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2021 MarsdenLR 74
HIGH COURT MALAYA KUALA LUMPUR
BER: TAI KOK KEONG @ TAY KOK KEONG; EX PARTE: LAFARGE CONCRETE (MALAYSIA) SDN BHD (ENCLS 60 & 61)
[Bankruptcy No: WA-29NCC-108-01/2020]
Once an extension order is perfected, it cannot be altered; the Judiciary is functus officio regarding such matters, upholding the finality of court orders.
Headnote:(A) Bankruptcy Act – Extension of time for Bankruptcy Notice – The Court must respect the finality of orders once perfected – The 16 July 2020 EOT Order was the last extension for the Bankruptcy Notice and could not be altered thereafter – The 10 August 2020 Order is invalid as it contravenes the finality of the 16 July 2020 Order. (Paras 20, 22, 24)
Facts of the case: The judgment debtor appealed against two decisions by the Penolong Kanan Pendaftar dismissing applications to set aside a Bankruptcy Notice and an Order for Extension of Time amid claims of lack of notice and delays in procedural applications.
Findings of Court: The Court upheld the principle that a perfected order cannot be reopened, confirming the Bankruptcy Notice had expired as per the earlier extension granted.
Issues: Whether the 10 August 2020 EOT Order was valid given prior orders.
Ratio Decidendi: The Court ruled that once an extension order is perfected, it is functus officio and cannot be altered, maintaining the integrity of previous orders.
Result: Appeals allowed.
JUDGMENT
Enclosures 60 & 61
[1] Before this Court are 2 appeals namely:
i) enclosure 60 which is the judgment debtor, Tai Kok Keong @ Tay Kok Keong (JD) appeal against the decision of the learned Penolong Kanan Pendaftar (PKP) given on 29 January 2021 (Enclosure 60 Appeal) whereby the PKP had dismissed the JD's application vide Summons in Chambers dated 9 November 2020 in encl 33 (encl 33 Order) to set aside the Bankruptcy Notice dated 16 January 2020 (BN) issued by the judgment creditor, Lafarge Concrete (Malaysia) Sdn Bhd (JC) with costs of RM1,000; and
ii) enclosure 61 being another appeal by the JD against the decision of the learned PKP also given on 29 January 2021 (encl 61 Appeal) which dismissed the JD's application vide Summons in Chambers dated 9 November 2020 in encl 35 (encl 35 Order) to set aside the Order for Extension of Time dated 10 August 2020 with costs of RM1,000
[2] Both the subject matter of the encl 60 Appeal and the encl 61 Appeal i.e the respective Summons In Chambers dated 9 November 2020 were heard together on the same day by the PKP after which the encl 33 Order and the encl 35 Order were made by the PKP.
Background Facts
[3] The BN was issued on 16 January 2020 and on the same date the JC had applied for an Order for Extension of Time to extend the BN (1st EOT Application) on the ground that the Movement Control Order (MCO) was effective up to 12 May 2020.
[4] The Court had granted order in terms for the 1st EOT Application on 1 June 2020
[5] The JC had thereafter attempted to serve the BN on the JD on 1 June 2020 and 9 June 2020 respectively but was unsuccessful after which the JC had issued a notice of Appointment to serve the BN dated 22 June 2020 on the JD.
[6] Subsequently the JC once again on 15 July 2020 applied for a further Order for Extension of Time to extend the BN (2nd EOT Application) as well as an application to serve the BN by way of substituted service (SS Application).
[7] The Court had thereafter on 16 July 2020 granted order in terms for the SS Application and allowed the 2nd EOT Application for a period of 1 month from 15 July 2020 to 15 August 2020 (16 July 2020 EOT Order).
[8] Another application for another Order for Extension of Time to extend the BN was made on 7 August 2020 (3rd EOT Application) wherein the Court had granted order in terms on 10 August 2020 to extend the BN for a further 1 month from 16 August 2020 to 15 September 2020 (10 August 2020 EOT Order).
[9] The JC thereafter advertised and posted the BN which was deemed served on the JD o
Judgment Debtor's Submissions
[10] In the JD's submissions for both the encl 60 Appeal and the encl 61 Appeal the JD claims that he had at all material times not received any of the cause papers and had no knowledge of the bankruptcy proceedings, and that he only came to know of the same after being informed by a bank officer of the said bankruptcy proceedings.
[11] It is submitted by the JD that immediately upon being informed of the bankruptcy proceedings herein, the JD had appointed a lawyer to act for him in the same.
[12] The JD submits inter alia that:
(a) the encl 35 Order is invalid and defective; and
(b) the BN and the service thereof is invalid and defective
[13] The JD contends that:
(i) there was a delay of 20 days by the JC in making the 1st EOT Application i.e from 13 May 2020 to 1 June 2020
(ii) there was a delay of 23 days by the JC in making the 2nd EOT Application i.e from 23 June 2020 to 15 July 2020
(iii) the amounts as stated in the BN are disputed
(iv) the bankruptcy proceedings are pre mature
[14] It is submitted by the JD that the Court had when granting both the 16 July 2020 EOT Order and 10 August 2020 EOT Order respectively, made an additional order that this was to be the last extension to be granted on both occasions, and accordingly the 10 August 2020 EOT Order is invalid and cannot be effected and should be set aside on the ground that when the Court had granted the 10 August 2020 EOT Order, the Cou
