Eu Kong Leng @ Eu Koong Leng Vs Chung Tze Keong

  

Download PDF Here

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

 

(BAHAGIAN DAGANG)

 

DALAM KEBANKRAPAN NO. D-29-2430-2009

 

Ber : EU KONG LENG @ EU KOONG LENG

 

( No. K/P: 470806-10-5749)

 

Ex Parte : CHUNG TZE KEONG

 

( No. K/P: 551118-10-5619)

 

GROUNDS OF JUDGMENT

 

Enclosure 43 is an application by the Judgment Creditor (JC) to amend the name of the Judgment Debtor (JD) in the Receiving Order (RO) dated 18th April 2011.

 

[2] The proposed amendment is to amend the arrangement of the JD’s name as follows:-

 

From Eu Kong Leng @ Eu Koong Leng to;

 

Eu Koong Leng @ Eu Kong Leng

 

[3] The application is opposed by the JD.

 

i

 

Brief Background of this application.

 

[4] Based on national registration Identity Card of the JD, the correct spelling and arrangement of the JD’s name is Eu Koong Leng @ Eu Kong Leng. The JC had filed the bankruptcy proceedings against the JD by using the wrong arrangement i.e Eu Kong Leng @ Eu Koong Leng as shown in the Bankruptcy Notice dated 17th June 2009, the Creditor’s Petition dated 27th August 2009 and the RO dated 18th April 2011. On the 15th July 2012, the JD filed an application to set aside the RO dated 08th April 2011 on the ground that the name of the JD was not in accordance with his IC. The application was dismissed by the learned registrar on 17th December 2013 and the JD’s subsequent appeal was dismissed by the Judge in Chambers on 26th February 2014. The JD then proceeded on 24th March 2014 to appeal to the Court of Appeal against the said decision of the High Court but later withdrew the said appeal on 05th August 2014 because the JD’s application to the Court of Appeal to include further documentary evidence was dismissed by the Court of Appeal on 21st July 2014.

 

[5] On 26th February 2014 the day the JD’s appeal was dismissed by the Judge In Chambers, the JC’s solicitors was informed by an officer from the Insolvency Department of Malaysia that although there was no case of mistaken identity, the Insolvency Department may still face problem in the administrative aspect since the arrangement of the JD’s named in the RO is not

 

2

 

the same with his Identity Card. As such, with the purpose of assisting the Insolvency Department in administering the RO effectively and without any unnecessary technical hassle, the JC filed this application in enclosure 43 on 28th March 2014 to amend the RO so that it would follow the exact arrangement in the JD’s Identity Card.

 

Submissions by the parties

 

[6] Both parties had filed in their respective written submissions and relied on them. The JC submitted that on 18th April 2011, the RO was entered against the JD based on a summary judgment dated 30th January 2008 obtained in Kuala Lumpur Sessions Court. (Exhibit CA-1 of the JC’s supporting affidavit dated 28th March 2014). The RO and the Summary Judgment stated the JD’s name as Eu Kong Leng @ Eu Koong Leng. It is noted that during both hearing, the JD did not object to this fact.

 

[7] Furthermore, JD has represented himself as Eu Kong Leng @ Eu Koong Leng by inter alia filing of Notice of Appearance in the Sessions Court (Exhibit CA-8 at page 57 of the JC’s second affidavit dated 21st May 2014). On 15th July 2013, almost 5 years since the Summary Judgment dated 30th October 2008 and more than two (2) years since the RO was entered, the JD filed an

 

3

 

application vide Enclosure 33 to set aside the RO based on a sole contention that different arrangement of his name was used.

 

[8] The learned High Court Judge in deciding the appeal had held as such:

 

“ Whilst is it true that at the signing page of the Sales of Shares Agreement shows that the name of the JD is in accordance with his identity card, this does not detract from the position that the JD had represented himself to the JC as Eu Kong Leng @ Eu Koong Leng in the various contemporaneous document; he cannot now seek to refute liability by laying blame on his solicitors with respect to exhibits FW-5, fw-6, Fw-7, FW-8,FW-10 and FW-1 in the JC’s 1st affidavit. It is significantly to note that the JC admitted that “ saya adalah penghutang penghakiman yang dinamakan di atas …”

 

[9] The JC referred to Order 20 rule 11 of the Rules of Court 2012 which stated as follows:

 

“ Amendment of judgment and orders (O. 20, r.11)

 

11. Clerical mistakes in judgment or orders, or errors arising from any accidental slip or omission, may at any time be corrected by the Court by a notice of application without an appeal”.

 

4

 

[10] The JC then referred to the Federal Court case, Sang Lee Co Sdn Bhd & Ors v Munusamy a/l Karrupiah [2010] 5 MLJ 285

 

in which it was held:

 

“[9] The application to amend was filed as in encl 45 and the learned JC2 on 23 May 2007 after considering the entire matter and hearing both parties had correctly granted an order in terms of encl 45 to amend the terms of the sealed order. The Court of Appeal should not have set aside the order for amendment made by the High Court on 23 May 2007 as the purpose and intention for the amendment is merely to set the court records straight and to ensure that the actual terms pronounced by the High Court on 27 June 2006 have been properly authenticated and recorded. In law, the court can always amend an order which does not reflect what was actually pronounced. In such a situation the court is therefore not functus officio.”

 

[11] In reply to the contention of the JD in his affidavit in reply, particularly paragraphs 21 and 22 in which the JD contended that the Bankruptcy Notice and Petition ought to the amended first before the RO could be amended, the JC further contended that only amendment of the RO is sufficient as once the order/judgment is entered, the original cause of action merges with the Order/Judgment. The court process, i.e the bankruptcy petition then becomes devoid of any cause of action.

 

5

 

[12] The JC referred to inter alia, the Supreme Court case, Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995]

 

3 CLJ 783 where it was held:

 

“ The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in Court for a particular remedy are determined in a final judgment and such right of action ie. the cause of action, merges into the said final judgment; in layman’s language, the cause of action has turned into the said final judgment. The said cause of action may not be re-litigated between the same parties because it is res judicata.”

 

JD’s submission

 

[13] The JD contended that the JC knew the correct arrangement of the JD’s name before the filing of the bankruptcy proceedings and also before the filing of the Sessions Court suits which forms the basis of the bankruptcy proceedings. Exhibit D of the JD’s affidavit in reply no 2 dated 03rd June 2014 contains documents which are the proof of the JC’s knowledge. Documents in Exhibit D only came to the JD’s grasp on 17th May 2014 which means these important documents were not presented to the registrar and the learned Judge during the setting aside hearing and the appeal against the dismissal of the setting aside application.

 

6

 

[14] The JD submitted that the JC may apply to the court to correct the name of the JD if only it was a genuine mistake. In this case clearly it was not, as the JC knew the correct arrangement of the JD’s name before the filing of the t55Sessions Court suit and the bankruptcy proceedings. The JD further argued that the Bankruptcy Notice and Petition ought to be amended first before the RO could be amended. This is because the name of the JD appearing in the bankruptcy notice and the creditor’s petition shall be reflected in the RO.

 

[15] The JD referred to the Court of Appeal case Cergas Tegas Sdn Bhd ( In Liquidation) v SAP Holdings Bhd & Anor [2013] 8

 

CLJ 745 where it was held:

 

“ [47] In abundance of caution, the applicant/appellant filed a notice of motion marked as encl. 16a pursuant to r. 21(1) of the RCA and/or under the inherent jurisdiction of this court and sought for the following prayers:

 

(1) Leave be granted to amend the intitulement of the notice of appeal, memorandum of appeal and the record of appeal by amending it to ‘Cergas Tegas Sdn Bhd (In Liquidation)’ to reflect the current status of the applicant/appellant.

 

(2) From the date of this Order, the intitulement on the notice of appeal, memorandum of appeal and the record of appeal all filed herein shall be treated as amended in accordance with prayer (1) above.

 

7

 

(3) The applicant/appellant is exempted from filing fresh notice of appeal, memorandum of appeal and record of appeal.

 

(4) That the costs of this application be costs in the cause.

 

(5) Any further and/or other relief that this Honourable Court may consider appropriate.

 

[48] We are fortunate that learned counsel for both the respondents agreed to the prayers sought for in encl. 16a. For the record, Mr Mohamed Azuan bin Md. Arif, learned counsel represented the second respondent. We then gave order in terms of encl. 16a prayers (1), (2) and (3). Agreed costs of RM2,000 in favour of the first respondent. And no order as to costs in regard to the second respondent.

 

[49] The capacity of the applicant/appellant is now incorporated and reflected in the intitulement to this judgment.”

 

Decision

 

[16] I have perused the cause papers and written submissions made by the parties. The power of this court to deal with amendment of this nature can be found in the Rules of Court 2012 and in the Bankruptcy Act 1967 (Act 360) itself.

 

[17] Order 20 rule 11 of the Rules of Court 2012 states as follows:

 

“ Amendment of judgment and orders ( O. 20 r. 11)

 

8

 

11. Clerical mistakes in judgment or orders, or errors arsing therein from any accidental slip or omission, may at any time be corrected by the Court by a notice of application without an appeal.”

 

[18] In Act 360, section 93(3) reads as follows:

 

“ The court may at any time amend any written process or proceeding upon such items, if any, as it thinks fit to impose ”

 

[19] There is also section 131 of Act 360 which is known as the saving provision and reads as follows:

 

“ No proceeding in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court before which an objection is made to the proceeding is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of the court.”

 

[20] In the case of Re Kasiah binti Kasban ; Ex Parte: Sime Bank Berhad ( dahulunya dikenali sebagai United Malayan Banking Corp. Bhd ) [2003] 5 CLJ 468, the learned Judge Low Hop Bing ( as he then was) stated as follows:

 

9

 

“ The general principle is that the court will allow such amendments as will cause no injustice to the other parties. Three basic questions should be considered to determine whether injustice would or would not result, (a) whether the application was bona fide (b) whether the prejudice caused to the other side can be compensated by costs and (c) whether the amendments would not in effect turn the bankruptcy proceeding from one character into a bankruptcy proceeding of another and inconsistent character.

 

In addition, s. 131 of the Bankruptcy Act 1967, which says that a defect shall not invalidate bankruptcy proceedings, is reproduced as follows:

 

131. Formal defect not to invalidate proceedings.

 

No proceeding in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court before which an objection is made to the proceeding is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that court.

 

(see Re Samuel Pakianathan Jabamanickam, ex p Perwira Habib Bank (M) Bhd [1996] 1 LNS 126; [1997] 5 MLJ 737 (HC); Kamaruddin bin Mohamed v. United Motor Works (M) Sdn Bhd [1982] 1 MLJ 126).”

 

[21] The learned judge then proceeded to state the following:

 

“ There is no doubt in my mind that the JD is the very person who was described as Kasiah bt Kasbah when the correct spelling should have been Kasiah bt Kasban. The spelling error is, in my view, truly a matter of triviality, in which case it is eminently suitable to apply the time

 

10

 

honoured maxim de minimis non curat lex. Further, no objection has ever been raised by the JD as to the said spelling error in all proceedings prior to encl. (37) herein.

 

In my view, the underlying principle is whether the two names are indeed referring to one and the same person. The answer in this appeal is absolutely in the affirmative and the learned registrar is correct in her finding in this regard.

 

JC should not be refused leave to amend the name of the JD to reflect the correct spelling and to allow the true picture to be presented in court. The learned registrar has correctly held that the JD has suffered no substantial injustice which cannot be remedied by an order of the court, by ordering costs to be paid by the JC in favour of the JD, which in my view is a proper order in the circumstances of the case. ”

 

[22] In this case, the proposed amendment is regarding a simple mistake on the JC’s part. As submitted by the JC, the learned High Court judge in deciding the appeal on enclosure 33 had held that there was no case of mistaken identity. In my view, the JC’s mistake is a mere irregularity and the intention of the JC to put forth the correct arrangement of the JD’s name would not cause prejudice to the JD. I am also with the JC that based on Kawal Teliti’s case ( Supra) and now Au Kow’s case ( Supra), there is no necessity to first amend the Bankruptcy Notice and the Bankruptcy Petition as the court process ( bankruptcy petition herein) had already merged with the RO. Hence, there is no longer any Bankruptcy Notice or Bankruptcy Petition to be amended.

 

11

 

[23] Therefore I am of the view that the present application to amend the RO itself will suffice. I also take into consideration the background of this application and decide to allow enclosure 43 with no order as to cost.

 

DATO’ ZALEHA BINTI YUSOF JUDGE

 

HIGH COURT OF MALAYA KUALA LUMPUR

 

Dated: 18th November 2014

 

For the Judgment Creditor: Lim Chaw Chen; Messrs Liza Chan & Co

 

For the Judgment Debtor: Noramir Ahmad bin Ibrahim; Tetuan Hamidi Izwan & Co

 

For the Intervener: Eszanizam bin Mohamad; Malaysia Department of Insolvency

 

12

PDF Source: http://kl.kehakiman.gov.my