Consistel Pte Ltd and Another v Farooq Nasir and Another

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 07 April 2009
• Neutral Citation: [2009] SGHC 82
• Docket Number: Suit No 729 of 2008 (Registrar's Appeal No 11 of 2009)
• Date: 07 April 2009
• Year: 2009
• Published date: 07 July 2009
• Plaintiff Counsel: N Sreenivasan and Collin Choo (Straits Law Practice LLC)
• Citation: [2009] SGHC 82
• Defendant Counsel: Liew Yik Wee and Wong Baochen (WongPartnership LLC)
• Court: High Court (Singapore)
• Subject Matter: Service,Defendants out of jurisdiction when writ issued,Defendants in contact with friend in Singapore,Whether order for substituted service valid,Civil Procedure

7 April 2009

Andrew Ang J:

1 The principal issue in this case is whether substituted service had been properly ordered by the Senior Assistant Registrar (“SAR”) on 23 October 2008 against the respondents (the defendants below who were resident outside the jurisdiction when the writ was issued) leave for service out of jurisdiction not having been obtained. In Summons No 5067 of 2008 (“Sum 5067/2008”), the respondents applied for the order for substituted service upon them to be set aside. This was granted by the Assistant Registrar (“AR”) on 14 January 2009. Before me, the appellants (the plaintiffs below) sought a reversal of the AR’s decision.

Background facts

2 The following facts were, in the main, undisputed before me. Where they were disputed, it is so indicated.

3 The first appellant, Consistel Pte Ltd, is a company incorporated in Singapore and provides services as system integrators for wireless and wired lines projects. It is also the parent company of a group of companies incorporated around the region, including the second appellant, Consistel Pakistan (Pvt) Ltd.

4 The first respondent, Nasir Farooq, was an employee of the first appellant from July 2000 until he resigned on or about 10 February 2007. He worked both in Singapore and around the region and, just prior to his resignation, served as concurrent country manager of Pakistan and Bangladesh. He became a Singapore citizen in November 2004. The address on his National Registration Identity Card cited an address in the United Arab Emirates (“UAE”) and the first respondent claimed that he had been residing in the UAE since 2004. The second respondent, Tania Jehangir, is the wife of the first respondent. At all material times, she was (and still is) a Pakistani citizen but had obtained Singapore permanent resident status.

5 On 9 October 2008, the appellants filed a Writ of summons (“the Writ”) against the respondents alleging, inter alia, breach of the first respondent’s employment contract, breach of various declarations made by the first respondent to the appellants, conspiracy to defraud and misuse of confidential information. The appellants sought damages for various sums as well as an injunction to prevent the respondents from revealing confidential information. The gravamen of the appellants’ allegations was that the first respondent caused the appellants to enter into contracts with companies which the respondents themselves beneficially owned or had an indirect interest in. The respondents had thereby profited from the first respondent’s position with the first appellant. It was also claimed that the first respondent had unlawfully made use of confidential information provided to him by the appellants thereby causing the appellants to suffer harm. (Although I have briefly described the appellants’ claims, the gravity of the appellants’ allegations has No bearing on the outcome of the appeal.)

6 On 10 October 2008 at 7.30pm, a clerk working for Straits Law Practice LLC (“Straits Law”), counsel for the appellants, visited Block 462, Crawford Lane, #04-25, Singapore 190462 (“the Flat”) to serve the Writ on the respondents. According to the appellants’ director, one Masoud Bassiri (“Bassiri”), the first respondent had informed Bassiri that the first respondent would stay at the Flat whenever the first respondent was in Singapore and that the Flat was the first respondent’s forwarding address in Singapore for the receipt of any written correspondence. These claims were disputed by the respondents. In any case, on this first attempt the clerk did not receive any response when he knocked on the door.

7 The next day, the clerk visited the Flat again at 1.40pm. This time, one Sridhar Potluri (“Potluri”) answered the door and informed the clerk from Straits Law that the respondents did not reside there. Thereafter, the clerk left the contact particulars of Straits Law with Potluri. The respondents testified that Potluri then called them and informed them of the above visit and passed the contact details of Straits Law to them.

8 On 13 October 2008, the first respondent called Straits Law to enquire about the attempted service. Straits Law then informed the first respondent that the appellants had initiated legal proceedings against him and his wife in the Singapore courts. As the respondents had not been served, Straits Law would have to take the appellants’ instructions as to whether they would be willing to reveal any details of the claim. Straits Law then requested for, and obtained, the respondents’ fax number.

9 The following day, Straits Law inquired (via fax) whether the respondents would be in Singapore to accept personal service of the Writ or appoint Singapore solicitors to accept service on their behalf. The respondents were warned that if Straits Law did not hear from them by 17 October 2008, Straits Law would apply to effect service of the Writ “through the Singapore and Dubai court process”. The respondents ignored this fax.

10 As stated in [1] above, the appellants applied, ex parte, for service of the Writ by substituted service on 23 October 2008. The SAR granted the application and ordered service to be effected in the following manner:

(1) By posting the Writ of Summons together with this Order of Court For Substituted Service to be made hereon on the front door of the Defendants’ last known address at Block 462 Crawford Lane #04-25 Singapore 190462;

(2) by posting similar copies of the Writ of Summons and this Order of Court For Substituted Service on the Notice Board of this Honourable Court, Singapore; and

(3) by sending a copy of the Writ of Summons and this Order of Court For Substituted Service via facsimile to the 1st defendant at fax number: 97165223745;

and such service on the Defendants by way of posting and facsimile be deemed good and sufficient service of the Writ of Summons on the Defendants.

11 The substituted service was carried out, as ordered above, on 29 October 2008. Pursuant to order (3), Straits Law attempted to fax the Writ to the respondents at the fax number they had provided. However, the respondents only received nine out of 23 pages successfully. On 30 October 2008, the respondents called Straits Law and requested for the Writ to be faxed again. Only then did the respondents receive the complete Writ. The respondents then appointed Singapore solicitors who thereafter entered appearance on their behalf on 4 November 2008.

12 On 18 November 2008, the respondents filed Sum 5067/2008, applying for the following orders:

1. That the service on the Defendants of the writ filed in this action by the Plaintiffs be set aside;

2. That the order for substituted service made on 23 October 2008 (including the order as to costs of the application) be set aside and/or discharged;

3. A declaration that the said writ had not been duly served on the Defendants, by reason of non-compliance with the Rules of Court;

4. That leave be granted to the Defendants to withdraw their appearance in this action, if necessary;

5. That, pending final disposal of this application (including any appeals therefrom), all proceedings be stayed and No further action/step need be taken by the Defendants in these proceedings;

6. That the time for service of this application be abridged, if necessary;

7. That the Plaintiffs pay the Defendants’ costs of this application and the action; and

8. Such further and other relief be granted as this Honourable Court deems fit.

13 On 14 January 2009, the AR made an order in terms of prayers (1) and (2), as stated above, and reasoned as follows:

In my view, substituted service in the manner sought should not have been granted.

The 1st defendant may be a citizen but neither he nor the 2nd defendant was ordinarily resident in Singapore, and the plaintiffs knew this. The place of residence which was served did not belong to the defendants or even to the defendants’ family members. It belonged to the defendant’s friend. As it happened, the defendant’s friend did get in touch with the 1st defendant, and the 1st defendant then contacted the plaintiff’s solicitors. However, it is not in contention that when the 1st defendant contacted the plaintiff’s solicitors and left him his fax number, that did not constitute agreement to accept service by fax. In my view these fortuitous circumstances are not sufficient to constitute a basis for effective service. Where defendants are ordinarily resident overseas, the more stringent requirements of Order 11 must be complied with in order for jurisdiction to be properly established. Even though service was effective in the present case, it was not legally sound. Until Legislature and/or the Rules Committee decide to fundamentally alter the current provisions relating to service, their structure, purpose and intent must be abided by. As such, I am of the opinion that [it] must be set aside.

The appellants appealed against the above decision before me.

Decision of the court

14 While rules regarding service are procedural in nature, they merit serious consideration nonetheless. After careful deliberation, I decided in favour of the respondents and dismissed the appeal. I now set out the reasons for my decision.

Preliminary objections

15 I shall deal with the appellants’ preliminary objections first. Counsel for the appellants, Mr Sreenivasan, submitted that under O 10 r 1(3) of the Rules of Court (Cap 322, 2006 Rev Ed) (“ROC”), even if a writ was not duly served, the writ should be deemed to have been duly served if the defendant entered an appearance. This principle, however, is subject to O 12 r 6 of the ROC which states as follows:

Appearance not to constitute a waiver (O. 12, r. 6)

6. The appearance by a defendant in an action shall not be treated as a waiver by him of any irregularity in the writ or service thereof or in any order giving leave to serve the writ out of jurisdiction or extending the validity of the writ for the...