JUDGMENT

Siti Norma Yaakob J

Before the senior assistant registrar, a preliminary objection was raised by the plaintiffs on the third defendant's application to have a judgment in default entered against him on 22 September 1989 set aside. The preliminary objection was whether the third defendant, a bankrupt, had the locus standi to make the application. The senior assistant registrar dismissed the objection and the plaintiffs appealed to me against that dismissal.

It is not disputed that the third defendant was adjudged a bankrupt on 3 May 1991 and when he applied to have the judgment in default set aside on 17 June 1991, he was and still is an undischarged bankrupt. Under such circumstances, it is the plaintiffs' contention that the third defendant needed the sanction of the official assignee under s 38(1)(a) of the Bankruptcy Act 1967 to file the application. Since no such sanction had been obtained, he had no locus standi to make the application.

In rebuttal, the third defendant maintains that s 38(1)(a) limits the obtaining of the sanction to any action to be brought by the bankrupt but not an application such as the one that he has filed in these proceedings. To that extent, the third defendant distinguishes an action from an application and since the present proceedings relate only to an application, s 38(1)(a) does not apply.

It must be remembered that proceedings before the senior assistant registrar, when the preliminary objection was raised, were not pursuant to any provision under the Bankruptcy Act or the Bankruptcy Rules. On the contrary, it was an application under O 13 r 8 read together with O 83 r 4 of the Rules of the High Court 1980.

It must also be remembered that once receiving and adjudication orders are made, the bankrupt's estate vests with the official assignee and it is for this very reason that s 38(1)(a) was enacted, as it only stands to reason that the official assignee must first be consulted as any action intended by the bankrupt may well be detrimental to his creditors. The only exception is when the bankrupt files an action for damages for injury to his person or when he questions his status by filing an application under s 92(1) or s 105(1) of the Bankruptcy Act 1967, in which case, no sanction from the official assignee is required.

In this case, it is true that the third defendant had filed an application as opposed to an action but nonetheless, I consider that s 38(1)(a) is wide enough to include the filing of an application to have the default judgment set aside. Under such circumstances, he must first of all obtain the sanction of the official assignee and since this was not done, he had no locus standi to file the application. On that finding, I had allowed the plaintiffs' appeal with costs.