Encl.13 Ikatan Otoriti Pemohon

PA-29PB-241-09/2021
Encl No. 13
This is NON-PAYABLE document
H0272101 PA1322017151 01/03/2022 18:06:30
PA-29PB-241-09/2021
DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG
TSI016...........................0.00 x 1
Jumlah NO:
NOTIS USUL PASCA PENGGULUNGAN RM****************************0.00
PA-29PB-241-09/2021
(PETISYEN KEBANKRAPAN NO: PA-29NCC-842-08/2019)
ANTARA
Chwung Ngee Hock (No K.P.: 681220-07-5095/A1178930) …PEMOHON
DAN
1. Pegawai Penerima Jabatan Insolvensi Malaysia
2. Hong Leong Bank Berhad (No Syarikat: 97141-X)

[yang telah mengambil alih kesemua peniagaan, asset-aset dan liabilti EON BANK
BERHAD melalui satu perintah letakhak Mahkamah Tinggi Kuala Lumpur bertarikh
17.06.2011]
…RESPONDEN-RESPONDEN
DAN
1. Ong Lam Guan

(No. K/P: 690416-08-6129
2. Peh Lee Ling
(No. K/P: 700811-07-5098)
…PENCELAH-PENCELAH YANG DICADANGKAN
IKATAN OTORITI PEMOHON

(LAMPIRAN 5)
Di failkan oleh :
Tetuan Chamber of Jannu Babjan
Peguambela & Peguamcara
No. 97-2-8, The Palazzia,
Jalan Bukit Gambir,
11700 Gelugor, Pulau Pinang.
Ruj Kami: COJB-CIV-526-20(CHUWNG)
Difailkan pada 2022
S/N sPSh4tCtIE4lxJZe/arsw
**Note : Serial number will be used to verify the originality of this document via eFILING portal
INDEKS
NO TAJUK MUKASURAT
1. ATURAN 15 PERKARA 6 KAEDAH-KAEDAH 1

MAHKAMAH 2012
2. SEKSYEN 139 AKTA INSOLVENSI 1967 2
3. KEJURUTERAAN LETRIK MAN HOE SDN BHD V. MAX- 3-13

BENEFIT SDN BHD & ANOR; CERGAS TEGAS SDN BHD
(IN LIQUIDATION), LIBERTY WONDER SDN BHD &
TOW LIN FOOK
4. RE WONG CHONG SIONG, EX P ARAB MALAYSIAN 14-20

FINANCE BHD
5. SEKSYEN 105 AKTA INSOLVENSI 1967 21
6. AFFIN BANK BERHAD V. ABU BAKAR ISMAIL 22-36
7. ASIA COMMERCIAL FINANCE (M) BHD V. BASSANIO 37-43

TEO YANG [2009] 2 MLRH
8. TOHTONKU SDN. BHD. V. SUPERACE (M) SDN. BHD 44-47

[1992] 1 MLRA
9. SEKSYEN 340 KANUN TANAH NEGARA 48
RULES OF COURT 2012
PU(A) 205/2012
6. Misjoinder and non-joinder of parties (O. 15, r. 6) Cases Referred
(1) A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the court
may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and
interests of the persons who are parties to the cause or matter.
(2) Subject to this rule, at any stage of the proceedings in any cause or matter, the court may on such terms as it
thinks just and either of its own motion or on application:
(a) order any person who has been improperly or unnecessarily made a party or who has for any
reason ceased to be a proper or necessary party, to cease to be a party;
(b) order any of the following persons to be added as a party, namely:
(i) any person who ought to have been joined as a party or whose presence before the
court is necessary to ensure that all matters in dispute in the cause or matter may be
effectually and completely determined and adjudicated upon; or
(ii) any person between whom and any party to the cause or matter there may exist a
question or issue arising out of or relating to or connected with any relief or remedy
claimed in the cause or matter which, in the opinion of the court, would be just and
convenient to determine as between him and that party as well as between the parties to
the cause or matter.
(3) An application by any person for an order under paragraph (2) adding him as a party shall, except with the
leave of the court, be supported by an affidavit showing his interest in the matters in dispute in the cause or
matter or, as the case may be, the question or issue to be determined as between him and any party to the cause
or matter.
(4) A person shall not be added as a plaintiff without his consent signified in writing or in such other manner as
may be authorized.
INSOLVENCY RULES 2017
PU(A) 305/2017
139. Notice of application to annul bankruptcy order and stay proceeding.
(1) An application to the court to annul a bankruptcy order or to stay proceedings, shall not be heard except upon
proof that notice of the intended application, and a copy of the affidavit in support thereof, have been duly
served upon the Director General of insolvency.
(2) Unless the court gives leave to the contrary, notice of any such application shall be served on the Director
General of insolvency not less than fourteen days before the day named in the notice for hearing the application.
(3) Pending the hearing of the application, the court may make an interim order staying such of the proceedings
as it thinks fit.
Kejuruteraan Letrik Man Hoe Sdn Bhd
v. Max-Benefit Sdn Bhd & Anor; Cergas Tegas Sdn Bhd (In
Liquidation), Liberty Wonder Sdn Bhd & Tow Lin Fook
[2013] MLRHU 1431 (Applicants) pg 1
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[1998] 3 MLRH Re Wong Chong Siong, Ex P Arab Malaysian Finance Bhd 225
RE WONG CHONG SIONG,

Ex
P ARAB MALAYSIAN FINANCE BHD
High Court Malaya, Johor Bahru

Abdul Malik Ishak J
[Winding-Up Petition No: 29-416-1995]
7 November 1998
JUDGMENT
Abdul Malik Ishak J:
This was an appeal by Arab Malaysian Finance Berhad, the judgment creditor, in
encl. 38 against the decision of the Senior Assistant Registrar ("SAR") who on 6
March 1998 ordered that the judgment creditor's petition dated 18 Febraury 1997
filed by the judgment creditor and before it was served on Wong Chong Siong, the
judgment debtor, be struck out. The SAR too ordered the forfeiture of the deposit
in the sum of RM2,000 which had been deposited by the judgment creditor to the
Official Assignee ("OA").
It is pertinent to point out that the judgment creditor had acted expeditiously for
they filed the notice of appeal to the judge-in-chambers in encl. 38 on 30 July 1998
within two days from the date when the sealed Order as reflected in encl. 38 was
returned to the judgment creditor's solicitors by the court on 28 July 1998. Now, an
appeal to the judge-in-chambers, like encl. 38, shall lie from any judgment, order or
decision of the SAR and the time frame of such an appeal according to O. 56 r.
1(3) of the Rules of the High Court 1980 ("RHC") would be as follows:
Unless the Court otherwise order, the notice must be issued within 5 days after the
judgment, order or decision appealed against was given or made and served not
less than 2 clear days before the day fixed for hearing the appeal.
But the appeal to the judge-in-chambers in encl. 38 related to a special provision
namely the Bankruptcy Rules 1969 and of significance would be r. 89(b) thereof
which stipulates that:
The provisions and procedure for the time being in force respecting appeals from
the High Court in its ordinary civil jurisdiction shall apply to appeals in bankruptcy
with the following modifications:
(a) ...
(b) The time for entering the appeal and serving notice thereof on the respondent
shall be fourteen days from the date of the signing, entering or otherwise perfecting
the judgment or order appealed from;
226 Re Wong Chong Siong, Ex P Arab Malaysian Finance Bhd [1998] 3 MLRH
(c) ...
That the judgment creditor had complied fully with r. 89(b) of the Bankruptcy
Rules 1969 can never be doubted. In my judgment, for the purpose of computing
time for filing the appeal in encl. 38 the judgment creditor must adhere to r. 89(b)
of the Bankruptcy Rules 1969 and not O. 56 r. 1(3) of the RHC. I am fortified in
my view by the judgment of Buhagiar J in Chan Tai Tai & Anor. V. Official Assignee,
Fm [1956] 1 MLRH 49; [1957] 1 MLJ 54where his Lordship said in the context of r.
88(b) of the Bankruptcy Rules 1921 which is equivalent to the present r. 89(b) of
the Bankruptcy Rules 1969:
On behalf of the applicant it was submitted that there is a conflict between Rule 88
(b) of the Bankruptcy Rules 1921, and Rule 11 of the Court of Appeal Rules and
that in view of the provisions of section 10(2) of the Rule Committee Ordinance,
1948, under which the Court of Appeal Rules were made, the provisions of those
Rules should prevail.
In the opinion of this Court there is no conflict between the Court of Appeal Rules
and Bankruptcy Rules, 1921; Rule 88 of the last mentioned Rules contains general
and special provisions; after laying down that the provisions and procedure for the
time being in force respecting appeals from the Supreme Court in its ordinary civil
jurisdiction shall apply to appeals in bankruptcy, that Rule goes on to make certain
modifications, one of which is that in appeals in bankruptcy the time for entering
the appeal and serving notice thereof on the respondent is to be fourteen days from
the date of signing, entering or otherwise perfecting the judgment or order appealed
from instead of one month.
It is an established principle that unless it is specifically so provided by law, a
general provision does not impliedly override a special provision.
The maxim generalibus specialia derogant is a popular terminology for interpretation
and it has been used by judges in commonwealth countries. Reference to some of
these judgments would be fruitful. Thus, Griffiths CJ in Goodwin v. Phillips [1908] 7
CLR 1 said at p. 7 of the report:
.... where the provisions of a particular Act of Parliament dealing with a particular
subject matter are wholly inconsistent with the provisions of an earlier Act dealing
with the same subject matter, then the earlier Act is repealed by implication. It is
immaterial whether both Acts are penal Acts or both refer to civil rights. The
former must be taken to be repealed by implication.
Another branch of the same proposition is this, that if the provisions are not wholly
inconsistent, but may become inconsistent in their application to particular cases,
then to that extent the provisions of the former Act are excepted or their operation
is excluded with respect to cases falling within the provisions of the later Act.
In Public Prosecutor V. Chew Siew Luan [1982] 1 MLRA 134; [1982] 2 MLJ 119; [1982]
CLJ 285 , Raja Azlan Shah CJ Malaya (as His Majesty then was) said:
Generalibus specialia derogant is a cardinal principle on interpretation.

It means that where a special provision is made in a special statute, that special
provision excludes the operation of a general provision in the general law.
Earlier on in the same vein, his Lordship Raja Azlan Shah Acting LP (as His
Majesty then was) said in Public Prosecutor V. Chu Beow Hin [1981] 1 MLRA 181;
[1982] 1 MLJ 135; [1982] CLJ 288 :
Where a special provision is made in a special statute that special provision
excludes the operation of a general provision in the general law - generalibus
specialia derogant.
Finally, Reilly J in Corporation of Madras v. Electric Tramways Ltd [1931] AIR Mad
152 said:
There is the old maxim generalia specialibus non derogant; that is general provisions
do not derogate from special provisions.
If the legislature makes a special Act dealing with a particular case and later makes
a general Act, which by its terms would include the subject of the special Act and is
in conflict with the special Act, nevertheless unless it is clear that in making the
general Act the legislature has had the special Act in its mind and has intended to
abrogate it, the provisions of the general Act do not override the special Act.
If the special Act is made after the general Act, the position is even simpler.
Having made the general Act if the legislature afterwards makes a special Act in
conflict with it, we must assume that the legislature had in mind its own general
Act when it made the special Act and made the special Act, which is in conflict
with the general Act, as an exception to the general Act. These propositions appear
to me to be beyond discussion at the present day.
Without a doubt applying that maxim, the Bankruptcy Rules 1969 takes
precedence over the RHC.
Only two issues, for the very first time, had to be considered. They may be phrased
as follows:
(1) Whether the SAR has the jurisdiction in a bankruptcy proceeding to strike out
the judgment creditor's petition before it has been duly served on the judgment
debtor?
(2) Whether the SAR has the necessary jurisdiction to forfeit the deposit of
RM2,000 which had been deposited by the judgment creditor for the OA?
The First Issue
Section 91(1) of the Bankruptcy Act 1967 provides as follows:
91. (1) Subject to this Act, the court, under its jurisdiction in bankruptcy, shall have
full power to decide all questions of priorities and all other questions whatsoever,
whether of law or fact, which may arise in any case of bankruptcy coming within
the cognizance of the court, or which the court deems it expedient or necessary to
decide for the purpose of doing complete justice or making a complete distribution
of property in any such case.
and the root words would be "for the purpose of doing complete justice." Would
striking out the judgment creditor's petition before it has been duly served on the
judgment debtor be said to be "doing complete justice"? Justice must necessarily be
for two parties - the judgment creditor and the judgment debtor. A procedural
impropriety in the decision making process of the SAR cannot be condoned by this
court. It seems to me that the key to the solution of the problem would be to
interpret s. 91(1) of the Bankruptcy Act 1967. There is no room for the SAR to
manoeuvre around that section and say that he is empowered to strike out the
judgment creditor's petition before service was effected on the judgment debtor.
Lord Reid in Beswick v. Beswick [1968] AC 58 spoke of construing an Act of
Parliament in this way (see p. 73 of the report):
In construing any Act of Parliament we are seeking the intention of Parliament and
it is quite true that we must deduce that intention from the words of the Act. If the
words of the Act are only capable of one meaning we must give them that meaning
no matter how they got there.
In giving effect to the words of s. 91(1) of the Bankruptcy Act 1967, every effort
must not be spared in giving effect to all the words thereto because "the legislature
is deemed not to waste its words" or that the legislature will "say anything in vain"
(Lord Sumner in Quebec Railway, Light, Heat and Power Co Ltd v. Vandry[1920] AC
662). Abdoolcader SCJ in Foo Loke Ying & Anor. V. Television Broadcasts Ltd. & Ors.
[1985] 1 MLRA 52; [1985] 2 MLJ 35; [1985] CLJ 122 , aptly said:
The court however is not at liberty to treat words in a statute as mere tautology or
surplusage unless they are wholly meaningless.
On the presumption that Parliament does nothing in vain, the court must
endeavour to give significance to every word of an enactment, and it is presumed
that if a word or phrase appears in a statute, it was put there for a purpose and
must not be disregarded ... .
In 1989, VC George J (as he then was) in Smith Kline & French Laboratories Ltd v.
Salim (Malaysia) Sdn Bhd [1989] 1 MLRH 756; [1989] 2 MLJ 380; [1989] 2 CLJ
228; [1989] 2 MLJ 380 had this to say:
It is trite that as far as possible a statute should not be read to give it an effect such
that it is a pointless piece of legislation.
I too would not treat s. 91(1) of the Bankruptcy Act 1967 as a worthless piece of
legislation. In giving effect to it, I hold and it was my judgment that the SAR
blundered when he struck out the judgment creditor's petition before it was served
on the judgment debtor. The process server failed in his attempt to serve the
judgment creditor's petition on the judgment debtor personally. This prompted the
judgment creditor to file an application by way of a summons in chambers on 19
August 1997 for substituted service supported by an affidavit. When the SAR
struck off the judgment creditor's petition on 6 March 1998, the application for
substituted service had not been "formalised" by the court. The practice of the
bankruptcy court in Johor Bahru is this: When an application for an order of
substituted service either for bankruptcy notice or for judgment creditor's petition is
submitted to the court for approval, a copy of the said application will be returned
to the solicitors for the judgment creditor with the draft order duly approved or
dismissed. Unfortunately, until 6 March 1998 the application for substituted
service had not been approved and neither was it dismissed by the court. In fact, it
was deposed that the copy of the application for substituted service together with
the draft order had not been returned to the judgment creditor. It was for these
reasons that the judgment creditor was unable to serve the judgment creditor's
petition to the judgment debtor by way of substituted service. In my judgment, the
decision making process of the SAR was flawed procedurally and it must be set
aside in limine.
The Second Issue
Rule 103 of the Bankruptcy Rules 1969 states as follows:
103. (1) Upon the presentation of a petition the petitioner shall deposit with the
Official Assignee a sum of one thousand five hundred ringgit if a debtor, and two
thousand ringgit if a creditor and such further sum as may from time to time be
required by the Official Assignee to cover fees and expenses.
(2) No petition shall be received unless the receipt of the Official Assignee for the
deposit is produced to the Registrar.
(3) The Official Assignee shall account to the creditor, or, as the case may be, to
the debtor's estate for the sums deposited and any money deposited by a
petitioning creditor shall, unless it is required by reason of insufficiency of assets
for the payment of fees and expenses incurred by the Official Assignee, be repaid to
him out of the proceeds of the estate in the order of priority prescribed by these
Rules.
(4) The costs of publishing any order or notice under these Rules in the Gazette or
a newspaper shall be disbursed out of the money deposited under paragraph (1).
and clearly the sum of RM2,000 was meant to cover the fees and expenses of the
OA and of significance is the fact that no petition shall be received by the court
unless the receipt of the OA for that deposit is produced and shown to the SAR. It
is the duty of the OA to account to the judgment creditor or for that matter to the
judgment debtor's estate, as the case may be, for the sums deposited as stated in r.
103(1) thereof. Any money deposited by the petitioning creditor shall, unless it is
required by reason of insufficiency of assets for the payment of fees and expenses
incurred by the OA, be repaid to him from the proceeds of the estate in the order of
priority prescribed and determined by the Bankruptcy Rules 1969. In my judgment,

the SAR has no judicial power to forfeit the deposit sum of RM2,000 paid by the
judgment creditor to the OA upon presentation of the petition for winding-up. It is
the OA who shall account and be responsible to the judgment creditor for that
deposit.
It is interesting to note that r. 127 of the Bankruptcy Rules 1969 states that no
further adjournment of the hearing shall be allowed after the expiration of one
month from the date of the first hearing of the petition unless the judgment debtor
intends to show cause to the contrary against the petition. Obviously r. 127 of the
Bankruptcy Rules, 1969 empowers the court to either make a receiving order or
dismiss the petition forthwith. A proviso exists and it is this: "provided such
petition shall have been duly served" and by necessity it must mean duly served to
the judgment debtor. In the event the petition has not been duly served to the
judgment debtor, r. 127 of the Bankruptcy Rules 1969 will not apply. Factually
speaking, the judgment creditor's petition in the present appeal has not been duly
served onto the judgment debtor. In fact, the draft order for the substituted service
of the judgment creditor's petition has not been approved by the court. That being
the case, r. 127 of the Bankruptcy Rules 1969 cannot be invoked in the present
appeal and consequently the SAR was bereft of any judicial authority to dismiss
the judgment creditor's petition. For curiosity, r. 127 of the Bankruptcy Rules, 1969
is now reproduced verbatim:
127.
After the expiration of one month from the day appointed for the first hearing of a
petition (provided such petition shall have been duly served) no further
adjournment of the hearing merely by consent of the parties shall be allowed unless
the debtor has given prior notice that he intends to show cause against the petition;
but in every such case unless an order for adjournment is made the Court shall
either make a receiving order or dismiss the petition.
Re Dato' Mohamed Pilus bin Yusoh, Ex parte Southern Bank Bhd[1988] 1 MLJ 536 was
a case where the judgment creditor's petition had been duly served on the judgment
debtor and the first hearing of the judgment creditor's petition was fixed after the
petition was duly served. In sharp contrast would be the present appeal where the
judgment creditor's petition had not been served on the judgment debtor. In Re
Dato' Mohamed Pilus bin Yusoh, Ex parte Southern Bank Bhd (supra), the adjournment
for the fourth time was refused by the court and the court then dismissed the
petition. This was what Peh Swee Chin J (as he then was) said at p. 538 of the
judgment:
In the circumstances, the court did not think that the refusal of the adjournment on
30 June 1987 would result in any injustice to the debtor; on the contrary, the court
considered that it might cause an injustice to the petitioning creditor if a fourth
adjournment was granted, and that as no cause in any event had been shown to the
satisfaction of the court against the petition, the court was obliged to make the
orders complained of.

Earlier on at p. 537 of the judgment, his Lordship Peh Swee Chin J (as he then
was) had this to say of r. 127 of the Bankruptcy Rules 1969:
By rule 127, the court's discretion is to be exercised according to its tenor. It
appears that the adjournment of a petition is up to the court up to the end of one
month after a petition first comes up for hearing (after service before such first
hearing). After the end of the said month, there would be no adjournment by
consent unless the debtor has given prior notice of his intention to show cause
against the petition, and in the absence of such prior notice, the court shall either
make a receiving order or dismiss the petition.
The dismissal of the petition should ordinarily be a result of due cause against the
petition having been shown to the satisfaction of the court.
Obviously the SAR erred in law when he dismissed the judgment creditor's petition
before it was duly and successful served on the judgment debtor and to make
matters worse, without any due cause. The SAR too erred when he refused to
grant an adjournment to the judgment creditor to enable the judgment creditor to
serve the petition to the judgment debtor. In my judgment, the refusal of the SAR
to grant an adjournment and instead chose a course of action that went against the
law by dismissing the judgment creditor's petition was an exercise of judicial
excessiveness. It had, in the final analysis, caused an injustice to the judgment
creditor.
Order 92(1) of the Bankruptcy Act 1967 would certainly enable me to "review,
rescind or vary any order made by it under its bankruptcy jurisdiction." To add
leverage to that would be O. 92 r. 4 of the RHC which states as follows:
4. For the removal of doubts it is hereby declared that nothing in these rules shall
be deemed to limit or affect the inherent powers of the Court to make any order as
may be necessary to prevent injustice or to prevent an abuse of the process of the
Court.
In breaking new ground, I have been very cautious in my approach. This judgment
would show that the SAR had contravened s. 91(1) of the Bankruptcy Act 1967
and what he did was ultra vires rr. 103 (3) and 127 of the Bankruptcy Rules 1969.
There were no provisions in the Bankruptcy Act 1967 or the Bankruptcy Rules
1969 to allow the SAR to forfeit the deposit of RM2,000 held and kept by the OA
as trustees. For these reasons, the appeal was allowed. The judgment creditor's
petition dated 18 February 1997 to be re-instated. The order of forfeiture of the
deposit sum of RM2,000 to be set aside and that deposit to remain with the OA.
The hearing of the judgment creditor's petition to be heard on 12 December 1998
before the SAR.
INSOLVENCY ACT 1967
ACT 360
105. Power of court to annul bankruptcy order in certain cases. Cases Referred
(1) Where in the opinion of the court a debtor ought not to have been adjudged bankrupt, or
where it is proved to the satisfaction of the court that the debts of the bankrupt are paid in
full, or where it appears to the court that proceedings are pending in the Republic of
Singapore for the distribution of the bankrupt's estate and effects among his creditors under
the bankruptcy or insolvency laws of the Republic of Singapore and that the distribution
ought to take place in that country, the court may annul the bankruptcy order.
[Am. by act A1534/2017]
(2) Where a bankruptcy order is annulled under this section, all sales and dispositions of
property, and payments duly made, and all acts theretofor done by the Director General of
insolvency, or other person acting under his authority, or by the court, shall be valid, but the
property of the debtor who was adjudged bankrupt shall vest in such person as the court
appoints, or in default of any such appointment revert to the debtor for all his estate or
interest therein on such terms and subject to such conditions, if any, as the court declares by
order.
[Am. by act A1534/2017]
(3) Notice of the order annulling a bankruptcy order shall be forthwith gazetted and
published in at least one local paper.
[Am. by act A1534/2017]
(4) For the purposes of this section any debt disputed by a debtor shall be considered as paid
in full if the debtor enters into a bond, in such sum and with such sureties as the court
approves, to pay the amount to be recovered in any proceeding for the recovery of or
concerning the debt with costs, and any debt due to a creditor who cannot be found or cannot
be identified shall be considered as paid in full if paid into court.
(5) [Deleted by act A1534/2017].
ANNOTATION
Refer to Hong Leong Bank Berhad v. Sheikh Ahmad Marzuki Sheikh Yusof [2014]
MLRAU 364 and Re: Goh Ah Kai; Ex-Parte: Parkway Hospitals Singapore Pte Ltd
[2015] 2 MLRH 683.
Refer also Balan Subramaniam Ponnudurai v. PP & Another Appeal [2014] 1 MLRA 337
and the discussion thereof. Refer also to Siti Aishah Sheikh Abd Kadir v. PP [2014] 1
MLRA 496, Saifuddin Mustafa v. PP [2014] 2 MLRA 592, Haji Sulaiman Bin Haji
Abdul Wahid v. Public Prosecutor [1941] 1 MLRA 787.
Affin Bank Berhad
[2020] 2 MLRA v. Abu Bakar Ismail 99
AFFIN BANK BERHAD

v.
ABU BAKAR ISMAIL
Federal Court, Putrajaya

Tengku Maimun Tuan Mat CJ, Azahar Mohamed CJM, David Wong Dak
Wah CJSS, Rohana Yusuf PCA, Nallini Pathmanathan FCJ
[Civil Appeal No: 03(f)-05-10-2017 (W)]
25 February 2020
Bankruptcy: Adjudication and receiving orders — Annulment of — Whether court

might subsequently annul adjudication and receiving orders under s 105(1) Bankruptcy
Act 1967 after already finding said orders rightly made — Solvency of debtor under
s 6(3) read with s 105(1) Bankruptcy Act 1967 — Whether must necessarily relate to his
ability to pay his debts as they became due as at time of hearing of creditor’s petition
This appeal concerned the law on annulment of bankruptcy under s 105(1) of

the Bankruptcy Act 1967 (“BA 1967”). The appellant (“Bank”) had obtained
a summary judgment against the respondent (“debtor”), and thereafter
commenced bankruptcy proceedings against the debtor. Although the debtor
resisted the bankruptcy proceedings, adjudication and receiving orders
(“AORO”) were recorded against him. The debtor then filed an application
to annul the AORO, which application was unsuccessful. Nine months later,
the debtor filed a second annulment application, which was allowed by the
Registrar of the High Court. The decision of the Registrar was affirmed by the
High Court judge, and the Bank’s subsequent appeal to the Court of Appeal
was dismissed. The Bank thus obtained leave from this court to appeal against
the decision of the Court of Appeal on, inter alia, the following questions of
law: (i) where the court had already found that the AORO had been rightly
made, whether the court might subsequently annul the AORO under s 105(1)
BA 1967, on the basis that such orders “ought not to have been made”, based
on new arguments regarding the debtor’s ability to pay his debts or subsequent
change of circumstances; and (ii) whether the solvency of a debtor, under s 6(3)
read with s 105(1) BA 1967, must necessarily relate to his ability to pay his debts
as they became due, as at the time of the hearing of the creditor’s petition, and
not relate to his ability subsequent to the AORO made.
Held (allowing the appeal with costs):
(1) The issue in relation to the first question revolved on the point of time when
the debtor was considered to be able to pay his debts. The debtor submitted
that as in the case of Bungsar Hill Holdings Sdn Bhd v. Dr Amir Farid Datuk
Isahak, he had assets to satisfy his debt. However, the pertinent authorities
clearly established that the relevant date to consider whether the debtor was
able to pay his debts was the date of the making of the AORO. The first
question was, therefore, answered in the negative. The case of Bungsar Hill
Affin Bank Berhad
100 v. Abu Bakar Ismail [2020] 2 MLRA
Holdings Sdn Bhd v. Dr Amir Farid Datuk Isahak was certainly not an authority
to support the debtor’s contention that the date for consideration whether a
debtor ought not to have been adjudged a bankrupt, was after the bankruptcy
order was made. The position taken by the debtor went against the principles
of law. (paras 17, 21, 30, 31 & 33)
(2) As for the second question, applying the principles set out in the established
cases, the test for solvency of a debtor must be of the debtor’s ability to pay his
debts as they become due, as at the time of the hearing of the creditor’s petition,
when the AORO was made. The debtor’s argument that the time to consider
whether a bankruptcy order ought to have been made, must be after such an
order and not at the time of the order, was against the established principles
of law. A bankrupt could always avail himself of the relief of annulment or
discharge by making payment from monies recovered subsequent to the AORO,
to the Director General of Insolvency. The second question was thus answered
in the affirmative. (para 47)
(3) The Court of Appeal erred in failing to appreciate sufficiently that the
solvency of the debtor under s 6(3) read together with s 105(1) BA 1967 must
necessarily relate to his ability to pay his debts as they become due, at the time
of hearing of the creditor’s petition. It was trite that the solvency did not relate
to the debtor’s ability to pay his debts subsequent to the making of the AORO.
Further, it related to ‘commercial solvency’ and not ‘balance sheet solvency’.
On the facts of the instant case, at the time the AORO was granted against the
debtor, there was no evidence that he was solvent. No consideration ought to
be given to the debtor’s ability to pay his debts based on a subsequent change
of circumstances. If at all, any change of circumstances post-AORO, ie any
recovery of monies by the debtor would offer the debtor an opportunity to pay
the debts in full which would enable him to obtain an annulment order, having
made such full payment. But this was not done. The debtor made no payment
to satisfy the judgment debt. (paras 48-49)
Case(s) referred to:

Asia Commercial Finance (M) Bhd v. Bassanio Teo Yang [2009] 2 MLRH 668 (refd)
Bank of Australasia v. Hall [1907] 4 CLR 1514 (folld)
Bungsar Hill Holdings Sdn Bhd v. Dr Amir Farid Datuk Isahak [2005] 1 MLRA 328
(distd)
Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd [2010] 2 MLRA
411 (folld)
Lafarge Concrete (Malaysia) Sdn Bhd v. Gold Trend Builders Sdn Bhd [2012] 4 MLRA
112 (folld)
Lian Keow Sdn Bhd (In Liquidation) & Anor v. Overseas Credit Finance (M) Sdn Bhd
& Ors [1987] 1 MLRA 672 (folld)
Paulin v. Paulin and Another [2010] 1 WLR 1057 (folld)
Re Mat Shah Safuan; Ex Parte United Asian Bank Bhd [1990] 4 MLRH 485 (folld)
Affin Bank Berhad
Sama Credit & Leasing Sdn Bhd v. Pegawai Pemegang Harta Malaysia [1995] 1
MLRA 183 (folld)
Sri Hartamas Dvpt Sdn Bhd v. MBf Finance Bhd [1992] 1 MLRA 311 (folld)
Legislation referred to:

Bankruptcy Act 1967, ss 6(3), 33, 105(1)
Companies Act 1965, s 218(2)(a)
Insolvency Act 1986 [UK], s 282(1)
Counsel:
For the appellant: Yoong Sin Min (Sharon Lim Pei Hsien & Sanjiv Naddan with her);
M/s Shook Lin & Bok
For the respondent: Abu Bakar Ismail; M/s C Leo Camoens
[For the Court of Appeal judgment, please refer to Affin Bank Berhad v. Abu Bakar
Ismail [2017] 4 MLRA 603]
JUDGMENT
Tengku Maimun Tuan Mat CJ:
Introduction
[1] This appeal concerns the law on annulment of bankruptcy under s 105(1)
of the Bankruptcy Act 1967 (“the BA 1967”).
Background Facts
[2] The appellant (“the Bank”) obtained a summary judgment against the
respondent (“the debtor”) on 8 July 2004. Thereafter the Bank commenced
bankruptcy proceedings against the debtor. The bankruptcy proceedings were
resisted by the debtor wherein he filed:
(i) an application to set aside the Bankruptcy Notice on 29 November

2010; and
(ii) Notice of Intention to oppose the Creditor's Petition on 20 June

2012.
[3] The High Court dismissed his application to set aside the Bankruptcy
Notice. The decision of the High Court was affirmed by the Court of Appeal.
The debtor’s attempt to oppose the Creditor’s Petition also suffered the same
fate. His Notice of Intention to Oppose the Creditor’s Petition was dismissed
by the High Court and was upheld by the Court of Appeal.
[4] Following the dismissal of the debtor’s application to set aside the
Bankruptcy Notice and to oppose the Creditor’s Petition, a Receiving Order
Affin Bank Berhad
and an Adjudication Order (“the AORO”) was recorded against him on 17

January 2013.
[5] On 16 December 2013, the debtor filed an application to annul the AORO
(“the first annulment application”) pursuant to s 105(1) of the Bankruptcy
Act 1967 (“the BA 1967”). The first annulment application was made on the
ground that the debtor ought not to have been adjudged a bankrupt as he was
solvent and that he had the means to repay his debts.
[6] In support of his first annulment application, the debtor averred that:
(i) he had assets in Singapore in the form of a Singapore Court of

Appeal judgment (“the Singapore judgment”) dated 20 February
2013 which was granted in his favour;
(ii) the damages awarded pursuant to the said Singapore judgment (if
assessed) would have a value in excess of SGD$35 million; and
(iii) that he had various claims against third parties in Singapore and
as a result of the AORO, he was prevented from conducting his
cases in Singapore and that he had difficulties in paying legal fees
in Singapore.
[7] On 7 January 2014, the Registrar of the High Court dismissed the first
annulment application. In her brief grounds of judgment the Registrar made
the following findings:
(i) that in an annulment application, the material date for

consideration is the AORO date;
(ii) that the Singapore judgment was obtained after the AORO date
and therefore could not be taken into account for an application
under s 105 of the BA 1967;
(iii) that under s 105 of the BA 1967, the debtor has to prove that he
‘ought not to have been adjudged bankrupt’ at the time AORO
was recorded against him which he had failed to prove;
(iv) that the debtor had failed to prove that he was solvent as at the
date of the AORO; and
(v) that the debtor had never raised the issue that he was solvent in
his previous application to set aside the Bankruptcy Notice and in
his application to Oppose the Creditor’s Petition and/or when the
AORO was recorded against him.
[8] Dissatisfied with the decision of the Registrar, the debtor appealed to the
High Court, which appeal was allowed. However, on appeal by the Bank to
the Court of Appeal, the decision of the High Court Judge was reversed and
Affin Bank Berhad
the AORO were restored. The debtor did not file any application for leave to
appeal to the Federal Court against the order of the Court of Appeal restoring
the AORO.
[9] What the debtor did instead was to file, nine months later, the second
annulment application on inter alia, the following grounds:
(i) that on 13 April 2015, pursuant to the Singapore judgment, the

Singapore High Court had assessed damages in favour of the
debtor in the sum of SGD$9,928,473.75 together with interest at
the rate of 5.33% per annum from 15 September 2009 to date of
payment;
(ii) that the damages which was awarded against one Chenet Finance
Limited was to be paid by Chenet Finance Limited to the Director
General of Insolvency Malaysia (“DGI”) as the receiver of the
debtor; and
(iii) that the debtor had been awarded costs of SGD$15,000.00.
[10] The debtor thus alleged that he had assets in Singapore totalling
SGD$12,684,960.97 (equivalent to RM33,551,721.76) which exceeded the
Bank’s claim as admitted by the DGI, in the sum of RM8,342,774.10.
[11] The second annulment application was allowed by the Registrar of the
High Court. The decision of the Registrar was affirmed by the High Court
judge. Against the decision of the High Court Judge, the Bank appealed to the
Court of Appeal. The appeal was dismissed. In dismissing the said appeal, the
Court of Appeal held that:
(i) the AORO was rightly made on 17 January 2012 as at that material
time, there was no evidence of the debtor’s solvency or ability to
pay;
(ii) when the Singapore judgment was delivered on 20 February 2013,

the debtor had a right to apply under s 105(1) of the BA 1967 as
there was sufficient evidence to show that he was solvent;
(iii) there was a change of circumstances as the DGI was not able to
assess damages under the Singapore judgment since 17 January
2013; and
(iv) since there was a change of circumstances, res judicata does not
apply.
Proceedings In The Federal Court
[12] The Bank obtained leave from this court to appeal against the decision of
the Court of Appeal on the following questions of law:
Affin Bank Berhad
(i) Where the court had already found that the adjudication and
receiving orders had been rightly made, whether the court may
subsequently annul the adjudication and receiving orders under s
105(1) of the BA 1967, on the basis that such orders “ought not to
have been made”, based on new arguments regarding the debtor’s
ability to pay his debts or subsequent change of circumstances?
(ii) Whether the solvency of a debtor, under s 6(3) read with s 105(1)
of the BA 1967, must necessarily relate to his ability to pay his
debts as they became due, as at the time of the hearing of the
creditor’s petition, and not relate to his ability subsequent to the
receiving and adjudication orders made.
(iii) Where the adjudication and receiving orders have been made on
the basis that the debtor is unable to pay his debts and where the
debtor’s first application for the annulment of the adjudication and
receiving orders has already been dismissed, does the principle of
res judicata apply to preclude a second annulment application?
(iv) Where a debtor is able to recover monies subsequent to the

proper making of the adjudication and receiving orders against
him, whether the court ought to allow his application to annul
the adjudication and receiving orders, rather than for him to
forward such monies to the Director General of Insolvency, for
the settlement of his debts and to discharge his bankruptcy.
[13] We had answered the first question in the negative and the second question
in the affirmative. We found no necessity to answer the third and the fourth
questions. We now provide our reasons.
Parties’ Arguments
[14] It was submitted for the Bank that the Court of Appeal erred:
(i) in not giving due consideration to the fact that the debtor had
already failed in his first annulment application;
(ii) in considering and taking into account the Singapore judgment of

20 February 2013 which took place subsequent to the making of
the AORO and which had already been one of the grounds for the
debtor’s failed first annulment application; and
(iii) in considering and relying on the DGI’s lack of ability in assessing

damages in Singapore, which was not even raised as a ground
under the second annulment application.
[15] For the debtor, learned counsel argued that the time to consider whether a
bankruptcy order ought not to have been made at the date of the adjudication
Affin Bank Berhad
must be after such an order, not at the time of the order. To hold otherwise,
submitted learned counsel, would be to frustrate the intent of s 105 which is to
afford relief of annulment to a person adjudicated bankrupt.
[16] Learned counsel for the debtor relied on Bungsar Hill Holdings Sdn Bhd v.
Dr Amir Farid Datuk Isahak [2005] 1 MLRA 328, where the Court of Appeal
after reviewing the facts of the case and new evidence provided in the appeal
regarding the debtor’s ability to pay his debt, exercised its discretion to annul
the bankruptcy order. The decision of the Court of Appeal was affirmed by this
court. It was therefore posited for the debtor that the High Court Registrar, the
High Court Judge and the Court of Appeal did not err in ordering/affirming
the annulment of the bankruptcy order.
Our Decision
The First Question
[17] The issue in relation to the first question revolves on the point of time
when the debtor is considered to be able to pay his debts.
[18] Section 6 of the BA 1967 provides for proceedings and order on creditor’s
petition where subsections (2) and (3) read:
“(2) At the hearing the court shall require proof of-
(a) the debt of the petitioning creditor; and
(b) the act of bankruptcy or, if more than one act of bankruptcy is alleged
in the petition, some of the alleged acts of bankruptcy; and
(c) if the debtor does not appear, the service of the petition, and if satisfied
with the proof may make a bankruptcy order in pursuance of the
petition.
(3) If the court is not satisfied with the proof of the petitioning creditor’s debt
or of the act of bankruptcy or of the service of the petition, or is satisfied by
the debtor that he is able to pay his debts, or that for other sufficient cause no
order ought to be made, the court may dismiss the petition.”
[19] The annulment of bankruptcy order is provided for in s 105 and subsection
(1) of s 105 states:
“(1) Where in the opinion of the court a debtor ought not to have been
adjudged a bankrupt, or where it is proved to the satisfaction of the court that
the debts of the bankrupt are paid in full, or where it appears to the court that
proceedings are pending in the Republic of Singapore for the distribution of
the bankrupt’s estate and effects among his creditors under the bankruptcy or
insolvency laws of the Republic of Singapore and that the distribution ought
to take place in that country, the court may annul the bankruptcy order.”
Affin Bank Berhad
[20] The Court of Appeal, in affirming the decision of the High Court and in
allowing the second annulment’s application had considered and accepted the
argument raised by the debtor that he could pay his debts due to the Singapore
judgment obtained subsequent to the AORO (“adjudication/bankruptcy
order”) and subsequent to the dismissal of the first annulment application.
[21] Learned counsel for the debtor submitted that as in Bungsar Hill v. Dr Amir
Farid (supra), the debtor in the instant appeal had assets to satisfy his debt.
[22] Given the reliance by the debtor on Bungsar Hill (supra), we will now
examine the case. In Bungsar Hill (supra), the respondent/debtor had been a
partner with two other doctors in a partnership called “Poliklinik Kotaraya”.
The respondent had a 35% share in the partnership. In 1989, a dispute arose
between the partners leading to the filing of several suits in court. On 13 March
1990, the High Court appointed two interim receivers and managers to manage
the partnership pending final settlement of the dispute. The receivers were,
among others authorised by the court to pay each of the partners a monthly
allowance of RM4,000.00. On 30 November 1990, the appellant obtained
summary judgment against the respondent for the sum of RM32,095.41 together
with interest and costs. On 12 May 1993, a bankruptcy notice was issued. On
11 November 1993, the partners entered into a settlement agreement which
among others provides for the appointment of interim receivers and managers
“to receive and manage the affairs of the Practice pending the disposal of the
Civil Suits ...” and for the sale of the partnership. The bankruptcy notice was
served on the respondent by way of substituted service on 31 January 1994 and
on 29 July 1994, a creditor’s petition was filed. It was also served by way of
substituted service on 11 May 1996. The creditor’s petition was heard by the
senior assistant registrar of the High Court on 27 June 1995. The respondent
did not appear nor contest the petition. The receiving order and adjudication
order were thus made against the respondent.
[23] On 10 January 1996, the respondent applied to set aside and to annul
the receiving and adjudication orders on the sole ground that arising from the
dissolution of the partnership, monies would become due and payable to him
upon the completion of the liquidation of the affairs of the partnership by the
liquidator.
[24] The Senior Assistant Registrar of the High Court dismissed the
respondent’s application to set aside the receiving and adjudication orders
made against him. On the respondent’s appeal to the judge in chambers, the
receiving and adjudication orders were set aside. The order of the learned
judge was affirmed by the Court of Appeal. The appellant was granted leave
by this court to appeal on the following issues:
(1) whether the words “where in the opinion of the court a debtor
ought not to have been adjudged bankrupt” in s 105(1) of the BA
1967 only covered technical grounds;
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(2) whether the debtor’s “ability to pay his debt” was a legal ground
that fell within the said provision;
(3) whether the respondent’s non-appearance at the hearing of the

creditor’s petition disqualified him from making the setting aside
application; and
(4) whether the learned judge was correct on the facts in finding that
the respondent was solvent and able to pay his debt.
[25] In delivering the judgment of this court, Abdul Hamid Mohamed FCJ (as
he then was) said:
“(a) The phrase “where in the opinion of the court a debtor ought not to have
been adjudged bankrupt ...” covers not only purely technical grounds like
defective service of the bankruptcy notice or the creditor’s petition but
also covers other legal grounds like an abuse of the process of the court.
(b) While the debtor’s “ability to pay his debt” may not be a “technical
ground”, it is a “legal ground” which falls within the scope of the said
phrase;
(c) In the circumstances of this case, the fact that the debtor did not appear at
the hearing to contest the petition does not disqualify him from applying
for the annulment of the adjudication order pursuant to s 105(1) of the
Act.
(d) On the facts of this case, there is no reason for this court to interfere with
the findings of fact of the learned judge that the respondent was solvent
and was able to pay his debt or with the exercise of his discretion.”
[26] The learned FCJ further said:
“Learned counsel for the appellant argued that the material date to consider
whether the respondent was able to pay the debt or not ought to be the date of
the hearing of the creditor’s petition. ...
From the judgment of the learned judge, it appears quite clearly that the
material date considered by him was the date of adjudication, which in this
case is also the date of hearing of the creditor’s petition ...
In the circumstances, this argument ought not to have been forwarded because
that was what the learned judge did: he considered the respondent's ability to
pay his debt or solvency or insolvency as at the date of adjudication which
was also the date of the hearing of the creditor’s petition.
That, in my view, is the correct date for consideration. First it should be

noted that in the first limb of s 105(1) the words “ought not to have been
adjudged bankrupt” are used. It denotes past tense. On the other hand, in
the second limb, the words “the debts of the bankrupt are paid in full” which
denotes the present tense, are used. Similarly, in the third limb, the present
tense “are pending” is used. This clearly indicates that the material date for
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consideration in the case of the first limb, is a date in the past which, logically
is the date of adjudication.”
[27] In respect of the material date to be considered in an application for

annulment under the first limb, the Supreme Court in Sama Credit & Leasing
Sdn Bhd v. Pegawai Pemegang Harta Malaysia [1995] 1 MLRA 183, held similar
view. Chong Siew Fai SCJ said at p 185:
“One of the ways a bankruptcy may be disposed of is by annulment. Section

105(1) of the Act provides, inter alia, two situations under which an annulment
may be granted:
(1) where in the opinion of the court the debtor ought not to have been
adjudged bankrupt; or
(2) where the debts are paid in full.
The first situation is relevant in our case. And, in considering whether a

receiving order ought to have been made, the appellate court would consider
the actual state of affairs at the date of the order and would, generally
speaking, not take into account matters that had occurred after that date. In
Re Dunn (A Bankrupt), ex p Official Receiver v. Dunn [1949] Ch 640; [1949] 2 All
ER 388, CA, Sir Raymond Evershed MR said at p 392:
I think counsel for the Official is right in saying that, in judging whether
the order ought to have been made, the court is entitled to have regard
to the actual date of affairs at the date of the order, which may appear
from evidence subsequently filed, and certainly would not appear from the
bare statement on the formal petition which alone was before the court
when the order was made. I do not think, however, that one is entitled, in
determining whether the order ought to have been made under the first limb
of the subsection, to take into account facts which have occurred after the
date of the order.”
[28] Similar principles were propounded by the English Court of Appeal in

Paulin v. Paulin and Another [2010] 1 WLR 1057 where Wilson LJ stated thus
at p 1074:
“Section 272(1) of the 1986 Act provides “A debtor’s petition may be presented
to the court only on the grounds that the debtor is unable to pay his debts”.
Section 282(1) of the same Act provides:
“The court may annul a bankruptcy order if it at any time appears to the
court - (a) that, on the grounds existing at the time the order was made, the
order ought not to have been made.”
A reading of the above two subsections together yields the uncontroversial

conclusion that a court may annul a bankruptcy order if it concludes that, on
the date of that order, the bankrupt was able to pay his debts. But, even if it
so concludes, the word “may” confers upon the court a discretion whether to
annul the order.”
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[29] The position is also clearly stated by the authors of Halsbury’s Laws of
England 4th edn Reissue, Vol 3(2) at pp 326-327, paras 598 and 599:
“... The court may annul a bankruptcy order if it at anytime appears to the
court: (1) that, on the grounds existing at the time the order was made, the
order ought not to have been made; or...
... the grounds on which the order ought not to have been made must have
been existing at the time the bankruptcy order was made.”
[30] Thus, the authorities clearly established that the relevant date to consider
whether the debtor is able to pay his debts is the date of the making of the
AORO.
[31] We therefore answered the first question in the negative.
[32] Coming back to Bungsar Hill v. Dr Amir Farid (supra), it was decided on
its peculiar facts, in particular, when the bankruptcy order was made, the
respondent/debtor was absent and there was already a settlement agreement
which provides for the sale of the partnership. In the instant case, there was
no evidence of the debtor's solvency at the date of the bankruptcy order. After
the decision of the Court of Appeal on the second annulment application,
the solicitors for the Bank wrote to the debtor’s solicitors enquiring among
others, the steps taken by the debtor to recover the judgment sum awarded by
the Singapore High Court order dated 13 April 2015. Although there was a
reply, the debtor’s solicitors did not address the Bank’s solicitors query as to
the recovery effort.
[33] Bungsar Hill v. Dr Amir Farid (supra) is certainly not an authority to support
the debtor’s contention that the date for consideration whether a debtor ought
not to have been adjudged a bankrupt, is after the bankruptcy order was made.
The position taken by the debtor goes against the principle of law.
[34] Insofar as the DGI’s inability to assess damages pursuant to the Singapore
judgment is concerned, with respect, we found that to be a non-issue. The DGI
is not expected to pursue legal actions already instituted by the bankrupt prior
to his bankruptcy. We noted that the DGI lack funds and resources and that
most bankrupts would seek leave of the DGI to appoint solicitors to represent
his estate in such litigation and more often than not, the DGI would grant
leave or sanction. Indeed in the instant case, the debtor did engage lawyers in
Singapore during his bankruptcy, presumably with the sanction of the DGI, to
have the damages assessed, which led to the Singapore High Court assessment
order dated 13 April 2015.
The Second Leave Question
[35] The second question is whether the solvency of a debtor under s 6(3) read
with s 105(1) of the BA 1967 must necessarily relate to his ability to pay his
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debts as they became due, as at the time of the making of the AORO and not
to his ability subsequent to the making of the bankruptcy order.
[36] The debtor alleged that he was solvent premised on the Singapore
judgment dated 20 February 2013, which he claimed would be more than
SGD$ 35 million. The debtor’s contention found favour with the Court of
Appeal. This same Singapore judgment was relied upon by the debtor in his
first annulment application. And the High Court and the Court of Appeal
dismissed the debtor’s first annulment application.
[37] There are thus two Court of Appeal decisions. The first decision dated
17 September 2014 was in respect of the first annulment application where
despite the Singapore judgment, the Court of Appeal found that the debtor was
not solvent as at the date of the AORO. The second decision dated 6 March
2017 was the decision appealed against in the instant case where the Court of
Appeal formed the view that the debtor was solvent based on the Singapore
judgment and that the debtor had the right to apply for an annulment under
s 105(1) of the BA 1967.
[38] As set out above, this court in Bungsar Hill v. Dr Amir Farid (supra) held that
the material date to determine the solvency and ability of the debtor to pay his
debts was the date when the creditor’s petition was heard and the AORO made.
What then is the definition or meaning of “debtor was able to pay his debt” or
the test of solvency or the ability of an individual to pay his debts?
[39] In a corporate insolvency case of Lian Keow Sdn Bhd (In Liquidation) &
Anor v. Overseas Credit Finance (M) Sdn Bhd & Ors [1987] 1 MLRA 672 at p 677,
the Supreme Court held as follows:
“In short, the question is not whether the debtor’s assets exceed his liabilities
as appeared in the books of the debtor, but whether there are moneys presently
available to the debtor, or which he is able to realise in time, to meet the debts
as they become due. It is not sufficient that the assets might be realisable at
some future date after the debts have become due and payable.”
[40] In Sri Hartamas Development Sdn Bhd v. MBf Finance Bhd [1992] 1 MLRA
311, the respondent obtained judgment against the appellant. A demand under
s 218(2)(a) of the Companies Act 1965 was then served on the appellant. As
the appellant failed to pay the debt demanded, the respondent presented a
winding-up petition against the appellant, on the ground that having failed
to comply with the statutory demand, the appellant was presumed insolvent
and unable to pay its debts. The High Court granted the winding-up order
against the appellant. It was concluded that the appellant had not rebutted the
statutory presumption.
[41] The appellant appealed to the Supreme Court where it was contended that
the learned judge below had applied the wrong legal test and that the correct
test should be whether the appellant would be capable, if necessary, of paying
all its debts by a realisation of its assets, including any immoveable property.
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[42] The Supreme Court dismissed the appellant’s appeal. Gunn Chit Tuan
SCJ said:
“In this case, the presumption of insolvency arises when the requirements of
s 218(2)(a) of the Act have been satisfied and it is for the company to prove
that it is able to pay its debts. In dealing with ‘commercial insolvency’, that
is, of a company being unable to meet current demands upon it, we would
respectfully follow the Privy Council in the Malayan Plant Case and cite the
following observations from Buckley on the Companies Act (13th Edn) at p 460:
In such a case it is useless to say that if its assets are realised there will be
ample to pay 20 shillings in the pound: this is not the test. A company may
be at the same time insolvent and wealthy. It may have wealth locked up in
investments not presently realisable; but although this be so, yet if it have
not assets available to meet its current liabilities it is commercially insolvent
and may be wound up.
Applying the test in the above-quoted observations, we therefore held that the
learned judge had exercised his discretion correctly in ordering the appellant
to be wound up.”
[43] Similar principles on the test of commercial insolvency were enunciated in

the Court of Appeal’s decisions in Gulf Business Construction (M) Sdn Bhd v. Israq
Holding Sdn Bhd [2010] 2 MLRA 411 and Lafarge Concrete (Malaysia) Sdn Bhd v.
Gold Trend Builders Sdn Bhd [2012] 4 MLRA 112.
[44] As for individual insolvency, the High Court in Re Mat Shah Safuan; Ex
Parte United Asian Bank Bhd [1990] 4 MLRH 485 held:
“The ability to settle any judgment debt in full under s 6(3) Bankruptcy Act
1967 must be established before the act of bankruptcy is committed, ie before
the expiry of seven days after service of the bankruptcy notice on the debtor.
In this case the debtor had already committed an act of bankruptcy and it is
therefore too late at this stage of the proceedings for him to submit that he has
sufficient assets with which he can pay the judgment debt in full.”
[45] The English Court of Appeal in Paulin v. Paulin and Another [2010] 1
WLR 1057 , in dealing with s 282(1) of the Insolvency Act 1986, which is
substantially the same as our s 105(1) of the BA 1967, stated:
“41 It is well established that the inquiry into whether the relevant date
the bankrupt was able to pay his debts is an inquiry not into whether his
liabilities exceeded his assets (“balance sheet insolvency”) but into whether
he could meet his liabilities when they were due (“commercial insolvency”).
Often quoted in this context are the words of Mr David Oliver QC, sitting
as a deputy judge of the High Court, Chancery Division, in In re Coney (A
Bankrupt) [1998] BPIR 333, 335:
“Inability to pay one’s debts, at least in the context of insolvency, has

historically long been construed as an i nability to pay one's debts at the
time that they are due... The counterpart to this approach to solvency is
that even if one’s liabilities exceed one’s assets on a balance sheet basis, it
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does not follow that a person is insolvent, albeit that it is all the more likely
to result in a state of the individual’s relations with his bankers constituting
the ultimate test of insolvency.”
Mr Oliver added, however at p 336:
“It would not normally be right... to annul a bankruptcy order unless at

least it is shown that as at the date of the order the debtor was in fact able to
pay his debts, or had some tangible and immediate prospect of being so able
which has since been fulfilled or would have been so but for the order itself.
It is with regard to a ‘tangible and immediate prospect’ that the assets and
liabilities of a debtor and their nature will usually be of relevance.”
[46] The High Court of Australia alluded to the same principle in the case of
Bank of Australasia v. Hall [1907] 4 CLR 1514 where it was held at p 1528:
“The question is not whether the debtor would be able, if time were give n
him, to pay his debts out of his assets, but whether he is presently able to do
so with moneys actually available.”
[47] Applying the principles set out in the above cited cases, the test for solvency
of a debtor must be of the debtor’s ability to pay his debts as they become due,
as at the time of the hearing of the creditor’s petition, when the AORO was
made. The argument of learned counsel for the debtor that the time to consider
whether a bankruptcy order ought to have been made, must be after such an
order and not at the time of the order, is against the established principles
of law. A bankrupt could always avail himself of the relief of annulment
or discharge by making payment from monies recovered subsequent to the
AORO, to the DGI (see s 105(1) and s 33 of the BA 1967 and the case of
Asia Commercial Finance (M) Bhd v. Bassanio Teo Yang [2009] 2 MLRH 668). We
therefore answered Question 2 in the affirmative.
Conclusion
[48] We found that the Court of Appeal erred in failing to appreciate sufficiently
that the solvency of the debtor under s 6(3) read together with s 105(1) of the
BA 1967 must necessarily relate to his ability to pay his debts as they become
due, at the time of hearing of the creditor’s petition. It is trite that the solvency
does not relate to the debtor’s ability to pay his debts subsequent to the making
of the AORO. Further, it relates to ‘commercial solvency’ and not ‘balance
sheet solvency’.
[49] In the instant case, at the time the AORO was granted against the debtor,
there was no evidence that he was solvent. No consideration ought to be
given to the debtor’s ability to pay his debts based on subsequent change of
circumstances. If at all, any change of circumstances post-AORO, ie any
recovery of monies by the debtor would offer the debtor an opportunity to pay
the debts in full which would enable him to obtain an annulment order, having
made such full payment. But this was not done. The debtor made no payment
to satisfy the judgment debt.
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[50] Having found that AORO was rightly made, the Court of Appeal erred
in taking into account the Singapore judgment obtained after the AORO,
which was not material to determine the solvency of the debtor at the date
the AORO was made. The decision of the Court of Appeal in allowing the
second annulment application by the debtor was, with respect contrary to the
established principles of law and warrants appellate intervention. The appeal
was consequently allowed with costs, and the annulment orders of the courts
below were set aside.
668 Asia Commercial Finance (M) Bhd v. Bassanio Teo Yang [2009] 2 MLRH
ASIA COMMERCIAL FINANCE (M) BHD

v.
BASSANIO TEO YANG
High Court Sabah & Sarawak, Kuching

Ravinthran Paramaguru JC
[Bankruptcy Proceedings No: 29-225-1999-Iii]
7 April 2009
JUDGMENT
Ravinthran Paramaguru JC:
[1] This is an appeal from the decision of the SAR to dismiss the objection of the
judgment creditor under s. 33B of the Bankruptcy Act 1967 .
Background Facts
[2] A receiving and adjudication order was made against the respondent in this
case on 27 January 2000 for failing to satisfy a judgment in the sum of
RM68,032.68. His liability arose from a guarantee he had executed in favour of the
applicant to enable his friend one Law Kian Tan to buy a car on hire purchase. His
friend defaulted in payment and the respondent was unable to pay the judgment
sum. Subsequent to his bankruptcy, the respondent agreed to pay RM50 per month
to the official assignee (now director general of insolvency) until full and final
settlement of his debt. The debt had by then totalled RM82,660.98 due to accretion
of interest. The court made a consent order to that effect on 15 September 2000.
Objection Under S. 33B
[3] This application (encl. 58) was filed on 17 June 2008 by the creditor to prohibit
the director general of insolvency (DGI, formerly official assignee) from
discharging the respondent from bankruptcy. Under s. 33A which was introduced
vide Act A1035 in 1998, the DGI was conferred the power to discharge a bankrupt
by issuing a certificate of discharge although the debt to the creditors may not have
been settled. The only statutory pre-condition is that at least five years must have
elapsed from the date of the receiving and adjudication order. However, the DGI is
required to give notice of his intention to do so to the creditors before issuing the
said certificate. The creditors have 21 days to raise an objection before the
bankruptcy court against the intended discharge of the bankrupt. For sake of
convenience, I reproduced the two provisions below:
33A . Discharge of bankrupt by Certificate of Director General of Insolvency.
(1) The Director General of Insolvency may, in his discretion but subject
to section 33B , issue a certificate discharging a bankrupt from
[2009] 2 MLRH Asia Commercial Finance (M) Bhd v. Bassanio Teo Yang 669
bankruptcy.
(2) The Director General of Insolvency shall not issue a certificate
discharging a bankrupt from bankruptcy under subsection (1) unless a
period of five years has lapsed since the date the receiving order and the
order by which he was adjudged bankrupt were made.
(3) Notice of every discharge under subsection (1) shall be given by the
Director General of Insolvency to the Registrar and the Director General
of Insolvency shall advertise the notice in a local newspaper as
prescribed.
(4) The Director General of Insolvency shall, upon the application of any
interested person, issue a copy of the certificate of discharge to the
applicant upon payment of the prescribed fee.
33B . Objection by creditor to discharge of bankrupt under section 33A .

(1) Before issuing a certificate of discharge under section 33A , the
Director General of Insolvency shall serve on each creditor who has filed
a proof of debt a notice of his intention to issue the certificate;
(2) A creditor who has been served with a notice under subsection (1) and
who wishes to object to the issuance of a certificate discharging the
bankrupt shall, within twenty-one days from the date of service of the
notice, furnish a notice of the objection stating the grounds of his
objection.
(3) A creditor who does not furnish a notice of his objection and the
grounds of his objection in accordance with subsection (2) shall be
deemed to have no objection to the discharge.
(4) A creditor who has furnished a notice of his objection and the grounds
of his objection in accordance with subsection (2) may, within twenty-one
days of being informed by the Director General of Insolvency that his
objection has been rejected, make an application to the court for an order
prohibiting the Director General of Insolvency from issuing a certificate
of discharge.
(5) Every application under subsection (4) shall be served on the Director
General of Insolvency and on the bankrupt and the court shall hear the
Official Assignee and the bankrupt before making an order on the
application.
(6) On an application made under subsection (4), the court may, if it
thinks it just and expedient:
(a) dismiss the application;
(b) make an order that for a period not exceeding two years a certificate of
discharge shall not be issued by the Director General of Insolvency.
[4] The creditor who is the financial institution that granted the hire purchase loan
objected before the learned SAR to the intention of the DGI to issue a certificate of
discharge. The principal ground was that the DGI had not updated the report
made in the year 2000 for the purpose of the bankruptcy application. Therefore
counsel for the creditor argued that crucial questions in respect of the financial
affairs of the bankrupt were not answered such as:
1. His income at present time.
2. Whether he could be made to pay more than RM50?
3. Whether he is driving a car now?
4. What happened to the car he was driving in the year 2000?
[5] She also submitted that the bankrupt is only 38 years old and he has a Diploma
in Graphics. The outstanding debt in question is more than RM80,000 after
accretion of interests in spite of the respondent's diligent payment of RM50 for the
past eight years. In short, she wanted to know the justification for the exercise of
the discretion to discharge the respondent. The State Director of Insolvency on
behalf of DGI deposed by way of affidavit in reply that:
1. That the bankruptcy had been administered for more that eight years.
2. That the respondent has no asset to be realised.
3. That the respondent has contributed RM50 from February 2000 to August
2008.
4. That no dividend could be declared as the amount of fund in the estate of
the respondent amounted to RM6,812.30 only as at August 2008.
5. That it would be a burden to the government to continue to administer the
bankruptcy as nothing further could be gained from the respondent.
[6] It is apparent that the above reasons did not commend itself to the creditor as
they have appealed against the learned SAR's dismissal of their objection under s.
33B of the Bankruptcy Act 1967 . Before me the same arguments were repeated
and it was urged that this court should question the basis of the exercise of the
discretion of DGI under s. 33A to issue a certificate of discharge.
[7] Under the scheme of the Bankruptcy Act 1967 , apart from a scheme of
composition, there are three routes a bankrupt can avail himself to secure a
discharge from bankruptcy. Under s. 105(1) he could apply to annul the

bankruptcy on the ground that all the debts had been paid in full or on the ground
that the adjudication order should not have been made in the first place. The
second method is for the bankrupt to approach the court under s. 33(1) to seek a
discharge from bankruptcy. Under s. 33(1) , it is mandatory for the court to
consider the conduct of the bankrupt during his bankruptcy vide a report from the
DGI. The report constitutes prima facie evidence of the statements therein
contained by virtue of sub-s. 8. The guidelines for discharge are given in the section
itself and under case law (see Re Mohana Sundari M Subramaniam ex p United Prime
Corporation Bhd [2003] 3 MLRH 266; [2004] 5 MLJ 227; [2004] 1 CLJ 624; [2004]
2 AMR 141 . Section 33 seems to list out what conduct does not justify a discharge
from bankruptcy rather than identify the converse of it. If the bankrupt had
committed any of the offences listed under sub-s. (4), the court shall not, unless
there are special reasons, give him a discharge. In the alternative the court may
suspend the operation of the order until a dividend of not less than fifty per centum
has been paid to the creditors. In addition if there is proof of the facts listed in
sub-s. (6), the court shall:
(a) refuse the order; or
(b) suspend the operation of the order for a specified time; or
(c) suspend the operation of the order until a dividend of not less than fifty per
centum has been paid to the creditors; or
(d) grant an order of discharge subject to such conditions as aforesaid.
[8] The facts listed under sub-s. (6) are a long list of activities that should not be
indulged in by a bankrupt such as trading in the knowledge that he is insolvent,
contracting debts that cannot be repaid etc. It also includes a list of circumstances
preceding the bankruptcy that shows misconduct on the part of the bankrupt which
brought about or caused the bankruptcy such as omitting to maintain account
books for purpose of business dealings, extravagance in living, recklessness,
gambling, want of reasonable care in business etc.
[9] The bankrupt in the instant case, had taken a third route to release himself from
the shackles of bankruptcy, ie, through s. 33A which was inserted in 2003 by
Parliament. In Re Mohana Sundari M Subramaniam ex p United Prime Corporation
Bhd , Zulkefli Ahmad Makinudin J (as he then was) quoted with approval the
following passage from the judgment of Warren Khoo J in the case of Re Siah Ooi
Choe, exp. Hongkong and Shanghai Banking Corporation [1998] SLR 903 which
discussed the philosophy behind the law that allowed bankrupts who have not
settled their debt to earn a discharge:
... the Act was designed to meet two major conflicting concerns. One
stemmed from the fact that many an individual businessman become insolvent
not through any fault, moral or otherwise, but through just being caught at the
wrong turning of the economic cycle. It would be in the interests of society that
people who had become bankrupt in such circumstances should be given a second
chance in life ... The other concern was that, without proper safeguards, people
who have used dishonest and fraudulent methods in conducting their business
affairs to the detriment of their creditors might get an undeserved advantage from
their own wrong doings.
[10] Zulkefli Ahmad Makinudin J then commented that the new of provision of s.
33A which conferred the power on the DGI to give discharge to a bankrupt after
being one for five years is another provision:
designed and enacted by Parliament in furtherance of their original intention
to afford a bankrupt some relief.
[11] Very interestingly, unlike s. 33 under which a bankrupt seeks reprieve from the
bankruptcy, s. 33A does not provide any guideline for the DGI to consider in
granting a discharge. The only precondition is that five years must have elapsed
since the commencement of the bankruptcy. Learned counsel for the creditor in
this case has urged the court to prohibit the DGI from granting a discharge on the
grounds that I enumerated earlier. The complaint of counsel is that the DGI had
not updated his report on the respondent and had not considered his present
financial circumstances, especially whether he could pay more to settle his debt in
view of the fact that he is already eight years into his bankruptcy. In not so many
words, counsel suggested that he could be probably be earning more than the
RM1,200 per month which he earned in 2000. She did not cite any case that
considered the application of s. 33A . I am not surprised that she failed to find any
authority as the exercise of the discretion of the DGI is rarely objected to by the
creditor. One such case where section 33A was considered was the decision of
Ahmad Asnawi JC in Re: Endon Tamseran; ex p Parkash Singh Wasawa Singh[2009]
2 MLRH 200; [2009] 8 CLJ 379 . The issue that arose in that case was whether the
court could extend the order prohibiting the DGI from issuing a certificate to
discharge the bankrupt for more than two years as stated in s. 33B(6) . The court
answered the question in the negative as the clear wording of s. 33B(6) empowers
the court to only delay the issuance of the said certificate by two years but does not
clothe the court with any discretion to extend the prohibition beyond that period.
In this case, this is the first time the creditor has approached the court upon
receiving the notice of intention to discharge the respondent. The issue is whether
the court could delay the issuance of the certificate by two years and if so, upon
what grounds? The representative of the DGI had argued that the court cannot
question the discretion of the DGI. To my mind, the court could certainly delay
the issuance of the certificate by two years as this is clearly provided in s. 33B .
However, the court should not be strictly guided by s. 33 because that is a
provision where the court is vested with the power to discharge a bankrupt.
Counsel for creditor's main complaint is that the DGI did not prepare an updated
report on the respondent. In my opinion the DGI cannot be faulted for not
preparing a report that is required under s. 33 . This is because the "report" in s. 33
is prepared by the DGI for the attention of the court for the purpose of providing
sufficient information to assist the decision making process. That is the reason why
the report is deemed to be prima facie evidence under s. 33(8) . It goes without
saying that if the report contains any adverse information that is within the
contemplation of s. 33(6) , the court is empowered to refuse a discharge. However,
under s. 33A , the decision maker is the DGI himself and therefore it is common
sense that he need not "report" to himself about the status of the bankrupt. It must
be assumed all the relevant information that is in the file of the bankrupt has been
considered by the proper officer of the DGI before the Notice of Intention to
discharge is issued. Therefore, I cannot agree with counsel for the creditor that it is
fatal for the DGI not to have prepared an updated report. However, I note that for
the purpose of the objection, the representative of the DGI has responded by way
of affidavit giving grounds why he intends to discharge the respondent. In my
opinion, in reviewing the reasons for discharge under s. 33A , the court should,
save for exceptional reasons, be slow to substitute its own views as to how that
discretion should be exercised as that duty has been entrusted to the DGI by
Parliament. The court should be mindful that this is not an application under s. 33
where the court has the sole power to determine whether a bankrupt should be
discharged. The power granted under s. 33B is only the power to delay the
discharge of a bankrupt. The representative of the DGI in the instant case has
deposed that the respondent has diligently complied with the order to pay RM50
for eight years. He further deposed that the respondent has no assets to be realised.
He added that to continue with the administration of the bankruptcy would only
burden the respondent as well as the government. The outstanding amount is still a
big sum as the payment of RM50 a month would never be able to catch up with the
accretion of interests on a sum of over RM80,000. Therefore, if the situation were
allowed to remain as it were, the bankruptcy would continue indefinitely as feared
by the DGI. The DGI also considered the fact that the respondent in this case did
not borrow money for himself to buy a car but he merely stood as a guarantor for
his friend. Although as counsel pointed out, the guarantee agreement was signed
before "social guarantor" was defined in the Bankruptcy Act 1967, the fact remains
that this fact affords significant mitigation in respect of the circumstances that
contributed to the bankruptcy. Even under a discharge application by the court, the
circumstances that contributed to the bankruptcy such as recklessness and
extravagance or the absence of it such as being social guarantor is a factor to
consider in granting a discharge. As for the financial resources of the respondent at
this point in time, I do not think that the court should go beyond the unrebutted
affidavit of the representative of the DGI that there are no further assets to be
realised. The affidavit and the submission of the creditor that the respondent may
have more resources to settle his debt is, with due respect, mere speculation. In the
premises, I am of the view that the power of the court to prohibit the DGI from
issuing the certificate to discharge the respondent for a period of two years should
only be exercised in clear cut cases of abuse of s. 33A . Guidance could be sought
from s. 33(6) but the court should resist the temptation to apply them stringently as
that would tantamount to exercising original discretion under s. 33(1) . Clear cut
cases of abuse would be where the bankrupt had obtained huge loans with no
intention of paying them back or where the bankrupt is maintaining an extravagant
lifestyle beyond his reported income or where he has continued to be reckless in his
financial affairs. I note that even if the above facts were proved by the creditor, the
court can only delay the discharge of the bankrupt by two years as Parliament in its
wisdom had granted the power to discharge a bankrupt to the DGI. However, I
hasten to add that in this case, from the affidavit of the representative of the DGI,
there is no reason to infer that there has been any abuse of s. 33A . Therefore there
is no reason for me to interfere with the exercise of the statutory discretion which
has been vested in the DGI by delaying the discharge of the bankrupt for a period
two years. The appeal by the creditor is dismissed. No order as to costs.
350 Tohtonku Sdn. Bhd. v. Superace (M) Sdn. Bhd [1992] 1 MLRA
TOHTONKU SDN. BHD.

v.
SUPERACE (M) SDN. BHD
Supreme Court, Kuala Lumpur

Mohd Yusoff Mohamed, Harun Hashim, Ajaib Singh SCJJ
[Civil Appeal No. 02-63-1989]
20 March 1992
JUDGMENT
Mohd. Yusoff Mohamed SCJ:
This is an appeal against the decision of the learned trial Judge who held, on the
preliminary issue, that the intervener had a direct interest in the matter and should
therefore be allowed to intervene in these proceedings. The learned trial Judge also
held, on another preliminary issue, that an ex parte order is always a provisional
order and that being so is always liable to be set aside by the Court on the
application of any person who is affected by the order.
It is settled law, on the authorities, that a party may be added if his "legal interests"
will be affected by the judgment in the action but not if his commercial interests
alone would be affected: per Lord Diplock in Pegang Mining Co. Ltd. v. Choong Sam
& Ors. [1973] 1 MLRA 567; [1973] 1 MLJ 135 . In that case, the Privy Council had
formulated the test to determine whether a party's interests in the matter are "legal"
or merely "commercial" in the following words (at p. 56):
A better way of expressing the test is: will his rights against or liabilities to any
party to the action in respect of the subject matter of the action be directly
affected by any order which may be made in this action?
The answer to that question, as far as the interveners in this case are concerned, are
definitely in the affirmative. We therefore hold that the learned trial Judge was
correct in his decision on this point.
With regard to the merits of the case, the principal issue before the learned trial
Judge was whether the trade mark of the appellant had been infringed by the
intervener. Under s. 35 of the Trade Marks Act 1976 the registered proprietor of a
trade mark in respect of any goods has the exclusive right to the use of the trade
mark in relation to those goods.
Under s. 16 of the Trade Description Act , where any registered proprietor or
registered user of any trade mark finds that his rights in respect of such trade mark
has been infringed, he may apply for an order declaring such infringing trade mark
to be a false trade description for the purposes of this Act.
[1992] 1 MLRA Tohtonku Sdn. Bhd. v. Superace (M) Sdn. Bhd 351
Under s. 38 of the Trade Marks Act , a registered trade mark is infringed by a

person who uses a mark which:
(a) is identical with it; or
(b) so nearly resembling it as is likely to deceive; or
(c) so nearly resembling it as is likely to cause confusion.
On the evidence, the learned trial Judge had held that the appellant's goods and the
intervener's goods were not identical. On the question of resemblance and
likelihood of deception, the learned Judge said that, having regard to "not only the
whole mark" but also to their "distinguishing or essential features", he was satisfied
that:
It is not likely ordinary purchasers would be deceived into regarding the
intervener's product to be the produce of the applicant.
Having so found that the appellant's rights have not been infringed, the learned
Judge consequently held that the appellant was not entitled to the order made
under s. 16 of the Trade Description Act 1972 .
In their submissions during the hearing of their appeal to this Court, Counsel for
the appellant had cited several authorities in support of their arguments, including
Hille International Ltd. v. Tiong Hin Engineering Pte. Ltd.[1983] 3 CLJ 1002 (Rep)
Jordache Enterprises Inc. v. Millennium Pte. Ltd. [1985] 2 MLRH 415; [1985] 1 MLJ
281 and Chong Fok Shang & Anor. v. Lily Handycraft & Anor.[1989] 1 MLRH 299;
[1989] 2 MLJ 348; [1989] 1 CLJ (Rep) 424 .
In Hille International , the plaintiffs were the registered proprietor of a trade mark
"hille" in respect of their product (prolypropylene chair shells) since 1968. The
defendants came out with a similar product under the brand name "CILLY'. The
learned trial Judge, Rajah J held (at p. 1004) that:
I am satisfied that on the evidence before me ... the defendants deliberately
invented the word "CILLY" to deceive and cause confusion in the trade.
The Court, however, held that there was no passing-off as the colors and shapes
used in the manufacture of the product was common to the trade.
In Jordache , the appellants were the registered proprietors of the trade mark
"Jordache" in respect of men's and women's jeans. In May 1982, they appointed a
sole agent in Singapore to distribute their product in Singapore. Whilst
preparations were going on, but before they could launch their product, the
defendants came out with their product under the unregistered trade mark
"Jordane". The learned trial Judge, Thean J held (at p. 283) that:
352 Tohtonku Sdn. Bhd. v. Superace (M) Sdn. Bhd [1992] 1 MLRA
Looking at and listening to the two names "Jordache" and "Jordane", I ineluctably
arrive at a conclusion that one so closely resembles the other as to be likely to
deceive or cause confusion in the course of trade ...
Consequently, the defendants had infringed the plaintiffs' trade mark. The Judge,
however, held that the plaintiffs had failed to establish their claim for passing off.
In Chong Fok Shang, the plaintiffs were the registered proprietors of the trade
mark "Minlon" in respect of their product (knitting yarns). The defendants were
manufacturers of a similar product, which they marketed in 1986 under the trade
"Winlon". The learned trial Judge, Wan Adnan J, held (at pp. 426-427):
The question is ... whether the mark "Winlon" used by the defendants so
nearly resembles the plaintiffs' trade mark "Minlon" as to be likely to deceive
or cause confusion ...
Using the tests which I have earlier referred to and judging from the sound and
appearance of the two words "Minlon" and "Winlon" I find that the defendants'
mark "Winlon" so nearly resembles the plaintiffs' trade mark "Minlon" as to be
likely to deceive or cause confusion. I also find that the mark "Winlon" used by the
defendants would lead persons of average intelligence into accepting the knitting
yarns of the defendants as and for the knitting yarns of the plaintiffs.
The "tests" which Wan Adnan J was referring to were contained in Parker J's
judgment in The Pianotist Co. Ltd. [1906] 23 RPC 774, in the following terms:
You must take the two words. You must Judge them, both by their look and
their sound. You must consider the goods to which they are to be applied.
You must consider the nature and kind of customer who would be likely to
buy those goods. In fact you must consider all the surrounding circumstances;
and you must further consider what is likely to happen if each of those marks
are used in a normal way as a trade mark of the goods of the respective
owners of the marks.
In the instant case, the learned trial Judge had found that "there are two features of
the two marks which are similar, namely, red in colour and split in wording."
However, having regard to the totality of the circumstances of the case, the learned
Judge was apparently satisfied that:
there is no similarity between the two words `mister' and `sister' as to be likely
to cause deception or confusion. The words are different. There is similarity in
the second syllable but as a whole the similarity is not close enough as to be
likely to cause deception or confusion. Further, the get-up of the intervener's
product is green background colour with the picture of a lady whereas the
get-up of the applicant's product is white-blue-grey background colour with the
[1992] 1 MLRA Tohtonku Sdn. Bhd. v. Superace (M) Sdn. Bhd 353
picture of a lady and a man.
We are in agreement, having regard to the "tests" as mentioned by Wan Adnan J

in Chong Fok Shang , citing with approval Parker J's judgment in the The Pianotist
Co. Ltd ., the trial Judge was correct when he concluded that:
Applying the above test and considering the appearance of the two marks
together with their features I find that it is not likely that ordinary purchasers
would be deceived into regarding the intervener's product to be the product of
the applicant.
In the premises, we hold that the appellant's rights in respect of their trade mark
`mister' had not been infringed and their appeal must be dismissed.
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DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG
NOTIS USUL PASCA PENGGULUNGAN NO: PA-29PB-241-09/2021
(PETISYEN KEBANKRAPAN NO: PA-29NCC-842-08/2019)
ANTARA
Chwung Ngee Hock (No K.P.: 681220-07-5095/A1178930) …PEMOHON
DAN
1. Pegawai Penerima Jabatan Insolvensi Malaysia
2. Hong Leong Bank Berhad (No Syarikat: 97141-X)

[yang telah mengambil alih kesemua peniagaan, asset-aset dan liabilti EON BANK
BERHAD melalui satu perintah letakhak Mahkamah Tinggi Kuala Lumpur bertarikh
17.06.2011]
…RESPONDEN-RESPONDEN
DAN
1. Ong Lam Guan

(No. K/P: 690416-08-6129
2. Peh Lee Ling
(No. K/P: 700811-07-5098)
…PENCELAH-PENCELAH YANG DICADANGKAN
IKATAN OTORITI PEMOHON

(LAMPIRAN 5)
Di failkan oleh :
Tetuan Chamber of Jannu Babjan
Peguambela & Peguamcara
No. 97-2-8, The Palazzia,
Jalan Bukit Gambir,
11700 Gelugor, Pulau Pinang.
Ruj Kami: COJB-CIV-526-20(CHUWNG)
Difailkan pada 2022

Encl.13 Ikatan Otoriti Pemohon

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PA-29PB-241-09/2021

(PETISYEN KEBANKRAPAN NO: PA-29NCC-842-08/2019)

Chwung Ngee Hock (No K.P.: 681220-07-5095/A1178930) …PEMOHON

1. Pegawai Penerima Jabatan Insolvensi Malaysia

2. Hong Leong Bank Berhad (No Syarikat: 97141-X)

1. Ong Lam Guan

IKATAN OTORITI PEMOHON

1. ATURAN 15 PERKARA 6 KAEDAH-KAEDAH 1

2. SEKSYEN 139 AKTA INSOLVENSI 1967 2

3. KEJURUTERAAN LETRIK MAN HOE SDN BHD V. MAX- 3-13

4. RE WONG CHONG SIONG, EX P ARAB MALAYSIAN 14-20

5. SEKSYEN 105 AKTA INSOLVENSI 1967 21

6. AFFIN BANK BERHAD V. ABU BAKAR ISMAIL 22-36

7. ASIA COMMERCIAL FINANCE (M) BHD V. BASSANIO 37-43

8. TOHTONKU SDN. BHD. V. SUPERACE (M) SDN. BHD 44-47

9. SEKSYEN 340 KANUN TANAH NEGARA 48

6. Misjoinder and non-joinder of parties (O. 15, r. 6) Cases Referred

(b) order any of the following persons to be added as a party, namely:

139. Notice of application to annul bankruptcy order and stay proceeding.

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RE WONG CHONG SIONG,

High Court Malaya, Johor Bahru

Generalibus specialia derogant is a cardinal principle on interpretation.

priority prescribed and determined by the Bankruptcy Rules 1969. In my judgment,

orders complained of.

[Am. by act A1534/2017]

[Am. by act A1534/2017]

[Am. by act A1534/2017]

(5) [Deleted by act A1534/2017].

AFFIN BANK BERHAD

Federal Court, Putrajaya

Bankruptcy: Adjudication and receiving orders — Annulment of — Whether court

This appeal concerned the law on annulment of bankruptcy under s 105(1) of

Held (allowing the appeal with costs):

Case(s) referred to:

Legislation referred to:

(i) an application to set aside the Bankruptcy Notice on 29 November

(ii) Notice of Intention to oppose the Creditor's Petition on 20 June

and an Adjudication Order (“the AORO”) was recorded against him on 17

(i) he had assets in Singapore in the form of a Singapore Court of

(i) that in an annulment application, the material date for

(i) that on 13 April 2015, pursuant to the Singapore judgment, the

(iii) that the debtor had been awarded costs of SGD$15,000.00.

(ii) when the Singapore judgment was delivered on 20 February 2013,

Proceedings In The Federal Court

(iv) Where a debtor is able to recover monies subsequent to the

(ii) in considering and taking into account the Singapore judgment of

(iii) in considering and relying on the DGI’s lack of ability in assessing

The First Question

“(2) At the hearing the court shall require proof of-

(a) the debt of the petitioning creditor; and

(3) whether the respondent’s non-appearance at the hearing of the

[26] The learned FCJ further said:

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