PEMIUTANG PENGHAKIMAN Lembaga Kumpulan Wang Simpanan Pekerja PENGHUTANG PENGHAKIMAN HAI CHER SENG

PEMIUTANG PENGHAKIMAN Lembaga Kumpulan Wang Simpanan Pekerja PENGHUTANG PENGHAKIMAN HAI CHER SENG

The court held the debtor's Form 45 notice was defective for failing to specify the statements in the petition disputed and that objections based on failure to exhaust execution against the company and abuse of process were grounds outside Form 45 that required a summons; further, the creditor's petition and verifying affidavit were valid because the deponent's authority was evidenced in the petition and supporting documents and because s6(1) and relevant rules governing verifying affidavits prevail over s133/r215; accordingly the debtor's notice and supporting affidavit were dismissed with costs.

Citation
JA-29NCC-648-10/2022 (Mahkamah Tinggi)
Parties
Judgment Debtor: Hai Cher Seng; Judgment Creditor: Lembaga Kumpulan Wang Simpanan Pekerja
Court
High Court
Jurisdiction
Malaysia
Judgment Date
16 January 2024
Case Number
JA-29NCC-648-10/2022 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy Petition / Hearing on Debtor's Notice to Show Cause / Preliminary Objection
Outcome
Debtor's notice to show cause and supporting affidavit dismissed with costs.
Legal Topics
Bankruptcy Petition, Notice to Show Cause (form 45 / Kaedah 116/117), Exhaustion of Execution Vs Director Liability, Validity and Authority of Verifying Affidavit (s133, R215), Abuse of Process
Source Language
Malay/English
Insolvency/bankruptcy Administrative/procedure Employment/statutory Contributions (epf) Bankruptcy Petition Notice to Show Cause (form 45 / Kaedah 116/117) Exhaustion of Execution Vs Director Liability Validity and Authority of Verifying Affidavit (s133, R215) Abuse of Process

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Parties

Hai Cher Seng

Judgment Debtor

Lembaga Kumpulan Wang Simpanan Pekerja

Judgment Creditor

Procedural Posture

Bankruptcy Petition / Hearing on Debtor's Notice to Show Cause / Preliminary Objection

Legal Issues

  1. 1 Whether the debtor's notice to show cause complied with Insolvency Rules (Form 45 / Kaedah 116/117) by specifying statements disputed
  2. 2 Whether creditor was required to exhaust execution against the principal company before proceeding against a director for EPF liability
  3. 3 Whether the verifying affidavit was irregular for failing to state authority under seal (s133 / r215) and whether such irregularity is fatal

Ratio Decidendi

The court held the debtor's Form 45 notice was defective for failing to specify the statements in the petition disputed and that objections based on failure to exhaust execution against the company and abuse of process were grounds outside Form 45 that required a summons; further, the creditor's petition and verifying affidavit were valid because the deponent's authority was evidenced in the petition and supporting documents and because s6(1) and relevant rules governing verifying affidavits prevail over s133/r215; accordingly the debtor's notice and supporting affidavit were dismissed with costs.

Court Disposition

Debtor's notice to show cause and supporting affidavit dismissed with costs.

Orders

  • Notis Niat Penghutang Penghakiman (Lampiran 26) dismissed.
  • Afidavit Sokongan (diikrarkan 1.8.2023) (Lampiran 27) dismissed.