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Self Represent & Defeating Affin Bank's Lawyer at Court of Appeal

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asked on Nov 26, 2017 at 15:40
by   kunta_kinti
edited on Dec 18, 2017 at 02:18
 
For those who wish to know how to self represent, may follow this earlier thread.
 
https://www.lawyerment.com/answers/questions/12241/self-represent-at-mahkamah-rayuan-putrajaya-to-fight-affin-bank
 
 
This thread is to tell how Affin Bank & Gxx & Partners (Yes, correct. That Gxx & Partners) were defeated.
 
The Appellant's Written Submission is finally revealed here for readers. Avengers will elaborate how this submission managed to bring them DOWN.
 
 
<<<<<<<<<<<<<<<<<<<<<<<<<>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
 
 
 
DALAM MAHKAMAH RAYUAN MALAYSIA
(Bidang Kuasa Rayuan)
RAYUAN SIVIL NO: xx/2017
  
 
My Name (No. K/P : xxxx) …....... Perayu
AFFIN BANK BERHAD (No. Syarikat : 25046-T) …....... Responden
 
  
Dalam Mahkamah Tinggi Malaya di Alor Setar
Dalam Negeri Kedah Darul Aman, Malaysia
Perkara Kebankrapan No: xx/2015
  
 
My Name …….…. Perayu / Penghutang Penghakiman
(No. K/P : xxxx)
 
 
AFFIN BANK BERHAD ……….. Responden / Pemiutang Penghakiman
(No. Syarikat : 25046-T)
 
  
HUJAHAN BERTULIS PERAYU
( APPELLANT’S WRITTEN SUBMISSION )
 
  
A) FOREWORD
This is an appeal against the decision of the Commissioner of Justice which rejected my Appeal to Judge in Chambers against the decision of the Senior Assistant Registrar who rejected my Summons in Chambers application to set aside the Creditor’s Petition on the basis that the Judgement Debtor was served with an expired Notice of Bankruptcy.
  
 
B) ISSUES IN SUBMISSION
a. Was the Notice of Bankruptcy served expired?
b. Was the Judgement Debtor aware of the Notice Of Bankruptcy before it expired?
c. Is a Notice of Bankruptcy that was served expired still potent?
 
 
 
C) SUBMISSION
  
Was the Notice of Bankruptcy served expired? 
 
1. During the hearings, the respondent had always maintained in all pleadings and all submissions that the Notice was not served expired, even though they did not offer a better method of calculation of the dates.
   
2. However, after scrutinising our calculation table in detail, (page 84 appeals record) the Commissioner of Justice conceded with the Appellant’s contention that the Notice of Bankruptcy was served expired. For clarity we quote the Commissioner of Justice’s comment (on paragraph 9 of her Grounds of Judgment)
  
But I agree with the appellant that the 7th (last) day of the 7-day period falls on Tuesday 15th December; and this means that the effective date of service of the bankruptcy notice fell on 16th December.
  
3. On 16th December 2015, the Notice of Bankruptcy has expired by 2 days.
 
We are in full agreement with the Commissioner of Justice on her finding.
 
 
 
Was the Judgement Debtor aware of the Notice Of Bankruptcy before it was expired?
 
 
4. Where the Commissioner of Justice mentioned in paragraph 15 her Grounds of Judgement that
There is no allegation that the Appellant was unaware of the bankruptcy notice….
this is where she fell into error.
 
 
5. It is wrong to assume that the Judgement Debtor was aware of the Bankruptcy Notice when the burden of proof lies with the Judgement Creditor to allege and prove. However in this instant case there was no allegation, no proof and no admission that the appellant was aware of the bankruptcy notice earlier in all pleadings.
 
 
6. From this wrong assumption, it follows that the authority cited by the honourable Commissioner of Justice which is
Kamaruddin b. Mohamed v United Motor Works (M) Sdn. Bhd [1982] 1 MLJ 126 cannot be applied in this instant case.
 
  
Is a Notice of Bankruptcy that was served expired still potent?
 
 
7. The Commissioner of Justice said (on paragraph 13 of her Grounds of Judgment) that :-
when the postings were effected, the bankruptcy notice was still valid, I, therefore, rule that the service is good service; and it is immaterial that the mere fact that the ‘deemed effective date’ of the service fell outside the validity period of the bankruptcy notice.
 
8. By saying that the “deemed effective date” is immaterial, she has taken upon herself to diminish the importance of the terms set out in the Court Order which allows the Substituted Service. Past authorities have shown that in a Bankruptcy case, all terms have to be strictly followed.
 
 
9. If the 7-day Deeming Clause is ignored, it is impossible for the Petition to state the exact date the Act of Bankruptcy was committed
 
 
10. It is possible that the Commissioner of Justice had confused the service of a Notice of Bankruptcy with a service of a Writ.
 
 
11. If a Notice of Bankruptcy that was served expired is still potent, when will it cease to be potent, is it 2 days after expiry or 5 days after expiry? As shown here, this lack of objectivity cannot be allowed to stand.
 
 
12. Therefore, clearly the boundary of which a Notice of Bankruptcy is still potent must be at the date of expiry itself.
 
 
13. This concludes that a Notice of Bankruptcy that was served expired is no longer potent and has no effect, therefore no Act of Bankruptcy was ever committed.
 
 
 
E) CONCLUSION
  
14. As the Notice of Bankruptcy was served expired and has no effect, it follows that there was no Act of Bankruptcy committed which then follows that the Judgement Creditor is not entitled to file the Creditor’s Petition, which then follows that the Adjudicating Order and Receiving Order (AORO) should not have been entered.
Therefore it is only right and just that the AORO must be annulled.
 
 
15. The appellant prays that :-
this appeal is allowed with costs of RM 15,000
the Creditor’s Petition is set aside
the Commissioner of Justice’s decision is reversed
the Senior Assistant Registrar’s decision is reversed
the Adjudication Order and Receiving Order is annulled
 
  
 
………………..
My Name
Perayu
 
  
Hujahan Bertulis ini difailkan oleh Perayu yang beralamat di
My Name
My Address
My Phone
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answered on Nov 26, 2017 at 15:51
by   susan
Noted.. Dissected.. Computed..

Thanks a million for sharing..

A new Precedent on records that a Layman Self Representing  WON  In the Court Of Appeals.

Congrats
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answered on Nov 26, 2017 at 16:46
by   Michele
Dear kunta-kinti,

Thanks for sharing the winning submission.
But why is the submission so short?
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answered on Nov 26, 2017 at 18:27
by   nora
Siapa yang karang Hujahan Bertulis Perayu ini?
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answered on Nov 26, 2017 at 21:02
by   anonymous
The Avengers Malaysia works as Team.
There is no personal Glorifications, no one taking any raps should this case lost.
They have Plan A, Plan B,
Many proposals, discussed, rejects, debated from which the final draft is computed.

Let's put to rest all unwarranted speculations.
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answered on Nov 27, 2017 at 11:47
by   notalawyer
edited Dec 18, 2017 at 02:19
 
MY OPINION ON THIS CASE:

It seems like at each and every stage, Gxx & Partners underestimated the kunta's resolve and ability to appeal to the next stage.
When they should have withdrawn the Petition at the PKP stage, they pushed on and won.
When they should have pleaded "no contest" at the COJ stage, they pushed on and won.
When kunta_kinti unexpectedly appealed to the Court Of Appeals, they started to panic and the senior lawyers then sat down over 3 days and re-wrote a totally different submission based on a variation of  COJ's grounds of judgement.

For the hearing day itself, Gxx & Partners ought to have known that the Avengers had formed a Task Force to aid and back-up kunta_kinti, as we were expecting a big battle.
Amazingly they sent a junior lawyer alone without any back-up or assistants, like a lamb to the slaughter house.  The predictable result was total carnage.
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answered on Nov 27, 2017 at 13:58
by   jeff005
edited Feb 6, 2018 at 00:13
 
@ notalawyer

Isn't it at  Court Of Appeals (COA) level, it should have been judged based on affidavits and submissions tendered at High Court level? I am confused as their COA submissions have distinct variations.

Please enlightened me. Thanks.
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answered on Nov 27, 2017 at 14:35
by   notalawyer
edited Dec 18, 2017 at 02:20
 
Isn't it at COA level, it should have been judged based on affidavits and submissions tendered at High Court level?
Those were also considered in addition to the new submissions.

I am confused as their COA submissions have distinct variations.
Gxx & Partners only make themselves look bad when they totally changed all their arguments.
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answered on Nov 28, 2017 at 19:14
by   vkpc
kunta-kinti,

You need to prepare the draft Perintah for the Court of Appeals,
and also the draft Perintah for the PKP makcik.
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answered on Nov 30, 2017 at 22:15
by   ramsun
This is indeed a great achievement by an appealing layman.
Congrats to kunta_kinti
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answered on Dec 4, 2017 at 14:07
by   vkpc
The moment the judges pronounced the unanimous decision to allow a layman's appeal and reverse the High Court decisions, the whole Palace of Justice shook like being hit by an earthquake.
Lawyers present in the room could not believe what they just saw.

It was MAGNIFICENT.
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