PEMIUTANG PENGHAKIMAN Lonpac Insurance Berhad PENGHUTANG PENGHAKIMAN Embi bin Bahari

PEMIUTANG PENGHAKIMAN Lonpac Insurance Berhad PENGHUTANG PENGHAKIMAN Embi bin Bahari

The Letter of Indemnity, construed on its terms, created an independent indemnity obligation making the judgment debtor an indemnifier not a guarantor; therefore ss 5(3)-(6) IA did not preclude the creditor from presenting the bankruptcy petition without leave. The underlying judgment ordered payment by all defendants and, on authorities, defendants are jointly and severally liable so the debtor is liable for the entire judgment sum. Accordingly the applications to oppose and to set aside the petition fail.

Citation
WA-29NCC-1006-10/2021 (Mahkamah Tinggi)
Parties
Judgment Creditor: Lonpac Insurance Berhad; Judgment Debtor: Embi bin Bahari
Court
High Court
Jurisdiction
Malaysia
Judgment Date
17 August 2022
Case Number
WA-29NCC-1006-10/2021 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy Petition / Determination of Notice of Intention to Oppose and Summons in Chambers (applications Dismissed)
Outcome
Notice of intention to oppose and Summons in Chambers dismissed
Legal Topics
Bankruptcy Notice, Notice of Intention to Oppose, Summons to Set Aside Petition, Contract of Indemnity Vs Guarantee, Joint and Several Liability, Enforcement of Judgment
Source Language
Malay/English
Insolvency Contract Law Civil Procedure Bankruptcy Notice Notice of Intention to Oppose Summons to Set Aside Petition Contract of Indemnity Vs Guarantee Joint and Several Liability +1 more

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Parties

Lonpac Insurance Berhad

Judgment Creditor

Embi bin Bahari

Judgment Debtor

Procedural Posture

Bankruptcy Petition / Determination of Notice of Intention to Oppose and Summons in Chambers (applications Dismissed)

Legal Issues

  1. 1 Whether the creditor's petition complied with ss 5(3)(b), (4), (5) and (6) of the Insolvency Act 1967 given the debtor's status under the Letter of Indemnity
  2. 2 Whether the underlying judgment was joint and several such that the judgment debtor is liable for the whole judgment sum rather than one third

Ratio Decidendi

The Letter of Indemnity, construed on its terms, created an independent indemnity obligation making the judgment debtor an indemnifier not a guarantor; therefore ss 5(3)-(6) IA did not preclude the creditor from presenting the bankruptcy petition without leave. The underlying judgment ordered payment by all defendants and, on authorities, defendants are jointly and severally liable so the debtor is liable for the entire judgment sum. Accordingly the applications to oppose and to set aside the petition fail.

Court Disposition

Notice of intention to oppose and Summons in Chambers dismissed

Orders

  • Notice of Intention to Oppose (Encl. 34) dismissed with costs subject to allocatur
  • Summons in Chambers to set aside the Creditor's Petition (Encl. 35) dismissed with costs subject to allocatur