AUGUSTINE A/L T.K. JAMES 1. ) LIEW CHONG MIN 2. ) NG TUCK WENG 3. ) TAN KINV TAT

AUGUSTINE A/L T.K. JAMES 1. ) LIEW CHONG MIN 2. ) NG TUCK WENG 3. ) TAN KINV TAT

On the facts the court found the disputed post‑petition dispositions were made bona fide, in the ordinary course to pay genuine creditors and benefitted the general body of creditors; key respondents (Liew and certain solicitors) lacked knowledge of the winding up petition; solicitors Wong & Ting were not 'officers'...

Source-derived case information.

Citation
WA-28PW-218-08/2021 (Mahkamah Tinggi)
Parties
Petitioner: Lim Wee Ngeh Painting Sdn Bhd; Company / Respondent: Began Construction Sdn Bhd; Applicant (liquidator): Augustine James a/l TK James; 1st Respondent: Liew Chong Min; 2nd Respondent: Ng Tuck Weng; 3rd Respondent (advocates & Solicitors): Messrs Wong & Ting; Respondent (former Solicitor): Tan Kinv Tat / The Law Chambers of Tan Kinv Tat
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 June 2022
Case Number
WA-28PW-218-08/2021 (Mahkamah Tinggi)
Procedural Posture
Post‑winding Up Applications: Declarations Under Companies Act (validation and Recovery) / Hearing on Liquidator's Motions for Declarations and Validation; Judgment on Consolidated Matters After Winding Up Order
Outcome
Liquidator's motions in WA‑28PW‑217‑08/2021 and WA‑28PW‑218‑08/2021 dismissed; validation granted in WA‑28PW‑352‑12/2021 for specified post‑petition dispositions; ancillary recovery assistance ordered.
Legal Topics
Void Dispositions After Presentation of Winding Up Petition (s.472 Companies Act 2016), Misfeasance and Breach of Trust (s.541 Companies Act 2016), Validation of Dispositions by Court, Liability of Officers and Solicitors, Undue Preference
Company Law Insolvency Law Civil Procedure Void Dispositions After Presentation of Winding Up Petition (s.472 Companies Act 2016) Misfeasance and Breach of Trust (s.541 Companies Act 2016) Validation of Dispositions by Court Liability of Officers and Solicitors Undue Preference

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Parties

Lim Wee Ngeh Painting Sdn Bhd

Petitioner

Began Construction Sdn Bhd

Company / Respondent

Augustine James a/l TK James

Applicant (liquidator)

Liew Chong Min

1st Respondent

Ng Tuck Weng

2nd Respondent

Messrs Wong & Ting

3rd Respondent (advocates & Solicitors)

Tan Kinv Tat / The Law Chambers of Tan Kinv Tat

Respondent (former Solicitor)

Procedural Posture

Post‑winding Up Applications: Declarations Under Companies Act (validation and Recovery) / Hearing on Liquidator's Motions for Declarations and Validation; Judgment on Consolidated Matters After Winding Up Order

Legal Issues

  1. 1 Whether dispositions of company funds made after presentation of winding up petition are void under s.472 Companies Act 2016
  2. 2 Whether payments made after presentation amounted to misapplication/misfeasance or undue preference such that s.541 remedies apply
  3. 3 Whether the Court should validate the post‑petition dispositions as bona fide and for benefit of general body of creditors

Ratio Decidendi

On the facts the court found the disputed post‑petition dispositions were made bona fide, in the ordinary course to pay genuine creditors and benefitted the general body of creditors; key respondents (Liew and certain solicitors) lacked knowledge of the winding up petition; solicitors Wong & Ting were not 'officers' under s.541 and thus not liable under that provision; accordingly liquidator's recovery motions in PW217 and PW218 were dismissed, while validation orders were granted in PW352 for the specified payments; an order was made for Wong & Ting to assist recovery of RM125,000 held by Registrar of Unclaimed Monies to be repaid to the liquidator.

Court Disposition

Liquidator's motions in WA‑28PW‑217‑08/2021 and WA‑28PW‑218‑08/2021 dismissed; validation granted in WA‑28PW‑352‑12/2021 for specified post‑petition dispositions; ancillary recovery assistance ordered.

Orders

  • Dismissed Notice of Motion in enclosure 1 of WA‑28PW‑217‑08/2021 and WA‑28PW‑218‑08/2021 with no order as to costs.
  • Ordered Messrs Wong & Ting to claim and assist the Liquidator in claiming RM125,000 currently with the Registrar of Unclaimed Monies and, upon receipt, repay that sum to the Liquidator.