Insolvency Rules 2017 (P.U.(A) 305 2017 ) PDF

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(MY) INSOLVENCY RULES 2017 (P.(A) 305/2017)Unannotated Statutes of Malaysia - Subsidiary LegislationsUnannotated Statutes of Malaysia - Subsidiary Legislations > INSOLVENCY RULES 2017 (P.(A)305/2017)INSOLVENCY RULES 2017 (P.(A) 305/2017)INSOLVENCY RULES 2017[P. (A) 305/2017]IN exercise of the...

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(MY) INSOLVENCY RULES 2017 (P.U.(A) 305/2017) Unannotated Statutes of Malaysia - Subsidiary Legislations

Unannotated Statutes of Malaysia - Subsidiary Legislations > INSOLVENCY RULES 2017 (P.U.(A) 305/2017) INSOLVENCY RULES 2017 (P.U.(A) 305/2017)

INSOLVENCY RULES 2017 [P.U. (A) 305/2017] IN exercise of the powers conferred by section 123 of the Insolvency Act 1967 [Act 360], the Minister makes the following rules:

PART I PRELIMINARY1. Citation and commencement (1)

These rules may be cited as the Insolvency Rules 2017.

(2)

These Rules come into operation on 6 October 2017.

2. Application These Rules shall apply to all insolvency and bankruptcy proceedings under the Act.

3. Interpretation In these Rules, unless the context or subject matter otherwise requires— “printed” includes typewritten; “sealed” means sealed with the seal of the court; “Judge” means a Judge of the High Court; “court” includes a Registrar when exercising the powers of the court pursuant to the Act or these Rules; “Taxing Officer” means the officer of the court whose duty it is to tax costs in bankruptcy proceedings. “creditor” includes a corporation and a firm of creditors in partnership; “debtor” includes any debtor proceeded against under the Act, whether adjudged bankrupt or not, and also includes a firm of debtors in partnership; “Sheriff” means the Registrar of the High Court of Malaya or the Registrar of the High Court of Sabah and Sarawak, as the case may be; “scheme” means a scheme of arrangement pursuant to the Act;

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PART II COURT PROCEDURE Court and chambers4. Hearing of application Unless the Chief Judge has given a practice direction to the contrary— (a) every application before the Registrar shall, and every application before the Judge may, be heard in chambers; and (b) the jurisdiction of the court to hear and determine any matter or application may be exercised by the Registrar. 5. Adjournment from Registrar to Judge Any matter pending before a Registrar may, if directed by the Judge, be adjourned to be heard before the Judge.

6. Title of proceedings (1)

Every proceeding in bankruptcy matter shall be dated with necessary additions, be intituled as in Form 1.

(2)

All applications and orders shall be intituled ex parte the applicant.

(3) The first proceeding in every matter shall have a distinctive number assigned by the Registrar, and all subsequent proceedings in the same matter shall bear the same number as the first proceeding. 7. Written or printed proceedings (1) All proceedings in court shall be written or printed or partly written and partly printed on paper of durable quality, approximately 297 mm (11.69 inches) long, by 210 mm (8.27 inches) wide, having a margin, not less than 1 inch wide to be left blank on either side of the paper. (2)

Every document may be printed on both sides of the paper.

8. Records of court All proceedings of the court shall be kept and remain of record in the court.

9. File of proceedings may be inspected The Director General of Insolvency, debtor, bankrupt and any creditor who has proved his debt, or any person acting on behalf of the Director General of Insolvency, may at all reasonable times inspect the file of proceedings.

10. Notices to be in writing

Page 3 of 162 (MY) INSOLVENCY RULES 2017 (P.U.(A) 305/2017) All notices required to be given shall be in writing, unless these Rules otherwise provide or the court otherwise orders.

11. Proof of posting of notice by Director General of Insolvency Where, by any provision of the Act or these Rules, any notice is required to be sent by the Director General of Insolvency, the sending of the notice may be proved by an affidavit by the Director General of Insolvency who sent it or his clerk, that the notice was posted.

12. Process to be sealed All process issued by the court shall be sealed.

13. Meetings summoned by court (1) When the court orders a general meeting of creditors to be summoned under paragraph 5 of Schedule A of the Act, it shall be summoned as the court directs. (2) The Registrar shall send a sealed copy of the order to the Director General of Insolvency who shall not less than seven days before such meeting send a copy of the order to each creditor at the address given in his proof or when he shall not have proved, the address given in the list of creditors by the debtor or such other address as may be known to the Director General of Insolvency. 14. Office copies (1) All office copies of notices, petitions, affidavits, depositions and writings required by the Director General of Insolvency or other person entitled thereto shall be provided by the Registrar. (2) The copies shall be clearly and legibly printed or written and be sealed and delivered out without any unnecessary delay. 15. Filing, gazetting, etc. (1) The Registrar shall file a copy of every issue of the Gazette which contains an advertisement relating to any matter under the Act in his court and at the same time file with the proceedings in the matter a memorandum referring to and giving the date of such advertisement. (2) A copy of each local news paper in which any advertisement relating to any matter under the Act is inserted shall be left by the person inserting the advertisement with the Registrar of the court in which the matter is proceeding and the Registrar shall file such copy of the local news paper and at the same time file with the proceedings in the matter a memorandum referring to and giving the date of such advertisement. (3) The memorandum by the Registrar shall be prima facie evidence that the advertisement to which it refers was inserted in the issue of the Gazette or local news paper mentioned in the memorandum. 16. Submission of documents to Director General of Insolvency

Page 4 of 162 (MY) INSOLVENCY RULES 2017 (P.U.(A) 305/2017)

A copy of every document filed in court in bankruptcy proceedings by a creditor or debtor prior to the making of a bankruptcy order, other than a bankruptcy notice and a bankruptcy petition, shall be submitted to the Director General of Insolvency by the creditor or debtor, as the case may be, on the day it is filed. Applications and practice

17. Applications to be made by summons in chambers Except where these Rules or the Act otherwise provide, every application to the court shall, unless the Chief Judge otherwise directs, be made by summons in chambers supported by affidavit.

18. Orders on applications (1) Where any party other than the applicant is affected by the application, no order shall be made except with the consent of that party, or upon proof that notice of the application and a copy of the affidavit in support of the application have been served upon him. (2) Notwithstanding subrule (1), where the court is satisfied that serious mischief may result from delay caused by proceeding in the ordinary way, it may make an order ex parte upon any terms such as costs or otherwise, and subject to such undertaking, if any, as the court thinks just. (3)

Any party affected by an order made ex parte may apply to set it aside.

19. Serving of notice Except where these Rules or the Act otherwise provide, an application and the affidavit in support shall be served on every party affected not less than eight working days before the day appointed for the hearing.

20. Affidavits in opposition Where any party intends to use affidavits in opposition to an application he shall deliver copies of them to every party affected not less than three working days before the day appointed for the hearing.

21. Notice not served on all proper parties If on the hearing of an application, the court is of opinion that any person to whom notice has not been given ought to have notice, it may either dismiss the application, or adjourn the hearing upon such terms as it thinks fit in order that notice may be given.

22. Adjournment

Page 5 of 162 (MY) INSOLVENCY RULES 2017 (P.U.(A) 305/2017)

The hearing of an application may be adjourned upon such terms, if any, as the court thinks fit.

23. Personal service Where personal service of any application or of any order of the court is required, it shall be effected by delivering to each party to be served a copy of the application, or, as the case may be, a sealed copy of the order.

24. Filing affidavits on application Affidavits supporting or opposing any application shall be filed with the Registrar not less than three days before the day appointed for the hearing. Security in court

25. Security by bond Except where these Rules otherwise provide, the security required to be given by a person shall be in the form of a bond with one or more sureties.

26. Amount of bond The bond shall be taken in a penal sum which, except with the consent of the opposite party, shall not be less than the sum for which security is to be given and probable costs.

27. Deposit in lieu of bond (1) A person required to give security may, in lieu of the security, lodge in court a sum equal to the sum for which security is to be given and probable costs, together with a memorandum approved by the Registrar and signed by such person, his solicitor or agent, stating the conditions on which the money is deposited. (2) Upon the lodgement, the Registrar shall forthwith notify the persons for whose protection the security is given that the money has been lodged in court. 28. Money in court The Rules for the time being in force in the High Court relating to payment into and out of court of money lodged in court by way of security for costs shall apply to money lodged in court under these Rules.

Page 6 of 162 (MY) INSOLVENCY RULES 2017 (P.U.(A) 305/2017) 29. Security of guarantee society The security of a banker’s guarantee, guarantee association or society approved by the court or the opposite party may be given in lieu of a bond or deposit.

30. Notice of sureties (1) Where a person proposes to give a bond by way of security, he shall serve notice of the proposed sureties on the opposite party and the Registrar. (2) The Registrar shall forthwith give notice to both parties of the time and place at which he proposes that the bond shall be executed and any objections to the sureties must be made. 31. Justification by sureties The sureties shall make an affidavit of the sufficiency of the security unless the opposite party dispenses with such affidavit, and shall, if required, attend the court to be cross-examined.

32. Execution of bond The bond shall be executed and attested in the presence of the Registrar or the Director General of Insolvency. Affidavits

33. Form of affidavit (1)

Every affidavit shall—

(a)

be expressed in the first person;

(b)

state the residence and description of each deponent; and

(c)

be drawn up in paragraphs consecutively numbered.

(2)

Each paragraph of the affidavit shall, so far as practicable, be confined to a distinct portion of the subject.

(3) Every affidavit shall be signed by the deponent and the jurat shall be completed and signed by the person before whom it is sworn. (4)

A jurat shall be in Form 6.

34. Affidavit by several deponents Where an affidavit is made by two or more deponents, the names of the persons making the affidavit shall be inserted in the jurat except that, if the affidavit is sworn by both or all the deponents at one time before the same person, it is sufficient to state that it was sworn by both (or all) of the “abovenamed” deponents.

Page 7 of 162 (MY) INSOLVENCY RULES 2017 (P.U.(A) 305/2017) 35. Costs disallowed No costs shall be allowed in respect of an affidavit or part of the affidavit, if— (a)

in a material manner the affidavit or part of the affidavit fails to comply with rules 33 or 34; or

(b) the affidavit or part of the affidavit contains matters of hearsay, argumentative matters, or superfluous copies of or extracts from documents. 36. Scandalous matter in affidavit The court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive and may order the costs of any application to strike out such matter to be paid as between solicitor and client.

37. Erasures, alterations, etc. Unless the court otherwise orders, no affidavit shall be read or used in any proceedings if there is any interlineation, alteration or erasure in the body of the affidavit or jurat, unless the person before whom the affidavit was sworn has initialed the interlineation or alteration, and in the case of an erasure has rewritten and signed or initialed in the margin of the affidavit any words or figures written on the erasure.

38. Affidavit by illiterate or blind person (1) Where it appears to the person administering the oath that the deponent is illiterate or blind, he shall certify in the jurat that— (a)

the affidavit was read and interpreted in the presence of the deponent by a sworn interpreter;

(b)

the deponent seemed perfectly to understand the affidavit; and

(c)

the deponent made his signature or mark in the affidavit in his presence.

(2) No such affidavit under this rule shall be used as evidence in the absence of the certificate under subrule (1), unless the court is otherwise satisfied that it was read over to and appeared to be perfectly understood by the deponent. 39. Formal defects (1) The court may allow an affidavit to be used in evidence notwithstanding any defect by misdescription of parties or otherwise in the title or jurat or any other irregularity in the form of the affidavit. (2)

A note that it has been so used in evidence shall be endorsed on the affidavit.

40. Use of original affidavit (1) Where the court permits the use of an original affidavit, it shall before use be stamped with the proper filing stamp, and after use shall be left in court with the proper officer who shall send it to be filed. (2)

When the original affidavit has been filed, an office copy may be used.

Page 8 of 162 (MY) INSOLVENCY RULES 2017 (P.U.(A) 305/2017) 41. Swearing of affidavit An affidavit may be sworn to either in print or in handwritten or partly in print and partly in handwritten.

42. Affidavit filed out of time (1)

An affidavit filed out of time may not be used except by leave of the court.

(2) Unless the court otherwise directs, an order made ex parte upon the evidence, tendered by affidavit shall not be effective unless the affidavit was made before the order was applied for and was produced and filed at the time of making the application. 43. Proof of affidavit The court shall take judicial notice of the seal or signature of any person authorized by the Act to take affidavits or to certify to such authority. Witnesses and depositions

44. Subpoena (1) The court shall, at the instance of Director General of Insolvency, creditor, debtor, applicant or respondent in any matter, issue a subpoena for the attendance of a witness. (2)

The subpoena may require the witness to produce documents in his possession or control.

(3)

The names of not more than three witnesses may be inserted in the subpoena.

45. Service of subpoena (1) A sealed copy of the subpoena shall be served personally to the witness by an officer of the court or by person at whose instance the subpoena is issued or his solicitor, or by some person in their employment. (2)

Service shall be effected at a reasonable time before the day fixed for the attendance.

(3)

Service of the subpoena may, where required by the court, be proved by an affidavit.

46. Cost of witnesses (1) A sum not exceeding the amount ordinarily allowed as allowance for the attendance of witnesses in the High Court may be allowed in respect of the attendance of a witness. (2)

The allowance may be made whether or not the witness has been examined.

(3) A witness, other than a debtor, who is required to attend for the production of a document or for the purpose of an examination, shall be entitled to the same conduct money and witness allowances as on attendance at a trial in court. (4)

The court may in any matter limit the number of witnesses to be allowed on taxation of costs.

47. Order for examination

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(1) The court may in any matter make an order for the examination upon oath of any person at any place in Malaysia. (2) direct.

The examination may be ordered to take place before the court, or an officer of the court, as the court may

(3) The deposition shall be taken down in writing and, with the leave of the court, may be used in evidence on such terms, if any, as the court may direct. 48. Letters of request An order for a letter of request to examine witnesses, and the letter of request, shall follow the forms for the time being in use in the High Court, with such variations as circumstances may require.

49. Production of documents The court may at any stage of any proceedings order the attendance of any person for the purpose of producing any documents named in the order.

50. Contempt of court Any person wilfully disobeying any subpoena or order requiring his attendance for the purpose of being examined or of producing any document shall be deemed guilty of contempt of court and may be dealt with accordingly. Discovery and examination under section 31

51. Discovery (1) A party may, with the leave of the court, administer interrogatories to, or obtain discovery of documents from, any other party to the proceeding. (2)

An application for leave may be made ex parte.

(3) The Rules of Court 2012 [ P.U. (A) 205/2012] relating to discovery and inspection shall apply with such modifications as may be necessary. 52. Application for discovery (1) An application to the court under section 31 of the Act shall be in writing and shall state shortly the grounds upon which it is made. (2)

An application made on behalf of the Director General of Insolvency need not be verified by affidavit. Appropriation of pay, salary, pension, etc.

Page 10 of 162 (MY) INSOLVENCY RULES 2017 (P.U.(A) 305/2017) 53. Application for appropriation order (1) When the Director General of Insolvency intends to apply to the court for an appropriation order under section 57 of the Act, he shall give to the bankrupt a notice of his intention so to do. (2) The notice shall specify the time and place fixed for the hearing of the application and shall be sent accompanied with a copy of the Director General of Insolvency’s application and a short statement of the grounds on which it is made. (3) The notice in subrule (2) shall also state that the bankrupt is at liberty to show cause against the order being made. (4) If the bankrupt consents to an order being made to the terms of the application he shall give his consent by signing Form 11 which is attached to the application. (5) The Director General of Insolvency shall thereafter submit these documents accompanied with copies of Form 9 to the court for the necessary order to be made. (6) Where an application is made with the consent of the bankrupt, the court shall dispense with the presence of the bankrupt and the Director General of Insolvency. 54. Communication of order to employer, etc. Where an order is made under subsection 57(3) of the Act, the Registrar shall give at least two sealed copies of the order to the Director Gen...