Charern Properties Sdn Bhd v Choong Nam Father & Sons Construction Sdn Bhd (A-02(IM)(NCvC)-1751-10/2023)

This is an appeal in respect of an extension of the validity of the writ of summons.

The Appellant in this appeal and the defendant in the action is a private limited company.

Likewise, the Respondent in this appeal and the plaintiff in the action is a private limited company.

We heard the appeal on 8th August 2024 and unanimously dismissed the same with costs of RM 10,000 subject to allocator.

Accordingly, we hereby provide below the grounds of our decision.

The plaintiff commenced the writ action on 16th March 2021 and attempted to serve the writ on the defendant by way of personal service and AR registered post at its business address. Both attempts were unsuccessful.

As the result, the plaintiff sought and obtained an order of substituted service from the High Court on 1st June 2021.

The writ was thereafter duly served by way of substituted service and the plaintiff obtained a judgment in default against the defendant on 16th August 2021.

Subsequently, the defendant however managed to set aside the judgment in default on 4th January 2023.

In consequence, the plaintiff could not re-serve the writ because the writ had already expired on 16th September 2021.

As the result, the plaintiff on 20th January 2023 filed an application for extension of the validity of the writ (“Application”).

The plaintiff’s Application was contested by the defendant relying on the case of Fimbank plc v. The Owner and/or Demise Charterers of the Ship or vessel “Nika” now known as “Bao Lai” [2022] 7 CLJ 389 (CA) which required the renewal of the validity of the writ be made before its expiry based the amended Order 6 rule 7 of the Rules of Court 2012 (“RC”). As far as the defendant is concerned, the plaintiff was at fault for having taken an inordinately long time to serve the writ on the defendant, particularly by failing to serve the writ at its new business address which was already prior notified to the plaintiff.

The plaintiff, in rebuttal, relied on the principle of “freezing-and-unfreezing” principle utilized in the case of Ever Rich Enterprise v. Ten Mei Theng [2019] 1 MLRH 194 to justify that the plaintiff was nonetheless well within time to apply for the renewal of the validity of the writ.

In any event, the plaintiff also resorted to Order 1A, Order 3 rule 5 and Order 92(4) RC that the Application ought to be allowed in the interest of justice because limitation has already set in. The plaintiff would otherwise be irreversibly prejudiced.

The learned Judicial Commissioner on 20th October 2023 in allowing the Application decided as follows in his well-reasoned grounds of judgment reported in [2024] 2 MLRH 571: “Court's Finding Good Faith of the Plaintiff [20] The Plaintiff promptly initiated the legal action and subsequently attempted to serve the Writ on the Defendant. The timeline and attempts made shows the Plaintiff's genuine intentions to serve the Defendant and this suggests no deliberate delay. [21] The Plaintiff, after facing failed attempts of service through AR Registered and personal means, did not resort to inaction but proactively sought the Court's leave to serve by substituted service. The Order for substitute service shows the Court's initial acceptance of the Plaintiff's reasons for substituted service. [22] The Plaintiff secured a Judgment in Default due to the Defendant's non-response, further showing the Plaintiff's proactive approach. [23] When the Court set aside the substitute service and the Judgment in Default, the Plaintiff, rather than resorting to inaction, sought to correct the situation by extending the Writ's validity. This move underscores the Plaintiff's commitment to ensure that due process is complied with. The fault, if any of the Plaintiff is that the Plaintiff did not apply instantly to the court which set aside the Default Judgment and the Order for substituted service. Principle and Provisions of Law in Support the Plaintiff's Position [24] As per O 1A of the ROC 2012, the Court should prioritise the overriding interest of justice over technical non-compliance. The Plaintiff's application embodies this spirit. While there might be technical procedural challenges, the primary pursuit of justice mandates that the Plaintiff's proactive efforts not be negated by these minor misgiving. [25] Flexibility in Time Extensions: O 3 r 5 of the ROC 2012 provides the Court with discretion to extend time periods, even post the expiration of the original period. This provision explicitly recognizes the fact that practical scenarios might necessitate such extensions, and the Plaintiff's situation is a case in point. [26] Writ Extension Principles, by O 6 r 7 of the ROC 2012 states the framework for writ extensions. The Plaintiff's application respects this framework and meets the conditions stipulated therein. Moreover, the Plaintiff's application came within the time frame, a fact underscored by the cited case of Ever Rich Enterprise v. Ten Mei Theng [2019] 1 MLRH 194, which accentuates the principle of viewing writ validity in intervals. [27] Inherent Powers of the Court, O 92 r 4 ROC 2012 acknowledges the Court's inherent powers to ensure justice is served and prevents the abuse of legal processes. The Plaintiff's situation is an opportunity for the Court to exercise this power, ensuring that justice is not overshadowed by rigid procedural technicalities. … Conclusion [33] The Plaintiff's application represents a sincere pursuit of justice, supported by their continuous proactive actions. The Plaintiff cannot be faulted in any way for the 'delay' between the period when judgment in default was entered and the time it was set aside. By interpreting the Rules of Court 2012 in its true spirit, which is to ensure justice and fairness, the Plaintiff's request to extend the Writ's validity emerges as not only legitimate but also a necessary step in ensuring that the principles of justice are upheld. I am of opinion that both parties should be given an opportunity to ventilate the merits of each of their respective cases. [34] For reasons stated above, I allowed Plaintiff's application in encl 54 with no order as to costs.”

The defendant is dissatisfied with the decision of the learned Judicial Commissioner and has on 23rd October 2023 appealed to the Court of Appeal.

Before us the parties re-advanced their submissions made before the learned Judicial Commissioner.

Our function is however just that of review. We are guided by the case of this Court in in ECM Libra Investment Bank Bhd v. Foo Ai Meng & Ors [2013] 5 MLJ 59 (CA) where Hamid Sultan Abu Backer JCA held as follows with emphasis added by us: “[7] …

It is well settled that the appellate court will not ordinarily interfere with the exercise of discretion of a trial court in relation to procedural and/or interlocutory matters [see Gary v. Garrett (1878) Ch. D. 473].

The appeal relates to an interlocutory procedural order and exercise of discretion. It is well settled that in an appeal against the exercise of discretion by a judge, the initial function of the appellate court is one of review only, there being no original discretion vested in the appellate court. It is for the appellant to demonstrate that an error in the exercise of discretion has indeed occurred and it is also one of the categories of cases where appellate interference is warranted [see Wah Bee Construction Engineering v. Pembenaan Fungsi Baik Sdn Bhd [1996] 3 CLJ 858; Majlis Peguam Malaysia & Ors v. Raja Segaran a/l Krishnan [2002] 3 MLJ 155].” See also Vasudevan Vazhappulli Raman v. T Damodaran PV Raman & Anor [1981] CLJ 84 and Tesco Stores (M) Sdn Bhd v. Ananda Kumar a/l Krishnan [2018] 6 MLJ 261 (CA). [19] At this juncture, it is appropriate that we reproduce Order 6 rule 7 RC which prescribes: “Duration and renewal of writ (O 6, r 7)

For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for six months beginning from the date of its issue, and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.

Subject to paragraph (2A), where efforts to serve a writ on a defendant have been unsuccessful, the court may by order extend the validity of the writ twice (in Sabah and Sarawak thrice and in admiralty actions five times), not exceeding six months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order.

An application for a renewal of writ must be made before the expiry of the writ, ex-parte by notice of application supported by affidavit showing that efforts have been made to serve the defendant within one month from the date of the issue of the writ and that efforts have been made subsequent thereto to effect service.

Before a writ, the validity of which has been extended under this rule, is served, it shall be marked with an official stamp in Form 3 showing the period for which the validity of the writ has been so extended.

Where the validity of a writ is extended by order made under this rule, the order shall operate in relation to any other writ (whether original or concurrent) issued in the same action which has not been served, so as to extend the validity of that other writ until the expiration of the period specified in the order.

A note of the renewal shall be entered in the cause book.” [20] It is not in dispute that generally the application to re-new the validity of the writ must be made before the expiry of the writ pursuant to Order 6 rule 7(2A) RC. This is on the presupposition that there is difficulty in serving the writ after reasonable attempts have been made. See Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v. Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329 (FC). [21] On the specific facts herein, there was no difficulty on the part of the plaintiff in serving the writ before the expiry of the writ. The re-service of the writ is however necessitated by reason that the judgment in default obtained by the plaintiff was set aside by the defendant for irregular service. It is clear that the writ had by then expired; hence the Application has to be made. [22] There is plainly no provision in Order 6 rule 7 RC that envisages and hence cater for this particular factual circumstance here. [23] Nonetheless in the case of Ever Rich Enterprise v. Ten Mei Theng (supra), Mohamad Shariff Abu Samah JC held as follows with emphasis added by us: “[8] Berdasarkan kepada fakta tindakan kes ini, Writ Saman adalah bertarikh 7 Januari 2013. Tempoh tamatnya enam bulan daripada 7 Januari 2013 adalah pada 6 Julai 2013. Satu Penghakiman Ingkar Kehadiran telah diperolehi pada 19 April 2013. Penghakiman Ingkar Kehadiran tersebut telah diketepikan oleh defendan pada 9 Januari 2018. Lantas permohonan pembaharuan Writ Saman di bawah Lampiran 28 ini difailkan pada 8 Jun 2018. Justeru itu masa tidak harus dikirakan secara berterusan daripada tarikh Writ Saman & Januari 2013 sehingga permohonan pembaharuan Writ Saman 9 Jun 2018. Dalam meneliti perkara ini, suatu Penghakiman Ingkar Kehadiran adalah merupakan suatu pengakhiran kepada tindakan ini, di mana tempoh Writ Saman akan berhenti pada tarikh Penghakiman Ingkar Kehadiran, 19 April 2013. Sekiranya Penghakiman Ingkar Kehadiran tersebut tidak diketepikan, maka Writ Saman akan masih mempunyai baki masa dalam tempoh tiga bulan lagi daripada tarikh Penghakiman Ingkar Kehadiran sehingga tarikh tamatnya tempoh asal keesahan Writ Saman (19 April 2013 hingga 6 Julai 2013). Justeru itu Penghakiman Ingkar Kehadiran tersebut telah menghidupkan semula Writ Saman daripada 9 Januari 2018, di mana tempoh keesahan Writ Saman tersebut bermula daripada tarikh 9 Januari 2018 dengan baki tempoh keesahan yang tertinggal. Dengan itu, Writ Saman akan tamat tempoh keesahannya pada atau ketika 8 April 2018.” [24] The above enunciated principle of “freezing-and-unfreezing” as named by the parties herein has been adopted by the learned Judicial Commissioner based on like factual circumstances. [25] In the absence of any provision in Order 6 rule 7 RC prohibiting the same, we are of the view that the usage of the “freezing-and-unfreezing” principle is proper, cogent and just pursuant to the inherent jurisdiction of the Court under Order 1A and Order 92 rule 4 RC. [26] On the specific facts here, the lifespan of the writ of 6 months is due to expire on 15th September 2021. The judgment in default is obtained by the plaintiff on 16th August 2021. Thus, by applying the “freezing-and-unfreezing” principle, the writ still has a lifespan of 30 days left. The judgment in default was set aside on 4th January 2023, the plaintiff hence still had 30 days to renew the validity of the writ, to wit by 3rd February

The plaintiff made the Application to extend the validity of the writ on 20th January 2023 which is before the expiry of the writ, contrary to that contended by the defendant. [27] Consequently, we do not find that the learned Judicial Commissioner is plainly wrong in any way in the exercise of his discretion to allow the Application based on the materials before him. [28] We are mindful the defendant blamed the plaintiff for having self-caused the problem of irregular service which resulted in the making of the Application but we are of the view that the defendant has been duly compensated in costs by the setting aside of the judgment in default. There is also no order as to costs made against the defendant notwithstanding that the plaintiff succeeded in the Application. [29] Moreover, the defendant contended that by allowing the Application, the defendant is prejudiced by having lost the substantive right to the defence of limitation if the Application is dismissed and necessitating the plaintiff to re-commence the action. This is, in our view, irrelevant if not also flawed because the defence of limitation is in law only a procedural right. In the Federal Court case of Julian Chong Sook Keok & Anor v. Lee Kim Noor & Anor [2024] 5 CLJ 519, Mary Lim FCJ held as follows: “[27] As a creature of statute, limitation under the Limitation Act is procedural as it does not affect accrued rights and interests. Limitation does not extinguish rights, it merely bars access to remedies. There is thus a need to construe the relevant provision against the whole statute; and not just read each section unto itself, as if disparate and unrelated to the rest.” See also Bongsor Bina Sdn Bhd V. Sh Builders & Marketing Sdn Bhd [2024] 7 CLJ 199. CONCLUSION [30] It is for the foregoing reasons that we dismissed the appeal as so ordered. Dated this 18th September 2024 Sgd. LIM CHONG FONG COURT OF APPEAL JUDGE

Counsels for Appellant

V. S. Viswanathan Yuvaraj Sugapathy Solicitors for Appellant MESSRS. SUGAPATHY & PARTNERS Advocates & Solicitors, Suite 16.06, Plaza Permata, Jalan Kampar, 50400 Kuala Lumpur. viswa2909@yahoo.com.sg/ ys@sugapathy.com Counsels for Respondent Babu Raj Raja Gopal Solicitors for Respondent MESSRS. KEAN CHYE & SIVALINGAM Advocates & Solicitors, No.10A-10C, Jalan Panglima, 30000 Ipoh, Perak Darul Ridzuan. brrgkcs@gmail.com STATUTE/LEGISLATION REFERRED TO: Order 6 rule 7 of the Rules of Court 2012 CASES REFERRED TO: Fimbank plc v. The Owner and/or Demise Charterers of the Ship or vessel “Nika” now known as “Bao Lai” [2022] 7 CLJ 389; Ever Rich Enterprise v. Ten Mei Theng [2019] 1 MLRH 194; ECM Libra Investment Bank Bhd v. Foo Ai Meng & Ors [2013] 5 MLJ 59; Vasudevan Vazhappulli Raman v. T Damodaran PV Raman & Anor [1981] CLJ 84; Tesco Stores (M) Sdn Bhd v. Ananda Kumar a/l Krishnan [2018] 6 MLJ 261; Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v. Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329; Chong Sook Keok & Anor v. Lee Kim Noor & Anor [2024] 5 CLJ 519; and Bongsor Bina Sdn Bhd V. Sh Builders & Marketing Sdn Bhd [2024] 7 CLJ 199