PEMIUTANG PENGHAKIMAN 1. Maybank Investment Bank Berhad 2. Malayan Banking Berhad PENGHUTANG PENGHAKIMAN Lim Cheng Pow

PEMIUTANG PENGHAKIMAN 1. Maybank Investment Bank Berhad 2. Malayan Banking Berhad PENGHUTANG PENGHAKIMAN Lim Cheng Pow

The ex parte interim voluntary arrangement was obtained without full and frank disclosure of material prior and ongoing proceedings; the debtor's proposal was inherently flawed and unlawful because it purported to transfer assets owned by creditors (the Notes) and would unfairly and irreparably prejudice the applicants; the nominee failed to comply with mandatory rules; therefore the court, exercising its powers under s91(1) IA and inherent jurisdiction, set aside the ex parte protection and granted the applicants' relief to prevent an abuse of process.

Citation
WA-29VA-2-02/2020 (Mahkamah Tinggi)
Parties
Debtor / Penghutang: Lim Cheng Pow; Applicant / Creditor: Maybank Investment Bank Berhad; Applicant / Creditor: Malayan Banking Berhad; Nominee: Baltasar bin Maskor
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 May 2020
Case Number
WA-29VA-2-02/2020 (Mahkamah Tinggi)
Procedural Posture
Insolvency Voluntary Arrangement Under the Insolvency Act 1967 / Inter Partes Hearing on Intervention and Setting Aside Ex Parte Interim VA Order; Judgment Delivered
Outcome
Applicants' intervention and substantive challenge to the ex parte VA process granted in part; ex parte interim VA arrangements and the debtor's VA proposal set aside as to the challenged elements; nominee's separate application dismissed
Legal Topics
Voluntary Arrangement, Ex Parte Orders, Full and Frank Disclosure, Setting Aside Orders, Nominee Duties and Creditors' Meetings, Abuse of Process, Restructuring Proposals
Source Language
Malay/English
Insolvency Bankruptcy Civil Procedure Equity Company Law Voluntary Arrangement Ex Parte Orders Full and Frank Disclosure +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 16 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Lim Cheng Pow

Debtor / Penghutang

Maybank Investment Bank Berhad

Applicant / Creditor

Malayan Banking Berhad

Applicant / Creditor

Baltasar bin Maskor

Nominee

Procedural Posture

Insolvency Voluntary Arrangement Under the Insolvency Act 1967 / Inter Partes Hearing on Intervention and Setting Aside Ex Parte Interim VA Order; Judgment Delivered

Legal Issues

  1. 1 Whether the ex parte interim voluntary arrangement order should be set aside for non‑disclosure and mala fides
  2. 2 Whether the debtor's voluntary arrangement proposal is lawful where it purports to transfer assets owned by creditors
  3. 3 Whether the nominee complied with statutory timelines under the Insolvency (Voluntary Arrangement) Rules 2017

Ratio Decidendi

The ex parte interim voluntary arrangement was obtained without full and frank disclosure of material prior and ongoing proceedings; the debtor's proposal was inherently flawed and unlawful because it purported to transfer assets owned by creditors (the Notes) and would unfairly and irreparably prejudice the applicants; the nominee failed to comply with mandatory rules; therefore the court, exercising its powers under s91(1) IA and inherent jurisdiction, set aside the ex parte protection and granted the applicants' relief to prevent an abuse of process.

Court Disposition

Applicants' intervention and substantive challenge to the ex parte VA process granted in part; ex parte interim VA arrangements and the debtor's VA proposal set aside as to the challenged elements; nominee's separate application dismissed

Orders

  • Granted Order in terms of Applicants' Enclosure 5 prayers 3 and 6
  • Ex parte interim voluntary arrangement order set aside insofar as challenged and the debtor's proposal rejected for attempting to transfer creditors' assets