MANSION PROPERTIES SDN BHD (No. Syarikat: 574618-X) SHAM CHIN YEN (NO. K/P: 720928-07-5006/A2255494) & 15 LAGI

MANSION PROPERTIES SDN BHD (No. Syarikat: 574618-X) SHAM CHIN YEN (NO. K/P: 720928-07-5006/A2255494) & 15 LAGI

An ex parte application under section 368(1) of the Companies Act 2016 is permissible where the statute does not require prior service, the legislative purpose (preserving the status quo and enabling urgent restructuring) supports swift relief, and affected creditors retain the right to intervene and apply to set aside the order; therefore filing an ex parte s368 application without prior service in the circumstances of this case did not constitute abuse of process and did not render the court-sanctioned scheme liable to be set aside.

Citation
02(i)-91-11/2019(P) (Mahkamah Persekutuan)
Parties
Appellant: Mansion Properties Sdn Bhd; Respondents: Sham Chin Yen & Ors
Court
i
Jurisdiction
Malaysia
Judgment Date
25 June 2020
Case Number
02(i)-91-11/2019(P) (Mahkamah Persekutuan)
Procedural Posture
Civil Appeal Concerning Companies Act Scheme of Arrangement / Appeal to the Federal Court From the Court of Appeal (leave Granted on a Point of Law)
Outcome
Appeal allowed
Legal Topics
Scheme of Arrangement, Restraining Order (moratorium), Ex Parte V Inter Partes Procedure, Abuse of Process, Companies Act 2016 Ss366 and 368
Source Language
Malay/English
Company Law Civil Procedure Injunctions Appeals Scheme of Arrangement Restraining Order (moratorium) Ex Parte V Inter Partes Procedure Abuse of Process +1 more

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Parties

Mansion Properties Sdn Bhd

Appellant

Sham Chin Yen & Ors

Respondents

Procedural Posture

Civil Appeal Concerning Companies Act Scheme of Arrangement / Appeal to the Federal Court From the Court of Appeal (leave Granted on a Point of Law)

Legal Issues

  1. 1 Whether applications under sections 366 and 368 of the Companies Act 2016 may be made ex parte
  2. 2 Whether filing an ex parte originating summons under s368 and failing to serve it on creditors is an abuse of process
  3. 3 Whether subsequent service of an ex parte restraining order cures any procedural defect

Ratio Decidendi

An ex parte application under section 368(1) of the Companies Act 2016 is permissible where the statute does not require prior service, the legislative purpose (preserving the status quo and enabling urgent restructuring) supports swift relief, and affected creditors retain the right to intervene and apply to set aside the order; therefore filing an ex parte s368 application without prior service in the circumstances of this case did not constitute abuse of process and did not render the court-sanctioned scheme liable to be set aside.

Court Disposition

Appeal allowed

Orders

  • High Court orders reinstated
  • Court of Appeal decision set aside