Wong Siong Tung J:

GROUNDS OF DECISION Introduction

[1]Goh Kiang Ann (JD) is one of the three (3) guarantors for the principal borrower, Episo Enterprise Sdn. Bhd. (Episo) in respect of two (2) Term Loan Facilities granted by OCBC Bank (Malaysia) Berhad (JC) to Episo.

[2]Due the default of Episo in the repayment of the term loans to the JC, the JC commenced action in Suit No. MYY-22NGC-1/7-2022 in the High Court, Miri and obtained judgment against all the three (3) guarantors, including the JD for the sum of RM17,802,031.36 as at 30 -6- 2022 with the prescribed interest in respect of the first Term Loan Facility and the sum of RM246,838.18 as at 30-6-2022 with the prescribed interest in respect of the second Term Loan Facility and costs on solicitor and client basis.

[3]The JC took up an application by Summons In Chambers dated 24-8-2023 (Encl. 3) for leave under section 5(3) (b)Insolvency Act, 1967

[4]On 18-3-2024, the learned Senior Assistant Registrar allowed the JC’s application and granted JC leave to commence bankruptcy action against the JD.

[5]Dissatisfied with the decision of the learned Senior Assistant Registrar, the JD appealed to the Judge of the High Court in Chambers under Order 56 Rule 1 of the Rules of Court 2012

The affidavits and the core issues

[6]There are four affidavits affirmed by Tong Mei Hsien on behalf of JC and three affidavits affirmed by JC himself for the hearing of the application. These affidavits contain substantial argument mixed with factual materials, making them unnecessarily lengthy and time-consuming to read. It should be reminded that affidavits should primarily serve to present evidential facts, not to include arguments or submissions on behalf of the parties.

See: Courts Mammoth Bhd v Subramaniam A/L Paramasivam Yamamori (Hong Kong) Ltd v Davidson & Ors Re: Application by Dow Jones (Asia) Inc

[7]Despite the lengthy and extensive affidavits filed and written submissions, the disputes can be distilled into two core issues as follows:

(a).Whether the Affidavits affirmed by Tong Mei Hsien are admissible for failure of proof that she is duly authorised by the JC; and

(b).Whether the JC has exhausted all modes of execution and enforcement to recover debts owed by the Principal Debtor/Borrower

Issue: Whether the Affidavits affirmed by Tong Mei Hsien are admissible for failure of proof that she is duly authorised by the JC

[8]In summary, learned counsel for the JD submitted that the affidavits of Tong Mei Hsien (the said Deponent), filed in support of the JC’s application for leave under section 55(3)(b)Insolvency Act 1967Section 133(a)Insolvency Act 1967

[9]The learned counsel for the JD submitted that Rule 215 of the Insolvency Rules 2017 and Section 133Insolvency Act 1967

[10]Section 133(a)Insolvency Act 1967

133 Acts of corporations, firms and mentally disordered persons

For all or any of the purposes of this Act-

(a)a corporation may act by any of its officers authorized in that behalf under the seal of the corporation;

(b)….

(Emphasis added)

[11]Rule 215 of the Insolvency Rules 2017 provides that:

215 Officer of corporation, etc

(1)Where a corporation presents a petition or takes any other action under this Act, the officer of the corporation may act in his own name, stating that he is such officer duly authorised under seal but a petition may be presented by the corporation, and signed by the officer on its behalf.

(2)Any person chosen by the corporation to act for it as agent, is an “officer” within section 133of the Act, and if duly authorised under seal can act for the corporation.

(Emphasis added)

[12]Unless otherwise permitted by other provisions of the Insolvency Act 1967, Section 133For all or any of the purposes of this Act”- (the Insolvency Act 1967).

See: Re Lai Hua Kian, ex p Credit Corp (M) Bhd

[13]Similarly, Rule 215 (1) of the Insolvency Rules 2017 also states that where a corporation presents a petition or takes any other action under the Insolvency Act 1967, its officer may act in their own name,