PEMIUTANG PENGHAKIMAN MALAYAN BANKING BERHAD PENGHUTANG PENGHAKIMAN 1. ) Pengarah Insolvensi Negeri Johor 2. ) TAN KIM LEONG

PEMIUTANG PENGHAKIMAN MALAYAN BANKING BERHAD PENGHUTANG PENGHAKIMAN 1. ) Pengarah Insolvensi Negeri Johor 2. ) TAN KIM LEONG

The court held the creditor's procedural defect was curable under s131 and that the DGI had failed to exercise s33C discretion properly by not considering the statutory factors in s33C(2) and by relying solely on the debtor's proposed RM200 monthly payment; accordingly the court granted the creditor's application to suspend the automatic discharge for two years (27.6.2024–26.6.2026) and refused to order costs.

Citation
JA-29PB-47-01/2024 (Mahkamah Tinggi)
Parties
Applicant (pemiutang Penghakiman): Malayan Banking Berhad; Respondent (director General Representative): Pengarah Insolvensi Negeri Johor; Respondent (judgment Debtor): Tan Kim Leong
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 June 2024
Case Number
JA-29PB-47-01/2024 (Mahkamah Tinggi)
Procedural Posture
Post Bankruptcy Application to Suspend Automatic Discharge Under S.33 C Bankruptcy Act 1967 / Hearing and Judgment (application Granted)
Outcome
Application by Malayan Banking Berhad to restrain the Director General from releasing the judgment debtor under s33C granted in part.
Legal Topics
Automatic Discharge Under S33 C, Director General Discretion, Suspension of Discharge, Curable Formal Defects (s131), Procedural Compliance (insolvency Rules), Remedies to Inspect DGI Records
Source Language
Malay/English
Bankruptcy/insolvency Administrative Law Civil Procedure Automatic Discharge Under S33 C Director General Discretion Suspension of Discharge Curable Formal Defects (s131) Procedural Compliance (insolvency Rules) +1 more

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Parties

Malayan Banking Berhad

Applicant (pemiutang Penghakiman)

Pengarah Insolvensi Negeri Johor

Respondent (director General Representative)

Tan Kim Leong

Respondent (judgment Debtor)

Procedural Posture

Post Bankruptcy Application to Suspend Automatic Discharge Under S.33 C Bankruptcy Act 1967 / Hearing and Judgment (application Granted)

Legal Issues

  1. 1 Whether creditor's application complied with Insolvency Rules form 101 or was curable
  2. 2 Whether the judgment debtor 'committed any offence' for purposes of s33C(4)(a)
  3. 3 Whether Director General was required to prepare or exhibit a report for s33C discharge

Ratio Decidendi

The court held the creditor's procedural defect was curable under s131 and that the DGI had failed to exercise s33C discretion properly by not considering the statutory factors in s33C(2) and by relying solely on the debtor's proposed RM200 monthly payment; accordingly the court granted the creditor's application to suspend the automatic discharge for two years (27.6.2024–26.6.2026) and refused to order costs.

Court Disposition

Application by Malayan Banking Berhad to restrain the Director General from releasing the judgment debtor under s33C granted in part.

Orders

  • Director General of Insolvency is restrained from releasing Tan Kim Leong under s33C of the Bankruptcy Act 1967 for a period of two years from 27.6.2024 to 26.6.2026 pursuant to s33C(7)(b).
  • No order as to costs.