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    Case: Jumatsah V Voon Kin Kuet

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    AdlyZulfadhlyZulkefly
    Writ is the most common originating process used to commence civil proceedings in court. The date of issuance of the writ is important as it determines whether the action was commenced within the limitation period and the lifespan of the writ. According to case law, a writ is considered issued on the date it is lodged and fees paid, not the date it is signed and sealed by the registrar. The writ must be served on the defendant within 6 months of issuance, and can be renewed up to two times in Peninsular Malaysia. Personal service requires handing the writ directly to the defendant.

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    © All Rights Reserved
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    Case: Jumatsah V Voon Kin Kuet

    Uploaded by

    AdlyZulfadhlyZulkefly
    208 views8 pages
    Writ is the most common originating process used to commence civil proceedings in court. The date of issuance of the writ is important as it determines whether the action was commenced within the limitation period and the lifespan of the writ. According to case law, a writ is considered issued on the date it is lodged and fees paid, not the date it is signed and sealed by the registrar. The writ must be served on the defendant within 6 months of issuance, and can be renewed up to two times in Peninsular Malaysia. Personal service requires handing the writ directly to the defendant.

    Original Description:

    Writ Summons:Application and Procedural Guidelines

    Original Title

    writ-160410050158

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    Writ is the most common originating process used to commence civil proceedings in court. The date of issuance of the writ is important as it determines whether the action was commenced within the limitation period and the lifespan of the writ. According to case law, a writ is considered issued on the date it is lodged and fees paid, not the date it is signed and sealed by the registrar. The writ must be served on the defendant within 6 months of issuance, and can be renewed up to two times in Peninsular Malaysia. Personal service requires handing the writ directly to the defendant.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    208 views8 pages

    Case: Jumatsah V Voon Kin Kuet

    Uploaded by

    AdlyZulfadhlyZulkefly
    Writ is the most common originating process used to commence civil proceedings in court. The date of issuance of the writ is important as it determines whether the action was commenced within the limitation period and the lifespan of the writ. According to case law, a writ is considered issued on the date it is lodged and fees paid, not the date it is signed and sealed by the registrar. The writ must be served on the defendant within 6 months of issuance, and can be renewed up to two times in Peninsular Malaysia. Personal service requires handing the writ directly to the defendant.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 8

    WRIT

    - Writ is one of the modes of originating process


    -It is the most common form of originating process in the court.

    Forms - Order 6 Rule 1


    Form 2 (used when matter commence in High Court)
    Form 2A (used when matter commence in sub courts)

    Issuance of Writ
    1.When writ is deemed to be issued? - Governed by Order 6 Rule 6(3)
    Writ is deemed to be issued when 4 requirements are satisfied (MUST SATIFSY ALL)
    i. Writ is given a serial number
    ii. Writ is signed by the Registrar
    iii. Writ is dated by the Registrar
    iv. The Court's seal is affixed on the writ.
    -The date shown on the writ is the date of issue.
    -Sometimes, the date in which the writ was lodged and signed by the registrart is different.

    Question: Which should be the date of issue?


    This becomes issue when limitation period is concerned.

    CASE: JUMATSAH V VOON KIN KUET


    Facts: The writ was filed before the expiry of limitation period and the filling fee was paid on the
    same date. The writ was signed and sealed by the Registrar a few days later after the limitation
    has sets in.
    H: The date of issue of writ is on the date of lodgement and not the date of signing. An action is
    commencced or instituted when the Pf files the writ at the Registry and pay requisite fees, not
    necessarily when the writ was sealed. 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.

    CASE: KOK SONG KONG V BRUNEI SHELL


    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.
    2. Why is the date of issued important?
    i. The date of the issue of the writ will determine whether action was commence within the
    limitation period.
    ii. On the date of issue of the writ, the limitation period stops running.
    iii. The date of issue determine the lifespan of a writ. Its validity period, as writ is valid for 6
    months beginning from the date of issue, within that 6 months the writ must be served on
    the defendant.
    iv. Because on the date of issue of the writ, the Plaintiff must show that the COA against the
    Defendant is complete, otherwise his action can be struck out.

    Endorsements - Order 6 Rule 2(1)


    When a writ is issued, it must contained either the general endorsement or a statement of
    claim. If the writ does not have either general endorsement or statement of claim, the writ is
    defective and can be struck out.

    ‘General endorsement’
    Short and concise statement stating the Plaintiff's claim and relief which the Plaintiff's seek.

    ‘Statement of Claim’
    More detailed statement which goes to the details of Plaintiff's claim and relief in which he
    seeks.

    Procedure
    1) Plaintiff will file the writ and writ will contain a general endorsement.
    2) Writ will be issued and served on the Defendant.
    3) The Defendant have to an enter appearance
    4) The Plaintiff will file and serve SOC on the Defendant.
    HOWEVER
    Common practice
    1) Plaintiff will file the writ with GE and SOC attached together.
    2) The writ will be issued by the Court.
    3) The Writ and SOC will be served on the defendant.
    4) The Defendant have to enter an appearance.
    Question: Can the SOC clash or contradict with General Endorsement?
    -Order 18 Rule 15(2)- the SOC can correct/alter/modify/extend the general endorsement.
    However, SOC cannot change the COA or add new party.

    CASE: KHOO KHAY HOCK


    Facts: The Df was sued in respect of the death of a person X, the deceased. The GE in the writ
    mentioned that this was an action of negligence under Section 8(3) of the CLA. The GE made no
    mention of claim under Section 7 of the CLA. Under the SOC, it referred to claim under Section
    7. Def objected that the GE only mentioned Section 8.
    Held: The Pf did not change the COA or adding new parties under Order 18 Rule 15(2), therefore
    this is allowed.

    Other endorsements
    1.Representative capacity - Order 6 Rule 2(b) and (c)
    a) There would be a representative capacity if the Pf is suing as personal representative
    (PR) or the Df is being sued as PR.
    b) There must be endorsement to the writ. Endorsement is a statement next to either Pf’s
    or Df’s name that he is being sued in PR capacity.
    If there is no endorsement?
    CASE: MAT SHAH BIN MOHAMED & ANOR
    The outcome of the court proceeding will bind the PR personally and not the estate of the
    deceased.

    2.Where the Pf is represented by a solicitor - Order 6 Rule 2(d)


    The endorsement must contain the name of solicitor and the adress of the firm.

    Duration or validity of the writ - Order 6 Rule 7(1)


    Life span of a writ is 6 months beginning from its date of issue. Within 6 months, writ must be
    successfuly serve on the defendant. If the writ is not served on the defendant within 6 months,
    the writ will expire or lapse.

    CASE: CF TROW V IND COOPE


    Issue: 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.
    Question: If Pf's writ has expire, what are the Pf's options?
    1. Pf can issue a new writ (recommence fresh proceedings) against the defendant if the LP has
    not set in.
    2. Pf can apply for a renewal of the writ/ for an extension of validity of the writ under Order 6
    Rule 7(2) because limitation period has set in.

    Requirements under Order 6 Rule 7(2A)


    1. Application must be made before the expiry of the writ.
    2. Application is made by way of exparte notice of application supported by an affidavit.
    3. The Affidavit must state 2 things: (a) efforts have been made to serve the defendant within
    one months from the date of the issue of the writ and (b) further efforts have been made to
    serve the writ on the defendant but was unsuccessful.

    CASE: CAPTAIN HAMZAH B MOHD NOR(FC)


    Facts: The respondent filed a writ of summons at the Singapore High Court and simultaneously
    filed two other writs the same at the High Courts at Shah Alam and Kuala The writ filed in HC
    Shah Alam and KL have not been served. Action need to be commenced in Shah alam. 16
    months had lapsed from the filing of the Shah Alam action. Meanwhile, both the writs had been
    renewed ex parte without any attempt having been made to serve them on the appellant.

    Issue: Whether the requirement of showing that efforts have been made to effect service of a
    writ under O 6 r 7 (2A) is a mandatory prerequisite to the exercise of discretion under O 6 r 7 (2)
    of the RHC; and (ii) in the event of such a failure to comply with the prerequisites of O 6 r 7 (2A),
    whether O 1A can be invoked in order to cure that failure.

    Held: The word 'must' used in O 6 r 7 (2A) shows that 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 respondents' applications for extension of time for the service of the writs were
    defective as they did not show compliance with the RHC. Order 1A cannot be invoked when a
    party intentionally disregards in complying with the RHC.
    Order 6 Rule 7(2): Court can grant renewal of the writ up to 6 months
    1. In Peninsular Malaysia - up to 2 times
    2. In Sabah & Sarawak- up to 3 times
    3. In admiralty action- up to 5 times.

    Service of the writ


    After the writ has been issued, the writ must be served on the defendant. Pf served writ on the
    def must comply with rules as to service. If Plaintiff does not comply with the rules as to serivce
    of the writ, it will be invalid and the effect would be as if the writ has never be served at all.

    Service of the writ on the individual


    Order 10 Rule 1- A writ may be served
    1. personally on each Df,
    2. prepaid AR registered post

    1.Personal Service -Order 62 Rule 3


    Personal service is affected by handing a copy of the writ to the Df and showing him the original
    if he is so required.

    Is it possible to serve the writ in a sealed envelope and hand the copy to the defendant?
    CASE: BANQUE RUSSE.
    No. Unless accompanied with explanation that it contains a writ.

    What if defendant does not want to accept or becomes violent?


    CASE: THOMSON V PHENEY
    If the defendant refuses or becomes violent, the personal service may be effected by tossing the
    writ on the him or by leaving it at the spot near him. There is no need for acknowledgement.

    2. By prepaid AR Registered Post addressed to his last known address


    AR - acknowledgement return, basically registered post where the AR card is signed by the
    receipient 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.
    What if the AR card is signed by another member of the household?
    Answer: Valid, As long as it is written and acknowledge.

    Exceptions to personal service


    1)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.
    3 requirements:
    i. The defendant must have appointed solicitor
    ii. The defendant solicitor must have accepted the service of the writ on his behalf.
    iii. The Df’s solicitor must signed on the original copy of the writ that he accepts service
    on behalf of the defendant.

    2)Order 10 Rule 1(3) - Where the defendant enters an appearance before being served with the
    writ (rarely happen).
    3) Order 62 Rule 5 - Where an order for substitute service has been made.
    i. An application made by the Plaintiff to show the Court that it is impossible to serve
    notice under Order 10 Rule 1.
    ii. If the Court satisfied, the Court may give an order for substituted service which means
    the Court allows the Pf to serve the writ using different methods. Court must give an
    order.
    iii. Once Plaintiff follows the order, service is VALID. Eg advertisement in the newspaper,
    posted on Court's notice board, send copy to last known address.

    4)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 conpicuous part of the land.

    5)Order 73 Rule 3(2) - Where in proceedings against gov, the writ is served on AG if Fed Govt -
    Order 73 Rule 3 and State Govt - State Secretary Order 73 Rule 3, Order 70 Rule 7 and Order 70
    Rule 10.

    6)Order 11 Rule 5 – Where service is affected in foreign country, notice of writ need not be
    served personally.
    7) Order 73 Rule 7 or Order 70 Rule 10- In admiralty action, ship can be sued by affixing a copy
    of the writ on the mast of the ship
    8) Service by contract- when the parties had entered into contract which stipulate teh method
    of service. The mode may be used and need not comply with Order 10 Rule 1. If the Pf did not
    comply with the contract but the Rule, the service is valid.

    9) Service on Companies
    It can be companies registered under the Companies Act, foreign company and other institution
    or corporate body not a company under the Act.
    How to serve?
    Section 350 of Companies Act
    A writ or OS may be served by leaving or sending it by registered post to the registered office of
    the company (normal reg post).

    Section 119 of Companies Act


    Every company registered under the CA must have registered address. Reg address must be
    registered with the Registrar of Companies (SSM/CCM). Plaintiff want to serve must search the
    registered address of particular company that he wishes to sue at CCM.

    CASE: SUMMIT COMPANY (M) SDN BHD V NIKKO PRODUCTS


    Defendant company changed registered address and inform Registrar that it has changed its RA.
    Defendant was sued under CA. However, for many months this change of address was not
    entered into the Registry record. Plaintiff wanted to serve the writ and found old registered
    address was still in the record. And plaintiff served the writ on the old reg address. The plaintiff
    does not know that the defendant has changed its reg add.
    Question: Was the service valid?To determine ,the question for the Court was when the change
    of address take place? Did it take place on the date of lodgment or when Registrar entered the
    change into record?
    Fed Court held the relevant date is the date of lodgment, the date the defendant company
    informed the change of address. Service was therefore invalid.

    Order 62 Rule 4 – Provide methods of service on corporations which means how to serve a writ
    on corporation. Included company under CA, foreign company.
    i. by leaving or posting by reg post to the reg address of the company,
    ii. send by reg post to the principal office of the company.
    iii. by hand in the copy to Director/Chief Secretary/Principal Officer of the Company.
    10)Service registered under Societies Act
    Section 9(c) of Societies Act
    Writ must be served on the Public Officer of the society; by way of personal service or prepaid
    AR registered post.

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