Lee Swee Seng JC:

PROLOGUE

[1]The judgment creditor (‘JC’) had commenced a bankruptcy proceeding against the judgment debtor (‘JD’) vide a bankruptcy notice (‘BN’) dated 5October 2010 following a judgment obtained in the Kuala Lumpur High Court Suit No D6–22–1630 of 2002 on 16 April 2003 against the JD as the second defendant. There had been a previous receiving order (‘RO’) and adjudication order (‘AO’) obtained earlier but by consent was annulled. The JC had consented to the annulment based on compassionate ground on account of the illness of the JD’s wife who was suffering from cancer and needing treatment in Singapore. The JD has also represented that he would be making his monthly repayments to the JC as they fall due. The amount stated in the BN was in the region of RM34m.

PROBLEM

[2]Granted not many people in this country would have that kind of a money to pay a JC to avoid an act of bankruptcy. As events unfolded it appears that the second BN was filed after six years from the date of the judgment and hence the JD asserted that leave should have been obtained first. The JD also raised the objection that interest could not be claimed at all once the six years period has expired.

[3]There were also other objections raised by the JD in his attempt to ward off the bankruptcy action with respect to, inter alia, the validity of service of the BN, the validity of the order for substituted service of the creditor’s petition (‘CP’), the wrong calculation of the amount outstanding in the BN, the non-compliance with the relevant forms under the Bankruptcy Rules 1969 (‘BR’) and non-disclosure in the CP of securities from a third party.

PRAYER

[4]In the process the JD filed various two applications to set aside the substituted service of the CP; two applications to set aside the BN and an application to set aside the CP.

[5]The registrar struck out two of the applications with costs when they were withdrawn. The registrar dismissed the remaining three applications with costs and hence these various appeals. The applications dismissed were: application to set aside substituted service of CP (encl 18), Application to set aside the BN (encl 21) and application to set aside the CP (encl 24).

PRINCIPLESThe JD’s application to set aside the substituted service order of the CP (encl 40)

[6]The JC had earlier served the BN personally on the JD on 2 November 2010 at Unit D3–6–01, Solaris Dutamas, No 1 Jalan Dutamas, 50480, Kuala Lumpur. The JC attempted but failed to serve the CP on the JD personally. The JC applied for an order for substituted service of the CP and on 17 February 2011 the senior assistant registrar (‘SAR’) granted the said order. The substituted service was effected on 31 March 2011 and the CP was fixed for hearing on 19 April 2011.

[7]On 18 April 2011 at 2.30pm the JD served a sealed copy of the application in encl 16 to set aside the substituted order of the CP. Enclosure 16 was fixed for hearing on the same day as the CP on 19 April 2011. On 19 April 2011 the SAR gave directions for the parties to file their affidavits in respect of encl 16 and to file written submissions for hearing of the application on 7 June 2011.

[8]On 7 June 2011 when the matter came up for hearing before the deputy registrar, the JD unconditionally withdrew encl 16 and the said application was struck out with costs of RM1,000. The CP was then fixed for hearing on 14September 2011.

[9]The JD then filed another application to set aside the substituted service of the CP in encl 18 which is an exact replica of encl 16 in that it seeks the same reliefs and are premised on similar grounds. On 9 September 2011 at 3 pm on a Friday the JD again served a sealed copy of encl 18 on the JC’s solicitors’ office — a mere five days before the hearing of the CP fixed on 14 September 2011.

[10]On 14 September 2011 the deputy registrar directed the parties to exhaust affidavits and written submissions and fixed decision of encl 18 on 27September 2011 whereupon the deputy registr