PART 18 | Court’s power to annul bankruptcy order |
392.—(1) The Court may annul a bankruptcy order if it appears to the Court that —| (a) | on any ground existing at the time the order was made, the order ought not to have been made; | | (b) | to the extent required by the regulations, both the debts and the expenses of the bankruptcy have all, since the making of the order, either been paid or secured for to the satisfaction of the Court; | | (c) | proceedings are pending in Malaysia for the distribution of the bankrupt’s estate and effects amongst the creditors under the bankruptcy law of Malaysia and that the distribution ought to take place there; or | | (d) | a majority of the creditors in number and value are resident in Malaysia, and that from the situation of the property of the bankrupt or for other causes the bankrupt’s estate and effects ought to be distributed among the creditors under the bankruptcy law of Malaysia. |
| (2) An application to annul a bankruptcy order under subsection (1)(a) must be made to the Court within 12 months after the making of the bankruptcy order, unless the Court gives permission for the application to be made later. [Act 25 of 2021 wef 01/04/2022] |
| (3) The Court may annul a bankruptcy order whether or not the bankrupt has been discharged from the bankruptcy. |
| (4) Where the Court annuls a bankruptcy order under this section, any sale or other disposition of property, payment made or other things duly done by or under the authority of the Official Assignee or by the Court is valid, except that the property of the bankrupt vests in such person as the Court may appoint or, in default of any such appointment, reverts to the bankrupt on such terms as the Court may direct. |
| (5) The Court may include in its order such supplemental provisions as may be authorised by the Rules. |
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| Annulment of bankruptcy order by certificate of Official Assignee where debts and expenses fully paid |
393.—(1) The Official Assignee may issue a certificate annulling a bankruptcy order if it appears to the Official Assignee that, to the extent required by the regulations, the debts which have been proved and the expenses of the bankruptcy have all, since the making of the order, been paid.| (2) Notice of every certificate of annulment under subsection (1) must be given to the Registrar and be published in the Gazette and in such other manner as the Official Assignee thinks fit. |
| (3) The Official Assignee must, upon an application of a bankrupt or a bankrupt’s creditor, issue to the applicant a copy of the certificate of annulment upon the payment of the prescribed fee. |
| (4) A certificate of annulment issued under subsection (1) is binding on all the creditors so far as it relates to any debts due to them from the bankrupt and provable in bankruptcy. |
| (5) Where the Official Assignee annuls a bankruptcy order under this section, any sale or other disposition of property, payment made or other things duly done by or under the authority of the Official Assignee or by the Court is valid, except that the property of the bankrupt reverts to the bankrupt or, on an application by any person interested, vests in such person as the Court may appoint and on such terms as the Court may direct. |
| (6) The Court may include in its order such supplemental provisions as may be authorised by the regulations. |
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394.—(1) The Official Assignee, the bankrupt or any other person having an interest in the matter may, at any time after the making of a bankruptcy order, apply to the Court for an order of discharge.| (2) Every such application must be served on each creditor who has filed a proof of debt and on the Official Assignee if the Official Assignee is not the applicant, and the Court must hear the Official Assignee and any creditor before making an order of discharge. |
(3) Subject to subsection (4), on an application under this section, the Court may —| (a) | refuse to discharge the bankrupt from bankruptcy; | | (b) | make an order discharging the bankrupt absolutely; or | | (c) | make an order discharging the bankrupt subject to such conditions as the Court thinks fit to impose, including conditions with respect to —| (i) | any income which may be subsequently due to the bankrupt; or | | (ii) | any property devolving upon the bankrupt, or acquired by the bankrupt, after the bankrupt’s discharge, |
| as may be specified in the order. |
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(4) Where the bankrupt has committed an offence under Parts 13 to 21 of this Act or under section 421, 422, 423 or 424 of the Penal Code 1871 or upon proof of any of the facts mentioned in subsection (5), the Court must —| (a) | refuse to discharge the bankrupt from bankruptcy; | | (b) | make an order discharging the bankrupt subject to —| (i) | one or more of the following conditions as may be specified in the order:| (A) | the bankrupt paying a dividend to the bankrupt’s creditors of not less than 25%; | | (B) | the payment of any income which may be subsequently due to the bankrupt, or with respect to property devolving upon or acquired by the bankrupt, after the bankrupt’s discharge; and |
| | (ii) | such other conditions as the Court thinks fit to impose; or |
| | (c) | if the Court is satisfied that the bankrupt is unable to fulfil any condition specified in paragraph (b) and if the Court thinks fit, make an order discharging the bankrupt subject to such conditions as the Court thinks fit to impose. |
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(5) The facts mentioned in subsection (4) are the following:| (a) | that the bankrupt has omitted to keep such books of accounts as would sufficiently disclose his or her business transactions and financial position within the 3 years immediately preceding his or her bankruptcy, or within such shorter period immediately preceding that event as the Court may consider reasonable in the circumstances; | | (b) | that the bankrupt has continued to trade after knowing or having reason to believe himself or herself to be insolvent; | | (c) | that the bankrupt has contracted any debt provable in the bankruptcy without having at the time of contracting it any reasonable ground of expectation (which is for the bankrupt to prove) of being able to pay it; | | (d) | that the bankrupt has brought on or contributed to his or her bankruptcy by rash speculations or extravagance in living, or by recklessness, or want of reasonable care and attention to his or her business and affairs; | | (e) | that the bankrupt has delayed or put any of his or her creditors to unnecessary expense by a frivolous or vexatious defence to any action or other legal proceedings properly brought or instituted against him or her; | | (f) | that the bankrupt has, within 3 months immediately before the date of the bankruptcy order, when unable to pay his or her debts as they became due, given an undue preference to any of his or her creditors; | | (g) | that the bankrupt has, in Singapore or elsewhere on any previous occasion, been adjudged bankrupt or made a composition or an arrangement with his or her creditors; | | (h) | that the bankrupt has been guilty of any fraud or fraudulent breach of trust; | | (i) | that the bankrupt has, within 3 months immediately before the date of the bankruptcy order, sent goods out of Singapore under circumstances which afford reasonable grounds for believing that the transaction was not a bona fide commercial transaction; | | (j) | that the bankrupt’s assets are not of a value equal to 20% of the amount of the bankrupt’s unsecured liabilities, unless the bankrupt satisfies the Court that the fact that the assets are not of a value equal to 20% of the bankrupt’s unsecured liabilities has arisen from circumstances for or in respect of which the bankrupt cannot be blamed; | | (k) | that the bankrupt has entered into a transaction with any person at an undervalue within the meaning of section 361; | | (l) | that the bankrupt has given an unfair preference to any person within the meaning of section 362. |
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| (6) The Court may, at any time before an order of discharge takes effect, rescind or vary the order. |
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| Discharge by certificate of Official Assignee |
395.—(1) The Official Assignee may, in his or her discretion and subject to section 396, issue a certificate discharging a bankrupt from bankruptcy.(2) The Official Assignee must not issue a certificate discharging a bankrupt from bankruptcy under subsection (1) unless —| (a) | in any case where the bankruptcy is not a repeat bankruptcy of the bankrupt —| (i) | both of the following apply:| (A) | the target contribution has been paid in full, or the Official Assignee is satisfied that the bankrupt is unable to pay the target contribution in full due to extenuating circumstances; | | (B) | either —| (BA) | a period of 3 years has lapsed after the administration date of the bankruptcy, and no objection to the discharge is entered by the relevant threshold of creditors; or | | (BB) | a period of 5 years has lapsed after the administration date of the bankruptcy; or |
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| | (ii) | a period of 7 years has lapsed after the administration date of the bankruptcy; or |
| | (b) | in any case where the bankruptcy is a repeat bankruptcy of the bankrupt —| (i) | both of the following apply:| (A) | the target contribution has been paid in full, or the Official Assignee is satisfied that the bankrupt is unable to pay the target contribution in full due to extenuating circumstances; | | (B) | either —| (BA) | a period of 5 years has lapsed after the administration date of the bankruptcy, and no objection to the discharge is entered by the relevant threshold of creditors; or | | (BB) | a period of 7 years has lapsed after the administration date of the bankruptcy; or |
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| | (ii) | a period of 9 years has lapsed after the administration date of the bankruptcy. |
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| (3) Notice of every discharge under subsection (1) must be given to the Registrar and be published in the Gazette and in such other manner as the Official Assignee thinks fit. |
(4) The Official Assignee —| (a) | must, upon the application of a bankrupt, any creditor of the bankrupt or any other interested person, and upon the payment of the prescribed fee, issue to the applicant a copy of the certificate discharging the bankrupt from bankruptcy; but | | (b) | must not issue any copy of such certificate to any person except the bankrupt, where —| (i) | the bankrupt’s target contribution was paid in full before the bankrupt’s discharge from bankruptcy; and | | (ii) | 5 years have lapsed after the date of discharge. |
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(5) For the purposes of calculating the periods of time mentioned in subsection (2), there must be disregarded any period —| (a) | during which the bankrupt was outside Singapore; and | | (b) | for which the bankrupt did not obtain the Official Assignee’s permission to leave, remain or reside outside Singapore. |
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(6) In this section —“extenuating circumstances” means any of the following circumstances:| (a) | the death of the bankrupt; | | (b) | any personal circumstances of the bankrupt (including, but not limited to, debilitating illness) that prevent the bankrupt from earning a meaningful salary for the remaining period of the bankruptcy before the expiry of —| (i) | where the bankruptcy is not a repeat bankruptcy of the bankrupt, the period mentioned in subsection (2)(a)(ii); or | | (ii) | where the bankruptcy is a repeat bankruptcy of the bankrupt, the period mentioned in subsection (2)(b)(ii); |
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| “relevant threshold of creditors” means not less than half in number or more than one‑fourth in value, or both, of the creditors who have proved their debts. |
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| Objection by creditor to discharge of bankrupt under section 395 |
396.—(1) Before issuing a certificate of discharge under section 395 in respect of any bankruptcy administered by the Official Assignee, the Official Assignee must serve on each creditor who has filed a proof of debt a notice of the Official Assignee’s intention to discharge the bankrupt, together with a statement of the Official Assignee’s reasons for wanting to do so.| (2) A creditor who has been served with a notice under subsection (1) and who wishes to enter an objection to the Official Assignee issuing a certificate discharging the bankrupt may, within 21 days after the date of the Official Assignee’s notice, furnish the Official Assignee a statement of the grounds of the creditor’s objection. |
| (3) A creditor who does not furnish to the Official Assignee a statement of the grounds of the creditor’s objection in accordance with subsection (2) is deemed to have no objection to the discharge. |
| (4) A creditor who has furnished the Official Assignee with a statement of the grounds of the creditor’s objection in accordance with subsection (2) may, within 21 days after being informed by the Official Assignee that the objection has been rejected, make an application to the Court for an order prohibiting the Official Assignee from issuing the certificate of discharge. |
| (5) Every application under subsection (4) must be served on the Official Assignee and on the bankrupt, and the Court must hear the Official Assignee and the bankrupt before making an order on the application. |
| (6) Before requesting the Official Assignee to issue a certificate of discharge under section 395, a trustee in bankruptcy administering a bankrupt’s estate must serve, on each creditor who has filed a proof of debt, a notice of the trustee’s intention to request the Official Assignee to discharge the bankrupt, together with a statement of the trustee’s reasons why the bankrupt ought to be discharged. |
| (7) A creditor who has been served with a notice under subsection (6) and who wishes to enter an objection to the Official Assignee issuing a certificate discharging the bankrupt may, within 21 days after the date of the trustee’s notice, furnish to the trustee in bankruptcy a statement of the grounds of the creditor’s objection. |
| (8) A creditor who does not furnish to the trustee in bankruptcy a statement of the grounds of the creditor’s objection in accordance with subsection (7) is deemed to have no objection to the discharge. |
| (9) A creditor who has furnished the trustee in bankruptcy with a statement of the grounds of the creditor’s objection in accordance with subsection (7) may, within 21 days after being informed by the trustee that the creditor’s objection has been rejected, make an application to the Court for an order prohibiting the Official Assignee from issuing the certificate of discharge. |
| (10) Every application under subsection (9) must be served on the Official Assignee, the trustee in bankruptcy and the bankrupt, and the Court must hear the Official Assignee, the trustee and the bankrupt before making an order on the application. |
(11) On an application made under subsection (4) or (9), the Court may, if it thinks it just and expedient —| (a) | dismiss the application; | | (b) | subject to subsections (13) and (14), make an order that the bankrupt must not be granted a certificate of discharge by the Official Assignee for a period not exceeding 2 years; or | | (c) | make an order permitting the Official Assignee to issue a certificate discharging the bankrupt but subject to such conditions as the Court thinks fit to impose, including conditions with respect to —| (i) | any income which may be subsequently due to the bankrupt after the bankrupt’s discharge; or | | (ii) | any property devolving upon the bankrupt, or acquired by the bankrupt, after the bankrupt’s discharge, |
| as may be specified in the order. |
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| (12) The Court must, when making an order under subsection (11)(b) on an application under subsection (4), appoint a trustee in bankruptcy to administer the bankrupt’s estate in place of the Official Assignee. |
(13) Subject to subsection (14), an order made under subsection (11)(b) must not postpone the grant of the certificate of discharge beyond —| (a) | in any case where the bankruptcy is not a repeat bankruptcy of the bankrupt, 9 years after the administration date of the bankruptcy; or | | (b) | in any case where the bankruptcy is a repeat bankruptcy of the bankrupt, 11 years after the administration date of the bankruptcy. |
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| (14) When making an order under subsection (11)(b), the Court may, in an exceptional case, postpone the grant of the certificate of discharge beyond the period mentioned in subsection (13)(a) or (b), but not beyond the period mentioned in subsection (11)(b), if the Court, having regard to the conduct of the bankrupt, considers it just to do so. |
(15) For the purposes of calculating the periods of time mentioned in subsection (13), there must be disregarded any period —| (a) | during which the bankrupt was outside Singapore; and | | (b) | for which the bankrupt did not obtain the Official Assignee’s permission to leave, remain or reside outside Singapore. |
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397.—(1) Subject to this section and any condition imposed by the Court under section 394 or 396, where a bankrupt is discharged, the discharge releases the bankrupt from all the debts provable in the bankruptcy but has no effect —| (a) | on the functions (so far as they remain to be carried out) of the Official Assignee; or | | (b) | on the operation, for the purposes of the carrying out of those functions, of the provisions of Parts 3 and 13 to 22. |
(2) Discharge does not release the bankrupt from —| (a) | any debt due to the Government; | | (b) | any debt with which the bankrupt may be chargeable at the suit of —| (i) | the Government or any other person for any offence under any written law relating to any branch of the public revenue; or | | (ii) | the Sheriff or other public officer on a bail bond entered into for the appearance of any person prosecuted for any such offence; and |
| | (c) | a debt in respect of any premium (including interest and penalties for late payment) and other sums due under the MediShield Life Scheme Act 2015 or the CareShield Life and Long‑Term Care Act 2019. [26/2019] |
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| (3) A bankrupt may be discharged from any debt mentioned in subsection (2) only by a certificate in writing of the Minister. |
| (4) Discharge does not affect the right of any secured creditor of the bankrupt to enforce the secured creditor’s security for the payment of a debt from which the bankrupt is released. |
(5) Discharge does not release the bankrupt from —| (a) | any provable debt which the bankrupt incurred in respect of, or forbearance in respect of which was secured by means of, any fraud or fraudulent breach of trust to which the bankrupt was party; or | | (b) | any liability in respect of a fine imposed for an offence. |
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(6) Discharge does not, except to such extent and on such conditions as the Court may direct, release the bankrupt from any debt which has been proved and which —| (a) | consists in a liability to pay damages for negligence, nuisance or breach of a statutory, contractual or other duty, being damages in respect of personal injuries to any person; | | (b) | arises under any order made in proceedings under the Women’s Charter 1961 relating to family matters; or | | (c) | arises under an order involving pecuniary liability made under any written law relating to the confiscation of the proceeds of crime. |
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| (7) Discharge does not release any person other than the bankrupt from any liability (whether as partner or co‑trustee of the bankrupt or otherwise) from which the bankrupt is released by the discharge, or from any liability as surety for the bankrupt or as a person in the nature of such a surety. |
| (8) For the purpose of subsection (6), “personal injuries” includes death and any disease or other impairment of a person’s physical or mental condition. |
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| Discharged bankrupt to give assistance |
398.—(1) A discharged bankrupt must, despite his or her discharge, give assistance as the Official Assignee requires in the realisation and distribution of such of his or her property as is vested in the Official Assignee.(2) If the discharged bankrupt fails to give assistance to the Official Assignee under subsection (1) —| (a) | the discharged bankrupt shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000; and | | (b) | the Court may, if it thinks fit, revoke the discharged bankrupt’s discharge, but without affecting the validity of any sale, disposition or payment duly made, or thing duly done subsequent to the discharge, but before its revocation. |
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