PEMIUTANG PENGHAKIMAN LINGGI AGRICULTURE SDN BHD PENGHUTANG PENGHAKIMAN CHIN SU HIN

PEMIUTANG PENGHAKIMAN LINGGI AGRICULTURE SDN BHD PENGHUTANG PENGHAKIMAN CHIN SU HIN

Court held Notice 51C was timely because actual delivery per postal tracking was 21.10.2022 and the objection filed 1.11.2022 fell within the 21-day statutory period; the Insolvency (Amendment) 2023 did not apply to this pending proceeding by virtue of s17 and thus s33B(2A) did not bar the objection; DGI is not required to prepare a separate report when issuing a s33A certificate, but in this case the DGI had failed to properly administer the estate (no meetings, no enquiries, no dividends, inadequate steps to locate debtor) and therefore exercised discretion unreasonably; accordingly the court granted an injunction restraining issuance of the discharge certificate for two years from...

Citation
JA-29PB-395-06/2023 (Mahkamah Tinggi)
Parties
Judgment Creditor: Chin Su Hin; Judgment Debtor: Linggi Agriculture Sdn Bhd; Director General of Insolvency (respondent): Ketua Pengarah Insolvensi, Jabatan Insolvensi Malaysia (Johor Bahru)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
22 November 2023
Case Number
JA-29PB-395-06/2023 (Mahkamah Tinggi)
Procedural Posture
Post Bankruptcy Application Under S33 B(4) to Restrain Issuance of Discharge Certificate / High Court Judgment
Outcome
Application allowed in part; interlocutory injunction granted restraining DGI from issuing discharge certificate
Legal Topics
Discharge of Bankrupt, Director General of Insolvency Discretion, Service of Statutory Notices, Retrospectivity of Statutory Amendments, Creditor Objections, Administration of Estate
Source Language
Malay/English
Bankruptcy Insolvency Administrative Law Civil Procedure Discharge of Bankrupt Director General of Insolvency Discretion Service of Statutory Notices Retrospectivity of Statutory Amendments +2 more

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Parties

Chin Su Hin

Judgment Creditor

Linggi Agriculture Sdn Bhd

Judgment Debtor

Ketua Pengarah Insolvensi, Jabatan Insolvensi Malaysia (Johor Bahru)

Director General of Insolvency (respondent)

Procedural Posture

Post Bankruptcy Application Under S33 B(4) to Restrain Issuance of Discharge Certificate / High Court Judgment

Legal Issues

  1. 1 Whether creditor's Notice 51C was filed within the 21-day statutory period under s33B(2)
  2. 2 Whether amendments to s33B (s33B(2A)) barred the creditor's objection
  3. 3 Whether the Director General of Insolvency was required to prepare a report before issuing a s33A discharge certificate

Ratio Decidendi

Court held Notice 51C was timely because actual delivery per postal tracking was 21.10.2022 and the objection filed 1.11.2022 fell within the 21-day statutory period; the Insolvency (Amendment) 2023 did not apply to this pending proceeding by virtue of s17 and thus s33B(2A) did not bar the objection; DGI is not required to prepare a separate report when issuing a s33A certificate, but in this case the DGI had failed to properly administer the estate (no meetings, no enquiries, no dividends, inadequate steps to locate debtor) and therefore exercised discretion unreasonably; accordingly the court granted an injunction restraining issuance of the discharge certificate for two years from...

Court Disposition

Application allowed in part; interlocutory injunction granted restraining DGI from issuing discharge certificate

Orders

  • KPI (Director General of Insolvency) is restrained from issuing a certificate of discharge under s33A of the Insolvency Act 1967 for the judgment debtor from 22.11.2023 until 21.11.2025 (2 years)
  • No order as to costs