Chapter 6 - Originating Process & Service

Question 1

ORIGINATING PROCESS & SERVICE

Overview

Answer 1

1) Mode of commencement
2) The Writ
3) Service of Writ
4) Service of SOC
5) The Originating Summons

Question 2

MODE OF COMMENCEMENT

Overview

Answer 2

1) Writ
2) Originating summons
3) Guidance on writ or OS
4) Where OS is more appropriate
5) Where writ is more appropriate
6) Wrong mode
7) Solution for wrong mode

Question 3

MODE OF COMMENCEMENT

Writ

Answer 3

1) The law:

• O.5, r.2;
• O.6

2) When to use - O.5, r.2:
- when substantial dispute of facts are likely to arise.
3) Procedures for issuance of writ - O.6:

• Form: Form 2/2A
• Endorsement: O.6, r.2

4) Defects in intitulement - Dato Ting Check Sii v Datuk Haji Mohamad Tufail bin Mahmud (2007):

• The intitulement and the prayer in the petition do not disclose under what sub-section of S.218 of the CA 1965 the petition is grounded on.
• This by itself can be fatal.
• Court held that an intitulement must sufficiently state particulars.
• The statute or Rule of Court under which the court is being moved must also be sufficiently stated.
• Otherwise it would be an embarrassing pleading and may be liable to be struck out, unless sooner amended.

NOTE: Observe O.1A.

Question 4

MODE OF COMMENCEMENT

Originating Summons

Answer 4

1) The law:

• O.5, r.3
• O.7

2) When to use: O.5, r.3

• Application made to the Court or to a Judge; or
• Sole question or issue only involves question of law; or
• No substantial dispute of facts are likely to arise.

3) Procedures for issuance of O.S - O.7:

Form: Form 5/6
Intitulement: provisions which which the court is being moved.
Contents: O.7, r.3

4) Procedures for action begins by O.S - O.28:
- O.28, r.3A: heard in chambers.
5) Non-compliance with formats of O.S - Karisma Saujana Sdn Bhd v Albert a/l Antoni Tass (2008):
- Facts: wrong form used & did not state in the cause of action prior to applying, the remedy or relief for his application.

Held:

• Even if there is non-compliance which OTF none, the provisions of O.1A & in the interest of justice, pure objections on mere technicalities should only cautiously be entertained.
• O.1A RHC is to ensure that application is decided based on merits rather that preliminary objections founded on mere irregularities not amounting to absolute nullity.

Question 5

MODE OF COMMENCEMENT

Guidance on writ or OS

Answer 5

O.5, 4:

• OS is appropriate if the sole question is on the construction of any written law or any other question of law; or
• There is unlikely to be any substantial dispute of facts.

Question 6

MODE OF COMMENCEMENT

Where OS is more appropriate

Answer 6

1) The law - O.5, r.4:

• sole question is on issue of law; or
• no substantial dispute of facts.

2) No question of fact - National Land Finance Corporative Society v Sharidal Sdn Bhd:

• The issue involved in this case is purely a matter of construction of the sale and purchase agreement between the parties.
• 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.
• No other evidence is needed to determine the issue than the massive correspondence that passed between them and their solicitors.
• Further, there was nothing to prevent party from cross-examining the deponent if they were not happy with his affidavits.
• Therefore, O.S is appropriate.

Question 7

MODE OF COMMENCEMENT

Where writ is more appropriate

Answer 7

1) Proviso to O.5, r.4 - Judgment under O.14 or O.81:
- When the Plaintiff intends to apply for judgment under O. 14 or O. 81, the proceedings are more appropriate to be begun by writ.

2) Question of fact - Pesurohjaya Ibu Kota KL v
Public Trustee KL:

• When a question of fact is at issue, action is to be by way of writ and not by originating summons.
• The facts have to be established by examination and cross-examination of witnesses.

3) Conflict of testimony - Ng Wan Siew v Teoh Sin:

• Writ is more appropriate when there is a conflict of testimony; or
• When there is a necessity in taking parole evidence.

4) Evidence has to be led - Abdul Majid v Haji Abdul Razak:
- When evidence would have to be led, an originating summons is not a suitable medium or process for the determination of the issues raised.

Question 8

MODE OF COMMENCEMENT

Wrong mode

Answer 8

1) The test:

• O.1A: Regard as to justice.
• O.2, r.1: Non-compliance is mere irregularity.

2) Scope - Cheow Choo Khoon v Abdul Johari:
- 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.

Question 9

MODE OF COMMENCEMENT

Solution for wrong mode

Answer 9

1) Solutions:

• O.28, r.8: continuation of proceedings as if cause or matter begun by writ; or
• Dismissal of summons.

2) Court’s discretion - Hartecon JV Sdn Bhd v Hartela Contractors Ltd:
- Court has discretion whether to allow a proceeding irregularly commenced to continue or to be quashed.
3) Application: O.28, r.8 - Ting Ling Kiew & Anor v Tan Eng Ironworks:

• OTF, it is the most inappropriate & iniquitous to decide disputed facts summarily by relying simply on affidavit evidence;
• This is a proper case for the application of O.28, r.8(1) & the court orders the proceedings to continue as if begun by writ;
• Parties are ordered to deliver their pleadings in accordance with O.18.

4) Application: Dismissal of summons - Cheow Choo Koon v Abdul Johari:

• Judge may also dismiss the summons & leave the P to commence an action by writ;
• This is appropriate when it is so obvious upon the face of the summons or the affidavit in its support that the complaints raised cannot but be tried in a writ action.
• In such a case, P must be taken to know ab initio that the mode he selected to commence the proceedings was manifestly unsuitable.
• P has an opportunity to file the suit afresh.

Question 10

THE WRIT

Overview

Answer 10

1) Process of issuance of writ
2) Indorsement of writ
3) Validity of writ
4) Renewal of writ
5) Service of writ

Question 11

PROCESS OF ISSUANCE OF WRIT

Overview

Answer 11

1) The law
2) Date on writ
3) Intitulement on writ

Question 12

PROCESS OF ISSUANCE OF WRIT

The law

Answer 12

O.6, r.6

Question 13

PROCESS OF ISSUANCE OF WRIT

date on writ

Answer 13

Jumatsah v Voon Kin Kuet:

• Court held that a writ should be dated on the date writ is FILED not when the writ is SEALED.

Question 14

PROCESS OF ISSUANCE OF WRIT

Intitulement on writ

Answer 14

Dato Ting Check Sii v Datuk Haji Mohamad Tufail bin Mahmud (2007):

• The statute or Rule of Court under which the court is being moved must also be sufficiently stated.
• Otherwise it would be an embarrassing pleading and may be liable to be struck out, unless sooner amended.

Question 15

INDORSEMENT OF WRIT

Overview

Answer 15

1) The law
2) Statement of claim
3) Capacity of the party

Question 16

INDORSEMENT OF WRIT

The law

Answer 16

O.6, r.2(1)

Question 17

INDORSEMENT OF WRIT

Statement of claim

Answer 17

1) The law - O.6, r.2(1)(a):

• Statement of claim; or
• Concise statement of the nature of the claim made; or
• The relief or remedy required in the action.
• SOC shall comply with O.18.

2) General vs SOC indorsement:

• i.e. ‘General endorsement’ Short and concise statement stating the Plaintiff’s claim and relief which the Plaintiff’s seek.
• i.e. ‘Statement of Claim’ More detailed statement which goes to the details of Plaintiff’s claim and relief in which he seeks.

3) Defective S.O.C - Khoo Kay Hock v E.J Ketting:

• Technical defects amounting to irregularity can be cured by subsequent delivery of a proper statement of claim;
• This is provided that the subsequent delivery of a proper SOC do not prejudice the D’s rights, i.e. depriving him of the benefit of a period of limitation.
• As long as the writ is issued within the prescribed period, court is not concerned with good or bad indorsements.

NOTE: Observe O.1A.

Question 18

INDORSEMENT OF WRIT

Capacity of the party

Answer 18

1) the law - O.6, r.2(1)(b) & (c):
- capacity of both P & D must be specified in the endorsement of the writ.
2) Failure to specify capacity - Mat Shah v Foo Say Meng:

• It is for P to say that they are suing [D] as administrator and not in his personal capacity;
• OTF, the learned Judge considered that the failure to make the estate of [the deceased] a party was fatal to [P’s] claim & it is enough to dispose of their claim.

NOTE: Observe O.1A.

Question 19

VALIDITY OF WRIT

The law

Answer 19

1) Validity of writ - O.6, r.7(1):

• Validity: 6 months from issuance;
• Service: within 6 months of the validity;

2) Extension of writ - O.6, r.7(2)

• Twice;
• Not exceeding 6 months each.

Question 20

RENEWAL OF WRIT

Overview

Answer 20

1) the law & scope
2) exercise of jurisdiction to grant renewal & test
3) example of good / not good reasons
4) renewal post-limitation
5) procedures of renewal of writ

Question 21

RENEWAL OF WRIT

The law

Answer 21

1) O.6, r.7(2)

• Twice;
• Not exceeding 6 months each.

2) When is renewal necessary - O.6, r.7(2):

• effort to serve has been unsuccessful;
• writ has expired but the case was remitted back to the lower courts.

3) case remitted back to lower court - Yap Seng Hock v Southern Finance Bhd:

• When the case was remitted back to HC for case management & the writ of summons had expired, it must be renewed first.
• There cannot be assumption that the writ which had expired need not be renewed just because higher courts remit the case back to lower courts for case management.
• The effect of not renewing: a nullity, i.e. there is no valid document in court until the writ of summons has been renewed.

Question 22

RENEWAL OF WRIT

exercise of jurisdiction to grant renewal & test

Answer 22

1) Exercise of jurisdiction - Battersby & Ors v Anglo-American Oil Co. Ltd:

• The jurisdiction to extend the validity must be exercised with a caution;
• Care should be taken to see that the renewal will not prejudice any right of defence then existing.

2) Test to exercise jurisdiction - Lloyd Triestino Societa v Chocolate Products (Malaysia) Sdn Bhd:

• Renewal should only be granted where the court is satisfied that good reason appear to excuse the delay in service;
• Examples of “good reason”: D has been evading service, D’s address is unknown.
• Examples of not a “good reason: P intends to hold up the proceedings, P is trying to await some future development.

Question 23

RENEWAL OF WRIT

Examples of good / not good reasons

Answer 23

1) Negotiations of settlement & loss of files - New Ching Kee v Lim Ser Hock:

• Negotiations for a settlement is not a good reason;
• Temporary loss of files by the solicitors is not a good reason;
• OTF, the plaintiff’s solicitors have been negligent in not serving the writ in time.
• No renewal shall be granted.

2) D asked to withhold for the purpose of “negotiations” - cf. Kun Kay Hong v Tan Teo Haut:

• It was a sufficient reason if the defendant have stated that there was no need to serve the writ pending negotiations for a settlement.
• If a D is a party to the withholding of service of the originating process - whether by asking or agreeing to it or otherwise, the Court should not be concerned to in the exercise of its discretion to ensure to defendant the advantage of that statutory limitation.
• Therefore, OTF, court is satisfied that there was a sufficient or good reason & application to extend the validity of the writ is allowed.

Question 24

RENEWAL OF WRIT

Renewal post-limitation

Answer 24

1) Previous position - Heaven v Road & Rail Wagons Ltd:

• Older cases indicate that renewal after the limitation period has expired will only be permitted in the most exceptional circumstances.
• Some examples of exceptional cases:
  *agreement to defer service.
  delay induced by words or conduct of D.
  *D evaded service.

2) Current position - Kleinworth Benson Ltd v Barbrak Ltd:

• What is required to justify extension of validity of writ is “good cause” or “good reason”; and
• Balance of hardship to the P if extension of refused & hardship to D if extension is allowed.

Question 25

RENEWAL OF WRIT

Procedures for renewal of writ

Answer 25

1) O.6, r.7(2A):

• Mode: ex parte notice of application;
• When: application must be made BEFORE the expiry of the writ.
• Affidavit: efforts have been made to serve the writ, full & frank disclosure

2) When - DYMM Tunku Ibrahim Ismail v Datuk Captain Hamzah Mohd Noor:

• Compliance with the pre-requisites under r.7(2A) is mandatory.
• Application for renewal MUST be made before the expiry of the writ.
• O.1A cannot be invoked to cure failure to comply with (2A) as the breach of the rule is a fundamental breach.

3) Duty of P - Castle Inn Sdn Bhd v Bumiputra-Commerce Bank Bhd:

• A party making an ex parte application to the court of any kind, it must make a full and frank disclosure of all relevant matters.
• Anything short of that would invariably render the ex parte application fundamentally flawed;
• On this ground alone, it can result in the inevitable setting aside of the ex parte order.

4) Affidavit requirements - DYMM Tunku Ibrahim Ismail v Datuk Captain Hamzah Mohd Noor:

• Before granting an extension, courts must be satisfied that serious efforts had been made to serve.
• The affidavits must provide detailed facts as to when, where and how attempts to serve were made.
• A simple and plain statement that efforts had been made to serve cannot be a sufficient ground.
• If P claims that D has been evading service, sufficient evidence must be adduced to support his claim.

5) Period of extension & number of extension:

• O.6, r.7(2): Max. 6 months;
  twice only.

6) Order made after expiry & order made 11 times - Khoo Kim Hock v Mayban Finance Bhd (2011):

• The extension order made for application made after the expiry of the writ is contrary to the Rules.
• The extension order made for 11 times is contrary to the Rules as it can only be extended twice.

Question 26

SERVICE OF WRIT

Overview

Answer 26

1) General service of writ

2) Substituted service of writ

Question 27

GENERAL SERVICE OF WRIT

Overview

Answer 27

1) Personal service on individuals
2) Exceptions to personal service on individuals
3) Service on companies
4) Service on societies
5) Service on government
6) Service on persons under disability
7) Service on foreign D within local jurisdiction
8) Service on foreign D outside the jurisdiction

Question 28

GENERAL SERVICE OF WRIT

Personal service on individuals

Answer 28

1) General rule - O.10, r.1(1):

• Personal service on D or sent by A.R registered post.
• Time for first attempt of service: Within 1 month from the date of writ is issued.

2) Method of personal service - O.62, r.3

• Leaving a copy to the D;
• Showing sealed copy or office copy upon request.

3) Service by AR registered post:
i) Pengkalan Concrete Sdn Bhd v Chow Mooi:

• All P needed to prove was a writ was sent by AR registered post to the D’s last known address.
• Nothing more was required of P & the fact that the recipient being ”Yanti” did not vitiate the service.
• Unless rebutted by the defendants, service must thus be deemed to have taken place.
• Ref. to. by CA in Yap Ke Huat v Pembangunan Warisan Murni Sejahtera.

ii) Yap Ke Huat v Pembangunan Warisan Murni Sejahtera:
- CA held that it was not necessary for the D to personally receive the writ & SOC in order for the service of the said documents to be proper.
iii) Ramasundramoorthy Permalu v Gregory Yusran & Associates (CA, 2020):

• D contended that the receipt was not personally acknowledged by him;
• Court refers to both cases & held that the service by P was proper;
• Therefore, the JID was a regular judgment & can only be set aside by showing defence on merits.

Question 29

GENERAL SERVICE OF WRIT

Exceptions to personal service on individuals

Answer 29

1) Service on solicitor - O.10, r.1(2):
- When D’s solicitors endorses on the writ that he accepts service of the writ on behalf of D.
2) Appearance gratis - O.10, r.1(3):

• Occurs when a writ is not duly served on D but he enters appearance in the action begun by writ.
• i.e. Pike v Nairn & Co. Ltd: When D enters appearance gratis, he is taken to have waived personal service.

3) Service of foreign legal process, i.e. overseas to MY -
O.65, r.2:

• i.e. Commerzbank (South East Asia Ltd) v Tow Kong Liang: this provision was not exclusive & service could be effected in Malaysia pursuant to other methods set-out in the Rules.
  4) Where method of service is stated in terms on contract - O.10, r.3:
• writ may be served in accordance to contract terms.
  5) Service out of jurisdiction - O.11, r.5(3):
• Need not be served personally;
• May be served according to the law of the country.
• i.e. Commerzbank (South East Asia Ltd) v Tow Kong Liang: Pursuant to O.11, r.5(3), service out of jurisdiction may be served in accordance with the law of the country.

6) Service for action for possession of immovable property - O.10, r.4:
- Affixing a copy of the writ to some conspicuous part of the immoveable property.

Question 30

GENERAL SERVICE OF WRIT

Service on companies

Service on partners

Answer 30

1) The law - O.62, r.4:

• leaving a copy at the registered office; or
• sending a copy by registered post to the corporation office or principal office.

2) Scope - Yew Leek Enterprise v Foong Engineering Sdn Bhd:

• Service of writ may be effected at an office of a company which may not be its registered office;
• If there is more than one office & where service is effected in the manner prescribed in the rule, it is deemed as a good service even though the principal office is not the registered office.

3) More than one office - Lee Boon Tatt v Takhdir Trading:
- r.4(1)(b) says if there are more offices than one, then service may be effected at the principal office which should mean the principal place of business of the corporation;
4) Service on partners - O.77, r.3:

• on any one or more of the partners;
• any person having control or management of the partnership business thereof.

Question 31

GENERAL SERVICE OF WRIT

Service on societies

Answer 31

S.9(c) SA 1966:

• On public officer; or
• On office bearer

Question 32

GENERAL SERVICE OF WRIT

Service on government

Answer 32

1) The principle - O.73, r.3:
- O.10 & O.11 shall not apply to proceedings against government.
2) The law on service - S.26 GPA 1956:

• on AG: for proceedings by or against the Federal Government; or
• on other officer: other officer may be designated on behalf of AG, either generally or specially, by the Attorney General by notification in the Gazette.
• on State Secretary: for proceedings by or against the Government of a State.

Question 33

GENERAL SERVICE OF WRIT

Service on persons under disability

Answer 33

O.76, r.14:

• Minor: on his father/guardian/whomever he resides with;
• Patient: anyone authorised to conduct on behalf of him/on the person he resides with.

Question 34

GENERAL SERVICE OF WRIT

Service on foreign D within local jurisdiction

Answer 34

1) The law - O.65, r.2:
- Service is to be effected in accordance with the Rules.
2) Scope of the law - Commerzbank (South East Asia Ltd) v Tow Kong Liang:
- this provision was not exclusive & service could be effected in Malaysia pursuant to other methods set-out in the Rules.
3) Application - Atmaram v Essa Industries Ltd:

• Service on a foreign D who is within the jurisdiction may be effected in the usual way;
• OTF, P, a Singaporean issued a writ against D which was a company incorporated in Pakistan;
• The writ was served on the chairman of D at his hotel in when he was visiting Singapore;
• Held: the service was properly effected.

Question 35

GENERAL SERVICE OF WRIT

Service on foreign D outside the jurisdiction

Answer 35

1) Jurisdiction over foreign D:
i) Petrodar Operating Co Ltd v Nam Fatt Corporation (FC, 2014):

• FC held O.11 does not only confer jurisdiction but stands independently on its own and is not predicated upon S.23 of the CJA.
• Jurisdiction was implicit in its power to grant leave for service out of jurisdiction.

ii) Goodness for Import & Export v Phillip Morris Brands Sarl (FC, 2016):

• S.23(1) of the CJA also confers extra territorial jurisdiction on the High Court, independently of O. 11.
• In cases where s. 23 applies, O. 11 r. 1 becomes a mere procedural formality to enable the plaintiff to effect service abroad.

2) The law on service - O.11, r.5(3):

• Need not be served personally;
• May be served according to the law of the country but needs leave to serve.

3) Scope of O.11, r.5(3) - Commerzbank (South East Asia Ltd) v Tow Kong Liang:
- Pursuant to O.11, r.5(3), service out of jurisdiction may be served in accordance with the law of the country.
4) Leave to serve- O.11, r.4(2):
- Leave will not be granted “unless it is made sufficiently to appear that the case is a proper one for service out of the jurisdiction”
5) Test for leave - Amin Rasheed Shipping Corp. v Kuwait Insurance:
- P has to show that:

i) JURISDICTION: the court has a jurisdiction over the matter.
ii) PROPER: this was a “proper case” for leave to be granted, within the meaning of r4(2).

6) Power to grant leave - Joseph Paulus Lautip v Unilever PLC (2012):
- Grant of leave to serve is a discretionary jurisdiction which must be exercised with caution.
7) Application for leave - Joseph Paulus Lautip v Unilever PLC:

• An application under O. 11, r. 4 must be supported by affidavit stating that in the deponent’s belief, the plaintiff has a good cause of action.
• P’s burden is to show that the case is a proper one for service out of the jurisdiction & he has good prospect of success at trial.
• The primary consideration at the leave stage was whether or not the court should grant leave to issue the writ out of jurisdiction and not on the merits of the case.

8) Service on D in SG or BN:

• the law: O.11, r.5 & r.6;
• scope - Ma Boon Lan v UOB Kay Hian Private Ltd:
• the provision was permissive and not obligatory.

Question 36

GENERAL SERVICE OF WRIT

Substituted service on foreign D outside the jurisdiction

Answer 36

1) The principles - Bank Bumiputra v Lorrain Esme Osman:

Ref. Fry v Moore - general rule:

• If a writ could not be served personally at the time when it is issued, there cannot be substituted service.

Ref. Johannes Koplan v Aw Chen - exception:

• if the Court is satisfied, on the evidence before it, that the defendant has gone out of the jurisdiction to avoid service, an order for substituted service can be made.
  2) Non-compliance with SS order - PJI-LEGC (Vietnam) Ltd v Q2 Engineering Sdn Bhd (CA, 2013):
• Although the court allowed the application by P for variation of the order, the new address for service was still in Vietnam.
• The P however served on a person alleged to be the D’s business address in MY.
• The service of the writ of summons and the statement of claim by P on D was irregular and bad in law and must be set aside.

Question 37

SUBSTITUTED SERVICE OF WRIT

Overview

Answer 37

1) Circumstances for SS
2) Procedures to apply for SS
3) Guidelines & compliance with PD 1/1968
4) Effecting SS
5) Effect of non-compliance with terms of SS
6) Challenging SS order

Question 38

SUBSTITUTED SERVICE OF WRIT

Circumstances for SS

Answer 38

1) D cannot be found; or
2) D is evading service; or
3) It is impractical to serve

Question 39

SUBSTITUTED SERVICE OF WRIT

Procedures to apply for SS

Answer 39

1) The law - O.62, r.5:

• Mode: NoA
• Affidavit: Affidavit in Form 134

2) Grounds for application & affidavit requirements - Re. S. Nirmala Muthia Selvarajah, ex p New Straits Times Press (M) Bhd:

• It is an insufficient ground that the application for SS is grounded on a mere statement that D is evading service;
• Affidavit in support 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
• The intention which underlines all procedure with regard to substituted service is that the defendant will probably get to hear of the proceedings.

Question 40

SUBSTITUTED SERVICE OF WRIT

Guidelines & compliance with PD 1/1968

Answer 40

1) Guidelines in PD 1/1968
- Two calls should be made:

Where:

• First call - At D’s residence / D’s business address;
• Second call - made by appointment by letter sent to the defendant by ordinary prepaid letter post, giving not less than two clear days’ notice.

When:

• weekdays, at reasonable hours, on separate day.
  2) Applicability of PD 1/1968:

D’s whereabouts is known:

• Compliance with PD 1/1968 is mandatory & will ensure that application for SS is grounded on other than a mere statement that the person to be served is evading service;

D’s whereabouts is not known:

• PD has no application.

Question 41

SUBSTITUTED SERVICE OF WRIT

Effecting SS

Answer 41

1) Order by court - O.62, r.5(1):
Form 133

2) How to serve - O.62, r.5(3):
SS MUST be effected in accordance with the direction of the court.

Question 42

SUBSTITUTED SERVICE OF WRIT

Non-compliance with SS order

Answer 42

Leow Boke Chooi v Asia Motor Co. Ltd:
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.
i.e. non-compliance > no good / sufficient service > JID entered > JID irregular.

Question 43

SUBSTITUTED SERVICE OF WRIT

Challenging SS order

Answer 43

1) Proceedings - D&C Bank Berhad v Aspatra Corporation Sdn Bhd & Anor:

• The validity of order for substituted service an only be challenged by the only way of having it set aside by proceedings instituted for the very purpose.
• It cannot be challenged collaterally in any proceedings such as in proceeding of a

2) Procedures:
- NoA + affidavit

Question 44

SERVICE OF STATEMENT OF CLAIM

The rule & default in service of SOC

Answer 44

1) The rule: O.18, r.1:
- Before expiry of 14 days after D has entered appearance.
2) Default in service of SOC - O.19, r.1:

• D may apply to court to order for dismissal;
• Court may order for dismissal OR make any other order as it thinks just.

Question 45

ORIGINATING SUMMONS

Form of OS

Answer 45

1) Form of OS - O.7:

• Inter-parte: Form 5
• Ex-parte: Form 6
• Whether appearance is required:

Question 46

ORIGINATING SUMMONS

Issuance of OS

Answer 46

1) Issuance - O.7, r.5
- same as writ.
2) Non-compliance with formats of O.S - Karisma Saujana Sdn Bhd v Albert a/l Antoni Tass (2008):
- Facts: wrong form used & did not state in the cause of action prior to applying, the remedy or relief for his application.

Held:

• Even if there is non-compliance which OTF none, the provisions of O.1A & in the interest of justice, pure objections on mere technicalities should only cautiously be entertained.
• O.1A RHC is to ensure that application is decided based on merits rather that preliminary objections founded on mere irregularities not amounting to absolute nullity.

Question 47

ORIGINATING SUMMONS

Contents of OS

Answer 47

O.7, r.3:

• statement of questions which P seeks the determination & direction.

Question 48

ORIGINATING SUMMONS

Service of OS

Answer 48

O.10, r.5:

Same as service of writ.