Fw Aviation (Holdings) 1 Limited v Viet Jet Aviation Joint Stock Company (WA-24-104-07/2025)

On 25 July 2025, this Court registered certain orders of the High Court of Justice, Business and Property Courts of England and Wales, King's Bench Division at the instance of FW Aviation (Holdings) 1 Limited's ("the Judgment Creditor") as judgments of the High Court of Malaya against VietJet Aviation Joint Stock Company ("the Judgment Debtor") pursuant to section 4 of the Reciprocal Enforcement of Judgments Act 1958("REJA").

It was also ordered that pursuant to the REJA, the Judgment Debtor was at liberty to set aside the said registration within 14 days after service upon its Hanoi and Ho Chi Minh offices in Vietnam.

The Judgment Debtor not only applied to set aside the registration of the judgments (Enclosure 10) but also applied to set aside the service of the order dated 25 July 2025 ("the Registration Order") and the Notice to Judgment Debtor of Registration of Foreign Judgment dated 13 August 2025 ("Notice of Registration") on the Judgment Debtor in Vietnam via international courier service on 11 September 2025 (Enclosure 12). In light of the fact that the question of service being a jurisdictional ground, enclosure 12 was dealt with first.

The Judgment Debtor submitted that the service was defective and invalid for failing to comply with the mandatory requirements of Order 67 Rule 7(2) of the Rules of Court 2012 (all orders and rules referred to hereinafter is to the Rules of Court 2012), read with the applicable provisions of Vietnamese law governing service of foreign judicial documents. The Judgment Creditor submitted that the service was valid under Order 67 Rule 7(2), the related rules, and under Vietnamese law.

On 26 February 2026, I dismissed Enclosure 12 with costs. These are my reasons.

The Judgment Debtor submitted that the service of the documents by courier service is defective and invalid in law. It was contended that the service did not comply with the mandatory requirements of Order 67 Rule 7(2), which has imported the regime governing service of writs out of jurisdiction provided under Order 11 Rules 5, 6, and 8, as the service was contrary to Vietnamese law governing service of foreign court documents.

The Judgment Debtor stated that the modes of service out of jurisdiction are provided by Order 11 Rule 6(1) or Rule 6(2). Rule 6(1) does not apply as there is no Civil Procedure Convention, namely, the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965, providing for service in the foreign country ratified by Malaysia.

It was argued that Rule 6(2) would then apply where either one of the 2 following modes of service is applicable:

through the government of the foreign country, where that government is willing to effect service; or

through a Malaysian consular authority or by the plaintiff and/or his agent unless such mode of service is prohibited by the law of the foreign country.

Thus, under Rule 6(2), service can be affected by the Judgment Creditor or its agent unless such mode is prohibited by Vietnamese law. This is clear as Order 11 Rule 5(2) does not authorise the doing of anything in a foreign country which is contrary to the law of that country, while Order 11 Rule 5(3) states that service need not be personal so long as the service is in accordance with the law of the foreign country.

The Judgment Debtor contended that Vietnamese law prescribes an exclusive official governmental channel for service of foreign court documents under the Law of Mutual Legal Assistance 2007 of Vietnam ("LMLA of Vietnam"). The process in Vietnam requires a transmission by a competent authority of the requesting state, receipt and examination by the Vietnamese Ministry of Justice, and execution of service by the competent Vietnamese authority.

The Judgment Debtor concluded that the mode of service by courier is contrary to Vietnamese law, which has a mandatory state-to-state process prescribed by the LMLA of Vietnam.

The Judgment Creditor contended that the service was not contrary to Vietnamese law and in compliance with Order 11, Rules 5 and 6. The following submissions were put forth:

Vietnamese law does not prescribe any mandatory or exclusive mode for service of foreign court documents, and neither does it prohibit service by registered mail through an international courier such as DHL.

(ii) The mode of service by international courier is recognised under the Vietnamese Code of Civil Procedure and related implementing instruments.

(iii) The Judgment Debtor's reliance on the Law on Mutual Legal Assistance is misconceived, as that framework is facilitative and applies only where service is effected through a formal request by a competent authority.

(iv) The service was plainly effective in bringing the proceedings to the Judgment Debtor's attention, as evidenced by its prompt and substantive response in filing applications to challenge the registration of the foreign judgment, with no prejudice suffered.

Firstly, through its expert on Vietnamese law, the Judgment Creditor showed that the service of court documents in Vietnam is governed by the Code of Civil Procedure, which is equivalent to our Rules of Court 2012. The Code of Civil Procedure does not prescribe any mandatory or exclusive mode for service of foreign court documents, nor does it contain any provision expressly prohibiting:

service of foreign court documents by the foreign plaintiff or its agent; or

(ii) service by registered mail through an international courier.

Secondly, the Code of Civil Procedure recognises multiple permissible modes by which foreign court documents may be served on parties in Vietnam, including: (i) service by judicial entrustment under the Law on Mutual Legal Assistance ("LMLA"); (ii) service by registered mail to the address of the concerned party with acknowledgement of receipt; and (iii) direct or personal service.

It was shown that service by registered mail through international courier service is permitted under Vietnamese Law vide Articles 173.1 and 175 of the Code of Civil Procedure. These articles, it was contended, recognises both personal service and service by registered mail with acknowledgement of receipt as valid methods of service.

Thirdly, that the Joint Circular No. 01/2019/TTLT-TANOTC-BNG dated 5.12.2019, issued by the Supreme People's Court of Vietnam and the Ministry of Foreign Affairs, it was contended, expressly recognises international courier companies such as FedEx and DHL as legitimate postal service providers. Service by registered mail via DHL, therefore, squarely falls within the meaning of "registered postal service" under Vietnamese law.

Fourthly, it was asserted that the contention of the Judgment Debtor's expert, that the LMLA requires all service of foreign court documents must necessarily be effected through Vietnam's central authority or official route, and therefore any private route through agents or courier are "impliedly prohibited" is misconceived in law.

The basis for so stating is that the scheme of the LMLA applies only to service which is sought pursuant to a formal request by a competent authority under the said law. Articles 3 and 6.2 of the LMLA expressly provides that matters falling outside the scope of the LMLA, the service of foreign court documents is governed by the Code of Civil Procedure.

The issue in the instant case is whether the service of the court documents on the Judgment Debtor by international courier service, which is a form of registered mail where there is acknowledgment of receipt, is contrary to Vietnamese law.

The law governing service out of jurisdiction of a notice of registration of a foreign judgment is provided by Order 67, Rule 7. It is provided that service out of jurisdiction of such notice is to be effected in accordance with Order 11 Rules 5 and 6. Order 11 provide:

in Rule 5(2) that nothing in the Order 11 authorises or requires the doing of anything in the foreign country that is contrary to the law of that country; and

(ii) in Rule 5(3) that service in a foreign country need not be personal, provided such service is effected in accordance with the law of that country.

Thus, the mode of service must not be contrary to the law of Vietnam. The scope of the words "contrary to the law of that country" in Order 11 Rule 5(2) was considered in Malaysia Offshore Mobile Production (Labuan) Ltd v PCPP Operating Company Sdn Bhd & Ors [2022] 1 CLJ 440; [2022] 8 MLJ 130 and it was held that a mode of service effected abroad would be contrary to the law of the foreign country in limited circumstances, namely:

where the service failed to comply with a mandatory and exclusive manner of service prescribed by the foreign law; or

where the service was effected in a manner specifically prohibited by the foreign law.

In this regard the approach taken by the Supreme Court of the United Kingdom in Abela And Others v Baadarani [2013] 4 All ER 119 where a distinction was drawn between "not permitted under the law of the country of service" and "contrary to the law of the country of service" which found favour of this Court in Malaysia Offshore Mobile Production and Able Food Sdn Bhd v Open Country Dairy Ltd [2012] 4 CLJ 614 is instructive. I gratefully adopt the following paragraph in Able Food: [83] The UK Supreme Court has clearly drawn the difference between what is "not permitted under the law of the country of service" and "contrary to the law of the country of service". That is to say, whilst service may not be in a permitted form under the foreign law, it is still acceptable as good service as long as the said service does not contravene the foreign law and is successful in bringing notice of the claim to the defendant's attention.

To determine whether the service was contrary to the law of Vietnam requires an answer to the question of what the Vietnamese law is on service of foreign court documents and whether the type of service by international courier service is contrary to Vietnamese law. It is trite that what that foreign law is a matter of evidence (see The "Lung Yung" & "Thai Yung" Owners & Ors v Sadit Timber Sdn Bhd [1984] 1 MLJ 29). In the instant case, both parties produced the affidavits by their respective experts on Vietnamese law.

I have considered the expert evidence and found that the LMLA does not show that service of court documents through courier service is either "contrary to" or "expressly prohibited". In support are Articles 3 and 6.2, which provide that matters falling outside the scope of LMLA, the service of foreign court documents is governed by the Code of Civil Procedure. Matters not covered by the LMLA are matters where there is an absence of written request from a competent authority, as stipulated therein, to carry out legal assistance activities.

Further, the applicability of the LMLA arises when there is a written request by a competent authority. The Articles referred to by the Judgment Debtor's expert, i.e., Articles 6,10, and 15, set out the mechanism and scope of assistance where a formal written request has been made. This is also the Judgment Debtor's expert's opinion, where he states as follows: "mutual legal assistance activities including service of foreign judicial documents may only be undertaken pursuant to a 'legal mandate', meaning a written request issued by a competent foreign authority."

It is inconceivable that in the absence of any written request from a competent foreign authority, the LMLA scheme is triggered. In the circumstances, where the service does not constitute an act of state-administered legal assistance under the LMLA, such service would be governed by the Code of Civil Procedure pursuant to Article 6.2 of the LMLA. The Code of Civil Procedure, as shown by the Judgment Creditor's expert, expressly recognises service by postal means, including through courier service providers such as DHL and FedEx.

On the other hand, it is obvious that the construction placed by the Judgment Debtor's expert has expanded the LMLA from an enabling inter-governmental framework into a blanket prohibition against all other modes of delivery. There is no express statutory language in the LMLA which states that service of foreign judicial documents must only be effected through the Ministry of Justice or through the legal mandate mechanism. To do so would fly in the face of Vietnamese law.

I hold that the provision of Order 11 Rules 5(2) & (3) and Rule 6(2) read with Order 67 Rule 7(2) have been satisfied. The service by international courier service on the Judgment Debtor of the notice of registration of foreign judgment is not contrary to the law of Vietnam or fell outside the permissible routes in Order 11 Rule 6(2) because it was prohibited by the law of Vietnam. The service is valid pursuant to Articles 173.1 and 175 of the Code of Civil Procedure, read with the Joint Circular No. 01/2019/TTLTANOTC-BNG dated 5.12.2019, issued by the Supreme People's Court of Vietnam and the Ministry of Foreign Affairs.

Accordingly, I am unable to agree with the position taken by the Judgment Debtor. The service is not defective and is valid service. In the circumstances, I dismissed Enclosure 12 with costs. DATED:18MAY2026 AMARJEET SINGH SERJIT SINGH JUDGE HIGH COURT KUALA LUMPUR Counsel of the Judgement Creditor: Sharon Chong Tze Ying Charmaine Denisha Lionel Tetuan Skrine Unit No.50-8-1, Level 8, Wisma UOA Damansara, No.50, Jalan Dungun, Damansara Heights, 50490 Kuala Lumpur. Counsel of the Judgement Debtor: Steven Thiruneelakandan Jeremiah Rais bin Badrul Hisham Ananthan a/l Nithya Moorthi Jane Chan Siew Thung Tetuan Steven Thiru, Unit A1-12-01, Arcoris Mont Kiara, Jalan Kiara, 50480 Mont Kiara, Kuala Lumpur. 1) Malaysia Offshore Mobile Production (Labuan) Ltd v PCPP Operating Company Sdn Bhd & Ors [2022] 1 CLJ 440; [2022] 8 MLJ 130. 2) Abela And Others v Baadarani [2013] 4 All ER 119. 3) Able Food Sdn Bhd v Open Country Dairy Ltd [2012] 4 CLJ 614. 4) The "Lung Yung" & "Thai Yung" Owners & Ors v Sadit Timber Sdn Bhd [1984] 1 MLJ 29).