KOONG LIN LOONG (Selaku wakil pertubuhan The Associated Chinese Chambers of Commerce and Industry of Malaysia) v NUR SYAFEENAZ FARHANAH BINTI ROSMAN (WA-29NCC-1189-07/2024)

These Grounds concern a Notice of Appeal to the Court of Appeal (Encl 60) filed by the Judgment Debtor (“JD”) against my decision on 4.11.2025 under Encl 22.

Under Encl 22, I dismissed the appeal against the decision of the Deputy Registrar on 8.11.2024 granting leave under Encl 2 to the JC to commence bankruptcy proceedings against the JD.

The Judgment Creditor (“JC”) obtained judgment against a firm of solicitors (“the Firm”) on 19.10.2022 pursuant to a suit based on a breach of a Tenancy Agreement between the Firm and the

The Firm appealed to the High Court vide Appeal No. WA- 12ANCVC-300-11/2022 (“Appeal 300”). On 11.5.2023, Appeal 300 was dismissed with costs (Exhibit K-3, pp. 25-26 of Encl 3). The Firm did not appeal the dismissal to the Court of Appeal, which rendered the Judgment final and indisputable.

The Firm failed to pay the Judgment Sum and ceased operations on 14.6.2023. The JC sought to enforce the Judgment against the JD on the basis that she was a partner of the Firm at the relevant time.

The JC maintains that the grounds raised in resisting the Appeal and Encl 2 are misconceived.

The JC commenced action against the Firm vide Suit 39 for a breach of the Tenancy Agreement by failing to pay outstanding rental and for failing to deliver the vacant possession to the JC after a final extension of time lapsed on 10.1.2022.

The JC filed for summary judgment against the Firm and obtained judgment on 19.10.2022 (“Judgment”). The JD, in opposing summary judgment, affirmed an affidavit in reply, in the capacity of sole proprietor of the Firm (see Exhibit K-6, pp. 34-41 of Encl 3).

After the Judgment was served on the Firm, the Firm appealed to High Court vide Appeal 300 on 31.10.2022. Pending disposal of Appeal 300, the JD filed for stay of execution. The JD again affirmed an affidavit in support, in the capacity of sole proprietor of the Firm (see Exhibit K-6, pp. 42-79 of Encl 3).

The Firm’s Appeal 300 was dismissed by the High Court on 11.5.2023. No appeal has been filed by the Firm. Instead, the Firm ceased operations on 14.6.2023, roughly a month after Appeal 300 was dismissed.

All attempts to challenge the Judgment dated 19.10.2022 were exhausted when the Firm’s Appeal 300 was dismissed on 11.5.2023 without further appeal, thus rendering the Judgment indisputable. This meant that the Judgment is a final judgment within s. 3(1) of the Insolvency Act 1967,

S. 3(1)(i) of Insolvency Act 1967 [TAB A, JC’s Bundle of Authorities] (“JCBOA”) provides: “A debtor commits an act of bankruptcy in each of the following cases:

if a creditor has obtained a final judgment or final order against him for any amount and execution thereon not having been stayed has served on him … a bankruptcy notice under this Act requiring him to pay the judgment debtor or sum ordered to be paid in accordance with the terms of the judgment or order … and he does not within seven days after service of the notice … comply with the requirements of the notice …”

For the finality of summary judgments under s. 3(1), see Re Lo Kon Wah; Ex P Jupiter Securities Sdn Bhd [2000] 5 MLJ 180 and Yap Wee Keat v P1 World LLP [2015] MLJU 1932.

The Judgment was obtained against the Firm. To proceed against the JD, allegedly as a partner of the Firm, leave under Order 77 Rule 5 was required.

Order 77 rule 5(4) Rules of Court 2012 [provides: “where a party who has obtained a judgment or an order against a Firm claims that a person is liable to satisfy the judgment or order as being a member of the Firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for leave to issue execution against that person, the application to be made by notice of application which must be served personally on that person.”

The JC did previously apply for leave (“1st Leave Application”) to commence bankruptcy proceedings against the JD in KL HCt (Civil Division) (“Civil Court”). The Civil Court dismissed the JC’s 1st Leave Application as it held that it did not have the jurisdiction to hear the application and did not have the power to transfer the JC’s 1st Leave Application to the High Court (Bankruptcy Division) (“Bankruptcy Court”), see paras 13 – 14 of Encl 3.

The Civil Court held that it was more appropriate for the Bankruptcy Court to hear the application for leave. Hence, the JC filed Encl 2 which was fixed before the Registrar (see Exhibit K-7, pp. 81-87 of Encl 3).

The main basis for leave is that the cause of action accrued when the Firm failed to deliver vacant possession to the JC on the expiry of the extension i.e., on 10.1.2022 (Exhibit K-8, p 160 of Encl 7). At that time, the JC claims that the JD was a partner of the Firm.

The JC submitted that leave ought to be granted as the JD’s liability as a partner and/or sole proprietor was established in that: a. the JD was partner and/or sole proprietor of the Firm when the cause of action accrued on 10.1.2022, and when Suit 39 was commenced on 6.7.2022 and when the Judgment was obtained on 19.10.2022; b. it is undisputed that JD defended the JC’s application for summary judgment, in the capacity of the sole proprietor of the Firm.

In essence, this is an appeal against leave granted to the JC to commence bankruptcy proceedings against the JD.

There are in essence 3 grounds relied on by the JD.

The first objection is that the leave application (Encl 2) under Order 77 Rule 5(4) had to be made by Notice of Application and not by Summons in Chambers.

In this respect, the 1st Leave application was filed in WA- 12ANNCVC-300-11/2022. On 29.4.2024, YA Arziah Mohamed Apandi of the Appellate division of the High Court ruled that the application for leave must be made by Summons in Chambers under the Bankruptcy Rules see para 6 iv., at p 87 of Encl 3. In this regard, Rule 18 provides that every application to Court is to be made by Summons in Chambers.

As such, the objection fails for res judicata by reason of the previous ruling of YA Arziah and Rule 18 of the Bankruptcy Rules (now Rule 17 of the Insolvency Rules 2017).

The second ground is that the JD was not a partner at the relevant time so as to be liable for the Judgment.

I regret I do not accept this either. The authorities suggest that to be liable, the JD must be a partner when the cause of action against the Firm accrued.

First, s. 11 of Partnership Act 1961 provides: Liability of partners

Every partner in a Firm is liable jointly with the other partners for all debts and obligations of the Firm incurred while he is a partner; and after his death his estate is also severally liable in due course of administration for such debts and obligations, so far as they remain unsatisfied but subject to the prior payment of his separate debts.

Secondly, the Court of Appeal put the matter beyond doubt. The Court of Appeal in Lee Choon Hei v Public Bank Bhd and another appeal [2017] 3 MLJ 441, as per Harmindar Singh JCA at 451 held: “[16] .... When read together we agree that O 77 r 5(4) is a secondary proceeding after judgment is taken against the Firm, whereby the only thing that the applicant needs to show is that the subject of the application ‘is liable to satisfy the judgment or order as being a member of the Firm’. [17] It must follow that the plaintiff does not need to prove all over again all the causes of action that are merged in the judgment against the Firm because the nexus between the appellant and the judgment is the all-important fact that the appellant was a member of the Firm at the time when the plaintiff’s cause of action accrued against the Firm. Thus, as soon as the plaintiff shows that the appellant was a member of the Firm when the cause of action accrued, the appellant is liable.”

The JC submits that the cause of action accrued when the Firm failed and/or neglected to deliver vacant possession to the JC after an extension of time was given i.e. on 10.1.2022 (see Exhibit K-8, p 160 of Encl 7).

At that time, the JD was partner and/or member of the Firm. This was based on the Letter of Confirmation from the Bar Council dated 15.8.2023, it was confirmed that the JD was the sole proprietor of the Firm when the cause of action accrued on 10.1.2022, when Suit 39 was commenced on 6.7.2022 and when the Judgment was obtained on 19.10.2022 (see Exhibit K-5, pp 31-32 of Encl 3).

Therefore, the JD is liable for the Judgment and leave to commence bankruptcy proceedings may be granted.

The fact that the JD was not a party to the Partnership Agreement is immaterial. The JC submits that the Partnership Agreement does not affect the JC who cannot be affected by the dispute between the partners in the Firm. Quite simply, the JC is not a party to the Partnership Agreement and no responsibility can be imposed in the JC based on the doctrine of privity.

The JD also rely on the terms of the Firm’s Partnership Agreement in claiming that Affendi Zahari had warranted her that the JD shall not be responsible of any loss, damages and/or claims incurred to the Firm at any time during the partnership period. Similarly, this is an internal arrangement of the Firm and has no impact on the JC. In any event, the JD held herself out when the defended the Judgment and Appeal 300 as sole proprietor and is estopped from claiming otherwise. Any denial of knowledge of the Tenancy Agreement will not have any effect on the liability of the JD as partner of the Firm.

In Fujifilm Business Innovation Asia Pacific Pte Ltd (dahulunya dikenali sebagai Fuji Xerox Asia Pacific Pte Ltd) v Kamaliah bt Muda [2022] MLJU 1204, Enrol Mariette Peters J held that: “[9] It was undisputed that the Second Defendant was a partner of the Firm. The gist of her argument, however, was that she had no knowledge of the Agreements between the Firm and the Plaintiff, as she was never involved in the affairs of the Firm, and since JID had already been obtained against the First Defendant, the Second Defendant claimed that she no longer bore any responsibility towards the Plaintiff. [10] I was unable to accept this argument, as pursuant to sections 7 and 8 of the Partnership Act 1961 (“Partnership Act”), the Agreements signed by the First Defendant on behalf of the Firm would also bind the Second Defendant.”

In the circumstances, I did not accept any of the Grounds raised by the JD.

As such, I dismissed Encl 60 with costs of RM4,000.00 subject to allocatur. Dated the 18th day of January 2026 ........................t.t.............................. YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Case References: • Fujifilm Business Innovation Asia Pacific Pte Ltd (dahulunya dikenali sebagai Fuji Xerox Asia Pacific Pte Ltd) v Kamaliah bt Muda [2022] MLJU 1204 • Lee Choon Hei v Public Bank Bhd and another appeal [2017] 3 MLJ 441 • Re Lo Kon Wah; Ex P Jupiter Securities Sdn Bhd [2000] 5 MLJ 180 • Yap Wee Keat v P1 World LLP [2015] MLJU 1932 Counsel for the Judgment Debtor: Solicitors: Aznil Majid Messrs. Arief & Iskandar (Kuala Lumpur) Counsel for the Judgment Creditor: Solicitors: Tan Li Min Messrs. Michael Chai & Co. (Kuala Lumpur) Legislation References: • Insolvency Act 1967 • Order 77 rule 5(4) Rules of Court 2012 • Partnership Act 1961 • Rule 18 of the Bankruptcy Rules • Rule 17 of the Insolvency Rules 2017 Decision Date: 04th November 2025