77, R. 3- provides that where a partnership is sued, the writ may be served in the following
manner:
➢ Either on any one or more of the partners
➢ At the principal place of business of the partnership within the jurisdiction, on any
person, having at the time of the service, the control or management of the
partnership business.
➢ Serve to all the partners
• Where a writ is served on a person who is having the control/management of the partnership
then, a written notice in FORM 191 must be given to this person. If no such notice is given,
then it shall be deemed that the writ is served on a partner.
• O. 77, R 3(3)- if the partnership has been dissolved by the time, an action is commented, it
requires the writ to be served on every partner sought to be made liable.
• whilst, O.77, R 3, only specifies the person on whom the writ is served, it does not prescribe
the method of service. Since, the method of service is not prescribed, the writ may be served
personally on the partners or managing partner.
• O. 62, R. 6 (1) (b)- Alternatively, it may also be served by way of a prepaid registered post
addressed to the partners.
7) SERVICE OF WRIT ON COMPANIES/CORPORATE
• It can be companies registered under the Companies Act, foreign company and other
institution or corporate body not a company under the Act.
• O.62, Rule 4- provides methods of service of corporations which means how to serve a writ
on corporation. Included company under CA, foreign company.
• O.62, R.4(1)(a)- states the writ may be served by leaving a copy of the writ at the registered
office.
• O.62, R.4(1)(b)- states that the writ may be send by registered post to the office of he
corporation i.e the business address of the company
CASE: SUMMIT COMPANY SDN BHD V NIKKO PRODUCTS
F: the writ was served on the company’s last known registered address. However, the
company had changed its registered address and notice of change of address was lodged with
the Registrar of Companies. Subsequently, this notification of change of address was not
entered into the Registry record.
Issue: whether the service of writ was valid?
Held: since it was the Registrar of Companies who has not updated its record, the FC held that
it was bad service.

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• O.62, R.4(1)(c)- states that writ may be served by handing a copy to any director, secretary or
an officer of the company. The copy of the writ must be given to the director and told that it
is a writ.
• O.62, R.4(1)(d)- states that if it is a foreign company registered in Malaysia, then the doc may
be served by handing a copy of a writ or sending it by registered post to a person authorized
to accept service of the documents on behalf of the company. In other words, it must be
served on a proper address of the company which means the principal or registered address
of the company.
8) SERVICE OF WRIT ON THE GOVERNMENT
• O.73, R. 3 (2)(a)- where a suit is brought against the Federal Gov, the writ must be served on
the AG or such other officer as may be designated in that behalf.
➢ According to this rule, there is no need to serve the writ on the AG personally, it would
suffice to send the writ to the AG’S office.
➢ This may be done, by sending the writ to the AG’s office personally or by way of a
prepaid registered post.
• O. 73, R. 3(2)(b)- where the suit is against the State Gov, then the writ must be served on the
State Secretary of each State.
➢ This may be done, by sending the writ to the State Secretary personally or by way of
a prepaid registered post.
9) SUBSTITUTED SERVICE (SS)
• SS means to advertise the writ in the local newspapers and this advertisement is deemed to
give notice to the def of the impending civil suit in court.
• O.62, R.5- states that if a document cannot be served personally and it has become
impracticable for the document to be served personally, then the court may order the
document to be served by way of substituted service.
• O.62, R.5 (2)- states that the Plf’s application must be by way of NOA and supported by an
affidavit in FORM 134. The plf must state the grounds of the application.
• O.62, R.5(1)- The court will then make an order in Form 133 for SS.
• Generally, Plf would apply for an order of SS of the writ if the plf knows that the def is in
Malaysia but not sure as to the exact whereabouts of the def.
• It is necessary to show that it is impracticable to effect personal service. For example;
➢ There is a reason that the document cannot be served in an ordinary way or def is
avoiding the service
➢ the service by personal service is not applicable
CASE: BANK BUMIPUTERA MALAYSIA BHD V LORRAINE ESME OSMAN
-the ct had allowed the Plf application for SS because one of the reasons the def had left the
country was to avoid service of the writ. So, if it can be shown that a def had left the country
to evade service of the writ, then the ct may order that the writ be served on the def by way
of SS.
• The application for substituted service must comply with Practice Note 1 (PN1) of 1968. PN1
states as follows:

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(REFER PAGE 181)

• PN1 does not apply in all circumstances. It only applies when the def is known to reside or has
an office in a particular place. In other words, it is not applicable where Def’s wherebouts not
known.
• For example, writ is sent to the def’s premises by way of AR Registered letter, and the letter
is returned from the postal authorities with a note “sudah pindah”. Now, it does not make
sense to write a letter, seeking an appointment with the def.
CASE: RE NIRMALA MUTHIAH SELVARAJAH
-the court held that PN1 has no application where neither the permanent (or temporary)
residential address nor the business address of the def is known. In that event, the calls cannot
be made. As such, if the whereabouts of the person to be served with the writ is not known,
PN1 need not be applied.
• The aim of PN1 is to take all reasonable steps to serve the writ on the def.
• PROCEDURE? CHECK SBB NI NOTES SENDIRI DALAM KELAS
➢ Within one month of serving the notice, kena buat personal service
THREE MODES:
A) Posting (leaving a copy/paste) of document (writ) and order SS (FORM 133) at the
def’s last address
B) Posting of writ + order SS at the court notice board
C) Publish in newspaper known to the def
➢ If personal service tak berjaya, serve letter of appointment to the def

- if the def still tak appear, you are deemed to have met the conditions of SS.
- before applying for SS, you must support with affidavit whereby you have to state
all the reasonable action you have taken, the def is avoiding the service and the
personal service is impracticable.
10) SERVICE OUT OF JURISDICTION

• O.11, R.5(3)

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Service of writ - civil procedure code I lecture notes

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Service of writ
Service means delivery of writ to Def.
Order 10 r 1-4
Service of the writ on the individual
O10 r 1 A writ may serve:
(i) Personally on each Def
(ii) Prepaid AR registered post
The first attempt at service must be made not later than one month from the date of issue of the
writ.
(i) Personal service O 62 r 3
-If opponent refused to accept the service, can leave the copy in certain conditions under Form 2:
writ, all conditions satisfied just can leave the writ. (True person to be served)
 Who is known to me
 Who was printed out to me by
 Who admitted to me
-Effective by leaving a copy to the person to be served.
Arab Malaysia Merchant Bank v Dominance Resources Sdn Bhd
H: There is no need to serve a sealed copy of the writ on a defendant. The rules and practice
indicate the opposite of serving a sealed copy because when service of a writ is effected by way
of personal service on a defendant, O 62 r 3(a) of the RHC requires that if a defendant so
requests, he must be shown the sealed copy of the writ.
Issue: Does ROC requires D to acknowledge the recipient of writ? – No rule said that the Df
must accept the service of writ.
Normally, writ will be served on 2 copies:
- on Def
- on office copy (sealed)
Form 2 ROC: silent on Def should sign / acknowledgment copy
Service on Def (Form 2) falls under subtitle Endorsement of claim & endorsement as to service.

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Process of AR Registered Post O10 r1 (i)

1. Cover letter attached with the writ
2. Originating process – OS - WS
3. Outside envelope attached with AR card (yellow colour) and registered post slip
- fill in the name of recipient, signature, date & IC no
* Additional stamp may be required to annex
* If def signed the AR card, means accepted the service, acknowledged the service of writ.
Disadvantages of AR Registered Post
(i) Has opportunity the def refuse to sign, then postman cannot leave to def, need take
back to firm
(ii) May sign by other person – presumption of prima facie that service of document
posted successfully
Issue: If AR card is signed by someone else, def may argue that he does not accept the copy of
the writ. Does he have the basis to argue that he does not receive the writ?
Case: Pengkalan Concrete Sdn Bhd v Chow Mooi
H: Nothing was indicated in O 10 r 1(1) of the RHC that the plaintiff must evidentially prove
that, if the writ was sent by prepaid AR registered post, the named person in the writ must be the
very person who had received it.
Case: United Merchant Finance Berhad v Magpie Resources Sdn Bhd
H: The service of a notice by A.R. registered post to the respondent's registered office was in fact
actual delivery of the said notice to the respondent's registered office and thus should be accepted
as good service of the said notice and can became an adequate proof as physical delivery of
document.
AR Registered Post Registered Post

Envelope is attached with AR card & Registered post slip
registered post slip - No card
O 10 r 3 Service of writ in pursuance of contract

- If service without AR card & it is mentioned under the agreement, registered post is the
conclusive post of service. Post slip is sufficient to prove the acceptance.
[This term must agree by both parties during the execution of the contract]
(ii) Service on the solicitor O 10 r 1(ii)

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-Where a defendant's solicitor endorses on the writ a statement that he accepts service of the writ
on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant
and to have been so served on the date on which the endorsement was made.
-Pf’s solicitors who know the appointment of Df’s solicitors shall directly serve the writ to df’s
solicitors.
-Serve to df personally is dispensed under this rule.
(iii) Service of writ on agent of overseas principal O 10 r 2 送达海外代理人
- Can serve the writ on the agent of the co within jurisdiction.

- P needs not to take a court order to serve the co in the other country, can directly serve on the
agent within jurisdiction.
(iv) Service of certain documents on person under disability O 76 r 14
- Service to minor? -Serve to guardian / father who he resides
- Disabled person may be represented by legal rep, thus serve the writ to legal representative
-Service to patient? –Serve to person authorized under Mental Health Act
(v) Service of writ to partner O 77 r 3(1)
(a) If one of the partners is out of jurisdiction, service can make on the other partner.
Case: OCBC Bank Bhd v Livision Sdn Bhd
F: An employee who was not a partner, but was authorized to accept the service.
H: valid service.
(b) on any person who has control of the partnership business
- Service like this can only be affected within the jurisdiction ‘de facto partner’ 事实上的合伙人
### Service on a firm does not mean the service on all of the partners
(vi) Service on corporation O 62 r 4/ O62 r 6
Where an action is against a corporation, the writ may be served—
(a) by leaving a copy of it at the registered office (if any) of the corporation;
(b) by sending a copy of it by registered post addressed to the corporation at the office, or, if
there are more offices than one at the principal office of the corporation, whether such office is
situated within Malaysia or elsewhere;
(c) by handing a copy of it to the secretary or to any director or other officer of the corporation

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Case: Hong Leong Finance Bhd v Pasir Permata Sdn Bhd

F: The process server 传票送达员 of the plaintiff went to the third defendant's office to serve the
writ. The third defendant refused to see the process server or to acknowledge receipt of the writ.
Thereupon the writ was served on the third defendant's secretary.
H: There was good personal service of the writ on the third defendant. The plaintiff had brought
the writ to the knowledge and attention of the third defendant. It was not necessary for the
process server to hand the writ personally to the third defendant.
(viii) Service on the Government O 73 r 3

-r 3(2)(a) in the case of proceedings by or against the Federal Government, on the Attorney
General
-r 3(2)(b) in the case of proceedings by or against the Government of a State, on the State
Secretary of such State
-when successfully serve the writ, need to show to court the proof by filling affidavit of service
under O62 r9.
Affidavit of service
O 62 r 9 An affidavit of service of any document shall
- state by whom the document was served,
- the day of the week and date on which it was served,
- where it was served and how,
- and shall be in one of the forms in Form 135
Address must be stated on affidavit of service
Form 135
- Affidavit of personal service of writ / other process on a person
- Affidavit of personal service of writ / other process on a body corporate
Practical site [ not a court doc]
- must be sworn before Commissioner of oath before it was filed in court 必须在提交法庭前在监
誓员面前宣誓
- when serve the doc other than court doc, it is not required to file affidavit of service
Case: BSN Commercial Bank Bhd v KDG Holdings Sdn Bhd

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H: Order 62 applies only to 'court' documents, therefore, there is no requirement to comply with
this rule if it is not court’s document. Pf’s solicitor served letter of demand to df’s solicitor but
since LOD is not court’s document, so no need to file affidavit of service.
-If enter JID, no need to prove it by way of serving affidavit of S
-Prior to fill the writ, must prove the letter of demand by showing AR card / being endorsed with
the receipt in the affidavit of service.
- If the affidavit of service is rejected to sign by the def, P must prove that letter of demand has
been served, otherwise the case is premature.
- How to prove?
 By preparing statutory declaration; or
 In between the proceedings, by affidavit in support
ix) Substituted Service (SS) – service other than personal service O 65 r5 (1)
-When personal service is impracticable, court may make an order in Form 133 for SS.
-When handle by hand & Registered post, both are fail, can serve on D by SS.
Situation to serve under SS
1. There is reason to believe that the case cannot be served in its ordinary way.
2. P must show that service is impracticable, (D has move out the last known address)
-Stated in Practice note no 1, 1968 (must read together with O 62 r 5 ROC)
Application of SS
1. Within 1 month from the issue of writ, P has taken sufficient effort to serve on D. (by hand or
by Registered Post)
A letter of appointment must send to D by original post, a date must be fixed on the letter of
appointment. The letter is informed the D that agent is going to serve a writ on him on that
particular mentioned date.
Nowadays, court require a search through JPN to serve on D. This is because D’s address may be
different as JPN, so the court will order the P to serve on a new address. However, if D refuse to
respond, P may file an application under O 62 r5(3) supported by affidavit in Form 134 (stating
the facts).
- Saying effort has been taken
- Stating the D evade the service

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- Stating the service is impracticable

Must file another application (affidavit of non-service)
Conclusion- make an application, supported by affidavit is Form 134 and affidavit of non-
service.
3 modes of effecting SS
1. Posting/ Leaving a copy of writ together with the SS order at the D last known address of
residential area. (Form 133)
2. Posting SS order and writ at court notice board where the legal proceedings commenced.
3. Publication on a local newspaper (in the language known by the D)
Ultimate purpose of service= notify the D that an action has been taken against him/her.

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Writ, OS, SS ( Final)
Civil Procedure I (Multimedia University)

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Karen’s notes
CHAPTER 6: WRIT, OS AND SERVICES

Introduction
 Order 1 Rule 2(1) – ROC applies to Magistrates’ Court, Sessions Court & High
Court
Modes of originating process
 Order 5 Rule 1(1): Proceedings at the HC and SC shall be commenced either by
writ or OS.
 Order 5 Rule 2: Proceedings in which a substantial dispute of fact is likely to
arise must begin by way of writ of summons.
o Under the Rules of High Court 1980, what was considered a substantial
dispute of fact, was, inter alia, a claim based on an allegation of fraud.
o Sean Choon Chye v Saraswathy Devi
 An application begun by way of originating motion which involves
question of facts in dispute and is not a matter which can be
determined by affidavits, but requires parol evidence due to the
allegations of fraud appearing in the applicant’s affidavit, should
have been commenced by way of writ.
o Abdul Majid v Haji Abdul Razak:
 There was dispute as to the existence of the trust. This must clearly
means that evidence would have to be led and that an OS is not a
suitable medium or process for the determination of the issues
raised.
 Order 5 Rule 3: An application that is to be made to the court under any written
law shall be begun by way of originating summons.
o Commencing proceedings by way of originating summons will substantially
save time and cost as the matter can be efficaciously disposed of through
affidavit evidence.
o Order 5 rule 4: where the sole principal question at issue is likely to be
one of the construction of any written law, instrument, deed, will, contract
or document, or of any question of law, or where there is unlikely to be any
substantial dispute of fact, the most appropriate mode of commencement
of proceedings is by way of originating summons.
o Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee
 The applicant made a claim by way of originating summons for
compensation for the removal of squatters from the respondents’
land. The respondents contended that the action should have
commenced by way of writ as both, disputed questions of law and
fact were involved. Held: where the court found that the question of
fact, namely how many squatter families were removed was not
relevant as the compensation could be computed by way of the

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Karen’s notes
area of land concerned, was not crucial to the determination of the

case, the applicant could proceed by way of originating summons.
o National Land Finance Cooperative Society v Sharidal Sdn Bhd
 The issue involved in this case is purely a matter of construction of
the SPA between the parties. The facts are undisputed and there
are no issues relevant to the case which require evidence to be
called at a trial. Thus, the P was correct in using an OS.
 Wrong mode of commencement:
o Order 28 Rule 8(1): An action begun by originating summons may be
continued as if it had been begun by way of writ, if it appears at any stage
of the proceedings that the action which should have been commenced by
way of writ was begun by originating summons.
o Re Deadman
 Where a plaintiff commenced in OS, the court may allow the
amendment and order the proceedings to be continued as though
they had been commenced by way of writ. Thus, failure to
commence an action through the correct mode is not fatal to the
continuance of the action.
o Ting Ling Kiew v Tang Eng Iron Works Co Ltd
 By virtue of Order 28 rule 8(1), there are disputes of facts in this
case, however it was being commenced by way of OS, the case
should continue as if by way of writ and need not be thrown out.
o Order 2 Rule 1
o Sunkyong International Inc v Malaysia Rubber Development Corp
Bhd
 Failure of the local D to state in its affidavit supporting its application
for leave to serve out of jurisdiction that in its belief, it had a good
cause of action is mere failure to comply with a rule in regard to the
form and content of an affidavit. It is an irregularity that is curable by
costs.
o Cheow Chew Khoon v Abdul Johari
 There is no distinction made between mere irregularities and
nullities. Every omission or mistake in practice or procedure is to be
regarded as an irregularity which the court can and should rectify so
long as it can do so without injustice.
Court Forms
 Order 6 Rule 1: Every writ shall be in Form 2
 Order 7 Rule 2: Every OS shall be in Form 5 (where it is not ex parte application)
or Form 6 (where it is ex parte application)
o if it is not ex parte, the parties involve = plaintiff & defendant
o if it is ex parte, the party = applicant

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Karen’s notes
Endorsement of writ
 Order 6 Rule 1: Every writ must be in Form 2 for High Court; Form 2A for
Subordinate Court
 The body of the writ comprises the command of the sovereign to appear while on
the back of the writ, the statement of claim is indorsed.
 Order 6 Rule 2(1): Before a writ can be issued, it must be endorsed with a
statement of claim or with a concise statement of the true nature of the claim
made, or the relief or remedy required.
 Before writ is issued, it shall be endorsed
o With a statement of claim (SOC)
o Plaintiff sues in a representative capacity, with a statement of the capacity
in which he sues
o Defendant is sued in a representative capacity, with a statement of the
capacity in which he is sued
o Plaintiff sues by a solicitor, with the Plaintiff’s address and the solicitor’s
name or firm and a business address of his within the jurisdiction
o Plaintiff sues in person
i. With the address of his place of residential or address to which
documents for him may be delivered or sent; and
ii. With his occupation
o The number of days within which an appearance is required to be entered
under Order 12 Rule 4.
 A general endorsement which contains defects or lacks in sufficient particulars
may be amended or cured by subsequent service of a full statement of claim.
 Khoo Kay Hock v Ketting
o If the writ contains technical defects amounting to an irregularity, the
subsequent delivery of a proper SOC cures the defects provided they do
not prejudice the D’s right. As long as the writ is issued within the
prescribed period, the court is not concerned with good or bad
indorsements.
 Pontin v Wood
o An application to set aside a writ which discloses no cause of action is
appropriate only where the endorsement shows that the action is an abuse
of court process.
Issuance of Writ
 Order 6 Rule 6(2): Plaintiff/his solicitor, on presenting the writ for sealing, shall:
o Leave the original writ & copy of original copy with Registrar
o Copies of writ to defendants ( each defendant must be served the writ
individually)
 Order 6 Rule 6(3): the Registrar shall assign a serial number to the writ and shall
sign, seal and date the writ, then only the writ is deemed to be issued.

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Karen’s notes
 Jumatsah v Voon Kin Kuet

o The date of issue of writ is on the date of lodgement and not the date of
signing. The issuance of writ starts when the P files the writ at the Registry
and pay requisite fees, not necessarily when the writ was sealed.
 Kok Song Kong v Brunei Shell
o A writ is deemed to be issued at the date it was filed instead of the date it
was sealed. It did not make sense that a party who had done everything
required of him by the rules, to be penalized for something not done in
time by the Court.
Validity, Expiration and Renewal of Writ
 Order 6 Rule 7(1): A writ is valid in the first instance for six months only from the
date of its issue, unless renewed before the expiry of the writ.
 Trow v Ind Coope
o Whether the date of issue included or excluded when counting the period
of validity of the writ? INCLUDED – a writ issued on Sept 10, 1965 will
expire on Sept 9, 1966.
 Order 6 Rule 7(2): where efforts to serve a writ on defendant is unsuccessful, the
court may, by order, extend the validity of the writ twice, not exceeding 6 months
each time, beginning from the next day following the expiry of writ.
 Order 6 Rule 7(2A): application for a renewal of writ must be made before the
expiry of writ
o Application must be made before the expiry of the writ
o Application is made by way of exparte notice of application supported by
an affidavit
o The affidavit must state 2 things: (a) efforts have been made to serve the
D within one month from the date of the issue of the writ and (b) further
efforts have been made to serve the writ on the D but was unsuccessful.
 Battersby v Anglo American Oil Co
o It is the duty of the P who issues writ to serve it properly and renewal is
certain not to granted as of course of an application which is made by an
ex-parte. The renewal will not in anyways prejudice any rights of the D and
in any cases the good reasons appear will be that the D is delay the
service, avoiding the service that his address is unknown.
 Duli Yang Maha Mulia Tunku Ibrahim Ismail v Datuk Captain Hamzah
o There are 3 conditions under O6 R7 (2A) of ROC which an application of
renewal of writ must prove:-
 application must be made before the expiry of writ
 application must be made ex-parte
 It must be supported by an affidavit identify the efforts has been
made to serve the D within 1 month of the date of the issue of the
writ.
 Heaven v Road & Rail Wagons

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Karen’s notes
o There are 3 situations which justify the departure from general rule that the
application for renewal must be made before expiry of writ
 Where Plaintiff an Defendant had agreed to defer service of writ
 Where the delay is induced by word or conduct by the D
 D evaded the service
 Kun Kay Hong v Ta Heo Huat
o The court allowed the renewal of writ on the ground that the delay in
service was induced by the words and conduct of Defendant’s solicitor
which requested Plaintiff’s solicitor to withhold the service
 Ng Ching Kee v Lim Ser Hock
o The court disallowed the renewal of writ on the ground that the Plaintiff’s
solicitor had misplaced the file and had been negligent in not serving the
writ in time.
Mode of Service
 Order 10 Rule 1: provides 2 modes of services:
o Personal service
o AR registered post to defendant’s last known address
 Order 10 Rule 3: Writ must serve to the particular person (D) not to others.
 Order 62 Rule 1: any document which is required to be served on any person
need not to be served individually unless it is expressly provided in the Rules/
Court Order
o Means: personal service is not compulsory unless specified by Rule/Court
Order
o Application: Since Order 10 Rule 1 provides 2 modes of service of writ; it
means the writs need not to be served by personal services. Personal
service is optional.
 Order 62 Rule 3: how to effect personal service - personal service is effected by
leaving a copy of the document with the person to be served and if requested by
him, to show him sealed copy of writ.
 Thomson v Pheney
o The writ is served when Plaintiff, upon informing D of the nature of writ,
throw the writ to the person and this considered as sufficient service
 Roase v Kempthone
o D refused to accept the service. While the D opening his coat P slit the writ
inside his coat and P informed the nature of writ. This action considered a
good service.
 Banque Russe v Clarke
o The server served the writ on the defendant in a sealed envelope but did
not inform defendant on the content of the envelope. The defendant was
not aware that it was a writ in the envelope. It was held that the service is
bad.
 Montgomery & Co v Liebenthal & Co

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Karen’s notes
o Service on the wife or agent at the request of D would be sufficient.

 AR Registered: The postman would require the recipient to sign an
Acknowledgement Receipt (AR) to acknowledge the receipt of whatever was sent
to him/her
 Ramlan Bin Kamal v Perbadanan Nasional
o Last known address refers to the most recent known residence.
 Pengkalan Concrete Sdn Bhd v Chow Mooi
o All that P needed to prove was a writ was sent by AR registered post and
the address was the last known address
 MBF Finance Bhd v Tiong Kieng Seng
o Where the service is effected by post, the party resorting thereto has only
to show proof of posting to enable him to rely on the presumption of
service.
o The written receipt showed that the appellant had correctly addressed,
prepaid and delivered to the post office the letter enclosing the summons
which had been duly acknowledged by the postal authorities.
Exceptions to personal service
 Order 10 Rule 1(2): Where the defendant solicitor signed, accepts, endorsed on
the writ that he accepts service of the writ on behalf of the defendant.
o Three requirements:
 The D must have appointed solicitor
 The D solicitor must have accepted the service of the writ on his
behalf
 The D’s solicitor must signed on the original copy of the writ that he
accepts service on behalf of the D.
 Order 10 Rule 1(3): Where the defendant enters an appearance before being
served with the writ (rarely happen)
 Order 10 Rule 4: Where an action for recovery of land, the court has made an
order to affix the copy of the writ on some conspicuous part of the land.
 Order 11 Rule 5(3): Where service is affected in foreign country, notice of writ
need not be served personally.
 Order 62 Rule 4: Service on corporations
o Registered office (personally or post)
o Principal office (registered post only)
o Handling a copy to director, secretary or principal officer
 Service on companies registered under the Companies Act 1965
o Yew Leek Enterprise v Foong Engineering Sdn Bhd
 Service of the writ can be effected at an office of a company which
may not be its registered office; where in fact service is effected in
the manner prescribed by the rule at the office and if there be more
than one office at the principal office of the corporation, then such

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Karen’s notes
service is good service even though the principal office is not the
registered office.
o Summit Company (M) Sdn Bhd v Nikko Products Sdn Bhd
 The D company changed registered address (RA) and inform
Registrar that it has changed its RA. However, this change of
address was not entered into the Registry record for many months.
P wanted to serve the writ and found old RA was still in record so P
served the writ on the old RA. P does not know that the D has
changed its RA.
 The change of address is effective at the date of the lodgement of
the notice to the Registrar.
Substituted Service
 If the defendant cannot be found or is evading service, the P may seek for an
order for SS from the court, namely to serve the writ through other means.
 Order 62 Rule 5(1): The court may make an order in Form 133 for substituted
service if it appears to be impractical to serve the writ on the D personally.
 Order 62 Rule 5(2): An application for an order for SS is made by way of ex
parte notice of application supported by affidavit in Form 134 stating the facts and
the reason.
 SS can be made only by order of the court, by way of:
o Advertising in newspaper
o Posting it at Court’s notice board
o Last known address of D
 Re Nirmala
o Where the whereabouts of the D is known, Practice Note 1 of 1968 must
be complied with or else service can be rendered bad.
o Steps that must be taken are:
 Two calls should be made to the D’s residence if known. If it relates
to the D’s business, the call should be made to his business
address
 The second call should be made by appointment through a letter
sent to the D giving not less than 2 clear days’ notice. It must
enclose a copy of the document to be served and offer an
opportunity to make a different appointment.
o Where the whereabouts of the D is not known, Practice Note 1 of 1968 is
not applicable. No SS is allowed if whereabouts of D was unknown at time
where the writ was issued
 Bank Bumiputra Malaysia Bhd v Lorrain Osman
o The court may in addition order service by publication in a local
newspaper.
o Substituted service can only be used on the defendant who deliberately
avoids service.

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Karen’s notes
o In this case, even though the defendant had left the country and was out of
jurisdiction when the writ was issued, he did so in order to avoid service.
Hence, substituted service was allowed.
 Leow Boke Chooi v Asia Motor Co Ltd
o The term of the order of the court for substituted service must be strictly
complied with, failing which the service is bad
o For a good service the P must obliged:
 Advertise in local newspaper
 Post the writ in the HC board
 Leave a copy at the last known address
o If not obliged, thus it is consider as a bad service.
 Development & Commercial Bank Bhd v Astrid Jorum Saniman
o If a writ cannot be served personally, then there cannot be subsequent SS
of the same writ
Requirements of Practice Note
 The requirements in Practice Note – provide steps to be taken before the
application for substituted service:
o 2 calls should be made
o Calls to D’s residence or business at his business address (if the claim
relates to D’s business)
o Calls made on weekdays at reasonable hours
o 2nd call should be made by appointment by letter to D via ordinary prepaid
letter post, giving not less than 2 days’ notice for him to make an
appointment & enclose a copy of document to be served & offer an
 FORMULA:
o For plaintiff: valid writ + valid service = writ is regular (regular judgment)
 If defendant would like to challenge it, D must prove the merits of
his defence (harder)
o For Defendant: invalid writ + invalid service = irregular judgment
 Defendant can set aside the judgment ex debito justitae (as of right)
(easier)
Service out of the jurisdiction
 Where the foreign defendant is within the jurisdiction, the Malaysian courts shall
have jurisdiction against the D.
o Atmaram & Sons v Essa Industries
 If the D visits the country voluntarily, the writ can be served on him
personally but if he is induced to come to the country, the courts
cannot be said to have jurisdiction over him.
 Writ was served on the chairman of a company while on a
temporary visit to Singapore although the company had neither an

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Karen’s notes
office nor an agent in Singapore and the chairman had no control of

the management of the company’s business in Singapore. It was
held that it was a good service.
o Watkins v North American Land & Timber Co Ltd
 If a person has been induced by fraud of any kind to come within
the jurisdiction for the concealed purpose of serving him with a writ
in an action, the court will set aside the service as an abuse of the
court process.
 Order 11 Rule 1(1): Where the foreign D is outside the jurisdiction, service of the
writ is only permissible with the leave of the court in the circumstances mentioned
in limb (A) to (M).
o Seasiana Sdn Bhd v Saab Scania AB
 Where the writ was served outside the jurisdiction without leave of
court, the writ was set aside
o BBMB v ITC
 Before granting leave for service outside jurisdiction, a P must
satisfy the court that the action falls within one of the paragraphs
under O.11
 Order 11 Rule 4(2): Leave would not be granted unless proven that the case is a
proper one for service outside jurisdiction
 Amin Rasheed Shipping Corp v Kuwait Insurance Co
o Leave may be given for example, if the plaintiff can show that justice
cannot be obtained in that country. However, the plaintiff will not be
allowed to say that the judges or courts are inefficient in that country.
o As a general rule, the court will grant leave to serve notice of writ out of
jurisdiction if the plaintiff can demonstrate one of the following:
 Excessive cost will be incurred in suing the defendant in the other
jurisdiction
 There will be a delay if the suit is commenced in other jurisdiction
 Inconvenience – witnesses will have to be brought to other
jurisdiction
 Justice cannot be obtained in that alternative foreign court
 Application
o By ex parte summons supported by affidavit in Form 12
o Contents of the affidavit
o Grounds on which the application is made and the applicable provisions -
Order 11 Rule 1(1)
o The deponent’s belief that he has a good cause of action
 Notice of the writ to be served outside jurisdiction
o Form 7 (Order 11 Rule 4)
 Is SS valid when the D is outside the jurisdiction?
o Bank Bumiputra v Lorraine Esme Osman

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Karen’s notes
 Substituted service can only be used on the defendant who

deliberately avoids service.
 In this case, even though the defendant had left the country and
was out of jurisdiction when the writ was issued, he did so in order
to avoid service. Hence, substituted service was allowed.
 If the defendant did not leave the country to avoid service, SS
cannot be used. The plaintiff can only serve the writ on the
defendant using service out of jurisdiction procedure.

lOMoARcPSD|4587966
Writ, OS, SS ( Final)
Civil Procedure I (Multimedia University)

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Karen’s notes
CHAPTER 6: WRIT, OS AND SERVICES

Introduction
 Order 1 Rule 2(1) – ROC applies to Magistrates’ Court, Sessions Court & High
Court
Modes of originating process
 Order 5 Rule 1(1): Proceedings at the HC and SC shall be commenced either by
writ or OS.
 Order 5 Rule 2: Proceedings in which a substantial dispute of fact is likely to
arise must begin by way of writ of summons.
o Under the Rules of High Court 1980, what was considered a substantial
dispute of fact, was, inter alia, a claim based on an allegation of fraud.
o Sean Choon Chye v Saraswathy Devi
 An application begun by way of originating motion which involves
question of facts in dispute and is not a matter which can be
determined by affidavits, but requires parol evidence due to the
allegations of fraud appearing in the applicant’s affidavit, should
have been commenced by way of writ.
o Abdul Majid v Haji Abdul Razak:
 There was dispute as to the existence of the trust. This must clearly
means that evidence would have to be led and that an OS is not a
suitable medium or process for the determination of the issues
raised.
 Order 5 Rule 3: An application that is to be made to the court under any written
law shall be begun by way of originating summons.
o Commencing proceedings by way of originating summons will substantially
save time and cost as the matter can be efficaciously disposed of through
affidavit evidence.
o Order 5 rule 4: where the sole principal question at issue is likely to be
one of the construction of any written law, instrument, deed, will, contract
or document, or of any question of law, or where there is unlikely to be any
substantial dispute of fact, the most appropriate mode of commencement
of proceedings is by way of originating summons.
o Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee
 The applicant made a claim by way of originating summons for
compensation for the removal of squatters from the respondents’
land. The respondents contended that the action should have
commenced by way of writ as both, disputed questions of law and
fact were involved. Held: where the court found that the question of
fact, namely how many squatter families were removed was not
relevant as the compensation could be computed by way of the

lOMoARcPSD|4587966
Karen’s notes
area of land concerned, was not crucial to the determination of the

case, the applicant could proceed by way of originating summons.
o National Land Finance Cooperative Society v Sharidal Sdn Bhd
 The issue involved in this case is purely a matter of construction of
the SPA between the parties. The facts are undisputed and there
are no issues relevant to the case which require evidence to be
called at a trial. Thus, the P was correct in using an OS.
 Wrong mode of commencement:
o Order 28 Rule 8(1): An action begun by originating summons may be
continued as if it had been begun by way of writ, if it appears at any stage
of the proceedings that the action which should have been commenced by
way of writ was begun by originating summons.
o Re Deadman
 Where a plaintiff commenced in OS, the court may allow the
amendment and order the proceedings to be continued as though
they had been commenced by way of writ. Thus, failure to
commence an action through the correct mode is not fatal to the
continuance of the action.
o Ting Ling Kiew v Tang Eng Iron Works Co Ltd
 By virtue of Order 28 rule 8(1), there are disputes of facts in this
case, however it was being commenced by way of OS, the case
should continue as if by way of writ and need not be thrown out.
o Order 2 Rule 1
o Sunkyong International Inc v Malaysia Rubber Development Corp
Bhd
 Failure of the local D to state in its affidavit supporting its application
for leave to serve out of jurisdiction that in its belief, it had a good
cause of action is mere failure to comply with a rule in regard to the
form and content of an affidavit. It is an irregularity that is curable by
costs.
o Cheow Chew Khoon v Abdul Johari
 There is no distinction made between mere irregularities and
nullities. Every omission or mistake in practice or procedure is to be
regarded as an irregularity which the court can and should rectify so
long as it can do so without injustice.
Court Forms
 Order 6 Rule 1: Every writ shall be in Form 2
 Order 7 Rule 2: Every OS shall be in Form 5 (where it is not ex parte application)
or Form 6 (where it is ex parte application)
o if it is not ex parte, the parties involve = plaintiff & defendant
o if it is ex parte, the party = applicant

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Karen’s notes
Endorsement of writ
 Order 6 Rule 1: Every writ must be in Form 2 for High Court; Form 2A for
Subordinate Court
 The body of the writ comprises the command of the sovereign to appear while on
the back of the writ, the statement of claim is indorsed.
 Order 6 Rule 2(1): Before a writ can be issued, it must be endorsed with a
statement of claim or with a concise statement of the true nature of the claim
made, or the relief or remedy required.
 Before writ is issued, it shall be endorsed
o With a statement of claim (SOC)
o Plaintiff sues in a representative capacity, with a statement of the capacity
in which he sues
o Defendant is sued in a representative capacity, with a statement of the
capacity in which he is sued
o Plaintiff sues by a solicitor, with the Plaintiff’s address and the solicitor’s
name or firm and a business address of his within the jurisdiction
o Plaintiff sues in person
i. With the address of his place of residential or address to which
documents for him may be delivered or sent; and
ii. With his occupation
o The number of days within which an appearance is required to be entered
under Order 12 Rule 4.
 A general endorsement which contains defects or lacks in sufficient particulars
may be amended or cured by subsequent service of a full statement of claim.
 Khoo Kay Hock v Ketting
o If the writ contains technical defects amounting to an irregularity, the
subsequent delivery of a proper SOC cures the defects provided they do
not prejudice the D’s right. As long as the writ is issued within the
prescribed period, the court is not concerned with good or bad
indorsements.
 Pontin v Wood
o An application to set aside a writ which discloses no cause of action is
appropriate only where the endorsement shows that the action is an abuse
of court process.
Issuance of Writ
 Order 6 Rule 6(2): Plaintiff/his solicitor, on presenting the writ for sealing, shall:
o Leave the original writ & copy of original copy with Registrar
o Copies of writ to defendants ( each defendant must be served the writ
individually)
 Order 6 Rule 6(3): the Registrar shall assign a serial number to the writ and shall
sign, seal and date the writ, then only the writ is deemed to be issued.

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Karen’s notes
 Jumatsah v Voon Kin Kuet

o The date of issue of writ is on the date of lodgement and not the date of
signing. The issuance of writ starts when the P files the writ at the Registry
and pay requisite fees, not necessarily when the writ was sealed.
 Kok Song Kong v Brunei Shell
o A writ is deemed to be issued at the date it was filed instead of the date it
was sealed. It did not make sense that a party who had done everything
required of him by the rules, to be penalized for something not done in
time by the Court.
Validity, Expiration and Renewal of Writ
 Order 6 Rule 7(1): A writ is valid in the first instance for six months only from the
date of its issue, unless renewed before the expiry of the writ.
 Trow v Ind Coope
o Whether the date of issue included or excluded when counting the period
of validity of the writ? INCLUDED – a writ issued on Sept 10, 1965 will
expire on Sept 9, 1966.
 Order 6 Rule 7(2): where efforts to serve a writ on defendant is unsuccessful, the
court may, by order, extend the validity of the writ twice, not exceeding 6 months
each time, beginning from the next day following the expiry of writ.
 Order 6 Rule 7(2A): application for a renewal of writ must be made before the
expiry of writ
o Application must be made before the expiry of the writ
o Application is made by way of exparte notice of application supported by
an affidavit
o The affidavit must state 2 things: (a) efforts have been made to serve the
D within one month from the date of the issue of the writ and (b) further
efforts have been made to serve the writ on the D but was unsuccessful.
 Battersby v Anglo American Oil Co
o It is the duty of the P who issues writ to serve it properly and renewal is
certain not to granted as of course of an application which is made by an
ex-parte. The renewal will not in anyways prejudice any rights of the D and
in any cases the good reasons appear will be that the D is delay the
service, avoiding the service that his address is unknown.
 Duli Yang Maha Mulia Tunku Ibrahim Ismail v Datuk Captain Hamzah
o There are 3 conditions under O6 R7 (2A) of ROC which an application of
renewal of writ must prove:-
 application must be made before the expiry of writ
 application must be made ex-parte
 It must be supported by an affidavit identify the efforts has been
made to serve the D within 1 month of the date of the issue of the
writ.
 Heaven v Road & Rail Wagons

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Karen’s notes
o There are 3 situations which justify the departure from general rule that the
application for renewal must be made before expiry of writ
 Where Plaintiff an Defendant had agreed to defer service of writ
 Where the delay is induced by word or conduct by the D
 D evaded the service
 Kun Kay Hong v Ta Heo Huat
o The court allowed the renewal of writ on the ground that the delay in
service was induced by the words and conduct of Defendant’s solicitor
which requested Plaintiff’s solicitor to withhold the service
 Ng Ching Kee v Lim Ser Hock
o The court disallowed the renewal of writ on the ground that the Plaintiff’s
solicitor had misplaced the file and had been negligent in not serving the
writ in time.
Mode of Service
 Order 10 Rule 1: provides 2 modes of services:
o Personal service
o AR registered post to defendant’s last known address
 Order 10 Rule 3: Writ must serve to the particular person (D) not to others.
 Order 62 Rule 1: any document which is required to be served on any person
need not to be served individually unless it is expressly provided in the Rules/
Court Order
o Means: personal service is not compulsory unless specified by Rule/Court
Order
o Application: Since Order 10 Rule 1 provides 2 modes of service of writ; it
means the writs need not to be served by personal services. Personal
service is optional.
 Order 62 Rule 3: how to effect personal service - personal service is effected by
leaving a copy of the document with the person to be served and if requested by
him, to show him sealed copy of writ.
 Thomson v Pheney
o The writ is served when Plaintiff, upon informing D of the nature of writ,
throw the writ to the person and this considered as sufficient service
 Roase v Kempthone
o D refused to accept the service. While the D opening his coat P slit the writ
inside his coat and P informed the nature of writ. This action considered a
good service.
 Banque Russe v Clarke
o The server served the writ on the defendant in a sealed envelope but did
not inform defendant on the content of the envelope. The defendant was
not aware that it was a writ in the envelope. It was held that the service is
bad.
 Montgomery & Co v Liebenthal & Co

lOMoARcPSD|4587966
Karen’s notes
o Service on the wife or agent at the request of D would be sufficient.

 AR Registered: The postman would require the recipient to sign an
Acknowledgement Receipt (AR) to acknowledge the receipt of whatever was sent
to him/her
 Ramlan Bin Kamal v Perbadanan Nasional
o Last known address refers to the most recent known residence.
 Pengkalan Concrete Sdn Bhd v Chow Mooi
o All that P needed to prove was a writ was sent by AR registered post and
the address was the last known address
 MBF Finance Bhd v Tiong Kieng Seng
o Where the service is effected by post, the party resorting thereto has only
to show proof of posting to enable him to rely on the presumption of
service.
o The written receipt showed that the appellant had correctly addressed,
prepaid and delivered to the post office the letter enclosing the summons
which had been duly acknowledged by the postal authorities.
Exceptions to personal service
 Order 10 Rule 1(2): Where the defendant solicitor signed, accepts, endorsed on
the writ that he accepts service of the writ on behalf of the defendant.
o Three requirements:
 The D must have appointed solicitor
 The D solicitor must have accepted the service of the writ on his
behalf
 The D’s solicitor must signed on the original copy of the writ that he
accepts service on behalf of the D.
 Order 10 Rule 1(3): Where the defendant enters an appearance before being
served with the writ (rarely happen)
 Order 10 Rule 4: Where an action for recovery of land, the court has made an
order to affix the copy of the writ on some conspicuous part of the land.
 Order 11 Rule 5(3): Where service is affected in foreign country, notice of writ
need not be served personally.
 Order 62 Rule 4: Service on corporations
o Registered office (personally or post)
o Principal office (registered post only)
o Handling a copy to director, secretary or principal officer
 Service on companies registered under the Companies Act 1965
o Yew Leek Enterprise v Foong Engineering Sdn Bhd
 Service of the writ can be effected at an office of a company which
may not be its registered office; where in fact service is effected in
the manner prescribed by the rule at the office and if there be more
than one office at the principal office of the corporation, then such

lOMoARcPSD|4587966
Karen’s notes
service is good service even though the principal office is not the
registered office.
o Summit Company (M) Sdn Bhd v Nikko Products Sdn Bhd
 The D company changed registered address (RA) and inform
Registrar that it has changed its RA. However, this change of
address was not entered into the Registry record for many months.
P wanted to serve the writ and found old RA was still in record so P
served the writ on the old RA. P does not know that the D has
changed its RA.
 The change of address is effective at the date of the lodgement of
the notice to the Registrar.
Substituted Service
 If the defendant cannot be found or is evading service, the P may seek for an
order for SS from the court, namely to serve the writ through other means.
 Order 62 Rule 5(1): The court may make an order in Form 133 for substituted
service if it appears to be impractical to serve the writ on the D personally.
 Order 62 Rule 5(2): An application for an order for SS is made by way of ex
parte notice of application supported by affidavit in Form 134 stating the facts and
the reason.
 SS can be made only by order of the court, by way of:
o Advertising in newspaper
o Posting it at Court’s notice board
o Last known address of D
 Re Nirmala
o Where the whereabouts of the D is known, Practice Note 1 of 1968 must
be complied with or else service can be rendered bad.
o Steps that must be taken are:
 Two calls should be made to the D’s residence if known. If it relates
to the D’s business, the call should be made to his business
address
 The second call should be made by appointment through a letter
sent to the D giving not less than 2 clear days’ notice. It must
enclose a copy of the document to be served and offer an
o Where the whereabouts of the D is not known, Practice Note 1 of 1968 is
not applicable. No SS is allowed if whereabouts of D was unknown at time
where the writ was issued
 Bank Bumiputra Malaysia Bhd v Lorrain Osman
o The court may in addition order service by publication in a local
newspaper.
o Substituted service can only be used on the defendant who deliberately
avoids service.

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Karen’s notes
o In this case, even though the defendant had left the country and was out of
jurisdiction when the writ was issued, he did so in order to avoid service.
Hence, substituted service was allowed.
 Leow Boke Chooi v Asia Motor Co Ltd
o The term of the order of the court for substituted service must be strictly
complied with, failing which the service is bad
o For a good service the P must obliged:
 Advertise in local newspaper
 Post the writ in the HC board
 Leave a copy at the last known address
o If not obliged, thus it is consider as a bad service.
 Development & Commercial Bank Bhd v Astrid Jorum Saniman
o If a writ cannot be served personally, then there cannot be subsequent SS
of the same writ
Requirements of Practice Note
 The requirements in Practice Note – provide steps to be taken before the
application for substituted service:
o 2 calls should be made
o Calls to D’s residence or business at his business address (if the claim
relates to D’s business)
o Calls made on weekdays at reasonable hours
o 2nd call should be made by appointment by letter to D via ordinary prepaid
letter post, giving not less than 2 days’ notice for him to make an
appointment & enclose a copy of document to be served & offer an
 FORMULA:
o For plaintiff: valid writ + valid service = writ is regular (regular judgment)
 If defendant would like to challenge it, D must prove the merits of
his defence (harder)
o For Defendant: invalid writ + invalid service = irregular judgment
 Defendant can set aside the judgment ex debito justitae (as of right)
(easier)
Service out of the jurisdiction
 Where the foreign defendant is within the jurisdiction, the Malaysian courts shall
have jurisdiction against the D.
o Atmaram & Sons v Essa Industries
 If the D visits the country voluntarily, the writ can be served on him
personally but if he is induced to come to the country, the courts
cannot be said to have jurisdiction over him.
 Writ was served on the chairman of a company while on a
temporary visit to Singapore although the company had neither an

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Karen’s notes
office nor an agent in Singapore and the chairman had no control of

the management of the company’s business in Singapore. It was
held that it was a good service.
o Watkins v North American Land & Timber Co Ltd
 If a person has been induced by fraud of any kind to come within
the jurisdiction for the concealed purpose of serving him with a writ
in an action, the court will set aside the service as an abuse of the
court process.
 Order 11 Rule 1(1): Where the foreign D is outside the jurisdiction, service of the
writ is only permissible with the leave of the court in the circumstances mentioned
in limb (A) to (M).
o Seasiana Sdn Bhd v Saab Scania AB
 Where the writ was served outside the jurisdiction without leave of
court, the writ was set aside
o BBMB v ITC
 Before granting leave for service outside jurisdiction, a P must
satisfy the court that the action falls within one of the paragraphs
under O.11
 Order 11 Rule 4(2): Leave would not be granted unless proven that the case is a
proper one for service outside jurisdiction
 Amin Rasheed Shipping Corp v Kuwait Insurance Co
o Leave may be given for example, if the plaintiff can show that justice
cannot be obtained in that country. However, the plaintiff will not be
allowed to say that the judges or courts are inefficient in that country.
o As a general rule, the court will grant leave to serve notice of writ out of
jurisdiction if the plaintiff can demonstrate one of the following:
 Excessive cost will be incurred in suing the defendant in the other
jurisdiction
 There will be a delay if the suit is commenced in other jurisdiction
 Inconvenience – witnesses will have to be brought to other
jurisdiction
 Justice cannot be obtained in that alternative foreign court
 Application
o By ex parte summons supported by affidavit in Form 12
o Contents of the affidavit
o Grounds on which the application is made and the applicable provisions -
Order 11 Rule 1(1)
o The deponent’s belief that he has a good cause of action
 Notice of the writ to be served outside jurisdiction
o Form 7 (Order 11 Rule 4)
 Is SS valid when the D is outside the jurisdiction?
o Bank Bumiputra v Lorraine Esme Osman

lOMoARcPSD|4587966
Karen’s notes
 Substituted service can only be used on the defendant who

deliberately avoids service.
 In this case, even though the defendant had left the country and
was out of jurisdiction when the writ was issued, he did so in order
to avoid service. Hence, substituted service was allowed.
 If the defendant did not leave the country to avoid service, SS
cannot be used. The plaintiff can only serve the writ on the
defendant using service out of jurisdiction procedure.

lOMoARcPSD|4587966
Topic 2 - Commencement of Proceedings
Civil Procedure (Universiti Sains Islam Malaysia)

lOMoARcPSD|4587966
CP CHAPTER 2: COMMENCEMENT OF PROCEEDINGS KEKNID95
[1] COMMENCEMENT
LETTER OF DEMAND
Friendly and persuasive method; for recovery of debt
O5 r1 :
[1] Writ - actions involving seriously contested facts.
[2] Originating Summons - faster and easier disposed of than writ, as no
witnesses are called. No link with any substantial facts.
Excludes abolished ones
[3] Originating Motion
[4] Petition – Appendix C (page 719) – still applicable
[1a] WRIT
A document issued by the court requiring the defendant FORM OF WRIT:

to turn up in court to respond to the claim made against Form 2 in ROC2012
him. - Command of the sovereign to appear in court
- SOC/ nature of claim/ relief/ remedy sought
PROVISION: O5 r2 of ROC 2012
- To be issued by chief justice on behalf of YDPA
TYPES OF ACTION HAVING SUBSTANTIAL FACTS: ENDORSEMENT: O6 r.2 of ROC 2012
a) Relief for torts
b) Alleged dealings of fraud ISSUE OF WRIT: Order 6 – 6 months
c) Breach of duty Jumatsah Daud v Voon Kin Kuet
d) Breach of promise to marry Upon the filing of the writ at the registry & payment of
e) Patents being infringed the requisite fees, the action is instituted even if the writ
has not been sealed.
CONTENTS:
a) Substantial dispute of facts. Khoo Kay Hock v Ketting
b) Memorandum & endorsement of claim. It was held that the court is not concerned with a good
c) Aim: To notify the defendant requiring him to or bad endorsement.
enter an appearance.
DURATION/VALIDITY & RENEWAL:
Ng Wan Siew v Teoh Sin O6 r.7 ROC 2012
The case has substantial dispute of facts which must be
served by WOS not OS (must prove it to be on balance Kelinworth Benson Ltd v Barbrak Ltd
of probabilities) Must be accompanied with good reason for renewal.
Re National Unity of Commercial Workers New Ching Kee v Lim Ser Hock
It was involving members of trade union on ultra vires The reasons ie file was mislaid & negotiation was in
issue. They commenced their action under OS. It was process are not sufficient to renew the writ.
held that the case was upon serioudf s questions to be
tried thus it should be commenced via writ. PRINCIPLE ON RENEWAL OF WRIT:
O6 r.7(2)
Tan Jiak Chye v Tan Toh Hua
it was not usual for it to be filed after the hearing was Trow v Ind Coope
commenced. The court would reject it for failure to WOS shall be expired a day earlier from the date of
obtain prior leave from the court. issuance in the preceding year.
Cheow Chew Khoon v Abdul Johari Abdul Rahman

The fundamental principle is that a party must not take 10.09.2017 (Renewal) 09.03.2018
his opponent/court by surprise.
[1b] ORIGINATING
SUMMONS
A Court document served by the plaintiff (or applicant if on appeal) on the defendant (respondent).
- convenient mode of starting an action
- without the need for witnesses
- can be summarily disposed of in chambers as opposed to in an open court
PROVISIONS:
O5 r.3; O5 r4(2); O7 r.2; O7 r.2(1A); O28 r.7
CONTENTS:
a) statement on the questions on which the party commencing the action
b) seeks the determination or the direction of the court or a concise statement of the relief or remedy claimed
in the proceedings.

lOMoARcPSD|4587966
CP CHAPTER 2: COMMENCEMENT OF PROCEEDINGS KEKNID95
[1c] MEMORANDUM OF
APPEARANCE
A mode for the defendant to enter into appearance; can proceed to next stage and
representing himself/by an A&S within 14 days after the service of WOS
- Court document requesting the court Registry to enter the appearance of
defendant
- Have to be served to plaintiff on the date the defendant entered appearance
Implication for failure to enter appearance:
- Plaintiff may enter a judgment in default of appearance against the defendant
(JID)
Implication for failure to enter MOA:
- Not entitled to serve the defence unless consent from the court is obtained
Implication for failure to file Statement of Defence even after entering a MOA:
- JID may also be entered against the defendant
[2] SERVICE OF WRIT
Purpose: To notify the defendant that an action has been taken against him
How to effect:
 Ordinary & personal service  O62 r. 3 & (O62 r. 6 subject to O10 r.1 & r. 3) of ROC 2012
 For incorporation  O62 r. 4 of ROC 2012

Thompson v Pheney
It was held that throwing the writ at the person to be served after refusal to accept is sufficient.
Insufficient service
Banque Rusee v Clark
Failure to inform the nature of the document and the purpose of leaving the document is an insufficient service.
Exceptions:
O10 r. 1(2); O10 r. 1(3); O75 r. 3 of ROC 2012
[2a] SUBSTITUTED [2b] SERVICE OUT OF

SERVICE (SS) JURISDICTION
O62 r. 5 of ROC 2012 a) Foreign defendant within jurisdiction of court

The order is by ex parte summons supported by affidavit
Atmaram v Essa Industries
Instances when SS are required The writ can be endorsed to defendant, a foreign
a) Whereabouts of defendant is unknown company while on a visit to Singapore although the
b) Whereabouts is known but is not present to company had neither an office nor an agent in
accept the service of writ. Singapore.
Before the service is applicable, plaintiff shall conform to
b) Foreign defendant outside jurisdiction of court
the practice note of 1/68.
O11 r. 4(2) – proper one
Re Nirmala a/p Muthiah
Must satisfy the court that:
Practice Note 1/68 is not applicable when the defendant
whereabouts is unknown.  Justice could not be obtained if proceeding
were to be taken in alternative legal system.
Modes affecting SS  Or could only be obtained with excessive cost,
a) Newspaper advertisement delay or inconvenience.
b) By posting a copy on court notice board
c) By sending a copy to the defendant last known Facebook as the instrument by other countries:
address Axe Market Garden Ltd v Axe
d) By posting/affixing a copy on the conspicuous The High Court in New Zealand allowed substituted
part of defendant’s premises service to be effected via Facebook as the defendant’s
Direction of SS: exact location could not be ascertained without difficulty.
Development & Commercial Bank v Aspatra Knott v. Sutherland
Order of SS must be obeyed & can only be challenged The plaintiff is allowed by the Court in Canada to effect
as regard to its validity service by sending notice to the defendant’s Facebook
Failure to comply: page
Leow Boke Choi v Asia Motor
It will be irregular since no service of the copies were
ever made.

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Topic : Writ, Originating Summons and Service

B. Service on Disabled Person

Service out of jurisdiction

[Chap 6] Mode, Writ and Service

Jurisprudence (Universiti Malaya)

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B1 Indorsements on the Writ

2.1 The Test

A. M ODE OF COM M ENCEM ENT

[6.02] O5 r4 provides a guide in deciding whether a Writ or OS would be the appropriate

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Salleh Abas CJ (Malaya) (as he then was) said:

In Abdul Majid v Haji Abdul Razak 4 P took-out an OS for an order to administer a

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O2 r1 was applied in Sunkyong International Inc v Malaysian Rubber

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B1 Indorsem ents on the W rit

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Raja Azlan Shah FJ (as he then was) said:

B2 Validity and Renewal

2.1 The Test

[6.11] In Lloyd Triestino Societa v Chocolate Products (Malaysia) Sdn Bhd 26

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2.2 Renewal post lim itation

2.3 The Procedure

[6.14] O6 r7(2A) introduces a stringent procedural requirement that is prefaced by the

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On 22.8.1985, P issued a writ against D and on 8.1.1986, P obtained an order for

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C3 Other m ethods of service

[6.22] Service on other entities are as follows:

Government O73 r3 and s.26 Government Proceedings Act 195653

Persons under a Disability O76 r14

Societies s 9(c) Societies Act 196654

[6.22] In Re S Nirmala 55 VC George J (as he then was) explained Practice Note No 1 of

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C5 Foreign Defendant within Jurisdiction

C6 Service out of Jurisdiction

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PRACTICE NOTE NO. 1 OF 1968

1. Two calls should be made

2. The calls should be made at the defendant's residence, permanent or temporary, if

3. The calls should be made on weekdays and at reasonable hours.

4. Each call should be on a separate day.