LVM succeeds in resisting appeal on service via Notice of Appointment; Appellate Division clarifies when solicitors are not deemed instructed to accept service

In 2025, our Joseph Lee, Chan Kia Pheng, Ooi Huey Hien and Jervis Ng successfully resisted an appeal by Malayan Banking Berhad on the validity of serving an originating application on a defendant’s solicitors via eLitigation. The Appellate Division dismissed the appeal and affirmed that service was invalid on the facts.

The decision is noteworthy for three points.

First, a Notice of Appointment of Solicitor (“NOAS“) does not, without more, show instructions to accept personal service of an originating process. Here, the NOAS was followed by an application to set aside earlier substituted service; once that substituted service was set aside, the appellant could not rely on the NOAS to serve the originating process on our client’s solicitors. To hold otherwise would render the successful challenge to substituted service otiose.

Second, the Court observed there is merit in reading O 4 r 8(2) ROC 2021—which deems a solicitor’s address the address for service of “all documents in the action”—as applying to subsequent documents (pleadings, interlocutory applications, affidavits, submissions), not to originating processes that commence the action. That view aligns with the definition of “action” and the provision’s purpose (continuity of representation and orderly service once proceedings are on foot).

Third, treating a NOAS as consent to accept personal service would sit uneasily with O 6 r 12(5) ROC 2021, which makes clear that filing an affidavit to challenge jurisdiction is not a submission to jurisdiction. By parity of reasoning, a NOAS filed in the context of a jurisdictional or service challenge cannot be transmuted into blanket authority to accept service of originating process.