Re Peh Kong Wan, exparte

United Malayan Banking

Corp Bhd [1992] 2 MLJ 292
Annulment- Section 105 BA
Ground: Courts opinion that the bankrupt ought not to
have been adjudged a bankrupt.

21st September 1976

Petitioner Bank obtained
judgements against Peh and
his co-defendents 1.5
million with interest and cost

4th December 1991

Applicant took out a motion to set aside
ROAO.
Claiming that he had left Malaysia with the
whole family.
Obtained a permanent resident in
Singapore.
Worked in Singapore, Hong Kong and
Indonesia.
Came back to Malaysia just to renew
passport.

8th March 1988 (12 years later)

Bank obtained leave to enforce judgement
and attempt to serve BA on Peh.
Effected by substitute service; advertising
and posting to the last known address.
Served notwithstanding that the court
process server was informed that the
applicant was no longer staying at that
address.

14th September 1988

Petition was called for disposal.
Respondent absent and
accordingly petition was
treated as an unopposed
petition
ROAO was made

WHAT THE COURT HAD TO SAY

SECTION
5(1)(d) BA

Court is satisfied that Peh ceased to ordinarily reside in

Malaysia and since then has not had a dwelling house or
place of business.
All probability did not know about bankruptcy proceedings
and it explains the lapse of time in filing this application.

DOMICILE

Court took into account the stringent immigration laws most

countries have. An application for permanent resident
satisfy the host country that it is the applications wish that
the host county become his domicile of choice

CONCLUSI
ON

The applicant has establish both the animus to change his

domicile from Malaysia to Singapore and the factum of
having effected the change.
It followed that under section 5(1)(d)- the applicant ought
not to have been adjudged a bankrupt.

Re Keet [1905] 2 K.B

666
Annulment- Section 105 BA
Ground: Debts settled in full

English
Court of
Appeal
Discussed the meaning of Where it is
proved to the satisfaction of the court
that the debts of the bankrupt are paid
in full

WHAT THE COURT HAD TO SAY

It is common
ground that our
Bankruptcy Act
1967 is modelled
along the English
Bankruptcy Act
1914 and the
phrase in the
second limb of
section 105(1) of
our Act is in
identical terms with
the words in the
second limb of
section 29(1) of the
Act 1914

The language of
this Act, interpreted
according to its
natural meaning.
Thus, to him the
payment must be
required in full and
nothing less than
that

DEBT
At least all debts
actually and
properly proved in
the bankruptcy.
PAID IN FULL
Fully paid in cash
Being satisfied by
unconditional
release given to the
bankrupt by the
creditors does not
count.

Therefore, where
debts properly
proved were
subsequently
released, because
the creditors had
decided to try to
help the debtor
start in business
again, the
bankruptcy could
not be annulled on
the grounds of
payment in full.

Kwong Yik Bank Bhd. V

Hah Chiew Yin Yin
[1985] CLJ 178
Annulment- Section 105 BA
Ground: Debts settled in full

Respondent filled a
motion to have the
ROAO annulled on the
ground that debt has
been paid in full.

August 28, 1982

Bankrput s bro-in-law gave
$6K
November 2, 1982
Paid $10K (with the
receipt, the Appelent wrote
to the official asignee)

September 10,
1976
Appellant had
obtained judgment
against the
respondent- $30K.

July 5, 1982
Both Receiving and Adjudication
Orders were made against the
bankrupt.
Bankrupt's husband approached the
appellant with a view to effect a
settlement in order to enable the
bankrupt to apply to the Court to
have the adjudication order annulled

1979
A sum of $15,000.00 was paid
towards reduction of the judgmentdebt.
1981
The balance still due and owing plus
accumulated interest was $30,000.00
or thereabout.

October 1981
The appellant caused a
Bankruptcy Notice to be
issued against the bankrupt
and this was followed by the
Creditor's Petition

TRIAL
COURT

Learned trial judge found on the documentary evidence that the

appellant had agreed to accept and had accepted$16,000-00 in full
settlement and there was no merit in the objection of the appellant
who opposed the motion.

COA

Held, in this case, the respondent (bankrupt) had failed to satisfy

that the proved debt lawfully due to the appellant had been paid in
full in cash and therefore the order of the learned Judge in annulling
the adjudication order must be set aside.

FC

The learned Judge erred in law and in fact in holding that the bankrupt had satisfied the
second limb of section 105(1) of the Bankruptcy Act 1967 "where it is proved to the
satisfaction of the court that the debts of the bankrupt are paid in full ... the court may
annul the adjudication"..
The bankrupt was not applying for an order of discharge but was applying for an order
annulling her adjudication.
The effect of this is to wipe out the bankruptcy altogether and put the bankrupt in the same
position as if there had been no adjudication order.

It appears to us that the case of In re Keet ( supra) had not been cited to the
Court below and if the attention of the learned Judge had been drawn to this
authority he might not have exercised the discretion and made an Order as
prayed. On the affidavit evidence adduced before the learned Judge, in our
opinion, the bankrupt had failed to satisfy that the proved debt lawfully due
to the appellant had been paid in full in cash. For these reasons we allow the
appeal of the appellant and set aside the order of the learned Judge in
annulling the adjudication order. The appellant is clearly entitled to its costs
here and in the Court below. The deposit to be refunded to the appellant.

Re Peter Wong, Ex
Parte the Debtor
[1958] MLJ 116
Annulment- Section 105 BA
Ground: Debts settled in full
COURT TAKES INTO CONSIDERATION OF THE BANKRUPTS
CONDUCT.

11th February 1957

ROAO made against
Peter Wong.
He admitted
himself the
correctness of the
sheriffs return after
the creditors
petition was filed.

Annulment of
ROAO on the
ground; the
act of
bankruptcy
relied upon is
invalid.

13th August 1957

Official assignee became
interested and took in
possession of the said
goods.
The car registration book
confirms the debtors
story that it has been in
his ownership since 1956

Filed and affidavit

contradicting the
admission and stated
that he possessed
goods worth of more
than $30K.
Court: this does not
displace the
conclusion drawn by
the Sheriff.

7th August 1957

Filed an affidavit;
Cotton, rubber and a
car Austin A40(which
he bought in 1956)

WHAT THE COURT HAD TO SAY

Whether the court sitting in bankruptcy has
the power to inquire into the correctness of
the sheriffs nulla bona return.

This particular provision of Singapore bankruptcy law has no

counterpart with English law.

Bankruptcy: everything is open to enquiry & long been

establish that court may go behind a judgement even If that
judgement had been affirmed by the COA. Thus, court has
the power to inquire into the correctness.

Whether the court must necessarily annul

the adjudication/ whether the court had
discretion in that matter

On the ROAO hearing date, Peter admitted himself the

correctness of the sheriffs return but later filled an affidavit
contradicting the admission- trying to play a double game;
trying to delay bankruptcy proceedings by saying he had no
assets and when bankruptcy proceeding became
unavoidable, he started disclosing assets

Section 104 of the Bankruptcy Ordinance- "Where in the

opinion of the Court a debtor ought not to have been
adjudged bankrupt ... the Court may annul the

adjudication. Thus, appeal dismissed.

Re Seow Yin Fong Ex Parte

United Orient Leasing Company
Bhd [1994] 2 CLJ 845
Annulment- Section 105 BA
Ground: Debts settled in full
COURT TAKES INTO CONSIDERATION OF THE CREDITORS
INTEREST.

Judgement creditor and

other creditors:
who had proved their debts
opposed the applications
on the grounds:
- applicants had admitted
in full the proof of debts
filed against them at the
first creditors' meeting
-affirmed their liabilities to
the respective creditors at
the Public Examination.

11th ay 1987
ROAO were
made
against
debtor.

Applicants contended
that the bankruptcy
notices were invalid
and therefore the
whole bankruptcy
proceedings were a
nullity and ROAO ought
not to have been made
in the frist place.

11th October 1993 (6

years later)
Section 105(1) BA
-Amount stated in the
respective bankruptcy
notices were not
quantified up to the date
of the bankruptcy
notices
-Bankruptcy notices also
included a sum which
was not due and owing
as at the date of the
notices, namely interest
until date of full and final
settlement

The application to annul was made 6

years from ROAO.
Prejudice the creditors as whatever owed
to them will be statue barred even
though the delay of filing isnt their fault
as the applicants were bankrupt at that
point of time.

All in all, justice will

not be served by
annulling the ROAO
as it deadly affects
the position of the
creditors.

HEL
D
Even if the law allows to annul the
ROAO for being void ab initio, this
will cause serious prejudice to the
creditors.
By allowing so, this will lead to
flood gates of other application
under the same basis.

Section 105(1) BA is
discretionary.
Must still be exercised with
proper principles.
Must consider the interest of the
affected parties.
In this case, the applicants did
not reason out to the court for
the delay of this application