Nimalam Devaraja and Lam Rui Rong for the Applicants [Messrs Skrine] Mark Ho and Eldarious Yong for the Respondent Company [Messrs Chellam & Wong]

Nimalam Devaraja and Lam Rui Rong for the Applicants [Messrs Skrine] Mark Ho and Eldarious Yong for the Respondent Company [Messrs Chellam & Wong]

Leave was granted under s.471 because the assessment of account of profits involves unliquidated damages and a full hearing that cannot be adequately conducted by the liquidator or resolved in the winding-up process; committal proceedings are not execution against the company's estate and may proceed against directors despite s.472(3); filing a proof of debt for costs did not preclude the Applicants from seeking leave to continue separate AOP proceedings; there was a prima facie case and the balance of convenience and justice favored allowing continuation of the proceedings.

Citation
POST WINDING-UP NO. WA-28PW-358-10/2020 COMPANIES WINDING-UP NO. WA-28NCC-459-06/2020 (Mahkamah Tinggi)
Parties
Applicants: Dart Industries Inc. & Tupperware Brands Malaysia Sdn Bhd; Respondent/defendant: CMN International Sdn Bhd (In Liquidation)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 December 2020
Case Number
POST WINDING-UP NO. WA-28PW-358-10/2020 COMPANIES WINDING-UP NO. WA-28NCC-459-06/2020 (Mahkamah Tinggi)
Procedural Posture
Winding Up (companies Act 2016) With Related Intellectual Property Infringement Suits / Interlocutory Application Under S.471 for Leave to Continue Proceedings After Winding Up (assessment of Account of Profits; Appeals; Committal)
Outcome
Application granted in terms for prayers 1, 2 and 3 (leave to proceed granted)
Legal Topics
Leave to Continue Proceedings Under S.471 Companies Act 2016, Assessment of Account of Profits, Proof of Debt Vs Unliquidated Claims, Committal Proceedings Against Directors, Powers of Liquidator, Effect of Winding Up on Execution (s.472(3))
Source Language
Malay/English
Company Law Insolvency Law Intellectual Property Law Civil Procedure Leave to Continue Proceedings Under S.471 Companies Act 2016 Assessment of Account of Profits Proof of Debt Vs Unliquidated Claims Committal Proceedings Against Directors +2 more

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Parties

Dart Industries Inc. & Tupperware Brands Malaysia Sdn Bhd

Applicants

CMN International Sdn Bhd (In Liquidation)

Respondent/defendant

Procedural Posture

Winding Up (companies Act 2016) With Related Intellectual Property Infringement Suits / Interlocutory Application Under S.471 for Leave to Continue Proceedings After Winding Up (assessment of Account of Profits; Appeals; Committal)

Legal Issues

  1. 1 Whether leave under s.471 CA 2016 should be granted to continue assessment of account of profits proceedings and related appeals after winding up
  2. 2 Whether committal proceedings are barred by s.472(3) as execution against the company
  3. 3 Whether filing a proof of debt precludes seeking leave to continue separate proceedings for account of profits

Ratio Decidendi

Leave was granted under s.471 because the assessment of account of profits involves unliquidated damages and a full hearing that cannot be adequately conducted by the liquidator or resolved in the winding-up process; committal proceedings are not execution against the company's estate and may proceed against directors despite s.472(3); filing a proof of debt for costs did not preclude the Applicants from seeking leave to continue separate AOP proceedings; there was a prima facie case and the balance of convenience and justice favored allowing continuation of the proceedings.

Court Disposition

Application granted in terms for prayers 1, 2 and 3 (leave to proceed granted)

Orders

  • Leave granted for the Applicants to continue legal proceedings including assessment of account of profits in High Court Suits WA-22IP-16-04/2017; WA-22IP-17-04/2017; WA-22IP-18-04/2017; WA-22IP-19-04/2017 (the Moorlife Suits)
  • Leave granted to proceed with appeals including Civil Appeal No. W-02(IPCV)(W)-1868-09/2018 (and matters related to other appeals arising from the Suits)