PEMIUTANG PENGHAKIMAN SMEB ASSET MANAGEMENT SDN BHD PENGHUTANG PENGHAKIMAN JUMAT BIN JAFFAR

PEMIUTANG PENGHAKIMAN SMEB ASSET MANAGEMENT SDN BHD PENGHUTANG PENGHAKIMAN JUMAT BIN JAFFAR

The creditor failed to demonstrate compliance with subsection 5(4) Insolvency Act 1967 because it did not show exhaustion of execution/enforcement against the principal debtor and there was an inordinate seven‑year delay in seeking enforcement, which prejudiced the guarantor; accordingly the leave obtained was invalid, the Bankruptcy Notice was set aside and the SAR's leave was set aside. Additionally, applications for leave to enforce judgments obtained by a Judge in person more than six years earlier should be heard by the Judge in person.

Citation
JA-29NCC-267-07/2021 (Mahkamah Tinggi)
Parties
Judgment Debtor: Jumat bin Jaffar; Judgment Creditor: SMEB Asset Management Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
11 October 2022
Case Number
JA-29NCC-267-07/2021 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy Appeal / Appeal From Senior Assistant Registrar Decision; Rehearing in High Court in Chambers
Outcome
Appeal allowed. Bankruptcy Notice set aside. Leave granted by SAR set aside.
Legal Topics
Leave to Enforce Judgment, Exhaustion of Execution Modes (s5(4) Insolvency Act 1967), Order 46 Rules of Court 2012, Bankruptcy Notice, Guarantor Protection, Delay in Enforcement
Source Language
Malay/English
Insolvency Bankruptcy Civil Procedure Company Law Leave to Enforce Judgment Exhaustion of Execution Modes (s5(4) Insolvency Act 1967) Order 46 Rules of Court 2012 Bankruptcy Notice +2 more

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Parties

Jumat bin Jaffar

Judgment Debtor

SMEB Asset Management Sdn Bhd

Judgment Creditor

Procedural Posture

Bankruptcy Appeal / Appeal From Senior Assistant Registrar Decision; Rehearing in High Court in Chambers

Legal Issues

  1. 1 Whether Judgment Creditor complied with Order 46 Rules of Court 2012 when seeking leave to enforce a judgment more than six years old
  2. 2 Whether Judgment Creditor complied with subsection 5(4) Insolvency Act 1967 by exhausting modes of execution/enforcement against the principal debtor before issuing bankruptcy proceedings against guarantor
  3. 3 Whether the Senior Assistant Registrar had jurisdiction to grant leave to enforce the long‑lapsed judgment

Ratio Decidendi

The creditor failed to demonstrate compliance with subsection 5(4) Insolvency Act 1967 because it did not show exhaustion of execution/enforcement against the principal debtor and there was an inordinate seven‑year delay in seeking enforcement, which prejudiced the guarantor; accordingly the leave obtained was invalid, the Bankruptcy Notice was set aside and the SAR's leave was set aside. Additionally, applications for leave to enforce judgments obtained by a Judge in person more than six years earlier should be heard by the Judge in person.

Court Disposition

Appeal allowed. Bankruptcy Notice set aside. Leave granted by SAR set aside.

Orders

  • Bankruptcy Notice issued against the Judgment Debtor is set aside
  • Leave granted by the Senior Assistant Registrar is set aside