The appellate court restored the Sessions Court's order for installment payments, finding no merit in the High Court's reversal, emphasizing the importance of full financial disclosure.

JUDGMENT

Mary Lim Thiam Suan JCA:

[1] These are the broad grounds of decision of the Court.

[2] This appeal arises from orders made following a Judgment"Debtor Summons [JDS] application to examine the appellant judgment debtor.

[3] Upon hearing evidence in the examination, the learned"Sessions Court judge exercised her discretion under s 4(6)(b) of the" Debtors Act 1957 [Act 256] and ordered the appellant to pay the judgment sum by"instalments of RM2,500.00 per month for a period of 19 years.

[4] The respondent before us who is the judgment creditor was"dissatisfied and appealed because the effect of the Sessions Court's order would"mean that the judgment debt of RM526,445.21 including interest and costs"[RM576,870.63] would take almost 19 years to be repaid when that sum was paid"over in a lump sum by the respondent.

[5] The High Court allowed the appeal and made 6 orders:

1. appeal allowed with costs;

2. Appellant be re-examined again under s 4 of the" Debtors Act 1957 ;

3. order of discovery of certain documents, etc;

4. order of discovery to be made by or before 17 September 2019;

5. Sessions Court order dated 14 March 2019 affirmed and"maintained until the disposal of the re-examination; and

6. costs of RM5,000.00.

[6] First of all, the matter of multiple orders which are"said to be prejudicial and inconsistent. The orders include an order for retrial"or re-examination.

[7] We find the orders made are erroneous. The order for a"re-trial is without merit, erroneous in law and on the facts. A re-trial is"exceptionally ordered; say for where there is miscarriage of justice. Not only"is there no such claim, there is none here. The 2nd, 3rd and 4th orders"therefore cannot stand.

[8] As for the 1st and 5th orders, they are inconsistent with"each other.

[9] In arriving at his decision leading to the 1st order of"allowing the appeal, the learned Judge agreed with the respondent that the"appellant had not provided full and frank disclosure of his financial position"at the JDS; and that the Sessions Court had wrongly relied on bare assertions of"the appellant.

[10] We have perused the records of appeal and this is what we"find.

[11] In agreeing with the respondent, the learned Judge ordered"the appellant to produce the documents which His Lordship felt were relevant and"important to the determination of his ability to pay the judgment debt. On the"complaint of bare assertion that there was an unaccounted sum of RM100,000.00"following the sale of the appellant's property for RM1.59 million, the learned"Judge found that the Sessions Court did not critically evaluate the relevant"evidence.

[12] The respondent had at both the Sessions Court and the High"Court invited the Court to draw an adverse inference against the appellant in"the face of non-production of documents. We find that both the High Court and"the Sessions Court did not do so.

[13] However, it may be reasonably inferred from both decisions"that the conditions for drawing such adverse inference were not met. Having"looked at the evidence, we agree that there is no reason to draw an adverse"inference.

[14] As for the bare assertions, we disagree. The assertions"were anything but bare. It was a full hearing before the Sessions Court. We also"find that contrary to the High Court's conclusion that there was failure to"consider and address the undisputed debt - see paras 13 to 15 of the"grounds, the issue is actually irrelevant in a JDS application. In any case, the"whereabouts of the RM526,445.21 had been examined and explained - see pp 245-246"of the record of appeal.

[15] We are satisfied with the explanation given.

[16] As for the appellant's ability to pay and how much he"ought to be ordered to pay, there is the issue of the proceeds of the sale of"property in Malaysia for RM1.59 million. The learned Judge had found that the"Sessions Court judge had not dealt with the matter since the sale took place"before the debt arose. See para 18 of the grounds of judgment.

[17] On perusal of the notes of ev