Asiabio Capital Sdn Bhd [840116-P] LAIN-LAIN Seacera Group Berhad [163751-H]

Asiabio Capital Sdn Bhd [840116-P] LAIN-LAIN Seacera Group Berhad [163751-H]

The ex parte restraining order was set aside because the applicant failed the mandatory requirement of section 368(2)(a) CA 2016: the proposed scheme did not involve more than one‑half in value of all creditors and the applicant could not lawfully exclude debts to subsidiaries and directors when calculating the statutory threshold.

Citation
24NCC-95-09/2021 (Mahkamah Tinggi)
Parties
Applicant/appellant: Asiabio Capital Sdn Bhd; Company/respondent: Seacera Group Berhad; Scheme Creditor/applicant to Set Aside: Synergy Platform Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
3 November 2021
Case Number
24NCC-95-09/2021 (Mahkamah Tinggi)
Procedural Posture
Companies Act 2016 Scheme of Arrangement and Restraining Order / Interlocutory Application to Set Aside Ex Parte Restraining Order (originating Summons)
Outcome
The ex parte order dated 29 September 2021 is set aside.
Legal Topics
Scheme of Arrangement, Restraining Order Under S368, Statutory Preconditions for Ex Parte Relief, Set Aside of Ex Parte Order
Source Language
Malay/English
Company Law Civil Procedure Injunctions Scheme of Arrangement Restraining Order Under S368 Statutory Preconditions for Ex Parte Relief Set Aside of Ex Parte Order

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Parties

Asiabio Capital Sdn Bhd

Applicant/appellant

Seacera Group Berhad

Company/respondent

Synergy Platform Sdn Bhd

Scheme Creditor/applicant to Set Aside

Procedural Posture

Companies Act 2016 Scheme of Arrangement and Restraining Order / Interlocutory Application to Set Aside Ex Parte Restraining Order (originating Summons)

Legal Issues

  1. 1 Whether the proposed scheme involves at least one‑half in value of all creditors as required by section 368(2)(a) CA 2016
  2. 2 Whether debts owed to subsidiaries and directors can be excluded when calculating the one‑half threshold under s368(2)(a)
  3. 3 Whether defects in the applicant’s affidavits and omitted/contradictory creditors invalidate the ex parte order

Ratio Decidendi

The ex parte restraining order was set aside because the applicant failed the mandatory requirement of section 368(2)(a) CA 2016: the proposed scheme did not involve more than one‑half in value of all creditors and the applicant could not lawfully exclude debts to subsidiaries and directors when calculating the statutory threshold.

Court Disposition

The ex parte order dated 29 September 2021 is set aside.

Orders

  • Set aside the ex parte order dated 29 September 2021 relating to convening a creditors meeting and restraining proceedings
  • Costs awarded to Synergy Platform Sdn Bhd in the sum of RM13,000.00