Service of writ by way of AR Registered Post  – Proof of posting to establish the service of a writ by AR Registered Post – Rules of Court 2012, Order 10, Rule 1(1) – Interpretation Acts 1948 and 1967, Section 12

Goh Teng Whoo and Tan Hwa Cheng v Ample Objectives Sdn Bhd
Civil Appeal No 02(i)-35-04/2019(W), Federal Court

- see the grounds of judgment here

Facts The respondent entered a judgment in default (“JID”) against the appellants respectively as no appearances were entered by them. As a step towards entering JID against the appellants, the respondent’s solicitor affirmed an affidavit of service stating that he had posted the writ by AR registered post to the appellants’ last known addresses but he did not exhibit the acknowledgement of receipt cards (“AR card”), 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 writ. The Appellants applied to set aside the JIDs on the basis that they were irregularly entered by the Respondent. It was submitted that in the absence of the AR Cards, service of the Writs had not been proved by the Respondent. It was only at the stage of the application to set aside JID that the Respondent in its affidavit in reply: a) exhibited the AR Card in respect of the service on the 1st Appellant, but the AR card disclosed that the Writ was received by the 1st Appellant’s estranged brother, who was not the authorised by the 1st Appellant to accept service of the Writ on his behalf; b) explained that the AR Card in respect of the service on the 2nd Appellant was not returned. The Respondent’s case was that for purposes of Order 10
[1], rules 1(1)[2] and 1(4)[3] read with Order 13 rule 7[4] of the Rules of Court 2012 (“ROC”), 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. The Respondent further relied on the presumptions set out in section 12[5] of the Interpretation Acts to support its argument that mere posting is sufficient to prove service. The High Court dismissed the Appellant’s application to set aside the JIDs and held that there is no requirement for the AR Cards to be exhibited in the affidavit of service. The Court of Appeal dismissed the same. Hence, this appeal.

Issue The main issue in this case is whether service of the writ by AR registered post is established by mere proof of posting.

Held In allowing the appeal, the Federal Court held that 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. Thus, the Court found that the appellants had succeeded in rebutting the presumption of service and set aside the decisions of the courts below and the appellants' JID.

ZUL RAFIQUE & partners
{15 March 2021}
[1] Service of originating process: General provisions
[2] 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 AR 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.
[3] 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.
[4] A judgment shall not be entered against a defendant under this Order unless— (a) the plaintiff produces a certificate of nonappearance 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 the writ endorsed by the defendant’s solicitor with a statement that he accepts service of the writ on behalf of the defendant
[5] Service by post

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