Abdul Malek Ahmad JCA:

There were two appeals before us but since they involved the same facts and issues and the same respondent, it was agreed at the outset that arguments would be confined only to the first appeal but that the decision would bind the second appeal as well.

Forming the factual framework of these two appeals are the following agreed facts:

(a) the appellants are the trustees of the estate of Oh Kee Lee @ Oh Phaik Sim, deceased;

(b) they were ordered on the 7th September 1991 to pay the respondent the costs in Penang High Court Civil Suit No. 315 of 1983 (hereinafter "the relevant suit");

(c) the costs of the said action were taxed on the 9th February 1994 at RM160,699.97 and an allocatur was issued to that effect;

(d) as the costs were not paid, bankruptcy notices were issued on the 18th May 1994 and the 8th June 1994 respectively against the appellants;

(e) consequently, on the 23rd November 1994, creditor's petitions were issued against the appellants;

(f) receiving orders and adjudication orders were made against the appellants on the 26th April 1995;

(g) notices of appeal against the receiving orders and adjudication orders were filed by the appellants on the 29th April 1995 to the judge in chambers;

(h) the said appeals were dismissed with costs on the 1st August 1995;

(i) a stay of all further proceedings was obtained on the 22nd August 1995 pending further appeals.

For a full picture of the situation, the heading of the relevant suit was as follows:

IN THE HIGH COURT OF MALAYA AT PENANG

CIVIL SUIT NO. 315 OF 1983

BETWEEN

1. Oh Phaik Lin 2. Chor Saw Oon 3. Khoo Kay Hoe Trustees of the Estate of Oh Kee Lee @ Oh Phaik Sim, deceased ... Plaintiffs

AND

1. Choong Lye Hock Estates Sdn Bhd 2. Chor Phaik Gnor 3. Chor Phaik Har ... Defendants

It is clear, therefore, that the appellants here were two of the three plaintiffs in the relevant suit while the respondent here was the third defendant.

Paragraph 6 of the relevant order dated 7 September 1991 reads:

(6) the Plaintiffs be and are hereby at liberty to discontinue this suit pursuant to Order 21 rule 3 of the Rules of the High Court 1980 on terms that:

(a) the Plaintiffs be and are hereby deprived of their right to bring a fresh action in order to give effect to the doctrine of res judicata;

(b) the Plaintiffs pay to the 3rd Defendant the costs of this action (including this application) to be taxed;

(c) there be an inquiry before the Senior Assistant Registrar to determine what damages (if any) was suffered by the 3rd Defendant by reason of the interim injunction which the plaintiffs, according to their undertaking, ought to pay;

Before arguments commenced, we had also allowed the respective motions by the respondent, as there were no objections from the appellants, for Tan Jiak Chye to be appointed as the duly constituted legal representative of the estate of the named respondent, who had passed away on 28 August 1997, for the purpose of these appeals as he had in fact been so appointed for the estate by the High Court on 17 November 1998.

Learned counsel for the appellants referred us to the English case of Cartwright and Another v. Barker [1975] 2 All ER 970 where the Chancery Division held:

The appeal would be allowed and the bankruptcy notice set aside for the following reasons -

(i) In the case of costs the effective judgment was the decree of the court itself ordering costs to be paid, and not the certificate quantifying costs. Accordingly the relevant judgment or order for the purposes of the bankruptcy notice was the order of 5th November 1970 and not the taxing master's certificate. It followed that the bankruptcy notice was not in accordance with the prescribed form nor in accordance with section 2 of the 1914 Act because it did not require the sum to be paid in accordance with the terms of the judgment or order.

(ii) The failure to comply with the bankruptcy notice was the act of bankruptcy on which all the rest