Abdul Hamid Mohamad JCA:

I have had the advantage of reading the draft judgment of my brother Abdul Aziz Mohamad who has set out the facts in great detail. In this judgment I shall only state the facts briefly.

On 11 August 1983, Laksamana Realty Sdn. Bhd. ("Laksamana") entered into an agreement with Goh Eng Hwa ("Goh"). According to the agreement, in consideration of RM30,000 paid by Laksamana to Goh, Goh agreed, inter alia,to deliver vacant possession of the land in question by 15 August 1984. Goh failed to do so. On 7 November 1991, Laksamana filed Civil Suit No. 22-144-1991 claiming vacant possession of the said land. On 10 April 1992 Goh entered appearance. On 16 April 1992 Goh was adjudged bankrupt. As Goh did not file his defence, on 26 May 1992, Laksamana entered judgment in default. The order required Goh to deliver vacant possession in 30 days. Again Goh failed to comply. On 20 June 1995 Laksamana obtained a writ of possession.

On 8 September 1995 the official assignee wrote to the court informing the court that "kebenaran telah diberi kepada sibankrap (Goh - added) untuk meneruskan tindakan kes Guaman Sivil No. 22-144-91".

On 15 September 1995 Goh applied for an order to set aside the judgment in default and for a stay of execution of the judgment. The application was fixed for hearing on 8 September 1995. However, one week earlier, on 1 September 1995, the writ of possession was executed.

On 17 October 1995, Goh filed another application praying for similar orders. This second application was heard and the judgment in default was set aside. An order for a stay of execution was also granted. This happened on 28 November 1995.

On 9 December 1995 Goh filed his statement of defence and counterclaim. Goh having agreed to deliver vacant possession, only Goh's counterclaim was left to be tried. In his counterclaim, Goh alleged that Laksamana had wrongfully demolished the premises and removed certain goods of his which was subsequently lost and committed trespass on land. He claimed damages for all that.

The trial of Goh's counterclaim commenced on 3 June 1969. On 19 September 2000, in the course of his submission, Laksamana's counsel raised for the first time the issue of locus standi. The trial was postponed to 6 November 2000 for further submission.

On 6 November 2000 Goh filed an application to amend his statement of defence and counterclaim to add the official assignee as a party.

On 5 March 2001, the learned judge dismissed Laksamana's objection as to Goh's locus standi. He also dismissed Goh's application for the amendments. Goh appealed against this order (dismissing the application to amend). That appeal is appeal No. M-02-347-2001.

On 20 April 2001, the learned judge allowed Goh's counterclaim. He ordered Laksamana to pay Goh RM400,000 as general damages for trespass, conversion and negligence and RM50,000 as exemplary damages. He also ordered Laksamana to pay Goh RM70,000 as balance due to him under the agreement dated 11 August 1988. Laksamana appealed against that order - appeal No. M-02-388-2001. Goh also appealed against the quantum of damages - appeal No. M-02-530-2001.

When the appeal came up before us Goh's counsel conceded that the sum of RM70,000 ought not to have been ordered. That is, therefore, set aside.

We decided to hear the issue of locus standifirst, ie, in appeal number M-02-388-2001.

It was argued by learned counsel for Laksamana that Goh had no locus standito file the counterclaim. The sanction given did not cover the filing of a counterclaim. It was also argued that the sanction under s. 38 was insufficient for Goh "to maintain any action". The property having been vested in the official assignee, Goh had no rights or interest in the property unless it was assigned to Goh, which was not done. Lastly, it was also argued that locus standineed not be pleaded but may be raised at any time.

Section 38(1) of the Bankruptcy Act 1967 reads:

38(1) Where a bankrupt has not obtained his discha