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Bankruptcy Case Presentation
Bankruptcy Case Presentation
SECTION
5(1)(d) BA
DOMICILE
CONCLUSI
ON
English
Court of
Appeal
Discussed the meaning of Where it is
proved to the satisfaction of the court
that the debts of the bankrupt are paid
in full
The language of
this Act, interpreted
according to its
natural meaning.
Thus, to him the
payment must be
required in full and
nothing less than
that
DEBT
At least all debts
actually and
properly proved in
the bankruptcy.
PAID IN FULL
Fully paid in cash
Being satisfied by
unconditional
release given to the
bankrupt by the
creditors does not
count.
Therefore, where
debts properly
proved were
subsequently
released, because
the creditors had
decided to try to
help the debtor
start in business
again, the
bankruptcy could
not be annulled on
the grounds of
payment in full.
Respondent filled a
motion to have the
ROAO annulled on the
ground that debt has
been paid in full.
September 10,
1976
Appellant had
obtained judgment
against the
respondent- $30K.
July 5, 1982
Both Receiving and Adjudication
Orders were made against the
bankrupt.
Bankrupt's husband approached the
appellant with a view to effect a
settlement in order to enable the
bankrupt to apply to the Court to
have the adjudication order annulled
1979
A sum of $15,000.00 was paid
towards reduction of the judgmentdebt.
1981
The balance still due and owing plus
accumulated interest was $30,000.00
or thereabout.
October 1981
The appellant caused a
Bankruptcy Notice to be
issued against the bankrupt
and this was followed by the
Creditor's Petition
TRIAL
COURT
COA
FC
The learned Judge erred in law and in fact in holding that the bankrupt had satisfied the
second limb of section 105(1) of the Bankruptcy Act 1967 "where it is proved to the
satisfaction of the court that the debts of the bankrupt are paid in full ... the court may
annul the adjudication"..
The bankrupt was not applying for an order of discharge but was applying for an order
annulling her adjudication.
The effect of this is to wipe out the bankruptcy altogether and put the bankrupt in the same
position as if there had been no adjudication order.
It appears to us that the case of In re Keet ( supra) had not been cited to the
Court below and if the attention of the learned Judge had been drawn to this
authority he might not have exercised the discretion and made an Order as
prayed. On the affidavit evidence adduced before the learned Judge, in our
opinion, the bankrupt had failed to satisfy that the proved debt lawfully due
to the appellant had been paid in full in cash. For these reasons we allow the
appeal of the appellant and set aside the order of the learned Judge in
annulling the adjudication order. The appellant is clearly entitled to its costs
here and in the Court below. The deposit to be refunded to the appellant.
Re Peter Wong, Ex
Parte the Debtor
[1958] MLJ 116
Annulment- Section 105 BA
Ground: Debts settled in full
COURT TAKES INTO CONSIDERATION OF THE BANKRUPTS
CONDUCT.
Annulment of
ROAO on the
ground; the
act of
bankruptcy
relied upon is
invalid.
11th ay 1987
ROAO were
made
against
debtor.
Applicants contended
that the bankruptcy
notices were invalid
and therefore the
whole bankruptcy
proceedings were a
nullity and ROAO ought
not to have been made
in the frist place.
HEL
D
Even if the law allows to annul the
ROAO for being void ab initio, this
will cause serious prejudice to the
creditors.
By allowing so, this will lead to
flood gates of other application
under the same basis.
Section 105(1) BA is
discretionary.
Must still be exercised with
proper principles.
Must consider the interest of the
affected parties.
In this case, the applicants did
not reason out to the court for
the delay of this application