Chapter 9 - Post-Adjudication Proceedings & Composition or Scheme of Arrangement Flashcards
POST-ADJUDICATION PROCEEDINGS
Overview
1) The law overview
2) Proof of debts
3) Statement of affairs
4) Public examination
POST-ADJUDICATION PROCEEDINGS
The law overview
Post-adjudication proceedings, inter alia:
S.15 - meeting of creditors
S.16 - statement of affairs
S.17 - public examination
S.42 - proof of debts
POST-ADJUDICATION PROCEEDINGS
Meeting of creditors - the law
S.15
POST-ADJUDICATION PROCEEDINGS
Meeting of creditors - application
Re Mat Shah Safuan; ex parte United Asian Bank Bhd:
- a general meeting of creditors will be held under s. 15(1) of the Act for the purpose of considering whether a proposal for a composition or scheme of arrangement shall be entertained.
POST-ADJUDICATION PROCEEDINGS
Statement of affairs - the law
S.16
POST-ADJUDICATION PROCEEDINGS
Statement of affairs - application
Lim Tee Keong v HLG Securities Sdn Bhd (CA, 2014):
- the requirement under S.16 is mandatory.
- a non-compliance would mean a breach of statutory provision.
- the learned judge was correct to equate it with an offence.
POST-ADJUDICATION PROCEEDINGS
Public examination - the law
S.17
POST-ADJUDICATION PROCEEDINGS
Public examination - application
Public Bank Bhd v Choong Yew Wah (CA, 2014):
- S. 17 and 34 clearly empowers the DGI to carry out thorough investigation of the estate of the bankrupt;
- Any failure to carry out such a statutory task would result in a dereliction of his statutory duty.
POST-ADJUDICATION PROCEEDINGS
Proof of debts - the law
S.42 + Schedule C
POST-ADJUDICATION PROCEEDINGS
Proof of debts - application
CA, 2014
Malayan Banking Bhd v Boau Yoon Fut (CA, 2014):
- S.42 is equally express & it provides that the rules in Schedule C “shall” be observed with respect “to the mode of proving debts, the right of proof by secured and other creditors, the admission and rejection of proofs and other matters”.
- there is little scope for any “assumption” that the bank as secured creditor has elected to surrender its security just by filing a POD for the full sum of indebtedness without the election being unequivocal.
- Such assumption OTF led to serious errors of law and a serious failure to appreciate the material facts to an extent that appellate intervention is warranted.
COMPOSITION OR SCHEME OF ARRANGEMENT
Overview
1) The law
2) Procedures
3) Application
COMPOSITION OR SCHEME OF ARRANGEMENT
The law
S.18:
- powers of creditors to accept & court to approve composition or arrangement
COMPOSITION OR SCHEME OF ARRANGEMENT
The procedures
S.18
COMPOSITION OR SCHEME OF ARRANGEMENT
Application
Re Hashbuddin Hashim, ex p Citic Ka Wah Bank Ltd:
- S.18 & 26 set out the steps that should be taken when there is a proposal for a composition which means settlement in satisfaction of the debt.
- There is no power for DGI to compromise a debt.
