PEMIUTANG PENGHAKIMAN Lonpac Insurance Berhad PENGHUTANG PENGHAKIMAN Embi bin Bahari

PEMIUTANG PENGHAKIMAN Lonpac Insurance Berhad PENGHUTANG PENGHAKIMAN Embi bin Bahari

The AIO/notice was filed within the seven-day period when computed under Rules of Court O.3 r.2(5); however the AIO failed to particularise and quantify any counterclaim/set-off to meet the statutory threshold under s3(1)(i), therefore it could not operate to set aside the Bankruptcy Notice. The inclusion of appellate costs and allocatur in the Bankruptcy Notice was lawful because those orders relate specifically to the single principal judgment. The issuance of the Bankruptcy Notice did not breach ss5(3)-(6) IA 1967; leave under s5 is not a precondition to issuing a BN and any challenge on s5 is premature until a petition or leave application is lodged.

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 (challenge to Bankruptcy Notice) / Interlocutory Applications to Set Aside Bankruptcy Notice (pre Petition)
Outcome
Both interlocutory applications dismissed.
Legal Topics
Bankruptcy Notice, Counterclaim and Set Off, Guarantor Vs Indemnifier, Computation of Statutory Time Limits, Costs and Allocatur, Leave Under S5 Insolvency Act
Source Language
Malay/English
Bankruptcy Insolvency Civil Procedure Bankruptcy Notice Counterclaim and Set Off Guarantor Vs Indemnifier Computation of Statutory Time Limits Costs and Allocatur +1 more

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Parties

LONPAC INSURANCE BERHAD

Judgment Creditor

EMBI BIN BAHARI

Judgment Debtor

Procedural Posture

Bankruptcy (challenge to Bankruptcy Notice) / Interlocutory Applications to Set Aside Bankruptcy Notice (pre Petition)

Legal Issues

  1. 1 Whether the Affidavit-in-Opposition/notice was filed and served within the seven-day statutory period under s3(1)(i) and s3(2)(ii) Insolvency Act 1967 read with rule 93 IR 2017 and applicable rules for reckoning time
  2. 2 Whether the Judgment Debtor has a counter-claim, set-off or cross demand equal to or exceeding the bankruptcy sum and properly particularised
  3. 3 Whether the amount in the Bankruptcy Notice unlawfully combines multiple final judgments or improperly includes costs/allocatur from appellate orders

Ratio Decidendi

The AIO/notice was filed within the seven-day period when computed under Rules of Court O.3 r.2(5); however the AIO failed to particularise and quantify any counterclaim/set-off to meet the statutory threshold under s3(1)(i), therefore it could not operate to set aside the Bankruptcy Notice. The inclusion of appellate costs and allocatur in the Bankruptcy Notice was lawful because those orders relate specifically to the single principal judgment. The issuance of the Bankruptcy Notice did not breach ss5(3)-(6) IA 1967; leave under s5 is not a precondition to issuing a BN and any challenge on s5 is premature until a petition or leave application is lodged.

Court Disposition

Both interlocutory applications dismissed.

Orders

  • Application in Encl. 4 dismissed with costs subject to allocatur.
  • Application in Encl. 8 dismissed with costs subject to allocatur.