Cheok Lay Ho @ Paul Cheok v Choong Chee Meng (WA-29NCC-1089-06/2024)

These Grounds concern a Notice of Appeal to the Court of Appeal in Encl 109 dated 6.3.2025 against my decision on 6.2.2026.

By my decision on 6.2.2026, I dismissed both Encl 72 and Encl 73, being the Judgment Debtor’s (“JD”) 2 Notices of Appeal to the Judge in Chambers as follows: a. Encl 72 is an Appeal against the decision of the Senior Assistant Registrar (“SAR”) dismissing Encl 55, being the JD’s Notice of Intention to Oppose the Petition (“the Rule S/N mLxXx/udnkGZDAJuDEfddg 2 116 Notice”) issued pursuant to Rule 116 of the Insolvency Rules 2017 (“the Rules”); and b. Encl 73, is an Appeal against the decision of the SAR dismissing the JD’s Application for interim stay of the Creditor’s Petition (“CP”) pending the hearing of the Rule 116 Notice, with costs of RM3,000.00 to the Judgment Creditor (“JC”).

What was obvious was that the issues raised in JD’s Rule 116 Notice would also be raised at the hearing of the CP.

By ss 90(1), and (2)(b) of the Bankruptcy Act 1967 (“the BA”), the CP would be heard by the Registrar, see Joseph de Silva s/o Andrew de Silva ex p the Co-operative Central Bank Ltd [1996] MLJU 372. It is clear that the same grounds intended to be dealt with by the Registrar in the Rule 116 Notice will also be argued and duplicated before the Registrar at the hearing of the

There has grown a practice whereby the Registrar (apart from conducting a hearing of the CP) will also conduct a hearing of the Rule 116 Notice in a hearing separate from the hearing of the CP. With respect, I think this is a bad practice and more importantly, constitutes a serious procedural error. S/N mLxXx/udnkGZDAJuDEfddg 3 6. The Rule 116 Notice was issued pursuant to Rule 116. Rule 116 provides as follows: “116. Debtor intending to show cause Where a debtor intends to show cause against a petition, he shall file a notice in form 45 with the Registrar specifying the statements in the petition which he intends to deny or dispute and submit by post or otherwise to the petitioning creditor and his solicitor, if known, a copy of the notice three days before the day on which the petition is to be heard.

Form 45 provides as follows. “NOTICE BY DEBTOR OF INTENTION TO OPPOSE PETITION (r. 116) To..........................., of........................., and to..................... and to the Registrar of the said court. In the matter of a bankruptcy petition presented against me........................................ of........................................on the............................ day of........................................,

20........................................by........................................ of................................ (or and......................... of........................................, etc). I, the above........................................, do hereby give you notice that I intend to oppose the making of a bankruptcy order as prayed and that I intend to dispute the petitioning creditor’s debt (or the act of bankruptcy, or as the case may be). S/N mLxXx/udnkGZDAJuDEfddg Dated this..................... day of........................................,

20............... ........................................ Signature”

For completeness, Rule 117 provides: “117. Appearance of debtor to show cause On the appearance of the debtor to show cause against the petition the petitioning creditor’s debt and the act of bankruptcy or such of those matters as the debtor shall have given notice under rule 116 that he intends to dispute shall be proved and if any new evidence of those matters or any of them be given or any witness or witnesses to such matters be not present for cross-examination and further time be desired to show cause the court shall if the application appears to the court to be reasonable grant such further time as the court thinks fit.”

It seems plain that nothing in Rule 116 nor in Form 45 provides that a Rule 116 Notice is to be treated as requiring a hearing of the Notice itself. In my mind, the Notice and the issues raised therein should not be the subject of a separate hearing but should be taken at the hearing of the CP.

In Joseph de Silva (supra), Syed Ahmad Idid J held in relation to Rule 117, now Rule 116: S/N mLxXx/udnkGZDAJuDEfddg “Rule 117 has in no uncertain terms provided the procedure to be followed by a debtor intending to oppose a creditor’s petition. Such procedure being expressly provided, would exclude the application of Rule 18, by virtue of the opening words of Rule 18 itself as above quoted. … Apart from that, Rule 117 by its very words does not require the filing of a separate application, to wit, summons in chambers and an affidavit in support to oppose creditor’s petition. Rule 117 is very clear as to what a debtor should do, i.e. to file a notice in Form 16. To prescribe other procedures to be followed would only mean importing words into the rule. This certainly is not a right doctrine to apply. As said by Lord Halsbury L.C. in Leader v Duffey (1888) 13 App. Cas. 294 at 301: ‘... whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained.’ Inasmuch as I am applying the principles above-mentioned, I would nevertheless hold, as stated earlier, that Enclosure 13 is properly filed in support of Enclosure 14 and this is despite the absence of any such requirement being provided for in Rule 117. My view is fortified by the following principles enunciated in Nuth v Tamlin (1881) 8 Q.B.D. 247 at page 253: that a section of a statute must be read literally unless one of two things occur; either there is some other section which cuts down its meaning or else the section itself is repugnant to the general purview of the Act.”

Similarly, it was held in Re Chew Kok Lian; ex parte Hsbc Bank Malaysia Bhd [2010] MLJU 1771, it was held that: S/N mLxXx/udnkGZDAJuDEfddg “5. I have read the affidavits and submissions of the parties in detail. I take the view the decision of the senior assistant registrar must be set-aside and the notice of intention to oppose must be struck out. My reasons inter alia are as follows:

(i) There is no provision in the BR 1969 to hear the notice of opposition separately. In consequence it has to be dealt with on the hearing date. …”

The decision in Re Chew Kok Lian (supra) was based on Dato’ Sri Teong Teck Leng v. Jupiter Securities Sdn Bhd [2004] 1 MLJ 1, where Abdul Hamid Mohamad FCJ (as he then was) had this to say at para 40, when speaking for the Federal Court: "We also note that in the instant case, the learned SAR first heard encl 13 (notice of intention to oppose the creditor's petition) and after deciding on encl 13, heard the creditor's petition three weeks later. We are of the view that there should be no separate hearing of the notice of intention to oppose the creditor's petition. It is to be considered at the hearing of a creditor's petition, just as a statement of defence is not heard separately from the hearing of the claim. It may be different in the case of an application by way of a summons in chambers to strike out the creditor's petition. Even then, for the sake of expediency, unless, for some reasons, it is not practical, the summons in chambers should be heard together with the creditor's petition."

The judgment of the Federal Court is clear. There is no basis to hear the Rule 116 Notice prior to and as a hearing separate S/N mLxXx/udnkGZDAJuDEfddg from the CP. It is merely a notice, which may have repercussions if no such notice is given. Instead of hearing the Rule 116 Notice as if it were a separate application, the issues in the Rule 116 Notice should be raised and dealt with at the hearing of the CP. Hearing of the Petition & Rules 113 to 126

Rule 116 is a Rule within a collection of rules comprising Rules 113 to 126 of the Rules under the Sub-heading ‘Hearing of the Petition’. For example, Rule 113 deals with proceedings on the hearing of the Petition. Rule 115 deals with the hearing of the Petition on multiple Respondents. Rules 118, 119, and 120 deal with the attendances of the creditor and debtor on the Petition and dispensation thereof. Rules 121 to 126 specifically deal with the hearing of the Petition.

Rule 116, as we know, provides for the giving of a notice by the debtor of the paragraphs of the Petition that he intends to dispute. In my mind, as with the other Rules, Rule 116, the Rule 116 Notice and the issues raised therein are steps preparatory to the hearing of the Petition. It is not designed to dispose of substantive issues by a separate hearing, which issues will be heard on the CP proper.

There are real practical reasons why the Rule 116 Notice should not give rise to a separate hearing. First, to hear the Rule 116 S/N mLxXx/udnkGZDAJuDEfddg Notice as an adjudication of the issues in the CP will inevitably result in a duplication of the issues in the CP. In my mind, to allow such duplication will result in a waste of judicial time. The Rule 116 Notice will also give rise to inconvenient issues of res judicata and issue estoppel, as was the case in Re Muhammad Zahir Sanjay bin Abdullah; ex parte Legasi Senada Sdn Bhd [2025] MLJU 1530 at paras 13 to 24, and Brillouet v Hachette Magazines Ltd, Re A Debtor (No 27 of 1990) [1996] BPIR 518 (CA). A Rule 116 Notice should be treated as just that, a notice to the Petitioner. And all such issues raised therein should be dealt with at the hearing of the CP.

Secondly, as has become common practice, if the Rule 116 Notice is dismissed, an appeal to the Judge would be inevitable and thereafter to the Court of Appeal. There will be the equally inevitable applications for a stay of the CP pending the disposal of the said appeals. It is common practice in the bankruptcy process to appeal every order made therein. But I acknowledged this as a right of the judgment debtor, see Re Muhammad Zahir Sanjay bin Abdullah; ex parte Legasi Senada (supra) at paras 40 to 42; but it creates additional judicial work even though that is the nature of a judicial appointment. However, to permit applications and orders which prompt appeals, when no such right to apply actually exists, is to invite an unnecessary waste of judicial time and resources. S/N mLxXx/udnkGZDAJuDEfddg

Accordingly, there is no basis for a separate hearing of the Rule 116 Notice. With respect, the SAR was wrong to hear it as such. The appeal in Encl 72 is doomed. Encl 73 is for stay of the CP pending the hearing of the Rule 116 Notice. This fails as well. As such, I dismissed both Encl 72 and 73 but with liberty to raise the issues raised in the Rule 116 Notice at the hearing of the CP. I made no order as to costs in both appeals. Dated the 18th 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 Counsel for the Judgment Debtor: Solicitors: Nur Diana Adilla Messrs. Shankar Govinth (Kuala Lumpur) Counsel for the Judgment Creditor: Solicitors: Lim Ke Xin Messrs. Cheang & Ariff (Kuala Lumpur) S/N mLxXx/udnkGZDAJuDEfddg Case References: • Brillouet v Hachette Magazines Ltd, Re A Debtor (No 27 of 1990) [1996] BPIR 518 (CA) • Dato’ Sri Teong Teck Leng v. Jupiter Securities Sdn Bhd [2004] 1 MLJ 1 • Joseph de Silva s/o Andrew de Silva ex p the Co-operative Central Bank Ltd [1996] MLJU 372 • Re Chew Kok Lian; ex parte Hsbc Bank Malaysia Bhd [2010] MLJU 1771 • Re Muhammad Zahir Sanjay bin Abdullah; ex parte Legasi Senada Sdn Bhd [2025] MLJU 1530 Legislation References: • Bankruptcy Act 1967 (“the BA”) • Rule 116 of the Insolvency Rules 2017 (“the Rules”) Decision Date: 06th February 2026 S/N mLxXx/udnkGZDAJuDEfddg