Question 22

(a) When is a writ deemed to be issued? Why is the date of the issue of the writ
important?
A1 O6 R 6(3): Writ is deemed issued upon Registrar assigning: a serial number to the writ, sign,
seal, and date the writ.

A2 Writ Is only effective when issued, otherwise it is not effective as no action is deemed to have
commenced)

A3 Why is the date of issue of writ important?

 O 6 r 7(1) : writ has a lifespan of 6 months beginning from the date of issue. During the
lifespan of writ, Pf have to serve on Df. If failed to serve on Df before the writ expired, the
writ will become a useless piece of paper.
 Determine the action was commence within limitation period
 On the date of issue, it will stop time from running

Jumatsah bin Daud v Voon Kim Kuet

The plaintiffs had done everything (filed a writ and paid the fee) within the period of limitation but
the writ was only signed and sealed after limitation period has set in.

Held: the writ should be dated on the day the writ was filed and the filing fee was paid, and with the
same date of the filing and the payment. The court’s irregular practice in dating the writ a few days
after being filed is unjust and prejudicial to plaintiff.

Kok Song Kong v BSP Co Sdn Bhd

H: the writ deemed to be sealed on the day it was filed.

Q22 (b) With reference to the provisions in the Rules of Court 2012 and the relevant cases, discuss
the principles that govern the renewal of a writ.

A1 O6 R7: A writ has a life span of 6 months beginning from the date of issuance. Within 6 months,
Pf have to serve on Df, otherwise writ will expired automatically.

A2 Trow v Ind Coope, • The court held that the writs were served out of time, for on the ordinary
meaning of the words of Order 6, r. 8 (1), the period of 12 months "beginning with the date of its
issue" included the date of issue of the writ. The date itself is the first date.

O6 R7 “beginning from”

A3 What is writ has expired.

 It depends on whether limitation has set in.

 If limitation has not yet set in > throw away the writ and issue a new one.
 If limitation has set in > renew.

A4 Conditions for renewal are laid down in O6 R7(2) and (2A).

O6r7 (2): Court may grant renewal –

o Up to 2 times in West Malaysia, 3 times in East Malaysia
o Each Renewal must not exceed 6 months
o Must show there is attempt to serve within the 1st month.
o Renewal takes effect on the next day on which the writ expires

O6r7 (2A): Application of renewal –

o Must be made before expiry of writ
o Ex parte notice of application supported by affidavit
o State and show good reason to apply:
i. Effort to serve the writ within 1 month from the date of issue
ii. Further effort made to serve subsequently (at least 3 efforts made)
  A5 Issue: O6r7(2) and O6r7(2A) Mandatory or Discretionary?

Andre Ravindran S Arul

 H: The court allow application for extension of the writ after expiry of the writ by virtue of
s45 of the Interpretations Act. Whilst this is inconsistent with O 6 r 7(2A) which requires
extension before expiry of the writ, s 23(1) of the Act renders a subsidiary legislation
(RHC) containing inconsistent provisions to be void
 Did not invoke O 1A, O 3 r 5(1), O 92 r 4. Instead, it relied on S45 Interpretation Acts.
According to James Foong J, O 6 r 7(2A) runs contrary to S45 Interpretation Acts. Since
the ROC is a subsidiary legislation, the Interpretation Acts must prevail over O 6 r
7(2A).
 The test to be applied for consideration for extension of the writ is "where the
court is satisfied that good reasons appear to excuse the delay in service".
 The plaintiff's delay in serving the writ was justified where he had commenced a parallel
action on the same subject matter against the defendant in the Singapore courts in which
the defendant had raised a preliminary issue of forum non conveniens.

CF Datuk Captain Hamzah bin Modh Noor

 When a court is deciding renewal, court must be vigilant to determine whether Pf really
made effort to serve writ on Df. The applicant must use all due diligence to effect
service at the earliest possible time.
 Restated requirements in O. 6 r. 7(2A) are mandatory prerequisites.
 A general provision such as O. 1A RHC must not supersede a mandatory
requirement of the Rules. Order 1A RHC cannot be invoked when a party
intentionally disregards in complying with the Rules.
 Term “must” stronger than “shall”

i. Can a writ be renewed more than twice (in West Malaysia)?

 If cases like Arab Malaysian Credit v Tan Seang Meng and Feedmeal Malaysia
represents the preferred approach of our courts (whereby the restriction on the number
of times that a writ may be extended is not an absolute prohibition), it seems like O 1A
and O 92 r 4 may be invoked to allow third or fourth extensions.
ii. Can an extension be for more than six months at any one time?
 O 6 r 7(2) does not allow an order extending the validity of a writ to be for more than 6
months at any one time.
 Singapore Court of Appeal in QBE Insurance - did not grant an extension order
exceeding 12 months (Sg Rules of Supreme Court disallow an extension for more than
12 months)
 Arab Malaysian Credit v Tan Seang Meng: did not allow extension after 12 months.

iii. Can the Court Grant a Series of Extensions at Any One Time?

 QBE Insurance: No power to grant two or more successive renewals to bring the writ up
to date. Court rejected the use of O 2 r 1 (pari materia with our O 2 r 1).

iii. Applicable Principles in Considering an Application for Renewal

 Battersby v Anglo American Oil Co Ltd [1945] 1 KB 23 - renewal must not prejudice any
right of defence and where the court is satisfied that good reasons appear to excuse the
delay in service. The best reason would be that the defendant has been avoiding
service/address unknown.
 Dagnell v JL Freedman:
o power to extend validity of writ should only be exercised for good reason
o Good reason depends on facts of the case. (difficulty in affecting writ)
o balance of hardship between the parties
o Discretion exercised by judge should not be interfered with by an appellate court
except on special grounds.
 Ultimately, what will constitute as good or sufficient reason is indefinable and must be
based on the facts of each case.

iv. Limitation Period

 Limitation set in - apply for extension of writ
 Limitation not yet set in - issue a new writ
 Issue: What if limitation has not set in but pf refuses to issue new writ and insist on
applying for renewal?
  Binning Bros Ltd v Thomas Eggar Verrall Bowles: requirement to show good reason
applied in ALL cases (regardless limitation has set in or not). Reason of expenditure in
issuing a new writ did not constitute a good reason.

Must Extension Continue from The Expiry Date?

 O 6 r 7(2) & case laws: The extension or renewal order must be backdated to the date
immediately following the expiry date of the writ. There must be no break in the
lifespan of the writ.
 O 6 r 7(2): provides in clear terms that any extension of the validity of the writ is to
begin "with the day next following that on which it would otherwise expire”.
 QBE Insurance: According to the Court of Appeal, if the writ could be renewed (which the
Court of Appeal held it could not), it had to be renewed continuously from the date it
expired.
 Arab Malaysia Credit v Tan Seang Meng: The Court of Appeal acknowledged that the
only way the plaintiff could have resuscitated the writ was to apply for a renewal order
that was to take effect from the date of its expiry.

v. Efforts to serve within one month of the issue of the writ

 O 6 r 7(2A) – plaintiff must show efforts were made to serve the defendant within one
month of the date of the issue of the writ.
 This condition concerns with the court’s discretionary power based on the plaintiff’s
prove of good or exceptional reason to explain why no efforts were made to serve
the writ within a month.
Question 23

In February 2016, Paul issued two separate writs against Diana and Dewi seeking damages for
breach of contract. The cause of action against Diana arose in May 2010 while the cause of action
against Dewi arose in December 2009.

May Paul serve the writs on both Diana and Dewi today?

If Paul is unable to serve the writs, what are the steps that he may take?

Explain to Paul the relevant provisions in the Rules of Court 2012 that apply in this case and how the
courts in Malaysia have interpreted or applied these provisions.

Diana: Breach of Contract, Cause of Action May 2010

Issue 1: May Paul serve the writs on both Diana today?

A1:

Limitation: s6(1) LA Actions founded on a contract –six years from the date on which the cause
action accrued. May 2010, Last Date: May 2016. Limitation Set in

Writ: Order 6 Rule 7 O 6 r 7(1) : writ has a lifespan of 6 months beginning from the date of issue.
During the lifespan of writ, Pf have to serve on Df. If failed to serve on Df before the writ expired, the
writ has no effect. Issued: February 2016, Last date to serve: August 2016. Writ Expired

Issue 2: If Paul is unable to serve the writs, what are the steps that he may take?

If paul Unable to serve, the only way to is to apply for renewal.

A2: Conditions for renewal are laid down in O6 R7(2) and (2A).

O6r7 (2): Court may grant renewal –

o Up to 2 times in West Malaysia, 3 times in East Malaysia
o Each Renewal must not exceed 6 months
o Must show there is attempt to serve within the 1st month.
o Renewal takes effect on the next day on which the writ expires

O6r7 (2A): Application of renewal –

o Must be made before expiry of writ
 o Ex parte notice of application supported by affidavit
o State and show good reason to apply:
iii. Effort to serve the writ within 1 month from the date of issue
iv. Further effort made to serve subsequently (at least 3 efforts made)

Issue 3: Explain to Paul the relevant provisions in the Rules of Court 2012 that apply in this case
and how the courts in Malaysia have interpreted or applied these provisions.

A3:
Question 24

State any five exceptions to the rule that requires a writ to be served personally on a defendant.

i) O10 R 1(2) Where the defendant’s solicitor indorses on the writ or other originating document that
he accepts service on behalf of the defendant

ii) O 10 R 1(3) Where the defendant enters an unconditional appearance before being served

iii) O10 R4: Where in an action for recovery of land, the Court has made an order to affix a copy of
the writ on some conspicuous part of the land

iv) O62 R 5: Where an order for substituted service has been made

v) O73 R 3 and s26 Govt Proceedings Act: In civil proceedings against the Govt

vi) O11 R 5(3) Where service is effected in a foreign country in accordance with the law of that
country

(e) Service on persons under disability

O 76 r 14:

 Rule 14(2)(a) if the Df is a minor who is not also a patient - to be served on his father
or his guardian ; If he has no father or guardian - to be served on the person with whom
he resides or in whose care he is.

 Rule 14(2)(b) if the Df is a patient - to be served on the person who is authorized under
the Act to conduct in the name of the patient or on his behalf the proceedings; if no such
person authorized, on the person with whom he resides or in whose care he is.

(f) Service on partners

O 77 r 3(1): when partners are sued in the name of the firm, such writ shall be served on :

(i) any one or more of the partners; OR

(ii) at the principal place of business of the partnership within the jurisdiction, on
any person at the time of service having the control and management of the
partnership business there.

Note:
Limb 1: If the partnership is sued in the names of all partners, the writ
shall be served on each and every one of them.

Limb 2: For us to abide by the second limb, we have to make sure that the
person served is the correct person who has control or
management of the partnership business such as the office
secretary/chief operating officer/HR director.
AND -
The document must also be served at the principal place of business of
  Rule 3(2): if to the knowledge of the Pf, the partnership dissolves before an action
against the firm is begun - to be served on EVERY person within the jurisdiction
sought to be liable in the action.
 Rule 3(3) when such a writ is served under para (1), it must be given a written notice
in Form 191 stating whether he is served as a partner/ person having control or
management of the partnership business/ both ; if no such notice is given, will
be deemed to be served as a partner.

(g) Service on corporations

O 62 r 4: such writ may be served by:
i. leaving a copy of it at the registered office (if any) of the corporation;
ii. sending a copy of it by registered post addressed to the corporation at the office, or,
if there are more offices than one at the principal office of the corporation,
iii. handing a copy of it to the secretary or to any director or other officer of the
corporation; or
iv. foreign company registered under Part XI of the Companies Act 1965 by handing a
copy of it to, or sending the same by registered post to, a person authorized to
accept service of process on behalf of the foreign company
Question 25

Peter is suing David and Desmond for breach of contract. Peter is claiming damages against David
and for specific performance against Desmond. The writ was served personally on David and
Desmond three weeks ago. Neither David nor Desmond has entered an appearance to Peter’s writ.

Advise Peter as to the steps that he is required to take in the above actions.

Issue 1: Where the writ is served and the time limit for appearance.

Order 12 Rule 4:

(a) If the writ served within Peninsular Malaysia, Df has 14 days after service of the writ to enter
into appearance unless the law or the court extend the time

(b) If the writ is served within Sabah & Sarawak- 14 days after service of the writ. OR, in the case
where the Df place of residence/ registered office of business is not within the Division/ Residency
in which is situated the Registry out of which the writ of summons was issued - 20 days after the
service of writ OR to the time it has been extended. (E.g. if writ issued in Kuching, served in Kuching
= 14 days; if writ served in Kuching, served in Sandakan = 20 days)

c) O 12 r 4(c): If the notice of writ is served out of jurisdiction under O.11 r.4 - 21 days after the
service of the notice of the writ. OR when the writ is served on agent of overseas principal under
O.10 r.2 - 14 days after sevice of the writ OR to the time it has been extended.

Both Df fails to enter appearance after the time period, Pf may enter into judgment in default
in appearance.

Issue 2: Whether the nature of the claim is entitled to take judgment in appearance?

If claims falls under O13 R1, R2, R3, R4 or combination of 1,2,3,4, entitled to take judgment
in default of appearance. If does not fall under O13R1-R5, not entitled to take JIDIA. It would
be deemed to fall under O13R6, not entitled to take JIDIA, has to proceed with the case.

In this case, Peter is claiming for damages and for specific performance.

O13R1 claims for liquidated damages. Can take JIDIA

Specific performance fall under O13R6. Cannot enter JIDIA, have to carry on the cases as
though Df has enter into appearance. O 19 r 7: for other claims, even if Df had not entered
appearance, but Pf ought to proceed the action as if Df had entered appearance and served him
Statement of Claim, if Df still default in serving defence at this stage, Pf can enter into judgment in
default of defence against Df.

Question 26

Polly has issued a writ against Dolly. Polly is seeking specific performance on a contract from Dolly.
The writ was issued in the High Court registry in Shah Alam. Dolly resides in Petaling Jaya. Polly is
seeking your advice on the following matters.

(i) How many days does Dolly have to enter an appearance to the writ?

(ii) What steps should Polly take if Dolly fails to enter an appearance within the time stipulated
for appearance?

(iii) If Polly were seeking damages for breach of contract against Dolly, what steps should Polly
take if Dolly fails to enter an appearance within the time stipulated for appearance?

(i) How many days does Dolly have to enter an appearance to the writ?

Order 12 Rule 4: a) O 12 r 4(a): If the writ served within Peninsular Malaysia - 14 days after service
of the writ OR to the time it has been extended.

O11R1(1): If want to serve out of jurisdiction, has to get leave from the court. Court would suggest to
go to that place to sue that person.

First hurdle: In order to get leave: must show there is one of the ground to do so. Order 11 (A) – (M).

Second Hurdle: Show Forum Non-Convenient.

O 12 r 4(c): If the notice of writ is served out of jurisdiction under O.11 r.4 - 21 days after the
service of the notice of the writ. OR when the writ is served on agent of overseas principal under
O.10 r.2 - 14 days after sevice of the writ OR to the time it has been extended.

(ii) What steps should Polly take if Dolly fails to enter an appearance within the time
stipulated for appearance?

Specific performance fall under O13R6. Cannot enter JIDIA, have to carry on the cases as
though Df has enter into appearance. O 19 r 7: for other claims, even if Df had not entered
appearance, but Pf ought to proceed the action as if Df had entered appearance and served him
Statement of Claim, if Df still default in serving defence at this stage, Pf can enter into judgment in
default of defence against Df.

(iii) If Polly were seeking damages for breach of contract against Dolly, what steps should Polly
take if Dolly fails to enter an appearance within the time stipulated for appearance?
O13 R1 Claims for liquidated damages.

Procedure for Entering Judgement in Default (O13r7)

a. No appearance before Judge or Registrar involved. It is an administrative process.
b. Documents required to be filed:
(i) Ask for Certificate of non-appearance (Form 12) – O. 13 r 7(1)(a);
(ii) Affidavit verifying service of writ (Form 135) OR original writ duly indorsed by
solicitor as to service – O. 13 r 7(1)(b); and
(iii) Attach two completed judgement forms duly stamped you are seeking for (Form
75) – O. 42 r 5.

c. Rule 56 Legal Profession (Practice and Etiquette) Rules:

 A lawyer should not enter JID against another lawyer unless you have given sufficient
number of days’ notice (7 days).

Sri Minal Construction Sdn Bhd v Mobil Oil Malaysia Sdn Bhd [2005] 4 CLJ 767.
 Rule 56 is not rule of procedure, is just rule of etiquette. Hence, it is not binding
on litigants and is binding on solicitors only. Non-compliance with Rule 56 will not
make the judgement irregular. However, the solicitor may face disciplinary actions.
(LPA not part of RoC)

d. Once filled the documents, extract sealed copy of judgement from court. Served a
sealed copy of judgement on Df.
Question 27

Periasamy issued a writ against Donna in June 2016. The writ was duly served on Donna in July 2014.
Donna did not take any action and the timeframe for the entry of an appearance as provided for in
Order 12 rule 4 of the Rules of Court 2012 has expired.

Periasamy wishes to know if he may enter a judgment in default of appearance, against Donna. If the
answer is in the affirmative, what steps must he take to enter a default judgment? If the answer is in
the negative, what immediate further steps must he take in this action?

It depends on the nature of claims

Default of Appearance (O13)

(a) When P may enter judgement against D
 Once writ issued, writ have to be served on Df. Df has the duty to enter appearance.
If Df failed to enter appearance, and the matters fall within O 13 r 1 to O 13 r 5, Pf
can apply for Judgement in default of appearance (JIDA).
 O 13 r 1: Liquidated demand (final judgment)
 O 13 r 2: Unliquidated demand (interlocutory judgment due to need of damages
assessment)
 O 13 r 3: claim in detinue (interlocutory judgment for delivery or value of property)
 O 13 r 4: possession of immovable property (judgment for possession)
 O 13 r 5: mixture of the above (final / interlocutory judgment depending on the nature
of the claim)

Procedure for Entering Judgement in Default (O13r7)

e. No appearance before Judge or Registrar involved. It is an administrative process.
f. Documents required to be filed:
(iv) Ask for Certificate of non-appearance (Form 12) – O. 13 r 7(1)(a);
(v) Affidavit verifying service of writ (Form 135) OR original writ duly indorsed by
solicitor as to service – O. 13 r 7(1)(b); and
(vi) Attach two completed judgement forms duly stamped you are seeking for (Form
75) – O. 42 r 5.

g. Rule 56 Legal Profession (Practice and Etiquette) Rules:

 A lawyer should not enter JID against another lawyer unless you have given sufficient
number of days’ notice (7 days).

Sri Minal Construction Sdn Bhd v Mobil Oil Malaysia Sdn Bhd [2005] 4 CLJ 767.
 Rule 56 is not rule of procedure, is just rule of etiquette. Hence, it is not binding
on litigants and is binding on solicitors only. Non-compliance with Rule 56 will not
make the judgement irregular. However, the solicitor may face disciplinary actions.
(LPA not part of RoC)

h. Once filled the documents, extract sealed copy of judgement from court. Served a
sealed copy of judgement on Df.

(b) When P may not enter judgement against D

 When the claim does not fall under r 1 – r 5, then by default it’ll be under r 6.
 E.g. of claims under r 6: equitable claims such as account, rectification, injunction,
declaration, and specific performance.
 If claiming under r 6, plaintiff is to carry on as though defendant had entered
appearance. Plaintiff is NOT ALLOWED to enter JIDA.

Lam Kong Co Ltd v Thong Guan Co Ltd [1985] 2 MLJ 429

Facts: S&P – Paid but the land not yet transferred - The R (Pf) brought an action for SP
against A for specific performance.

Issue: Whether a JID could be entered against the appellants in respect of claim for specific
performance.

Held: Set aside the JIDA (O13r 8). O 13 r 6(1) where writ is specifically endorsed with a
statement of claim of Specific Performance and served on Df, Pf are to proceed with the
action as if the Df appeared despite the Df’s failure to enter an appearance.

Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565
The procedural irregularity in the failure to serve the statement of claim on the defendants in
particular under O 13 r 6 (1) before the judgment in default was entered had prejudiced the
defendants and therefore beyond curability. (JID irregular)

Maxland Sdn Bhd v Timatch Sdn Bhd [2014] 6 MLJ 1

Under O 13 r 6(1), it is mandatory for the plaintiff to serve a statement of claim on the defendant
and proceed with the action as if the defendant had entered an appearance.
O 19 r 7: for other claims, even if Df had not entered appearance, but Pf ought to proceed the
action as if Df had entered appearance and served him Statement of Claim, if Df still default in
serving defence at this stage, Pf can enter into judgment in default of defence against Df.
Judgement may be Final or interlocutory
 After entering JIDA, what next? It depends on what type of judgement it is.
 There are two types of judgements: Final & Interlocutory

Final (rule 1 & rule 4)

 Final judgement applies to liquidated damages
 The plaintiff only needs to enter judgement

Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1
 Once a regularly obtained order or judgment had been perfected, the court was functus
officio
 The re-litigation of a regularly and properly concluded matter as determined by the
court is prohibited by doctrine of res judicata. The judicial process rests on the twin
pillars of certainty and finality. A final order or a judgment must therefore be vigorously
protected by this doctrine The law does not allow the respondent to have a second bite
of the cherry.

Interlocutory (rule 2 and rule 3)

 By not entering appearance, the defendant is now liable.
 Plaintiff has gotten judgement but has to now invoke O 37 and to go for assessment of
damages.
 At assessment of damages stage, defendant cannot challenge liability, but only the
quantum of damages
 Examples: negligence, nuisance, breach of trust.
 Procedure: Order 37 rule 1