Pamela Ephraim for the Respondent liquidator [Messrs Hakem Arabi & Associates] LAIN-LAIN Conrad Lopez for the Petitioner [Messrs Vinu & Lopez]

Pamela Ephraim for the Respondent liquidator [Messrs Hakem Arabi & Associates] LAIN-LAIN Conrad Lopez for the Petitioner [Messrs Vinu & Lopez]

Payment of RM283,236.17 made by the Liquidator under protest to obtain a developer's required clearance letter was a preferential payment recoverable by the Liquidator and must be refunded to the liquidation estate because the Strata Management Act does not displace the pari passu priority regime under Section 292 of the Companies Act 1965.

Citation
POST WINDING UP APPLICATION NO. WA-28PW-388-10/2020 (Mahkamah Tinggi)
Parties
Petitioner: Menara Bangsar Management Corporation; Respondent: SG & Sons Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 April 2021
Case Number
POST WINDING UP APPLICATION NO. WA-28PW-388-10/2020 (Mahkamah Tinggi)
Procedural Posture
Post Winding Up Application / Judgment
Outcome
Application allowed; payment recoverable and to be returned to the Liquidator; Petitioner to lodge POD and claim to rank as unsecured; costs awarded to Respondent
Legal Topics
Preferential Payment, Liquidator Recovery, Proof of Debt, Pari Passu Distribution, Strata Management Fees, Payment Under Protest
Source Language
Malay/English
Company Law Insolvency Law Strata Management Law Commercial Law Preferential Payment Liquidator Recovery Proof of Debt Pari Passu Distribution +2 more

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Parties

Menara Bangsar Management Corporation

Petitioner

SG & Sons Sdn Bhd

Respondent

Procedural Posture

Post Winding Up Application / Judgment

Legal Issues

  1. 1 Whether payment made under protest to the management corporation is recoverable by the liquidator
  2. 2 Whether the Strata Management Act ousts the priority regime in the Companies Act
  3. 3 Whether the developer's requirement for a clearance letter justified a compelled payment that creates a preferential claim

Ratio Decidendi

Payment of RM283,236.17 made by the Liquidator under protest to obtain a developer's required clearance letter was a preferential payment recoverable by the Liquidator and must be refunded to the liquidation estate because the Strata Management Act does not displace the pari passu priority regime under Section 292 of the Companies Act 1965.

Court Disposition

Application allowed; payment recoverable and to be returned to the Liquidator; Petitioner to lodge POD and claim to rank as unsecured; costs awarded to Respondent

Orders

  • RM283236.17 to be refunded to the Liquidator within 7 days of this order
  • Menara Bangsar Management Corporation to lodge a proof of debt for RM283236.17 within 14 days