BOOBALAN A/L KRISHNAN v SG ENTERTAINMENT & ADVERTISING

Case Significance

States the requirements of personal service under Order 62 rule 3: a process server must reasonably identify the person served as the defendant, and leaving documents in a mailbox without such identification is not personal service; a default judgment obtained on defective service is irregular and must be set aside ex debito justitiae, irrespective of the merits.

This High Court decision, in its appellate jurisdiction, concerns an application to set aside a judgment in default (JID) for irregular service, and the requirements of valid personal service under Order 62 rule 3 of the Rules of Court 2012. The appellant — the second defendant below, a natural person referred to here by role — appealed against the Sessions Court's refusal to set aside a default judgment entered against him and a corporate co-defendant in a suit brought by SG Entertainment & Advertising over a film-investment agreement, under which the respondent had invested in a drama production with the appellant's personal guarantee.

The decisive issue was whether the appellant had been personally served with the writ. Order 62 rule 3 requires personal service to be effected by leaving a copy of the document with the person to be served. The court explained that personal service is valid only if the process server reasonably identifies the person served as the defendant and brings the nature of the documents to his attention, even if he refuses to accept them; the law does not require absolute certainty, but it does require reasonable assurance, established by the server deposing that the person was identified as the defendant — whether by confirming his name, identification by a third party, prior knowledge of his appearance, or answering to his name.

On the evidence, the process server's account did not establish that the person at the premises was reasonably identified as the appellant. The appellant denied being home, said another Indian family also lived there, and said he received the papers left in the mailbox only weeks later. Leaving the writ and statement of claim in the mailbox, in the presence of someone professing to be the appellant's wife, was not personal service, and there was no proper identification of anyone present as the appellant. Applying the principle that where a judgment has not been regularly obtained the defendant is entitled to have it set aside ex debito justitiae, irrespective of the merits — and that a total absence of service is a fundamental, incurable defect — the court allowed the appeal and set aside the JID, with costs in the action.

The judgment is a useful statement of the requirements of personal service: a process server must reasonably identify the person served as the defendant, and leaving documents in a mailbox without such identification is not personal service, so a default judgment obtained on it must be set aside as of right.