JUDGMENT

Kang Hwee Gee J:

Enclosure 66

[1] This is an appeal by the defendants against the decision of the Senior Assistant Registrar in dismissing their application to compel the plaintiffs to produce documents which are in the possession of the plaintiffs. The said documents are numerous agreements signed between the plaintiffs and the defendants referred to in the plaintiffs' statement of claim which the plaintiffs are relying on to prosecute their claim.

[2] The application is made under O. 24 r. 10 of the Rules of the High 1980 which read as follows:

10. (1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 43 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof.

(2) The party on whom a notice is served under paragraph (1) must, within 4 days after service of the notice, serve on the party giving the notice a notice in Form 44 stating a time within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which (if any) of the documents he objects to produce and on what grounds.

[3] The defendants served on the plaintiffs the requisite notice requiring the documents to be produced for their inspection. The plaintiffs did not comply with the notice and hence the application before the Senior Assistant Registrar.

[4] The plaintiffs objected to the application on the ground that the person who affirmed the affidavit supporting the application was at that time a bankrupt and was therefore incapacitated under s. 38(1)(d) of the Bankruptcy Act 1967 to affirm the affidavit. Section 38(1)(d) read as follows:

The bankrupt shall not, except with the previous permission of the Director General of Insolvency or of the Court, enter into or carry on any business either alone or in partnership, or become a director of any company or otherwise directly or indirectly take part in the management of any company;

[5] See case law The Topps Co Inc v. Mally Jaya Sdn Bhd , [1998] 5 MLJ 744 at Held (1) and (2):

(1) The mere fact that a deponent is an undischarged bankrupt does not deprive him of any legal competency in affirming an affidavit in support of the ex parte application for use in any Court proceedings (see pp. 748I and 749A).

However, the status of a deponent who is an undischarged bankrupt is a material fact which must be made known to the Court. It is trite law that in an ex parte application, the applicant is legally bound to make full and frank disclosure of all material facts, since such an application is an application of utmost good faith or uberrimae fidei (see p. 749C-D); Ooi Bee Tat Development Sdn Bhd v. Ooi Bee Tat[1985] 1 MLRH 246, [1985] 1 CLJ 449 and Kibi (M) Sdn Bhd & Yang Lain lwn. Cheng Chew Chye (t/a Chuan Heng Import & Export) & Yang Lain[1994] 3 MLRH 642; [1995] 1 AMR 399 followed.

The non-disclosure of this material fact pertaining to the deponent's capacity as undischarged bankrupt has fallen short of the standard of utmost good faith and the ex parte order should on this ground alone be set aside (see p. 749D-E); Tunas (Pte) Ltd v. Mayer Investment Pte Ltd , [1989] 2 MLJ 132; PMK Rajah v. Worldwide Commodities Sdn Bhd ; [1985] 1 MLJ 86; Ellinger v. Guinness Mahon & Co [1939] 4 All ER 16 and Creative Furnishing Sdn Bhd v. Wong Koi; [1989] 1 CLJ (Rep) 22; [1989] 2 CLJ 93 ; [1989] 2 MLJ 153 followed.

(2) The deponent cannot, by virtue as his status as an undischarged bankrupt, in the absence of previous permission of the Official Assignee or of the Court under s. 38(1)(d) of the Bankruptcy Act 1967 hold the position of a general manager. Sections 38(1)(d) and 109 of the Bankruptcy Act 1967 clearly prohibit an undischarged bankrupt from otherwise directly or indirectly taking part in the management of any com