IN THE FEDERAL COURT OF MALAYSIA

(APPELLATE JURISDICTION)
CIVIL APPEAL NO: 02(i)-35-04/2019(W)
BETWEEN
1. GOH TENG WHOO
2. TAN HWA CHENG … APPELLANTS
AND
AMPLE OBJECTIVES SDN BHD … RESPONDENT

CORAM
ABDUL RAHMAN SEBLI, FCJ
HASNAH MOHAMMED HASHIM, FCJ
MARY LIM THIAM SUAN, FCJ

JUDGMENT OF THE COURT

[1] The question of law for our determination concerns the

service of a writ and statement of claim (“the writ” for
convenience). The question is as follows:

“Whether, considering the relevant provisions in Orders 10,13 and 62

of the Rules of Court and S. 114(f) of the Evidence Act and S. 12 of
the Interpretations Acts 1948, 1967, where service of a Writ is alleged
to have been carried out by way of sending the same to a Defendant
by A.R. Registered Post pursuant to O. 10, R. 1(1) of the Rules of
Court, 2012, can the Court seal a judgment in default of appearance
notwithstanding that the Affidavit of Service does not exhibit the A.R.
Registered Card containing an endorsement as to receipt by the

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 Defendant himself or someone authorized to accept service of the
same on his behalf?”

[2] The proposition behind the question is that where the plaintiff
elects to effect service of a writ by AR registered post rather than
by personal service, he must produce the acknowledgement of
receipt card (“AR card”) as proof of such service before the court
can enter final judgment in default of appearance (“JID”) against
the defendant.

[3] The appellants’ submission is that the answer to the leave

question should be in the negative, i.e. the court cannot seal a
JID in the absence of proof of service and that this proof can only
come by:

(a) the affidavit of service exhibiting the AR card;

(b) the AR card showing an endorsement acknowledging

receipt by the defendant himself;

(c) or, if the endorsement is not made by the defendant

himself, the affidavit of service showing that the indorser
was someone authorized by the defendant to accept
service of the writ on his behalf.

[4] The facts material to the issue are as follows. The appellants
were the 4th and 5th defendants respectively in the High Court.
The respondent filed the writ on 11.8.2016. Upon extraction, the
respondent by its solicitor attempted to serve the writs on the

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appellants by AR registered post on 22.8.2016. This was done
pursuant to O. 10 r. 1(1) of the Rules of Court 2012 (“the Rules”)
which provides:

“(1) Subject to the provisions of any written law and these Rules, a writ
shall be served personally on each defendant or sent to each defendant
by prepaid A.R. Registered post addressed to his last known address
and in so far as is practicable, the first attempt at service must be made
not later than one month from the date of issue of the writ.”

[5] The provision is clear and unambiguous. It says that subject

to the provisions of any written law and the Rules, it is mandatory
for a writ to be served on the defendant either personally or sent
by AR registered post. Where the plaintiff elects to effect service
by AR registered post instead of personal service, he must send
the writ to the last known address of the defendant within the
specified period.

[6] As a step towards entering JID against the appellants, the

respondent’s solicitor affirmed an affidavit of service stating that
he had posted the writs by AR registered post to the appellants’
last known addresses. But he did not exhibit the AR cards, nor
did he inform the court whether the AR cards were returned or
otherwise. He merely exhibited proof of posting by indorsing the
day and date of service on the flip side of the writs. This is what
he said in paragraph 6 of his affidavit of service:

“[6] Saya juga telah pada tarikh yang sama membuat suatu pengindorsan
tentang hari dan tarikh penyampaian di belakang Writ tersebut.”

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[7] The indorsement was to comply with O. 62 r. 9 of the Rules
which provides that the affidavit of service shall state inter alia the
day of the week and date on which the writ was served. It is in
fact a requirement of O. 10 r. 1(4) of the Rules which if not
complied with disentitles the plaintiff from entering final or
interlocutory judgment against the defendant. The provision
reads:

“(4) Where a writ is duly served on a defendant otherwise than in

accordance with paragraph (2) or (3), then subject to Order 11, rule 5,
unless after service the person serving it endorses on it the following
particulars, that is to say, the day of the week and date on which it was
served, where it was served, the person on whom it was served, and,
where he is not the defendant, the capacity in which he was served, the
plaintiff in the action begun by the writ is not entitled to enter final or
interlocutory judgment against that defendant in default of appearance or
in default of defence, unless the Court otherwise orders.”

[8] It is worth noting that the provision speaks of a writ that is

“duly served” on the defendant. As for proof of service, O. 13 r. 7
of the Rules provides as follows:

“(1) A judgment shall not be entered against a defendant under this Order
unless –

(a) the plaintiff produces a certificate on non-appearance in Form 12;

and

(b) either an affidavit is filed by or on behalf of the plaintiff proving

due service of the writ on the defendant, or the plaintiff produces

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 the writ endorsed by the defendant’s solicitor with a statement
that he accepts service of the writ on behalf of the defendant.

(2) Where an application is made to the Court for an order affecting a

party who has failed to enter an appearance, the Court may require to be
satisfied in such manner as it thinks fit that the party is in default of
appearance.”

[9] Obviously the intention behind the provision is to ensure that

the action has been brought to the knowledge of the defendant or
someone authorised by him to accept service of the writ before
the court takes the drastic step of sealing the JID with all the
attendant consequences.

[10] It must be remembered that this mode of service, although

allowed by the law, has the potential to cause hardship to
unsuspecting defendants. It is therefore necessary for the court
to exercise caution before entering JID against a party who fails
to enter appearance. The object of the provision will be defeated
if the court were to mechanically accept without question the
plaintiff’s assertion that the writ has been served on the
defendant.

[11] Coming back to the facts of the case, no appearance was

entered by the appellants. Accordingly the respondent entered
JID against the appellants on 14.9.2016. It was only at the setting
aside application that the respondent in its affidavit in reply:

(i) exhibited the AR card in respect of service on the first

appellant, but the AR card disclosed that the AR postage

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 was received by a person by the name of “Goh Tiow
Beng”, later identified as the first appellant’s brother. It
was not received by the first appellant himself as the
defendant;

(ii) explained that the AR card in respect of service on the

second appellant was not returned.

[12] The appellants applied to set aside the JID but their
application was dismissed by the High Court on 21.3.2018. Their
appeal to the Court of Appeal against the decision was likewise
dismissed on 17.4.2018, hence the present appeal before us,
leave having been granted on 27.3.2019.

[13] The appellants’ case in both courts below was that the JID
were not regularly entered and ought to be set aside ex debito
justitiae as the AR cards were not exhibited in the solicitor’s
affidavit of service. It was submitted that in the absence of the AR
cards, service of the writs had not been proved by the
respondent. Both courts below rejected the argument and held
that there was no requirement for the AR cards to be exhibited in
the affidavit of service.

[14] The respondent’s case, which found favour with both courts
below was that for the purposes of O. 10 rr. 1(1) and 1(4) read
with O. 13 r. 7 of the Rules, it was entitled to rely on the postal
receipt issued by the post office to prove service without further
proof. In other words, proof of posting is conclusive proof of
service.

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[15] For this proposition, reliance was placed on section 12 of the
Interpretation Acts 1948 and 1967 (“the Interpretation Acts”)
which provides as follows:

“12. Where a written law authorises or requires a document to be

served by post, then, until the contrary is proved, service –

(a) shall be presumed to be effected by properly addressing,

prepaying and posting by registered post a letter containing the
document; and

(b) shall be presumed to have been effected at the time when the
letter would have been delivered in the ordinary course of the
post.”
(emphasis added)

[16] It is a double presumption – presuming both service and

time of service. The following authorities were cited by the
respondent to support its argument that mere posting is sufficient
to prove service:

(1) The Supreme Court case of Amanah Merchant Bank Bhd

(formerly known as Amanah Chase Merchant Bank
Berhad) v Lim Tow Choon (through the official assignee)
[1994] 2 CLJ 1 which held that it was sufficient to prove
service of the notice of demand by sending the letter of
guarantee through the post in an envelope addressed to
the last known address of the guarantor, and that it was

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 irrelevant whether it was sent by registered post or by AR
registered post.

Obviously it was not a case on O. 10 r. 1(1) of the

repealed Rules of the High Court 1980 which was similar
word for word with O. 10 r. 1(1) of the Rules. It was a
case on the construction to be given to a clause in the
letter of guarantee and not on the construction of
statutory provisions as is the case in the present appeal;

(2) The decision of this court in Maxland Sdn Bhd v Timatch

Sdn Bhd [2014] 7 CLJ 149 where the questions of law for
this court’s determination were as follows:

(i) Where a writ is endorsed generally with claims for

damages and restraining order, whether it is
mandatory for the plaintiff to serve a statement of
claim on the defendant and to proceed with the
action as if the defendant had entered an
appearance under O. 13 r. 6(1) of the Rules of the
High Court 1980;

(ii) If the answer is in the affirmative, whether a

judgment in default of appearance obtained before
the statement of claim is served is therefore irregular
and may be set aside ex debito justitiae.

It will immediately be seen that the issue before the

court was materially different from the issue before us

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 in the present appeal, which is whether service of the
writ by AR registered post is established by mere
proof of posting. The case is therefore not authority
for the proposition that posting is conclusive proof of
service of the writ;

(3) The Court of Appeal case of Yap Ke Huat & Ors v

Pembangunan Warisan Murni Sejahtera Sdn Bhd &
Anor [2008] 4 CLJ 175 (“Yap Ke Huat”) which held that
there is no requirement of law that the plaintiff must
prove that the person named in the post had received
the writ, and that once the writ is sent by AR registered
post it is prima facie proof of service unless there is
rebuttal evidence by the defendant. There was no
reference however to section 12 of the Interpretation
Acts. This is what James Foong JCA (as he then was)
said in delivering the judgment of the court when he was
dealing with the case for the sixth defendant:

“[30] In respect of this defendant, the prepaid A.R. registered

post acknowledgment card was not returned. But, following
what we have expounded earlier, this does not mean that the
service of the writ and statement of claim is deemed defective.
What is demanded in O. 10 r. 1 RHC is that the writ (and in
this case including the statement of claim) be sent by prepaid
A.R. registered post to the defendant’s last known address.
When there is sufficient evidence of posting, as it is in this
case, then under the rules, the writ (and statement of claim) is
deemed to be served on the defendant. There is no necessity
to prove that the acknowledgment of the A.R. registered

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 posting has been returned. Of course, if it is returned by the
Post Office then it is further proof that it was not only sent but
also received. But for the purpose of service, proof of
sending by prepaid A.R. registered post is sufficient”;
(emphasis added)

(4) The Court of Appeal case of Sivamurthy Muniandy &

Ors v Lembaga Kumpulan Wang Simpanan Pekerja
[2012] 9 CLJ 598 which followed Yap Ke Huat - that
there was no necessity for the plaintiff to prove receipt
of the writ by the person named in the AR registered
post;

(5) The High Court case of Pengkalen Concrete Sdn Bhd v

Chow Mooi & Anor [2003] 6 CLJ 326 where it was held
that there was no need for proof that the named person
in the writ must be the very same person who had
received it if it was sent by AR registered post. In that
case, the writ was received by one “Yanti" and not the
appellant but this did not vitiate the service of the writ.
The decision was approved by Yap Ke Huat.

[17] The appellants on the other hand relied on the following

authorities to support their argument that the AR cards must be
produced as proof of service before the JID could be entered
against them:

(1) The Court of Appeal case of Chung Wai Meng v

Perbadanan Nasional Berhad [2017] 1 LNS 892; [2018]

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 1 MLRA 331 (“Chung Wai Meng”) which held that
production of the AR card is a prerequisite before JID
can be entered against the defendant;

(2) The High Court case of Tajudeen MK Syed Mohamed v

ZMS Construction [2018] 5 MLRH 72 which followed
Chung Wai Meng – that posting is not sufficient to prove
service of the writ and that actual receipt by the
defendant of the envelope containing the writ must be
proved at the time JID is sought to be entered. This is to
avoid an unwitting defendant from being visited with the
draconian and drastic consequences which may follow
the JID;

(3) The High Court case of Azhar bin Wahab v ANS

Development Sdn Bhd [2017] MLRHU where the
learned judge took judicial notice of the Pos Malaysia
website which explains the features of postage by AR
registered post and went on to rule that the production
of the AR card is a prerequisite to prove service. The
learned judge further ruled that the affidavit of service
must allude to the status of the AR card. The decision is
consistent with Chung Wai Meng;

(4) The High Court case of Ali bin Jeman v Indranika Jaya
Sdn Bhd & Ors [2016] MLJU 1485 which decided that
since the AR card was never returned, most probably
the writ was never served and that in any event the
plaintiff bore the burden of proving service which he was

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 unable to do conclusively in the absence of the AR card.
The decision is also consistent with Chung Wai Meng.

[18] According to learned counsel for the appellants, which

learned counsel for the respondent did not dispute, it is common
knowledge that the ordinary business of delivery by AR
registered post is only completed by any of the following events
taking place:

(a) the return of the envelope and document to the sender and
the document with the notation “tidak dituntut”; or

(b) the return of the AR card to the sender with the

acknowledgment of receipt by the intended recipient; or

(c) the return of the AR card to the sender with the receipt
acknowledged by a third party.

[19] It was pointed out that the respondent’s affidavit of service

did not allude to any of the above events having taken place. In
the circumstances, it was submitted that the learned Registrar of
the High Court ought not to have accepted the affidavit of service
at face value and to seal the JID in the absence of the AR cards.

[20] There is substance to the argument. The affidavit of service

merely alludes to the fact that the writs had been posted by AR
registered post to the last known addresses of the appellants. It
does not allude to the fact that the appellants or their authorised
representatives had acknowledged receipt of the writs.

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[21] Learned counsel emphasised the point that O. 10 r. 1(4)
imposes an obligation on the plaintiff who serves pursuant to O.
10 r. 1(1) to indorse on the writ the following particulars, failing
which no JID may be entered:

(i) the day of the week and the date on which it was served;

(ii) where it was served;

(iii) the person on whom it was served; and

(iv) where the person served is not the defendant, the

capacity in which he was served.

[22] The contention was that irrespective of whether service is

personal or by AR registered post, it is incumbent on the plaintiff
to indorse on the originating process the above four
requirements. It was argued that only the production of the AR
card will allow the process server to comply with O. 10 r. 1(4) of
the Rules, namely to state the name of the person on whom it
was served, and if such person is not the defendant, the capacity
in which he was served.

[23] Dato’ Kirubakaran for the appellants conceded that it is

impractical for the plaintiff to seek out the postman who delivers
the AR registered post to indorse on the writ those particulars but
argued that considering the drastic consequences of a JID,

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service on the person named in the AR registered post must be
strictly proved.

[24] The Court of Appeal in Chung Wai Meng quoted with

approval the following observations by Siti Norma Yaacob J (as
she then was) in Public Bank Bhd v Rasatulin Holdings Sdn Bhd
& Ors [1988] 1 LNS 170 (“Rasatulin”):

“In this instant case, rather than sending the notices by ordinary post, the
solicitors for the plaintiff chose to send them by way of AR registered post
and by doing so, the plaintiff has varied cl 8 of both guarantees. By so
choosing, the plaintiff has also burdened themselves with the added
responsibility of seeing that the AR cards shall be returned to them duly
acknowledged by the fourth and fifth defendants, for there to be proper
service of such notices on them. In this case both the AR cards were
returned with the endorsements ‘kembali tidak boleh dituntut’. As there is
no proper and effective service of such notices on the fourth and fifth
defendants, this in itself affords a defence to both of them.”

[25] Like the case of Amanah Merchant Bank, Rasatulin was a

case on the construction to be given to a clause in the letter of
guarantee and not on the construction to be given to the
provisions of the repealed Rules of the High Court 1980 read with
section 12 of the Interpretation Acts. The case is therefore of little
assistance to the appellants except perhaps for the persuasive
reasoning of the learned judge on the need for the AR cards to
be duly acknowledged by the defendants in that case.

[26] It was the submission of learned counsel for the appellants

that the courts below should have adopted the purposive

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approach in interpreting O. 10 r. 1(1) of the Rules in deciding
whether service had been properly effected, for the following
reasons:

(i) Service of the writ, whether in person or by AR

registered post must be effected personally on the
named defendant;

(ii) When the respondent elected to serve the writ by AR

registered post, it was incumbent on the respondent to
produce the AR card evidencing receipt of the writ by the
named defendant.

[27] According to counsel, it would be an unsafe practice in

litigation to allow a plaintiff who elected to serve an originating
process by AR registered post to enter default judgment without
producing the AR card which would indicate whether the
originating process had indeed been received by the intended
recipient. We were referred to Malaysian Civil Procedure 2013
where the learned authors opine that the AR card must be
produced to prove service.

[28] On the authority of Chung Wai Meng, it was submitted that

the High Court had fallen into error in holding as a matter of law
that service by AR registered post is deemed to have been
effected by the posting receipt issued by the post office. It was
argued that service is only duly effected upon production of the
AR card as proof that the intended defendant had acknowledged
receipt of the writ by signing on the AR card. It was thus urged

15
upon us that the later decision of the Court of Appeal in Chung
Wai Meng is to be preferred over Yap Ke Huat.

[29] This brings us to the crux of the matter, which is the

respondent’s contention that where service is effected by AR
registered post, service is presumed by section 12 of the
Interpretation Acts to have been effected and no further proof is
required other than proof of posting.

[30] It does not escape us that section 12 of the Interpretation

Acts speaks of “registered post” whereas O. 10 r. 1(1) of the
Rules speaks of “A.R. Registered post” but in our view that
makes no difference to our final analysis as both are “registered
post”. Surely “registered post” is wide enough to include “AR
registered post”. More importantly, section 12 of the Interpretation
Acts is more concerned with service of a document by post rather
than with the type of post.

[31] Section 12 of the Interpretation Acts must be read in its

proper context. What it says is that where a document is served
by registered post, service and time of service are “presumed”
“until the contrary is proved”. There is nothing in the section to
say that posting by registered post is conclusive proof of service.
What is clear is that it is a rebuttable presumption of law that can
be displaced by evidence to the contrary. It is not an irrebuttable
presumption that shuts out all forms of defence to the proof of
posting.

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[32] Thus, if there is evidence that the defendant has not been
served with the document, the presumption is rebutted and the
court will make a finding that there has been no service of the
document in an application for setting aside. It is anathema to the
concept of justice and fair play that a defendant who has no
knowledge of the action is attached with liability without being
given the opportunity to explain why the default judgment should
not be entered against him.

[33] It must be appreciated that the presumption of service under

section 12 of the Interpretation Acts only kicks in if the document
has been sent by registered post to the proper address of the
defendant, in the case of O. 10 r. 1(1) of the Rules to his last
known address. Failure to do so will render the service bad in law
and consequently no JID can be entered against the defendant,
unless there is evidence direct or circumstantial to prove that
service by post had been effected without the aid of the
presumption.

[34] In the context of the present appeal, the question is whether

the respondent had sent the writs by AR registered post
addressed to the last known addresses of the appellants as
required by O. 10 r. 1(1) of the Rules. If that had been done,
service by post would be presumed to have been effected by
operation of section 12 of the Interpretation Acts and the burden
would then shift to the appellants to prove to the contrary that
they had not been served with the writs.

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[35] Whether or not the respondent had complied with O. 10 r.
1(1) of the Rules by sending the writs by AR registered post
addressed to the last known addresses of the appellants and
whether the appellants had rebutted the presumption of service
under section 12 of the Interpretation Acts by proving that they
did not receive the writs were matters for the trial court to
determine, being questions of fact.

[36] In the present case, the approach taken by both courts

below was that posting of the writs by AR registered post was
conclusive proof of service, thus leaving no room for the
appellants to discharge their burden of proving that they did not
receive the writs, in rebuttal of the presumption under section 12
of the Interpretation Acts.

[37] We have to say with regret that this is a wrong approach

which had occasioned a serious miscarriage of justice to the
appellants in that they had lost the chance of having the JID set
aside ex debito justitiae on the ground that they were irregularly
obtained for failure of service. The error is serious enough to
vitiate the judgments entered against them.

[38] The appellants’ case had been that they had succeeded in
rebutting the presumption of service as established by the
following facts:

(a) The first appellant exhibited evidence that he was not

residing at the address of service at the material time. His

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 estranged brother had signed on the AR card and did not
inform him of the same;

(b) The second appellant admitted residing at the stated

address but denied receiving the writ. No AR card was
ever produced by the respondent in respect of the second
appellant.

[39] In our view, there is sufficient merit in the point raised. Since
the appellants denied receiving the writs, which denials were
corroborated by the respondent’s failure to produce the AR cards
duly signed by the appellants or their authorised representatives,
the presumption of service under section 12 of the Interpretation
Acts had been rebutted by the appellants on the balance of
probabilities.

[40] The appellants had asserted under oath that they did not
receive the writs but the respondent chose not to contradict the
assertions by producing the AR cards duly signed by the
appellants or their authorised representatives. In the case of the
first appellant, the AR card was signed by his brother who was
not his authorised representative and in the case of the second
appellant, the AR card was not even returned. On the facts
therefore, it is more probable than not that the appellants did not
receive the writs.

[41] It would have been easy for the respondent to produce the
AR cards to prove service but no explanation was given as to

19
why this was not done except to say that it was not required by
law to do so.

[42] Therefore, the respondent’s failure to contradict the

appellants' assertions that they did not receive the writs must be
taken as an admission of the fact so asserted: See Alloy
Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] CLJ
Rep 45 (“Alloy Automative”) which the Court of Appeal applied in
Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 CLJ 609.
In Alloy Automative, this is what Lee Hun Hoe CJ (Borneo)
delivering the judgment of the Supreme Court said:

“In his affidavit dated 30 April 1984 Choo Chak Low did not answer the
matters raised in the above affidavit of Liew Mook. There is force in the
appellant’s contention that an affidavit must reply specifically to the
allegations, and if it does not, then those allegations not replied must be
taken to have been accepted. In Dawkins v Prince Edward of Saxe
Weimar [1875-76] 1 QBD 499 Blackburn J stated:

… Now, upon that, if that is the true state of the case, we are of
opinion that no cause of action can be shewn. Colonel Dawkins does
not meet that in the affidavit in reply…..”

[43] For all the reasons aforementioned, our answer to the leave
question is in the negative, that is to say, where service of a writ
is alleged to have been effected by way of sending the same to a
defendant by A.R. Registered post pursuant to O. 10 r. 1(1) of
the Rules of Court 2012, the court cannot seal a judgment in
default of appearance where the affidavit of service does not
exhibit the A.R. Registered card containing an endorsement as

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to receipt by the defendant himself or someone authorized to
accept service of the same on his behalf.

[44] In the circumstances, the appeal is allowed. The decisions

of the courts below are aside and the appellants' application to
set aside the JID is allowed. My learned sisters Hasnah
Mohammed Hashim FCJ and Mary Lim Thiam Suan FCJ have
had sight of this judgment in draft and have agreed to it. Costs to
the appellants, subject to payment of the allocator fee.

ABDUL RAHMAN SEBLI

Judge
Federal Court of Malaysia
Dated: 5 March 2021.

For the Appellants: Dato’ Kirubakaran and Jasvinjit Singh of

Messrs Au & Jasvinjit Singh & Co.

For the Respondent: Mansur Ussaimi Bin Mohd Salleh and

Mohd Shahir Bin Mohd Isa of Messrs
Mansur & Yazrudin.

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