LEE HENG YAU 1. ) KETUA PENGARAH INSOLVENSI, MALAYSIA 2. ) OCBC BANK (M )BERHAD

LEE HENG YAU 1. ) KETUA PENGARAH INSOLVENSI, MALAYSIA 2. ) OCBC BANK (M )BERHAD

The appeal was not competent and was dismissed because the challenged actions were attributable to the Director of Insolvency and amounted to non-final rulings not within s.67(1) read with s.3 CJA, and because the appellant failed to comply with multiple mandatory procedural requirements of ROCOA (notice and memorandum not in prescribed forms, failure to serve draft index, late and incomplete record, omission of sealed High Court order, improper inclusion of additional documents without leave, breach of practice directions) causing substantial miscarriage of justice.

Citation
B-01(IM)-380-08/2020 (Mahkamah Rayuan)
Parties
Appellant (judgment Debtor): Lee Heng Yau; First Respondent (director of Insolvency): Ketua Pengarah Insolvensi Malaysia (Pengarah Insolvensi Negeri Puan Siti Nur Shafrida binti Hashim); Second Respondent (judgment Creditor): OCBC Bank (M) Berhad (295400-W)
Court
IM
Jurisdiction
Malaysia
Judgment Date
5 October 2022
Case Number
B-01(IM)-380-08/2020 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (bankruptcy) / Court of Appeal Determination on Preliminary Objections and Strike Out Application; Grounds of Judgment
Outcome
Appeal found not competent and dismissed/struck out
Legal Topics
Appeal Competency Under Courts of Judicature Act, Record of Appeal Requirements (rocoa), Admissibility of Further Evidence on Appeal, Public Examination Under Insolvency Act, Practice Directions and Compliance, Effect of Failure to Reply to Affidavit
Source Language
Malay/English
Insolvency/bankruptcy Civil Procedure Appellate Practice Appeal Competency Under Courts of Judicature Act Record of Appeal Requirements (rocoa) Admissibility of Further Evidence on Appeal Public Examination Under Insolvency Act Practice Directions and Compliance +1 more

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Parties

Lee Heng Yau

Appellant (judgment Debtor)

Ketua Pengarah Insolvensi Malaysia (Pengarah Insolvensi Negeri Puan Siti Nur Shafrida binti Hashim)

First Respondent (director of Insolvency)

OCBC Bank (M) Berhad (295400-W)

Second Respondent (judgment Creditor)

Procedural Posture

Civil Appeal (bankruptcy) / Court of Appeal Determination on Preliminary Objections and Strike Out Application; Grounds of Judgment

Legal Issues

  1. 1 Whether the decision complained of was a judgment or order appealable to the Court of Appeal under s.67(1) read with s.3 CJA or merely a non-final ruling by the DR
  2. 2 Whether the notice of appeal and memorandum complied with Form 1 and Form 3 of the Rules of the Court of Appeal 1994 (ROCOA)
  3. 3 Whether the appellant complied with procedural requirements for the record of appeal including service of draft index, inclusion of sealed order, page limits and filing within 90 days

Ratio Decidendi

The appeal was not competent and was dismissed because the challenged actions were attributable to the Director of Insolvency and amounted to non-final rulings not within s.67(1) read with s.3 CJA, and because the appellant failed to comply with multiple mandatory procedural requirements of ROCOA (notice and memorandum not in prescribed forms, failure to serve draft index, late and incomplete record, omission of sealed High Court order, improper inclusion of additional documents without leave, breach of practice directions) causing substantial miscarriage of justice.

Court Disposition

Appeal found not competent and dismissed/struck out

Orders

  • Preliminary objection accepted; appeal is not competent and is dismissed
  • Application by first respondent to strike out parts of the record of appeal upheld in substance and the substantive appeal shall not be heard