Venka Arun for the Applicants in Motion 184 [Messrs. Ven & Associates]

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) POST WINDING-UP NO.: WA-28PW-184-02/2019 In the matter of Winding Up Order dated 29.3.3018 against Puncak Seputih Sdn Bhd (Company No: 650391-U) And In the Matter of Sections 472 and 541 Companies Act 2016 And In the matter of Rule 7 of the Winding Up Rules 1971 And In the matter of Dato Heng Keng (NRIC No: 47010-01-5435) and Andrew Heng (NRIC No: 750225-71-5051) (Liquidators) RE: PUNCAK SEPUTIH SDN BHD (IN LIQUIDATION) (Company No: 650391-U) DATO HENG JI KENG AND ANDREW HENG …APPLICANTS AND IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) POST WINDING-UP NO.: WA-28PW-702-12/2019 1 1. TAN EE AUN 2. LAI KIM FOH 3. MIMOSA TRAVEL & TOUR SDN BHD 4. ASTANA CONSOLIDATED SDN BHD …APPLICANTS AND PUNCAK SEPUTIH SDN BHD (IN LIQUIDATION) …RESPONDENT (Company No: 650391-U) GROUNDS OF JUDGMENT (Enclosure 1 & 42) 1. There is before this court, Enclosure 1 being a Notice Of Motion (Motion 184) filed by Dato Heng Ji Keng and Andrew Heng, the liquidators (Liquidators) of Puncak Seputeh Sdn Bhd (in liquidation) pursuant to sections 472 and 541 of the Companies Act 2016 (CA 2016) for i. a declaration that the disposition of monies of Puncak Seputih Sdn Bhd (In Liquidation) (Company) by Shahrull bin Abdul, Noraini binti Nanyan and/or Tan Ee Aun, the past and present directors and/or officers of the Company after the presentation of the WUP on 19.12.2017 as follows are void under section 472 CA 2016: a) in paying and/or advancing a sum of RM130,000 of the money of the Company to Mimosa Travel & Tour on 18.1.2018, 30.1.2018 and 31.1.2018; 2 b) in paying and/or advancing a sum of RM11,490 of the money of the Company to Faris Taufeq on 22.1.2018; c) in paying and/or advancing a sum of RM17,600 of the money of the Company to Aman Melia Sdn Bhd; d) in paying and/or advancing a sum of RM61,490 of the money of the Company to Daniel Lai Kim Foh on 24.1.2018, 30.1.2018 and 31.1.2018; e) in paying and/or advancing a sum of RM22,430.23 of the money of the Company to Shahrull bin Abdul on 30.1.2018; f) in paying and/or advancing a sum of RM22,430.25 of the money of the Company to Noraini binti Nanyan on 30.1.2018; g) in paying and/or advancing a sum of RM30,000 of the money of the Company to Tan Ee Aun on 30.1.2018 ii. a declaration that Shahrull bin Abdul, Noraini binti Nanyan and/or Tan Ee Aun, the past and present directors and/or officers of the Company are liable and accountable to the Company for: a) wrongfully retaining a sum of RM76,000 of rental collection (inclusive of deposits) for the property bearing address at 61-G, Jalan Cecawi 6/33, Section 6 3 Kota Damansara, 47810 Petaling Jaya, Selangor DE after the presentation of the WUP on 19.12.2017 on the Company; b) wrongfully retaining motor vehicles bearing registration nos. VAA6636, RP3660, MCV 3660, CDU 3666, VAB 6333, BNS 5939, WSB 6189, WA3660S, WA3383T, WB 3366H, WB 3336H, WB1194T, BNS 8631, WC8316R, WC36660Y, WMW2236, WNM3226 AND WMG 3226. iii. an order that Shahrull bin Abdul , Noraini binti Nanyan and/or Tan Ee Aun do jointly and severally pay to the Company or the Liquidators of the Company the abovementioned sums amounting to RM371,440.50 as listed in para 1 and 2 (a) above and/or any other amount which this court deems fit and proper, together with interest at the rate of 5% p.a from 19.12.2017 until date of full payment iv. an order that Shahrull bin Abdul, Noraini binti Nanyan and/or Tan Ee Aun return and/or restore to the Company and /or the Lquidators of the Company all the said motor vehicles to a premises to be determined by the Liquidators within 1 week from the date of this order at the director’s own costs v. the costs of this application shall be borne by Shahrull bin Abdu , Noraini binti Nanyan and/or Tan Ee Aun jointly and severally and to be paid to the Liquidators of the Company 4 vi. damages to be assessed by this court 2. There is also an application by the Respondent to validate the aforesaid transactions pursuant to sections. 472 of the Companies Act 2016 vide WA-28PW-702-12/2019 (Validation Application) and of which I had on 2.3.2020 heard both these matters together. Grounds of Application 3. Motion 184 is based on the following grounds:- i. the date of the presentation of the Winding Up Petition (Petition) was on 19.12.2017; ii. the directors of the Company and Tan Ee Aun authorized and made payments from the Company after the date of the presentation of the Petition in contravention of section 472 and 541(1) Companies Act 2016. The directors and Tan Ee Aun have committed and/or guilty of misfeasance and/or acted in breach of their trust and/or duty to the Company; iii. Tan Ee Aun, although not a director since 16.5.2014, was the compulsory signatory of the Company’s RHB Bank current account no.21438900052828 (Account) and the beneficiary and shadow director of the Company; iv. the Liquidators are unable to verify the purpose of the various payments out of the said Account; 5 v. such payments amount to void dispositions of the Company’s property because they were made after the presentation of the WUP and/or also amount to undue preference over the Company’s creditors; vi. a tenancy agreement was entered into after the presentation of the Petition and of which rentals and deposits were collected from January until July 2018 from the tenant. However, such collections were never deposited into the said Account and amount to misapplication and/or wrongful retention of the Company’s funds and undue preference over the creditors of the Company; vii. the 19 motor vehicles were never delivered to the Liquidators despite being requested to do so and such retention is wrongful. 4. Motion 702 seeks to validate inter alia the following: i. the payment of RM130,000 to Mimosa Travel & Tour being payments for travel and rental expenses for staff and business; ii. the payment of RM17,600 to Aman Melia Sdn Bhd being return of advancements given to Aman Melia by the Respondent; iii. the payment of RM22,430.25 to Shahrull bin Abdul being directors salary; 6 iv. the payment of RM22,430.25 to Shahrull bin Abdul being directors salary; v. the payment of RM61,490 to Daniel Lai Kim Foh which were used to pay Faris Taufeq (Faris) for a loan of the property known as Unit S-10-15 Pelangi Sentral (Property) which is owned by the Company and where the borrower is Faris and for the Respondents related expenses by way of cash; vi. the payment of RM30,000 to Tan Ee Aun which was used to pay the Company’s workers and for other related expenses. 5. The Liquidator had affirmed on 10.9.2020 vide an Applicants Supplementary Affidavit at enclosure 32 of Motion 184 (Enclosure 32 Affidavit), stating that the Liquidators were only alerted to the existence of a 2nd company’s account no. 21211600090339 with RHB Bank (Company Account 2) on or about 2.1.2020 when it was first mentioned in Dato Tan’s Supplementary Affidavit affirmed on 2.1.2020, and that the Liquidators, after writing to the Bank thereafter and obtaining the bank statements thereto, were unable to discern 8 transactions amounting to RM113,500 from January to March 2018 being RM40,000 to Mimosa on 28.3.2018, Dato Tan on 27.3.2018 for RM30,000, Lai Kim Foh on 29.3.2018 for RM12,000 and Shahrul bin Abdul Latif for RM RM31,500 between 15.1.2018 and 27.3.2018. In this regard it was averred that the purpose of the transactions cannot be verified and ascertained from the Company’s books and records and that the sum of RM12,000 to Lai was purportedly for ‘staff advance’ but there is no record in the Company 7 to prove the same, and that the alleged ‘staff advance’ was never made part of Motion 702 i.e the Validation order application. Brief Background Facts 6. The Company was involved in the construction business and is involved in several construction projects among which is the MRT Project. 7. The directors of the Company at the time of the Petition are Shahrull bin Abdul, Noraini binti Nanyan. The 1st Respondent, Tan Ee Aun (Dato Tan) was a director of the Company from May 2013 to May 2014. 8. The Company was wound up on 29.3.2018 wherein the Liquidators, Dato Heng Ji Keng and Andrew Heng were appointed as Liquidators of the Company. 9. No Statement of Affairs had been filed by the directors of the Company. Applicant / Liqudiators Submissions under Motion 184 10. At the material time of the presentation of the Petition, the present directors of the Company were Shahrull bin Abdul (Shahrull), Noraini binti Nanyan (Noraini). Dato Tan was a past director from 2.5.2013 to 16.1.2014. 8 11. The Liquidators were informed by one Mohd Azhari that the said Dato Tan is the beneficiary and shadow director of the Company and that the named directors are merely the employees of Dato Tan [see para 10 AIS]. 12. Various notices were sent to the directors and secretaries of the Company requesting them to submit a Statement Of Affairs (SOA) and to surrender all books and records, however they failed, neglected and refused to do the same. 13. Whilst preparing the Preliminary Report, the Liquidators discovered evidence of misfeasance and irregularities by the Respondents inter alia void disposition and wrongful retention of the Company’s properties. 14. It was submitted by the Liquidators that the payment to Aman Melia Sdn Bhd (Aman Melia) for RM17,600 which was made via online fund transfer no.2914 on 23.1.2018 was, upon investigation by the Applicants, found to be suspect as: a) Aman Melia shares the same director as the Company namely Shahrull and Noraini; b) based on the Suruhanjaya Syarikat Malaysia (SSM) search, Aman Melia has changed its name to Puncak Seputih Sdn Bhd; c) there is no proof of any books or records of the Company which shows any business dealings with Aman Melia 9 Dato Tan’s Submissions in Motion 184 15. Dato Tan submits that whether a disposition of property belonging to a Company after the presentation of the Petition should be validated is subject to the particular facts and circumstances of each case and that the Validation Application can be made at any time after the Winding Up. 16. Dato Tan contends that various payments to the contractors were done in cash terms by him after receiving the sum of RM30,000 from the Company on 30.1.2018 for the purposes of paying the expenses for the Company’s ongoing construction projects which was paid from the Account no.21438900052828 , after which Dato Tan had transferred the same to his Citibank Account. 17. The payments were then made to the following by Dato Tan:- i. Lim Chein Shiang, for RM12,100.00 on 31.1.2018; ii. Lim Cheng Chin the construction or site project manager for RM3,000 on 1.2.2018 and another RM13,000 on 8.2.2018. 18. All of the above payments are alleged to have been made to the Company for the use and benefit of the Company as well as for the Company’s day to day running of its business and was made bona fide and in the ordinary course of business. It is contended by Dato Tan that such payments should thus be validated. 10 19. Dato Tan further submits that Aman Melia, was actually an investment vehicle which provided funding for the Company and had been advancing or providing funds from as far back as October 2017 to the Company even before the WUP had been presented. These payments are said to be found and can be seen as follows:- No. Clearance Cheque/ Recipient Amount(RM) Serial No. 1. 18-Jan-18 3593 Mimosa Travel & 10,000.00 Tour 2. 22-Jan-18 139 Faris Taufeq 11,490.00 3. 23-Jan-18 4914 Aman Melia Sdn 17,600.00 Bhd 4. 24-Jan-18 5393 Daniel Lai Kim 11,490.00 Foh 5. 30-Jan-18 8153 Shahrul Bin Abdul 22,430.25 6. 30-Jan-18 8166 Mimosa Travel & 100,000.00 Tour 7. 30-Jan-18 8173 Noraini Binti 22,430.25 Nanyan 8. 30-Jan-18 8190 Daniel Lai Kim 30,000.00 Foh 9. 30-Jan-18 8196 Tan Ee Aun 30,000.00 10. 31-Jan-18 8195 Daniel Lai Kim 20,000.00 Foh 11. 31-Jan-18 8293 Mimosa Travel & 20,000.00 Tour Total 295,440.50 11 20. It is also alleged that the Company had been making repayments on 16.8.2017, 71.8.2017 and 1.12.2017 i.e even before the Petition was presented and referred to the said RHB Bank Statements as proof thereof. 21. Dato Tan further alleges that the Liquidators are only picking certain transactions or dispositions which were made by the Company and cited the payment to Aman Melia on 2.1.2018 for RM8,000 which the Liquidators had not seeked to invalidate this transaction. 22. As for Mimosa Travel & Tours Sdn Bhd (Mimosa), Dato Tan submits that this is a private limited company with its primary business of renting and leasing passenger cars and to carry out travel agency activities and that Mimosa was engaged by the Company to manage and maintain the Company’s cars as well as appointed to ensure that the car loans are paid for. Mimosa had, it is alleged, also provided cars which belong either to the Company or Mimosa to ferry the Company’s workers or for business purposes, and that the Company had been making payments to Mimosa even before the WUP was presented as can be seen from the bank statements. Dato Tan had for this referred to the Affidavit of Norhayati binti Nordin, a director of Mimosa who had also referred to these transactions and where the said Norhayati had stated that the payments of Rm130,000 made by the Company are for the services rendered by Mimosa which are for management, maintenance and payment of loan for cars so as to avoid the cars from being repossessed by the financiers. 12 23. Here again it is submitted by Dato Tan that the Liquidators are picking certain transactions or dispositions made by the Company whilst others such as the payments made to Mimosa on 26.12.2017 and 27.12.2017 respectively are not being seeked by the liquidators to invalidate those transactions. Submissions by the other Respondents 24. Noraini binti Nayan on the other hand, had at her Statutory Declaration affirmed on 4.10.2019 (Noraini’s SD) found at exhibit A- 13 of Applicant’s (Liquidators) Affidavit In Reply (3) at enclosure 13 stated inter alia that; i. she and one Shahrull bin Abdul Latif were directors of the Company but that Dato Tan was the real person in control of the Company and the said directors were never involved in the decision making of the Company ii. that Shahrull was in fact the driver for Dato Tan, her net salary was RM5,500 of which from her recorded salary of RM22,430.50 which is transferred to her RHB account no 1- 12582-000-1165-2 (Account 1) she will then transfer RM17,5000 to her RHB Bank Account No . 1-18016-0006673-6 (Account 2) to Dato Tan and/or his company Peramah Ehsan Sdn Bhd and/or to any nominee as instructed by Dato Tan; iii. she believed that there were similar arrangements with Shahrul iv. Mimosa was only incorporated in 2017, the Company never engaged Mimosa nor does Mimosa have any vehicles registered under its name 13 v. Dato Tan was only person in charge of finances of the Company and all payments were to be approved by him in relation to the Company’s account and that he we the ‘compulsory signature’ to the company’s accounts 25. There were before this Court in Motion 184 and Motion 702 also 2 affidavits filed by a director of Mimosa Sdn Bhd, one Norhayati binti Nordin (Norhayati) affirmed on 22.10.2019 and 16.10.2020 respectively at enclosures 14 and 37 in Motion 184 as well as in Motion 702 affirmed on 12.12.2019 and 30.1.2020 at enclosures 5 and 12 respectively. Here the said Norhayati had affirmed that: a) Mimosa was engaged by the Company to maintain vehicles belonging to the Company and to pay off the car loans for the vehicles of the Company b) the sum of RM40,000 made by the Company to Mimosa was used to maintain vehicles belonging to the Company and to pay off the car loans for the vehicles of the Company and was therefore made in the ordinary course of the Company’s business 26. As for the payment to Lai Kim Foh (Lai), the 2nd Respondent in Motion 702, Lai had averred in his affidavit affirmed on 19.8.2019 in enclosure 11 of Motion 184 that the sum of RM11,490 made to him on 24.1.2018 was for the purpose of paying into the loan account of the Property registered under the name of the Company of which the borrower is a third party known as Faris Taufeq (Faris) and that he had taken the said cash money and directly deposited the sane into the bank for the said loan after the initial payment made by 14 Faris was rejected as shown in a bank slip marked exhibit LFK-1. Lai had further in the same affidavit averred that the sums he received on 30.1.2018 and 31.12018 were for the payments of the day to day running of the business of the Company including payments to contractors and workers. 27. Lai had also in response to the Liquidators Enclosure 32 Affidavit, also averred in his affidavits affirmed on 19.8.2019 and 28.9.2020 in enclosures 11 and 33 in Motion 184 respectively that the RM12,000 made to Lai on 29.3.2018 by the Company was bona fide and in the ordinary course of business as seen in exhibit LFK-2 of enclosure 11 which shows that the amount received was for staff advancement and contractors as follows: i. on 29.3.2018 to Muhammad Luqman, Rosmah binti Yusof, Teoh Yong Kee, Norismazila, Noraini binti Nanyan, Ahmad Syawali, Ng Chan Hon being the Company’s staff respectively for RM1,000 each; ii. on 30.3.2018 to Chong Ziyong and Lim Cheng Chin respectively for RM1,5000 each who are the Company’s contractors working on the RET Project; and iii. that he had kept the balance of RM2000 as his salary as the finance manager of the Company 28. Lai had also in his affidavit affirmed on 12.12.2019 at enclosure 4 of Motion 702 averred that the Company owned the Property and exhibited a Sale & purchase agreement dated 15.8.2011 and a facility agreement between Faris and HSBC Bank Malaysia dated 26.9.2011 in exhibit LKF-2 as proof of the Company’s ownership of 15 the Property and the loan taken in the name of Faris to finance the purchase of the Property. Courts Findings 29. It was submitted that the directors of the Company including the alleged shadow director, Dato Tan ought not to be heard as they have acted contrary to sections 484 and 536 of the Companies Act 2016. Section 484 of the Companies Act 2016 is as follows:- 1) A statement as to the affairs of the company as at the date of the winding up order showing: (a) the particulars of its assets, debts and liabilities; (b) the names and addresses of its creditors; (c) the securities held by the creditors respectively; (d) the dates when the securities were respectively given; and (e)such further information as is prescribed or as the liquidator requires,shall be made by one or more persons in subsection (2) and verified in the manner as may be determined by the Registrar and submitted to the liquidator. (2) The statement in subsection (1) shall be made and submitted by one or more of the persons who are at the date of the winding up order, the directors and by the secretary of the company, or by any of the following persons as the liquidator may require, (3) The statement in subsection (1) shall be submitted within fourteen days from the date of the winding up order or within such extended time as the liquidator or the Court for special reasons specified. 16 30. Whilst section 536 of the Companies Act 2016 reads: “1) Every person who, is or was an officer or a contributory of a company which is being wound up, commits an offence if he: (a) does not disclose to the liquidator all the property of the company, and how and to whom and for what consideration and when the company disposed of any part of the property of the company, except such part as has been disposed of in the ordinary way of the business of the company; (b) does not deliver up to the liquidator, whether or not being directed to do so by the liquidator: (i) all the movable and immovable property of the company in his custody or under his control and which he is required by law to deliver up; or (ii) all books and papers in his custody or under his control belonging to the company and which he is required by law to deliver up; (c) within twelve months before the commencement of the winding up or at any time after the commencement: (i) has concealed any part of the property of the company to the value of fifty ringgit or upwards, or has concealed any debt due to or from the company; (ii) has fraudulently removed any part of the property of the company to the value of fifty ringgit or upwards; (iii) has concealed, destroyed, mutilated or falsified, or has been privy to the concealment, destruction, mutilation or falsification of, any book or paper affecting or relating to the property or affairs of the company; 17 (iv) has made or has been privy to the making of any false entry in any book or paper affecting or relating to the property or affairs of the company; (v) has fraudulently parted with, altered or made any omission in, or has been privy to fraudulent parting with, altering or making any omission in, any document affecting or relating to the property or affairs of the company; (vi) by any false representation or other fraud, has obtained any property for or on behalf of the company on credit which the company has not subsequently paid for; (vii) has obtained on credit, for or on behalf of the company, under the false pretence that the company is carrying on its business, any property which the company has not subsequently paid for; or (viii) has pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for, unless the pawning, pledging or disposing was in the ordinary way of the business of the company; (d) makes any material omission in any statement relating to the affairs of the company; (e) fails to inform the liquidator of a false debt within thirty days from the date he knows or believes that the false debt has been proved by any person; (f) prevents the production of any book or paper affecting or relating to the property or affairs of the company; (g) within twelve months before the commencement of the winding up or at any time after the commencement, has attempted to account for any part of the property of the company by fictitious losses or expenses; or 18 (h) within twelve months before the commencement of the winding up or at any time after the commencement, has been convicted of false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to the affairs of the company or to the winding up.’ 31. I have read both the aforesaid sections and I do not find it appropriate for this court to shut out any party to this matter as the Respondents do have a right in law not only to defend themselves but to be given a chance to be heard as well as ventilate whatever issues there maybe as a result of the applications herein and to enable this Court to properly evaluate all necessary material evidence before it makes a decision hereto. 32. I now come to the substantive matter before me being sections 472 & 541 Companies Act 2016. Section 472(1)of the Companies Act 2016 provides that: “(1) Any disposition of the property of the company, other than an exempt disposition, including any transfer of shares or alteration in the status of the members of the company made after the presentation of the winding up petition shall, unless the Court otherwise orders, be void.” Section 541of the Companies Act 2016 reads (1) If in the course of winding up it appears that: (a) any person who has taken part in the formation or promotion of the company; or 19 (b) any past or present liquidator or officer, has misapplied or retained or become liable or accountable for any money or property of the company or been guilty of any misfeasance or breach of trust or duty in relation to the company, the Court may, on the application of the liquidator or of any creditor or contributory examine into the conduct of that person, liquidator or officer and compel him to repay or restore the money or property or any part of the money with interest at such rate as the Court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust or duty as the Court thinks just. (2) This section shall extend and apply to and in respect of the receipt of any money or property by any officer of the company during the two years preceding the commencement of the winding up whether by way of salary or otherwise which appears to the Court to be unfair or unjust to other members of the company. 33. As for Motion 702, I am applying and adopting the decision of the Federal Court in Wong Wee Kheong & Anor v Daya Bersama Sdn Bhd & Other Appeals [2013] 3 CLJ 969 where the Federal Court had affirmed that a validation order could be considered even after a winding up order has been granted based on two broad considerations, namely, (a) if the transaction(s) are beneficial to the general body of creditors; or (b) if it was just and fair to allow the transaction(s) with particular regard to the good and honest intention of the persons concerned. 34. Hence premised on this Court’s decision that a validation order could be considered even after a winding up order has been 20 granted, I will now refer to Motion 184 where it was argued by the Liquidators in Motion 184 herein that a total of RM295,440.50 was withdrawn from the Company’s Account for the period between the presentation of the Petition and the Winding Up Order, and that these monies are the Company’s property pursuant to the CA 2016 and that there was no validation order pursuant to sec 472(1) Companies Act obtained for such payments and therefore these payments amount to void dispositions. 35. A reference to the Company’s bank statements of the said Account together with the Applicants letter dated 7.5.2018 to the RHB Bank at exhibit A-4 of the Applicants Affidavit In Support at enclosure 2, shows that 9 transactions beginning the 18.1.2018 to 31.1.2018 had been made out by cheques to various payees totalling RM295,440.50. Payment to Dato Tan 36. I will firstly deal with the payment to Dato Tan. Here I have examined RHB Account no. 21438900052828 which can be found at exhibit TEA-2 of enclosure 3 page 16 and Exhibit TEA-5 of enclosure 10 page 17, which shows a sum of RM30,000 being credited / paid into the said account on 30.1.2018 and thereafter the transfer of RM30,000 to Citibank on 31.1.2018, which Dato Tan has contended as being made for various payments to the contractors which were done in cash terms by him after receiving the sum of RM30,000 from the Respondent company on 30.1.2018 for the purposes of paying the expenses for the Respondent’s ongoing construction projects. 21 37. I find that the explanation given by Dato Tan in his Affidavit at enclosure 10 does not explain who Lim Chein Shiang is, nor does it state for what purpose such payment to the said Lim Chein Shiang and/or Lim Cheng Chin were made for either, save for a general averment by Dato Tan that it was for expenses for the Respondent’s ongoing construction projects and that for Lim Cheng Chin it was payment in cash terms to him as a contractor for the MRT Project which I find are not supported by any credible or other corroborating evidence before this court other than the said Bank statements which only evidence payment being made to the said individuals. I am therefore unable to validate these claims from the available evidence before me and therefore on a balance of probabilities cannot find that they were made for the purposes of paying the expenses for the Respondent’s ongoing construction projects. 38. I have also been referred to a series of payments in the RHB Account no. 21438900052828 which were outlined by the Respondent’s counsel and purportedly showing payments received or to Peramah Ehsan Sdn Bhd from July 2017 to December 2017 and various other individuals totalling 11 in all including cash payments to Dato Tan for the sum of RM30,000 as well during that same period. In this respect the same RHB Account no. 21438900052828 also shows a sum of RM44,000 being credited into the said account by Peramah Ehsan Sdn Bhd via 4 separate transactions from 3.1.2018 to 16.12018. 39. After carefully examining the said evidence in totality, this Court cannot from the said Bank Statement and after examining the said 22 payments which were received and/or paid out identify with any degree of certainty the purpose or reasons for the said payment without any further corroborative documents being presented to it, and find that the said payment of RM30,000 on 30.1.2018 to Dato Tan as not being proven to be made for the purposes as alleged by Dato Tan. 40. This court has noted that in response to the further payment to Dato Tan on 27.3.2018 for RM30,000 as per the Liquidators assertions in the Enclosure 32 Affidavit, Dato Tan had by his affidavit in enclosure 34 of Motion 184 averred that the Company had taken a loan from one Jackie Na Hui Hau (Jackie Na) on or around 26.12.2007 for RM230,000 and that he has been making payments to Jackie Na in January and February 2018 amounting to RM40,000 and on or around 13.2.2018 a sum of RM21,000 to Lai Kim Foh. Dato Tan further avers that a sum of RM30,000 transacted by the Company to him on 27.3.2018 were to reimburse him for the payments made relating to the Company and referred to exhibit TEA-9 thereto as proof thereof. 41. After examining the said RHB bank statement of Dato Tan at exhibit TEA-9 thereto, I have found no evidence whatsoever to corroborate the averments made by Dato Tan in his affidavit in enclosure 34 of Motion 184 as mere averments that he was making payments for or relating to the Company are not corroborated by any documentary evidence. 23 42. I thus hold that the said payment to Dato Tan of RM30,000 on 30.1.2018 and on 27.3.2018 for RM30,000 as being void transactions. Payment to Aman Melia 43. This Court has thereafter considered the Liquidators contention that the payment to Aman Melia Sdn Bhd (Aman Melia) for RM17,600 which was made via online fund transfer no.2914 in 23.1.2018 was, upon investigation by the Liquidators, found to be suspect as: a) Aman Melia shares the same director as the Company namely Shahrull and Noraini; b) based on the SSM search Aman Melia has changed its name to Puncak Seputih Sdn Bhd; c) there is no proof of any books or records of the Company which shows any business dealings with Aman Melia. 44. To this, this Court has once again considered the available evidence before it including but not limited to the SSM Search at exhibit A-5 of the Affidavit In Support in enclosure 2 of Motion 184 and the Respondents reply at Dato Tan’s Affidavit affirmed on 12.12.2019 at exhibit TEA-3 of enclosure 3 and Dato Tan’s Affidavit In Reply, at enclosure 8 both in Motion 702 wherein it was averred that the said sum of RM17,600 was to refund the money’s allegedly advanced to Aman Melia on behalf of the Company and that Aman 24 Melia was an investment vehicle aimed to provide funding for the Company. 45. After carefully examining the said Dato Tan’s Affidavit affirmed on 12.12.2019 at exhibit TEA-3 of enclosure 3 and Dato Tan’s Affidavit In Reply at enclosure 8 both in Motion 702, I have not been able to find any corroborative evidence to the alleged claim by the Respondents therein at paragraphs 11 -13, and that this Court finds that the exhibit TEA-1 referred to does not show the purpose of the funds or that these were repayment of advances from Alam Melia by the Company as alleged by Dato Tan, save that the said exhibit in my view only shows various payments from and to Puncak Seputih, as well as to Aman Melia for the said months of July 2017 to January 2018. 46. I accordingly find that the said sum of RM17,600 paid to Aman Melia on 23.1.2018 as being a void transaction. Payment to Mimosa 47. As for the alleged payment to Mimosa which Dato Tan submits is a private limited company with its primary business of renting and leasing passenger cars and to carry out travel agency activities and that Mimosa was engaged by the Company to manage and maintain the Company’s cars as well as appointed to ensure that the car loans are paid for, this Court had found from the evidence as follows:- 25 Exhibit TEA-2 of enclosure 3 page 16 being the Company’s Account with RHB Account No. 21438900052828 shows payments to Mimosa as follows: i. On 18.1.2018 for RM10,000 ii. On 30.1.2018 for RM100,000 iii. On 31.2018 for RM20,000 48. This court has also seen Norhayati’s affidavits affirmed on 22.10.2019 and 16.10.2020 respectively at enclosures 14 and 37 in Motion 184 as well as in Motion 702 affirmed on 12.12.2019 and 30.1.2020 at enclosures 5 and 12 respectively and find that the averments therein that Mimosa was engaged by the Company to maintain vehicles belonging to the Company and to pay off the car loans for the vehicles of the Company and that the sum of RM40,000 made by the Company to Mimosa was used to maintain vehicles belonging to the Company and was therefore made in the ordinary course of the Company’s business are allegedly supported by exhibit NBN-1 in enclosure 14 of Motion 184 which is, in Norhayati’s own words, “a summary of payment prepared by me listing the payments made by Mimosa for various cars including cars belonging to the Company..” and copies of Mimosa’s RHB bank statements under account no. 21438900060588 for October– December 2017, and January to February 2018 in exhibit NBN-2 thereto. 26 49. It is also observed by this Court that Norhayati in her aforesaid affidavit in enclosure 14 in Motion 184 had averred that there were no invoices issued due to the arrangements that Mimosa has with the Company which were managed by Mimosa, including cars belonging to the Company to ferry workers for the Company’s MRT project. She also avers that Mimosa is still servicing the bank facilities as shown in exhibit NBN-2 being the bank statements of Mimosa and that the cars were currently not in Mimosa’s possession as the cars have been utilised by the Company’s staff and not returned to the Company whilst the cars with registration nos. WSB 6189, WA 3660 S and WA 3383T have been repossessed by the respective financiers. 50. After perusing the exhibits in Norhayati’s affidavits affirmed on 22.10.2019 and 16.10.2020 respectively at enclosures 14 and 37 in Motion 184 as well as in Motion 702 affirmed on 12.12.2019 and 30.1.2020 at enclosures 5 and 12 this Court finds that the weight to be given to the summary of payment prepared by her listing the payments made by Mimosa at exhibit NBN-1 thereof is by itself not an independent document prepared by an accountant or auditor of Mimosa but the same when corroborated by exhibit NBN-2 in enclosure 14 of Motion 184, and the particulars listed therein Mimosa’s bank account with RHB No. 21438900060588 which show at the 3rd column therein under “Recipient Reference” is evidence of payments made by Mimosa in the month of January 2018 for the said cars which the Liquidators assert as being the Company’s cars. 27 51. I therefore hold that the said evidence supports and is on a balance of probabilities, evidence of Mimosa being engaged by the Company to pay off the car loans for the vehicles of the Company but I am unable to find any corroborative evidence that the sum of RM40,000 made by the Company to Mimosa was used to maintain vehicles belonging to the Company as averred by the said Norhayati. 52. I have also taken note of Noraini’s SD and find that her evidence on Mimosa that the Company never engaged Mimosa nor does Mimosa have any vehicles registered under its name cannot be accepted by this Court as she has sworn that she was only a nominal director of the Company and that Dato Tan was the real person in control of the Company and the said directors were never involved in the decision making of the Company. Thus Noraini would not be in the position to know or to testify with regards the position of Mimosa vis a vis the Company. 53. As there is no evidence of any contract exhibited before this court with regards the alleged agreement between Mimosa and the Company but only mere averments, this court cannot hold that that Mimosa was engaged by the Company to manage and maintain the Company’s cars. Surely transactions of this nature should be supported by some evidence of the said services be it in the form of a contract or documentation or some form of contemporaneous documents showing such arrangements between the parties, which this Court has found no such evidence being produced to this court. 28 54. That being the case, the Court is able to only accept the contention that the payments made by the Company to Mimosa were to the extent of the car loans mentioned in the Mimosa’s RHB Statements only. This Court hereby holds that the sums of RM10,000 made to Mimosa on 18.1.2018, RM100,000 on 30.1.2018 and the sum of RM20,000 paid on 31.2018 to Mimosa will only be valid transactions done in the course of business to the extent of the car loans mentioned in the Mimosa’s RHB Statements. There is however no evidence before this Court in the form of any bank statements of Mimosa for the said month of March 2018 to show that the sum of RM40,000 to Mimosa on 28.3.2018 was made for the cars owned by the Company and as such I find that the said RM40,000 paid to Mimosa on 28.3.2018 is a void transaction. 55. As for the cars which were allegedly not in Mimosa’s possession as the cars have been utilised by the Company’s staff and not returned to the Company whilst the cars with registration nos WSB 6189, WA 3660 S and WA 3383T have been repossessed by the respective financiers, I find no evidence of the same before this court and therefore can only infer that the cars are with the Company. I have also not been able to find any evidence of the cars bearing registration nos. CDU 3666, WMW 2236 or WNM 3226 as being part of the evidence before me or that it was particularised in Mimosa’s bank account with RHB No. 21438900060588 at the 3rd column therein under “Recipient Reference”, and thus I am unable to make a finding on the same, but to once again come to an inference that the said cars are with the Company. 29 Payment for Noraini binti Nanyan 56. The payment of RM22,430.25 on 30.1.2018 to Noraini binti Nanyan, which is the subject of the Liquidators Motion under Motion 184, is as evidenced in her RHB account no 1-12582-000-1165-2 (Account 1) as shown in exhibit A-13 of Applicant’s Affidavit In Reply (3) at enclosure 13. 57. From the evidence before me, it is clear from the said record, that from this sum of RM22,430.25, a sum of RM17,500 would then be re transferred by Noraini binti Nanyan to her other RHB Bank Account No. 1-18016-0006673-6 (Account 2) which shows the same amount later being transferred to Dato Tan’s personal account or to Peramah Ehsan Sdn Bhd as seen on previous occasions being 12.10.2017, 29.11.2017, 26.12.2017 and 31.1.2018 respectively as evidenced in exhibit A-13 of Applicant’s Affidavit In Reply (3) at enclosure 13. 58. I have also seen Noraini binti Nayan at her Statutory Declaration affirmed on 4.10.2019 (SD) at exhibit A-13 and find that her SD clearly contradicts the averments of Dato Tan in any of his Affidavits in Motion 170 and that the evidence before this court as seen from Noraini’s SD shows that from her recorded salary of RM22,430.50 which is transferred to her RHB Account No. 1-12582-000-1165-2 (Account 1) she will then transfer RM17,5000 to her RHB Bank Account No. 1-18016-0006673-6 (Account 2) to Dato Tan and/or his company Peramah Ehsan Sdn Bhd and/or to any nominee as instructed by Dato Tan. From this I am then able to infer that her net 30 salary was only RM5,500 which confirms the statement in her said Statutory Declaration. 59. Thus from the evidence before this Court as mentioned above, I thus conclude that the sum of RM22,430.25 paid to Noraini on 30.1.2018 is therefore a void transaction. Payment to Lai Kim Foh 60. As to the Liquidators contentions in the Enclosure 32 Affidavit with regards the Company Account 2 and that the Liquidators, after writing to the Bank thereafter and obtaining the bank statements thereto, were unable to discern 8 transactions amounting to RM113,500 which included the amounts paid to Lai amounting to RM12,000, Lai, the 2nd Respondent in Motion 702, has also averred in his affidavits at Motion 184 which were affirmed on 19.8.2019 and 28.9.2020 in enclosures 11 and 33 respectively that the RM12,000 made to Lai on 29.3.2018 by the Company was bona fide and in the ordinary course of business as seen in exhibit LFK-2 of enclosure 11 which shows that the amount received was for staff advancement and contractors. 61. I have examined this against the list of company’s contractors in the MRT Project and the Company’s staff lists which can be found in exhibit A-2 of the Liquidators Preliminary report dated 14.6.2018, Annexure 30, in enclosure 2 of Motion 184, and find that Lai, Muhammad Luqman, Teoh Yong Kee, Noraini binti Nanyan, Ahmad Syawali and Ng Chan Hon appear as the Company’s staff therein and Norismazila, Chong Zi Yong and Lim Cheng Chin names 31 appearing in the list of staff of the Company at exhibit LKF-5 of enclosure 4 of Motion 702. The only name which this court is unable to verify is that of Rosmah binti Yusof. 62. Thus this Court will not deem these payments made to the said staff as void as this court is of the view that such payments were indeed made to the said employees as staff advancement save for the payments to Rosmah binti Yusof of RM1,000 which is unsupported by any evidence before me. 63. As to Lai’s assertion in his affidavit affirmed on 19.8.2019 in enclosure 11 of Motion 184 that the sum of RM11,490 made to him on 24.1.2018 was purportedly for the purpose of paying into the loan account of the apartment known as Unit S-10-15 Pelangi Sentral registered under the name of the Company of which the borrower is a third party known as Faris and that he had taken the said cash money and directly deposited the sane into the bank for the said loan after the initial payment made by Faris was rejected as shown in a bank slip marked exhibit LFK-1; I have noted that Lai had also in his affidavit affirmed on 12.12.2019 at enclosure 4 of Motion 702 enclosed at exhibit LKF-3, the bank statement of the Company evidencing that on 22.1.2018 a sum of RM11,490 was debited from the Company’s said RHB account no. 21438900052828 and on 24.1.2018 a sum of RM11,490 was then debited again from the company’s bank account. 64. An examination of the Company’s RHB Account No. 21438900052828 which can be found at exhibit TEA-1 of enclosure 3 which shows that on 24.1.2018 the said amount of RM11,490 was 32 made out for the purpose of Pelangi Sentral i.e the Property as seen in the 1st column under the heading “Description”. This evidence is also corroborated by Lai’s bank statements in exhibit LKF-1 and LKF-2 in his Affidavit affirmed on 19.8.2019 at enclosure 11, which shows the sum of RM11,490 being paid/credited to Faris’s account on the same day vide a HSBC bank slip. 65. I have after evaluating the said evidence before me, find that this averment by Lai has on a balance of probabilities been proven to the satisfaction of this Court as being made towards the payment of the said property. 66. This court has also perused the Company’s RHB Account No. 21438900052828 at exhibit TEA-1 of enclosure 3 wherein the payment of RM20,000 on 31.1.2018 is stated as being for ‘workers wages’ as seen in the 1st column under the heading “Description”. Again based on this evidence, this court on a balance of probabilities, is satisfied that such a payment was thus indeed made for the purpose of ‘workers salaries’. 67. With regards the RM30,000 payment made to Lai on 30.1.2018, it is averred by Lai that he had received the payment for the day to day running of the business of the Company including payment to be made to the company’s contractors. I have perused exhibit LKF-2 of Lai’s affidavit affirmed on 19.8.2019 at enclosure 11 which are allegedly a copy of the bank statement and the summary of workers list, whereby this Court has found that neither the said bank statement therein nor the said lists in exhibit LKF-2 as evidencing or corroborating any indication of the payment for the day to day 33 running of the business of the Company including payment to be made to the company’s contractors as alleged by Lai. 68. Thus on the sums of received by Lai on 30.1.2018 for RM30,000, I hold that the same is a void transaction in contravention of the law and that for the RM12,000 made to Lai on 29.3.2018 by the Company that the Liquidators in Enclosure 32 Affidavit, has contended as suspicious, I find that said payment of RM12,000 as being in the interest and for the benefit of the Company save for the RM1,000 payment allegedly to Rosmah binti Yusof. I have also as indicated above found that the payment of RM20,000 on 31.1.2018 was for the benefit of the Company’s workers and that on 24.1.2018 the payment to Lai for RM11,490 were both therefore validly paid out to Lai. Payment to Faris Taufeq 69. I have thus on the reasoning given by me as to why this court has accepted that the monies Lai claims that he had received from the Company and thereafter given the sum amounting to RM11,490.00 to Faris on 22.1.2018 for the purpose of repayment of the loan taken by Faris for the Company’s Property as being substantiated, I hold that the said amount of RM11,490 given to Faris on 22.1.2018 as being for the benefit of the Company and therefore a valid payment. Payment to Shahrull bin Abdul 34 70. I have also not found any evidence to rebut and/or deny the payments made to Shahrull bin Abdul on 30.1.2018 for RM22,430.25 or for the payments made for RM31,500 between 15.1.2018 and 27.3.2018 by the Company or any of the Respondents in Motion 702 and therefore I find, in the absence of any evidence before me to dispute the Liquidators allegations, that the said payment are also void transactions. 71. In enclosure 8 of Motion 184, Dato Tan in his Affidavit In Reply affirmed on 5.7.2019 had averred that the payments to Shahrull and Noraini were for fees and/or salary to the Company directors and had exhibited Shahrull’s payslip at exhibit TEA-2 as proof thereof. I hold that the payslip at exhibit TEA 2 is insufficient to show that Shahrull as a director of the company is entitled to a fee as it is trite that a director is not entitled to any fees unless there can be shown the Company’s articles or constitution has provided for the same. See Wong See Yaw V Bright Packaging Industry Sdn Bhd [2016] 6 CLJ 465 where Mohd Nazlan Ghazalli JC (as he then was) held: “It is apposite that I now state the law applicable to the matter in contention. It is a well-established common law rule in company law which is elementary and uncomplicated, but does not appear to be fully understood in practice by corporations, including even public listed companies. It is this. Directors of a company have no authority to expend on the funds of the company to pay themselves or any one of their number, unless they are authorised for such purpose by the company's constitution in its M&A or the payment is approved by the members of the company (see In Re 35 George Newman And Co[1895] 1 Ch 674). Bowen LJ in Hutton v. West Cork Railway Co (1883) 23 Ch 654 stated as follows: A director is not a servant [ie, employee]. He is a person who is doing business for the company, but not upon ordinary terms. It is not implied from the mere fact that he is a director that he is to have right to be paid for it. In some companies... there is a special provision for the way in which the directors should be paid; in others there is not. If there is a special provision for the way in which they are to be paid, you must look to the special provision to see how to deal with it. But if there is no special provision their payment is in the nature of a gratuity.(emphasis added) [28] A director of a company therefore does not has a right to be remunerated as of right by virtue of his office except as provided by its constitution or approved by its shareholders. In Re Richmond Gate Property Co Ltd [1964] 3 All ER 936, it was held that in the absence of any resolution concerning the amount of directors' remuneration passed pursuant to the articles in general meeting prior to the liquidation of the company, the directors were thus not entitled to any remuneration. 72. I also find that Noraini’s SD where she avers that she and Shahrull are mere nominees and that Shahrull is in fact Dato Tan’s driver is in in this Court’s view more plausible and acceptable bearing in mind the evidence shown by Noraini as to her actual salary and the re transfer of a chunk of her ‘purported salary’ being made to Dato Tan as stated above. 36 73. As to the alleged directors fees, I have also not found any evidence of any minutes of general meeting nor any board resolution showing either of the directors as being entitled to such fee. Such requirement for an approval by way of a general meeting or a board resolution in respect for a directors fees is expressly provided for under section 230(1) of the Companies Act 2016. Re Misappropriation and/or unlawful retention of rental collections 74. I have for this issue examined the letter dated 25.7.2018 at exhibit A-9 of the Liquidators Affidavit affirmed on 20.2.2019 in enclosure 2 of Motion 184 which is a letter from the Liquidators to the tenant of the property bearing address at 61-G, Jalan Cecawi 6/33, Section 6 Kota Damansara, 47810 Petaling Jaya, Selangor Darul Ehsan as well as exhibit A-10 thereto in the same enclosure which exhibited the Tenancy Agreement dated 16.1.2018 for the monthly rental of RM8,000 between the Company and the tenant, one Chong Hon Leong (Tenant) as well as payment vouchers showing rentals made until July 2018 amounting to RM76,000 as rental collection (inclusive of deposits). I have also found only a rebuttal by the Respondents in Motion 702 or directors of the Company with regards the allegation of the rental payments. 75. I have also viewed exhibit TEA-8 in the Supplementary Affidavit of Tan Ee Aun affirmed on 2.1.2020 at enclosure 22 which is the Company’s RHB Statement for account no. 2121160090339 for the sum of RM28,000 on 17.1.2018 allegedly being the deposit paid by the said tenant to the Company and compared the same with exhibit A-10 in enclosure 2 which exhibited the Tenancy Agreement dated 37 16.1.2018 which showed that the Tenant was to pay a security deposit of RM16,000 and a deposit for water and electricity for RM4,000. These payments together with a month rental of RM8,000 in advance would total the sum of RM28,000 as averred to by Tan Ee Aun in respect of the said deposit. 76. It is therefore my view that on a balance of probabilities, there is sufficient evidence on this issue as alleged for this Court to find that there has been a misappropriation and/or unlawful retention of rental collections in respect of the property known as 61-G, Jalan Cecawi 6/33, Section 6 Kota Damansara, 47810 Petaling Jaya, Selangor DE less the rentl deposit of RM28,000 77. In CIMB Bank Bhd v Jaring Communications Sdn Bhd v [2016] MLJU 920; [2017] 4 CLJ 465, Mohd Nazlan Ghazali JC (as he then was) had held, and I am in accord thereto, that: “The law as encapsulated in s. 223 (now sec 472 CA 2016) is clear in that upon the presentation of a winding up petition, a company cannot without the order of the court dispose of its property in whatever form and by whatever means. This is to prevent the improper dissipation of the company's assets before the winding up petition is heard and determined. In the instant case, the winding up petition was presented on 6 November 2014 by the petitioner and as the key director of the company, Dato' Norhisam must surely have been aware that the petition had been presented. Yet he still deemed it proper for various payments be made post the date of the petition, and there is no evidence that any of such payments has been validated by the courts. As such, 38 it is clear that all the payments made after the commencement of winding up were void by virtue of s. 223 of the CA. [45] A transgression of s. 223 of the CA alone is sufficient basis to premise an action against the miscreant director for misfeasance under s. 305, for which the liability of Dato' Norhisam there can be no doubt. Action may thus be taken against him for being responsible for making the void payments (see Re Neath Harbour Smelting and Rolling Works (1887) 56 LT 727).” 78. All in, this court has noted that the Liquidators were informed by one Mohd Azhari that the said Dato Tan is the beneficiary and shadow director of the Company [see para 10 of the Liquidators Affidavit In Support] which is fortified by that fact that all the Respondents were joint signatories of the Account with Dato Tan being the compulsory signature whilst either one of the directors being the other signatory and that Dato Tan was also the approver for all online transactions for the said Account, see Directors Resolution at page 213, exhibit A-3 of the AIS. It is therefore my finding that Dato Tan is from the entire set of facts presented to me, quite clearly the shadow director as well as the puppet master behind the Company and having control of the Company. It would also appear to this Court that he had also tried to orchestrate numerous methods and transactions so as to dispose of the Companies assets and monies as seen by the evidence before this court and thereby deprive the creditors of the Company of the same whereby such actions were also in contravention of the unfair preference rule. 39 79. In Zulpadli & Edham v Inai Offshore & Marine Engineering Sdn Bhd (In Liquidation) [2011] 4 MLJ 161, [2011] 6 CLJ 47 the Court of Appeal had held: “[21] On the facts of the present case, a validation order under s. 223 was the only doable option. But there was no application from the appellant for such an order. Winding-up had commenced against Inai on 29 June 2009, that is, at the time of the presentation of the petition of winding up (see s. 219(2) of the Companies Act 1965). Without an order of validation, that remittance of RM1,400,000 to the appellant on 19 August 2009, which was clearly a disposition of the property of Inai after commencement of winding-up, was void (see Lian Keow Sdn Bhd (in liquidation) & Anor v. Overseas Credit Finance (M) Sdn Bhd & Ors [1988] 1 LNS 44; Kimoyama Elektrik (M) Sdn Bhd v. Metrobilt Construction Sdn Bhd [1990] 2 CLJ 795; [1990] 2 CLJ (Rep) 253; Re Gray's Inn Construction Co Ltd [1980] 1 All ER 814); and In Re Ashmark Limited (in liquidation) 2 IR 10, amongst a host of authorities on s. 223 or equipollent provision). "The disposition rendered void is void at the time it takes place" (see McPherson The Law of Company Liquidation 4th edn, p. 222). [22] Without a charging order or an order of validation, the entire remittance to the appellant was void. The entire remittance must be returned to inai.” 80. This Court is thus in agreement with the Liquidators that the any disposition of the company’s properties after the presentation of a winding up is void. 40 81. In summary I have found in respect of Motion 184 as follows: a) that the said payment to Dato Tan of RM30,000 on 30.1.2018 as being void b) that the said sum of RM17,600 paid to Aman Melia on 23.1.2018 as being a void transaction c) the sums of RM10,000 made to Mimosa on 18.1.2018, RM100,000 on 30.1.2018 and the sum of RM20,000 paid on 31.2018 to Mimosa are only valid transactions done in the course of business to the extent of the car loans mentioned in the Mimosa’s RHB Statements for the month of January 2018 only d) the sum of RM22,430.25 paid to Noraini on 30.1.2018 is therefore a void transaction. e) the sums of received by Lai Kim Foh on 30.1.2018 for RM30,000 is a void transaction but that for the RM12,000 made to Lai on 29.3.2018 by the Company, I find that said payment of RM12,000 as being in the interest and for the benefit of the Company save for the RM1,000 payment allegedly to Rosmah bt Yusof. I have found that the payment of RM20,000 on 31.1.2018 to Lai was for the benefit of the Company’s workers and therefore validly paid out to Lai. f) the said amount of RM11,490 given to Faris on 22.1.2018 as being valid. g) the payment made to Shahrull bin Abdul on 30.1.2018 for RM22,430.25 is a void transaction h) there has been a misappropriation and/or unlawful retention of rental collections (less the deposits) in respect of the property 41 known as 61-G, Jalan Cecawi 6/33, Section 6 Kota Damansara, 47810 Petaling Jaya, Selangor DE 82. I also find that the directors of the Company and the Respondents named being Shahrull, Noraini and Dato Tan are thus guilty of mis feasance and had acted in breach of trust and/or their duty in dealing with the Company’s properties after the presentation of the winding up, and should therefore be held personally liable for such monies and properties which were unlawfully disposed and/or retained, and the directors of the Company and the aforementioned Respondents have failed to prove that the transactions mentioned above are bona fide and conducted in the ordinary course of the Company’s business. 83. I hereby grant order in terms for Motion 184 as per enclosure 1 as follows: i. Prayer 1 (a) save to the extent of the car loans mentioned in the Mimosa’s RHB Statements for the month of January 2018 only. ii. Prayer 1 (c) in paying and/or advancing a sum of RM17,600 of the money of the Company to Aman Melia Sdn Bhd. iii. Prayer 1 (d) for the RM30,000 30.1.2018 made to Lai Kim Foh but that for the RM12,000 made to Lai on 29.3.2018 by the Company only RM1,000 from that payment allegedly made to Rosmah bt Yusof shall be void. 42 iv. Prayer 1 (e) in paying and/or advancing a sum of RM22,430.23 of the money of the Company to Shahrull bin Abdul on 30.1.2018. v. Prayer 1 (f) in paying and/or advancing a sum of RM22,430.25 of the money of the Company to Noraini binti Nanyan on 30.1.2018. vi. Prayer 1 (g) in paying and/or advancing a sum of RM30,000 of the money of the Company to Dato Tan Ee Aun on 30.1.2018. vii. Prayer 2 (a) save for the rental deposit of RM28,000. viii. Prayer 2 (b) in respect of the motor vehicles. ix. Prayer 3 subject to the above orders where applicable x. Prayer 4 xi. Prayer 5 xii. Prayer 6 xiii. Prayer 7 being, I further order that 8 transactions amounting to RM113,500 from January to March 2018 being RM40,000 to Mimosa on 28.3.2018, Dato Tan on 27.3.2018 for RM30,000 and Shahrul bin Abdul Latif for RM31,500 between 15.1.2018 and 27.3.2018 pursuant to the Liquidators Enclosure 32 Affidavit. For Motion 702 84. After examining the case before me as a whole and based on my findings above with regards Motion 184, this Court holds that there is a lack of good faith and honest intention of the persons concerned in making the said payments in respect of Motion 702 and accordingly this court will not make an order to validate the 43 alleged payments made as per the prayers in Motion 702. This Court hereby dismisses Motion 702 with costs. Dated: 23rd November 2020 sgd. NADZARIN WOK NORDIN JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT Parties: Venka Arun for the Applicants in Motion 184 [Messrs. Ven & Associates] Annou Xavier together with Tristan Ng Kien Han for the Applicants in Motion 702 [Messrs Azri, Lee Swee Seng & Co.] 44