PEMIUTANG PENGHAKIMAN Lua Ai Siew and Soong Ru Hui (chambering student) for the Judgment Creditors/Respondent [Messrs Soo Thien Ming & Nashrah] PENGHUTANG PENGHAKIMAN Datuk Wong Rhen Yen, Emily Wong and Jasneeta Bhullar for the Judgment Deb

PEMIUTANG PENGHAKIMAN Lua Ai Siew and Soong Ru Hui (chambering student) for the Judgment Creditors/Respondent [Messrs Soo Thien Ming & Nashrah] PENGHUTANG PENGHAKIMAN Datuk Wong Rhen Yen, Emily Wong and Jasneeta Bhullar for the Judgment Deb

The court held that leave under section 5(3) Insolvency Act 1967 is required before commencing bankruptcy proceedings; however, exercising its discretion the court granted the petitioning creditors' application for leave because the statutory precondition in s5(4) (exhaustion of execution/enforcement) was satisfied...

Source-derived case information.

Citation
KEBANKRAPAN NO. WA-29NCC-40-01/2021 (Mahkamah Tinggi)
Parties
Judgment Debtor: LIM SUE BENG; Judgment Creditor: AmBank (M) Berhad; Judgment Creditor: Alliance Investment Bank Berhad; Judgment Creditor: Malayan Banking Berhad; Judgment Creditor: Malaysian Industrial Development Finance Berhad; Judgment Creditor: CIMB Bank Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 September 2022
Case Number
KEBANKRAPAN NO. WA-29NCC-40-01/2021 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy / Insolvency / Appeal to Judge in Chambers Against Deputy Registrar Decisions (interlocutory Leave and Applications to Set Aside Bankruptcy Notice)
Outcome
Allowed the Judgment Creditors' application for leave (Enclosure 46); dismissed the Judgment Debtor's appeals/enclosures 44, 45 and 66 as academic
Legal Topics
Bankruptcy Notice, Leave to Commence Bankruptcy, Section 5(3) Insolvency Act 1967, Winding Up Vs Dissolution, Exhaustion of Execution Measures
Insolvency Bankruptcy Civil Procedure Commercial Law Bankruptcy Notice Leave to Commence Bankruptcy Section 5(3) Insolvency Act 1967 Winding Up Vs Dissolution +1 more

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Parties

LIM SUE BENG

Judgment Debtor

AmBank (M) Berhad

Judgment Creditor

Alliance Investment Bank Berhad

Judgment Creditor

Malayan Banking Berhad

Judgment Creditor

Malaysian Industrial Development Finance Berhad

Judgment Creditor

CIMB Bank Berhad

Judgment Creditor

Procedural Posture

Bankruptcy / Insolvency / Appeal to Judge in Chambers Against Deputy Registrar Decisions (interlocutory Leave and Applications to Set Aside Bankruptcy Notice)

Legal Issues

  1. 1 Whether petitioning creditor must obtain leave of court under section 5(3) Insolvency Act 1967 before issuing a Bankruptcy Notice
  2. 2 Whether the Bankruptcy Notice (BN) was prematurely issued and whether retrospective leave can cure that defect
  3. 3 Whether the petitioning creditor has exhausted modes of execution and enforcement under section 5(4) given the principal debtor was wound up

Ratio Decidendi

The court held that leave under section 5(3) Insolvency Act 1967 is required before commencing bankruptcy proceedings; however, exercising its discretion the court granted the petitioning creditors' application for leave because the statutory precondition in s5(4) (exhaustion of execution/enforcement) was satisfied in light of the principal debtor having been wound up, and therefore allowed the creditors to proceed despite the earlier issuance of the Bankruptcy Notice.

Court Disposition

Allowed the Judgment Creditors' application for leave (Enclosure 46); dismissed the Judgment Debtor's appeals/enclosures 44, 45 and 66 as academic

Orders

  • Enclosure 46 allowed with costs
  • Enclosures 44, 45 and 66 dismissed with no order as to costs