Writ

Commencement of proceedings = 4 forms of process 1. Writ of summon = matters involving private dispute of law/fact btwn 2 or more parties 2. OS = application under statute – requirement 3. Originating motion =matters with public interest (right) 4. Petition = touch on status – declare of status ex: marriage status O5 R1 = proceedings can be commenced by OS or writ except for those under the written laws l isted in schedule C ( O94 R2) Writ O5 R1 = Provides that writ is one of the methods to commence civil action in Court. O5 R2 – Action which must begun by writ 1. relief for torts committed other than trespass to land, 2. those alleging dealings of fraud, 3. Case: Seah Choon Chye v Saraswathy Devi [1971] 1 LJ 112 Held : a claim involving an allegation of fraud must be begun by writ, as parol evidence is usually required 4. those of breach of any duty, case: Lau Ee Ee vTang King Kwong [1986] 1 MLJ 308 Held: the injurious sustained must be expressly pleaded and proved, or admitted, in order to obtain damages 5. those of breach of promise to marry, 6.

those where patents have been infringed.

- The writ is i s preferred here because substantial disputes of fact are likely to occur in cases of these natures, and thus witnesses would need to be called to establish or disprove such facts. O5 R4 (2) Action which writ may be used. 1. Sole principle or question or issue is likely to be construction of any written law of any deed, will, contract or other document 2. Unlikely substantial dispute of fact 3. O72 R2 = a probate action must be begun by writ, but if begun by OS it is improperly constituted constituted Case: Seah Choon Chye v Saraswathy Devi [1971] 1 LJ 112 Held: if a case does not fall under RHC 1980 O5R2, then the P has a choice of commencing the action by way of writ or OS, depending on the existence of a dispute of fact Case : Ng Wan Siew v Teoh Sin [1963] MLJ 103 Held: where a case is likely l ikely to involve witnesses giving conflicting evidence, the writ od summon is the appropriate originating process Case: Lim Cho Hock v Speaker, Perak State Legislative Assembly [1979] 2 MLJ 85 Held : proceeding wrongly commenced by originating summon, writ is appropriate mode

Question of construction 1. sale and purchase agreement Case: National Land Finance Co-operative Society Ltd v Sharidal Sdn Bhd [1983] 2 MLJ 211 Held: the procedural objection raised by the appellants had no substance as in this case it is purely matter of constcution of sale and purchase agreement between the parties. Hence, no other evidence is needed to determine the issue with undisputed facts. Therefore, OS is an appropriate way to commence the proceedings. 2. construction of deed of settlement Duration and renewal of writ and OS O6 R7 – writ =life span of 6 months O7R6—OS = 6 months It must be stated in the affidavit the attempts and reasons made for the service before renew O6 R6(2A) - Must be made by ex parte summons and that it must be supported by an affidavit showing that effort has been made to serve the writ within one month from the date of the writ being issued. Case: Kleinworth Benson Ltd v Barbrak Ltd [1987] 2 All ER 289 Held: that giving a good reason was sufficient to renew. Case: New Ching Kee v Lim Ser Hock (1975) 2 MLJ 183 Held: reason on the ground of that the file was mislaid and a negotiation was in process was held not to be a sufficient reason. Form of writ O6 R1 – form 2 =HC, For 2A subordinate courts Issue of Writ O 6 R6 (2) ve the original copy of writ to the Registrar and copies as in accordance to the number of defendant to be served when presenting it for sealing. = atleast 3 O6 R6 (3) d shall sign, seal and date the writ. Endorsement of writ O 6 R2 (1) nature of claim or the relief sought by the plaintiff which complies with Order 18

Service of writ O10 R 1(1) A writ must be personally served on each defendant by; a) Prepaid registered post b) To his last known address c) If practicable, first attempt should be made not later than one month from the date of its issue. Case: Supreme Finance (M) Bhd v Wing Hong How [193] 3 MLJ 114 Held:must be served personally on each D by P or his agent unless some alternative method is / has been authorized for that particular case. Case: Amanah Merhant Bank Berhad v Lim Tow Choon [14] 1 MLJ 413 Held: not necessary named person must receive, it can be anyone Order 10 Rule1(4) – produce duly acknowledged AR card Case: Pengkalan Concrete Sdn Bhd v Chow Mooi [2003] 3 MLJ 67 Held: not necessary that the person named in the writ received it 1. Person affecting It is no longer necessary that service be affected by the court or other official process serves. The plaintiff or his agent, who may be there plaintiff’s solicitor or his clerk, can now affect service. 2. Last known address Case: Ramlan bin kamal v Perbadanan Nasional Berhad [2004] 1 MLJ 425 Held: last known address the ost recent known residence of the defendant. A summon may personally be served at his place of employement 3. Company –company search a. By leaving a copy of writ at the registered address of the company b. Sending a copy to office-principle office c. Send to secretary /director/officer 4. Partnership or firm Order 77 rule 3 – writ must have all the names 5. Person under disability Order 76 Rule 14 Minor- father/guardian/ to who he resides with Patient – person authorized to act on him 6. Service of solicitor 7. Service on agent of overseas principle a. Order 10 rule 2 b. Leave from court c. Exparte application d. Evidence that the party is the agent of a foreign principle whom must also be adduced e. Agent if individual should be residing or carrying on business within jurisdiction

8. Service on government AG or any officer designated by AG Ex: state secretary How to give effect to personal service? - O62 R3 a) By leaving a copy of the document to the person to be served, and if so requested, show him the sealed & office copy of the writ. b) By handing the document to him or to leave it as near as physically possible for him to assume possession of the document. c) The purpose of leaving the document with him must also be informed. Case: Thompson v Pheney (1983) 1 Down 441 Held: that throwing the writ at the person to be served after refusal to accept is sufficient service. Insufficient service Case: Banque Rusee v Clark [1894] WN 203 held : that the failure to inform the nature of the document and the purpose of leaving the document is an insufficient service. - Leaving the writ with the spouse of the person to be served or with his agent is also an insufficient service. Exception i- O10 R 1(2) – if defendant’s lawyers endorses he accepted it on behalf of defendant. ii- O10 R 1(3) – shall deem to be served if defendant enters unconditional appearance. iii- O75 R 3 – service of writ on govt, for fed – on AG or other designated officer. For state, on State secretary. Substitute Service and its procedure O62 R5 (1) – court may order for substitute service if it is impractical to serve the writ personally. a. May only be affected pursuant to court order. b. To procedure to obtain this order is by ex parte summons supported by affidavit. c. Instances when the substituted service are required: I- Whereabouts of d/f is unknown. II- Whereabouts is known but is not present to accept the service of writ. d. Before substitute service is applied, plaintiff should conform to the practice note of 1/68. -in affidavit put the attempt / reasons that person service is impracticable Ex: - Newspaper advertisement. - By posting a copy of the writ on the court notice board. - By sending a copy of the writ to the defendant last known address. - By posting/affixing a copy of the writ on the conspicuous part of defendant premises. -JPN search

Affidavit of service Order 62 Rule 9 – form 135 a) Direction of substitute service. Case: Development & Commercial Bank v Aspatra Corp Sdn Bhd [1995] 3 MLJ 472 Held: that the order of substitute service of court must be obeyed and can only be challenged as regard to its validity. b) Failure to comply with court direction in substitute service. Case: Leow Boke Chooi v Asia Motor co Ltd [1967] 2 MLJ 109 Held: that the plaintiff’s judgment was irregular as the order of substitute service had not been complied as no copies of summons, soc, and the order was posted on the notice board of the courthouse in KL. Service out of jurisdiction Order 11 that where the claim is not one of those mentioned in Order 70 rule 3(1), service of originating process out of Malaysia is permissible with the leave of court in the circumstance in a - l a) Foreign defendant within jurisdiction of court. Case: B Atmaram & Sons v Essa Industries Ltd [1969] 1 MLJ 44 Held: that a generally endorses writ can be served to defendant, a foreign company, while on a visit to Singapore although the company had neither an office nor an agent in the Singapore. - O6 R6(1) provided that no writ out of jurisdiction under O11 shall be issued without the leave of the court, and the failure to obtain leave will invalidate the writ. - Therefore, must first obtain leave of court. b) Foreign defendant outside jurisdiction of court. - O6 R6(1)- see above #### bankruptcy notice must be served personally cannot by AR ### for others, if got contract, follow contract.