Ambank (M) Berhad v Fok Wai Mun (WA-29NCC-1462-11/2023)

These Grounds concern the Judgment Debtor’s (“the JD”) Notice of Appeal dated 16.2.2026 to the Court of Appeal (Encl 100) against my decision on 21.1.2026 allowing the Judgment Creditor’s (“the JC”) Appeal in Encl 81 against the Registrar’s decision in Encl 65 to strike out the JC’s Amended Creditor’s Petition.

Encl 65 is the JD’s application to strike out the CP under s. 6(3) of the Insolvency Act 1967 (“the IA”), which provides: “If the court is not satisfied with the proof of the petitioning creditor’s debt or of the act of bankruptcy or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made, the court may dismiss the petition.”

The JD’s application is made on various grounds, the main ones being:

the JD made genuine and reasonable efforts to settle the debt due to the JC, but such efforts were unreasonably rejected;

the JD possesses sufficient assets and income to satisfy the debt. BACKGROUND FACTS

The material facts are as follows.

At all material times, the JD and his brother, Fok Wai Hong, were directors and shareholders of M Ten Trading Sdn. Bhd. (“the Company”), with the JD holding 1% and his brother holding 99% of the shares.

The Company obtained a loan of RM820,000.00 from the JC as working capital; Both the JD and his brother signed personal guarantees for the loan. The loan was further guaranteed by Credit Guarantee Corporation Malaysia Berhad (“CGC”), which guaranteed 70% of the total sum.

Upon default, the JC obtained judgment on 2.3.2021 against the Company, the JD, and Fok Wai Hong. The Company has since been wound up, and Fok Wai Hong adjudged bankrupt. Based on the said judgment, the JC issued a Bankruptcy Notice dated 14.11.2023 and filed the CP dated 28.6.2024 based on a debt of RM1,018,989.83 due from the JD.

The JD applied for an interim order under Part I of the IA to propose a Voluntary Arrangement with his creditors vide Suit No. WA-29VA-1-03/2025 and was granted an Interim Order on 24.03.2025 under subsection 2K(2) of the IA (see Exhibit FWM- 1, Supporting Affidavit, pp.7-9) and appointed a nominee to supervise the process. The Interim Order provided 90 days for the JD to negotiate with his creditors. The purpose of the negotiation was to attempt to reach an agreement on the repayment of the JD’s debts pursuant to subsection 2K(2) of the

Through the nominee, the JD prepared his Statement of Affairs and the Rule 11 proposal (“the JD’s Proposal”), and convened 4 3 creditors’ meetings on 4.6.2025, 13.6.2025, and 20.6.2025 to obtain creditors’ approval for the JD’s Proposal.

By the JD’s Proposal, the JD offered to pay the JC RM800,000.00 in 12 monthly instalments, an amount substantially exceeding the JC’s real exposure after accounting for CGC’s 70% guarantee.

Despite due notice, the JC failed to attend all 3 meetings and gave no substantive reason for his absence. The JC’s only explanation was that it was “not legally obliged” to attend.

Subsequently, the JD filed a Summons-in-Chambers applying to set aside the CP which was heard by the Registrar. On 28.8.2025, the Registrar set aside the CP with costs of RM1,500.00 subject to allocatur.

The JC then filed this appeal in Encl 81 against the decision of the Registrar delivered on 28.8.2025.

The issues for determination are:

whether the JC’s refusal to attend the creditors’ meetings and/or to consider the Debtor’s Proposal was unreasonable; and

if so, whether such unreasonable refusal constitutes “sufficient cause” under s. 6(3) of the IA to dismiss or strike out the CP. The JC’s refusal to Attend was Not Unreasonable

As far as the first issue is concerned, I note the following.

First, under Rule 11 Insolvency (Voluntary Arrangement) Rules 2017 (“the Rules”), the nominee shall prepare the JD’s Proposal. Under s. 2 I of the IA, the nominee will summon a meeting of the JD’s creditors to approve the Proposal, which by Rule 12, must be called within 14 days. “2 I. Meeting of creditors to approve debtor's proposal

Where an interim order has been made, the nominee shall, before the expiry of the interim order referred to in subsection 2D(3), summon each of the debtor's creditor to a meeting by giving a prescribed notice to such creditors as to approve the debtor's proposal for a voluntary arrangement.”

Secondly, and most importantly, one of the conditions for the Voluntary Arrangement as stated under s. 2I of the IA and under Rule 11 of the Rules, is that that the Judgment Debtor must submit the debtor's proposal to the JC. And commercially, the JD or the nominee should make it attractive enough for the JC and the creditors to accept.

The JD did submit the JD’s proposal to the JC, see Supporting Affidavit at Exhibit “FWM-1” (“the JD’s Proposal").

The commercial viability of a Rule 11 proposal is one for the creditors to assess. In this regard, as with Schemes of Arrangement, a creditor may take the view that commercially, the scheme is simply not viable and not bother to attend the Scheme Meetings. This is entirely legitimate.

I cannot see how the JC is under a stricter duty in a Voluntary Arrangement and is obliged to attend the creditors’ meeting.

As stated above, the JD’s Proposal involved paying RM800,000.00 to the JC in 12 months from 1.7.2025 to 1.7.2026, whereby the JD was to pay RM65,000.00 each month. However, the total assets owned by the JD as stated in the Statement of Affairs as at 7.4.2025 was only RM296,743.00.

Further, the JD has also stated in the JD’s Proposal that he had a monthly income of RM17,950.00 comprising: a. a basic salary of RM9,000.00 per month, excluding the commissions and bonuses, as a Key Account Manager at RD-Palmer Technology (M) Sdn. Bhd.; b. a fixed monthly salary of RM2,750.00 excluding allowances as local Councillor with Selayang City Council; and c. RM6,200.00 per month in rental income from the JD’s properties.

However, by paras 21 and 22 above, it appears that the JD’s income and assets are simply insufficient to make the promised schedule of payments to settle the JD’s debt. Indeed, the promise and ability to pay RM65,000.00 a month is not supported by any proof nor any guarantee. Therefore, the JD’s Proposal submitted by the Judgment Debtor to the Judgment Creditor a hollow one.

By s. 2I of the IA or Rule 12 of the Rules, it is not mandatory for the JC to attend. As per Part I of the Voluntary Arrangements of the IA, it only provides for and explains the methods and procedures of Voluntary Arrangements, but without making it mandatory for the JC to attend the creditors’ meeting. All it does is to provide that the JD/nominee shall hold a creditors' meeting and inform the JC of the meeting to approve the JD's Proposal.

On the face of the JD’s Proposal, it can be surmised that the promise to settle the JC’s debt on the terms offered, is doomed. In those circumstances, I cannot see the need for the JD to attend the creditors’ meeting at all. Whether to attend the creditors’ meeting is the choice of the JC.

Nor can I see how in the circumstances, the failure to attend by the JC can be said to be unreasonable or amounts to sufficient cause within s. 6(3) of the IA to dismiss the CP.

Accordingly, I allow the appeal in Encl 81 with costs of RM3,000.00 subject to allocatur. Dated the 27th day of March 2026 ...........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Legislation References: • Insolvency Act 1967 (“the IA”) • Rule 11 Insolvency (Voluntary Arrangement) Rules 2017 (“the Rules”) Decision Date: 21th January 2026 Counsel for the Judgment Debtor: Solicitors: Ng Si Seng Messrs. SS Ng & Lim (Subang Jaya) Counsel for the Judgment Creditor: Solicitors: Noorhazerah bt Shaul Hamid & Nur Syafiqah bt Ahmad Fadhil Shuhaimi