Goh Teng Whoo v Ample Objectives Sdn Bhd [2021] 3 MLJ 159

 

GOH TENG WHOO V AMPLE OBJECTIVES SDN BHD [2021] 3 MLJ 159

Federal Court (Putrajaya)

Service of Writ by AR registered post

Facts

1.     The Appellants were the fourth and fifth defendants.

2.     On 11 August 2016, the Respondent filed the writ and upon extraction, the Respondent served the writ separately on the Appellants by AR registered post.

3.     The Respondent’s solicitors affirmed an affidavit of service which stated that they had posted the writ by way of AR registered post to the Appellants’ last known address.  However, the solicitors only provided the day and date of service on the flip side of the writ.

4.     No appearance was entered by the Appellants. Hence, the  Respondent proceeded to enter judgment in default of appearance (‘JID’) against the Appellants on 14 September 2016.

5.     The Appellants made an application at the High Court to set aside the JID and during the setting aside application, the Respondent exhibited the AR card on the First Appellant but the AR card showed that the postage was received by the First Appellant’s brother and never received by the First Appellant himself.

6.     In addition, the AR card on the second Appellant was not returned.

7.     The application to set aside the JID was dismissed by the High Court.  The Appellants made an appeal to the Court of Appeal but it was dismissed.

8.     At both courts, the Appellants argued that the JID was not regularly entered as the AR cards were not exhibited in the solicitor’s affidavit of service.  It was further submitted that the AR cards are the proof of the service of writ.  These arguments were rejected by the two courts and it was decided that the AR cards are not required to be exhibited in the affidavit of service.

9.     The Appellants brought the appeal to the Federal Court.

Issue 1.     Whether the JID was irregular in the absence of the AR cards.

2.     Whether the AR card is required as a proof of the service of writ.

Ratios

1.     The presumption under section 12 of the Interpretation Acts 1948 and 1967 (“Act 388”) provides that where a document is served by registered post the service and time of service are presumed unless it is rebutted.  The presumption does not explained that posting by registered post is a conclusive proof of service.

2.     In short, when there is evidence that the documents have not been served to the Defendant, the presumption under section 12 of the Act 388 may be rebutted.

3.     The Federal Court held that both courts had made a wrong approach on the presumption under that section 12.  Both courts took the posting of the writ by registered post as a conclusive proof of service when it was possible to be rebutted.  It was a miscarriage of justice as the Appellants were irregularly entered into JID.

4.     The Appellants had successfully rebutted such presumption by the facts that the First Appellant did not receive the postage as it was the First Appellant’s brother who received and signed the AR card.

5.     Secondly, the Second Appellant also denied receiving the postage and no AR card was produced by the Respondent.

6.     The Federal Court held that the Appellants’ denial to receiving the postage were corroborated by the Respondent’s failure to produce the AR cards signed by the Appellants or their representatives.  Hence, the presumption of service under section 12 of Act 388 had been rebutted by the Appellants.

7.     It was clear that the court cannot seal judgment in default of appearance where the affidavit of service does not exhibit the AR registered card.

Decision 1.    The Federal Court has set aside the decision made by the Court of Appeal and allowed the application to set aside the JID.
Key Take Away

1.      Presumption of effective service and time of service provided under section 12 Act 388 are not conclusive as it can be rebutted.

2.      When a service of writ is made by way of AR registered post, the AR card is required as exhibit in the affidavit of service before JID can be entered against the Defendant.

3.      Mere posting is insufficient to prove service of writ as there must be the production of the AR card to prove the service.

 

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