Federal Court: AR Card is needed to prove service of Writ

A) Previous position regarding “good” service of Writ – a dilemma

Order 10 Rule 1 of the Rules of Court 2012 (‘ROC’) stipulates,

‘… subject to the provisions of any written law and these rules, a writ must be served personally on each defendant or by sending it by prepaid AR registered post addressed to his last known address …’

This means that when it comes to proving that a writ has been served, parties would normally rely on the act of sending a writ by prepaid AR registered post addressed to the defendants’ last known address to prove that such writ had been sent.

In 2003, the High Court in Pengkalen Concrete Sdn Bhd v Chow Mooi & Anor [2003] 3 MLJ 67 (“Pengkalen Concrete”), in answering the question of what is to be considered as good service, held that there was no requirement for the Plaintiff to prove that the named person in the writ must be the very same person who had received, if the writ was sent by A.R. Registered Post.

The court also made it clear that where a written law, i.e. the Rules of High Court (“RHC“) authorized postal service, until and unless the contrary is proven, service shall be presumed to have been effected at the time when the letter would have been delivered in the ordinary postal course.

The most notable case which solidified this was in the Court of Appeal decision of Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175 in which the court expressed,

“Once the writ and statement of claim are sent by AR registered post it is prima facie proof of service unless the defendant is able to rebut it. On the facts, it was clear from the affidavit of the second defendant that he had the knowledge that the writ and statement of claim were served on the first defendant”

Essentially, the mere proof that a writ has been sent by way of A.R. Registered Post is a good enough reason for the courts to regard the service of Writ as successful. Moreover, AR cards not needed.

Now, even if the previous cases did not require A.R Card, there were a few cases which reached a different conclusion, and thus, creating confusion in regards to the importance of having the AR Card.

In the High Court decision of Ali bin Jeman v Indranika Jaya Sdn Bhd & Ors [2016] MLJU 1485, the court focused on the fact that the said AR card was not returned and meant that the Writ of Summons and the Statement of Claim was not delivered. In any event the Plaintiff bears the burden to prove service, the AR card is needed to conclusively prove it.

In 2017, the Court of Appeal in Chung Wai Meng v Perbadanan Nasional Berhad [2017] 1 LNS 892 held that the A.R. Card is a mandatory prerequisite before a Judgement in Default can be entered against the defendant. The court shared the same opinion as the court in Public Bank Bhd v. Rasatulin Holdings Sdn Bhd & Ors [1989] 1 MLJ 47, where it was decided that sending the notices by ordinary post, by way of AR registered post, the plaintiff has also burdened themselves with the added responsibility of seeing that the AR cards shall be returned for there to be proper service of such notices on the defendants.

(B) Federal Court case of Goh Teng Whoo & Anor v Ample Objectives SB

Just recently, the apex Court answered the following question of law:

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

The panel led by Abdul Rahman Sebli, FCJ held that the answer to the leave question should be in the negative, i.e. the court cannot seal a Judgement in Default 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.

Finally, this issue is put to bed and moving forward, all Plaintiffs are required to exhibit the AR Card to prove service of Writ to their respective Defendants.