1. ) Ong Hock An 2. ) Bernard Tan Chek Hean 1. ) XSPEC Resources Sdn Bhd 2. ) Dato' Sri Zul Azmi Bin Abu Hussin 3. ) Mohamad Safwan Bin Abdul Malek

1. ) Ong Hock An 2. ) Bernard Tan Chek Hean 1. ) XSPEC Resources Sdn Bhd 2. ) Dato' Sri Zul Azmi Bin Abu Hussin 3. ) Mohamad Safwan Bin Abdul Malek

The court held that the Debenture's express terms together with Companies Act 2016 ss 374, 375, 383, 388, 389 and 390 authorized MDV to appoint the Plaintiffs as receivers and managers and empowered the Plaintiffs to take possession of charged assets and to require production of books, records and a statement of affairs; the Defendants' refusal to comply was unjustified and the Originating Summons was therefore allowed with extensions for compliance and an award of costs.

Citation
WA-24NCC-861-08/2022 (Mahkamah Tinggi)
Parties
Plaintiff (receiver and Manager Appointed): ONG HOCK AN; Plaintiff (receiver and Manager Appointed): BERNARD TAN CHEK HEAN; 1st Defendant (company): XSPEC RESOURCES SDN BHD; 2nd Defendant (director and Shareholder): DATO’ SRI ZUL AZMI BIN ABU HUSSIN; 3rd Defendant (company Secretary): MOHAMAD SAFWAN BIN ABDUL MALEK
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 December 2022
Case Number
WA-24NCC-861-08/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (companies Act) / Judgment (final)
Outcome
Originating Summons allowed (with modifications)
Legal Topics
Appointment of Receivers and Managers, Debenture Enforcement, Books and Records and Statement of Affairs, Possession and Control of Charged Assets, Statutory Powers Under Companies Act 2016
Source Language
Malay/English
Company Law Insolvency Civil Procedure Appointment of Receivers and Managers Debenture Enforcement Books and Records and Statement of Affairs Possession and Control of Charged Assets Statutory Powers Under Companies Act 2016

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Parties

ONG HOCK AN

Plaintiff (receiver and Manager Appointed)

BERNARD TAN CHEK HEAN

Plaintiff (receiver and Manager Appointed)

XSPEC RESOURCES SDN BHD

1st Defendant (company)

DATO’ SRI ZUL AZMI BIN ABU HUSSIN

2nd Defendant (director and Shareholder)

MOHAMAD SAFWAN BIN ABDUL MALEK

3rd Defendant (company Secretary)

Procedural Posture

Originating Summons (companies Act) / Judgment (final)

Legal Issues

  1. 1 Whether appointment of receivers and managers was valid under the Debenture and Companies Act 2016
  2. 2 Whether Plaintiffs are entitled to possession of charged assets and to production of books, records and statement of affairs
  3. 3 Whether Defendants may withhold compliance on grounds of lack of consent, alleged lack of charged assets, parallel litigation or alleged abuse of process

Ratio Decidendi

The court held that the Debenture's express terms together with Companies Act 2016 ss 374, 375, 383, 388, 389 and 390 authorized MDV to appoint the Plaintiffs as receivers and managers and empowered the Plaintiffs to take possession of charged assets and to require production of books, records and a statement of affairs; the Defendants' refusal to comply was unjustified and the Originating Summons was therefore allowed with extensions for compliance and an award of costs.

Court Disposition

Originating Summons allowed (with modifications)

Orders

  • Defendants to deliver and surrender possession of all books and records of 1st Defendant to the Plaintiffs as Receivers and Managers
  • Defendants to provide statement of affairs of the 1st Defendant in accordance with Companies Act 2016 within extended time ordered by the Court