PEMIUTANG PENGHAKIMAN Majlis Amanah Rakyat (MARA) PENGHUTANG PENGHAKIMAN ZURAIDAH BINTI ABDULLAH

PEMIUTANG PENGHAKIMAN Majlis Amanah Rakyat (MARA) PENGHUTANG PENGHAKIMAN ZURAIDAH BINTI ABDULLAH

The court held that issuance of the bankruptcy notice on 18.01.2023 constituted the commencement of bankruptcy proceedings and because section 5(3)(b) required leave before commencing proceedings against a non-social guarantor, the creditor's subsequent leave granted on 29.03.2023 could not operate retrospectively to validate the earlier notice; therefore the application to set aside the leave dated 29.03.2023 was allowed on that ground.

Citation
JA-29NCC-39-01/2023 (Mahkamah Tinggi)
Parties
Penghutang Penghakiman: Zuraidah binti Abdullah; Pemiutang Penghakiman: Majlis Amanah Rakyat
Court
High Court
Jurisdiction
Malaysia
Judgment Date
26 September 2023
Case Number
JA-29NCC-39-01/2023 (Mahkamah Tinggi)
Procedural Posture
Kebankrapan / Interlocutory Application to Set Aside Court Leave to Commence Bankruptcy Proceedings (lampiran 15)
Outcome
Application by the judgment debtor allowed in part: the court set aside the court leave dated 29.03.2023 to commence bankruptcy proceedings against the judgment debtor (non-social guarantor); other substantive attacks (issues 2–5) were dismissed; no order as to costs.
Legal Topics
Leave to Commence Bankruptcy, Guarantor Protection, Commencement of Proceedings (bankruptcy Notice), Exhaustion of Enforcement Remedies, Limitation, Service of Bankruptcy Notice, Winding Up Effect on Enforcement
Source Language
Malay/English
Insolvency/bankruptcy Civil Procedure Statutory Interpretation Leave to Commence Bankruptcy Guarantor Protection Commencement of Proceedings (bankruptcy Notice) Exhaustion of Enforcement Remedies Limitation +2 more

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Parties

Zuraidah binti Abdullah

Penghutang Penghakiman

Majlis Amanah Rakyat

Pemiutang Penghakiman

Procedural Posture

Kebankrapan / Interlocutory Application to Set Aside Court Leave to Commence Bankruptcy Proceedings (lampiran 15)

Legal Issues

  1. 1 Whether judgment creditor (JC) was required to obtain court leave under s.5(3)(b) before issuing the bankruptcy notice to a non-social guarantor
  2. 2 Whether JC exhausted all modes of execution and enforcement against the principal debtor as required by s.5(4) before proceeding against the guarantor
  3. 3 Whether the underlying judgment was time-barred under the Limitation Act 1953 s.6 and thus defective

Ratio Decidendi

The court held that issuance of the bankruptcy notice on 18.01.2023 constituted the commencement of bankruptcy proceedings and because section 5(3)(b) required leave before commencing proceedings against a non-social guarantor, the creditor's subsequent leave granted on 29.03.2023 could not operate retrospectively to validate the earlier notice; therefore the application to set aside the leave dated 29.03.2023 was allowed on that ground.

Court Disposition

Application by the judgment debtor allowed in part: the court set aside the court leave dated 29.03.2023 to commence bankruptcy proceedings against the judgment debtor (non-social guarantor); other substantive attacks (issues 2–5) were dismissed; no order as to costs.

Orders

  • Perintah kebenaran Mahkamah bertarikh 29.3.2023 diketepikan
  • Tiada perintah mengenai kos