Dong Moon Soo v Snc Process Services Sdn Bhd (WA-24NCC-348-08/2021)

SNC PROCESS SERVICES SDN BHD [Company No.: 1083340-D]

CHO SEUNG JIN [Passport No.: M50341787] … DEFENDANTS JUDGMENT Introduction [1] Enclosure 33 is the 2nd Defendant’s Notice of Application dated 14.5.2024 to set aside: a) the Order dated 24.9.2021 for Substituted Service of the Originating Summons dated 17.8.2021 (Enclosure 9) (“the OS”) (“SS Order for OS”); b) the Order dated 18.11.2021 granted by this Court in respect of the prayers in the Originating Summons dated 17.8.2021 (Enclosure 16) (“Judgment”); and c) the Order dated 28.3.2022 for Substituted Service of the JID (Enclosure 22) (“SS Order for Judgment”). [2] Consequential and or in addition to the above prayers, the 2nd Defendant also prayed for: a) leave to oppose and defend the Plaintiff’s OS; and b) if required, an abridgement of time and or extension of time be granted to the 2nd Defendant to file the application in Enclosure 33. [3] After hearing submissions from counsel, this Court found Enclosure 33 to be without any merits and dismissed the same with costs for the following reasons: a) the SS Order for OS was properly granted; b) the Judgment obtained by the Plaintiff was regular and should not be set aside ex debito justitiae; c) the Judgment was deemed served on the 2nd Defendant on 26.4.2022 after substituted service was effected according to the SS Order for Judgment. The 2nd Defendant’s application in Enclosure 33 was filed only on 14.5.2024. There was an undue delay of 2 years. The 2nd Defendant has failed to show satisfactory reasons or grounds for this delay; d) the 2nd Defendant did not have any defence on merits. Background Facts [4] The Plaintiff’s claims in the OS was in the nature of an oppression action under Section 346 of the Companies Act 2016 (“CA 2016”). [5] Prior to the filing of the OS, communication between parties had broken down and there was an exchange of correspondences and demands between parties’ solicitors on record, namely, Messrs Skrine for and on behalf of the Plaintiff, and Messrs Christina Chia Law Chambers for and on behalf of the 2nd Defendant. Both the Plaintiff and the 2nd Defendant were at the material times Korean citizens. [6] On 19.8.2021, Ms Annjili Gunendran of Messrs Skrine had written to Ms Yvonne Chang of Messrs Christina Chia Law Chambers to inform that the Plaintiff had taken out proceedings against the 2nd Defendant and to ask if Messrs Christina Chia Law Chambers had instructions to accept service on behalf of the 2nd Defendant. In respect of the OS, Ms Yvonne Chang confirmed on 20.8.2021 that they had no instructions to accept service of the cause papers. [7] Personal service of the OS and Affidavit in Support was attempted on the 2nd Defendant’s last known address which was The Hill Church, S-18-1, Wisma YNH (Kiara 163), Jalan Kiara, 50480 Mont Kiara, Kuala Lumpur (“The Hill Church”) on 6.9.2021, 15.9.2021 and 17.9.2021, with a letter of appointment being posted to The Hill Church on 15.9.2021. [8] Thereafter, the Plaintiff applied for and obtained an order for substituted service of the OS on 24.9.2021 i.e the SS Order for OS. Substituted service of the OS was effected according to the terms of the SS Order for OS, by pasting a copy of the OS at The Hill Church on 11.10.2021 and advertisement in the New Straits Times on 11.10.2021. [9] It was not in dispute that the 2nd Defendant did not file any affidavit in respect of the OS and neither did the 2nd Defendant attend at the hearing of the OS be it personally or through his solicitors. Premised on the fact that substituted service of the OS was properly effected, the Plaintiff applied for and obtained the Judgment against the 2nd Defendant in terms of the prayers in the OS on 18.11.2021 [10] After the Judgment was granted on 18.11.2021, the Plaintiff again took similar steps to effect service of the Judgment onto the 2nd Defendant, this time not only at The Hill Church, but also at the 2nd Defendant’s wife’s address registered with the Companies Commission of Malaysia in respect of her directorship with the 1st Defendant, namely at 7-05 Mont Kiara Damai Condo, Jalan Kiara 2, Mont Kiara, 50480 Kuala Lumpur (“the 2nd Defendant’s wife’s SSM address”). However, even the personal service attempts at this address were unsuccessful. [11] As a result, the Plaintiff applied and obtained an Order dated 28.3.2022 for Substituted Service of the Judgment (“SS Order for Judgment”). Substituted service of the Judgment was effected according to the terms of the SS Order for Judgment by pasting a copy of the Judgment at The Hill Church and at the 2nd Defendant’s wife’s SSM address on 11.4.2022 and advertising on the New Straits Times on 8.4.2022. [12] According to the terms of the SS Order for Judgment, the Judgment was deemed served 14 days after the last date of posting and advertisement, namely 14 days after 11.4.2022, which was on 26.4.2022. [13] Almost 2 years on, the 2nd Defendant filed Enclosure 33 on 14.5.2024 claiming that the SS Order for OS was wrongly granted and seeking to set aside the Judgment on that ground and also on the ground that the 2nd Defendant has a good defence on merits to the Plaintiff’s claims in the OS. Court’s Considerations SS Order for OS Regular [14] In challenging the SS Order for OS, the contention of the 2nd Defendant was that the Plaintiff had not complied with the Practice Note No 1 of 1968 for Application for Substituted Service in the High Court of Malaya (“the Practice Note”). In particular, the contention was that the Plaintiff had not taken the trouble to call the 2nd Defendant vide his mobile phone and or to serve the cause papers for the OS to his new residential address which the 2nd Defendant averred that the Plaintiff had visited. [15] With respect, I found that the Plaintiff had in fact fulfilled the requirements under Practice Note to apply for substituted service of the OS, which are: a) to make two (2) separate calls at the defendant’s residential address (if known) or business address, on weekdays and at reasonable hours; b) the second call being made by appointment by letter sent to the defendant by way of ordinary prepaid letter post, giving not less than 2 clear days’ notice, enclosing a copy of the document to be served, and offering an opportunity to make a different appointment; c) the affidavit also to state the letter of appointment has been returned or not, and whether any answer was received. [16] It is trite that the Court will adopt a pragmatic approach to the application of the Practice Note. This was also discussed in the High Court case of Re Yeap Chee Fun; Ex P Pernas Trading Sdn Bhd [2000] 5 MLJ 510, where the Court had held, inter alia, that: a) generally, where a debtor is on the run, it would be naive to require the minute details of the Practice Note to be followed. It is sufficient if it is substantially followed. The Practice Note is not law, but merely a direction for administrative purpose; b) so for example, where an order for substituted service is made in respect of a bankruptcy notice, the issue is not whether the judgment debtor knows about the bankruptcy notice, but whether the order for substituted service is correctly made and the subsequent service is in accordance with the order. The fact that the judgment debtor is not aware of the bankruptcy notice, even if it is true, does not nullify service. [17] In the instant case, the substituted service of the OS was effected in accordance with the terms of the SS Order for OS, by pasting a copy of the OS at The Hill Church on 11.10.2021 and advertising on New Straits Times on 11.10.2021. In fact, learned counsel for the 2nd Defendant did not dispute that the terms of the SS Order for OS had been duly complied with. [18] To be clear, the 2nd Defendant was not a Malaysian citizen. Therefore, there was no formal register of address or address search that the Plaintiff could conduct against the 2nd Defendant to ascertain his current residential address, unlike a Jabatan Pendaftaran Negara (JPN) NRIC search which can be conducted for a Malaysian citizen. The only addresses of the 2nd Defendant known to the Plaintiff were those recorded in the Companies Commission of Malaysia (“CCM”) search result of the 1st Defendant, of which the 2nd Defendant and his wife were directors of and The Hill Church of which the 2nd Defendant and his wife were active senior members of (as published by The Hill Church on their website), being an elder and the pastor of the church respectively. Thus the known addresses of the 2nd Defendant were: a) Unit 37-01 Mont Kiara Damai Condo, Jalan Kiara 2, Mont Kiara, 50480 Kuala Lumpur (which was listed as the 2nd Defendant’s address in the CCM search result) (“Unit 37-01”); b) Unit 7-05 Mont Kiara Damai Condo, Jalan Kiara 2, Mont Kiara, 50480 Kuala Lumpur (which was listed as Jang Kye Soon’s i.e. the 2nd Defendant’s wife’s address in the CCM search result) (“Unit 7-05”); and c) The Hill Church, S-18-1, Wisma YNH (Kiara 163), Jalan Kiara, 50480 Mont Kiara, Kuala Lumpur (“The Hill Church”). [19] In this connection, the 2nd Defendant had admitted that he was no longer resided in Unit 37 - 01 (which CCM records were never updated by the 2nd Defendant) but resided in Unit 7-05 as at 2017. The 2nd Defendant also admitted that his address in the CCM records had not been updated since 2018. [20] The OS was filed in August 2021, 4 years later. As at the filing of the OS on 17.8.2021, the last known address of the 2nd Defendant known to the Plaintiff was The Hill Church. Indeed, at no point in the 2nd Defendant’s affidavits did the 2nd Defendant dare to state or admit that as at the date of the OS proceedings (i.e. on or about August – November 2021), he was still residing in Unit 7-05. The 2nd Defendant did not adduce any evidence to show that he still resided and or could still be found at Unit 7 -05 for the purposes of service of the OS and or the Judgment. [21] In any case, the Plaintiff had in fact attempted service of the Judgment at Unit 7-05 on 16.1.2022, 20.1.2022 and 24.2.2022, but were unsuccessful. Substituted service of the Judgment was also effected by pasting a copy at the Unit 7-05 premises on 11.4.2022. [22] Accordingly, it is my judgment that in the circumstances of this case, where the Plaintiff was unable to locate the 2nd Defendant having exercised all reasonable due diligence and having only managed to obtain The Hill Church address, the order for substituted service in terms of the SS Order for OS was warranted and proper. [23] For completeness, I also did not find the 2nd Defendant’s contention that the SS Order for OS was irregular or defective because it did not state the hearing date of the OS of any merits. The 2nd Defendant had submitted that the advertisement on the New Straits Times which was published on 11.10.2021 in effecting the SS Order for OS was irregular or defective because it did not state the hearing date of the OS. [24] It is trite that the purpose of substituted service of an originating process is to bring notice of the existence of legal proceedings to a defendant or respondent as held the Federal Court in Kamaruddin bin Mohamed v Uni ted Motor Works (M) Sdn Bhd [1982] 1 MLJ 126. The New Straits Times advertisement dated 11.10.2021 followed the format of the Form of Advertisement prescribed under Form 135 of the Rules of Court 2012 insofar as it can be applicable to an OS, which does not state a hearing date: [25] The 2nd Defendant had relied on the case of Hasnah bt Che Hassan v Hongkong Bank Malaysia Bhd (formerly known as Hongkong Shanghai Banking Corp Ltd) [2010] 4 MLJ 241 to submit that failure to state the hearing date in the advertisement was a fatal defect. With respect, the case of Hasnah (supra) can be distinguished. Hasnah (supra) was a bankruptcy case which concerned an advertisement stating that the creditor’s petition would be heard on 12.9.1995 but was in fact adjourned to 21.11.1995, which was not informed to the judgment debtor and upon which the adjudicating order and receiving order were granted. Form 15 of the Bankruptcy Rules 1969, which is the form of notice/ advertisement for a bankruptcy petition, requires the hearing date to be stated: [26] Accordingly, for the reasons above, the SS Order for OS was not only regular and properly granted, there was also no irregularity with the advertisements of the same. Defence on the merits [27] On the assumption that the SS Order for OS was regular and proper, the 2nd Defendant also contended that the Judgment ought to be set aside on the ground that the 2nd Defendant had good defence on the merits to the Plaintiff’s claims for oppression under the OS. [28] In this regard, the 2nd Defendant had relied on Order 42 Rule 13 of the ROC 2012 which stipulates: ’13. Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court ad serve it on the other party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.’ [emphasis added] [29] In the case of Halim Saad v Chan Yok Peng [2021] 1 CLJ 499, the Court of Appeal held that Order 42 Rule 13 is only applicable vis-à- vis the provision under the Rules of Court 2012 which specifically provides for a setting aside or variation of any order or judgment. In this case, the 2nd Defendant had not referred to this Court the specific provision of the Rules of Court 2012 which provides for the setting aside of a judgment made in an originating summons (unlike for example Order 35 Rule 2(1) of the Rules of Court 2012 which deals with judgment given in the absence of a party at the trial of an action [See: Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v. Awang Soh bin Mamat & Ors [2009] 4 MLJ 610). Although the 2nd Defendant did not appear and did not file any affidavits to oppose the OS, this does not mean that the OS was not heard on its merits when the Judgment was granted. This means that the proper route to be taken if the 2nd Defendant was not satisfied with the Judgment was to appeal to the Court of Appeal instead of filing an application to set aside. [30] In any case, even with regards to the 2nd Defendant’s submissions on the meritorious defence, the purported defence put forth was nothing more than bare allegations unsupported by evidence. It was undisputed that management of the 1st Defendant’s business operations was left to the control of the 2nd Defendant, who conducted acts oppressive to the interest of the Plaintiff which had led to the decision to wind-up the company. This however was later left uncompleted or hanging in limbo due to the acts of the 2nd Defendant. [31] The 2nd Defendant had further contended that the Plaintiff being a 70% majority shareholder of the 1st Defendant could not possibly be oppressed by the 1st Defendant who had only 30% of the shares. However, what the 2nd Defendant had failed to disclose to this Court was the fact that the Plaintiff had upon the 2nd Defendant’s advice, transferred a substantial portion of his shares to 2 individuals nominated by the 2nd Defendant, thus reducing the Plaintiff’s shareholdings to less than 50%. There was no evidence that these shares were ever transferred back to the Plaintiff. Delay in application [32] There is a further reason why the application under Enclosure 33 ought to be dismissed. Taking that the Judgment had been deemed served on the 2nd Defendant by way of substituted service as at 26.4.2022, there was a delay of 2 years in the 2nd Defendant’s filing of Enclosure 33. [33] The 2nd Defendant contended that he was only made aware of the Judgment on 16.4.2024. With respect, I found it to be untenable and improbable that the 2nd Defendant never came across postings related to the OS and Judgment on the premises of The Hill Church or vide the advertisements on the New Straits Times and or the letters sent by the Plaintiff’s solicitors to The Hill Church, especially if the 2nd Defendant (and he had admitted so) had and is still attending the same church from 2018 until 2024. Similarly, the 2nd Defendant was well aware of the then ongoing disputes relating to the handling and closure of the 1st Defendant company, and the 2nd Defendant’s solicitors at the time on 19.8.2021 had been notified that the Plaintiff had taken out proceedings against the 2nd Defendant. The 2nd Defendant’s contention that he was communicating with his solicitors through one Lim Mei Yee, who could not be reached at the time in August 2021 was also unsupported by evidence. [34] I agree that the 2nd Defendant was an indolent litigant, unlike the case of the appellant in the Court of Appeal case of Ramasundramoorthy a/l Permalu v Gregory Yusran & Associates [2020] 5 MLJ 502 who took various steps to resolve the matter with the respondent, including negotiating with the respondent, without success. [35] Order 42 Rule 13 of the Rules of Court 2012 provides that an application to set aside an order or judgment shall be made within 30 days after the receipt of such order or judgment. As such, the application to set aside the Judgment should have been filed by 25.5.2022. Instead it was only filed on 14.5.2024. The delay was inordinate. Conclusion [36] For the reasons above, Enclosure 33 was dismissed with costs. Dated the 23rd day of January 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:

Ms. Lim Koon Huan together with Ms. Siew Kar Yan and Ms.

Mr. Wong Chee Ming for 2nd Defendant

Re Yeap Chee Fun; Ex P Pernas Trading Sdn Bhd [2000] 5 MLJ

Kamaruddin bin Mohamed v Uni ted Motor Works (M) Sdn Bhd [1982] 1 MLJ 126 3. Hasnah bt Che Hassan v Hongkong Bank Malaysia Bhd (formerly known as Hongkong Shanghai Banking Corp Ltd) [2010] 4 MLJ 241 4. Halim Saad v Chan Yok Peng [2021] 1 CLJ 499 5. Ramasundramoorthy a/l Permalu v Gregory Yusran & Associates [2020] 5 MLJ 502

Section 346 of the Companies Act 2016 2. Form 135 of the Rules of Court 2012 3. Form 15 of the Bankruptcy Rules 1969 4. Order 42 rule 13 of the Rules of Court 2012