Ng Chia How for the Appellant/Judgment Creditor [Messrs Chia Koay & Teng] Ambi Balakrishnan for the Respondent/Judgment Debtor [Messrs Shukor Baljit & Partners]

Ng Chia How for the Appellant/Judgment Creditor [Messrs Chia Koay & Teng] Ambi Balakrishnan for the Respondent/Judgment Debtor [Messrs Shukor Baljit & Partners]

The BN was defective because it sought the entire judgment costs contrary to the clear terms of the judgment which did not specify joint and several liability; the judgment debtor was only liable to one third of the costs and the bankruptcy court must not go behind the judgment, therefore the registrar's order setting aside the BN is affirmed (though interest on costs may otherwise be claimable under the Rules of Court).

Citation
BANKRUPTCY PROCEEDINGS NO. WA-29NCC-3642-11/2019 (Mahkamah Tinggi)
Parties
Judgment Creditor: Tom Ole Gysler; Judgment Debtor: Arpan bin Rapaiee
Court
High Court
Jurisdiction
Malaysia
Judgment Date
9 October 2020
Case Number
BANKRUPTCY PROCEEDINGS NO. WA-29NCC-3642-11/2019 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy Proceedings (set Aside Bankruptcy Notice) / Appeal Against Penolong Kanan Pendaftar's Decision Allowing Application to Set Aside Bankruptcy Notice
Outcome
Appeal dismissed; registrar's decision to set aside the bankruptcy notice affirmed
Legal Topics
Bankruptcy Notice, Set Aside Bankruptcy Notice, Joint and Several Liability, Garnishment, Interest on Costs, Compliance With Judgment
Source Language
Malay/English
Bankruptcy Civil Procedure Judgment Enforcement Costs Interest Bankruptcy Notice Set Aside Bankruptcy Notice Joint and Several Liability +3 more

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Parties

Tom Ole Gysler

Judgment Creditor

Arpan bin Rapaiee

Judgment Debtor

Procedural Posture

Bankruptcy Proceedings (set Aside Bankruptcy Notice) / Appeal Against Penolong Kanan Pendaftar's Decision Allowing Application to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 Whether the bankruptcy notice (BN) complied with the terms of the judgment
  2. 2 Whether the judgment imposed joint and several liability for costs on multiple defendants
  3. 3 Whether interest on costs was claimable by the judgment creditor

Ratio Decidendi

The BN was defective because it sought the entire judgment costs contrary to the clear terms of the judgment which did not specify joint and several liability; the judgment debtor was only liable to one third of the costs and the bankruptcy court must not go behind the judgment, therefore the registrar's order setting aside the BN is affirmed (though interest on costs may otherwise be claimable under the Rules of Court).

Court Disposition

Appeal dismissed; registrar's decision to set aside the bankruptcy notice affirmed

Orders

  • Enclosure 15 dismissed
  • Bankruptcy Notice dated 26.11.2019 set aside as defective