PREPARED BY:

LIM SIN QIAO 1132700072

JONATHAN LEE JIA LE 1132700076
 Brief Facts
• On 3/3/2016, OBB obtained JID against Tom in KL High
Court for USD250,000/- together with interest & costs.
• Tom did not apply to set aside the JID.
• On 5/5/2016, BN was filed & served personally on Tom
but Tom ignored it. OBB converted the judgment sum into
RM as at the date of the judgment.
• On 3/6/2016, OBB filed & served a CP with affidavit on
Tom. The CP & the affidavit was both dated on 2/6/2016 &
was attested by a solicitor from Kuching, Sarawak.
• The hearing of CP was fixed on 4/7/2016 at the KL High
Court.
• Tom intends to set aside the BN & oppose the CP on
the grounds:
– the JID is not a final judgment;
– the BN is irregular because OBB coverted the judgment sum
in USD into RM as on the date of the judgment rather than
on the date of the BN;
– the CP is defective because of the affidavit verifying the
petition was affirmed prior to the presentation of the CP;
– the CP is defective because it was affirmed by a solictor in
Kuching, Sarawak;
– the affidavit verifying the petition is ins to prove the debt. The
debt must be proved again at the hearing of the petition.
Issue 1: Whether JID is a final judgment?

• Re Udos ak Rigging exp Seabanc Kredit S/B [1994] 3

MLJ 383
– JID is not a final judgment in the event that the JD filed
application to set aside the default judgement within 30 days.
• Application:
– JID obtained on 3/3/2016, Tom may apply to set aside the JID
within 30 days but he did not apply to set aside. Hence, the JID
has became a final judgment at the expiry of the 30 days.
Issue 2: Whether the judgment sum id to be converted as
on the date of the judgment or the date of the BN?

• Kay Hian Pte Ltd v Ma Boon Lan [2014] 1 CLJ

464
– Held:
• JC must quantify the exact amount owing in the BN;
• wrong exchange rate applied would render the BN invalid;
• JD must know the exact amount due at the date of BN &
was not required to make calculations or enquiries on the
actual exchange rate as at the date of the judgment.
• Application:
– The exchange rate to be used for conversion of the
judgment debt is the one as at the date of the judgment,
hence OBB has converted the judgment debt using the
correct exchange rate.
– If the exact amount is not quantified in the BN, Tom still
can challenge the validity of BN on uncertainty or
ambiguity.
Issue 3: Whether the affidavit verifying the petition dated on
the same date as on the CP renders the CP defective?

• Re Ho Weng Keong ex p Marketlink (M) S/B

[1993] 1 MLJ 60
– Held:
• Nowhere in the Rules / the Act is stated that the
affidavit verifying the CP must be affirmed after the
filing / presentation of the petition. The petition is
valid despite the affidavit verifying the petition was
dated the same day as the petition.
• Re Koh Kim Kuay Ex P MBf Finance Bhd. [1995] 1 MLJ 792
– Held:
• Although s.6(1) BA 1967 & R.106 BR 1967 provides that a CP shall be verified by
affidavit, the do not prescribe the time as to when the affidavit is to be affirmed.
• it has been generally accepted that the effect of the rules is that every CP
presented without an affidavit verifying the petition annexed to it would not be
received by the registrar. Accordingly, it is clear that the affidavit verifying the
petition has accordingly to be affirmed prior to the presentation of CP, & not after
that.

• Application:
– The CP would not be defective on the ground that the
affidavit verifying petition was dated on the same date ie.
2/6/2016 as there is no rules requiring the affidavit to be
affirmed after presentation of petition.
Issue 4: Whether the attestation by a solicitor from Kuching,
Sarawak would render the CP defective?

• R.101 :
– Every bankruptcy petition must be attested. If it be
attested in the Federation, the witness must be a
solicitor / Federal Counsel / Magistrate / Director
General of Insolvency / Registrar; or if it be attested
out of the Federation, the witness must be a Judge /
Magistrate / Consul / Vice-Consul / Notary Public.
• Lie Kok Keong v Tang Container & Services Sdn
Bhd [2004] 1 MLJ 373
– Held:
• An advocate & solicitor of the High Court in Malaya is not
authorized to practise in Sarawak, he too cannot attest a petition in
Sarawak even though the petition is to be filed in Penang.
• Application:
– Solicitors in Peninsular M'sia are not allowed to attest a
petition from Sabah & Sarawak, & vice versa.
– The petition attested by a solicitor from Kuching, Sarawak is
not a valid attestation, thus the CP is defective.
Issue 5: Whether the debt must be proved again at the
hearing of the petition?

• S.6(2): on the hearing the court must be satified that:

– the creditor's debt is in existence,
– the act(s) of bankruptcy lleged in the petition,
– the service of the petition, if debtor does not appear.
• S.6(3): if the court is not satisfied with the proof proving what are
mentioned in s.6(2), or is satisfied that debtor is able to pay the
debts, or other sufficient cause, the court may dismiss the petition.
• Application:
– OBB must prove the debt again in the hearing of the petition.
 Conclusion
• the JID has became final judgment as it was not set aside after
expiry of 30 days;
• the judgment sum from USD into RM is to be converted on the
rate as on the date of judgment;
• the affidavit verifying the petition dated the sma edate as the
petition does not render the petition defective;
• CP filed in Peninsular M'sia cannot be attested by the solicitor
from Kuching, Sarawak; &
• OBB is to prove the debt again at the hearing of the petition.