Chapter 38 - Enforcement of Judgment Flashcards

Question 1

Q

ENFORCEMENT OF JUDGMENT

Overview

Answer

A

1) Time limited to enforce
2) Writs of execution
3) Writ of seizure & sale of moveable property
4) Writ of seizure of immoveable property
5) Garnishee proceedings
6) Judgment debtor examination
7) Judgment debtor summons
8) Charging order
9) Equitable execution
10) Writ of possession
11) Writ of delivery
12) Committal
13) Enforcement against government
14) Other modes of enforcement

Question 2

Q

TIME LIMITED TO ENFORCE

Overview

Answer

A

1) General limitation

2) Specific limitation

Question 3

Q

TIME LIMITED TO ENFORCE

General limitation

Answer

A

1) Action upon any judgment - S.6(3) LA:

An action upon any judgment shall not be brought after the expiration of 12 years from the date on which the judgment became enforceable;
No arrears of interest in respect of any judgment debt shall be recovered after the expiration of 6 years from the date on which the interest became due.

2) Meaning of action - United Malayan Banking Corp Berhad v Ernest Cheong Yong Yin & Gee Boon Kee v Tan Pok Shyong:
- action under S.6(3) means fresh action.

Question 4

Q

TIME LIMITED TO ENFORCE

Specific limitation

Answer

A

1) By way of writ of execution - Limitation - O.46, r.2:
- 6 years & leave must be obtained thereafter.
2) Bankruptcy proceedings:
i) Whether leave is required after 6 years:

Dr. Shamsul Bahar bin Abdul Kadir v RHB Bank:

a judgment creditor who commences bankruptcy proceedings after more than 6 years have lapsed must obtain the prior leave of court.

Amfraser Securities Pte Ltd v Poh Gaik Lye (FC, 2016):

If when the bankruptcy notice is issued, the judgment was more than six years old, then the judgment creditor is not in a position to execute the judgment without the prior leave of court.
In such a case, leave must be obtained.

Question 5

Q

WRITS OF EXECUTION

Overview

Answer

A

1) Meaning of writ of execution
2) Meaning of execution
3) Setting-aside writ of execution

Question 6

Q

WRITS OF EXECUTION

Meaning of writ of execution

Answer

A

Malayan Nurses Union v Syarikat Perniagaan Cuepacs Bhd (CA, 2011):

A “writ of execution” is broadly defined to include a writ of seizure and sale, a writ of possession and a writ of delivery, and in our view, should include an order of specific performance.

Question 7

Q

WRITS OF EXECUTION

Meaning of execution

Answer

A

Re Overseas Aviation Engineering (GB) Ltd:

Execution means the process of enforcing or giving effect to the judgment of the court;
Execution is completed when the judgment creditor gets the money or other thing awarded to him by the judgment.

Question 8

Q

WRITS OF EXECUTION

Setting-aside writ of execution

Answer

A

Krishnamurthi Manogaran v Trans Island Bus Services:

A writ of execution may be set aside if it is irregular, wrongly issued or payment of the judgment sum has been made.
The judgment debtor may be able to recover costs reasonably incurred in properly resisting execution.

Question 9

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

Overview

Answer

A

1) What
2) General
3) Items not liable to be seized
4) The doctrine of harta sepencarian
5) Remedy of wrongful seizure
6) Procedures to execute WSS moveable property
7) Duties of sheriff / bailiff
8) Sale by auction

Question 10

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

What

Answer

A

command the Court sheriff/bailiff to seize and sell off the property of the debtor to satisfy the judgment sum due.
The satisfaction of the debt is done through an auction of the seized items in which proceeds will be channeled to the judgment creditor.
claimants cannot seize everything on the debtor’s premise as certain items are prohibited from being attached pursuant to S.3 Debtors Act 1957.
These includes essential life items such as clothes and cooking vessels, pension, gratuity or allowance by the government, wages of the debtor and etc.

Question 11

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

General

Answer

A

1) Jurisdiction to issue:

S.25(2) CJA, Para. 9 Schedule;
O.46

2) When suitable:
- O.45, r.1(a): Judgment for payment of money
3) Form of writ: O.45, r.12

High Court: Form 84
Subordinate Court: Form 84A

4) Orders on WSS:
- O.47

Question 12

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

Items not liable to be seized

Answer

A

1) the law:

S.3 DA

2) Chattels owned by 2 persons - Farrar v Beswick:

where 2 persons own chattels as co-owners, each is entitled to possession and to sell without consent of the other.
A writ of seizure and sale may be levied against a judgment debtor as co-owner.
In the event of the sheriff interpleading, the court could order division of the proceeds of the sale between the judgment debtor and the co-owner claimant.

Question 13

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

The doctrine of harta sepencarian

Answer

A

1) Overseas Investment Pte Ltd v Anthony William O’Brien:

If there is no clear evidence that the goods belong exclusively to one or the other, the proper conclusion on the basis of the adat is that it belongs to both of them.
S.76 of the Law Reform (Marriage & Divorce) Act 1976 enunciates the same principle in relation to non-Muslim spouses.

2) Tan Haji Mustapha Kamal bin Haji Abu Bakar v Abdul kadir bin Endut:

The doctrine is only invokable upon divorce;
However, on the facts of the case, the wife of the judgment debtor filed a Notice of Claim and managed to prove, on balance, that some of the goods were hers and not that of the judgement debtor’s.
Further, the judgment creditor did not lay any foundation for any presumptive ownership in the judgment debtor for the goods seized.

Question 14

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

Remedy of wrongful seizure

Answer

A

A party at whose instance seizure is levied may be liable for damages and trespass in the event it is found that he is not entitled to levy such seizure.

Question 15

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

Procedures to execute WSS of moveable property

Question 16

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

Duties of sheriff or bailiff

Answer

A

O.46, r.14-21

Question 17

Q

WRIT OF SEIZURE & SALE OF MOVEABLE PROPERTY

Sale by auction

Answer

A

O.46, r.22 & 23

Question 18

Q

WRIT OF SEIZURE OF IMMOVEABLE PROPERTY

Overview

Answer

A

1) What
2) The rule
3) Prohibitory order
4) Procedures for execution of writ of seizure of immoveable property

Question 19

Q

WRIT OF SEIZURE OF IMMOVEABLE PROPERTY

What

Answer

A

WS of immoveable property commands the Court sheriff/bailiff to seize and sell off the property of the debtor to satisfy the judgment sum due.
The satisfaction of the debt is done through an auction of the seized items in which proceeds will be channeled to the judgment creditor.

Question 20

Q

WRIT OF SEIZURE OF IMMOVEABLE PROPERTY

The basics

Answer

A

1) Jurisdiction to grant:

O.46;
S.25(2) CJA, Schedule 9

2) When suitable:
- O.45, r.1(a): To satisfy judgment for payment of money.
3) Form of WSS - O.45, r.12:

High Court: Form 84
Subordinate Court: Form 84A

4) Orders on WSS:
- O.47

Question 21

Q

WRIT OF SEIZURE OF IMMOVEABLE PROPERTY

Prohibitory order

Answer

A

1) The law:

S.334 NLC

2) Meaning of PO:
- an order made by a court of prohibiting the judgment-debtor from effecting any dealing therewith or from effecting such dealing therewith as may be specified in the order.
3) Jurisdiction to grant P.O:
- S.69(2) SCA.
4) Which court - Peh Wee Lee v Pendaftar Hakmilik Negeri Sembilan (CA):

Sessions Court has no jurisdiction to issue a prohibitory order.
The CA held that the word “court” in S.334 of the NLC means the “High Court”.

5) Whether WSS needs to be taken out with or before issuance of PO - Keystart Sdn Bhd v Forgetech Sdn Bhd:
- there is no necessity for a WSS to be taken out simultaneously with or before the issuance of a prohibitory order.
6) Procedures to apply for PO - O.47, r.6:

Mode:
Registration:
Lifespan:
Extension:

Question 22

Q

WRIT OF SEIZURE OF IMMOVEABLE PROPERTY

Procedures for execution of writ of seizure of immoveable property

Question 23

Q

GARNISHEE PROCEEDINGS

Overview

Answer

A

1) What
2) The rule
3) Who is garnishee
4) Where is garnishee
5) Meaning of “any debt accruing or due”
6) Exercise of discretion
7) Procedures
8) Disputing liability
9) Issues on garnishee

Question 24

Q

GARNISHEE PROCEEDINGS

What

Answer

A

Application will seek a court order to direct the debtor’s banks to attach whatever amount is in the debtor’s bank account to have it satisfy the judgment debt owed to the judgment creditor.
During the first stage of the proceedings, the judgment creditor may obtain an order that will attach/freeze the debtors’ bank accounts until the second stage.
During the second stage, the court will make an order for the bank to remit the monies in the debtor’s account to the judgment creditor, to satisfy the judgment.

Question 25

Q

GARNISHEE PROCEEDINGS

The basics

Answer

A

1) When suitable:
- O.45, r.1
2) The rules regarding garnishee:
- O.49

Question 26

Q

GARNISHEE PROCEEDINGS

Who is garnishee

Answer

A

O.49, r.1(1):

A garnishee is some other person (a third party) who has a debt payable to the judgment debtor.
Through this method, a court order is obtained for this debt to be paid by the third party to the judgment creditor.
If the garnishee, with knowledge that the debt / money has been attached by the court, dispose of the same, he may be held in contempt of court.

Question 27

Q

GARNISHEE PROCEEDINGS

Where is garnishee

Answer

A

O.49, r.1(1):

The garnishee must be within the jurisdiction.
This process of attachment can only be made against persons of sufficient connection within jurisdiction.

Question 28

Q

GARNISHEE PROCEEDINGS

Meaning of “any debt accruing or due”

Answer

A

1) The law:
- O.49, r.1(3)
2) General:
- any debt due or accruing due’ must be an actionable debt at the time of the application for a garnishee order.
3) Exclude loan that has not became payable - Saw Swan Kee v Sim Lim Finance (M) Bhd:
- Actionable debt excludes a loan that has not become payable / recoverable.
4) Exclude pre-judgment interest - Cedar Trading Sdn Bhd v Dong Ah Construction Industrial Co Ltd:
- Actionable debt excludes pre-judgment interest that was not awarded in the default judgment

5) Equitably assigned debt - RHB Bank Bhd v Malaysian International Trading Corporation (CA, 2014 & FC, 2016):
a garnishee cannot attach a debt which had been equitably assigned.
It is simply based on the principle that the judgment debtor cannot give what he has not got.

Question 29

Q

GARNISHEE PROCEEDINGS

Exercise of discretion

Answer

A

1) Subject to a number of considerations - Prithchard v Westminister Bank Ltd:

Amongst the considerations is whether it would prejudice the other creditors of the judgment debtor.
The general principle is that when there is no insolvency, the person who gets in, gets the fruits of his diligence.
When the estate is insolvent, all debts existing at the date of death are to be paid pari passu.
The executors must pay all the creditors equally and rateably.
The court will not allow one creditor, however diligent he may be, to get an advantage over the others by getting in first with a garnishee order.

2) Position of the parties - D (Wilson) Birmingham Ltd v Metropolitan Property Developments Ltd:
- The court must bear in mind not only the position of the judgment creditor, the judgment debtor and the garnishee, but also the position of other creditors of the judgment debtor.

Question 30

Q

GARNISHEE PROCEEDINGS

Procedures

Answer

A

1) Stage 1: O.49, r.1 &2

2) Stage 2: O.49, r.4 &5

Question 31

Q

GARNISHEE PROCEEDINGS

Disputing liability

Answer

A

1) Example of disputing liability - Hale v Victoria Plumbing Co Ltd:
- the garnishee have his own claim against the judgment debtor which would extinguish or diminish his liability to the latter.
2) Trial of issue - Pembinaan HT Jaya Sdn Bhd v Lembah Klang Lanskap Sdn Bhd:
- In the event the garnishee disputes his liability to pay the debt, the court has no choice but to determine the matter summarily or order that the matter be “tried in any manner in which any question or issue in an action may be tried”.

Question 32

Q

GARNISHEE PROCEEDINGS

Issues on garnishee

Answer

A

1) Set-off by garnishee against garnisher/judgment debtor:

Sampson v Seaton Railway Co:

Garnishee cannot set-off debt owing to him by garnisher (i.e. judgment creditor)
2) Set-off by garnishee against judgment debtor:

Saw Swan Kee v Sim Lim Finance:
- Garnishee can avail himself of a set-off against judgment debtor.

3) Claims of third person:
O.49, r.6:

Abdul Samad v Public Bank:

intervener cannot set aside an order absolute.

Question 33

Q

GARNISHEE PROCEEDINGS

Money payable by Government

Answer

A

1) The law - S.35 GPA:
- Under S.35, money can be attached only with the consent of the Minister of Finance, in the case of the Federal Government, or the Chief Minister in the case of a State Government.
2) Scope - Shukeriah Binti Abas v Ketua Setiausaha Perbendaharaan Kementerian Kewangan Malaysia:
- a plaintiff may file the garnishee (type) action first and later obtain the consent of the Government via the normal channels of communication, and then have the consent produced.
3) Procedures: O.73, r.13

Question 34

Q

JUDGMENT DEBTOR EXAMINATION

Overview

Answer

A

1) Object of examination

2) The law on examination of judgment debtor

Question 35

Q

JUDGMENT DEBTOR EXAMINATION

Object of examination

Answer

A

United Overseas Bank v Thye Nam Loong (S):

‘Examination’ is not only intended to be an examination, but to be a cross- examination, and that of the severest kind.
Thus, the judgment creditor or his advocate should be knowledgeable and equipped with sufficient material in order to effectively contradict any false responses to their questions.

Question 36

Q

JUDGMENT DEBTOR EXAMINATION

The law on examination of judgment debtor

Answer

A

1) Procedures: O.48, r.1
2) Power of court: O.48, r.2
3) Duty of Registrar: O.48, r.3

Question 37

Q

JUDGMENT DEBTOR SUMMONS

Overview

Answer

A

1) What
2) The law
3) Procedures
4) Orders that the court may make
5) Failure to attend or default of payment

Question 38

Q

JUDGMENT DEBTOR SUMMONS

What

Answer

A

An application which can be utilized for discovery of information on the assets of the judgment debtor.
The debtor will be called to appear in front of the Court to disclose his assets and financial means.
At the end of the discovery process, the Court can order the debtor to pay the judgment either in one-lump sum or instalments.
If the debtor fails to comply with the payment schedule set by the Court, he can be summoned to court again to show cause why he should not be imprisoned.

Question 39

Q

JUDGMENT DEBTOR SUMMONS

The law

Answer

A

S.4 Debtors Act

Question 40

Q

JUDGMENT DEBTOR SUMMONS

Procedures

Answer

A

1) Overview:
- O.74, r.11A-D

2)

Question 41

Q

JUDGMENT DEBTOR SUMMONS

Orders that the court may make

Answer

A

S.4(6) DA:

the court may order the judgment debtor to pay the judgment debt either:
in one sum whether forthwith or within such period as the court may fix; or
by such instalments payable at such times as the court may fix.

Question 42

Q

JUDGMENT DEBTOR SUMMONS

Failure to attend & default of payment

Answer

A

1) Absence - S.4(5) DA:
- If judgment debtor fails to attend court, he may be arrested and brought before court for the examination.
2) Default payment - S.4(7) DA:
- in the event of default of payment, notice may be issued for him to come to court and show cause why he should not be committed to prison for such default.

Question 43

Q

CHARGING ORDER

Overview

Answer

A

1) What
2) The law
3) What securities liable for charging order
4) Procedures
5) Mode of enforcement
6) Injunction ancillary to charging order
7) Effect of charging order

Question 44

Q

CHARGING ORDER

What

Answer

A

order made by the Court in respect of securities to which the judgment debtor is beneficially entitled to.
A judgment creditor may apply to Court for a charging order to impose a charge on securities (eg: shares, bonds, dividends) owned by the judgment debtor.
The process is a two stage process similar to that in garnishee proceedings.
During the first stage, the Court will grant an order to prevent the transfer / disposition of the securities.
During the second stage, the Court will make the order absolute unless there are sufficient reasons to the contrary.
The judgment creditor may then enforce the charge by selling the securities (but only after 6 months from the date of the order granted in the first stage).

Question 45

Q

CHARGING ORDER

The law

Question 46

Q

CHARGING ORDER

What securities

Answer

A

O.50, r.2(3):

any Govt stock, and any stock of any company registered, including stock standing in the name of the Accountant General;
any dividend of or interest payable on such stock.

Question 47

Q

CHARGING ORDER

Procedures

Answer

A

First stage: show cause

O.50, r.3, 4, 5

Second stage: order absolute

O.50, r.6

Question 48

Q

CHARGING ORDER

Mode of enforcement

Answer

A

1) General - Leggot v Western:
- Enforcement of an order absolute is by way of instituting separate proceedings for the sale for the stocks or interests, since the charging order is not an order for sale.
2) Exercise of discretion - Roberts Petroleum Ltd v Bernard Kenny Ltd (In Liquidation):

In general there is no material difference between the making of a charging order nisi and a garnishee order nisi;
The burden of showing cause why a charging order should not be made absolute rests upon the judgment debtor;
In exercising its discretion the court has both the right and duty to take into account all the circumstances of the particular case, whether such circumstances arose before or after the making of the order nisi;
The court should exercise its discretion as to do equity, as far as possible, to all the various parties involved, that is to say, the judgment creditor, the judgment debtor and all other unsecured creditors.

3) Refusal to make order absolute - Rainbow v Moorgate Properties Ltd:
- The court may also refuse to make the order absolute where to do so would give the plaintiff priority over unsecured creditors of a defendant who is probably insolvent.

Question 49

Q

CHARGING ORDER

Injunction ancillary to CO

Answer

A

O.50, r.9:

granted where it is necessary to prevent the property or stock being dealt with before the hearing of the application for the order to be made absolute.
The supporting affidavit for such injunction should:

1) set out clearly and adequately the relevant facts and circumstances to show a risk / danger that the property or stock will be dealt with before the making of the order nisi absolute; and
2) usual undertaking as to damages.

Question 50

Q

CHARGING ORDER

Effect of CO

Answer

A

O.50, r.10 - 14

Question 51

Q

EQUITABLE EXECUTION

Overview

Answer

A

1) Meaning
2) Scope
3) Examples where it may apply
4) Procedures

Question 52

Q

EQUITABLE EXECUTION

Meaning

Answer

A

1) What:
- Equitable execution is a means of enforcing the rights of the judgment creditor against the property of the judgment debtor where such property cannot be executed upon by the normal legal means.
2) How effected:
- by the appointment of a receiver to receive the income from judgment debtor’s property and pay it to judgment creditor.

Question 53

Q

EQUITABLE EXECUTION

Scope

Answer

A

Wai Seng Leng v Chiat Singh:

Not execution in the strict sense of the word.
It is a mode of relief that has the effect of execution.

Question 54

Q

EQUITABLE EXECUTION

Examples where it may apply

Answer

A

Garnishee proceedings not available because the garnishee is not within the jurisdiction or the debt by the garnishee is not accrued to the judgment debtor yet; or
legal requirements are not met; or
interest owed by the judgment debtor is in trust;

Question 55

Q

EQUITABLE EXECUTION

Procedures

Answer

A

1) The law:

O.30, r.1

2) Order for appointment: O.51, r.1
3) Appointment of receiver: O.30

4) Considerations for
appointment - The Manchester & Liverpool District Banking v Parkinson:

In deciding whether to allow appointment of a receiver, the court will consider whether there are impediments to the ordinary processes of execution.
If legal execution is available, recourse should be made to such legal execution and it will not be appropriate for equitable execution to be levied.

5) Effect of appointment:

It does not create a charge over the property in favour of the judgment creditor;
It operates as an injunction to prevent the judgment debtor from receiving and dealing with money from the property.

Question 56

Q

WRITS OF POSSESSION

Overview

Answer

A

1) What
2) Law & scope
3) Difference WP & forfeiture under NLC
4) Procedures

Question 57

Q

WRITS OF POSSESSION

What

Answer

A

Exclusively for judgment involving immovable properties.
It directs a court sheriff/bailiff to enter and take possession of the debtor’s property.
The seized property will then be auctioned off to satisfy the judgment debt.
The application can also include a provision to enforce payment of certain monies due from rental arrears and legal costs.

Question 58

Q

WRITS OF POSSESSION

Law & scope

Answer

A

1) When suitable:

O.45, r.3

2) Scope - Leong Ah Weng v Neoh Thean Soo:
- prescribes that a judgment or order for the giving of possession of immovable property may be enforced by a writ of possession.
3) Rules on writs of possession:
- General writs of execution: O.46
4) Execution of writ of possession - O.46, r.15:
- shall be executed between 9 am to 4 pm.

Question 59

Q

WRITS OF POSSESSION

Difference with forfeiture under NLC

Answer

A

Mas Anita Abdullah v Lew Wai Koung (CA, 2014):

S.234 of the NLC spoke about enforcement of ‘forfeiture’ and not the enforcement of a judgment or order.
S.234(2) of the NLC envisages
two situations for forfeiture, namely:
(a) the ‘by re-entry onto the land’ situation; and
(b) the ‘by action in the court’ situation.
when a landlord has chosen course (b) (i.e. by obtaining order for vacant possession in the Court), he has to take further step in enforcing his right as procedures below.

Question 60

Q

WRITS OF POSSESSION

Procedures

Answer

A

Mas Anita Abdullah v Lew Wai Koung (CA, 2014):

Relevant laws:

1) S.7(1) SRA - recovery of specific immoveable property:
- a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the law relating to civil procedure.

2) O.45, r.4(1)(a) & r.3(2) -
Manner in which immoveable property may be recovered.

i.e. via writ of possession or an order of committal when rule 5 applies.
Therefore, having obtained an order for vacant possession, applicant has to take the further step of obtaining leave of the court for the issuance of a writ of possession in order to enforce the judgment.
(the house) without a writ of possession issued under O. 45 r. 3(1)(a) and r. 3(2) of the Rules of Court 2012.

Question 61

Q

WRIT OF DELIVERY

The law & scope

Answer

A

1) the law:

O.45, r.4

2) What:

A writ of delivery is for the recovery of movable property or its assessed value where a judgment or order for the delivery of any movable property or payment of their assessed value to the judgment creditor has not been complied with.
It may include provisions for enforcing the payment of any money adjudged or ordered to be paid by the judgment.

Question 62

Q

COMMITTAL

Overview

xx difference between committal & contempts

Answer

A

1) Meaning & nature of contempt
2) Power to punish for contempt
3) Standard of proof in committal proceedings
4) Procedures at committal proceedings - Overview
5) Procedures at committal proceedings - Stage 1
6) Procedures at committal proceedings - Stage 2
7) Effect of non-compliance

Question 63

Q

COMMITTAL

Meaning & nature of contempt

Answer

A

1) Meaning of contempt - Tan Sri Dato’ Dr. Rozali ismail v Lim Pang Cheong (FC, 2012):

Ref. Oswald’s Contempt of Court (3rd edn.) - general definition of contempt:

any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during the litigation.
2) Uthayakumar Ponnusamy v Abdul Wahab Abdul Kassim (CA, 2020):
Contempt of court could be classified into two distinct categories; civil or criminal.
The mere fact that the contempt complained of emanated from a criminal proceedings did not make it a criminal contempt.

Question 64

Q

COMMITTAL

Power to punish for contempt

Answer

A

1) Inherent power to punish for contempt - Tan Sri Dato’ Dr. Rozali ismail v Lim Pang Cheong (FC, 2012):

Re H E Kingdon v. S C Goho:

inherent power to punish for contempt is founded to prevent an undue interference with the administration of justice in the public interest.
2) Power to punish for contempt under statute - Tan Sri Dato’ Dr. Rozali ismail v Lim Pang Cheong (FC, 2012):
Art. 126: empowers the Federal Court, the Court of Appeal and the High Courts to punish any contempt of itself.
S.13 CJA: the procedure under O. 52 of the RHC may be adopted.

Answer 62

A

Tan Sri Dato’ Dr. Rozali ismail v Lim Pang Cheong (FC, 2012):

The standard of proof is beyond reasonable doubt.
As an order for committal involves the taking away of a person’s liberty, every requirement of the law including the procedural rules must be strictly complied with.

Answer 63

A

1) Stage 1 - Ex-parte application for leave
- O.52, r.3
2) Stage 2 - Inter-partes hearing
- O.52, r.4

Answer 64

A

1) Leave - O.52, r.3(2):

Ex parte notice of application;
Statement of name & description of the applicant;
Affidavit on grounds of the committal is sought.

2) Statement of grounds - O.52, r.3(6):
- no grounds shall be relied upon at the hearing except the grounds set out in the statement under rule 3.
3) Effect of granting leave - Foo Khoon Long v Foo Khong Wong:
- The granting leave does not amount to finding of contempt.

Answer 65

A

1) Failure to obtain leave - Lee Heng Moy v Christopher Wong Wai Yee (2011):

Leave of court to issue committal proceedings against any person must be obtained and there must be strict compliance with O. 52, r. 3(2).
When the liberty of an individual is at stake in the context of an application for committal, non-compliance with the rules will occasion a substantial miscarriage & not curable.

2) Non-compliance with the Rules - Uthayakumar Ponnusamy v Abdul Wahab Abdul Kassim (CA, 2020):

When applying for leave to commence committal proceedings, failure to file the statement in support of the leave application, as mandatorily required under O. 52 r. 3(2) is fatal;
When application for leave is already flawed, the very initiation process was flawed beyond redemption, and the substantive application flowing from it was equally beyond repair.

Answer 66

A

1) Notice of application - O.52, r.4(1):

Upon obtaining leave, the Applicant is obligated to file a further Notice of Application for an order of committal;
If this Notice of Application is not filed within 14 days, the Order granting leave shall lapse.

2) Service of NoA - O.52, r.4(3):
- The Notice of Application, Statement and Affidavit in Support must then be personally served on the Proposed Contemnors.
3) Hearing - Dato’ Seri Timor Shah Rafiq v Nautilus Tug & Towage (2019):
- At the inter-partes hearing, the burden will lie on the Applicant to convince the Judge, beyond the standard of a reasonable doubt, that the Proposed Contemnors have committed a contempt of Court.
4) Hearing - Tan Sri Dato’ Dr. Rozali ismail v Lim Pang Cheong (FC, 2012):
- The standard of proof is beyond reasonable doubt.

Answer 67

A

1) Strict compliance is necessary - Tan Sri Dato’ Dr. Rozali ismail v Lim Pang Cheong (FC, 2012):
- As an order for committal involves the taking away of a person’s liberty, every requirement of the law including the procedural rules must be strictly complied with.
2) Effect of non-compliance - Uthayakumar Ponnusamy v Abdul Wahab Abdul Kassim (CA, 2020):

When applying for leave to commence committal proceedings, failure to file the statement in support of the leave application, as mandatorily required under O. 52 r. 3(2) is fatal;
When application for leave is already flawed, it would mean that the very initiation process was flawed beyond redemption;
The substantive application flowing from it was equally beyond repair.

Answer 68

A

1) Who is government
2) Enforcement against government - non-allowed procedures
3) Enforcement against government - allowed procedures
4) Procedures for execution against government
5) Attachment of debt against government

Answer 69

A

1) O.1, r.4:
- Federal Government or the State Government.
2) Padu Ehsan Sdn Bhd v Binaan Johanesa Sdn Bhd:

it was held that S.2 of the Act refers to the Federal Government and the Government of the States.
It does not include statutory bodies established under either Federal or State laws.

Answer 70

A

1) O.73, r.12:
- Nothing in O.45 - 52 shall apply against Government.
2) S.33(4) GPA:

no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any such money or costs.
no person shall be individually liable under any order for the payment by the Government or any officer of the Government.

Answer 71

A

Minister of Finance, Govt of Sabah v Petrojasa Sdn Bhd:

The only procedure allowed is that provided by the Government Proceedings Act 1956, under S.33.

Answer 72

A

S.33 GPA

1) Application of certificate: O.73, r.12
2) Service of certificate: S.33(2) GPA
3) Payment of judgment sum: S.33(3) GPA

Answer 73

A

1) Consent - S.35 GPA:
- written consent from Minister of Finance or Chief Minister is required before order is made.
2) Scope of consent - Shukeriah binti Abas v Ketua Setiausaha Perbendaharaan Kementerian Kewangan Malaysia:
- a plaintiff may file the garnishee (type) action first and later obtain the consent of the Government via the normal channels of communication, and then have the consent produced.
3) Procedures: O.73, r.13

Answer 74

A

1) Writ of distress

2) Insolvency proceedings

Answer 75

A

1) Relevant laws:
- Distress Act 1951 read together with section 7 Specific Relief Act 1950 and O.75.
2) Pre-requisite:
- Relationship of landlord and tenant must exist, both when the rent becomes due and when the distress is levied and the rent must be in arrears.
2) Procedures:

The application is made vide ex parte notice of application supported by an affidavit (affirmed by either landlord or his duly authorised agent).
The writ of distress need not be served on the tenant.
Instead, it is addressed to the bailiff for execution and the entire process is carried out ex parte.
The element of surprise is expected because if the order is made known, the execution might not be fruitful.

What is distress action?

Where a tenant does not pay rent, the landlord may apply for a writ of distress which is a court order to direct the bailiff or sheriff to distrain the movable properties of the tenant and sell it to recover the rental arrears. ‘Distrain’ in law means to seize someone’s property in order to obtain payment of rent or other money owed.

How much is the rental arrears claimable?

Section 5(1) of the DA says that landlord may only claim up to twelve (12) completed months of the outstanding rentals, immediately preceding the date of application to a Judge or Registrar for the issue of a warrant of distress.

Other than rental arrears, what else can be recovered?

First of all, the landlord must be certain of the rental amount due, the best is to look at the tenancy agreement signed in between the landlord and tenant.
It is also the law that the writ of distress shall allow distrain of any movable property of the tenant which will be sufficient, when sold, to realize the amount of rent therein stated to be due to the landlord, together with such costs of the landlord and the bailiff’s fees and expenses.

Which court to go?

A landlord can either commence the action in Magistrates’ court should the total claim amount does not exceed RM100,000 or in Sessions Court should the claim amount is more than RM100,000. The Sessions Court has unlimited jurisdiction to try all distress actions under Section 65(1)(a) of the Subordinate Court Act 1948.

What are the procedures?

Basically, the landlord may engage a lawyer to start to issue a letter of demand to the tenant for outstanding rentals failing which will result in Writ of Distress being issued against the tenant.
A writ of distress directs the bailiff to enter, seize and sale the movable properties of the tenant and in a case of deserted premises, the bailiff may enter by using reasonable force.

After seizing any property, the bailiff shall prepare an inventory list and an approximate valuation thereof. Thereafter, the bailiff will serve on the tenant a notice of seizure together with a copy of the inventory list at a time and place named therein, which shall be after a minimum period of six (6) days at least from the date of the notice.

As soon as the amount due under the writ of distress has been recovered by the sale of the properties seized, the balance will release and return to the tenant.

Is there any restriction on what properties are seizable?

Yes. Firstly, there are restrictions imposed under Section 7 of the DA that the bailiff can only seize movable properties of such approximate value to rental arrears. Secondly, the bailiff cannot seize the tenant’s clothing, tools, and equipment to be used in his trade as well as properties not belonging to the tenant.

Conclusion

A distress action is procedural in nature, efficient and less time-consuming in recovering rental arrears. However, it cannot help the landlord in recovering the premises unless the premises has deserted or abandoned by the tenant.

It is hoped that the Residential Rent Act proposed under the Malaysian Budget 2018 will address the legal needs of the landlords who run into problems with their tenants to provide for a quick solution out of this dispute.

Answer 76

A

1) Requirements:

Debt threshold;
Procedural requirements.

2) Winding up proceeding:

“liquidation”, when a company cannot pay its debt.
there are two types of winding up, i.e. by the court and voluntarily.
The most common ground in which the company may be wound up by the court is where the company is unable to pay its debt.
Voluntary winding up can be divided into 2 categories, namely members’ voluntary winding up and creditors’ voluntary winding up.

3) Bankruptcy:

Bankruptcy proceedings may be commenced if the judgment debtor has not complied with the judgment or order made against him.
The debtor could be debt to individuals or companies.

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