1. ) NUR SHAHRINA BINTI NOR ARIFFIN 2. ) NOR SHAHRILIKMAL BIN NOR ARIFFIN KETUA PENGARAH JABATAN INSOLVENSI MALAYSIA

BA-25-60-09/2023 Kand. 9 04/06/2024 15:02:00 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-60-09/2023 Dalam perkara mengenai keputusan Ketua Pengarah Insolvensi terkandung di dalam surat beliau bertarikh 10.7.2023 (ruj no. BP000598/2011 (Sek. Aset)) yang enggan menerima jumlah sebanyak RM43,750.00 bagi estet Nor Ariffin Bin M Said, si bankrap yang merupakan satu perlapan (⅛) bahagian hasil jualan dari satu perjanjian jual beli bertarikh 17.10.2022; Dan Dalam perkara mengenai satu perjanjian jual beli bertarikh 17.10.2022 berkenaan dengan satu hartanah yang dipegang di bawah hakmilik no. HSM 16819, PT 16260, Tempat Taman Sri Andalas (Ladang Tremelbye), Mukim Klang, Daerah Klang, Negeri Selangor; Dan Dalam perkara mengenai estet Nor Ariffin Bin M Said (No. K/P: 700709-10-5131), si bankrap yang dihukum bankrap oleh Mahkamah Tinggi Malaya di Shah Alam melalui Kebankrapan No. 29-2350-2010 pada 11.1.2011; Dan 1 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal Dalam perkara mengenai seksyen- seksyen 38, 48, 52 dan 53B Akta Insolvensi 1967; Dan Dalam perkara mengenai seksyen 349 Kanun Tanah Negara; Dan Dalam perkara mengenai perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964; Dan Dalam perkara mengenai Aturan 53 Kaedahkaedah Mahkamah 2012 ANTARA 1. NUR SHAHRINA BINTI NOR ARIFFIN (NO. K/P: 980505-10-7054) 2. NUR SHAHRILIKMAL BINTI NOR ARIFFIN (NO. K/P: 980505-10-7054) …PEMOHON-PEMOHON DAN KETUA PENGARAH JABATAN INSOLVENSI MALAYSIA …RESPONDEN 2 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal JUDGMENT [1] This is an application filed by Nur Sharina binti Nor Ariffin and Nor Shahrilikmal bin Nor Ariffin (“the applicants”) on 7 September 2023 seeking leave to commence judicial review proceedings pursuant to Order 53 Rule 3(1) of the Rules of Court 2012 (“ROC 2012”). Reliefs Sought [2] In this application for leave to commence judicial review proceedings, the applicants have sought the following reliefs as reproduced form Enclosure 1: “(1) satu certiorari untuk membatalkan keputusan Responden terkandung di dalam suratnya bertarikh 10.7.2023 (ruj no. BP000598/2011 (Sek. Aset)) yang enggan menerima jumlah sebanyak RM43,750.00 bagi estet Nor Ariffin Bin M Said (“Si Bankrap”) yang merupakan satu perlapan (⅛) bahagian hasil jualan dari satu perjanjian jual beli bertarikh 17.10.2022 berkenaan dengan satu hartanah yang dipegang di bawah hakmilik no. HSM 16819, PT 16260, Tempat Taman Sri Andalas (Ladang Tremelbye), Mukim Klang, Daerah Klang, Negeri Selangor yang dimasuki antara Nor Adzlinah Binti M Said, Nor Abidin Bin Mohd Said, Nor Adzman Bin Said, Nor Alezah Binti Md Said, Nor Ameyaton Binti M Said, Si Bankrap, Nor Kamarulzaman Bin M Said, dan Norafidah Binti Mohd Said sebagai penjual-penjual dan Pemohon-pemohon sebagai pembeli- pembeli (“Perjanjian tersebut”). (2) satu deklarasi bahawa Perjanjian tersebut adalah sah dan boleh dikuatkuasakan di sisi undang-undang; 3 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal (3) satu perintah bahawa Responden hendaklah menerima dan memasukkan ke dalam akaun estet Si Bankrap jumlah sebanyak RM43,750.00 daripada Pemohon-pemohon atau Maybank Islamic Berhad atau institut kewangan lain yang memberi pinjaman kepada Pemohon-pemohon berkenaan dengan Perjanjian tersebut; (4) kos; dan (5) relief-relief selanjutnya dan/atau selainnya sebagaimana yang dianggap adil dan suai manfaat oleh mahkamah yang mulia ini.” Factual Background [3] The facts of this application are derived from the documents filed by parties. [4] On 17.10.2022, the applicants entered into a sale and purchase agreement (“the agreement”) relating to 1/8th of an undivided portion of land owned each by their father, uncles and aunts (“the proprietors”) who inherited the land from the applicants’ grandparents, held under title no. HSM 16819, PT 16260, Tempat Taman Sri Andalas (Ladang Tremelbye), Mukim Klang, Daerah Klang, Negeri Selangor. [5] Maybank Islamic Berhad (“the financial institute”) agreed to finance the purchase of the property. The applicants received an offer letter on 4 August 2022 from the financial institute. [6] A bankruptcy search on the proprietors was conducted by the financial institute on 7 December 2022. The results of the 4 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal bankruptcy search revealed that the Shah Alam High Court had adjudged their father bankrupt on 11 January 2011. [7] On 9 December 2022, the applicants’ solicitors inquired the respondent about the outstanding debt owed by their father and were informed that the amount of debt still owing was RM127,052.45. On the same day, the Klang Land District Office registered the applicants as the owners of 1/2 of the undivided portion of the property and a charge was registered in favour of the financial institute for the facility issued on the said property. [8] The applicants then contacted their father’s creditor, Public Islamic Bank Berhad to reduce the amount of debt and to settle the debt in full, in order to release their father from bankruptcy status. The creditor vide a letter dated 2 May 2023 agreed to reduce the amount of debt owed to RM115,000.00 provided that such amount is fully settled by 23 June 2023. [9] The applicants’ solicitor wrote to the respondent on 27 May 2023 and 14 June 2023 and made an offer on behalf of the applicants’ father to pay RM43,750.00 being the proceed of the sale of the 1/8th portion in the agreement for their father’s asset (“the offer”). [10] The respondent on 10 July 2023 rejected the offer for the following reasons: (i) The agreement was entered within the prohibited time as prescribed in subsection 52(1) of the Insolvency Act 1967; and (ii) The property was transferred to the applicants even though the proprietors have yet to receive any payments and the transfer was done without the consent of the respondent. 5 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal Test in Granting Leave [11] The test in granting leave to commence judicial review proceedings have been enunciated in caselaw authorities. In the Federal Court case of WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 MLJ 296, the court stated: “ …Without the need to go into depth of the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though ie unless the matter for judicial review is amenable to judicial review absolutely no success may be envisaged. [13] Returning to the mainstream, the appeal before us relates to the first stage ie the leave application. With both the High Court and the Court of Appeal having rejected the leave application, we now begin by resolving certain preliminary matters, namelywhether the appellant has the necessary locusstandi, whether it has complied with the time factor, and whetherthe facts and circumstances before us are amenable to judicial review.” [Emphasis added] [12] In the more recent case of Dato’ Sri Mohd Najib bin Tun Hj Abdul Razak v. Attorney General & Ors [2020] 3 MLJ 114, the Court of Appeal had said: 6 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal “[33] A court hearing a judicial review application must determine whether ‘prima facie there is a genuine case for review’. It is accepted that the threshold requirement is low, for leave will only be refused where an application is: (a) frivolous and vexatious or hopeless; (b) made by busybodies with misguided or trivial complaints of administrative errors; (c) misconceived; (d) unarguable or groundless; (e) where there is a more appropriate alternative procedure; or (f) where an application for judicial review is an inappropriate procedure.” [13] Founded on the principles and the test for granting leave in a judicial review application as expressed in the authorities cited, this court will consider this application for leave to commence judicial review. Decision [14] The Honourable Attorney General objected to this application for leave to commence judicial review. In this judicial review, the applicants are essentially seeking leave for judicial review proceedings over the decision made by the respondent on 10 July 2023 concerning the property of their bankrupt father. 7 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal [15] The objection by the Honourable Attorney General is on the grounds that ground that judicial review is an inappropriate procedure for the applicants’ application. [16] According to the learned Federal Counsel on behalf of the Honourable Attorney General the proper recourse is to appeal to the bankruptcy court under section 86 of the Insolvency Act 1967 or apply for any order or direction to the bankruptcy court under section 74 of the Insolvency Act 1967. [17] In this regard, section 2 of the Insolvency Act 1967 provides as follows: “Interpretation 2. In this Act, unless the context otherwise requires— … “the court” means the court having jurisdiction in bankruptcy under this Act; [18] Whereas section 88 of the Insolvency Act 1967 provides: “88. The High Court shall be the court having jurisdiction in bankruptcy under this Act.” [19] Moreover, it is provided that any person aggrieved by the decision of the Director General of Insolvency may appeal to the bankruptcy court under section 86 of the Insolvency Act 1967: “Appeal to court against Director General of Insolvency 8 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal 86. If the bankrupt or any of the creditors or any other person is aggrieved by any act or decision of the Director General of Insolvency, he may apply to the court, and the court may confirm, reverse or modify the act or decision complained of and make such order in the premises as it thinks just.” [Emphasis added] [20] Alternatively, under section 74 of the Insolvency Act 1967 aggrieved persons under the Insolvency Act 1967 can file an application to the bankruptcy court for any order or direction. In this regard, section 74 of the Insolvency Act 1967 reads: “Protection of Director General of Insolvency and person acting under his direction or control 74. The Director General of Insolvency or any person acting under his direction or control shall not be liable personally in any action or proceeding in respect of anything done or intended or omitted to be done under this Act but any person aggrieved by anything so done or intended or omitted to be done may apply to the court for directions in the matter and the court may thereupon give such directions or make such order as it thinks fit.” [21] In this application, the applicants’ father was declared bankrupt by the Shah Alam High Court in bankruptcy Case No. 29-2350-2010 on 11 January 2011. Following the declaration of bankruptcy, the father’s estate has been managed by the respondent under section 73 of the Insolvency Act 1967. The respondent made a decision on 10 July 2023, as part of their duties in managing the father’s estate. 9 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal [22] In this sense, this court respectfully agrees with the contention by the Honorable Attorney General. If the applicants are aggrieved by the respondent’s decision made on 10 July 2023, they can take the following actions: (i) Appeal to the bankruptcy court under section 86 of the Insolvency Act 1967; and (ii) Apply for an order or direction from the bankruptcy court under section 74 of the Insolvency Act 1967. [23] Moreover, case law has indicated that judicial review is not necessary the mode of proceedings. In the case of T Mohan Ellen & Ors v. Pentadbir Tanah Daerah, Petaling [2000] 8 CLJ 567 the High Court stated: “In the instant case, the applicants have a right of appeal against the decision of the respondent if they were aggrieved by the said decision. Section 418 of the Code provides… …The learned counsel for the respondent submitted that on the facts of this case, there were no really exceptional circumstances to justify the court, in exercise of its discretion, to grant an order of certiorari to quash the respondent’s decision. I agree. The applicants should have appealed against the respondent’s decision under s. 418 of the Code rather then resorting to judicial review in absence of very exceptional circumstances...” 10 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal [24] Also, the Court of Appeal in Chin Mee Keong & Ors v. Pesuruhjaya Sukan [2007] 6 MLJ 193 had said the following: “[32] In general, judicial review is not available where there is an alternative remedy by way of appeal. But there are exceptions to this general rule. Hashim Yeop A Sani SCJ (as he then was) in the Supreme Court case of Government of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 185 at p 189, declared: In answer to the first question we would therefore hold that the discretion is still with the courts but where there is an appeal provision available to the applicant certiorari should not normally issue unless there is shown a clear lack of jurisdiction or a blatant failure to perform some statutory duty or in appropriate cases a serious breach of the principles of natural justice. … [34] So in the circumstances of this case…judging from the appellants" allegations alluded to by the appellants, particularly that the Minister is biased, prejudiced and has prejudged the subject matter of the appeal that may be brought before her under s 21(1)(c) of the [Sports Development Act 1997], then if she is there would be a breach of the principles of natural justice. One cannot envisage a person sitting in judgment to be fair and unbias if he or she had fully participated in the dispute between the parties and had influenced the decision which is the subject matter of the hearing before him. This certainly opposes the requirement that the arbiter must be fair and impartial… At this stage, all that is necessary is for the court to consider, based on what is disclosed by the 11 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal appellants, whether there is an arguable case in favour of granting an order of certiorari. …” Conclusion [25] For the aforementioned reasons and taking into consideration the facts of this application, this court is of the considered view that an application for judicial review is not the correct mode of proceedings. There exits various methods of remedies available to the applicants as provided for by the Insolvency Act 1967. [26] This application for leave to commence judicial review is therefore dismissed. No order as to costs. Date: 04 June 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam 12 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: For the applicant: Kuek Ian Huey Tetuan Ian & Sim Advocates & Solicitors Suite 33-01, 33rd Floor, Menara Keck Seng, 203 Jalan Bukit Bintang, 55100 Kuala Lumpur. general@ianandsim.com +6 03 2166 5918 For the respondent: FC Ainna Sherina binti Saipolamin Bahagian Guaman, Jabatan Peguam Negara No. 45, Persiaran Perdana Presint 4, 62100 Putrajaya +6 03 8872 2000 13 S/NBA-25-60-09/2023 aSyAW0lh0ihfT4q8GFx6g **Note : Serial number will be used to verify the originality of this document via eFILING portal