JUDGMENT

Abdul Kadir Sulaiman J:

[1] The 1st plaintiff appeals to the Judge in Chambers against the decision of the learned Deputy Registrar striking out his writ of summons issued against the defendant with costs. The learned Deputy Registrar made her decision which arose out of the defendant's summons in chambers filed on 15 October 1993 in encl 12 on the grounds that the 1st plaintiff being an undischarged bankrupt has no locus standi to commence and/or maintain this action in his name as he has not obtained the prior sanction of the Official Assignee to do so. However, before hearing the appeal, the defendant raised a preliminary objection on a point of law. The learned Counsel for the defendant contends that the 1st plaintiff is disabled from employing an advocate and solicitor to represent him in the action unless a prior sanction of the Official Assignee to do so is first obtained. In this action the 1st plaintiff engages Mr Ernest Chua of Ernest Chua & Company to represent him. This judgment is in relation to that preliminary objection raised.

[2] The learned Counsel for the defendant cited the case of Khoo Kim Hock [1994] 2 MLJ 29 in support. In that case a Counsel brought an application under ss 92(1) and 105(1) of the Bankruptcy Act 1967 on behalf of an undischarged bankrupt to have the adjudication order made against him annulled. When the application came up for hearing, Counsel for the Official Assignee raised a preliminary objection on a point of law contending that having regard to the provisions of the Act an undischarged bankrupt in this country was disabled not only from maintaining the present application but also from employing an advocate and solicitor unless the prior sanction of the Official Assignee was first obtained. The learned Judge referred to s 38(1) of the Act and held that the section does not apply to an application under ss 92(1) and 105(1) where the applicant is seeking the Court's discretion to review, rescind or vary any order made by it, and as such no previous sanction of the Official Assignee is necessary. However, it was also held in the case that an undischarged bankrupt in this country is entitled to engage an advocate and solicitor to represent him in any action where the provision of s 38(1)(a) does not apply, or where the cause of action does not vest in the Official Assignee. So, it is clear from the decision in that case that the issues of the employment of advocate and solicitor and the maintaining of any action by an undischarged bankrupt are inter-related. It is so because by s 24(4) of the Act, when a debtor is adjudged bankrupt his property is vested in the Official Assignee. Therefore, anything to be done in relation to the property of a bankrupt generally must be with the sanction of the Official Assignee. It follows the above cited case also that an undischarged bankrupt is not entitled to employ an advocate and solicitor without the prior sanction of the Official Assignee in cases where s 38(1)(a) of the Act applies to him.

[3] Section 38(1)(a) of the Bankruptcy Act 1967 states:

38. (1) Where a bankrupt has not obtained his discharge:

(a) the bankrupt shall be incompetent to maintain any action (other than an action for damages in respect of an injury to his person) without the previous sanction of the Official Assignee;

[4] In our present case, the action by the 1st plaintiff involves an allegation of breach of contract by the defendant. It is not, therefore, an action in respect of an injury to his person.

[5] Furthermore, from the pleadings the cause of action accrued before his bankruptcy and therefore the cause of action vested on the Official Assignee upon adjudication. Hence, s 38(1)(a) of the Act applies to him. In the circumstances, unless the prior sanction of the Official Assignee is obtained to maintain his action, he is incompetent to do so in his own name, based on the above cited case, to which I concur. If so incompetent, he is also incompetent to employ an adv