VC George J

This motion dated 4 December 1991 is by the bankrupt, Peh Kong Wan, seeking to set aside the receiving order and the adjudication order entered against him on 14 September 1988.

On 21 September 1976, the petitioner bank had obtained judgment against Peh and his co-defendants in the sum of $1.5m with interest and costs.

Almost 12 years later, on 8 March 1988, the bank obtained leave to enforce the judgment. Thereafter they attempted to serve a bankruptcy notice on Peh. This was eventually effected by substituted service — by posting a copy of the notice on the front door of No 7 Lorong Batai Tepi, Kuala Lumpur, referred to as the premises of the judgment debtor and on the court's notice board and by advertisement, the order for which was obtained on the averment by the advocate and solicitor having the conduct of the matter that to the best of her information, knowledge and belief, Peh was within the states of Malaysia. The basis for this information, knowledge and belief was not disclosed. There being no response to the bankruptcy notice, the petition was presented. In para 1 of the petition, it was averred that Peh 'is domiciled in the Federation or within one (1) year before the date of presentation of the petition has ordinarily resided in the Federation'.

The petition was also served by way of substituted service by posting a copy thereof on the court's notice board and on the front door of No 7 Lorong Batai Tepi, Kuala Lumpur again referred to as the judgment debtor's premises.

When the petition was called for disposal on 14 September 1988, the respondent was absent and accordingly the petition was treated as an unopposed petition and receiving and adjudication orders were made.

By affidavit in support of this motion, Peh in effect says that he was unaware of the petition having been presented against him, and that since 1976 he has not been ordinarily residing in Malaysia and that he 'was not domiciled in the Federation within one year before the date of presentation of the petition' and that accordingly the petitioner in fact had not been entitled to have presented the petition because s 5(1)(d) of the Bankruptcy Act 1967 provides that:

A creditor shall not be entitled to present a bankruptcy petition against a debtor unless —

(d) the debtor is domiciled in the Federation or in a State or within one year before the date of the presentation of the petition had ordinarily resided or had a dwelling house or place of business in the Federation or has carried on business in the Federation personally or by means of an agent or is or has been within the same period a member of a firm of partnership which has carried on business in the Federation by means of a partner or partners or an agent or manager.

Peh has, first of all, to give a satisfactory explanation for the lapse of time between his having been made a bankrupt and this application. If he succeeds in doing that, in the context of this application, he has next to satisfy the court that at the relevant time he did not fall within any of the terms of s 5(1)(d).

The affidavit evidence shows that in 1976 Peh had left Malaysia and his family had accompanied him. In that year he sought and obtained permanent resident status in Singapore. Initially he worked in Singapore and in Hong Kong. In 1988 he went to work in Jakarta. After he left Malaysia, according to Peh, he ceased to have a dwelling house here and he did not carry on any business here. He says that he did not and does not have any property here and apart from his guarantee the subject of the judgment he had and has no liabilities here.

The court file shows that in seeking to effect service on Peh at his last known address, the bank's process server was told in April 1988 that Peh no longer resided there and that the house was occupied by the then Minister of Health. It seems not improbable that a bankruptcy notice against him had been posted on the front door of that house and on the court's no