PEMIUTANG PENGHAKIMAN SMEB ASSET MANAGEMENT SDN BHD PENGHUTANG PENGHAKIMAN YA'ACOP BIN SAMINGON

PEMIUTANG PENGHAKIMAN SMEB ASSET MANAGEMENT SDN BHD PENGHUTANG PENGHAKIMAN YA'ACOP BIN SAMINGON

The creditor failed to comply with subsection 5(4) of the Insolvency Act 1967 because it did not demonstrate that it had exhausted all modes of execution against the principal debtor and there was an inordinate unexplained delay of about seven years which prejudiced the guarantor; consequently the leave granted to commence bankruptcy proceedings was improperly given and the creditor's petition must be dismissed and the leave set aside; additionally, applications to enforce judgments older than six years should be heard by the Judge in person at the original court where the judgment was obtained.

Citation
JA-29NCC-266-07/2021 (Mahkamah Tinggi)
Parties
Judgment Debtor: YA’ACOB BIN SAMINGON; Judgment Creditor: SMEB ASSET MANAGEMENT SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
11 October 2022
Case Number
JA-29NCC-266-07/2021 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy / Appeal to High Court in Chambers (rehearing) From Senior Assistant Registrar's Decision
Outcome
Appeal allowed; leave set aside; creditor petition dismissed
Legal Topics
Leave to Enforce Judgment After Six Years, Compliance With S5(4) Insolvency Act 1967, Exhaustion of Modes of Execution, Liability of Guarantor, Setting Aside Creditor Petition
Source Language
Malay/English
Bankruptcy/insolvency Civil Procedure Companies Law Leave to Enforce Judgment After Six Years Compliance With S5(4) Insolvency Act 1967 Exhaustion of Modes of Execution Liability of Guarantor Setting Aside Creditor Petition

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Parties

YA’ACOB BIN SAMINGON

Judgment Debtor

SMEB ASSET MANAGEMENT SDN BHD

Judgment Creditor

Procedural Posture

Bankruptcy / Appeal to High Court in Chambers (rehearing) From Senior Assistant Registrar's Decision

Legal Issues

  1. 1 Whether Judgment Creditor complied with Order 46 Rule 2 and Rule 3 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 all modes of execution before seeking leave to commence bankruptcy proceedings against the guarantor
  3. 3 Whether the delay by the Judgment Creditor prejudiced the Judgment Debtor and rendered the leave improperly granted

Ratio Decidendi

The creditor failed to comply with subsection 5(4) of the Insolvency Act 1967 because it did not demonstrate that it had exhausted all modes of execution against the principal debtor and there was an inordinate unexplained delay of about seven years which prejudiced the guarantor; consequently the leave granted to commence bankruptcy proceedings was improperly given and the creditor's petition must be dismissed and the leave set aside; additionally, applications to enforce judgments older than six years should be heard by the Judge in person at the original court where the judgment was obtained.

Court Disposition

Appeal allowed; leave set aside; creditor petition dismissed

Orders

  • Allow appeal and set aside Creditor Petition dated 16 December 2021
  • Set aside the leave granted by the Senior Assistant Registrar