The Importance of AR Cards When Serving Documents via AR Registered Post

The Federal Court on 05.03.2021 has held that the Court cannot seal a judgment in default of appearance if the affidavit of service does not exhibit the A.R. Registered Card containing the endorsement as to the receipt of the writ by the defendant himself or someone authorised to accept service on his behalf. 

This Judgment affirms the position that a judgment in default of appearance cannot be entered against a defendant without clear proof that the writ has been duly served on him. Conversely, the Federal Court has rejected the argument that proof of posting alone is conclusive proof of service.

The Grounds of Judgment of Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd can be found here. 

Brief Facts

The Appellants in this case were the 4th and 5th Defendants in a suit filed by Ample Objectives in the High Court. At the commencement of the suit, the solicitors for Ample Objectives attempted to serve the sealed writs on the Appellants by AR Registered Post on 22.08.2016 pursuant to O. 10 r.1 of the Rules of Court 2012 (the “ROC”). 

An affidavit of service was filed by Ample Objective’s solicitors to state that the writs had been served to the Appellants’ last known addresses via AR Registered Post. However, the AR Cards which ought to have contained the acknowledgment of receipt by the Appellants were not exhibited in the affidavit. Instead, only the proof of posting was included in the affidavit of service. When the Appellants did not enter an appearance to the suit, judgments in default were entered against the Appellants on 14.09.2016.

The Appellants subsequently filed an application to set aside the judgments in default. Ample Objectives’ affidavit in reply disclosed that the AR Card in respect of the service to the 1st Appellant was received and signed by the 1st Appellant’s brother while the AR Card in respect of the service to the 2nd Appellant was not returned. The Appellants were unsuccessful at both the High Court and Court of Appeal where both Courts held that there was no requirement for the AR Cards to be exhibited in the affidavit of service before a judgment in default of appearance may be entered. Instead, both Courts found that proof of posting is sufficient and conclusive proof of service. 

The Federal Court subsequently granted leave to the Appellants to pose the following question of law: 

“Whether, considering the relevant provisions in Orders 10,13 and 62 of the Rules of Court and S. 114(f) of the Evidence Act and S. 12 of the Interpretations Acts 1948, 1967, where service of a Writ is alleged to have been carried out by way of sending the same to a Defendant by A.R. Registered Post pursuant to O. 10, R. 1(1) of the Rules of Court, 2012, can the Court seal a judgment in default of appearance notwithstanding that the Affidavit of Service does not exhibit the A.R. Registered Card containing an endorsement as to receipt by the Defendant himself or someone authorized to accept service of the same on his behalf?”

The Federal Court’s Decision

The Federal Court unanimously answered the question of law in the negative, that is to say,

“where service of a writ is alleged to have been effected by way of sending the same to a defendant by A.R. Registered post pursuant to O. 10 r. 1(1) of the Rules of Court 2012, the court cannot seal a judgment in default of appearance where the affidavit of service does not exhibit the A.R. Registered card containing an endorsement as to receipt by the defendant himself or someone authorized to accept service of the same on his behalf.”

In delivering the judgment of the Court, Abdul Rahman Sebli FCJ held that Section 12 of the Interpretation Acts of 1948 and 1967 (“the Interpretation Acts”) must be read in its context i.e. where a document is served by registered post, service and time of service are “presumed” “until the contrary is proved”. Thus, where evidence is adduced to show that a defendant has not been served with the document, the presumption is rebutted, and the court will make a finding that no service was effected.

The Federal Court also held that the presumption of service under Section 12 of the Interpretation Acts only kicks in if the document has been sent by registered post to the proper address of the defendant. Failure to do so will render the service bad in law and no judgment in default can be entered against the defendant unless there is evidence to prove that service by post had been effected without the aid of the presumption. 

In the present case, the Federal Court found that there was sufficient merit to the issues raised by the Appellants in denying receipt of the writs. These denials were corroborated by Ample Objectives’ failure to produce the AR Cards duly signed by the Appellants or their authorised representatives. As Ample Objectives failed to contradict the assertions of the Appellants, it was held that the presumption of service under Section 12 of the Interpretation Acts have been rebutted as it was more probable than not that the Appellants did not receive the writs.