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It is a nightmare for a creditor to know that the company they have financed is being liquidated!
Malaysia is a country full of potential. From innovative technology firms, well-developed infrastructure and a dynamic business environment, all the sectors are seeing an upward growth curve.
Unfortunately, several businesses fail every year due to extremely high competition and uncertainties in the market environment.
If you are a creditor who is owed money by a company that is being liquidated, acting at the right time will save you a tremendous amount of cost and efforts to recover your debts.
What is proof of debt?
A “proof of debt” is a legal document through which a creditor seeks to establish the claim against the debtor. This document will bear a statutory declaration by the creditor, showing the evidence of debt owed to them by the debtor.
A proof of debt will be often accompanied by supporting documents to validate the debt.
Generally, it is submitted for two purposes.
- To show genuine evidence during the insolvency process that the debtor owes to the creditor
- To make sure that the creditor receives a fair dividend distribution from the assets of the insolvent company
When must you file for a proof of debt?
A proof of debt is generally filed once the company is in the process of liquidation. By this time a liquidator will be appointed by the court to liquidate all the assets of the company and sell off in an auction to recover the debt money.
The proof of debt needs to be filed after the court has made an order to wind up the company.
Once the order has been passed, a maximum period of three months is allocated to file the proof of debt.
Often, a company that is in the process of liquidation will have several creditors. The liquidator will have to send a Notice to File Proof of Debt. The notice will be made available through different mediums to ensure that none of the creditors misses the deadline.
The liquidator or the official receiver will make sure that the notice will be out at least 14 days prior to the deadline of submission.
Some of the ways in which the liquidator can send a notice are :
- Notice in writing to each and every person who is known to be a liquidator as per the knowledge of the official receiver or the liquidator (Form 57/58)
- By an advertisement in the Gazette and in some of the well-known newspapers that have circulation in entire Malaysia. (Form 94)
What is the procedure for submitting proof of debt?
The proof of debt must be submitted to:
- The liquidator/Official receiver,
- Under the direction of the creditor and authenticated by the creditor, or
- A person authorised on behalf of the creditor.
It should include the following:
- Name and address of the creditor
- In case if the creditor is a company, the identity of the company
- The total amount claimed by the creditor (Including SST) as at the relevant date, including any payments made after that date concerning the claim;
- Relevant details of how and when the debt was incurred by the company.
- Aspects of any security that is held, the date when it was given and the value.
- The interest of up to six per cent per annum from the date that the debt was due.
- Relevant details of any reservation of title in respect of goods to which the debt refers;
- Date and authentication; and
- Name, address and other details of the person who is authenticating the proof (if the person is someone other than the debtor)
The proof of debt must be annexed with all the supporting documents. Each creditor is obligated to prove his own debt. This includes any costs that are incurred in obtaining the documents to support the claim.
Some of the examples of supporting documents are:
- Credit and Debit notes
The debt shall be proved via the delivering of an affidavit verifying the debt to the liquidator. The affidavit must specify the particulars of the debt referring to statements of accounts and other vouchers.
The affidavit mentioned above must be filed by the creditor himself or someone authorised by the creditor or one on behalf of him.
If the affidavit is submitted by someone approved by the creditor, it must specify the said person’s authority and means of his knowledge. Affidavits in the context of proving a debt refer to the submission of the relevant forms to the liquidator.
For a layman, understanding the peculiarities and drafting the proof of debt may be a tedious job. Luckily the proof of debt is designed with a template to ease the process. All a creditor needs to do is to simply download the form, fill it with the relevant details and submit it to the liquidator for verification.
The entire structure of the form is designed in a way to help the liquidator to examine the particulars mentioned in the form and cross-check with the evidence submitted in a time-bound and efficient manner.
The affidavit needs to be affirmed before a Commissioner for Oaths.
What happens after the proof of debt is filed?
Once the creditors have filed the proof of debt within the prescribed deadline, the liquidator will carefully examine the relevant details mentioned along with the annexed evidence.
The liquidator will announce his decision on whether to accept or reject the proof. The decision will be made known within 14 days from the deadline of lodging the document.
Sometimes he might also reject the submission in part if sufficient evidence is lacking. The liquidator could also request for clarification or more evidence.
Once a decision has been made by the liquidator, it will be made known in writing to all the creditors who have submitted the proof.
If the proof of debt is improperly filed, the liquidator can apply to court to reduce or disregard the amount of debt.
Thus it is crucial to submit this document with the right information and all the relevant pieces of evidence as necessary.
What if the proof of debt is rejected?
If the proof of debt filed by the creditor is rejected by the liquidator, the matter will be made known to the creditor through writing.
If the creditor wishes to make an appeal against this decision, he can do so within 21 days from the date when the notice of rejection was served.
What if I fail to file the proof within the deadline?
Once the liquidator suggests a deadline to submit the proof of debt, you need to be careful not to exceed the timeframe specified by the liquidator.
However, even if you have missed filing the proof of debt within the deadline, it does not mean that all your rights will vanish. The creditor may challenge the liquidator’s decision to exclude the debt in court. Of course it would be too late if the liquidator had already divided the assets and distributed them amongst the creditors.
Will “proof of debt” ensure payment by the company?
Just because you have successfully filed your proof of debt within the prescribed deadline, it does not necessarily guarantee that your debt will be repaid.
The paying back of your debt will depend on:
- Whether the company has enough assets to pay back the creditors
- Whether you are a secured, unsecured or preferential creditor
The law stipulates the priorities of debts to be observed when a liquidator seeks to pay back the debts.
Secured creditors: Secured creditors are the creditors who hold a right over the company’s properties or goods or security for the payment of the debt. They stand first when it comes to the order of claim for a wind-up company.
The security for payment is to ensure that in the event that the borrower fails to pay back the money, the secured creditor will receive payment through the assets.
Regardless of the liquidation process, these creditors are entitled to receive the payment. If they find the security deficient in repaying the debt, for the remaining balance, they will have to prove themselves as unsecured creditors.
Unsecured creditors: These are the ones who lend money without obtaining any security.
They possess a higher risk as compared to secured creditors when it comes to recovering the debt.
Unsecured creditors will be the ones to get paid last after the liquidator has made distribution to the secured and preferential creditors. If the company runs out of assets after paying to the secured and preferential creditors, unsecured creditors can end up being unpaid.
Preferential creditors: When it comes to the repayment of the debt, preferential creditors rank second after the secured creditors.
Few examples of preferential creditors include:
- Tax controller
- Employees of the company
- Provident fund board
Debts are sometimes unfortunate and unavoidable. If you are a creditor who has financed a company now in liquidation, acting at the right time will ensure that you will incur only minimal losses.