2. I am the defendant. If I believe the writ was improperly served on me, what should I do?
If you believe you have not been properly served with a writ, you must act with extreme caution to protect your rights. Service is the formal act which engages the court’s jurisdiction over you. If it is defective, the court may lack the power to hear the case.
Immediate procedural steps
Do not simply ignore the writ. To challenge service, you must first file an Acknowledgment of Service form and check the box indicating your intention to defend. Filing this form does not mean you have accepted the court’s jurisdiction or waived the right to challenge the service, provided you make your application within the time limit for serving your defence.
After filing the Acknowledgment of Service, you must apply to the court by summons for an order to set aside the service.
The risk of waiver (submission to jurisdiction)
If you take steps in the action without challenging service in time, such as serving a defence or applying for a stay to arbitration, you may be treated as having waived the irregularity and submitted to the court’s jurisdiction.
For more information, please refer to “Does acknowledging service mean the defendant accepts the court’s jurisdiction?”
Common defects in service
You may apply to set aside service if any of the following irregularities occurred:
- the writ had expired before service;
- the copy served was not sealed with the seal of the High Court or the District Court;
- the writ was served by a method not permitted by the rules, such as service by fax or email without a prior agreement or court order;
- the plaintiff used registered post or letter box service when there was no reasonable basis to believe the writ would have come to your knowledge within 7 days;
- service out of the jurisdiction was effected by a method illegal under the law of the foreign country;
- default judgment was entered before your time for acknowledging service had expired.
Setting aside default judgments
If the court agrees that service was irregular, it may set aside the service and any default judgment entered against you.
For more information, please refer to “If a default judgment has been entered against me because I did not respond to the claim in time, what can I do?”
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