United Overseas Bank Ltd v Ishak bin Ismail

• Jurisdiction: Singapore
• Judge: S Rajendran J
• Judgment Date: 07 August 2003
• Neutral Citation: [2003] SGHC 170
• Docket Number: Bankruptcy No 917 of 2003
• Date: 07 August 2003
• Published date: 03 October 2003
• Year: 2003
• Plaintiff Counsel: Seetha Ramasamy (Tan Kok Quan Partners)
• Citation: [2003] SGHC 170
• Defendant Counsel: Ishak bin Ismail (respondent) in person - not present
• Court: High Court (Singapore)
• Subject Matter: Whether service of statutory demand irregular,Bankruptcy Rules (Cap 20, R 1, 2002 Rev Ed) r 96,Whether mode of substituted service most effective means of bringing demand to notice of debtor,Insolvency Law,Bankruptcy,Statutory demand

1 This is an appeal from the decision of the Assistant Registrar dismissing the appellants’ bankruptcy petition against the debtor Ishak bin Ismail in the amount of $20,156.43. The petition was dismissed on the basis that the service of the statutory demand, which the petitioning creditor relied on to found the presumption that the debtor was unable to pay the debt, had been irregular. The only live issue in the appeal is whether this was indeed the case.

2 The law regulating service of the statutory demand is found in r 96 of the Bankruptcy Rules (Cap 20, R1, 2002 Rev Ed). It provides:

96. – (1) The creditor shall take all reasonable steps to bring the statutory demand to the debtor’s attention.

(2) The creditor shall make reasonable attempts to effect personal service of the statutory demand.

(3) Where the creditor is not able to effect personal service, the demand may be served by such other means as would be most effective in bringing the demand to the notice of the debtor.

(4) Substituted service under paragraph (3) may be effected in the following manner:

(a) by posting the statutory demand at the door or some other conspicuous part of the last known place of residence or business of the debtor or both;

(b) by forwarding the statutory demand to the debtor by prepaid registered post to the last known place of residence, business or employment of the debtor;

(c) where the creditor is unable to effect substituted service in accordance with sub-paragraph (a) or (b) by reason that he has no knowledge of the last known place of residence, business or employment of the debtor, by advertisement of the statutory demand in one or more local newspapers, in which case the time limited for compliance with the demand shall run from the date of the publication of the advertisement; or

(d) such other mode which the court would have ordered in an application for substituted service of a petition in the circumstances.

(5) …

(6) A creditor shall not resort to substituted service of a statutory demand on a debtor unless –

(a) the creditor has taken all such steps which would suffice to justify the court making an order for substituted service of a bankruptcy petition; and

(b) the mode of substituted service would have been such that the court would have ordered in the circumstances.

3 The affidavit of service of the statutory demand filed by a clerk of the firm acting for the petitioning creditors, one Marcus Lin Han Chiang (“Lin”), stated that he had on two occasions, ie 5 January 2003 at 7.30pm and 8 January 2003 at 9.10pm, attended at the premises of Block 241, Jurong East Street 24, #05-687, Singapore 600241, for the purposes of serving the demand personally on the debtor. On the first occasion there had been no response from within the premises after knocking on the door several times. On the second occasion, he had been informed by a male Indian that there was no one of the debtor’s name staying at the premises. In addition, a Property Tax Search dated 29 August 2002 showed that the owner of the premises was one Rahimah bte Abdul Kadir, and not the debtor.

4 Having taken, in his view, “all reasonable efforts” and used “all due means” in his power to serve the statutory demand, Lin then on 10 February 2003 posted a copy of the demand on the front door...