The court held that the Director General of Insolvency's discretion to issue a discharge certificate is not absolute and must consider public interest and the bankrupt's financial disclosures.

JUDGMENT

Ahmad Murad Abdul Aziz J:

Introduction

[1] This is the 2nd Respondent's, appeal against the decision of the Senior Assistant Registrar ("SAR") allowing the Plaintiff's application pursuant to s 33B(4) of the Insolvency Act 1967 (" IA ") to prohibit he Director General of Insolvency ("DGI") from issuing a certificate of discharge to the Bankrupt ("the 2nd Respondent") pursuant to s 33A(1) of the .

Background Facts

[2] The 2nd Respondent was adjudged a bankrupt on 12 June 2012 and is placed under the administration of the DGI.

[3] On 22 April 2022, the DGI issued a written notice to the Judgment Creditors ("1st Written Notice"), informing the Plaintiff of its intention to issue a Certificate of Discharge ("Certificate of Discharge") for the 2nd Respondent to be discharged from bankruptcy.

[4] In response, the Plaintiff through its solicitors issued a Notice of Objection dated 26 May 2022 (("1st Notice of Objection") objecting to the issuance of such Certificate of Discharge for the 2nd Respondent.

[5] In reply, the DGI then issued a letter dated 30 June 2022 informing the Plaintiff that the Plaintiff's objection was accepted and the 2nd Respondent will retain her status a bankrupt.

[6] However, within a span of 5 months after issuing the 1st Written Notice, the DGI once again issued another written notice dated 16 November 2022 to the Plaintiff informing its intention to issue a Certificate of Discharge ("2nd Written Notice").

[7] In response, the Plaintiff once again through its solicitors, issued a Notice of Objection dated 17 November 2022 ("2nd Notice of Objection") objecting to the proposed issuance of the Certificate of discharge for the 2nd Respondent.

[8] On 3 February 2023, the DGI issued a letter to the Plaintiff's solicitors, rejecting the Plaintiff's objections based on the foregoing reasons:

a. The matter has been under administration for more than 10 years;

b. The 2nd Respondent is currently 69 years old and lacks the capacity to contribute to its estate;

c. The 2nd Respondent is a single mother who relies on her pension money;

d. The 2nd Respondent has no assets to be realised for the Plaintiff; and

e. Further administration of this case would not bring any benefits to its estate and is a waste of public resources.

The Law

[9] The application filed by the Plaintiff is pursuant to s 33B(4) of the Insolvency Act 1967 . The relevant provision is reproduced below:

(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 form issuing a certificate of discharge.

[10] In the case of Re: Benny Ong Swee Siang ; Ex Parte: United Overseas Bank (Malaysia) Berhad; [2016] 8 MLJ 805; [2016] 3 CLJ 1001 Lim Chong Fong JC (as he then was) held at paragraph 19 that:

"[19] From my reading of ss 33A and 33B of the Bankruptcy Act 1967, the DGI does not have the absolute discretion to issue the certificate of discharge. The DGI's exercise of the discretion is plainly subjected to the provisions in s 33B. It must be made judiciously depending on the circumstances of each case. In the Supreme court case of Savrimuthu Sinnapan v. PP ; 1986 MarsdenLR 843 ; [1987] CLJ (Rep) 322 , Salleh Abas LP held that public interest, reason and justice demand that any statutory power must be exercised reasonably and with due consideration."

Plaintiff's Submission

[11] The 2nd Respondent owns substantial assets (Lands) as follows:

11.1 The 2nd Respondent is currently the legal and registered proprietor of 4 lots of land in Terengganu, namely Lot 141, 142, 144 and 146, Mukim Merang, Wakaf Ru Tapai, Setiu;

11.2 Constructed on these 4 lots of land is a beach resort known as Sutra Beach Resort;

11.3 A quick online search reveals that the Sutra Beach Resort is available for booking at we