Qatrin Nada binti Harun

On the court record

Illustrates how the sanction requirement under section 38(1)(a) of the Insolvency Act 1967 governs the litigation capacity of an undischarged bankrupt and operates as a threshold objection.

Qatrin Nada binti Harun appears in this corpus as counsel for the defendant in a set of related High Court (Mahkamah Tinggi) proceedings brought by originating summons and concerned with insolvency law. The recurring question across the matters was whether the plaintiff, an undischarged bankrupt, could institute the actions without first obtaining the sanction of the Director General of Insolvency, and whether the failure to obtain that sanction contravened section 38(1)(a) of the Insolvency Act 1967. That provision restricts the capacity of an undischarged bankrupt to commence certain proceedings, and it operates as a threshold objection capable of disposing of an action before its merits are reached.

The proceedings raised a cluster of connected issues. One was whether sanction is required in an action where the Director General of Insolvency is himself sued for an alleged failure in the discharge of his duties while acting as Official Assignee — the argument being that a suit of that character stands differently from an ordinary claim by a bankrupt to recover property. Another was whether naming the Director General of Insolvency as a party satisfied any requirement in that regard. The matters also engaged the doctrine of res judicata, and, in one action against a bank, causes of action framed in defamation and harassment said to have been pursued by deceitful means.

A further strand went beyond the immediate dispute: whether section 38(1)(a) of the Insolvency Act, in its current form, imposes undue hardship on undischarged bankrupts, such that legislative reform was warranted to ensure fairness in its application. As counsel for the defendant, Qatrin Nada binti Harun's role was to meet the bankrupt-plaintiff's claims and to press, where appropriate, the threshold points on sanction and res judicata. The proceedings are a useful illustration of how the sanction requirement under the Insolvency Act 1967 shapes the litigation capacity of an undischarged bankrupt.