Allison Fong v Chong Sin Lai @ Song Sin Lai (N-02(IM)-645-04/2024)

This is an appeal against the decision of the High Court, Seremban given on 1.4.2024 dismissing the Appellant's application (Encl 34) to set aside the Decree Nisi dated 20.9.2016, the Certificate of Decree Nisi made absolute dated 25.11.2016 and the registration of the divorce pursuant to the said Decree Nisi and Certificate which was registered at Jabatan Pendaftaran Negara.

The main grounds of the application (Encl 34) is that the order for substituted service made by the High Court is invalid as the address where the Respondent attempted to serve the Petition for Divorce does not belong to the Respondent.

The Petitioner/Husband (HP) and the Respondent/Wife(RW) were lawfully married on 15.3.1988 under the Law Reform (Marriage and Divorce) Act 1976 and are blessed with 2 daughters who are now adults and of full age. After their marriage, the Petitioner and the Respondent co-habitated at 400, Taman Clonlee, 73000 Tampin, Negeri Sembilan. However, the marital relationship broke down and the parties were separated for 5 years since 2011. On 30.6.2016, PH filed a Divorce Petition in the High Court, Negeri Sembilan at Seremban. The Divorce Petition was served on RW by substituted service pursuant to an Order for substituted service made on 22.8.2016 by the High Court, Negeri Sembilan. A Decree Nisi was ordered by the High Court, Negeri Sembilan on 20.9.2016 which was subsequently made absolute on 25.11.2016. On 6.12.2022, RW filed a Notice of Application vide Encl 34 for, inter alia, an order that the Decree Nisi dated 20.9.2016 and the Certificate of Making Decree Nisi Absolute dated 25.11.2016 be set aside. Encl 34 was dismissed by the High Court, Negeri Sembilan on 1.4.2024. On 8.4.2024, RW filed a Notice of Appeal to the Court of Appeal against the High Court’s decision dated 1.4.2024.

In brief, the learned Judicial Commissioner dismissed the setting aside application on the following grounds:

The Appellant's challenge to the Decree Nisi on the ground that the substituted service order was defective and amounted to a collateral attack;

Although there were inconsistencies in the dates stated in the Affidavit of Non-Service, the substituted service had nonetheless been carried out in accordance with a valid order for substituted service; and

The Court held that there is no clear legal provision that allows a Decree Nisi to be set aside after it has become absolute. IN THE COURT OF APPEAL [5] The Appellant submitted that unlike the case of Ng Han Seng & Ors v Scotch Leasing Sdn Bhd (Appointed Receiver and Managers)

4 MLJ 647 CA, the Appellant in the present application does not only seek to set aside the Decree Nisi and the Certificate of Decree Nisi Made Absolute. In relief (b) of the Appellant’s application, the Appellant has specifically sought to set aside the Substituted Service Order. Hence, it is not a collateral attack on the substituted Service order. [6] The Appellant contends that Practice Direction No.1 of 1968 clearly provides that at least two calls must be made in an application for substituted service. In the present case it remains unclear whether service was in fact effected on the second attempt and the Affidavit of Non-Service does not clarify this issue. In line with the decision in Re Aris Massod Ex P UOL Factoring Sdn Bhd (1998) 4 CLJ Supp 446, the failure to comply with the requirements of the Practice Direction renders the substituted service order defective and liable to be set aside. [7] The Appellant reiterated that the Appellant’s last known address, at all material times, was at Taman Ukay Perdana and not Taman Clonlee. The Respondent’s act of affixing the documents at the premises at Taman Clonlee constitutes a clear breach of the substituted service order. As a result, the substituted service was not properly effected and this renders the service of the cause papers irregular and invalid. [8] The Appellant submitted that the learned Judicial Commissioner had erred in law and in fact by failing to consider that the Divorce Petition is defective and invalid due to the Respondent’s failure to refer the matrimonial difficulty to the conciliatory body as required by S.106 of the Law Reform (Marriage and Divorce) Act 1976 (the LRA) and Rule 16A of the Law Reform (Marriage and Divorce) Rules 1982. The Appellant referred to Neduncheliyan Balasubramaniam v Kohila Shanmugam

(1997)4 CLJ 676 CA in support of her argument. [9] The Appellant contends that the Decree Nisi and Certificate of Decree Nisi Made Absolute was fraudulently obtained by the Respondent. The Respondent had chosen to purportedly serve the cause papers at the Taman Clonlee address which had prevented the Appellant from becoming aware of the Divorce Petition and thereby depriving her of any opportunity to oppose or challenge the same. [10] The Appellant further submitted that the Divorce Petition itself contains no relief in respect of any spousal maintenance nor the division of any matrimonial assets. The Appellant contends that the orders in relation to the division of matrimonial assets can only be made by the High Court at the time the Divorce Petition is heard and determined. As such, the Appellant is unable to apply for a variation to the Decree Nisi Made Absolute to include a claim for division of matrimonial assets. The Appellant relied on S.76 of the Law Reform (Marriage and Divorce) Act 1976 and Chew Ling Hang v Aw Ngiong Hwa (1997) 3 MLJ 107 CA to support her contention. In the premises, the Appellant submitted that there are very good reasons and exceptional circumstances in setting aside the Decree Nisi. [11] The Respondent submitted that there were two attempts made by the process server to serve the Divorce Petition and the other relevant cause papers personally on the Appellant at her last known address at 400, Taman Clonlee, 73000 Tampin, Negeri Sembilan, but both attempts were unsuccessful. The Appellant failed to prove that the Respondent knew her service address at 12, Jalan U/P 3/5, Taman Ukay Perdana, 68000 Ampang, Selangor and not the address at 400, Taman Clonlee, 73000 Tampin, Negeri Sembilan, especially given that the parties had been separated for many years and were not in communication. There is no evidence to show that the Appellant actually informed the Respondent of her address at Taman Ukay Perdana. Therefore, the Respondent then applied and obtained a Court Order dated 22.8.2016 to serve the Divorce Petition and relevant cause papers on the Appellant by way of substituted service. [12] The Respondent submits that the Respondent had duly complied with the substituted service order and a copy of the Affidavit of Service and Pasting was filed to prove that the substituted service was done accordingly. Based on the Affidavit, it shows that the Divorce Petition was served on the Appellant at her last known address on 2.9.2016, posted on the notice board of the High Court Seremban on 1.9.2016 and advertised in Nan Yang Siang Pau on 4.9.2016. Relying on the decision in Malayan Banking Bhd v Mahmood Zuhdi Hj Mohd Noor (2001) 6 CLJ 171, the Respondent submitted that the service of the Divorce Petition and the relevant cause papers on the Appellant was deemed good and proper. [13] The Respondent contends that unless and until the substituted service order is successfully challenged, the service of documents on the Appellant remains good. The Appellant failed to challenge the substituted service order by instituting a proceeding for the very purpose to set it aside. It cannot be challenged in other proceedings collaterally. See. Ng Han Seng & Ors v Scotch Leasing Sdn Bhd (appointed receiver and managers) (2003) 4 MLJ 647 and Development & Commercial Bank Bhd. V Aspatra Corp Sdn Bhd & Anor and another appeal (1995) 3 MLJ 477 SC. [14] The Respondent submitted that based on the facts, the Decree Nisi was granted on 20.9.2016 and was made absolute by the Certificate dated 25.11.2016. Pursuant to that the Court is functus officio. Despite this, after six years from the Decree Nisi was made absolute, the Appellant filed an application to set aside the Decree Nisi Absolute by relying on O.42 R.13 and O.92 R.4 ROC 2012. The Respondent referred to Wong Cheng Ping v Chin Guan Seng (2010) 10 CLJ 743 HC and Hung Moy v Ang Cha Hooi (2021) 8 CLJ 616 CA and submitted that the Appellant who is dissatisfied with the Decree Nisi Absolute, should have filed an appeal against it, and not sought to set aside the Decree Nisi Absolute when there are no provisions provided for in S.61(2) of the LRA. [15] The Respondent submitted that there was a delay of 6 years after the Decree Nisi was granted, which constitutes inordinate delay. The Appellant did not dispute the dissolution of marriage in any of her Affidavits. In fact, she admitted that they had been separated for many years and the marriage could no longer be saved. The Appellant only seek reliefs solely concerning the alimony and the division of matrimonial property. No evidence was adduced by the Appellant to support the claim for division of matrimonial property. The Respondent submitted that these issues do not constitute good reasons and/or exceptional circumstances to warrant the setting aside of the Decree Nisi Absolute. [16] The Respondent referred to the case of Khoo Kay Peng v Pauline Chai Siew Phin (2015) MLJU 158 and submits that both the Appellant and the Respondent had confirmed that there was irretrievable breakdown of their marriage and that it serves no purpose to be heard before a conciliatory body, as there is no possibility of reconciliation. This would be contrary to the very intention of the principles for which S.106(1) LRA was legislated. EVALUATION AND FINDINGS OF THIS COURT [17] From the Memorandum of Appeal, grounds of Judgment of the High Court and the submission of both parties, the main issues for raised in this appeal are whether there are good reasons or exceptional circumstances to set aside the Decree Nisi and the Decree Nisi Absolute and whether the substituted service order is irregular and ought to be set aside by the Court. [18] There is no express provision in the Law Reform (Marriage and Divorce) Act 1976 and the rules made thereunder for rescinding or setting aside a decree nisi that has already been made absolute. In order to do so, the parties must demonstrate that there are good reasons or exceptional circumstances to rescind or set it aside. In Hung Moy v Ang Cha Hooi (2021) 8 CLJ 616, the Court of Appeal (per Hadhariah Syed Ismail JCA) held: “(3) The High Court erred in setting aside the decree nisi and the decree nisi absolute. There is no provision in the Act for rescinding or setting aside a decree nisi that already had been made absolute. It is the intention of Parliament to preserve the integrity and finality of a decree nisi that has already been absolute after three months. As such, parties are not allowed to freely apply to the court at any time to rescind or set it aside unless for very good reasons or in exceptional circumstances. The respondent had no good reasons to set aside the decree nisi and decree nisi absolute. (paras 31 & 37).” [19] Further, a party who wishes to challenge the validity of a substituted service order has to institute proceedings for that very purpose. It cannot be challenged collaterally. In Development & Commercial Bank Berhad v Aspatra Corporation Sdn Bhd & Anor (1996) 1 CLJ 141 FC, Peh Swee Chin FCJ held as follows: “For our part, with great respect we were unable to agree with the learned Judge for deciding in this manner by brushing aside the order of substituted service, for the learned Judge was obviously considering the validity of the order of substituted service of the High Court dated 5 January 1986 when the same order was not a subject matter of an application before the learned Judge or for that matter, before the learned Registrar earlier for its discharge. The order of substituted service of the High Court, a superior Court of competent jurisdiction, must be obeyed by everyone save in a few and rare exceptions and it can only be challenged as regards its validity by the only way of having it set aside by proceedings instituted for the very purpose. It cannot be challenged thus collaterally in any proceedings as regards its validity save in a very few exceptions, (such as a Bankruptcy Court going behind a judgment of any Court on credibly raised issues of collusion, fraud, etc. only on hearing a bankruptcy petition), which do not apply here…” [20] In Ng Han Seng & Ors v Scotch Leasing Sdn Bhd (appointed receivers and managers) [2003] 4 MLJ 647, the Court of Appeal , per Nik Hashim JCA (later FCJ) reiterated the principle in Aspatra Corporation and held as follows: “The respondent had complied with the ss order and the appellants could not now challenge the ss order in their applications for that would amount to a collateral attack on the validity of the process thereto which is not permitted. The validity of the ss order can only be challenged by proceedings instituted for the very purpose. It cannot be challenged collaterally in other proceedings.” [21] After a long deliberation and having given careful consideration of the issues raised in the submissions by both parties, we are not persuaded that there are good reasons or exceptional circumstances to set aside the Decree Nisi which has been made absolute after 6 long years have lapsed. [22] The Divorce Petition was served at the last known address of the Appellant, posted on the notice board of the High Court, Seremban and advertised in the Nanyang Siang Pau and the order for substituted service has been complied with. No seperate application was made by the Appellant for the purpose of setting aside the substituted service order and the service of the Divorce Petition. The Federal Court and Court of Appeal in Aspatra Corporation and Ng Han Seng above stated that the Applicant would in the circumstances be required to file a separate application to specifically set aside the substituted service order besides filing an application to set aside the default judgment. In the present case, the Appellant did not file a separate application for the specific purpose of setting aside the substituted service order. [23] We are mindful that in Encl 38, the Appellant has included a separate prayer for the substituted service order dated 22.8.2016 to be set aside. As the Appellant did not file a separate application to specifically set aside the substituted service order and had chosen to combine the application to set aside the Decree Nisi and the Decree Nisi Absolute together with a prayer for the setting aside the substituted order, the Appellant is required to show that there are good reasons or exceptional circumstances to warrant the setting aside of Decree Nisi Absolute and the substituted service order. [24] Upon perusing the Record of Appeal, there is no clear or express averment in the Appellant’s Affidavit that the Appellant did not read or was unaware of the advertisement of the Divorce Petition in the Nanyang Siang Pau newspaper. The Affidavit of Service shows that the Divorce Petition was served on the Appellant at her last known address, posted on the notice board of the High Court, Seremban and advertised in Nanyang Siang Pau on 4.9.2016. The order for substituted service was made for the purpose of giving notice of the divorce proceedings to the Appellant. The Appellant did not state on oath the she has informed the Respondent about her last known or current address at Taman Ukay Perdana. In the premises, we find that the Appellant is deemed to have notice of the advertisement of the Divorce Petition and the Divorce Petition was properly served on the Appellant by substituted service. [25] Even if the Appellant has not seen the said advertisement, the Divorce Petition is deemed served on the Appellant by the act of advertisement and service at the last known address of the Appellant and posting at the notice board of the High Court, Seremban.In JAKS Resources Bhd v Star Media Group Bhd and other appeals (2023) 6 MLJ 114, the Court of Appeal, per Lee Swee Seng JCA (later FCJ) held as follows: “[112] We are familiar in cases of substituted service of summonses where the act of advertisement and posting at the last known premises of the person to be served with a legal process would be deemed served irrespective of whether the person to be served had actually seen the notice of the document served in the posting at his last known address or the advertisement in a newspaper.” [26] In Hung Moy v Ang Cha Hooi (2021) 8 CLJ 616 which was cited by both the Appellant and Respondent, the Divorce Petition was served by substituted service by way of publication in the newspaper. The Appellant in Hung Moy’s case applied to set aside the Decree Nisi 7 years after the Decree Nisi was granted. In dismissing the setting aside application, the Court of Appeal found that there was no provision in the Law Reform (Marriage and Divorce) Act 1976 for rescinding or setting aside of a decree nisi that had already been made absolute and the parties are not allowed to freely apply to the Court at any time to rescind or set it aside unless for very good reasons or in exceptional circumstances. The Court of Appeal took into consideration that the marriage had irretrievably broken down, the appellant and the respondent are 70 years old and have been living apart for more than 10 years and the appellant had re-married. Hence, the Court found that there was no good reason or exceptional circumstances to set aside the Decree Nisi Absolute.This is clearly stated by Hadhariah Syed Ismail JCA at para 37 as follows: “[37] To us, para 35 above show the respondent agrees that the marriage has irretrievably broken down and could not be saved. That the respondent can see their marriage is over with the presence of a third party. That the time has come for the respondent to accept the fact that their marriage should be dissolved no matter what the terms are. The appellant has re-marry someone else. The parties have been living apart for more than ten years (from 2008 until now). The delay in approaching the court. On top of that both the appellant and the respondent is now in their ripe old age of 70 years old. How much longer can both of them lived. We were of the considered view that these are the relevant factors that the High Court Judge should have taken into account before setting aside the decree nisi and the decree nisi absolute. To us, for the appellant to start again the divorce proceedings for the second time is unduly harsh and unfair. Given the circumstances the appellant is in, we are of the view that the respondent has no good reasons to set aside the decree nisi and the decree nisi absolute. On this ground alone, we took the view that the learned High Court Judge has erred in setting aside the decree nisi and decree nisi absolute.” [27] In the instant case, both parties has lived apart for over 10 years (since 2011) and they don’t dispute the fact that their marriage has irretrievably broken down and could not be saved. If the application for setting aside the Decree Nisi and the Decree Nisi Absolute is allowed after an inordinate delay of 6 years, the Appellant and the Respondent will revert back to their pre-divorce status. This could effectively unravel a series of life changing matters arising after the Decree Nisi Absolute including any re-marriage, the status of children born after the decree nisi and right of inheritance resulting in hardship and prejudice to the parties involved. [28] As the Appellant and the Respondent have separated and lived apart from each other for many years and does not dispute that their marriage had irretrievably broken down, we are inclined to agree with the Respondent’s submission that it serves no purpose to refer the marriage differences to a conciliatory body pursuant to S.106 LRA and there is no possibility of reconciliation. This is evident from the reasons put forward for setting aside the Decree Nisi Absolute and the reliefs sought by the Appellant which only concerns alimony/spousal maintenance and division of matrimonial assets. [29] The claim for maintenance by the Appellant could be ventilated by an application to vary the Decree Nisi Order under S.83 and 96 LRA. With regard to the issue of division of matrimonial assets, apart from putting up a list of assets, no cogent or any evidence was adduced by the Appellant to support her claim for division of matrimonial assets. [30] As regards the Appellant’s contention that the Decree Nisi and the Decree Nisi Absolute was fraudulently obtained and the Appellant was deprived of the opportunity of opposing the Divorce Petition or from applying for division of matrimonial assets, the Appellant should have filed a fresh Suit to impeach or set aside the Decree Nisi Absolute under the principles enunciated in Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd (1998) 2 CLJ 75 FC but the Appellant did not do so. CONCLUSION [31] After giving careful consideration to the matter before us and submissions of both parties, we find that no good reasons or exceptional circumstances has been shown by the Appellant to warrant the setting aside of the Decree Nisi and the Decree Nisi Absolute. Thus, we are inclined to agree with the Respondent’s submission that upon the Decree Nisi being made absolute, the High Court became functus officio. In Ching Suet Yeen v Lee Hock Teong (2024) CLJU 2497, the Court of Appeal (per S Nantha Balan JCA) held: “[9] Although the Appellant criticised the Judge’s approach and reasoning, we are not persuaded that the Judge’s approach was erroneous, the reasoning flawed or conclusions wrong. We agree with the Judge that upon the decree nisi being made absolute, the order is not capable of being rescinded. And the Court become functus officio.” [32] Hence, we are unanimous in our decision that the learned Judicial Commissioner was not plainly wrong in dismissing the setting aside application (Encl 34) and the High Court’s decision is affirmed. Based on the aforesaid reasons, the appeal is dismissed with costs in the sum of RM5,000.00 to the Respondent subject to allocatur fee. Dated this 14th August 2025 -sgd-LEONARD DAVID SHIM COURT OF APPEAL JUDGE LIST OF COUNSELS:

Counsels for the Appellants

Joseph Yeo

Khoo Kah Yong Loke Wei Lun TETUAN B B TEH Counsel for the Respondent

Khoo Ai Theng 2. Tan Siew Yiin