JUDGMENT

1. There are two applications this morning; one by the plaintiff for an amendment of the Statement of Claim (encl. 71), and the other by the defendant for the production of the Flowchart by theplaintiff for examination by a handwriting expert (encl. 77).

2. At the onset of the hearing, the defendant raised two preliminary issues for decision of the court; they are:-

(1) are theacts or steps taken by a bankrupt before the sanction of the Official Assignee void; and

(2) can the action be maintained without the Official Assignee being joined as a party.

3. The plaintiffcommitted an act of bankruptcy on 4.10.96, and was adjudged a bankrupt on 10.9.97. The plaintiff had issued the writ against the defendant on 2.10.97 and obtained the Official Assignee’s sanction on 20.1.98.

4. Learned counselfor the defendant submitted that as an undischarged bankrupt, all actions taken by him before he obtained the sanction by the Official Assignee are void. Having obtained the sanction of the Official Assignee, the Official Assignee should be made a party to theaction. He cited HALSBURY'S LAWS OF ENGLAND, 4th Edition, Vol. 3 paragraphs 556 to 560; JACKSON v. NORTH EASTERN RAILWAY COMPANY (1877) 5 Ch.D 844, CA; andELDRIDGE v BURGESS (1878) 7 Ch.D 411

5. Learned counsel for the plaintiff submitted that the writ was issued on 2.10.97 and no further action was taken bythe plaintiff. The claim was against the fraudulent transfer of shares by the defendant. By the affidavit of Christopher Tan Kok Ching affirmed on 5th February, 1998 (encl. 98), the plaintiff had obtained the sanction of the Official Assignee to continue withthe action. By the letter dated 2nd March, 1998, the Official Assignee had informed the plaintiff that it did not wish to be a co-plaintiff in the action.

6. By virtue of the provisions of section 38(1)Bankruptcy Act 1967Section 38(1)Bankruptcy Act

“(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.“

Section 47Bankruptcy Act

“(1) The bankruptcy of a debtor, whether the same takes place on the debtor’s own petition or upon that of a creditor, shall be deemed to have relation back to and commence at thetime of the act of bankruptcy being committed on which a receiving order is made against him .....“

7. Bankruptcy Law & Practice by G.H.L. Fridman, Hicks & Johnson, at page 148 states that:-

“.....if the cause of action arises after bankruptcy, it may be that the bankrupt, rather than his trustee, is the proper person to sue.“

At page 149:-

“However not only isthe time at which the right of action arises important. So is the nature of the action. The distinction between proprietary action and personal actions was drawn by Lord Abinger, C.B. inHoward v Crowther (1841) 8 M&W 601, and was further elaborated by the House of Lords inBeckham v Drake (1849) 2 H.L. Cas 579."

8. Under O. 15 r. 7(1) Rules of the High Court 1980 provides:

“(1) Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the deathor bankruptcy.“

9. It seems that the plaintiff had issued the writ before he was adjudged a bankrupt, there is no necessity to withdraw the action but only to obtain the sanction of the Official Assignee which he subsequentlysecured on 20.1.98. SeeRICKLAND TRADE & DEVELOPMENT SDN BHD & ORS v UNITED MALAYAN BANKING CORPORATION BHD (1996) 4 MLJ 233

10. InABU BAKAR BIN JAAFAR & ANOR v MALAYAN BANKING BHD (1991) 3 MLJ 487

11. The answer to the first preliminary point raised is in the affirmative.

12. Halsbury’s Laws of England, Fourth Edition, Vol. 3,paragraph 557:-

“An action does not abate by the reason of the bankruptcy of a party, provided the cause of action survives. If the right of action which a bankrupt is enforcing is one which vests in his trustee,or is one which the trustee is entitled to