Harrisons Trading (Peninsular) Sdn Bhd v Juta Perkara Sdn Bhd and Others

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 18 November 1996
• Neutral Citation: [1996] SGHC 268
• Docket Number: Originating Summons No 827 of 1994 (Registrar's Appeal No 189 of 1995)
• Date: 18 November 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: Michael Eu (Cooma Lau & Loh)
• Citation: [1996] SGHC 268
• Defendant Counsel: Rabi Ahmad and Winston Mok (Khoo Aeria & Partners)
• Court: High Court (Singapore)
• Subject Matter: Service of process of original court by substituted service pursuant to order of original court,Civil Procedure,Registration of default judgment,'Duly served',s 3(2)(c) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264),Whether service of process follows procedural law of original court or registering court,Judgment debtor sets aside registration of judgment in Singapore on ground that original process not 'duly served',Foreign judgments,Words and Phrases

This is an appeal by the plaintiffs against a decision of a senior assistant registrar on 26 July 1995 setting aside the registration of a judgment obtained by the plaintiffs against the third defendant Mr Ho Tak Kwong in the High Court of Malaya at Ipoh on 27 October 1993. There is also a counter-appeal by the third defendant against the senior assistant registrar`s decision that his costs be fixed at $800; he asks that his costs be taxed instead.

The suit in the Ipoh High Court arose from a guarantee dated 13 December 1991 provided by the second, third and fourth defendants, whom I presume were directors of the first defendant company, in consideration of goods supplied and credit extended to the company.

The writ was purportedly served on the third defendant and his co-defendants by substituted service in accordance with an order of the Ipoh High Court. No appearance having been entered, a judgment in default of appearance was obtained by the plaintiffs on 27 October 1993 against all defendants. It was the registration of the default judgment against the third defendant which was sought to be, and was, set aside by the order of the senior assistant registrar. The application for registration of the judgment was made under the provisions of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264).

By cl 14 of the guarantee, the third defendant (in common with his co-guarantors) agreed to submit to the jurisdiction of the courts of the states of Malaysia. However, there was no provision relating to the service of process, although there was a provision (in cl 11) for the service of a notice or demand at the last known address of the guarantor.

Section 3(2)(b) of the Reciprocal Enforcement of Commonwealth Judgments Act provides as follows:

(2) No judgment shall be ordered to be registered under this section if

(a) the original court acted without jurisdiction;

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;

(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court.

It is contended by the third defendant that he was not duly served with the process of the original court, within the meaning of para (c).

I would set out my understanding of the general meaning and effect of paras (b) and (c) before turning to the issue at hand. Under para (b), if a judgment debtor did not carry on business within the jurisdiction of the original court, or if he was not ordinarily resident there, no judgment obtained against him is registrable in this country if he did not submit to the jurisdiction of the original court. But he is taken to have submitted to the jurisdiction of the original court if he had agreed in advance to so submit, as the third defendant in this case had done by cl 14 of the guarantee. He is also taken to have submitted to jurisdiction if he voluntarily appeared in the proceedings or took a substantive part in the proceedings.

However, para (c) provides that even if the judgment debtor was ordinarily resident in the jurisdiction of the original court or was carrying on business there or had agreed to submit to jurisdiction, a judgment obtained against him would still not be registrable if he was not duly served with the process of the original court. But he cannot complain about not having been duly served if he entered appearance or took a substantive part in the proceedings; he is taken then to have waived any irregularity as to the service of the originating process. He is deemed to have submitted to jurisdiction. This, I take it, is the reason why s 3(2)(c) uses the words `was not duly served and did not appear.`

It appears that the third defendant`s Singapore address was shown in a `guarantee` executed earlier than the 13 December 1991 guarantee. This `guarantee` was aborted and superseded by the guarantee of 13 December. In that earlier `guarantee` the third defendant`s Singapore address was shown as his address. In the 13 December 1991 guarantee, which was the guarantee on which the plaintiffs sued, an Ipoh address was shown as the address of the third defendant.

The third defendant says that when he signed the guarantee of 13 December his address had been left blank. He says the Ipoh address which appears in the guarantee must have been filled in by the plaintiffs themselves. He says that the plaintiffs knew at all times that he in fact lived in Singapore, and not Ipoh. The Ipoh address shown in the guarantee was the address of the second defendant`s home, not his address. The third defendant produces pages from his passport showing the trips he made to Malaysia in 1993, and the number of days he stayed in Malaysia on each of those trips, altogether totalling 126 days in that year.

It appears that before commencing the action in the Ipoh High Court the plaintiffs` solicitors had sent a letter of demand dated 19 March 1993 to the third defendant at his address in Singapore. It was apparently sent by ordinary registered post and not by AR registered post. The third defendant did receive this letter, but did not respond. The plaintiffs` solicitors, not having received any response or any acknowledgment, then sent a demand to the third defendant at his Ipoh address shown in the guarantee of 13 December 1993. When no response was received, the action was commenced, followed later by the application for substituted service and entry of default judgment.

The third defendant alleges that he did not know of the Ipoh action or the judgment until he was served with notice of these registration proceedings. He submits that the substituted service order had not been properly obtained, and that he had therefore not been duly served with the process within the meaning of s 3(2)(c) of the Act. It is not disputed that he did not appear in the proceedings.

The sole issue raised in this case is, therefore, whether the judgment debtor was duly served with process. More pertinent, however, is whether the judgment debtor should be allowed to raise the question in this court, as opposed to the original court.

Meaning of `duly served`

What, then, is the meaning of the words `duly served`? Such authorities as there are rather encourage me to take the view that the words simply mean duly served in accordance with the procedural law of the original court, with the possible caveat that a different view might be taken where the procedural law of the original court or its application is shown to be or to have been so repugnant to the sense of justice of the registering court as to persuade it that it would be wrong to give...