The court emphasized that technical non-compliance should not prevent the annulment of a Bankruptcy Order, prioritizing justice and the directors' protection from personal liability for company debts.

JUDGMENT

Wong Mee Ling JC:

introduction

[1] This is an appeal by the Judgment Debtors' ("JDs"‌) to the Judge in chambers against the decision of the learned Deputy Registrar ("DR") who struck out the JDs application to annul the Bankruptcy Order dated 11 May 2021 under s 105(1) of the Insolvency Act 1967 [Act 360].

[2] The Appellants in these appeals are the JDs and the Respondent is the Judgment Creditor ("JC"‌).

[3] Both the JDs were the directors of the Company, namely Hawaii Bakery & Food Industries (M) Sdn Bhd (the "Company"‌). The appeal for this case have been consolidated with another case JA-29PB-410-07/2022 and was heard together by this Court on 12 July 2023. The Court dealt with these appeals together as it involved the same facts

[4] After having read the grounds of the judgment of the DR, parties' Affidavits, written submissions and the oral submissions, the Court allows the JDs' appeal with no order as to costs.

[5] Dissatisfied with the decision of this Court , JC has filed the appeal against the decision of this Court for the case of JA-29PB-40907/2022 on 26 July 2023 and the appeal against the decision of this Court for the case of JA-29PB-410-07/2022 on 9 August 2023.

[6] The grounds are prepared for both the appeals as it involved the same facts.

Background

[7] Initially, the JC has brought an action against the respective JD through bankruptcy No JA-29NCC-827-08/2020 (the original suit) in which Bankruptcy Order was recorded against the JDs on 11 May 2021 without the presence of the JD.

[8] The Director General of Insolvency ("DGI"‌) has sent a letter dated 26 October 2021 to request the JDs to contact the officer in charge via the attached telephone number to set an appointment date. However, the JDs failed to do so.

[9] Subsequently, the DGI sent a final reminder through a letter dated 8 November 2021 for the JDs to contact the officer in charge for the purpose of initial identification and process. The JDs failed to do so and subsequently filed an application on 12 July 2022 to set aside the Bankruptcy Order (the "Application"‌) pursuant to subsection 105 (1) of Insolvency Act 1967 [Act 360] which was registered as JA-29PB-409- 07/2022 (this present suit).

[10] However, the learned DR had struck out the JDs' applications with liberty to file afresh.

Court Analysis And Findings

Principles Governing Appeals To Judge In Chambers

[11] This Court takes guidance from the Federal Court case of Tuan Haji Ahmed Abdul Rahman v. Arab-Malavsian Finance Berhad; [1996] 1 MLJ 30; [1996] 1 CLJ 241; [1996] 1 AMR 215 where His Lordship Edgar Joseph JR FCJ held that:

"In appeals to a judge in chambers from the decision of a registrar of the High Court , the judge is not exercising appellate jurisdiction in the same sense as when he hears appeals from judgments, decisions or orders of the subordinate courts. The appeals from decisions of the registrar are by way of an actual rehearing and the judge treats the matter as though it comes before him for the first time. The judge is therefore not confined to the points taken before the registrar, so that the rule about new points being not generally open to an appellant to take on appeal does not apply."‌

[Emphasis Added]

[12] According to the above case, the appeal is by way of a re-hearing of the Application. The Court is empowered to oversee the whole matter in a wider approach and is not confined to issues raised by parties during the appeal.

Issues

[13] There were several issues brought up by the parties. However, this Court finds that there are three main issues which will be decisive of this appeal, namely:

(a) whether the failure of the JDs to file their SOA is fatal to their applications to annul the Bankruptcy Order;

(b) whether the director can be annulled bankrupt after the Company's debt has been settled; and

(c) whether the failure of the JDs to satisfy the Proof of Debts ("POD"‌) which was filed before and after the Application for annulment will affect their a