Dear Adrian,
If a softer approach is intended, then I suggest you talk to the bank's solicitors, proposing settlement of debt to be paid within the period you think you are comfortable with. Generally banks will be more inclined towards that route instead of making you a bankrupt so as to ensure a win-win situation. The bankruptcy Notice being advertised will record the details of the Bank's solicitors, including their names, address and phone number. Please quote the solicitors firm's reference number so that they could transfer your line to the relevant solicitor in charge without delay.

In the meantime you could always choose to dispute the bankruptcy proceeding against you. The amount is the sum you owed the bank minus the proceeds from the auction they conducted. But note that the bank is still entitled to charge interest on the remaining outstanding sums accrued, which you still have to absorb as days come to pass.

To dispute the bankruptcy proceeding, you need to engage a solicitor of West Malaysia to assist you in the proceeding. Once a solicitor is appointed, the solicitor will either contact the bank's solicitors to obtain the relevant documents (addressed as "cause papers") to know what is the exact amount owing and what is the status of the proceeding, or to conduct a file search themselves in the Bankruptcy court registry, where they could photocopy all the relevant cause papers from the court for the same objectives. Normally the former method is cheaper and faster, because in most circumstances your solicitor needs about a week to conduct a file search from court after payment of prescribe search fees and photocopying charges, whereas the same could be done within a few days if your solicitors were to liaise with the Bank's solicitors directly.

By the way even if you are disputing the bankruptcy proceeding, there is nothing to stop you to negotiate for a settlement in the meantime.

If you were adjudicated a bankrupt, some of the consequences of bankruptcy are as follows:-

a) you shall not leave Malaysia without permission from the Director General Office of Insolvency ("the Office") or of the court, i.e. your passport will be kept under the Office's custody;

b) you cannot without permission from the Office or the Court carry on / enter into any business either alone or in partnership or become director of a company or otherwise either directly or indirectly take part in the management of any company;

c) you cannot without permission from the Office or the Court control any business on behalf of your spouse, or siblings of your own or of your spouse;

d) cannot maintain any court action against another party save and except for action for damages in respect of injury to yourself; and

e) you shall once in every 6 months render to the Office an account of all monies and property coming to your hands for your own use during the preceeding 6 months, and shall thereafter pay and make over the same monies or properties to the Office save and except that which is needed for yourself or your family.

As you can tell, the civil consequences of bankrupt status is grave. All properties of yours will be vested in the hands of the Office from the date you are adjudicated a bankrupt until you pay off the debts accepted by the Office, and the Office may deal with the said properties any way they deem fit to offset your outstanding debt. Be it as it may, you need to instruct your solicitors to look at the Bankruptcy Notice to determine whether the Notice is defective. You have mentioned that you have not received correspondences from the bank. That may be because you have moved out from the last correspondence address according to the Bank's record? If such is the case, my next question would be whether you have informed the Bank of your change of address. Generally if the Bankruptcy Notice was served wrongly to your address despite your notice of change, your solicitor may be able to set aside the bankruptcy notice. Other than that the Bankruptcy Notice remains effective and good.

By setting aside the Bankruptcy Proceeding, the Bankruptcy Notice will be struck off and you shall have at least a moment of breather. However this is merely presumptuous without detail examination of the cause papers, and note that you still are absorbing the interest charges incurred by you, and that the Bank is still entitled to recommence the bankruptcy proceeding against you based on your latest address.

Having said that there are in fact many other ways to set aside the bankruptcy proceeding against you, a matter which will be discussed in details once your solicitor is appointed. A solicitors' fee differs according to the extent of work and complicity of the bankruptcy proceeding, and to each solicitor's experience and seniority. This is a matter of which you may need to take some time to look around for.

Please note that as details are not fully sufficient from the your e-mail, the answer provided is merely general in nature and should not be taken as legal advice to be relied upon by you or any one reading it.

Wallace Wong Hur Shiaw
Advocate & Solicitor

It really depends on what type of Company A is before considering whether to present a Section 218 action pursuant to the Companies Act 1965 (“the Act”) to wind-up Company A. Hence it is necessary to peruse the Memorandum and Articles of Association of Company A to determine what is the best remedy for you.



Assuming that Company A is a company limited by shares, Section 4(1) of the Act defines “a company limited by shares” to mean “a company formed on the principle of having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them”. Section 214(d) of the Act states that “in the case of a company limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member.”



If the shareholders have fully paid up its shares, there is no further liability to contribute to the payment of the company’s debts should the company become insolvent. The practice in Malaysia when incorporating a new company would generally be to subscribe to an authorized capital of RM100,000, hence, on the face of the question, it would seem there is a remedy for you.

Ivan Chen
Advocate & Solicitor

Firstly, it is advisable to lodge a police report against the salesman concerned immediately for criminal breach of trust as there are criminal elements here.



Secondly, you may institute a civil suit against the salesman concern to recover the payment allegedly paid by your client. Since the salesman has disappeared, your chances of recovery may come to a naught, however, it is advisable to do so; as your auditor may want to see some actions being taken before he could write-off the sum in your accounts.



The question of whether you should continue to provide services to this particular client would depend on the previous course of dealings between you and the client, i.e. whether the salesman concern is authorized to collect payments from clients. You client may argue that the agency rules is applicable here, if there are previous consistent dealings that the salesman had consistently collected payments from him/her and services are continuously provided bearing in mind that authorization can be expressed or implied. In such situation, any refusal to provide services to this client may expose you to the risk of breaching the contract. It is, therefore, necessary to consider the previous course of dealings and the nature of contract between you and your client before conclusive advice can be given.



It is also a little unusual that the salesman is able to abscond with the proceeds of payment unless it is cash payment. As a matter of prudence, it is advisable to state clearly in your invoices that all payments made in cheque shall be made to the company directly.

Ivan Chen
Advocate & Solicitor

The law is suppose to balance both sides of the coin like in your situation as the employer. You could dismiss your employee for insubordination if you can proof so and have afforded an opportunity to your employee to improve himself.



Before a drastic action like dismissing an employee is taken, an employer would first need to give a memo to the employee of his misconduct at work. If the employee still shows no sign of improvement then a warning letter needs to be issued against the employee and simultaneously a counselling session needs to be held to give the employee a chance to improve himself.



If that does not show any result only then a show-cause letter could be issued in preparation for a domestic inquiry to be held. only then and only if the employee is found guilty of misconduct by the panel members of the inquiry only then can the employee be dismissed.

Jeochim Maria
Advocate & Solicitor

It is disheartening to note that at times a company could shed certain percentage or if not the entire workforce in its place. This could happen when the company is having a downturn and decides to downsize its operating force.

This aspect would be known as retrenchment.

A company could do so but would also need to compensate its employees according to the terms of employment/appointment letter.

Jeochim Maria
Advocate & Solicitor

You would need to proceed to the following agencies:-



Labour office

SOCSO office

EPF office



In all these offices you would need to lodge a complaint pertaining to your employer's misconduct. It would then be the relevant agency's duties to conduct their investigations and thereafter to prosecute the company. Thereafter there can be some hope in recovering these arrears in payment.



Certain claims against the employer carry a penal consequences e.g EPF matters.

Jeochim Maria
Advocate & Solicitor

Probationers also enjoy certain extent of protection under the Industrial Relations Act.
In Azlina's circumstances she ought not to sign a resignation letter for her employer as this would reflect that Azlina was the one who willfully left her job.



We would suggest for azlina to wait until she is given her termination letter by her employer. Even though her employer is of the opinion that she is not competent there are procedures that the employer needs to obey. Opportunities for improvement are to be accorded to the employee by the employer before the employer can proceed to terminate the employee.

Jeochim Maria
Advocate & Solicitor