NFC CLOTHIER SDN. BHD. 1. ) LIAN YIT ENGINEERING SDN. BHD. (Dalam Likuidasi) 2. ) YOONG TECK WAH 3. ) Hew Seong Fatt 4. ) Lee Yong Chai

NFC CLOTHIER SDN. BHD. 1. ) LIAN YIT ENGINEERING SDN. BHD. (Dalam Likuidasi) 2. ) YOONG TECK WAH 3. ) Hew Seong Fatt 4. ) Lee Yong Chai

On the evidence the OR and Surendran failed to produce any written application or sanction to show lawful delegation under s.486/ Twelfth Schedule; the Notice of Appointment indicated the firm acted for the judgment creditor not the company; absent satisfactory disclosure the Court concluded the OR had not justified the purported sanction and therefore declared Surendran not entitled to act for D1, disqualified Messrs. Amirtha VS & Co from acting for D1 or its creditors in this suit, set aside the appointment/consent insofar as relied upon and awarded costs against Surendran.

Citation
WA-22NCvC-787-12/2021 (Mahkamah Tinggi)
Parties
Plaintiff: NFC Clothier Sdn Bhd; Defendant 1: Lian Yit Engineering Sdn Bhd (In liquidation); Defendant 2: Yoong Teck Wah; Defendant 3: Hew Seong Fatt; Defendant 4: Lee Yong Chai
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 November 2023
Case Number
WA-22NCvC-787-12/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons / Interlocutory Application (application to Declare Person Not Entitled to Act for Company and to Disqualify Solicitors)
Outcome
Application allowed in part in favour of plaintiff
Legal Topics
Liquidator Powers Under Companies Act 2016, Authority to Grant Sanction to Creditors/contributories, Delegation of Statutory Powers (delegatus Non Potest Delegare), Appointment/disqualification of Solicitors, Costs Against Non Parties
Source Language
Malay/English
Company Law Insolvency Law Civil Procedure Liquidator Powers Under Companies Act 2016 Authority to Grant Sanction to Creditors/contributories Delegation of Statutory Powers (delegatus Non Potest Delegare) Appointment/disqualification of Solicitors Costs Against Non Parties

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Parties

NFC Clothier Sdn Bhd

Plaintiff

Lian Yit Engineering Sdn Bhd (In liquidation)

Defendant 1

Yoong Teck Wah

Defendant 2

Hew Seong Fatt

Defendant 3

Lee Yong Chai

Defendant 4

Procedural Posture

Originating Summons / Interlocutory Application (application to Declare Person Not Entitled to Act for Company and to Disqualify Solicitors)

Legal Issues

  1. 1 Whether the Official Receiver/liquidator may authorize a judgment creditor or his solicitors to act for the wound-up company under s.486 and the Twelfth Schedule of the Companies Act 2016
  2. 2 Whether the Notice of Appointment and purported sanction were properly evidenced and disclosed to the Court
  3. 3 Whether Messrs. Amirtha VS & Co. and Mr Surendran were entitled to act for D1 or should be disqualified/restrained

Ratio Decidendi

On the evidence the OR and Surendran failed to produce any written application or sanction to show lawful delegation under s.486/ Twelfth Schedule; the Notice of Appointment indicated the firm acted for the judgment creditor not the company; absent satisfactory disclosure the Court concluded the OR had not justified the purported sanction and therefore declared Surendran not entitled to act for D1, disqualified Messrs. Amirtha VS & Co from acting for D1 or its creditors in this suit, set aside the appointment/consent insofar as relied upon and awarded costs against Surendran.

Court Disposition

Application allowed in part in favour of plaintiff

Orders

  • Declaration that Surendran a/l S. Subramaniam (IC No: 690907-10-6243) is not entitled to act on behalf of the First Defendant (Lian Yit Engineering Sdn Bhd) in these proceedings
  • Messrs. Amirtha VS & Co are disqualified and restrained from acting as solicitors for the First Defendant or the creditors of the First Defendant in this suit; its lawyers including Ms Amirtha Valli Sinniah are restrained from acting or advising for D1 in this matter