PEMIUTANG PENGHAKIMAN DURABLE MIX SDN. BHD. (COMPANY NO: 813487-W PENGHUTANG PENGHAKIMAN CHOK KIM SIN

PEMIUTANG PENGHAKIMAN DURABLE MIX SDN. BHD. (COMPANY NO: 813487-W PENGHUTANG PENGHAKIMAN CHOK KIM SIN

Appeal dismissed because the JD sought to relitigate matters conclusively determined by a binding consent judgment; the letter of guarantee rendered the JD effectively a principal debtor so leave under section 5 was not required; the JD failed to comply with mandatory rule 116 by not filing Form 45; and the repeated, abusive applications amounted to delay, justifying dismissal with costs.

Citation
JA-29NCC-1950-10/2019 (Mahkamah Tinggi)
Parties
Judgment Debtor: Chok Kim Sin; Judgment Creditor: Durable Mix Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
17 August 2021
Case Number
JA-29NCC-1950-10/2019 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy Action / Appeal Against SAR Decision Dismissing Application to Set Aside Creditor's Petition
Outcome
Appeal dismissed with costs
Legal Topics
Consent Judgment, Guarantee, Leave to Petition Guarantor, Res Judicata, Rule 116 Insolvency Rules, Section 5 Insolvency Act, Section 92 Insolvency Act
Source Language
Malay/English
Insolvency Bankruptcy Law Contract Law Civil Procedure Consent Judgment Guarantee Leave to Petition Guarantor Res Judicata +3 more

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Parties

Chok Kim Sin

Judgment Debtor

Durable Mix Sdn. Bhd.

Judgment Creditor

Procedural Posture

Bankruptcy Action / Appeal Against SAR Decision Dismissing Application to Set Aside Creditor's Petition

Legal Issues

  1. 1 Whether the consent judgment was being re-litigated
  2. 2 Whether leave under section 5(3)(b) was required to petition the guarantor
  3. 3 Whether the debtor was a mere guarantor or principal debtor under the letter of guarantee

Ratio Decidendi

Appeal dismissed because the JD sought to relitigate matters conclusively determined by a binding consent judgment; the letter of guarantee rendered the JD effectively a principal debtor so leave under section 5 was not required; the JD failed to comply with mandatory rule 116 by not filing Form 45; and the repeated, abusive applications amounted to delay, justifying dismissal with costs.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs