XORIX SDN BHD 1. ) SMEB ASSET MANAGEMENT SDN BHD 2. ) ANDREW HENG 3. ) KUMARAKURU A/L JAI PRAKASH KRISHNAN 4. ) AZAHARIE SIMAN

XORIX SDN BHD 1. ) SMEB ASSET MANAGEMENT SDN BHD 2. ) ANDREW HENG 3. ) KUMARAKURU A/L JAI PRAKASH KRISHNAN 4. ) AZAHARIE SIMAN

The court exercised its discretion to grant the ad interim injunction to preserve the status quo pending the inter partes hearing because the plaintiff demonstrated a real risk of irreparable commercial prejudice, provided an undertaking for damages, and preservation was consistent with the court's statutory powers under s.25(2) and the Schedule; delay by the creditor in enforcing judgments reduced any claim of irreparable harm to the defendants.

Citation
WA-22NCC-633-08/2023 (Mahkamah Tinggi)
Parties
Plaintiff: XORIX SDN BHD; 1st Defendant: SMEB ASSET MANAGEMENT SDN BHD; 2nd Defendant: ANDREW HENG; 3rd Defendant: KUMARAKURU A/L JAI PRAKASH KRISHNAN; 4th Defendant: AZAHARIE SIMAN
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 December 2023
Case Number
WA-22NCC-633-08/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Commercial Injunction Application / Inter Partes Hearing of Interlocutory Application; Ad Interim Injunction Granted Pending Disposal of the Interlocutory Application
Outcome
Ad interim injunction granted on terms to preserve status quo pending disposal of the interlocutory application; reasons dated 20 October 2023.
Legal Topics
Ad Interim Injunction, Preservation of Status Quo, Appointment of Receivers and Managers, Enforcement of Judgment in Default, Undertaking as to Damages, Limitation and Merger of Debt, Vesting Order, Debenture Enforcement
Source Language
Malay/English
Commercial Law Civil Procedure Banking and Finance Injunctions Receivers and Managers Ad Interim Injunction Preservation of Status Quo Appointment of Receivers and Managers +5 more

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Parties

XORIX SDN BHD

Plaintiff

SMEB ASSET MANAGEMENT SDN BHD

1st Defendant

ANDREW HENG

2nd Defendant

KUMARAKURU A/L JAI PRAKASH KRISHNAN

3rd Defendant

AZAHARIE SIMAN

4th Defendant

Procedural Posture

Civil Commercial Injunction Application / Inter Partes Hearing of Interlocutory Application; Ad Interim Injunction Granted Pending Disposal of the Interlocutory Application

Legal Issues

  1. 1 Whether appointment of receivers and managers was valid absent prior notice to the company
  2. 2 Whether the debt merged into judgments in default and whether enforcement rights had expired after six years
  3. 3 Whether ad interim injunction should be granted to preserve the status quo pending inter partes hearing

Ratio Decidendi

The court exercised its discretion to grant the ad interim injunction to preserve the status quo pending the inter partes hearing because the plaintiff demonstrated a real risk of irreparable commercial prejudice, provided an undertaking for damages, and preservation was consistent with the court's statutory powers under s.25(2) and the Schedule; delay by the creditor in enforcing judgments reduced any claim of irreparable harm to the defendants.

Court Disposition

Ad interim injunction granted on terms to preserve status quo pending disposal of the interlocutory application; reasons dated 20 October 2023.

Orders

  • 2nd and 3rd Defendants restrained from exercising any power as Receivers and Managers of the Plaintiff pending disposal of the proceeding herein
  • 2nd and 3rd Defendants to return possession and control of the assets and properties of the Plaintiff pending disposal of the proceeding herein