Under Order 6 rule 7 of Rules of Court 2012 (ROC 2012), the courts are empowered with the jurisdiction to extend the validity of a writ. This alert discusses the Court of Appeal’s ruling in Charern Properties Sdn Bhd v Choong Nam Father & Sons Construction Sdn Bhd [2024] CLJU 2119 on the application of such procedural rule.
Background Facts
Both the Appellant and Respondent were private limited companies. The Appellant was the defendant in the action at the High Court whereas the Respondent was the plaintiff.
On 16.3.2021, the Respondent faced difficulties in serving the writ after having initiated proceedings. After failed attempts of service via personal service and AR registered post, the Respondent obtained an order for substituted service on 1.6.2021. Thereafter, the Respondent duly served the writ by way of substituted service and the Respondent secured a judgment in default (JID) on 16.8.2021. However, the judgment was set aside on 4.1.2023 by the Appellant, rendering the writ invalid as it had expired on 16.9.2021. The Respondent subsequently applied to extend the writ's validity.
The High Court’s Decision
The High Court allowed the Respondent’s application on the grounds that, inter alia, the timeline and attempts made by the Respondent show the Respondent’s genuine intention to serve on the Appellant and suggested no deliberate delay.
The Respondent’s actions thereafter in seeking the High Court’s leave to serve by substituted service and securing a JID showed the Respondent’s proactive approach. Further, after the JID was set aside by the Appellant, the Respondent then sought to correct the situation by extending the writ’s validity. The High Court further stated that all the above shows the Respondent’s commitment to ensure that due process was complied with, although the High Court did acknowledge that the Respondent ought to have applied soon after the JID was set aside.
In arriving at its ruling, the High Court referred to Order 1A of the ROC 2012 which upholds the overriding interest of justice over technical non-compliance. The High Court also referred to the Order 3 Rule 5 of the ROC 2012 which provides court with the discretion to extend time even after the expiration of the original period. Additionally, the court cited Order 6 Rule 7 of the ROC 2012 which provides for extension of time in writ matters. Finally, the court also stated that the Respondent’s situation compelled court to exercise its inherent discretionary powers to ensure justice was served and abuse of legal process was prevented under Order 92 Rule 4 of the ROC 2012.
The High Court concluded that the Respondent’s application to extend the validity of the writ was a legitimate and necessary step in ensuring that the principles of justice are upheld.
The Court of Appeal’s Decision
At the outset, the Court of Appeal referred to its earlier judgment in ECM Libra Investment Bank Bhd v Foo Ai Meng & Ors [2013] 5 MLJ 59 and stated 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.
The Court of Appeal held that it was trite that generally, the application to renew validity of writ made under Order 6 Rule 7 of ROC 2012 should be made before the expiry of the writ as per Rule 7(2A) (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).
However, in the present appeal, there was no difficulty on part of the Respondent in serving the writ before the expiry of the writ. The re-service of the writ was only made necessary as the JID obtained by the Respondent was set aside by the Appellant for irregular service. The Court of Appeal found that there was no provision in Order 6 Rule 7 ROC 2012 which catered for this kind of circumstances.
In absence of the same, the Court of Appeal found that the application of the freezing-and-unfreezing principle to be proper, cogent and just pursuant to the inherent jurisdiction of the court under Order 1A and Order 92 rule 4 ROC 2012. The Court of Appeal agreed with the ruling in Ever Rich Enterprise v. Ten Mei Theng [2019] 1 MLRH 194 which was relied by the Respondent where it was held that the validity of the writ should be viewed in intervals wherein the moment JID was entered, the time of writ expiry “freezes”. Once the JID and substituted service were set aside, the time of writ expiry “unfreezes”. As the JID was set aside on 4.1.2023, the Respondent had 30 days from 4.1.2023 to renew the validity of the writ and the Respondent made the application to extend the validity on 20.1.2023, before the expiry of the writ.
As such, the Court of Appeal did not find that the High Court was wrong in allowing the Respondent’s application.
Additionally, the Court of Appeal also acknowledged the Appellant’s argument that it was the Respondent who had caused the problem of irregular service but the court stated that the Appellant had been duly compensated for in costs by the setting aside of the JID.
Regarding the Appellant's contention that it had been denied the substantive right to invoke the defence of limitation, the Court of Appeal found this argument to be irrelevant, if not flawed, as the defence of limitation was merely procedural in nature (see Julian Chong Sook Keok & Anor v Lee Kim Noor & Anor [2024] 5 CLJ 519).
Conclusion
The Court of Appeal’s judgment ensures that procedural rules are applied in a manner that upholds fairness and justice without compromising the integrity of established legal principles. This judgment serves as a significant precedent, reinforcing the court's inherent jurisdiction to address gaps in procedural law.
9 December 2024