Choy v Cum

[2002] WASC 269

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CHOY & ANOR -v- CUM & ANOR [2002] WASC 269

CORAM:   MASTER SANDERSON

HEARD:   16 AUGUST 2002

DELIVERED          :   18 NOVEMBER 2002

FILE NO/S:   CIV 1242 of 2002

BETWEEN:   LEONG KWAI CHOY

LIM SIN YIN
Plaintiffs

AND

YEONG MOO CUM
First Defendant

WINSTON LEE TONG SENG
Second Defendant

Catchwords:

Summary judgment application - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiffs:     Mr S J Browne

First Defendant             :     Ms N J Wigg

Second Defendant         :     Ms N J Wigg

Solicitors:

Plaintiffs:     Stephen Browne Lawyers

First Defendant             :     Phillips Fox

Second Defendant         :     Phillips Fox

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Adams v Cape Industries Plc [1990] Ch 433

Ellis & Anor v McHenry (1871) LR 6 CP 228

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

General Credits (Finance) Pty Ltd v Shipton Holdings Pty Ltd (1977), unreported; SCt of WA; Library No 2054; 19 May 1977

Grant v Easton (1883) 13 QBD 302

Israel Discount Bank of New York v Hadjipateras [1983] 3 All ER 129

Pemberton v Hughes [1899] 1 Ch 781

Singh v Faridkote [1894] AC 670

Webster v Lampard (1993) 177 CLR 598

1. MASTER SANDERSON:  This is the plaintiffs' application for summary judgment.  The application raises a rather unusual question in relation to cross‑border insolvency.  I have reached the conclusion that summary judgment ought not be granted and the plaintiffs' application ought be dismissed.  That being the case, it is inappropriate if I deal in any detail with either the disputed facts (limited though they are) or the law.  These are matters for a trial Judge at a later date.  However, I should state briefly why I have determined that the application ought be dismissed.

2. The statement of claim pleads the plaintiffs' case in this way.  It is alleged that in or about 10 April 1985 a Malaysian company, Siti Zabedah Holdings Sdn Bhd ("Siti") borrowed just over 876,000 Malaysian ringgit from a bank in Kuala Lumpur.  It is said that the first and second defendants provided personal guarantees for the loan.  By notice dated 26 September 1985 the bank demanded repayment from Siti as borrower and from the plaintiffs and the defendants, among others, as guarantors.  No repayment was made and on 30 October 1995 the bank issued proceedings in the High Court of Malaysia.  Faced with this suit, the plaintiffs, so it is pleaded, paid out the bank in full.

3. In August 1986 the plaintiffs commenced proceedings in the High Court of Malaya, claiming from the defendants a contribution to the amount paid by the plaintiffs to the bank.  It is then pleaded that on 1 October 1997 the plaintiffs, by consent, entered judgment against the defendants for the amount claimed in the action, together with interest.  The judgment against each defendant was for a sum of 131,916.35 ringgit, together with interest of 121,652.16 ringgit up to 15 April 1993.  (Interest was calculated up to 15 April 1993, it seems pursuant to an agreement which led to the consent judgment).  The judgment remains wholly unsatisfied.  The plaintiffs' claim against each defendant, the sum of $67,198.60, being the judgment sum converted from ringgit to Australian dollars, together with an amount of $61,970 by way of interest.  They also seek interest on the judgment sum (not the interest) from 15 April 1993 until judgment pursuant to s 32 of the Supreme Court Act. 

4. Both defendants deny any knowledge of the judgment entered against them in Malaysia.  There is a disputed fact in this question and for present purposes I need not either detail the nature of the dispute or attempt to resolve it.  It is enough if I acknowledge that a dispute exists and the evidence of the defendants is called into question by the plaintiffs.  What is not in dispute is that in or about December 1988 the defendants were declared bankrupt in the High Court in Malaysia.  A copy of the bankruptcy order made against the first‑named defendant is to be found as annexure "YMC1" to her affidavit of 18 June 2002.  By the time this order was made the defendants had left Malaysia to settle in Australia.  They became Australian citizens in 1989.

5. The question then is what effect the bankruptcy of the defendants in Malaysia has upon the judgment obtained against them.  Is it the case, as the defendants argue, that once the bankruptcy order was made the plaintiffs had a right to prove in the bankruptcy but no right to enforce their judgment?  Or is the position that enforcement is still possible even though the defendants are bankrupts in the Malaysian jurisdiction?  The answers to these questions depend in large measure on the proper interpretation of Malaysian bankruptcy law.  That is a matter for expert evidence and is not an issue which it would be proper to determine on an application for summary judgment.

6. For these reasons it seems to me the proper course is to dismiss this application.  I will hear the parties on the question of costs.