Cheok Lay Ho @ Paul Cheok v Chang AI Nee (WA-29NCC-1090-06/2024)

These Grounds concern an Appeal to the Court of Appeal under Encl 128 against my decision on 14.1.2026 dismissing Encl 92, being the Judgment Debtor’s (“JD”) Notice of Appeal to the Judge in Chambers.

Encl 92 was an appeal by the JD against the decision of the Senior Assistant Registrar on 2.10.2025 dismissing the JD’s application for an interim stay of the Amended Creditors Petition pending the Notice of Intention to Oppose the Petition (Encl 153) with costs of RM3,000.00 to the Judgment Creditor (“JC”).

By the Submissions of the JD dated 14.11.2025 (“JD Subs”), there is only 1 ground raised.

By para 4 of the JD Subs, it was submitted that the JD was liable under a Directors’ Personal Guarantee dated 16.6.2021 (at pp. 27 to 29 of Encl 15), emphasising that the JD is merely a guarantor to the Investment Agreement entered into between the JC and ACE Credit (M) Sdn. Bhd. (“ACE Credit”) of the same date. I accept that the Investment Agreement is only between the JC and ACE Credit.

The Ground raised is that t the BN is premature and was wrongly issued as no leave was granted under s. 5(3). Section 5 provides:

“Conditions on which creditor may petition

…

…

A petitioning creditor shall not be entitled to commence any bankruptcy action—

against a social guarantor; and

against a guarantor other than a social guarantor unless the petitioning creditor has obtained leave from the court.

Before granting leave referred to in paragraph (3)(b), the court shall satisfy itself that the petitioning creditor has exhausted all modes of execution and enforcement to recover debts owed to him by the debtor.”

On the true construction of s. 5(3), it seems to me that before commencing bankruptcy proceedings against a non-social guarantor, leave must be first obtained under s. 5(3). And for the purposes of granting leave, the Court must be satisfied that the petitioning creditor has exhausted all modes of execution and enforcement to recover debts owed to him by the debtor

Essentially, the JD, for the reasons at para 6(i) and (ii) of the JD Subs has, in effect, claimed that the JC failed to obtain leave before commencing bankruptcy proceedings.

This is an odd submission as the JC has obtained leave under s. 5(3)(b) to commence these proceedings, see Encl 38. On 9.6.2025, I dismissed the JD’s appeal against Encl 38, see Encl

The s. 5(3) leave remains intact.

As such, there is no merit in the Appeal. Accordingly, I dismissed Encl 92 with costs of RM3,000.00. S/N M6HoRdzpXUygj09BXmrXqw Dated the 16th day of March 2026 ........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Decision Date: 14th January 2026 Counsel for the Judgment Debtor: Solicitors: Shankar Govinth & Nur Diana Adilla Messrs. Shankar Govinth (Kuala Lumpur) Counsel for the