DATO’ SERI TIMOR SHAH RAFIQ NAUTILUS TUG & TOWAGE SDN. BHD.

DATO’ SERI TIMOR SHAH RAFIQ NAUTILUS TUG & TOWAGE SDN. BHD.

The court exercised its discretion to refuse leave to intervene because the Proposed Intervener, an unsecured creditor seeking to pursue winding up, would disrupt a bona fide scheme of arrangement sanctioned to revive the project and protect purchasers and public interest; the interests of the collective scheme creditors and the public outweighed the single unsecured creditor's interest, and allowing intervention would likely frustrate the scheme's implementation.

Citation
WA-24NCC-392-08/2018 (Mahkamah Tinggi)
Parties
Applicant: BHL Gemilang Sdn. Bhd.; Proposed Intervener: TETUAN DENNIS NIK & WONG
Court
High Court
Jurisdiction
Malaysia
Judgment Date
18 October 2019
Case Number
WA-24NCC-392-08/2018 (Mahkamah Tinggi)
Procedural Posture
Companies Act 2016 Scheme of Arrangement and Winding Up Petition / Application for Leave to Intervene and to Proceed With Winding Up Petition; High Court Judgment
Outcome
Application for leave to intervene and to proceed with winding up dismissed
Legal Topics
Scheme of Arrangement (s366), Restraining Order (s368), Intervention (order 15 Rule 6 Rules of Court 2012), Winding Up Petition, Creditor Priorities (secured Vs Unsecured)
Source Language
Malay/English
Company Law Insolvency Civil Procedure Scheme of Arrangement (s366) Restraining Order (s368) Intervention (order 15 Rule 6 Rules of Court 2012) Winding Up Petition Creditor Priorities (secured Vs Unsecured)

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Parties

BHL Gemilang Sdn. Bhd.

Applicant

TETUAN DENNIS NIK & WONG

Proposed Intervener

Procedural Posture

Companies Act 2016 Scheme of Arrangement and Winding Up Petition / Application for Leave to Intervene and to Proceed With Winding Up Petition; High Court Judgment

Legal Issues

  1. 1 Whether leave should be granted for Proposed Intervener to intervene under Order 15 Rule 6 and s.368 to proceed with winding up petition
  2. 2 Whether the restraining order under s.366/s.368 should yield to a creditor's winding up petition
  3. 3 Whether the Proposed Scheme is bona fide or a device to thwart winding up proceedings

Ratio Decidendi

The court exercised its discretion to refuse leave to intervene because the Proposed Intervener, an unsecured creditor seeking to pursue winding up, would disrupt a bona fide scheme of arrangement sanctioned to revive the project and protect purchasers and public interest; the interests of the collective scheme creditors and the public outweighed the single unsecured creditor's interest, and allowing intervention would likely frustrate the scheme's implementation.

Court Disposition

Application for leave to intervene and to proceed with winding up dismissed

Orders

  • Application dismissed with no order as to costs
  • Existing restraining order and scheme process to be allowed to progress