Malaysia Case Law: Decisions & Judgments

Topic

Leave to commence bankruptcy proceedings

Legal area

Court

18 Mar 2024

PEMIUTANG PENGHAKIMAN MALAYAN BANKING BERHAD PENGHUTANG PENGHAKIMAN Poh Yang Hong

Citation

WA-29NCC-373-05/2023 (Mahkamah Tinggi)
Court

High Court
Case number

WA-29NCC-373-05/2023 (Mahkamah Tinggi)

Because the Bankruptcy Notice was set aside and the creditor's appeal against that set-aside was dismissed, there was no live bankruptcy proceeding; therefore the SAR's earlier order granting leave to issue the Bankruptcy Notice was rendered academic and is set aside, and the debtor's appeal is allowed with costs.
19 Dec 2023

ORIX CREDIT MALAYSIA SDN BHD SOH SOON HUAT

Citation

CA-24NCvC-164-09/2023 (Mahkamah Tinggi)
Court

High Court
Case number

CA-24NCvC-164-09/2023 (Mahkamah Tinggi)

The respondent is not a social guarantor because the hire-purchase concerned non-vehicle equipment; the JID remained valid after dismissal of set-aside and appeals; and the applicant had exhausted enforcement methods under s5(4); therefore leave to commence bankruptcy proceedings was properly granted.
7 Nov 2023

Koperasi Perumahan Kluang Berhad 1. ) Tetuan Khalek Awang & Associates 2. ) Arham bin Ajid 3. ) Ahmad Bazlan Bin Che Kassim 4. ) Nor Hafeez Bin Nurul Hadi 5. ) Ahmad Kamal Bin Abu Bakar 6. ) Arik Zakri Bin Abdul Kadir 7. ) Hazlina Binti Has

Citation

CA-24NCvC-31-02/2023 (Mahkamah Tinggi)
Court

High Court
Case number

CA-24NCvC-31-02/2023 (Mahkamah Tinggi)

The court held that enforcement of the prior judgments and orders could only be pursued against those who were partners at the time the cause of action accrued (the named partners Khalek Awang and Zakhirah). Incoming partners who joined after the accrual date are not liable for pre-existing partnership debts under section 19 of the Partnership Act 1961. The originating summons seeking broader enforcement and leave for bankruptcy proceedings against other partners was an abuse of process and was dismissed with costs.
2 Nov 2023

PEMIUTANG PENGHAKIMAN BANK PEMBANGUNAN MALAYSIA BERHAD PENGHUTANG PENGHAKIMAN ANBANATHAN A/L SHANMUGAM

Citation

WA-29NCC-155-02/2022 (Mahkamah Tinggi)
Court

High Court
Case number

WA-29NCC-155-02/2022 (Mahkamah Tinggi)

Applying the Court of Appeal authority in Hong Leong Bank v Ong Moon Huat, the court held that a judgment creditor may obtain leave to commence bankruptcy proceedings either upon issuance of the bankruptcy notice or up to filing of the creditor's petition; consequently the appellant's contention that failure to obtain leave prior to issuance was fatal was rejected and the appeal was dismissed.
23 Sept 2022

PEMIUTANG PENGHAKIMAN Lua Ai Siew and Soong Ru Hui (chambering student) for the Judgment Creditors/Respondent [Messrs Soo Thien Ming & Nashrah] PENGHUTANG PENGHAKIMAN Datuk Wong Rhen Yen, Emily Wong and Jasneeta Bhullar for the Judgment Deb

Citation

KEBANKRAPAN NO. WA-29NCC-40-01/2021 (Mahkamah Tinggi)
Court

High Court
Case number

KEBANKRAPAN NO. WA-29NCC-40-01/2021 (Mahkamah Tinggi)

Section 5(3) of the Insolvency Act 1967 requires petitioning creditors to obtain leave of the court before issuing a Bankruptcy Notice initiating bankruptcy proceedings against a guarantor; the BN in this case was therefore prematurely issued and prejudicial to the debtor; leave was not properly obtained prior to issuance and the petitioners had effectively exhausted enforcement remedies against the principal debtor by reason of its winding up, so the Deputy Registrar's grant of leave was set aside (Appeal in Enclosure 46 allowed).
14 Sept 2022

PEMIUTANG PENGHAKIMAN UNITED OVERSEAS BANK (MALAYSIA) BHD PENGHUTANG PENGHAKIMAN LIM KOK SENG

Citation

WA-29NCC-430-04/2022 (Mahkamah Tinggi)
Court

High Court
Case number

WA-29NCC-430-04/2022 (Mahkamah Tinggi)

The court held the judgment creditor had exhausted all modes of execution within ss.5(3),(4)&(6) IA by virtue of the principal debtor being wound up and there being no realistic recourse against the company, and therefore granted leave to commence bankruptcy proceedings; further the Summary Judgment is a joint and several liability judgment such that each judgment debtor is liable for the entire judgment sum, therefore the bankruptcy notices founded on that judgment were valid and the applications to set them aside were dismissed.
10 Aug 2022

PEMIUTANG PENGHAKIMAN 1. ) Saling Bin Lau Bee Chiang 2. ) KAMIL BIN JANTAN 3. ) NORLIAH BINTI SALLEH 4. ) ANTOI BIN MABOT 5. ) MOHD NOR KAMISAN BIN WAHAB 6. ) TAN BIN JANTAN 7. ) SOOI TEE TOOTOI 8. ) SABTU BIN BATIN SALLEH 9. ) ISMAIL BIN J

Citation

WA-29NCC-306-03/2022 (Mahkamah Tinggi)
Court

High Court
Case number

WA-29NCC-306-03/2022 (Mahkamah Tinggi)

The bankruptcy notice dated 9.3.2022 was null and void ab initio because the 26 judgment creditors were not the persons entitled to enforce the Court of Appeal order (the RHB Trustee/Trust Fund held that right), the notice did not conform to the terms of the COA order, and the creditors failed to obtain mandatory leave required to issue bankruptcy proceedings against a partner not separately served; therefore the notice is set aside.
12 Apr 2022

WA-29NCC-1198-11/2021 (Mahkamah Tinggi)

Citation

WA-29NCC-1198-11/2021 (Mahkamah Tinggi)
Court

High Court
Case number

WA-29NCC-1198-11/2021 (Mahkamah Tinggi)

Appeal allowed because the judgment creditor failed to obtain the mandatory leave required by Order 77 r.5(4) and Rule 89(4) before filing the second bankruptcy notice; the absence of prior leave rendered the filing procedurally defective and justified setting aside the SAR's decision and dismissing the JC's application, while other substantive objections raised by the JD were rejected.
26 Nov 2021

PEMIUTANG PENGHAKIMAN Wan Nazma Asyikin binti Wan Yusof for the Respondent/Judgment Creditor [Messrs Anad & Noraini] PENGHUTANG PENGHAKIMAN Mugunthan Vadiveloo for the Appellant/Judgment Debtor [Messrs Mugu & Sufyan]

Citation

DALAM PERKARA KEBANKRAPAN NO. WA-29NCC-3807-12/2019 (Mahkamah Tinggi)
Court

High Court
Case number

DALAM PERKARA KEBANKRAPAN NO. WA-29NCC-3807-12/2019 (Mahkamah Tinggi)

The appeal was dismissed because the issues in the new summons were substantially the same as those already adjudicated and dismissed in Enclosure 19, therefore barred by res judicata; additionally the court was satisfied that leave had been properly granted and there was no special circumstance to revisit compliance with the insolvency provisions.