METHODS OF SUBSTITUTED SERVICE
In Zhang Jinhua v Yip Zhao Lin [2024] SGHC 180, the High Court made some observations about “the importance of selecting methods of substituted service that would be most likely to be effective in providing notice of the proceedings to the other party in each case”.
Facts. This was an appeal from the decision of the learned Assistant Registrar (“the learned AR”) to set aside a default judgment obtained by the Appellant (at Judgment [1]).
The Appellant commenced a suit (“OC 490”) against the Respondent seeking payment as agreed in a deed (“Deed”) (at Judgment [3]).
On the basis that personal service (attempted by visiting the Respondent’s registered address in Singapore twice) was unsuccessful, the Appellant obtained an order for substituted service to serve the cause papers (“the Cause Papers”) for OC 490 by registered post to the Respondent’s residential address and via his Singpass inbox (at Judgment [4]).
The Respondent did not file any notice of intention to contest within the prescribed timelines, and the Appellant obtained a default judgment (“JUD 359”) (at Judgment [4]).
The Appellant then commenced bankruptcy proceedings against the Respondent. The papers for the bankruptcy proceedings were personally served on the Respondent after the parties communicated via WeChat (at Judgment [5]).
The Respondent then filed a summons to set aside JUD 359, claiming, in gist, that he only became aware of JUD 359 when he was served with the papers for the bankruptcy application (at [6]).
The learned AR’s decision. Under the Mercurine framework, it matters whether the default judgment in question was regular or irregular. See Judgment [13]. In short, if a judgment was regular, then the applicant setting aside the judgment bore the burden to show that there is a prima facie defence; but if the judgment was an irregular judgment, then the applicant is entitled to set aside the judgment as of right.
The Respondent argued that service of the Cause Papers was irregular because, among others, the parties had always been communicating by WeChat, and cl 5 of the Deed provided that the Respondent “shall remain contactable at all times on WeChat” (at Judgment [8]). Yet the Appellant chose to serve the Cause Papers by registered post and Singpass inbox, and the Respondent only became “factually aware” of OC 490 after he was personally served with the papers for the bankruptcy application (at Judgment [8]; emphasis in original).
However, the learned AR held that JUD 359 was a regular default judgment. As set out in Judgment [12], the learned AR was of the view that the Appellant was “bound” to pursue other methods of substituted services besides messaging via WeChat, and that there was no basis to impugn the service of the Cause Papers as the Respondent did not apply to set aside the substituted service order. Nonetheless, the learned AR found that the Respondent had demonstrated a prima facie defence which raises triable issues (at Judgment [15] – [20]) and therefore set aside JUD 359 (at Judgment [21] – [25]).
The High Court’s decision. The main issue on appeal was whether the learned AR was correct in his assessment that the Respondent had a prima facie defence, such that the setting aside of JUD 359 was warranted (at Judgment [26]). The High Court agreed with the learned AR’s assessment that there was a triable issue on the facts (at Judgment [26]).
But what is interesting about this decision was that the High Court, having some reservations about the learned AR’s conclusion that JUD 359 amounted to a regular default judgment, went on to opine that JUD 359 was an irregular judgment in any event (at Judgment [40] – [41]).
Regarding the substituted service order, the High Court reasoned as follows (at Judgment [44] – [45]):
“44 I agree with the learned AR that substituted service done according to a relevant substituted service order should ordinarily be deemed to be effective service. However, I do not agree that in all circumstances the court may only set aside a default judgment whose irregularity arises from defective substituted service after a defendant has set aside the order for substituted service. The court, after all, may set aside an order for substituted service on its own accord, pursuant to O 3 r 2(8)(a) ROC 2021. For convenience, I reproduce O 3 r 2(8) ROC 2021 once more:
(8) The Court may, on its own accord or upon application, if it is in the interests of justice, revoke any judgment or order obtained or set aside anything which was done —
(a) without notice to, or in the absence of, the party affected;
(b) without complying with these Rules or any order of Court;
(c) contrary to any written law; or
(d) by fraud or misrepresentation.
Since substituted service orders are generally obtained ex parte, they fall under limb (a) of O 3 r 2(8). Hence, it is open for the court, if it is in the interests of justice on the facts of a case, to set aside an order for substituted service and then set aside a default judgment arising therefrom. …
45 In my judgment, where a party is not candid about the methods of substituted service which he ought to know would be effective in bringing the document in question to the other party, a court should be entitled to scrutinise such conduct and consider whether this should result in a setting aside of any subsequent default judgment that is obtained.”
(emphasis in original)
The last point is important, as it went towards the very purpose of service in general, which was “… to communicate or give notice of a court document or process (eg, an application) such that the recipient may address the matter, respond and state his position (if he wishes to do so)…” (at Judgment [46]).
So, although the Appellant had obtained an order for substituted service (via registered post and Singpass inbox), the High Court had concerns why the Appellant did not inform the Respondent of the Appellant’s inability to effect personal service and why the Appellant did not apply for substituted service by way of WeChat given that it was “… effectively the mode of communications agreed upon between the parties …”, especially given Cl 5 of the Deed providing that the Respondent “shall remain contactable at all times on WeChat [at his mobile number]” (Judgment [51]).
The concerns were “further amplified” because of the manner in which the bankruptcy application was served: personally at an in-person meeting which was mutually arranged by the parties over WeChat (at Judgment [52]). Given this, why did the Appellant not do the same for OC 490, and was personal service truly “impractical” (see Judgment [52])?
Thus, the High Court noted that even if it is assumed that substituted service was appropriate, the Appellant ought to have proposed WeChat as an additional method of substituted service (at Judgment [53] – [55]).
The High Court was careful to not suggest a “freestanding duty” on the part of a claimant, distinguishing this case from a scenario where “a claimant will simply not know, or not have the means to know, what forms of service would be most effective” (at Judgment [57]).
Nonetheless, the High Court stated that it would have been open to the High Court to set aside the substituted service order and hold that JUD 359 was an irregular judgment had the High Court not earlier found that there was a prima facie defence (at Judgment [59] – [61]).
Significance. This case is important as it sets out the High Court’s observations on selecting the mode(s) of substituted service that would be most likely to be effective in bringing the document to the person to be served.
In short, while a claimant does not have to consider all the different means of service, where, as in the present case, parties had been corresponding via a particular mode of social messaging and there is an agreement which provides that a party shall be contactable at all times via that mode of social messaging, then a failure to attempt to do so or to propose such a mode of substituted service may have implications.
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