Chapter 27 - Debtors Act 1957

Question 1

DEBTORS ACT 1957

Overview

Answer 1

1) Arrest before judgment

2) Attachment before judgment

Question 2

ARREST BEFORE JUDGMENT

Overview

Answer 2

1) The law & scope
2) Procedures
3) P’s burden
4) D’s burden
5) Relief for wrong detention

Question 3

ARREST BEFORE JUDGMENT

The law & scope

Answer 3

S.15:

• S.15 DA 1957 makes a provision for arrest of a defendant even before a judgment;
• This is provided that Plaintiff satisfies on oath certain conditions.

Question 4

ARREST BEFORE JUDGMENT

P’s burden

Answer 4

S.15

Plaintiff must satisfies on oath that:

GOOD CAUSE OF ACTION:

• He has a good cause of action against the Defendant;

INTENTION TO PREJUDICE:

• And the Defendant, with intent to prejudice the Plaintiff; or

AVOIDANCE OF PROCESS OF COURT:

• To avoid any process of court; or

OBSTRUCT OR DELAY:

• To obstruct or delay execution of any judgment that may be made against him;
• i.e. has absconded / left the state; or about to abscond; or has disposed of or removed from the state his property or any part thereof.

Question 5

ARREST BEFORE JUDGMENT

D’s burden

Answer 5

To show cause

Question 6

ARREST BEFORE JUDGMENT

Relief for wrong detention

Answer 6

S.23:

D may apply to court for an award not exceeding RM1k for compensation against the P.

Question 7

ARREST BEFORE JUDGMENT

Procedures

Answer 7

O.74, r.5

Question 8

ATTACHMENT BEFORE JUDGMENT

Overview

Answer 8

1) The law & scope
2) Difference with Mareva
3) Procedures
4) P’s burden
5) Order of court & effect
6) Relief for wrong attachment
7) Setting-aside order

Question 9

ATTACHMENT BEFORE JUDGMENT

The law & scope

Answer 9

S.20:

• Makes a provision for attachment defendant’s property even before a judgment;
• This is provided that Plaintiff satisfies on oath certain conditions.

Question 10

ATTACHMENT BEFORE JUDGMENT

Difference with Mareva

Answer 10

Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd:

1) SPEED:

• Mareva is much quicker; can even get it before issuance of originating process (O.29, r.1(3);
• S.19 is only available after issuance of writ.

2) SOURCE OF POWER:

• Mareva is discretionary - courts are more flexible and can grant ancillary remedies to enhance the effectiveness, i.e. ordering a disclosure of other properties;
• S.19 DA is statutory - strict application and compliance.

3) STANDARD OF PROOF:
- Mareva has a standard of proof lower than S.19.

Question 11

ATTACHMENT BEFORE JUDGMENT

Procedures

Answer 11

O.74, r.5:

• Mode:
• Affidavit:
• To whom:

Question 12

ATTACHMENT BEFORE JUDGMENT

P’s burden

Answer 12

S.19:

P needs to show that D:

1) DISPOSAL:
- is about to dispose of the whole or any part of the property;
2) REMOVAL OUT OF JURISDICTION:
- is about to remove the whole or any part of his property from the local limits of the jurisdiction;
3) INTENTION TO OBSTRUCT:
- is doing that for intention to obstruct or delay execution of any order that may be made against him.

Question 13

ATTACHMENT BEFORE JUDGMENT

Order of court & its effect

Answer 13

S.20:

• the order will direct the property of the D to be seized or attached as a security for P’s claim until trial or satisfaction of the judgment.
• H/ever, it will NOT make P as a priority creditor.
• D can apply to release the property upon any terms the Court may think just.

Question 14

ATTACHMENT BEFORE JUDGMENT

Relief for wrong attachment

Answer 14

S.23:

• An award for compensation against the P, not exceeding RM1000 as it deems reasonable.

Question 15

ATTACHMENT BEFORE JUDGMENT

Setting-aside order

Answer 15

Nanyang Development (1966) Sdn Bhd v Malaysian Armed Forces Co-operatives Housing Society Ltd:

• Order can be set-aside if it can be shown that the P has suppressed any material facts.
• Order cannot be set-aside merely because the order is defective;
• Appellate courts will cure the defect by providing the right order to correct the defect under S.69(4) & 72 CJA.