PEMIUTANG PENGHAKIMAN TAN SRI DATO' KAM WOON WAH PENGHUTANG PENGHAKIMAN DATO' SRI ANDREW KAM TAI YEOW

PEMIUTANG PENGHAKIMAN TAN SRI DATO' KAM WOON WAH PENGHUTANG PENGHAKIMAN DATO' SRI ANDREW KAM TAI YEOW

The application was dismissed because the applicant failed to establish necessity for an examination under rule 47: the Creditor had not refused to depose or indicated inability to attend, the dispute over finality of the earlier judgment is a question of law rather than needing oral testimony, the affidavits did not justify examination, and the applicant failed to specify the place for examination; accordingly the extraordinary power in rule 47 should not be exercised.

Citation
WA-29NCC-48-01/2022 (Mahkamah Tinggi)
Parties
Judgment Creditor: TAN SRI DATO' KAM WOON WAH; Judgment Debtor: DATO' SRI ANDREW KAM TAI YEOW
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 July 2022
Case Number
WA-29NCC-48-01/2022 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy / Interlocutory Application to Examine Judgment Creditor Under Rule 47 Insolvency Rules 2017
Outcome
Application dismissed with costs subject to allocatur; stay refused
Legal Topics
Examination on Oath, Rule 47 Insolvency Rules 2017, Final Judgment, Stay of Proceedings, Cross Examination of Affidavits
Source Language
Malay/English
Insolvency Law Civil Procedure Bankruptcy Examination on Oath Rule 47 Insolvency Rules 2017 Final Judgment Stay of Proceedings Cross Examination of Affidavits

Case Brief

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Parties

TAN SRI DATO' KAM WOON WAH

Judgment Creditor

DATO' SRI ANDREW KAM TAI YEOW

Judgment Debtor

Procedural Posture

Bankruptcy / Interlocutory Application to Examine Judgment Creditor Under Rule 47 Insolvency Rules 2017

Legal Issues

  1. 1 Whether court may exercise discretion to order examination on oath of judgment creditor under rule 47 IR
  2. 2 Whether the judgment dated 9.12.2021 is a final judgment for the purposes of the Insolvency Act 1967
  3. 3 Whether a stay of the bankruptcy proceedings should be granted

Ratio Decidendi

The application was dismissed because the applicant failed to establish necessity for an examination under rule 47: the Creditor had not refused to depose or indicated inability to attend, the dispute over finality of the earlier judgment is a question of law rather than needing oral testimony, the affidavits did not justify examination, and the applicant failed to specify the place for examination; accordingly the extraordinary power in rule 47 should not be exercised.

Court Disposition

Application dismissed with costs subject to allocatur; stay refused

Orders

  • Application in Encl. 11 dismissed with costs subject to allocatur
  • Stay application in Encl. 11 refused