Yeoh Jit Wei for the Appellant Judgment Debtor [Messrs JW Yeoh & Fenn] Ivan Ho for the Respondent Judgment Debtor [Messrs Ho & Rakan-rakan]

Yeoh Jit Wei for the Appellant Judgment Debtor [Messrs JW Yeoh & Fenn] Ivan Ho for the Respondent Judgment Debtor [Messrs Ho & Rakan-rakan]

Because the summary judgment was silent as to joint and several liability, the Judgment Debtor could not be treated as liable for the entire judgment sum in bankruptcy proceedings; the bankruptcy notice incorrectly claimed the full sum against the JD and therefore was invalid and set aside.

Citation
DALAM KEBANKRAPAN NO. WA-29NCC-1559-05/2019 (Mahkamah Tinggi)
Parties
Judgment Debtor: Toh Wee Kheng; Judgment Creditor: New Foo Hing Trading Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
10 September 2020
Case Number
DALAM KEBANKRAPAN NO. WA-29NCC-1559-05/2019 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy / Appeal Against PKP Decision on Application to Set Aside Bankruptcy Notice (enclosure 31)
Outcome
Appeal allowed; order setting aside the Bankruptcy Notice; overturn decision of the Penolong Kanan Pendaftar
Legal Topics
Set Aside Bankruptcy Notice, Joint and Several Liability, Enforcement of Judgment, Calculation of Interest, Costs
Source Language
Malay/English
Bankruptcy Civil Procedure Contract Law Guarantees and Indemnities Set Aside Bankruptcy Notice Joint and Several Liability Enforcement of Judgment Calculation of Interest +1 more

Case Brief

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Parties

Toh Wee Kheng

Judgment Debtor

New Foo Hing Trading Sdn Bhd

Judgment Creditor

Procedural Posture

Bankruptcy / Appeal Against PKP Decision on Application to Set Aside Bankruptcy Notice (enclosure 31)

Legal Issues

  1. 1 Whether a bankruptcy notice is valid where the underlying judgment is silent as to joint and several liability
  2. 2 Whether the bankruptcy court may go behind the terms of a judgment when considering an application to set aside a bankruptcy notice
  3. 3 Whether a guarantor who executed a letter of guarantee is liable for the full judgment sum or only a proportional share

Ratio Decidendi

Because the summary judgment was silent as to joint and several liability, the Judgment Debtor could not be treated as liable for the entire judgment sum in bankruptcy proceedings; the bankruptcy notice incorrectly claimed the full sum against the JD and therefore was invalid and set aside.

Court Disposition

Appeal allowed; order setting aside the Bankruptcy Notice; overturn decision of the Penolong Kanan Pendaftar

Orders

  • Allow the appeal
  • Set aside the Bankruptcy Notice dated 17.5.2019 issued by New Foo Hing Trading Sdn Bhd