PENGHUTANG PENGHAKIMAN 1. ) Mohd Emir Feizal bin Mohammad Fakhrunnasri for the Judgment Creditor [Messrs Rajes Hisham Rahim & Gopal] 2. ) Bong Lep Siong for the Judgment Debtors [Messrs Cheah Teh & Su]

PENGHUTANG PENGHAKIMAN 1. ) Mohd Emir Feizal bin Mohammad Fakhrunnasri for the Judgment Creditor [Messrs Rajes Hisham Rahim & Gopal] 2. ) Bong Lep Siong for the Judgment Debtors [Messrs Cheah Teh & Su]

The court held the bankruptcy notices were not misleading and complied with the Damages Order and related orders; the amounts were ascertainable from the notices so the debtors were not required to make further calculations or enquiries; any understatement or formal defect (notably in interest calculation) was curable under s.131 Insolvency Act; the affidavits in opposition did not disclose the required counterclaim/set-off under s.3(1)(i) and rule 93 and therefore could not set aside the notices; prior leave under O.46 r.2 was not required in the circumstances. Consequently the appeals against the validity of the bankruptcy notices were dismissed for WA-29NCC-3982 and the judgment...

Citation
KEBANKRAPAN NO.WA-29NCC-(3982 & 3983)-12/2019 (Mahkamah Tinggi)
Parties
Judgment Creditor: Mohd Pancha bin Abdullah; Judgment Debtor: Tham Kut Cheong; Judgment Debtor: Kwok Sow Moi @Kwok Sow Moy
Court
3982 & 3983
Jurisdiction
Malaysia
Judgment Date
25 November 2020
Case Number
KEBANKRAPAN NO.WA-29NCC-(3982 & 3983)-12/2019 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy Appeal / Determination of Appeals; Grounds of Judgment
Outcome
Appeals concerning validity of bankruptcy notices: appeal WA-29NCC-3982 dismissed; appeal WA-29NCC-3983 allowed; PKP decision overturned where applicable; bankruptcy notices held valid.
Legal Topics
Bankruptcy Notice, Insolvency Rules, Execution of Judgment, Leave to Execute (o.46 R.2), Interest on Damages, Setting Aside Notice, Affidavit in Opposition Requirements
Source Language
Malay/English
Insolvency Bankruptcy Civil Procedure Contract Equity Bankruptcy Notice Insolvency Rules Execution of Judgment +4 more

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Parties

Mohd Pancha bin Abdullah

Judgment Creditor

Tham Kut Cheong

Judgment Debtor

Kwok Sow Moi @Kwok Sow Moy

Judgment Debtor

Procedural Posture

Bankruptcy Appeal / Determination of Appeals; Grounds of Judgment

Legal Issues

  1. 1 Whether the bankruptcy notices (BN 3982 and BN 3983) were misleading or ambiguous
  2. 2 Whether the bankruptcy notices complied with the Damages Order and related court orders
  3. 3 Whether prior leave under Order 46 r.2 was required to issue the bankruptcy notices

Ratio Decidendi

The court held the bankruptcy notices were not misleading and complied with the Damages Order and related orders; the amounts were ascertainable from the notices so the debtors were not required to make further calculations or enquiries; any understatement or formal defect (notably in interest calculation) was curable under s.131 Insolvency Act; the affidavits in opposition did not disclose the required counterclaim/set-off under s.3(1)(i) and rule 93 and therefore could not set aside the notices; prior leave under O.46 r.2 was not required in the circumstances. Consequently the appeals against the validity of the bankruptcy notices were dismissed for WA-29NCC-3982 and the judgment...

Court Disposition

Appeals concerning validity of bankruptcy notices: appeal WA-29NCC-3982 dismissed; appeal WA-29NCC-3983 allowed; PKP decision overturned where applicable; bankruptcy notices held valid.

Orders

  • Appeals under Kebankrapan No. WA-29NCC-3982-12/2019 (enclosures 17 & 18) dismissed with costs.
  • Appeal under Kebankrapan No. WA-29NCC-3983-12/2019 allowed and decision of the Penolong Kanan Pendaftar overturned.