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(a) whether this Court has power to grant leave under section 8(1)(a) of the IA 1967 to continue the action against the 1st and 2nd Defendants, they having been adjudged bankrupt in Singapore and not in Malaysia;
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High Court of Malaysia25 Jun 2026MA-22NCC-7-04/2025
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“hould be observed that the disability there in question was the bankrupt's own want of capacity to sue without the sanction of the Director General of Insolvency under what was then section 38 of the Bankruptcy Act 1967 (a provision in pari materia with the present Act), and not the restraint upon a creditor under sect”
“BHD. (DAHULUNYA DIKENALI SEBAGAI "FUYUU DEVELOPMENT SDN. BHD.") [No. Syarikat: 200801003772 (805056-A)] ... DEFENDANTS GROUNDS OF JUDGMENT (Plaintiff's application under section 8(1)(a) of the Insolvency Act 1967 for leave to continue the action against the 1st and 2nd Defendants Enclosure 51) A. INTRODUCTION [1] By a”
“uished by the bankruptcy but is suspended pending leave. [21] The principles upon which leave to continue is granted were stated by the High Court in BBMB Securities Sdn Bhd v Tan Lay Hiong & 10 Ors [2002] MLJU 166. The discretion is governed by three considerations: the nature of the plaintiff's claim; the balance of”
“ed under the IA 1967. The significance of that distinction is taken up at [23] [27] below. [19] The reciprocal provision has been given effect by the High Court in Dato' Kuah Tian Nam v Lee Siok Poh [2009] MLJU 655, where a plaintiff adjudicated bankrupt in Singapore was held subject in Malaysia to a disability of that”
“ned by the High Court in Dr Tikfu Gee v Kalthom bt Ithnin [2022] MLJU 2489, and the leave requirement under section 8(1) was considered by the High Court in Leong Wei Sheong v Malayan Trustees Berhad [2015] MLJU 830; both confirm that the creditor's right to proceed is not extinguished by the bankruptcy but is suspende”
“able all debts and liabilities, present or future, certain or contingent, to which the bankrupt is subject. The reach of the section was examined by the High Court in Dr Tikfu Gee v Kalthom bt Ithnin [2022] MLJU 2489, and the leave requirement under section 8(1) was considered by the High Court in Leong Wei Sheong v Ma”
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MA-22NCC-7-04/2025 Kand. 60 26/06/2026 11:38:23 DALAM MAHKAMAH TINGGI MALAYA DI MELAKA DALAM NEGERI MELAKA, MALAYSIA GUAMAN SIVIL NO. MA-22NCC-7-04 TAHUN 2025 ANTARA PUBLIC BANK BERHAD [No. Syarikat: 196501000672 (6463-H)] ...PLAINTIFF DAN
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1. TAN PING HUANG EDWIN @ CHEN BINGHUANG (NO. K/P SINGAPURA: S8224254F)
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2. TAN JUNE TENG COLIN @ CHEN JUNTING (NO. K/P SINGAPURA: S8323775I)
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3. MDSA DEVELOPMENT SDN. BHD. (DAHULUNYA DIKENALI SEBAGAI "FUYUU DEVELOPMENT SDN. BHD.") [No. Syarikat: 200801003772 (805056-A)] ... DEFENDANTS GROUNDS OF JUDGMENT (Plaintiff's application under section 8(1)(a) of the Insolvency Act 1967 for leave to continue the action against the 1st and 2nd Defendants Enclosure 51) A. INTRODUCTION [1] By a Notice of Application dated 26 March 2026 (Enclosure 51), the Plaintiff applies under section 8(1)(a) of the Insolvency Act 1967 ("the IA 1967") for leave to continue this action against the 1st and 2nd Defendants, each of whom was adjudged bankrupt by the General Division of the High Court of the Republic of Singapore on 30 October 2025. [2] The action is a creditor's claim upon guarantees. The 1st and 2nd Defendants were sued, together with the 3rd Defendant, as guarantors of a fixed loan facility extended to a borrower now in liquidation. The proceedings against the 3rd Defendant, a corporate guarantor, have been concluded: judgment in default of appearance was entered against it on 26 February 2026. The present application concerns the 1st and 2nd Defendants alone. [3] It is the supervening bankruptcy of the 1st and 2nd Defendants that has made the application necessary. Section 8(1)(a) of the IA 1967 restrains a creditor from proceeding with an action against a bankrupt in respect of a debt provable in bankruptcy save with the leave of the court. The leave now sought is directed to enabling the Plaintiff to carry the action to judgment and thereafter to lodge a proof of debt in the bankrupt estates. [4] Two matters call for attention at the outset. The first, and the more difficult, is that the bankruptcy was adjudged in Singapore and not in Malaysia. That raises an anterior question of construction whether the restraint in section 8(1)(a), expressed to operate "on the making of a bankruptcy order", is engaged at all by a foreign adjudication, and, if so, by what route and in which forum leave is to be sought. The second is that the application is unopposed: the trustees of the two estates, and the 1st and 2nd Defendants' former solicitors, were served and have not appeared. That the application is unopposed does not displace the Court's duty to be satisfied that the statutory threshold is crossed and that the discretion is soundly exercised. [5] The issues are framed at [14] below. B. MATERIAL FACTS AND PROCEDURAL HISTORY [6] The material facts are not in controversy. They appear from the Affidavit in Support of Lim Chee Hwa, the Plaintiff's branch manager, affirmed on 25 March 2026 (Enclosure 52), and the documents exhibited to it. [7] The Plaintiff granted a fixed loan facility of RM4,290,000.00 under Account No. 2-0993453-33 (Note No. 00010). The facility was taken up by Prolific Properties Sdn Bhd [Company No. 201101018317 (946453-P)] ["the Borrower"], which is in liquidation. The 1st and 2nd Defendants stood, with the 3rd Defendant, as guarantors of the facility. Service of process is governed by clause 53.2 of the Facilities Agreement dated 27 July 2012, under which documents posted are deemed served 48 hours after posting. [8] The Writ of Summons (Enclosure 1) and Statement of Claim (Enclosure 2), dated 16 April 2025 and 15 April 2025 respectively, were filed on 16 April 2025 and served by registered post on 18 April 2025. By operation of clause 53.2 they were deemed served on 20 April 2025. The time for entering appearance expired on 5 May 2025. The Plaintiff filed an Affidavit of Service (Enclosure 4) and a Certificate of Non-Appearance (Enclosure 5) on 6 May 2025. The Memorandum of Appearance (Enclosure 6) was filed on 14 May 2025, nine days out of time. [9] On 15 May 2025 the Plaintiff applied, under Order 83 rule 4(1) of the Rules of Court 2012, for leave to enter judgment in default of appearance against the Defendants (Enclosure 9). On 19 June 2025 the Defendants applied, under Order 12 of the Rules of Court 2012, for leave to file a defence out of time (Enclosure 13) i.e 45 days late from the last date the Defendants should have entered appearance on 5.5.2025. [10] On 30 October 2025 the General Division of the High Court of the Republic of Singapore adjudged the 1st Defendant bankrupt in HC/B 2971/2025, and the 2nd Defendant bankrupt in HC/B 2972/2025, upon the application of Haitong International Financial Products (Singapore) Pte Ltd. Goh Wee Teck and Yap Hui Li were appointed joint and several trustees of each estate. The sealed orders of the Singapore court, certified by its Registrar, are exhibited as "LCH-1" to Enclosure 52. [11] By a letter dated 13 February 2026, which also forms part of Exhibit "LCH-1", the solicitors then acting for all three Defendants informed the Plaintiff's solicitors of the bankruptcies and requested the withdrawal of the action against the 1st and 2nd Defendants. [12] On 26 February 2026 this Court allowed the Plaintiff's application in Enclosure 9 and dismissed the Defendants' application in Enclosure 13, in each case as against the 3rd Defendant, with costs. Those applications were not determined as against the 1st and 2nd Defendants, their bankruptcy having intervened. [13] The present application (Enclosure 51) was filed on 26 March 2026 and served upon the trustees of the estates and upon the 1st and 2nd Defendants' former solicitors, as deposed in the Affidavit of Service of Melissa Ong Bee Ying affirmed on 23 April 2026 (Enclosure 53). A search at the Malaysian Department of Insolvency conducted on 13 April 2026 records that neither the 1st nor the 2nd Defendant is a bankrupt in Malaysia. C. ISSUES FOR DETERMINATION [14] Three issues arise, the first of which is a threshold question:
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(a) whether this Court has power to grant leave under section 8(1)(a) of the IA 1967 to continue the action against the 1st and 2nd Defendants, they having been adjudged bankrupt in Singapore and not in Malaysia;
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(b) whether the Plaintiff's claim is in respect of a debt provable in bankruptcy, so that leave under section 8(1)(a) is both required and available; and
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(c) if so, whether leave ought, as a matter of discretion, to be granted, and upon what terms. [15] The disposal of prayer (b) of Enclosure 51, concerning costs, is addressed separately at [37 & 39(d)]. D. STATUTORY AND LEGAL FRAMEWORK [16] Section 8(1)(a) of the IA 1967 provides that, on the making of a bankruptcy order and except as provided by the Act, no creditor to whom the bankrupt is indebted in respect of a debt provable in bankruptcy shall have any remedy against the property or person of the bankrupt in respect of that debt, or shall proceed with or commence any action or other legal proceeding in respect of such debt unless with the leave of the court and on such terms as the court may impose. The provision in its present form speaks of a "bankruptcy order", the single order introduced by the Bankruptcy (Amendment) Act 2017 in place of the former receiving and adjudication orders. [17] Two consequences follow from the text. First, the restraint operates only where the debt is one provable in bankruptcy. Secondly, the restraint is not a bar but a stay: it yields to the leave of the court, which is empowered to grant leave on such terms as the court may impose. The discretion so conferred is unconfined in terms, and falls to be exercised judicially. [18] Because the bankruptcy was adjudged in Singapore, section 104 of the IA 1967 is engaged. By section 104(1), the High Court is, in all matters of bankruptcy and insolvency, to act in aid of and be auxiliary to the courts of the Republic of Singapore, so long as the law of Singapore requires its courts to act in aid of and be auxiliary to the courts of Malaysia. By section 104(5), the production of a certified order of adjudication of the Singapore court is conclusive proof in all courts in Malaysia of the order having been made and of its date. It is important to be precise about what that subsection does and does not do: it is an evidentiary provision, conclusive as to the fact and date of the foreign order; it does not, in terms, deem a Singapore bankrupt to be a bankrupt adjudged under the IA 1967. The significance of that distinction is taken up at [23] [27] below. [19] The reciprocal provision has been given effect by the High Court in Dato' Kuah Tian Nam v Lee Siok Poh [2009] MLJU 655, where a plaintiff adjudicated bankrupt in Singapore was held subject in Malaysia to a disability of that bankruptcy. It should be observed that the disability there in question was the bankrupt's own want of capacity to sue without the sanction of the Director General of Insolvency under what was then section 38 of the Bankruptcy Act 1967 (a provision in pari materia with the present Act), and not the restraint upon a creditor under section 8. The decision is therefore authority for the broad proposition that a Singapore bankruptcy carries reciprocal consequences in this jurisdiction by force of section 104; its application to the present, distinct, question is by analogy and not by direct holding. [20] The expression "debt provable in bankruptcy" is defined by sections 2 and 40 of the IA 1967. Section 40(1) excludes from proof only demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust; section 40(3) renders provable all debts and liabilities, present or future, certain or contingent, to which the bankrupt is subject. The reach of the section was examined by the High Court in Dr Tikfu Gee v Kalthom bt Ithnin [2022] MLJU 2489, and the leave requirement under section 8(1) was considered by the High Court in Leong Wei Sheong v Malayan Trustees Berhad [2015] MLJU 830; both confirm that the creditor's right to proceed is not extinguished by the bankruptcy but is suspended pending leave. [21] The principles upon which leave to continue is granted were stated by the High Court in BBMB Securities Sdn Bhd v Tan Lay Hiong & 10 Ors [2002] MLJU 166. The discretion is governed by three considerations: the nature of the plaintiff's claim; the balance of convenience; and the justice of the case. The same decision determined the anterior question of which court may grant leave, holding that the "court" for the purposes of section 8 is the High Court understood generally, and is not confined to the court in which a bankruptcy petition has been presented or to the court of the bankrupt's local jurisdiction. That decision arose upon a receiving order made within Malaysia and concerned an intra-Malaysian contest of forum (Kuala Lumpur as against Kota Kinabalu); its principle is applied here, to a cross-border bankruptcy, as a matter of consistent reasoning rather than of identical facts. E. ANALYSIS AND DETERMINATION
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(i) Whether This Court May Grant Leave [22] The threshold objection that might be raised is that, the bankruptcy being a Singapore bankruptcy, leave to proceed should be sought from the Singapore court rather than from this Court. Logically anterior to that objection, however, is a question of construction which the Court should confront directly: whether section 8(1)(a) is engaged at all by a foreign adjudication. [23] There is a respectable view that it is not. Section 8(1)(a) is expressed to operate "on the making of a bankruptcy order", and a "bankruptcy order" is, on the ordinary reading of the Act, an order made under the Act that is, a Malaysian order. Section 104(5), as observed at [18], renders the Singapore order conclusive proof of its making and date, but does not in terms convert the foreign adjudication into a domestic bankruptcy order. On that strict reading, the statutory stay in section 8(1)(a) would not, of its own force, attach to a bankruptcy adjudged in Singapore, and leave would not strictly be required. [24] The Court does not, however, accept that this disposes of the matter against the existence of a leave requirement. Section 104(1) directs this Court, in all matters of bankruptcy and insolvency, to act in aid of and be auxiliary to the courts of Singapore. The orderly administration of a Singapore bankrupt's estate in particular the principle that the bankrupt's liabilities are to be marshalled and satisfied pari passu through proof, and not by the unilateral execution of individual creditors would be defeated if a creditor were free to prosecute an action to judgment and execution in Malaysia against a Singapore bankrupt without reference to the court. To act in aid of the Singapore court is therefore to bring into this forum the substance of the protection that section 8(1)(a) affords, together with the mechanism by which that protection is lifted, namely the leave of the court. It follows that, by whichever route the matter is approached, the conclusion is the same. On the wider view, section 8(1)(a) is engaged and leave is required. On the narrower view, the section does not bite of its own force, but the auxiliary jurisdiction conferred by section 104(1) makes it appropriate that a creditor seeking to continue a Malaysian action against a Singapore bankrupt should obtain the leave of this Court before doing so. On either view this Court has power to grant the leave sought; and on the view most favourable to the Plaintiff that no leave is strictly necessary a grant of leave is in any event protective, regularises the Plaintiff's position, and occasions no prejudice to any party. The prudent and proper course, which the Plaintiff has rightly taken, is to apply for leave. [26] That this Court, rather than the Singapore court, is the proper forum for the application admits of little doubt. The reasoning in BBMB Securities that the "court" empowered to grant leave under section 8 is the High Court at large and not the court of the bankrupt's local jurisdiction, applies with added force where the bankruptcy is foreign. The facts giving rise to the cause of action arose in Melaka: the facility was extended and utilised here, the security relates to property here, and the dealings were in ringgit. Neither the 1st nor the 2nd Defendant is adjudged bankrupt in Malaysia, as the Department of Insolvency search of 13 April 2026 confirms; there is no Malaysian bankruptcy court otherwise seised of their affairs. This Court is seised of the action and is the court of the place where the cause of action arose. [27] To require the Plaintiff to obtain leave in Singapore in order to continue an action pending in Malaysia would sever the leave from the proceeding to which it relates and would defeat, rather than serve, the auxiliary purpose of section 104. The first issue is answered in the affirmative.
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(ii) Whether The Claim Is A Debt Provable In Bankruptcy [28] Leave under section 8(1)(a) is required only where, and is available only because, the debt is provable in bankruptcy. The Plaintiff's claim is founded upon guarantees of a fixed loan facility. It is a claim in contract for an ascertained sum, and not a demand for unliquidated damages arising otherwise than by reason of a contract. It therefore falls within the debts rendered provable by section 40(3), and outside the exclusion in section 40(1). [29] It follows that the debt is provable, that the protection of section 8(1)(a) is engaged, and that the leave of the Court is the proper and available means by which the Plaintiff may continue the action. The analysis in Dr Tikfu Gee [2022] MLJU 2489 and Leong Wei Sheong [2015] MLJU 830 is consistent with this conclusion. The second issue is answered in the affirmative.
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(iii) Whether Leave Ought To Be Granted [30] The discretion is governed by the three considerations identified in BBMB Securities [2002] MLJU 166. Each is addressed in turn. [31] The nature of the claim. The claim is a straightforward creditor's claim upon guarantees for the recovery of an ascertained indebtedness under a defaulted facility. It is not speculative; the liability of a guarantor is, unless expressly limited, co-extensive with that of the principal debtor, and the Borrower is in liquidation. Judgment in default of appearance has already been entered against the 3rd Defendant, the corporate guarantor, upon the same facility. The claim against the 1st and 2nd Defendants stands on the same footing. [32] The balance of convenience. The action is well advanced. The interlocutory applications in Enclosures 9 and 13 had been brought to the point of determination on behalf of all Defendants before the bankruptcy intervened, and were in fact disposed of against the 3rd Defendant on 26 February 2026. The evidence relevant to the claim, and the cause of action itself, are situated in this jurisdiction. There is no competing proceeding in Malaysia, the Defendants not being bankrupt here. The convenience of completing the action in the forum already seised of it is plain. [33] The justice of the case. Were leave refused, the Plaintiff would be halted in mid-course and left unable to perfect, by judgment, a claim that is otherwise complete. The Plaintiff requires a judgment in order to lodge a proof of debt in the bankrupt estates; refusal would deny it that course without advancing any countervailing interest. The estates, for their part, suffer no injustice from the grant of leave, because leave will be granted upon a term confining the Plaintiff to proof in the bankruptcy and denying it any execution that would prefer it over the general body of creditors. The application is, moreover, unopposed by the trustees, who were duly served. [34] Weighing these considerations, the discretion falls to be exercised in favour of granting leave. The third issue is answered accordingly.
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(iv) Terms [35] Section 8(1)(a) permits the Court to impose terms, and the justice of the present case requires that it do so. The principle of pari passu distribution, which governs the administration of a bankrupt's estate, would be subverted if a creditor armed with leave to continue were thereby placed at liberty to execute against the bankrupt's person or estate in priority to others. Leave will therefore be granted on the term that any judgment obtained against the 1st and 2nd Defendants is not to be enforced or executed against their respective persons or estates otherwise than by the lodging and proof of the Plaintiff's debt in their bankruptcies. So confined, the leave enables the Plaintiff to complete its claim without disturbing the orderly administration of the estates.
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(v) The Applications In Enclosures 9 And 13 [36] The application presently before the Court is for leave to continue, and for that alone. The applications in Enclosures 9 and 13, so far as they concern the 1st and 2nd Defendants, were adjourned upon the bankruptcy and remain undetermined; the written submissions of both sides upon them have already been filed. Leave being granted, and those applications being ready for disposal, there is no reason to defer them: they stand restored and are to be heard on the same occasion as, and immediately following, the disposal of this application. The Court does not, and on the present application could not, itself determine them; directions for their restoration are given in the orders below.
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(vi) Costs [37] By prayer (b) of Enclosure 51 the Plaintiff seeks the costs of the application out of the estates of the 1st and 2nd Defendants. That relief is not granted. The application has been occasioned by the supervening bankruptcy of the Defendants and is brought for the Plaintiff's own benefit, to enable it to perfect its claim. It is unopposed, and no want of cooperation on the part of the trustees has been suggested. To charge the costs of such an application upon the estates, and so upon the general body of creditors who derive no benefit from it, would not be just. The appropriate order is that there be no order as to costs. F. CONCLUSION [38] For the reasons given, this Court has power under section 8(1)(a) of the IA 1967, read with section 104, to grant leave to continue the action against the 1st and 2nd Defendants; the Plaintiff's claim is in respect of a debt provable in bankruptcy; and the discretion to grant leave is properly exercised in the Plaintiff's favour, subject to the term restricting enforcement to proof in the bankruptcy. G. ORDERS OF THE COURT [39] Accordingly, the Court orders that:
a
(a) the Plaintiff be granted leave under section 8(1)(a) of the Insolvency Act 1967 to continue this action against the 1st and 2nd Defendants to the extent of obtaining judgment;
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(b) any judgment so obtained against the 1st and 2nd Defendants shall not be enforced or executed against their respective persons or estates otherwise than by the lodging and proof of the Plaintiff's debt in their respective bankruptcies in Singapore;
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(c) the applications in Enclosure 9 and Enclosure 13, so far as they concern the 1st and 2nd Defendants, do stand restored and be heard on the same date as the disposal of this application;
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(d) there shall be a costs order in the sum of Rm 10,000; and
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(e) there be liberty to apply. Dated 25 June 2026 (MELAKA) Lawyer For Plaintiff Encik Chew Wee Kian bersama Cik Melissa Ong Bee Ying Tetuan H S Chew & Co. Peguamcara dan Peguambela No. 543-A (1 $ ^{st}$ Floor), Taman Melaka Raya, 75000 Melaka.
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