Mohd Jasmi Bin Omar Khalijah Binti Hasnan

Mohd Jasmi Bin Omar Khalijah Binti Hasnan

On the evidence the court found the defendant evaded personal service, the substituted service order dated 12.10.2020 was properly obtained and effected, the sealed judgment had been personally served (and the defendant and its solicitors had notice), the judgment contained a valid penal endorsement authorising enforcement, and the defendant's attempt to set aside substituted service in the present application was a collateral attack that should have been brought by separate proceedings; accordingly the defendant's application to set aside the ex‑parte committal order was dismissed with costs.

Citation
B52NCVC-305-10-2018 (Mahkamah Sesyen)
Parties
Plaintiff: Mohd Jasmi bin Omar; Defendant: Khalijah binti Hasnan
Court
Sessions Court
Jurisdiction
Malaysia
Judgment Date
16 February 2021
Case Number
B52NCVC-305-10-2018 (Mahkamah Sesyen)
Procedural Posture
Civil: Vacant Possession and Committal Proceedings / Session Court Interlocutory Application to Set Aside Ex Parte Committal Order
Outcome
Defendant's application dismissed with costs
Legal Topics
Substituted Service, Personal Service, Default Judgment, Collateral Challenge, Costs
Source Language
Malay/English
Civil Procedure Execution of Judgments Committal Proceedings Service of Process Substituted Service Personal Service Default Judgment Collateral Challenge +1 more

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Parties

Mohd Jasmi bin Omar

Plaintiff

Khalijah binti Hasnan

Defendant

Procedural Posture

Civil: Vacant Possession and Committal Proceedings / Session Court Interlocutory Application to Set Aside Ex Parte Committal Order

Legal Issues

  1. 1 Whether substituted (alternative) service order dated 12.10.2020 was valid
  2. 2 Whether the judgment dated 20.2.2020 was personally served on the defendant prior to committal proceedings
  3. 3 Whether the defendant's application dated 7.12.2020 constituted a collateral attack on the substituted service order

Ratio Decidendi

On the evidence the court found the defendant evaded personal service, the substituted service order dated 12.10.2020 was properly obtained and effected, the sealed judgment had been personally served (and the defendant and its solicitors had notice), the judgment contained a valid penal endorsement authorising enforcement, and the defendant's attempt to set aside substituted service in the present application was a collateral attack that should have been brought by separate proceedings; accordingly the defendant's application to set aside the ex‑parte committal order was dismissed with costs.

Court Disposition

Defendant's application dismissed with costs

Orders

  • Defendant's application to set aside the ex‑parte committal order dismissed
  • Costs of RM3,000 awarded to plaintiff to be paid by defendant