Commencement of proceedings Commencement of proceedings = 4 forms of process
= 4 forms of process 1.
1. Writ of summon = matters involving private dispute of Writ of summon = matters involving private dispute of law/fact btwn 2 or more partieslaw/fact btwn 2 or more parties 2.
2. OS = OS = application under statuteapplication under statute – – requirement requirement 3.
3. Originating motion =matters with public interest Originating motion =matters with public interest (right)(right) 4.
4. Petition = touch on statusPetition = touch on status – – declare of status ex: marriage status declare of status ex: marriage status
O5 R1 =
O5 R1 = proceedings can be commenced by OS or writ except for those under the written laws lproceedings can be commenced by OS or writ except for those under the written laws l istedisted in schedule C ( O94 R2)
in schedule C ( O94 R2)
Writ Writ O5 R1 =
O5 R1 = Provides that writ is one of the Provides that writ is one of the methods to commence civil action in methods to commence civil action in Court.Court. O5 R2
O5 R2 – – Action which must begun by writ Action which must begun by writ 1.
1. relief for torts committed other than trespass to land,relief for torts committed other than trespass to land, 2.
2. those alleging dealings of fraud,those alleging dealings of fraud, 3.
3. Case: Seah Choon Chye v Saraswathy Devi [1971] 1 LJ 112Case: Seah Choon Chye v Saraswathy Devi [1971] 1 LJ 112 Held : a claim
Held : a claim involving an allegation of fraud must be begun by involving an allegation of fraud must be begun by writ, as parol evidence is usuallywrit, as parol evidence is usually required
required
4.
4. those of breach of any duty,those of breach of any duty,
case: Lau Ee Ee vTang King Kwong [1986] 1
case: Lau Ee Ee vTang King Kwong [1986] 1 MLJ 308MLJ 308
Held: the injurious sustained must be expressly pleaded and proved, or admitted, in order to
Held: the injurious sustained must be expressly pleaded and proved, or admitted, in order to obtainobtain damages
damages
5.
5. those of breach of promise to marry,those of breach of promise to marry, 6.
6. those where patents have been those where patents have been infringed.infringed. - The writ i
- The writ is preferred here because substantial disputes of fact are likely to occur in cases of theses preferred here because substantial disputes of fact are likely to occur in cases of these natures, and thus witnesses would need to be called to establish or disprove such facts.
natures, and thus witnesses would need to be called to establish or disprove such facts.
O5 R4 (2)
O5 R4 (2) Action which writ may be used.Action which writ may be used. 1.
1. Sole principle or question or issue is Sole principle or question or issue is likely to be construction of any written law of likely to be construction of any written law of any deed, will,any deed, will, contract or other document
contract or other document 2.
2. Unlikely substantial dispute of factUnlikely substantial dispute of fact 3.
3. O72 R2 O72 R2 = a probate action must be begun by writ, but if begun by OS it is improperly constitu= a probate action must be begun by writ, but if begun by OS it is improperly constitutedted
Case: Seah Choon Chye v Saraswathy Devi [1971] 1 LJ Case: Seah Choon Chye v Saraswathy Devi [1971] 1 LJ 112112 Held: if a case does
Held: if a case does not fall under RHC 1980 O5R2, then the not fall under RHC 1980 O5R2, then the P has a choice of commencing the actionP has a choice of commencing the action by way of writ or
by way of writ or OS, depending on the existence of a dispute of factOS, depending on the existence of a dispute of fact
Case : Ng Wan Siew v Teoh Sin [1963] MLJ 103 Case : Ng Wan Siew v Teoh Sin [1963] MLJ 103 Held: where a case is l
Held: where a case is likely to involve witnesses giving conflicting evidence, the writ od ikely to involve witnesses giving conflicting evidence, the writ od summon issummon is the appropriate originating process
the appropriate originating process
Case: Lim Cho Hock v Speaker, Perak State Legislative Assembly [1979] 2 MLJ Case: Lim Cho Hock v Speaker, Perak State Legislative Assembly [1979] 2 MLJ 8585 Held : proceeding wrongly commenced by originating summon, writ is
Question of construction
1. sale and purchase agreement
Case: National Land Finance Co-operative Society Ltd v Sharidal Sdn Bhd [1983] 2 MLJ 211
Held: the procedural objection raised by the appellants had no substance as in this case it is purely matter of constcution of sale and purchase agreement between the parties. Hence, no other
evidence is needed to determine the issue with undisputed facts. Therefore, OS is an appropriate way to commence the proceedings.
2. construction of deed of settlement
Duration and renewal of writ and OS O6 R7 – writ =life span of 6 months O7R6—OS = 6 months
It must be stated in the affidavit the attempts and reasons made for the service before renew
O6 R6(2A)
- Must be made by ex parte summons and that it must be supported by an affidavit showing that effort has been made to serve the writ within one month from the date of the writ being issued.
Case: Kleinworth Benson Ltd v Barbrak Ltd [1987] 2 All ER 289 Held: that giving a good reason was sufficient to renew.
Case: New Ching Kee v Lim Ser Hock (1975) 2 MLJ 183
Held: reason on the ground of that the file was mislaid and a negotiation was in process was held not to be a sufficient reason.
Form of writ
O6 R1 – form 2 =HC, For 2A subordinate courts
Issue of Writ
O 6 R6 (2) ve the original copy of writ to the Registrar and copies as in accordance to the number of defendant to be served when presenting it for sealing. = atleast 3
O6 R6 (3) d shall
sign, seal and date the writ.
Endorsement of writ O 6 R2 (1)
Service of writ O10 R 1(1)
A writ must be personally served on each defendant by; a) Prepaid registered post
b) To his last known address
c) If practicable, first attempt should be made not later than one month from the date of its issue.
Case: Supreme Finance (M) Bhd v Wing Hong How [193] 3 MLJ 114
Held:must be served personally on each D by P or his agent unless some alternative method is / has been authorized for that particular case.
Case: Amanah Merhant Bank Berhad v Lim Tow Choon [14] 1 MLJ 413 Held: not necessary named person must receive, it can be anyone
Order 10 Rule1(4) – produce duly acknowledged AR card
Case: Pengkalan Concrete Sdn Bhd v Chow Mooi [2003] 3 MLJ 67 Held: not necessary that the person named in the writ received it
1. Person affecting
It is no longer necessary that service be affected by the court or other official process serves. The plaintiff or his agent, who may be there plaintiff’s solicitor or his clerk, can now affect service.
2. Last known address
Case: Ramlan bin kamal v Perbadanan Nasional Berhad [2004] 1 MLJ 425
Held: last known address the ost recent known residence of the defendant. A summon may personally be served at his place of employement
3. Company –company search
a. By leaving a copy of writ at the registered address of the company b. Sending a copy to office-principle office
c. Send to secretary /director/officer
4. Partnership or firm
Order 77 rule 3 – writ must have all the names
5. Person under disability Order 76 Rule 14
Minor- father/guardian/ to who he resides with Patient – person authorized to act on him
6. Service of solicitor
7. Service on agent of overseas principle a. Order 10 rule 2
b. Leave from court c. Exparte application
d. Evidence that the party is the agent of a foreign principle whom must also be adduced e. Agent if individual should be residing or carrying on business within jurisdiction
8. Service on government
AG or any officer designated by AG Ex: state secretary
How to give effect to personal service? - O62 R3
a) By leaving a copy of the document to the person to be served, and if so requested, show him the sealed & office copy of the writ.
b) By handing the document to him or to leave it as near as physically possible for him to assume possession of the document.
c) The purpose of leaving the document with him must also be informed.
Case: Thompson v Pheney (1983) 1 Down 441
Held: that throwing the writ at the person to be served after refusal to accept is sufficient service.
Insufficient service
Case: Banque Rusee v Clark [1894] WN 203
held : that the failure to inform the nature of the document and the purpose of leaving the document is an insufficient service.
- Leaving the writ with the spouse of the person to be served or with his agent is also an insufficient service.
Exception
i- O10 R 1(2) – if defendant’s lawyers endorses he accepted it on behalf of defendant. ii- O10 R 1(3) – shall deem to be served if defendant enters unconditional appearance.
iii- O75 R 3 – service of writ on govt, for fed – on AG or other designated officer. For state, on State secretary.
Substitute Service and its procedure
O62 R5 (1) – court may order for substitute service if it is impractical to serve the writ personally. a. May only be affected pursuant to court order.
b. To procedure to obtain this order is by ex parte summons supported by affidavit. c. Instances when the substituted service are required:
I- Whereabouts of d/f is unknown.
II- Whereabouts is known but is not present to accept the service of writ.
d. Before substitute service is applied, plaintiff should conform to the practice note of 1/68.
-in affidavit put the attempt / reasons that person service is impracticable Ex:
- Newspaper advertisement.
- By posting a copy of the writ on the court notice board.
- By sending a copy of the writ to the defendant last known address.
- By posting/affixing a copy of the writ on the conspicuous part of defendant premises. -JPN search
Affidavit of service
Order 62 Rule 9 – form 135
a) Direction of substitute service.
Case: Development & Commercial Bank v Aspatra Corp Sdn Bhd [1995] 3 MLJ 472
Held: that the order of substitute service of court must be obeyed and can only be challenged as regard to its validity.
b) Failure to comply with court direction in substitute service. Case: Leow Boke Chooi v Asia Motor co Ltd [1967] 2 MLJ 109
Held: that the plaintiff’s judgment was irregular as the order of substitute service had not been complied as no copies of summons, soc, and the order was posted on the notice board of the courthouse in KL.
Service out of jurisdiction Order 11
that where the claim is not one of those mentioned in Order 70 rule 3(1), service of originating process out of Malaysia is permissible with the leave of court in the circumstance in a - l
a) Foreign defendant within jurisdiction of court.
Case: B Atmaram & Sons v Essa Industries Ltd [1969] 1 MLJ 44
Held: that a generally endorses writ can be served to defendant, a foreign company, while on a visit to Singapore although the company had neither an office nor an agent in the Singapore.
- O6 R6(1) provided that no writ out of jurisdiction under O11 shall be issued without the leave of the court, and the failure to obtain leave will invalidate the writ.
- Therefore, must first obtain leave of court.
b) Foreign defendant outside jurisdiction of court. - O6 R6(1)- see above
#### bankruptcy notice must be served personally cannot by AR ### for others, if got contract, follow contract.