VC George J:

[1] A Receiving Order was made in respect of Kwan Chew Shen and he was adjudged a bankrupt. This was on 23 August 1982. From then and certainly up to 4 February 1983 Kwan continued to be and probably still is an undischarged bankrupt.

[2] Kwan had been the registered proprietor of the whole of the land held under HS(D) 222000 (PN 3511) PT 40352 Mukim of Kuala Lumpur (hereinafter referred to as the land) since 1 November 1980. He did not disclose his ownership of the property to the Official Assignee, either in the statement of affairs filed by him or at all.

[3] On 3 January 1983 Kwan charged the said land to Citibank NA to secure the repayment of a loan granted to him on that day which charge was registered in the Land Office on 4 February 1983 pursuant to the provisions therefor in the National Land Code. The Bank was not aware of the fact that Kwan was an undischarged bankrupt and the Official Assignee was not aware of the loan transaction or of the creation of the charge.

[4] Another relevant fact is that the Official Assignee had apparently inadvertently failed to publish in the gazette and advertise in any newspaper notice of the adjudication of Kwan as a bankrupt as required by s 24(5) of the Bankruptcy Act 1967.

[5] The Official Assignee now moves the Court by Notice of Motion moved by Federal Counsel Puan Zaleha bt Yusof for a declaration that because the charge was created and registered after the receiving order had been made (and while the chargor was still an undischarged bankrupt) it did not enjoy the protection of s 54 of the Act and that accordingly it is void. Puan Zaleha relied on s 24(4) of the Act read together with the definition of "property" in s 2 to contend that the land vested in the Official Assignee as soon as the receiving order was made (ie, on 23 August 1982) and that accordingly the charge created by the bankrupt, thereafter, in respect of the land was invalid. She also contended that nothing turned on the omission on the part of the Official Assignee to meet the requirements of s 24(5).

[6] It is unarguable that s 54 of the Act provides protection only for bona fide transactions without notice in respect of transactions that took place before the date of the receiving order. In the instant case it is not disputed that the charge was executed and registered well after the date the receiving order was made. I agree with Puan Zaleha that accordingly the bank cannot seek the protection of this section.

[7] The two sub-section to s 24 that have been referred to are as follows:

(4) When a debtor is adjudged bankrupt his property shall become divisible among his creditors and shall vest in the Official Assignee.

(5) Notice of every order adjudging a debtor bankrupt, stating the name, address and description of the bankrupt and the date of the adjudication shall be published in the Gazette and advertised in a local paper as prescribed, and the date of the order shall for the purposes of this Act be the date of the adjudication.

[8] It seems to me clear that the publication and advertisement of the orders made are not conditions or requirements that have to be met before the vesting of property in the Official Assignee takes place. In Re Wigzell,ex parte Hart [1921] 2 KB 835 the Master of the Rolls was of that opinion in respect of similar provisions in the English Bankruptcy Act. At p 854 of the report the learned Judge said,

The Legislature has fixed the date of the receiving order, and not the date at which the public notice of it is given as the date at which the trustee's rights accrue...

[9] I hold that when or whether the publication and advertisement required by s 24(5) are effected is not relevant to the issue as to when the property of the bankrupt vests in the Official Assignee.

[10] Encik Ong See Seng of Counsel for the Bank had no quarrel with Puan Zaleha's contention in respect of the effect of the omission to effect the publication and advertisement prescribed by s 24(5) and in re