Radziwill Mohamed Ali v 1. ) Devere and Partners (L) Limited (WA-22NCvC-832-12/2018)

DEVERE AND PARTNERS (L) LIMITED (No Syarikat: LL02831) …DEFENDAN PERTAMA

DEVERE GROUP DUBAI …DEFENDAN KEDUA GROUNDS OF JUDGMENT (Enclosure 87) 30/03/2023 15:47:32 WA-22NCvC-832-12/2018 Kand. 93 S/N TBSyWEkv4EijU9L2bqaxlw

The Plaintiff seeks to extend the writ for the 5th time to serve the said document on the 2nd Defendant that is a company not resident in Malaysia.

After hearing the submissions by the Plaintiff’s counsel, I find that the application to extend the writ should not be allowed and I had to dismiss the same.

The Plaintiff had renewed and extended the writ 4 times earlier. The current extended writ will expire on 19-2-2023.

The application to renew for the 5th time was filed by the Plaintiff on 14-2-2023 with the affidavit in support by the Plaintiff.

The claim against the 1st Defendant was heard by way of a full trial and was dismissed by this Court earlier. No appeal was filed against the said order.

The Plaintiff did not take any steps to serve the writ after the attempted service through the Malaysian Judiciary and the Malaysian Foreign Service by way of letter dated 4-5-2021.

The affidavit in support by the Plaintiff does not provide any evidence save for the letter dated 4-5-2021 and 6-5-2023. The only follow up undertaken by the Plaintiff was by way of a telephone conversation dated 10-2-2023 that alleged that the Malaysian Foreign Service did serve the writ by letter dated 23-6-2021. No further steps were taken by the Plaintiff to follow up with the Malaysian Foreign Service to ensure that the writ was served out of jurisdiction within the validity period of the said extended writ. C. Decision of this Court

During the hearing of this suit, the Plaintiff’s counsel had honestly conceded that this Court could not extend the writ for the 5th time as this Court is bound by the decision of the Federal Court in Duli Yang Maha Mulia Tunku Ibrahim Ismail v Datuk Captain Hamzah [2009] 4 MLJ 149.

The Federal Court held that it is the duty of the High Court to analyse the affidavit filed in support of the application to ensure that the requirements of Order 6 rule 7(2A) of the Rules of the High Court are complied with. It must be shown by the applicant that serious efforts were undertaken for the writ to be served within the validity of the previous writ.

This Court is also bound by the decision of the Court of Appeal in Khoo Kim Hock v Maybank Finance Bhd [2011] 4 CLJ 250 where Sulong Mat Jerai JCA held that it is the duty of the Plaintiff to show that steps were undertaken to serve the writ out of jurisdiction.

The Plaintiff cannot complaint that the Registry of the Federal Court or the Malaysian embassy or foreign service did not serve the writ at the earliest possibility. It is for the Plaintiff to follow up and ensure that service of the writ was undertaken or at least an attempt is made to serve the same.

Having considered the above and the honest concession by the Plaintiff’s counsel, I find that the application to renew the writ for the 5th time is not justified.

I note that the Plaintiff did file the application within the time frame required by Order 6 rule 7(2A) of the Rules of Court 2012. Thus, fulfilling the first limb of the test required for the validity of writ.

However, as to the attempt to serve the writ out of jurisdiction, I find that the Plaintiff was lackadaisical in their attempt to serve the writ out of jurisdiction. The Plaintiff did not follow up frequently within the lifetime of the writ. The only request was only made near the time when the writ was to expire. The Plaintiff should have taken steps to inquire the Malaysian Foreign service to ensure that the writ is served within the previous validity of the writ. Especially when the writ had expired 4 times before this application was filed.

Therefore, I have no choice but to dismiss the application as the second requirements of Order 6 rule 7(2A) of the Rules of Court 2012 is not complied with.

In coming to this decision, I have had the opportunity to consider the judgments of my learned brothers, Raja Ahmad JC in 1Malaysia Development Bhd v Deustche Bank [2022] MLJU 3269 and Azlan Sulaiman JC in FimBank Plc v The Owners of the vessel Nika [2022] MLJU 1352.

I find that the above cases have elucidated the law clearly on this issue. I agree that it must be shown that serious attempt to serve the writ was undertaken before this Court could justify entertaining renewal of the writ. Especially when the writ was extended for 4 times before.

Another factor that I have considered is the number of times that the Plaintiff has renewed the writ for service overseas. As I have highlighted earlier, this is the 5th application for renewal. The writ was not served despite this suit having commenced since 2018. I am not satisfied that the Plaintiff has taken all diligent steps to ensure that the writ is served overseas. Merely calling the Federal Court registry near the date of the expiry of the writ without any continuous follow ups and without evidence of measures taken to ensure that the writ is served is not sufficient in the circumstances of this case. Considering the age of the writ, surely more must be shown to this Court before the writ is renewed again for the 5th time. S/N TBSyWEkv4EijU9L2bqaxlw D. Order of this Court

Application is dismissed. Dated 1st March 2023 Dato’ Indera Mohd Arief Emran bin Arifin Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 S/N TBSyWEkv4EijU9L2bqaxlw Kamraj Nayagam together with Nichole Lee Shih for the Plaintiff