What happens when despite several effort made to serve the Writ and/or the Statement of Claim, they could not be served on the other party which was posted to the other party’s address and was returned undelivered or if the other party is ‘evading service’?
In this situation, the Claimant is advised to apply for SUBSTITUTED SERVICE under Order 62 rule 5(1), where it is impracticable to serve personally (Form 133 for Substituted Service).
If the Defendant cannot be found or is evading service or if it is impractical to serve on the Defendant, then the Claimant can proceed under O.62 r.5 and ask the Court to allow for substituted service, that is, serving the writ and/or SOC by other means.
O.62 r.5(3) – Claimant must take the steps as directed by the Court to notify the Defendant.
According to the Practice Note 1/68, the steps that need to be taken by the Claimant are:-
- Claimant must make at least 2 calls/attempts to serve at the Defendant’s premises at 2 separate working days at reasonable times;
- The 2nd call/attempt should be made by appointment either by (sending D an AR registered letter stating the date and time that Claimant would come again to serve the writ; or Claimant during the first visit, gave a letter to inform whoever was at the premises, stating when Claimant would make the 2nd call).
Re Nirmala Muthiah Selvarajah – where the whereabouts of the Defendant to be served is KNOWN then the Practice Note 1/68 must be complied with otherwise the service is bad. If whereabouts of the Defendant is NOT KNOWN, then the PN 1/68 is not applicable. The mere statement by the Claimant that the Defendant is evading service is insufficient. The Claimant’s affidavit must show (1) Facts that Claimant’s application is bona fide; (2) Belief and reason for such belief that the Defendant is within/outside jurisdiction; and (3) Proposals on how substituted service is to be effected.
Re Aris bin Massod – where only one call was made, held that the SS order was bad as it failed to comply with the PN 1/68.
If however, the Defendant goes abroad without knowing that the writ served personally on him, then he is not evading service and SS cannot be applied. If a SS order is granted, it is an irregularity. The Defendant can then apply as of right to set aside any Judgment In Default.
Firstly, you have to set aside the SS order then only set aside the JID. If the SS order is set aside, then the JID will collapse too.
D&C Bank v Aspatra Corp – the Court of Appeal held that SS could be made where Defendant was outside jurisdiction as the Defendant left to evade service provided that O.62 r.5 has been complied with and the terms of the order have been followed.