1. ) Michael Kinsuan 2. ) Lok Yee Hsun 3. ) Yunos Bin Amit Likas Bay Precinct Sdn Bhd

1. ) Michael Kinsuan 2. ) Lok Yee Hsun 3. ) Yunos Bin Amit Likas Bay Precinct Sdn Bhd

The Court of Appeal held that contributories need not obtain prior sanction from the liquidator before applying to the court under the Companies Act; the High Court's finding that the application was barred by res judicata was erroneous because the proposed fresh suit relied on new facts and claims not adjudicated in the CIPAA award; special circumstances existed to warrant a temporary stay of the winding‑up order and stay of the liquidator's actions; accordingly the appeal was allowed, the High Court order set aside, leave granted to file the fresh suit and a stay ordered.

Citation
S-02(IM)-1558-08/2021 (Mahkamah Rayuan)
Parties
1st Appellant (contributory/shareholder): Lok Yee Hsun; 2nd Appellant (contributory/shareholder): Yunos bin Malai Amit; 3rd Appellant (contributory/shareholder): Michael Kinsuan; Respondent (creditor/main Contractor): Bina Puri Sdn Bhd; Applicant (company in Liquidation): Likas Bay Precinct Sdn Bhd (In Liquidation); Liquidator: Wong Ching Yong
Court
IM
Jurisdiction
Malaysia
Judgment Date
25 May 2022
Case Number
S-02(IM)-1558-08/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) From High Court Re Leave to Commence Fresh Suit and Stay of Winding‑up Order / Appeal Heard and Allowed; High Court Order Set Aside; Interlocutory Relief Granted
Outcome
Appeal allowed; High Court order dated 10.09.2020 set aside
Legal Topics
Winding Up, Stay of Proceedings, Leave to Commence Fresh Suit, Res Judicata, Impeachment of Arbitral/cipaa Award, Sanction by Liquidator
Source Language
Malay/English
Company Law Insolvency Law Civil Procedure Construction Law Arbitration Enforcement (cipaa) Winding Up Stay of Proceedings Leave to Commence Fresh Suit +3 more

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Parties

Lok Yee Hsun

1st Appellant (contributory/shareholder)

Yunos bin Malai Amit

2nd Appellant (contributory/shareholder)

Michael Kinsuan

3rd Appellant (contributory/shareholder)

Bina Puri Sdn Bhd

Respondent (creditor/main Contractor)

Likas Bay Precinct Sdn Bhd (In Liquidation)

Applicant (company in Liquidation)

Wong Ching Yong

Liquidator

Procedural Posture

Civil Appeal (court of Appeal) From High Court Re Leave to Commence Fresh Suit and Stay of Winding‑up Order / Appeal Heard and Allowed; High Court Order Set Aside; Interlocutory Relief Granted

Legal Issues

  1. 1 Whether contributories must seek sanction from the liquidator before applying to court to commence a fresh suit
  2. 2 Whether the doctrine of res judicata barred the proposed fresh suit
  3. 3 Whether special circumstances existed to justify a stay of the winding‑up order and cessation of liquidator's actions

Ratio Decidendi

The Court of Appeal held that contributories need not obtain prior sanction from the liquidator before applying to the court under the Companies Act; the High Court's finding that the application was barred by res judicata was erroneous because the proposed fresh suit relied on new facts and claims not adjudicated in the CIPAA award; special circumstances existed to warrant a temporary stay of the winding‑up order and stay of the liquidator's actions; accordingly the appeal was allowed, the High Court order set aside, leave granted to file the fresh suit and a stay ordered.

Court Disposition

Appeal allowed; High Court order dated 10.09.2020 set aside

Orders

  • Leave granted to Likas Bay Precinct Sdn Bhd (in liquidation) to file and serve the fresh suit as per proposed statement of claim within 14 days from date of order
  • All proceedings in relation to the winding‑up order dated 26.05.2017 stayed until after disposal of the said fresh suit including any appeals or until further order of the Court