PEMIUTANG PENGHAKIMAN UNITED OVERSEAS BANK (MALAYSIA) BHD PENGHUTANG PENGHAKIMAN LIM KOK HONG

PEMIUTANG PENGHAKIMAN UNITED OVERSEAS BANK (MALAYSIA) BHD PENGHUTANG PENGHAKIMAN LIM KOK HONG

The court held that the Judgment Creditor had exhausted available modes of execution within the meaning of ss.5(3), (4) & (6) IA because the principal debtor had been wound up and assets were not a viable source of recovery; therefore leave to commence bankruptcy proceedings against the guarantors was granted. The...

Source-derived case information.

Citation
WA-29NCC-431-04/2022 (Mahkamah Tinggi)
Parties
Judgment Creditor: UNITED OVERSEAS BANK (MALAYSIA) BHD; Judgment Debtor: LIM KOK SENG; Judgment Debtor: LIM KOK HONG
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 September 2022
Case Number
WA-29NCC-431-04/2022 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy / Leave Application and Applications to Set Aside Bankruptcy Notices
Outcome
Leave granted to the Judgment Creditor to commence bankruptcy proceedings against the guarantors; applications to set aside the bankruptcy notices dismissed
Legal Topics
Leave to Commence Bankruptcy, Winding Up, Joint and Several Liability, Summary Judgment, Proof of Debt
Bankruptcy Law Company Law Contract Law Civil Procedure Leave to Commence Bankruptcy Winding Up Joint and Several Liability Summary Judgment +1 more

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Parties

UNITED OVERSEAS BANK (MALAYSIA) BHD

Judgment Creditor

LIM KOK SENG

Judgment Debtor

LIM KOK HONG

Judgment Debtor

Procedural Posture

Bankruptcy / Leave Application and Applications to Set Aside Bankruptcy Notices

Legal Issues

  1. 1 Whether the Judgment Creditor complied with ss.5(3), 5(4) and 5(6) of the Insolvency Act 1967 in obtaining leave to commence bankruptcy proceedings against guarantors
  2. 2 Whether the Summary Judgment dated 21.01.2022 creates joint and several liability such that each guarantor is liable for the entire judgment sum

Ratio Decidendi

The court held that the Judgment Creditor had exhausted available modes of execution within the meaning of ss.5(3), (4) & (6) IA because the principal debtor had been wound up and assets were not a viable source of recovery; therefore leave to commence bankruptcy proceedings against the guarantors was granted. The court further held the Summary Judgment imposed joint and several liability on the guarantors such that each is liable for the entire judgment sum; accordingly the applications to set aside the bankruptcy notices were dismissed.

Court Disposition

Leave granted to the Judgment Creditor to commence bankruptcy proceedings against the guarantors; applications to set aside the bankruptcy notices dismissed

Orders

  • Leave granted under ss.5(3), (4) & (6) Insolvency Act 1967 in respect of Encl.5 (WA-29NCC-430-04/2022) and Encl.6 (WA-29NCC-431-04/2022) (paras.1 and 2)
  • Permission granted to proceed via Bankruptcy Notices dated 7.4.2022 against the Judgment Debtors