PEMIUTANG PENGHAKIMAN AFFIN BANK BERHAD PENGHUTANG PENGHAKIMAN SOO LEE LEE

PEMIUTANG PENGHAKIMAN AFFIN BANK BERHAD PENGHUTANG PENGHAKIMAN SOO LEE LEE

The court allowed the judgment debtor's application to set aside the bankruptcy notice and dismissed the creditor's application to amend the notice. The notice was held to be ambiguous and misleading because it used a different interest base term than the judgment (BR v BLR), claimed interest as lump sums without requisite itemisation or specification of the applicable BLR rates at material times, and the statement of account relied upon was not served; the creditor's delay in seeking amendment and the risk of prejudice to the debtor meant s93(3) could not be used to cure the defects.

Citation
JA-29NCC-165-04/2023 (Mahkamah Tinggi)
Parties
Judgment Creditor: Affin Bank Berhad; Judgment Debtor: Soo Lee Lee
Court
High Court
Jurisdiction
Malaysia
Judgment Date
25 April 2024
Case Number
JA-29NCC-165-04/2023 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy / Hearing on Interlocutory Applications (application to Set Aside Bankruptcy Notice and Application to Amend the Notice)
Outcome
Judgment debtor's application to set aside the bankruptcy notice allowed; creditor's application to amend the bankruptcy notice dismissed.
Legal Topics
Validity of Bankruptcy Notice, Amendment of Court Process (s93(3) Insolvency Act 1967), Service and Substituted Service, Interest Calculation and Quantification in Enforcement, Delay and Tactical Amendments
Source Language
Malay/English
Insolvency Bankruptcy Civil Procedure Validity of Bankruptcy Notice Amendment of Court Process (s93(3) Insolvency Act 1967) Service and Substituted Service Interest Calculation and Quantification in Enforcement Delay and Tactical Amendments

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Parties

Affin Bank Berhad

Judgment Creditor

Soo Lee Lee

Judgment Debtor

Procedural Posture

Bankruptcy / Hearing on Interlocutory Applications (application to Set Aside Bankruptcy Notice and Application to Amend the Notice)

Legal Issues

  1. 1 Whether the bankruptcy notice complied with the judgment by stating a quantified sum and correct interest basis
  2. 2 Whether the creditor could amend the bankruptcy notice under section 93(3) Insolvency Act 1967 to correct alleged clerical errors
  3. 3 Whether the statement of account relied upon by the creditor formed part of effective service

Ratio Decidendi

The court allowed the judgment debtor's application to set aside the bankruptcy notice and dismissed the creditor's application to amend the notice. The notice was held to be ambiguous and misleading because it used a different interest base term than the judgment (BR v BLR), claimed interest as lump sums without requisite itemisation or specification of the applicable BLR rates at material times, and the statement of account relied upon was not served; the creditor's delay in seeking amendment and the risk of prejudice to the debtor meant s93(3) could not be used to cure the defects.

Court Disposition

Judgment debtor's application to set aside the bankruptcy notice allowed; creditor's application to amend the bankruptcy notice dismissed.

Orders

  • Judgment debtor's application (Lampiran 35) to set aside the bankruptcy notice allowed with costs of RM1,500.00 to be paid by Affin Bank Berhad to Soo Lee Lee, subject to allocatur.
  • Creditor's application to amend the bankruptcy notice (Lampiran 45) dismissed with costs of RM1,500.00 to be paid by Affin Bank Berhad to Soo Lee Lee, subject to allocatur.