PEMIUTANG PENGHAKIMAN BUKIT LANJAN HOLDINGS SDN BHD (NO. SYARIKAT: 153962-P) PENGHUTANG PENGHAKIMAN MOHD NIZAR BIN ZAINUN

PEMIUTANG PENGHAKIMAN BUKIT LANJAN HOLDINGS SDN BHD (NO. SYARIKAT: 153962-P) PENGHUTANG PENGHAKIMAN MOHD NIZAR BIN ZAINUN

Where a company has been validly wound up the proper channel for proving and enforcing claims is under the Companies Act 2016 and the Companies (Winding-Up) Rules 1972 through the liquidator; absent evidence of impropriety, asset stripping or other exceptional conduct justifying piercing the corporate veil, a judgment debtor summons under Rule 74 cannot be used to circumvent the winding-up process against a director of a wound-up company; a solicitor may swear an affidavit limited to facts within his personal knowledge and non-contentious matters. Consequently the assistant registrar's order cancelling the judgment debtor summons was correct and is affirmed.

Citation
CB-37J-1-07/2020 (Mahkamah Tinggi)
Parties
Judgment Creditor: Bukit Lanjan Holdings Sdn. Bhd.; Judgment Debtor: Mohd Nizar bin Zainun
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 June 2021
Case Number
CB-37J-1-07/2020 (Mahkamah Tinggi)
Procedural Posture
Judgment Enforcement Judgment Debtor Summons Under Debtors Act 1957 / Application to Set Aside Judgment Debtor Summons (hearing at High Court)
Outcome
Order of the Assistant Registrar dated 23.02.2021 allowing the application to cancel the judgment debtor summons is affirmed.
Legal Topics
Judgment Debtor Summons, Winding Up, Lifting Corporate Veil, Affidavit by Solicitor, Companies (winding Up) Rules
Source Language
Malay/English
Company Law Insolvency Civil Procedure Debt Enforcement Evidence Law Judgment Debtor Summons Winding Up Lifting Corporate Veil +2 more

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Parties

Bukit Lanjan Holdings Sdn. Bhd.

Judgment Creditor

Mohd Nizar bin Zainun

Judgment Debtor

Procedural Posture

Judgment Enforcement Judgment Debtor Summons Under Debtors Act 1957 / Application to Set Aside Judgment Debtor Summons (hearing at High Court)

Legal Issues

  1. 1 Whether the filing of a judgment debtor summons against an individual director of a company that has been wound up is scandalous or an abuse of process
  2. 2 Whether the proper procedure to enforce or prove debts against a wound-up company is under the Companies (Winding-Up) Rules and via the liquidator rather than by judgment debtor summons under Rule 74
  3. 3 Whether the corporate veil should be lifted to make a director personally liable

Ratio Decidendi

Where a company has been validly wound up the proper channel for proving and enforcing claims is under the Companies Act 2016 and the Companies (Winding-Up) Rules 1972 through the liquidator; absent evidence of impropriety, asset stripping or other exceptional conduct justifying piercing the corporate veil, a judgment debtor summons under Rule 74 cannot be used to circumvent the winding-up process against a director of a wound-up company; a solicitor may swear an affidavit limited to facts within his personal knowledge and non-contentious matters. Consequently the assistant registrar's order cancelling the judgment debtor summons was correct and is affirmed.

Court Disposition

Order of the Assistant Registrar dated 23.02.2021 allowing the application to cancel the judgment debtor summons is affirmed.

Orders

  • Application by judgment debtor to cancel the judgment debtor summons allowed
  • Decision of the Assistant Registrar dated 23.02.2021 affirmed