Lam Wai Loon, Paul Lee and Amy Hiew Kar Yi for the Applicants in both Motions [Messrs TG Lee & Associates] Barvina Punnusamy and Edwin Raj for the Respondents of both Motions [Messrs Jayadeep Hari & Jamil]

DALAM MAHKAMAH TINGGI DI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) PASCA PENGGULUNGAN SYARIKAT NO. WA-28PW-185-06/2020 Dalam Perkara Seksyen 453(2), Seksyen 477(1) dan Seksyen 482(b) Akta Syarikat 2016 Dan Dalam Perkara KW Consult (No. Pendaftaran Perniagaan: 002438588-A) KW CONSULT (NO. PENDAFTARAN PERNIAGAAN: 002438558-A) …PEMOHON DAN IRDK VENTURES SDN BHD (DALAM PENGGULUNGAN) (NO. SYARIKAT: 549318-U) …RESPONDEN Didengar bersama DALAM MAHKAMAH TINGGI DI MALAYA DI KUALA LUMPUR BAHAGIAN DAGANG PASCA PENGGULUNGAN SYARIKAT NO. WA-28PW-310-08/2020 1 Dalam Perkara Seksyen 453(2) Seksyen 477(1) dan Seksyen 482(b) Akta Syarikat 2016 KW CONSULT (NO. PENDAFTARAN PERNIAGAAN: 002438558-A) …PEMOHON ANTARA IRDK VENTURES SDN BHD (DALAM PENGGULUNGAN) (NO. SYARIKAT: 549318-U) …RESPONDEN DAN ECONPLILE SDN BHD (NO. SYARIKAT: 164265-P) …PENCELAH YANG DICADANGKAN JUDGMENT (Enclosure 1) 1. There are 2 Post Winding Up Applications before this Court which were heard together as the matters involves the same parties and subject matter. 2. The first is the Notice of Motion in enclosure 1 of Post Winding Up No. WA-28PW-185-06/2020 (Motion PW 185) which is Econpile Sdn. Bhd. (Econpile) motion pursuant to Order 18 Rule 19(1)(b) or (c) or (d) of the Rules of Court 2012 and/or Order 77 Rule 9 of the Rules of Court 2012 and/or Section 8 of the Business Registration 2 Act 1956 and/or Order 92 Rule 4 of the Rules of Court 2012 and/or the inherent jurisdiction of the Court for the following orders: 2.1 the Applicant, KW Consult (KW Consult) application dated 30.8.2018 (30.8.2018 Application) and the Affidavit in Support affirmed by Chow Kong Wah on 30.8.2018 be set aside; 2.2 Costs of this application to be borne by KW Consult and/or the assets of IRDK Ventures Sdn Bhd (In Liquidation) (Respondent); 2.3 Such further or other order or relief as to this Court deems fit 3. The grounds for Motion PW 185 are as follows: a) KW Consult is a sole proprietor business which was registered on 14.5.2015; b) KW Consult’s business expired and/or ceased to exist on 3.7.2018 which according to the records has not been renewed as at 5.5.2020; c) KW Consult’s Application filed on 30.8.2018 was made after KW Consult’s business had expired /ceased; d) KW Consult’s Application is frivolous, vexatious and/or inconvenience or may impair, obstruct and/or delay the fair hearing of legal action or an abuse of Court process. 3 4. The second Notice of Motion in enclosure 1 of Post Winding Up No. WA-28PW-310-08/2020 (Motion PW 310) which is Econpile’s motion pursuant to Order 3 rule 5, Order 15 Rule 6 and/or Order 92 Rule 4 of the Rules of Court 2012 which seeks for the following orders: 4.1 Econpile be given an extension of time to file Motion PW 310; 4.2 Econpile be given leave to intervene in Post Winding Up No. WA-28PW-347-08/2018; 4.3 The Order dated 15.7.2019 (15.7.2019 Order) be set aside; 4.4 Costs of this application to be borne by KW Consult and/or the assets of IRDK Ventures Sdn. Bhd. (In Liquidation) (Respondent); 4.5 Such further or other order or relief as to this Court deems fit. 5. In brief the grounds for Motion PW 310 are as follows: a) the 15.7.2019 Order is invalid as KW Consult’s Application which was filed on 30.8.2018 (KW Consult’s Application) was done after the business had ceased to exist; b) KW Consult is a sole proprietor registered on 14.5.2015 and its business expired on 3.7.2018 and according to the records as at 5.5.2020 has not been renewed; 4 c) KW Consult’s Application is wrong in law as KW Consult had no locus standi to make the said Application to appoint a liquidator as its business had ceased to exist on 3.7.2018 and KW Consult is not a legal entity; d) the fact that the business had ceased to exist was not mentioned and/or hidden on purpose in KW Consult’s Affidavit in Support so that the said KW Consult’s Application will not be dismissed by the Court; e) the right of KW Consult to appoint is not valid, without locus standi and wrong in law and has from a legal standpoint affected Econpile’s right to appoint their own liquidator and Econpile’s application to discharge the liquidator to be postponed whilst awaiting the Court’s decision to determine the validity of the liquidator appointed by KW Consult. 6. Both matters were heard together with the consent of both counsels as they were inter related. Econpile’s Submissions 7. Econpile had submitted in essence that: (i) KW Consult is not a legal entity and lacks jurisdiction as KW Consult’s Application should have been brought by Chow Kong Wah under the name and style of KW Consult; (ii) KW Consult’s registration had expired on 3.7.2018; (iii) KW Consult’s lacks locus standi; 5 (iv) the rejection of Econpile’s Proof of Debt (POD) by the Liquidator of the Respondent was mala fide and without perusing the documents forwarded to the Liquidator by Econpile; (v) the rejection of Econpile’s POD by the Liquidator was only made after Econpile had filed in an application vide Notice of Motion in WA-28PW-716-12/2019 to remove the Liquidator of the Respondent. Respondent’s Opposition 8. The Respondent had argued in opposition to both Motion PW 185 and Motion PW 310 that: 8.1 Econpile is not party to KW Consult’s Application; 8.2 Accordingly, Econpile lacks locus standi or does not have any right to make the applications in Motion PW 185 and Motion PW 310; 8.3 Econpile should have sought for leave to intervene in the proceedings or oppose KW Consult’s Application at the material time; 8.4 Motion PW 310 was filed after the issue of locus and lack of right to make the application in Motion 185 was raised by the liquidator in its affidavit in reply; 6 8.5 Econpile cannot now seek to rectify the irregularity by now applying to intervene when they had proceeded to file Motion 185; 8.6 the Court is now functus officio as the proceedings has come to an end following the 15.7.2019 Order; 8.7 in so far as Motion PW 185, Econpile had not challenged the 15.7.2019 Order and that it had only arose as the Liquidator had rejected Econpile’s POD and thus Econpile is not a creditor; 8.8 the alleged irregularity, if any, is a technical error which can be rectified; 8.9 KW Consult’s Application does state that Chow Kong Wah is the sole owner of the business and he is therefore entitled to make the application to appoint the liquidator; 8.10 Econpile had accepted the Liquidator’s appointment by filing its POD. Background Facts 9. The backgrounds facts are as follows: 9.1 The Applicant is the subcontractor IRDK Ventures Sdn Bhd. (Company No.: 549318-U) (hereinafter referred to as “IRDK”) for piling and pile cap works under the project known as: 7 i. 2 Blok Menara Kondominium 23 Tingkat Yang Mengandungi 318 Unit Rumah (Ditingkat 8-30) – Fasa 2; ii. 1 Blok Podium Tempat Letak Kereta Yang Mengandungi 1 Aras Kemudahan Komuniti Di Tingkat 7 Beserta 7 Aras Tempat Letak Kereta Di Tingkat G-6 Dan 3 Aras Tempat Letak Kereta Bawah Tanah Di Tingkat Basement 1, 2 dan 3 – Fasa 2; iii. 28 Unit Link Villa 4 Tingkat – Fasa 1 Di Atas Lot PT 8790 Dan Sebahagian Tanah Kerajaan Di Jalan Bandar 2 Pusat Bandar Puchong Mukim Petaling Daerah Petaling Selangor Darul Ehsan (hereinafter after referred to as “the case project”). They entered into contract based on the PAM 2006 Contract. 9.2 The Applicant has carried out their works regularly and diligently however the Applicant contract was unlawfully terminated and therefore the Applicant has initially proceed to take action against IRDK under the Construction Industry payment and Adjudication Act 2012 (“CIPAA”) and has manage to recovered partially the sum due and owing to them and thereafter the in Arbitration. 9.3 The Applicant had managed to obtained an ex-parte Final Award against IRDK before Ir. Tiong Kian Boon on 5.1.2018 (and proceeded to obtain an enforcement order dated 21.12.2018 (page 99 Applicant Affidavit No. 3) against IRDK which has yet to set aside. 8 9.4 The Arbitrator award was obtained ex-parte because the IRDK refuse to participate but in actuality they know they are in the midst of being wound up and has concealed this material facts from the Applicant. 9.5 The Applicant has proceeded with the application to wound up IRDK and has manage to obtain a winding up order against IRDK on 17.7.2019 (page 158 Applicant Affidavit No. 3). It was when the applicant Liquidator intended to lodge filing as liquidator that the applicant found out that IRDK has been wound up on 5.7.2018 (page 122 Applicant Affidavit No. 3) and that Ng Choon Jin is the liquidator. 9.6 The Applicant has contacted the liquidator and has proceeded to file their POD form on 27.8.2019 and wishes to fix a meeting with the liquidator. One of the reasons the Applicant wishes to have a meeting with the Liquidator is that the Applicant has a sworn affidavit that the previous director and shareholders of the company has declare dividend when they know IRDK still owed their creditor (page 1395 paragraph 22 and page 1464 paragraph 25 Applicant Affidavit No. 2) in contravention of Section 365 of the Companies Act 1965 (or Section 131 and 132 of the Companies Act 2016. IRDK has dispose off the project to a third party for RM95 million and their previous director and shareholders has declared the proceed of the disposal of the project as dividend wherein they well know that they still owed the applicant. 9 9.7 The Applicant has tried many times to fix a meeting with the liquidator but failed to do so but the Applicant has proceed to provide voluminous of document to the liquidator when ask to do so (pleas refer to page 140, 143, 144, 147, 149, 151 and 155 of Applicant Affidavit No. 3). The Liquidator is more keen to recovering the money which IRDK has paid to the Applicant amounting approximately RM2.2m pending the decision of the Federal Court rather then to recover the RM95 million declare as profit to the director and shareholder at that material times. 9.8 Because the Liquidator namely Ng Choon Jin refuse to call for a creditor meeting, the Applicant sought to apply to remove him as liquidator and has file a Post Company Winding Up Suit No. WA-28PW-716-12/2019 on 17.12.2019 (page 6 exhibit NCJ-7 in Ng Choon Jin Affidavit No. 2). And after receiving the application to remove the Liquidator, the Liquidator proceed to reject POD filed by the Applicant on 22.12020 on the ground that the Final Award was obtained after the IRDK has been wound up. 9.9 The Applicant disagree because apart from the Final Award the Applicant has provided voluminous document and is of the opinion that the Liquidator does not act fairly and bias towards the Applicant and has proceed to file to reverse and vary the decision of the Liquidator via a Post Company Winding Up Suit No. WA-28PW-88-02/2020 on 12.2.2020. Pending the decision of the High Court to decide to reverse of vary the decision his decision, the Liquidator apply via Post Company Winding Up Suit No. WA-28PW-135-03/2020 on 9.3.2020 to 10 strike out the Applicant application to reverse or vary his decision on the ground that in view that he has rejected the applicant’s POD the Applicant has no locus standi to apply for the reversing and variation of his decision. 9.10 During the course of the proceeding the Applicant discover that the application to appoint Ng Choon Jin as a liquidator was without a locus standi and lack of jurisdiction and has apply to set aside the application to appoint him as a liquidator by way of the Post Company Winding Up Suit No. WA-28PW- 185-06/2020 dated 2.6.2020. 9.11 After filing of the Applicant’s application to strike out the application to appoint Ng Choon Jin as the liquidator including the order to appoint him as liquidator, Ng Choon Jin raised the issue that the Applicant failed to apply to intervene in the action between KW Consult and IRDK and therefore the Applicant has filed an application by way of Post Company Winding Up Suit No. WA-28PW-310-08/2020 date 28.8.2020. Court’s Findings Is Econpile a Stranger 10. I was referred to the case of Re Nor Azah bt Awin; Ex parte Lee Swee Eng [2013] 9 MLJ 223 to support the Respondent’s argument that Econpile is a stranger to KW Consult’s Application and to support their other contentions raised in opposing both Motion PW 185 and Motion PW 310. 11 11. After perusing the said Re Nor Azah bt Awin (supra) which concerned an application which was held to be defective as the Applicant therein failed to apply for leave to intervene in the bankruptcy proceeding before asking for leave to proceed with a suit against the JD pursuant to s 8(1) of the Bankruptcy Act 1967, I find that the decision therein is not applicable to the matter before me as Econpile has on the facts now filed Motion PW 310 to rectify the issues raised by the Respondent in Motion PW 185 in particular the issue of leave to intervene in Post Winding Up No. WA-28PW- 347-08/2018, which is KW Consult’s Application to appoint a Liquidator. Substantive Issues 12. In the circumstances, I will now consider Motion PW 185 and PW 310. 13. On the issue of KW Consult not being a legal entity and lacks jurisdiction as KW Consult’s Application should have been brought by Chow Kong Wah under the name and style of KW Consult, I have examined exhibit NHH-3 in enclosure 2 which is the Business Information Search dated 5.5.2020 done at the Companies Commission of Malaysia (CCM) and find that the said KW Consult is a sole proprietorship owned by one Chong Kong Wah, and that the said exhibit clearly reflects that the status of KW Consult as “Expired” on 3.7.2018. 12 14. I hold that in the absence of any specific rules with regards applications by persons carrying on business in another name under the Companies (Winding Up) Rules 1972, I adopt the decision, that a party is not able to launch a suit in a trading name as per the decision in Re Meera Hussain bin TM Mohamed Mydin ex.p Syarikat Abu Haniffa [2000] 7 MLJ 483 where Abdul Hamid Mohamad J (as His Lordship then was) in a judgment delivered in Bahasa Malaysia held: “Hujah peguam penghutang penghakiman yang paling bernas ialah bahawa Syarikat Abu Haniffa, sebagai sebuah firma (sebenarnya firma peguam) tidak boleh mendakwa (sue) atas nama firma, walaupun dakwaan boleh dibuat (may be sued) atas nama firma itu. Prinsip ini telah dipakai begitu lama, di England mahu pun di Malaysia — lihat Malaysian High Court Practice (1998) Jilid 1I, ms 5093 perenggan 77.1.8, di mana kes Mason v Mogridge (1892) 8 TLR 805 dan Wee Tiang Kheng & Ors v Ngu Nii Soon & Ors [1989] 1 MLJ 252.” 15. A similar finding was made in Akitek Bersatu v Sempurna Cekap Sdn Bhd [2004] 7 MLJ 45 where Mohd Hishamudin J (as he then was) therein held: “..by naming himself/itself as 'Akitek Bersatu' in the title of the writ and statement of claim, he/ it has not satisfied the Court that he/it has a legal personality to sue. If he/it has no legal personality to sue, then it must follow that he/it has no reasonable cause of action.” 16. Accordingly, the Respondent’s contention that KW Consult’s Application does state that Chow Kong Wah is the sole owner of the business and he is therefore entitled to make the application to 13 appoint the liquidator is therefore in my view entirely misconceived and I reject such argument based on my decision above. 17. For the record, I do not however hold that Order 77 Rule 9 of the Rules of Court 2012 as contended by Econpile’s Counsel is not applicable in the circumstances before me as I hold that the Rules of Court 2012 are not applicable to matters which come within Order 1 rule 2 (2) of the Rules of Court 2012 which states that: “(2) These rules do not have effect in relation to proceedings in respect of which rules have been or may be made under any written law for the specific purpose of such proceedings or in relation to any criminal proceedings.” which is to be read together with Item 2 in the Appendix of the Rules of Court 2012 states as follows: APPENDIX C LIST OF EXEMPTED LAWS (1) (2) (3) No. Proceedings Written Law 1. Bankruptcy proceedings Insolvency Act 1967 [Act 360] 2. Proceedings relating to the Companies Act 2016 [Act winding up of companies and 777] capital reduction 18. I further hold based on the documents produced before this Court that Chow Kong Wah is no longer the said owner of KW Consult, as KW Consult’s business has expired and/or has legally ceased to exist as of 3.7.2018. In the circumstances pursuant to Section 8 of the Registration of Businesses Act 1956, neither Chow Kong Wah 14 or KW Consult has a legal right to initiate the KW Consult’s Application in Post Winding Up No. WA-28PW-347-08/2018. The said Section 8 of the Registration of Businesses Act 1956 reads: “(1) So long as the prescribed particulars in respect of any person who is or who claims to be an associate of any business are not recorded in the register, no right of such person under or arising out of any contract made or entered into by or on behalf of such person in relation to such business shall be enforceable by suit or other legal proceeding either in the name of such business or in his individual name or otherwise.” 19. With regards the further contention that Econpile had accepted the Liquidator’s appointment by filing its POD dated 22.8.2019 and thus is not entitled to file either Motion PW 185 or Motion PW 310, I find that Econpile’s explanation that they had only found out KW Consult’s position recently when an SSM search was made on 5.5.2020 on KW Consult as being acceptable, and thus Motion PW 185 or Motion PW 310 is on that basis prima facie acceptable. 20. I will further refer to the case of Selvam Holdings (Malaysia) Sdn Bhd v Grant Kenyon & Eckhardt Snd Bhd; BSN Commercial Bank Malaysia Bhd & Ors (Interveners) [2000] 3 MLJ 201 where the Court of Appeal applied and reaffirmed the earlier Court of Appeal case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 and held as follows: “Badiaddin's case, we say, extended the scope and extent of the inherent and discretionary jurisdiction of a court with unlimited 15 jurisdiction to set aside an earlier order in the following two circumstances: (1) where the earlier order had contravened a substantive statutory prohibition so as to render the earlier order defective on the ground of illegality or lack of jurisdiction; and (2) where in exceptional cases, the justice of the case requires the court to intervene and correct an earlier order that contains a serious defect and there is a need to have it set aside. Under the aforesaid circumstances, a court is seized with the necessary jurisdiction to entertain an application to set aside the earlier order ex debito justitiae. Expressed in another way there is no need to adopt the appeal procedure nor to file a fresh suit to set aside the defective order. That can be done in the same proceedings where the impeached order was granted and before the same judge or another judge with concurrent jurisdiction.” 21. I also hold that this Court is entitled to hear both Motion PW 185 or Motion PW 310 in making its decision on either of the same as the Court has not only not decided either Motion but that the parties had agreed that it be held together. 22. Consequently, based on my findings above and the decision of the aforementioned cases, I hold that: (i) Econpile need not intervene in KW Consult’s Application in Post Winding Up No. WA-28PW-347-08/2018 as the 15.7.2019 Order was obtained contrary to a substantive statutory prohibition; 16 (ii) the justice of the case entitles this Court to entertain Motion PW 185 or Motion PW 310; (iii) this is not an issue of KW Consult’s Application in Post Winding Up No. WA-28PW-347-08/2018 or the 15.7.2019 Order being a technical error which can be rectified as the same goes to the fundamental issue of KW Consult’s locus and/or the validity of the 15.7.2019 Order; (iv) this Court is therefore not functus officio to determine Motion PW 185 or Motion 310; (v) KW Consult’s Application and the 15.7.2019 Order is invalid as KW Consult’s Application which was filed on 30.8.2018 was done after KW Consult’s business had ceased to exist. 23. I will now address the issue of whether Econpile is a creditor. I have since had the opportunity to examine exhibit NHH-5 in enclosure 7 of Motion PW 185 which had been filed by Econpile on 17.12.2019 and the Notice of Rejection of the POD on 22.1.2020 and 4.2.2020 as found in Exhibit NCJ-1 of the Affidavit in Reply at enclosure 4 of Motion PW 310. For the record, the said reference to exhibit NHH-5 in enclosure 7 of Motion PW 185 was made in accordance with the Notice of Intention to use an Affidavit filed in enclosure 5 in Motion PW 310. 24. The said Notice of Rejection of the POD on 22.1.2020 and 4.2.2020 had stated that Econpile’s POD had been rejected as the basis of the same was an Order obtained by Econpile post liquidation. 25. Due to this Court’s decision that KW Consult’s Application and the 15.7.2019 Order is invalid, the issue of the POD and the 17 subsequent rejection thereof of the said POD should no longer be an issue before this Court as any matters conducted by the Liquidator post the invalid 15.7.2019 Order are therefore invalid from the date of the said 15.7.2019 Order. Thus, the question of whether Econpile is a creditor of the Respondent is now a non-issue as Econpile’s Ex Parte Arbitration Award dated 5.10.2018 against the Respondent company and the subsequent Court Order dated 21.12.2018 given by the Kuala Lumpur High Court vide WA- 24C(ARB)-45-11/2018 continues to be valid and enforceable against the Respondent until and unless set aside, which would in effect mean that Econpile is for all intents and purposes a creditor of the Respondent until decided otherwise by another Court of law. 26. I will therefore in the circumstances, hereby grant Order In terms of enclosure 1 in Motion PW 310 prayers 1, 2, 3 and 4 with costs of RM7,000 to be paid by KW Consult to Econpile and dismiss Motion PW 185 with costs of RM5,000 to be paid by Econpile to KW Consult, as the same is now academic in light of my decision in Motion PW 310. Dated: 17th day of January 2021 sgd. NADZARIN WOK NORDIN JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT 18 Parties: Lam Wai Loon, Paul Lee and Amy Hiew Kar Yi for the Applicants in both Motions [Messrs TG Lee & Associates] Barvina Punnusamy and Edwin Raj for the Respondents of both Motions [Messrs Jayadeep Hari & Jamil] 19