11. SERVICE OF PROCESS, ETC., OUT OF JURISDICTION

11. Service of Process, etc., Out of the Jurisdiction.

order 11. Service of Process, etc., Out of the Jurisdiction.
1.Principal cases in which service of notice of writ out of jurisdiction is permissible. (O. 11 r. 1)
(1)Where the writ does not contain any claim for damage, loss of life or personal injury arising out of–
(i) a collision between ships; or
(ii) the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships; or
(iii) non-compliance on the part of one or more of two or more ships, with the collision regulations made under section 251 of the Merchant Shipping Ordinance 1952, 70/52 service of a notice of a writ out of the jurisdiction is permissible with the leave of the Court in the following cases, that is to say–
(a) if the whole subject-matter of the action begun by the writ is immovable property situate within the jurisdiction (with or without rents or profits) or the perpetuation of testimony relating to immovable property so situate;
(b) if an act, deed, will, contract, obligation or liability affecting immovable property situate within the jurisdiction is sought to be construed, rectified, set aside or enforced in the action begun by the writ; (c) if in the action begun by the writ relief is sought against a person domiciled or ordinarily resident or carrying on business within the jurisdiction;
(d) if the action begun by the writ is for the administration of the estate of a person who died domiciled within the jurisdiction or if the action begun by the writ is for any relief or remedy which might be obtained in any such action as aforesaid;
(e) if the action begun by the writ is for the execution, as to property situate within the jurisdiction, of the trusts of a written instrument, being trusts that ought to be executed according to law and of which the person to be served with the writ is a trustee or if the action begun by the writ is for any relief or remedy which might be obtained in any such action as aforesaid;
(f) if the action begun by the writ is brought against a defendant to enforce rescind, dissolve annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which–
(i)was made within the jurisdiction; or
(ii)was made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or
(iii)is by its terms, or by implication, governed by the law of Malaysia;
(g) if the action begun by the writ is brought against a defendant in respect of a breach committed within the jurisdiction of a contract made within or out of the jurisdiction, and irrespective or the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction;
(h) if the action begun by the writ is founded on a tort committed within the jurisdiction;
(i) if in the action begun by the writ an injunction is sought ordering the defendant to do or refrain from doing anything within the jurisdiction (whether or not damages are also claimed in respect of a failure to do or the doing of that thing);
(j) if the action begun by the writ being properly brought against a person duly served within the jurisdiction, a person out of the jurisdiction is a necessary or proper party thereto;
(k) if the action begun by the writ is either by a charge of property situate within the jurisdiction (other than immovable property) and seeks the sale of the property, the foreclosure of the charge or delivery by the charger of possession of the property but not an order for payment of any moneys due under the charge or by a charger of property so situate (other than immovable property) and seeks redemption of the charge, reconveyance of the property or delivery by the chargee of possession of the property but not a personal judgment;
(l) if the action begun by the writ is brought under the provisions of any written law relating to carriage by air.
(2)(There is no paragraph (2)).
(3)(There is no paragraph (3)).


2.Service out of the jurisdiction in certain actions of contract. (O. 11 r. 2) Where it appears to the Court that a contract contains a term to the effect that the High Court shall have jurisdiction to hear and determine any action in respect of the contract, the Court may grant leave for service out of the jurisdiction of the notice of the writ by which an action in respect of the contract is begun.


3.Leave for service of notice of writ.
(O. 11 r. 3) Notice of a writ for service out of the jurisdiction must be in Form 11.


4.Application for, and grant of, leave to serve notice of writ out of jurisdiction. (O. 11 r. 4)
(1)An application for the grant of leave under rule 1 or 2 must be supported by an affidavit in Form 12 stating the grounds on which the application is made and that in the deponent’s belief, the plaintiff has a good cause of action, and showing in what place or country the defendant is, or probably may be found.
(2)No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.
(3)An order in From 13 granting under rule 1 or 2 leave to serve a notice of writ out of the jurisdiction must limit a time within which the defendant to be served must enter an appearance.


5.Service of notice of writ abroad: General. (O. 11 r. 5)
(1)Subject to the following provisions of this rule, Order 10, rule 1, and Order 62, rule 5, shall apply in relation to the service of a notice of a writ notwithstanding that the notice is to be served out of the jurisdiction.
(2)Nothing in this rule or in any order or direction of the Court made by virtue of shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.
(3)A notice of a writ which is to be served out of the jurisdiction need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected.
(4)Where a certificate under the following provisions of this rule is produced in relation to the service of notice of a writ in accordance with rule 6 or rule 7, Order 10 rule 1(4), shall not apply in relation to that service.
(5)An official certificate stating that a notice of a writ as regards which rule 6 has been complied with has been served on a person personally, or in accordance with the law of the country in which service was effected, on a specified date, being a certificate–
(a) by a consular authority in that country; or
(b) by the Government or judicial authorities of that country; or
(c) by any other authority designed in respect of that country, under the Hague Convention, shall be evidence of the facts so stated.
(6)An official certificate by the Minister stating that notice of a writ has been duly served on a specified date in accordance with a request made under rule 7 shall be evidence of that fact.
(7)A document purporting to be such a certificate as is mentioned in paragraph (5) or (6) shall, until the contrary is proved, be deemed to be such a certificate.
(8)Where the defendant is in Singapore or Brunei, the notice of a writ may be sent by post or otherwise by the Registrar to Magistrate, Registrar, or other appropriate officer of any Court exercising civil jurisdiction in the area in which the person to be served is said to be or to be carrying on business for service on the defendant, and if it is returned with an indorsement of service and with an affidavit of such service, it shall be deemed to have been duly served.


6.Service of notice of writ abroad through foreign governments judicial authorities and Malaysian consuls or by plaintiff. (O. 11 r. 6) [Am. PU(A)342/2000 w.ef. 22 Sept 2000].
(1)Where in accordance with these rules notice of a writ is to be served on a defendant in any country with respect to which there subsists a Civil Procedure Convention providing for service in that country of process of the High Court, the notice may be served–
(a) through the judicial authorities of that country; or
(b) through a Malaysian consular authority in that country (subject to any provisions of the convention as to nationality of persons who may be so served).
(b) subject to any provision of the Convention as to the nationality of persons who may be so served-
(i) through a Malaysian Consular authority in that country; or
(ii) by the plaintiff or his agent. [Subs. PU(A)342/2000 w.ef. 22 Sept 2000]
(2)Where in accordance with these rules notice of a writ is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the High Court, the notice may be served–
(a) through the Government of that country, where that Government is willing to effect service; or
(b) through a Malaysian consular authority in that country, except where service through such an authority is contrary to the law of that country. (b) except where service through a consular authority or by the plaintiff or his agent is prohibited by the law of that country-
(i) through a Malaysian Consular authority in that country; or
(ii) by the plaintiff or his agent. [Subs. PU(A)342/2000 w.ef. 22 Sept 2000]
(3)Where a person wishes to serve notice of a writ in any country–
(a) through the judical authorities of that country under paragraph (1); or
(b) through a Malaysian consular authority under paragraph (1) or (2); or
(c) through the Government of that country under paragraph (2); that person must lodge in the Registry a request in Form 14 for service of notice of the writ by that method, together with a copy of the notice and an additional copy thereof for each person to be served.
(4)Every copy of a notice lodged under paragraph (3) must be accompanied by a translation of the notice in the official language of the country in which service is to be effected or, if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where service is to be effected: Provided that this paragraph shall not apply in relation to a copy of a notice which is to be served in a country the official language of which is, or the official languages of which include, English, or is to be served in any country by a Malaysian consular authority on a Malaysian citizen, unless the service is to be effected under paragraph (1) and the Civil Procedure Convention with respect to that country expressly requires the copy to be accompanied by a translation.
(5)Every translation lodged under paragraph (4) must be certified by the person making it to be a correct translation; and the certificate must contain a statement of that person’s full name, of his address and of his qualifications for making the translation.
(6)Documents duly lodged under paragraph (3) shall be sent by the Registrar to the Secretary General to the Ministry of Foreign Affairs with a request that he arranges for the writ to be served by the method indicated in the request lodged under paragraph (3) or, where alternative methods are so indicated, by such one of those methods as is most convenient.


7.Service of notice of writ in certain actions under certain written law. (O. 11 r. 7)
(1)where a person to whom leave has been of granted under rule 1 to serve notice of a writ on a High Contracting Party to the Warsaw Convention being a writ beginning an action to enforce a claim in respect of carriage undertaken by that Party, wishes to have the notice served on that Party, he must lodge in the Registry–
(a) a request for service to be arranged by the Minister; and
(b) a copy of the notice; and
(c) except where the official language of the High Contracting Party is, or the official languages of that Party include, English, a translation of the notice in the official language or one of the official languages of the High Contracting Party. (2)Rule 6(5) shall apply in relation to a translation lodged under paragraph (1) of this rule as it applies in relation to a translation lodged under paragraph (4) of that rule.
(3)Documents duly lodged under this rule shall be sent by the Registrar to the Secretary General to the Ministry of Foreign Affairs with a request that he arranges for the notice to be served on the High Contracting Party or the Government in question, as the case may be.


8.Undertaking to pay expenses of service incurred by Minister. (O. 11 r. 8) Every request lodged under rule 6(3) or rule 7 must contain an undertaking by the person making the request to be responsible personally for all expenses incurred by the Minister in respect of the service requested and, on receiving due notification of the amount of those expenses, to pay that amount to the office of the said Minister and to produce a receipt for the payment to the proper officer in the Registry.


9.Service of originating summons, petition, notice of motion etc. (O. 11 r. 9)
(1)Subject to paragraph (2), service out if the jurisdiction of an originating summons is permissible with the leave of the Court.
(2)Where the proceedings begun by an originating summons might have been begun by writ, service out of the jurisdiction of the originating summons is permissible as aforesaid if, but only if service of the notice of the writ out of the jurisdiction would be permissible had the proceedings been begun by writ.
(3)Where any proceedings are authorised by these rules or (apart from these rules) by or under any written law to be begun by originating motion or petition, service out of the jurisdiction of the notice of motion or of the petition is permissible with the leave of the Court.
(4)Service out of the jurisdiction of any summons, notice or order issued, given or made in any proceedings is permissible with the leave of the Court.
(5)Rule 4(1) and (2) shall, so far as applicable, apply in relation to an application for the grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1 or 2.
(6)An order granting under this rule leave to serve out of the jurisdiction an originating summons to which an appearance is required to be entered must limit a time within which the defendant to be served with the summons must enter an appearance.
(7)Rules 5, 6 and 8 shall apply in relation to any document for the service of which out of the jurisdiction leave has been granted under this rule as they apply in relation to a writ.