The court ruled that a maintenance order allows for the attachment of a bankrupt's earnings without needing prior leave from the Bankruptcy High Court, affirming the primacy of the Married Women and Children (Enforcement of Maintenance) Act.

JUDGMENT

Wong Kian Kheong JCA:

A. Novel Issue

[1] This judgment discusses a novel question of whether a person (X) can apply to the Family High Court to attach the earnings of X's former spouse (Y) under s 4(1) of the Married Women and Children (Enforcement of Maintenance) Act 1968 (MWCA):

(1) when:

(a) X has obtained a maintenance order from the Family High Court for Y to pay monthly maintenance for X and the children from X's marriage with Y; and

(b) Y has been subsequently adjudged a bankrupt under the Insolvency Act 1967 ( IA ); and

(2) without obtaining leave of the Bankruptcy High Court pursuant to s 8(1)(a) IA .

[2] At the time of the preparation of the draft of this judgment (Draft), the learned Chairperson of this panel, Kamaludin bin Md. Said JCA, has retired. I have forwarded the Draft to my learned sister, Azimah bt Omar JCA who has expressed her concurrence with the Draft.

B. Background

[3] The petitioner (Petitioner) was the former wife of the respondent (Respondent).

[4] The Petitioner and Respondent have two children from their marriage (2 Children).

[5] On 9 October 2019, upon an application by the Petitioner, the Family High Court:

(1) granted a decree of divorce to the Petitioner; and

(2) ordered the Respondent to pay the following sums, among others:

(a) monthly maintenance of RM1,500.00 to be paid to the Petitioner until the Petitioner remarries; and

(b) monthly maintenance in a sum of RM2,000.00 for the 2 Children until the 2 Children attain the age of 18 years old or after the completion of their tertiary education;

(Maintenance Order).

[6] The Respondent was adjudged a bankrupt by the Bankruptcy High Court on 9 February 2022 [Bankruptcy Order (Respondent)].

[7] On 28 June 2022, with regard to the Respondent's bankruptcy, the Petitioner had filed with the Director General of Insolvency (DGI) a proof of debt for a total sum RM136,448.19 [POD (Petitioner)].

[8] The POD (Petitioner) concerned maintenance for the Petitioner and 2 Children which had not been paid by the Respondent pursuant to the Maintenance Order.

C. Petitioner's Application To Attach Respondent's Earnings

[9] On 4 July 2022, premised on the Maintenance Order, the Petitioner filed an application in the Family High Court to attach the earnings of the Respondent under s 4(1) MWCA [Petitioner's Application (Attachment of Respondent's Earnings)].

[10] The Respondent had obtained the DGI's sanction to oppose the Petitioner's Application (Attachment of Respondent's Earnings).

[11] On 11 April 2023:

(1) when the Petitioner's Application (Attachment of Respondent's Earnings) was first heard by the learned High Court Judge (as she then was), both the learned counsel for the Respondent and DGI raised a preliminary objection (PO) that the Petitioner was required by s 8(1)(a) IA to obtain leave of the Bankruptcy High Court before the Petitioner could lawfully file the Petitioner's Application (Attachment of Respondent's Earnings); and

(2) after hearing oral submission by all the parties, the Family High Court upheld the PO and struck out the Petitioner's Application (Attachment of Respondent's Earnings) without any order as to costs (Family High Court's Decision).

[12] The Petitioner has filed an appeal to the Court of Appeal against the Family High Court's Decision (This Appeal).

D. Grounds For Family High Court's Decision

[13] The learned High Court Judge's "Grounds of Judgment" (GOJ) provided the following reasons, among others, for the Family High Court's Decision:

(1) according to s 8 IA , upon the making of a bankruptcy order, no creditor of the bankrupt shall have any remedy against the bankrupt's property in respect of the bankrupt's "debt provable in bankruptcy" - paragraph 14 GOJ;

(2) the debt due from the Respondent to the Petitioner under the Maintenance Order was a "debt provable in bankruptcy" within the meaning of s 40(3) IA - paragraphs 15 to 17 GOJ. In fact, the POD (Petitioner) had been filed with the DGI with regard to the arrears of maintenance due f