For a counterclaim to oppose a Bankruptcy Notice, it must be adequately quantified and presented in good faith with reasonable prospects for success, failing which the application will be dismissed.

JUDGMENT

(Enclosure 33)

Nadzarin Wok Nordin JC:

Introduction

[1] In the Notice of Appeal before this Court at enclosure 33 (Appeal), the Judgment Debtor (JD) has appealed against the decision of the Learned Senior Assistant Registrar (SAR), who had on 13 January 2021:

(a) dismissed the JD's application via the JD's affidavit pursuant to s 3 of the Insolvency Act 1967 and r 93 of the Insolvency Rules 2017 to set aside the Bankruptcy Notice dated 17 March 2020 (BN) with costs of RM1,500 (JD's Affidavit);

(b) ordered that the BN was valid;

(c) declaring that the JD had committed an act of bankruptcy in accordance with r 93(2) of the Insolvency Rules 2017; and

(d) allowing the Judgment Creditor (JC) to file the Creditor's Petition (CP) after the said act of bankruptcy.

[2] In the JD's Affidavit affirmed on 7 August 2020 and in a further affidavit affirmed on 28 September 2020, the JD had averred that the JD had a counter claim, set off or cross demand which equal to or exceeds the amount of the judgment debt or sum ordered to be paid and which he could not set up in the action in which the judgment was obtained or in the proceedings in which the order was obtained, being the Civil Suit filed at the Kuala Lumpur High Court No WA- 24NCVC-484-03/2019 (Civil Suit 484).

Background Facts

[3] The JD is the executor of the estate of the late Sian Poh Burke ("Deceased"). The JC is a University, and is the beneficiary of the residue estate for the establishment of a Scholarship.

[4] After demise of the Deceased, the JD failed to execute the will of the estate of the Deceased in accordance with the laws of British Columbia, and the JC commenced proceedings against the JD in British Columbia ("Canadian Proceedings").

[5] The JC was successful in obtaining Orders in British Columbia against the JD ("Canadian Orders").

[6] The JD returned to Malaysia, and the JC filed an Originating Summons in Kuala Lumpur High Court ("OS") to enforce the Canadian Orders ("Malaysian Order"). The Order dated 9 January 2020 is annexed as Appendix B.

[7] The JD failed to satisfy the Malaysian Order, and the JC filed the BN to adjudicate her a bankrupt. JD challenged the BN under s 3 of the Insolvency Act 1967 and r 93 of the Insolvency Rules 2017. The learned Registrar dismissed the JD's application to set aside the BN.

Judgment Debtor's Submissions

[8] In this respect, the JD had submitted inter alia that:

a) the counter claim, set off or cross demand which arose from the last Will of one Sian Poh Burke ("Deceased") dated 21 September 2011 (Will);

b) the amount claimed by the JD as a counter claim, set off or cross demand is of equal or exceeds the amount claimed in the BN;

c) the JD was unable to raise the counter claim, set off or cross demand where the Judgment or Order was obtained against the JD;

d) the order relied on by the JC in the BN arose from the Civil Suit 484 whereby a judgment in Default dated 31 May 2018 in a Civil Claim No S-1710222 at the Supreme Court of British Columbia (Canadian Proceedings) and an order dated 21 November 2017 in the Notice of Application No.P-123349 in the Supreme Court of British Columbia;

e) at the said time, the JC had begun a similar proceedings as that in the Canadian Proceedings at the Kuala Lumpur High Court Civil Suit No: WA-22NCVC-680-12/2017 (Suit 680) whereby such actions by the JC was oppressive and/or amounted to a harassment which inter alia badly prejudiced the JD which resulted in a high amount of costs to defend the 2 said cases in 2 different forums;

f) the JD was unable to bear the costs of defending the Canadian Proceedings at that material time;

g) the JD had just engaged a new lawyer in the Canadian Proceedings and as the case involved a long and complicated history, the JD's new lawyer was to file an application and/or take the necessary action in the Canadian Proceedings to state that the JD had a counter claim, set off or cross demand which equal to or exceeds the amount of the judgment debt or sum ordered to be paid an