Chapter 4 - Setting-aside Bankruptcy Notice

Question 1

SETTING-ASIDE BANKRUPTCY NOTICE

Overview

Answer 1

1) General procedures
2) Setting-aside bankruptcy notice - general procedures
3) Setting-aside on the ground of set-off, counterclaim or cross-demand
4) Setting-aside on other grounds
5) Effect of wrong mode of application

Question 2

SETTING-ASIDE BANKRUPTCY NOTICE

General procedures

Answer 2

1) Grounds of set-off, counterclaim or cross-demand:
- r.93
2) Other grounds
- r.17

Question 3

SETTING-ASIDE BANKRUPTCY NOTICE

General procedures

Answer 3

P Mukundan PK Kunchu Kurup & Ors v Daniel Anthony:

• grounds of set-off, counterclaim or cross-demand: filing an affidavit under r.93 & be taken within 7 days of the service of BN.
• other grounds: application under r.17.

Question 4

SETTING-ASIDE BANKRUPTCY NOTICE

Grounds of set-off, counterclaim or cross-demand

OVERVIEW

Answer 4

1) Procedures

2) Affidavit requirements

Question 5

SETTING-ASIDE BANKRUPTCY NOTICE

Grounds of set-off, counterclaim or cross-demand

PROCEDURES

Answer 5

r.93:

• time: within 7 days of the service of BN;
• mode: affidavit which operates as an application;
• hearing date: notice of hearing to debtor & creditor not less than 3 days.

Question 6

SETTING-ASIDE BANKRUPTCY NOTICE

Grounds of set-off, counterclaim or cross-demand

AFFIDAVIT REQUIREMENTS

Answer 6

Datuk Lim Kheng Kim v Malayan Banking Bhd:

• Affidavit filed under r.93 must satisfy the court that he has counterclaim, set-off or cross-demand which equal or exceeds the claim in BN;
• if the affidavit contains other grounds, formal application by motion supported by affidavit must be made under r.17.

Question 7

SETTING-ASIDE BANKRUPTCY NOTICE

Other grounds

OVERVIEW

Answer 7

1) Procedures

2) Examples of other grounds

Question 8

SETTING-ASIDE BANKRUPTCY NOTICE

Other grounds

PROCEDURES

Answer 8

r.17:

• Mode: summons in chambers
• Affidavit: supporting affidavit

Question 9

SETTING-ASIDE BANKRUPTCY NOTICE

Other grounds

EXAMPLES OF OTHER GROUNDS

Answer 9

Datuk Lim Kheng Kim v Malayan Banking Bhd:

• the debtor is denying & disputing the sum indebted.

Question 10

EFFECT OF WRONG MODE OF APPLICATION

Answer 10

Datuk Lim Kheng Kim v Malayan Banking Bhd:

• if wrong mode is used, there was no effective & valid application by the JD.
• the application by JD is therefore ineffective and bad in law.