WA-22M-1051-12/2019 (Mahkamah Tinggi)

WA-22M-1051-12/2019 (Mahkamah Tinggi)

The 1st Defendant's appeal was invalid because after the winding-up only the liquidator had statutory authority to institute or continue proceedings; the Liquidator's letter purporting to grant a sanction and delegate that power to a contributory was invalid; the court will not grant retrospective validation where the liquidator expressly limited the sanction to the letter date and where there is an unexplained delay; the 2nd and 3rd Defendants' individual appeals remain unaffected.

Citation
WA-22M-1051-12/2019 (Mahkamah Tinggi)
Parties
Plaintiff: Small Medium Enterprise Development Bank Malaysia Berhad; 1st Defendant (company): Pekan Legasi Sdn Bhd; 2nd Defendant (contributory): Suffian Afendi bin Ahmad Apandi; 3rd Defendant (contributory): Saifful Azhar bin Sabaruddin
Court
High Court
Jurisdiction
Malaysia
Judgment Date
28 April 2022
Case Number
WA-22M-1051-12/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Commercial (winding Up/appeal) / Interlocutory Applications: Strike Out Application and Application for Retrospective Sanction (nunc Pro Tunc)
Outcome
1st Defendant's appeal struck out as invalid; Plaintiff's strike-out application allowed in part; 1st Defendant's application for retrospective sanction dismissed; 2nd and 3rd Defendants' appeal to proceed.
Legal Topics
Liquidator Powers, Sanction to Contributory, Locus Standi, Nunc Pro Tunc Leave, Striking Out Appeals
Source Language
Malay/English
Company Law Insolvency Law Civil Procedure Appeal Procedure Winding Up Liquidator Powers Sanction to Contributory Locus Standi +2 more

Case Brief

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Parties

Small Medium Enterprise Development Bank Malaysia Berhad

Plaintiff

Pekan Legasi Sdn Bhd

1st Defendant (company)

Suffian Afendi bin Ahmad Apandi

2nd Defendant (contributory)

Saifful Azhar bin Sabaruddin

3rd Defendant (contributory)

Procedural Posture

Civil Commercial (winding Up/appeal) / Interlocutory Applications: Strike Out Application and Application for Retrospective Sanction (nunc Pro Tunc)

Legal Issues

  1. 1 Whether the 1st Defendant had locus standi to appeal after being wound-up
  2. 2 Whether the liquidator's sanction to a contributory to pursue the 1st Defendant's appeal was valid
  3. 3 Whether any sanction should be given retrospective effect (nunc pro tunc)

Ratio Decidendi

The 1st Defendant's appeal was invalid because after the winding-up only the liquidator had statutory authority to institute or continue proceedings; the Liquidator's letter purporting to grant a sanction and delegate that power to a contributory was invalid; the court will not grant retrospective validation where the liquidator expressly limited the sanction to the letter date and where there is an unexplained delay; the 2nd and 3rd Defendants' individual appeals remain unaffected.

Court Disposition

1st Defendant's appeal struck out as invalid; Plaintiff's strike-out application allowed in part; 1st Defendant's application for retrospective sanction dismissed; 2nd and 3rd Defendants' appeal to proceed.

Orders

  • Dismiss the 1st Defendant’s Application in Enclosure 29, with costs.
  • Allow the Plaintiff’s Application in Enclosure 27 only to the extent of striking out the 1st Defendant’s appeal against the Registrar’s Decision, with costs.