Advertisement

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

473 Views  ⚫  Asked 2 Months Ago
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
0 had this question
Me Too
1 favorites
Favorite
[ share ]
22 Answers
« Previous   1   2   3   Next »  Last »

answered on Dec 11, 2017 at 10:55
by   stephanie
edited Feb 6, 2018 at 00:23
 
@kunta_kinti,

When you write that the High Court Judge fell into error

is that considered as being disrespectful to the Judge?
0 found this helpful
Helpful

answered on Dec 12, 2017 at 21:19
by   kunta_kinti
edited Feb 6, 2018 at 00:24
 
That was the most respectful way to tell. Judge can also make mistake, especially those who have poor EQ.
0 found this helpful
Helpful

answered on Dec 27, 2017 at 12:34
by   notalawyer
edited Feb 6, 2018 at 00:25
 
Looking back at this case, there were times where some had wanted to "give up", when the fight was lost at the Senior Assistant Registrar (PKP)  level and then lose again at the High Court Judge level.  The score was 2 - 0.

In the average person's mind, how could both the PKP and the High Court Judge be wrong? as they are supposed to be the expert Judicial minds who deal with legal matters every day. Some even felt that appealing to the Court Of Appeals would be wasting time, effort and money.

Fortunately, there were others who were convinced and had the unwavering conviction that both the PKP and Judge had to be wrong and continued to soldier on.  kunta_kinti was one of them. He even vowed to take it to the Federal Court if he were to lose again at the Court of Appeals. Imagine. Laymen who were not even lawyers dared to step up to the plate and say that the Bank Lawyers, the PKP and the High Court Judge were all WRONG.

So what went wrong?  Where do we go from here?
Do we always have to go to the Court of Appeals to get the correct decision or the Judiciary will reform itself?
0 found this helpful
Helpful

answered on Dec 27, 2017 at 21:32
by   Princess
I read through both threads briefly. IMO, the bank's legal counsel totally underestimated OP because he is on his own (no lawyer representing him). It's not just this particular bank's legal counsel. Many legal counsels have the tendency to underestimate a person without legal counsel representation. Their mistake, really.
0 found this helpful
Helpful

answered on Dec 31, 2017 at 11:18
by   francis
Why are the Avengers bullying poor junior bank lawyers who are only doing their job?
0 found this helpful
Helpful

answered on Jan 1, 2018 at 22:02
by   jeff005
edited Feb 6, 2018 at 00:31
 
Why are the Avengers bullying poor junior bank lawyers who are only doing their job? 
Why are lawyers taking short cuts to make defaulters Judgement Debtor?
Why are lawyers taking short cuts to bankrupt judgement debtors?

Who is Bullying  Who? Was there a proper job done?
It is not only the Judiciary Systems that needs adjustments but the M.O. of the Legal system that needs a major revamp on Professionalism.
0 found this helpful
Helpful

answered on Jan 2, 2018 at 11:57
by   Jude Law
Why are the Avengers bullying poor junior bank lawyers who are only doing their job? 

Why are lawyers filed writs/summons and obtained JID behind debtors' back?
So "curi-curi" do things are also their jobs? 
0 found this helpful
Helpful

answered on Jan 2, 2018 at 15:26
by   Jude Law
In other words, I agree with what jeff005 said:

Why are the Avengers bullying poor junior bank lawyers who are only doing their job?  
Why are lawyers taking short cuts to make defaulters Judgement Debtor? 
Why are lawyers taking short cuts to bankrupt judgement debtors? 
0 found this helpful
Helpful

answered on Jan 3, 2018 at 02:08
by   kunta_kinti
edited Feb 6, 2018 at 00:34
 
Why are the Avengers bullying poor junior bank lawyers who are only doing their job?

1st key word : bullying
If the bank lawyers are good, how could they being bullied?

2nd key words : only doing their job
Some of their job were dirty tricks. To be fair, not all lawyers are like that of course.
0 found this helpful
Helpful

answered on Jan 11, 2018 at 10:04
by   vkpc
I was there in Court when kunta_kinti stood up and told the three judges that the
Acting High Court Judge fell into error...
When he said that, i saw the lead judge smile a bit.
The judge must be thinking,
Who is this punk who did not even attend law school dare to say that the High Court Judge was wrong.
It was so hilarious.
0 found this helpful
Helpful


« Previous   1   2   3   Next »  Last »

Your Answer





By posting your answer, you agree to the privacy policy and terms of service.