Chapter 20 - Powers of Court in Dealing with Defects & Irregularities

Question 1

POWERS OF COURT IN DEALING WITH DEFECTS & IRREGULARITIES

Overview

Answer 1

1) Curing provision
2) Power to waive irregularity
3) Power to extend time

Question 2

POWERS OF COURT IN DEALING WITH DEFECTS & IRREGULARITIES

Curing provision

Answer 2

r. 194 CWUR - formal defect not to invalidate proceedings:
- No proceedings under the Act or the Rules shall be invalidated by any formal defect or any irregularity, unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the Court.
- No defect or irregularity in the appointment or election of a receiver, liquidator, or member of a committee of inspection shall vitiate any act done by him in good faith.

S.582 CA:

No proceeding under this Act shall be invalidated by any defect, irregularity or deficiency of notice or time unless the Court is of the opinion that substantial injustice has been or may be caused which cannot be remedied by any order of the Court.

Question 3

POWERS OF COURT IN DEALING WITH DEFECTS & IRREGULARITIES

discretionary power - waive irregularity

Answer 3

Kampat Timber Industries Sdn Bhd v. Bensa Sdn Bhd:

• An irregularity could be waived by the court in exercising its wide discretion.
• What is of importance is whether the company is able to pay its debt.

Question 4

POWERS OF COURT IN DEALING WITH DEFECTS & IRREGULARITIES

discretionary power - extend time - the law

Answer 4

r.193:

The Court may, in any case in which it shall see fit extend or abridge the time appointed by these Rules or fixed by any order of the Court for doing any act or taking any proceeding.

S.469(3):

The court may give such directions as to the proceedings as the Court thinks fit.

Question 5

POWERS OF COURT IN DEALING WITH DEFECTS & IRREGULARITIES

discretionary power - extend time - application

Answer 5

Winerich Sdn Bhd v Alpha Atlas Management Sdn Bhd:

• By virtue of r.193 & S.469(3), Court has the discretion to extend time required under the act.

Question 6

POWERS OF COURT IN DEALING WITH DEFECTS & IRREGULARITIES

discretionary power - extend time - recent application

FC, 2016

Answer 6

Kilo Asset Sdn Bhd v Hew Tai Hong (FC, 2016):

• The powers of the court to extend or abridge time are not restricted by the words employed in r. 30(2) of the WUR.
• Rules 193 and 194 of the WUR, together with s. 221(2) of the CA65 gives the court power to exercise its discretion to abridge the time prescribed in r. 30(2).
• The courts, when exercising its powers under rr. 193 & 194, must be wary of all the surrounding circumstances of each case and weigh the interest of both parties in accordance with the facts and circumstances of each case.
• If there is no substantial injustice occurred by the defect or irregularities, Court ought to exercise the power in favour of the petitioner.