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2011 MarsdenLR 4093
HIGH COURT MALAYA KUALA LUMPUR
WONG MENG CHOW – Appellant
Versus
RHB BANK BERHAD – Respondent
[Bankruptcy No: D-29-3053-2010]
The burden of proof for establishing a change of domicile rests on the party claiming it, requiring both factual evidence and intention to reside permanently.
Headnote:(A) Bankruptcy Act 1967 - Section 5(1)(d) - Conditions for Creditor's petition - The appeal against the dismissal of the application to set aside the Bankruptcy Notice was based on the claims of non-residence and non-domicility in Malaysia, and the assertion of solvency. The court ruled that the issue of solvency should be addressed at the hearing of the Creditor's Petition, not at the application stage. The evidence of the Judgment Debtor was deemed insufficient to prove a change of domicile. (Paras 5-9)
Facts of the case:
The Judgment Debtor alleged he resided and was employed in Cambodia since 2008, supported by various documents. The Deputy Registrar dismissed his application to set aside the Bankruptcy Notice.
Findings of Court:
The presented evidence was insufficient to satisfy the necessary burden of proof for establishing a change of domicile from Malaysia to Cambodia. The appeal was dismissed with costs.
Issues: The primary issues included whether the Judgment Debtor had established his non-residence and non-domicility claims adequately and whether solvency could have been pleaded at this procedural stage.
Ratio Decidendi: The court emphasized that the burden of proof for a change of domicile rests with the party alleging it, and the mere presence of employment abroad does not suffice to demonstrate such a change. Evidence presented failed to meet the legal standard required for proof.
Result: Appeal dismissed with costs of RM 2000 to be paid by the Judgment Debtor.
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| 1. grounds for appeal against bankruptcy notice (Para 1 , 2 , 3) |
(1) He is not resident in Malaysia;
(2) He is not domiciled in Malaysia; and
(3) He is solvent.
Section 5(1) (d) of the Bankruptcy Act 1967 was raised:
"5. Conditions on which Creditor may petition. (1) A Creditor shall not be entitled to present a Bankruptcy Petition against a Debtor unless -
(d) the Debtor is domiciled in Malaysia or in any state or within one year of the date of the presentation of the petition is ordinarily resided or had a dwelling house or place of business in Malaysia or has carried on business in Malaysia personally or by means of an agent or is or has been within the same period a member of a firm or partnership which is carried on business in Malaysia by means of a partner or partners or an agent or manager."
As for the third ground, based on the alleged solvency of the Judgment Debtor, section 6 was marshalled in support, and this provision reads:
"6. Proceedings and order on Creditor's Petition.
(1) A Creditor's Petition shall be verified by the affidavit of the Creditor or some other person on his behalf having knowledge of the facts, and shall be served as prescribed.
(2) At the hearing the court shall require proof of -
(a) the debt of the petitioning Creditor; and
(b) the act of Bankruptcy or, if more than one act of Bankruptcy is alleged in the same petition, some one of the alleged acts of Bankruptcy; and
(c) if the Debtor does not appear, the service of the petition, and if satisfied with the proof may make a receiving order in pursuance of this petition.
(3) If the court is not satisfied with the proof of the petitioning Creditor's debt or the act of Bankruptcy or the service of the petition, or is satisfied by the Debtor that he is able to pay his debts, or that some other sufficient cause no order ought to be made, the court may dismiss the petition.
I found the grounds for the appeal unsubstantiated on the facts as well as on the law, particularly in relation to ground (3). An issue of "solvency" of the Judgment Debtor is to be raised at the hearing of the Creditor's Petition, not at the hearing of any application to set aside the Bankruptcy Notice of the Creditor's Petition. Subsection (2) of section 6, and its reference to the court shall require proof of, "the debt of the petitioning creditor", and subsection (3) with its reference to the court being satisfied "by the Debtor that he is able to pay his debts", all point to the requirement of the law that this is a matter which must be raised at the hearing of the petition and not earlier.
Having perused the record and the grounds provided by the Deputy Registrar in support of the decision to dismiss the Judgment Debtor's application, I could find no error of law or any misapplication of the law on the facts, and thus dismissed the appeal with costs of RM 2000 to be paid by the Judgment Debtor to the Judgment Creditor.
The Judgment Debtor argued that he was presently not domiciled or resident in Malaysia, but had moved to Cambodia to work in the country since 2008. The evidence relied in support of his argument consisted of the following:
(i) Two letters of appointment (executed as "WMC - 2" and "WMC -3" to his affidavit affirmed on 19.7.2011) to show that he had commenced employment in Cambodia since 12 June 2008.
(ii) A Lease Agreement dated 1 September 2009 to show that he was currently residing in Cambodia, which period of tenancy was for three years from 1 February 2010 until 1 February 2013 (Exhibit "WMC - 5" to his affidavit affirmed on 19 September 2011).
(iii) Evidence of his income tax payments to the Cambodian authorities by tendering in two documents described as "Tax On Salary Certification" (Exhibit "WMC - 3").
(iv) Evidenc
