Chapter 3 - Bankruptcy Notice Flashcards
BANKRUPTCY NOTICE
Overview
1) Contents of BN
2) Conditions for issuance of BN
3) Procedures for issuance of BN
4) Service of BN
CONTENTS OF BN
Overview
1) Particulars
2) Endorsement
3) Liquidated sum
4) Interest
CONTENTS OF BN
Particulars
Bankruptcy notice:
- Form 34, page 238
Goh Wee Peng v Standard Chartered:
- BN should contained particulars of the sum claimed;
- The sum is referred to the statements of accounts attached.
CONTENTS OF BN
Endorsement
S.92 IR
CONTENTS OF BN
Liquidated sum
Re Ismail bin Daud & Hajah Qameriah:
- Sum must be liquidated sum;
- Interest must be properly quantified;
- Any ambiguity will invalidate BN.
CONTENTS OF BN
Interest - time for calculation
Moscow Narodny Bank Ltd v Ngan Ching Wen:
- amount of interest must be only for 6 years;
- 6 years is calculated from the date of the judgment.
CONTENTS OF BN
Interest - failure to quantify
CA, 2018
P Mukundan PK Kunchu Kurup v Daniel Anthony:
- the judgment did not quantify the interest & the costs, which in fact cannot be quantified at all;
- but at the date BN was issued, the interest was capable of quantification & JC did in fact quantify it;
- the amount demanded from the judgment in the BN was thus correctly quantified, capable of execution & in accordance with the judgment.
CONDITIONS FOR ISSUANCE OF BN
Overview
1) Founded upon final judgment
2) Cannot be founded on two judgment
3) Jointly liable debtor
4) Leave for judgment over 6 years
5) Order for JD summons
CONDITIONS FOR ISSUANCE OF BN
Founded upon final judgment - meaning of final judgment
1) Trite - Re Udos Al Rigging v Seabanc Kredit Sdn Bhd:
- Debtor has exhausted all his remedies permitted in law.
2) Recent - P Mukundan PK Kunchu Kurup v Daniel Anthony (CA, 2018)
- Judgment is final when it has stated the interest rate & the time it starts to run and end.
- The judgment has also disposed all the rights of JC & JD.
CONDITIONS FOR ISSUANCE OF BN
Founded upon final judgment - judgment pending appeal
Jacob Robindranath M Krishnan v GP Autobat Sdn Bhd:
- JC is entitled to issue BN although the judgment is pending appeal;
- This is so when the application of stay has been refused in all courts.
- i.e. judgment pending appeal is a final judgment.
CONDITIONS FOR ISSUANCE OF BN
Founded upon final judgment - order for specific performance
Re Eng Poh Hong, Ex P MBF Leasing Sdn Bhd:
- Order for SP is not a final judgment, as it is not an order to pay a judgment debt.
CONDITIONS FOR ISSUANCE OF BN
Founded upon final judgment - consent judgment
Datuk Mohd Sari v Norwich Wintherthur Insurance:
- Consent judgment is not a final judgment.
CONDITIONS FOR ISSUANCE OF BN
Founded upon final judgment - allocatur
Khoo Kau Hoe v Chor Phaik Har:
- What is an allocatur: certificate of taxing master as to costs allowed.
- Whether it is a final judgment: allocatur is a final judgment, thus BN issued upon it is valid.
CONDITIONS FOR ISSUANCE OF BN
Cannot be founded on two judgments
r. 89(2):
- creditor is not entitled to apply for BN by combining two judgment.
Re Chen Chong Fatt Willy, Ex P Hitachi Lease:
- BN cannot be founded on two judgment;
- two judgments cannot be combined to meet the minimum statutory amount.
CONDITIONS FOR ISSUANCE OF BN
Jointly liable judgment debtor
1) The law - r.89(3):
- creditor is not entitled to apply for the issue of a BN against joint debtors unless they had carried on a business jointly.
- separate bankruptcy notice must be issued against each debtor in the final judgments.
2) Trite - Yeo Ah Wang v UMBC:
- BN must be issued separately for each & every liable judgment debtor.
3) Recent - Sumathy Subramaniam v Subramaniam Gunasegaran (CA, 2018):
- When BN is issued against a few liable JD & the judgment did not specify whether they are jointly or severely liable, the liability is necessarily joint.
- The JC has the right to enforce only half of the judgment sum against each JD.
CONDITIONS FOR ISSUANCE OF BN
Leave of court for judgment over 6 years
Dr. Shamsul Bahar v RHB Bank Bhd:
- leave is required for judgment over 6 years.
CONDITIONS FOR ISSUANCE OF BN
Order for JD summons
Mohd Kamal Omar v UoB (Malaysia) Bhd:
- Order for JD summons will bar the presentation of a BN founded on the same judgment.
- Execution under Debtors Act did not extend to bankruptcy proceedings.
PROCEDURES FOR ISSUANCE OF BN
Overview
1) What court to issue
2) Application for issuance of BN
PROCEDURES FOR ISSUANCE OF BN
What court to issue
r. 89:
- BN shall be issued by the court in which a bankruptcy petition may subsequently be heard.
PROCEDURES FOR ISSUANCE OF BN
Application for issuance
r.90:
- creditor shall produce & file as specified in the rules.
- failure to comply with the requirements of the rule will move the court to reject the application, per r.90(2)
PROCEDURES FOR ISSUANCE OF BN
Effect of non-compliance with the rules for issuance
HC, 2020
RE CHUA LIANG HONG; EX P: KUALA EXCEL SDN BHD
- If the non-compliance cannot mislead, prejudice or cause any injustice to the judgment debtor, the bankruptcy notice cannot be invalidated on the ground of such error per se.
SERVICE OF BN
Overview
1) When to serve
2) To whom to serve
SERVICE OF BN
When to serve - time limited to serve
r. 94:
- BN must be served within 3 months
SERVICE OF BN
When to serve - extension of time
S.93(4) IA:
- court may extend time as it sees fit.
