Malaysia Case Law: Decisions & Judgments

Topic

Pari passu principle

Legal area

Court

12 Jan 2024

1. ) Ter Thian Tin 2. ) Chong Fong Har 3. ) Chang Ngi Mooi 4. ) THC Rice Sdn Bhd 1. ) Chiptar Holdings Sdn Bhd (In Liquidation) 2. ) Ralph ravin Ratnaswamy

Citation

WA-28PW-358-08/2023 (Mahkamah Tinggi)
Court

High Court
Case number

WA-28PW-358-08/2023 (Mahkamah Tinggi)

Leave to commence proceedings in Prayers 3, 4 and 5 was refused: (1) removal application failed for lack of evidence of misconduct or cause and relied on misconceived statutory provision (s450(4) inapplicable); (2) set-off application was contrary to the pari passu principle and s527(10) CA 2016 and Applicants did not show pecuniary loss to justify departure; (3) contempt application lacked a prima facie case of breach of the Oppression Order. Applications dismissed with costs RM15,000.00.
23 Nov 2023

ARENA PERINTIS SDN BHD PEMBINAAN BINA BUMI SDN BHD

Citation

BA-24C-32-04/2023 (Mahkamah Tinggi)
Court

High Court
Case number

BA-24C-32-04/2023 (Mahkamah Tinggi)

The court held that s.30 CIPAA 2012 imposes an independent statutory obligation on the principal to pay the adjudicated amount even where the contractor has been wound up; the Defendant's failure to serve the mandatory s.30(2) notice was fatal to its defence; the Plaintiff proved on the balance of probabilities that money was payable by the Defendant to Maxbuild Resources at the time of the written request; the Defendant failed to discharge its evidential burden to show overpayment or that no monies were payable; and the adjudicated amount includes interest and costs.
10 Nov 2023

BIDARI EHSAN SDN BHD PENCELAH 1. ) KAMARULZAMAN BIN ABD JALIL 2. ) AZMAN BIN ATAN 3. ) MOHD ZAHIR BIN MAMAT@MOHAMAD 4. ) YAP CHOW TAI 5. ) DIONG SHEIH YEE 6. ) LIM HANG TEE 7. ) TUG KAI LUI 8. ) NORA AZLINA BT MOHD NOOR 9. ) ABDUL MALIK BIN

Citation

WA-24NCC-188-03/2023 (Mahkamah Tinggi)
Court

High Court
Case number

WA-24NCC-188-03/2023 (Mahkamah Tinggi)

The Court exercised its supervisory role at the sanction stage and held that although it had jurisdiction to hear the Originating Summons, the proposed scheme could not be sanctioned because it unjustifiably excluded other unsecured creditors in liquidation contrary to the pari passu principle and effected a deprivation of purchasers' proprietary rights by compelling surrender of property or acceptance of inadequate, unrelated sums; accordingly the scheme was not fair and equitable nor one an intelligent and honest member of the class would reasonably approve.
29 Aug 2023

KCJ ENGINEERING SDN BHD ZN SOLUTION BUILDERS SDN BHD

Citation

PA-28PW-6-01/2022 (Mahkamah Tinggi)
Court

High Court
Case number

PA-28PW-6-01/2022 (Mahkamah Tinggi)

KCJ was permitted to intervene but was refused leave to commence the intended suit because the claim is purely monetary and can be adequately dealt with in the liquidation by lodging a proof of debt; granting leave would risk preferential recovery, prejudice other unsecured creditors and contravene the pari passu principle; costs awarded to respondent.
22 Feb 2023

ICE FAR EAST SDN BHD BIAXIS (M) SDN. BHD.

Citation

PA-28PW-40-06/2022 (Mahkamah Tinggi)
Court

High Court
Case number

PA-28PW-40-06/2022 (Mahkamah Tinggi)

Leave refused because the Applicant's claim is purely monetary and can be adequately and appropriately dealt with in the liquidation process by filing a proof of debt; granting leave would risk depleting the company's limited assets, give the Applicant an undue preference over other unsecured creditors and undermine the pari passu principle.
9 Dec 2022

INDUSTRIAL PROPERTY MANAGEMENT SDN BHD BIAXIS (M) SDN BHD

Citation

PA-28PW-31-05/2022 (Mahkamah Tinggi)
Court

High Court
Case number

PA-28PW-31-05/2022 (Mahkamah Tinggi)

Although the applicant demonstrated a prima facie case, the claim was entirely monetary and capable of being adequately dealt with by the liquidation process via proof of debt; granting leave would risk depleting the company's assets, prejudicing other unsecured creditors and contravening the purpose of s.471 and the pari passu principle, therefore leave is refused and costs awarded.
20 Oct 2022

Kelly Khoo Seo Ju for the Applicant [Messrs Malis & Khoo] Ahmad Ezmeel bin Ahmad Tarmizi for Wong Weng Foo the Liquidator (for Kilang Papan Wakaf Tapai Sdn Bhd) (In Creditors’ Voluntary Liquidation) [Messrs Ezmeel & Co.] PENCELAH Lau Kee Se

Citation

WA-28PW-224-05/2022 (Mahkamah Tinggi)
Court

High Court
Case number

WA-28PW-224-05/2022 (Mahkamah Tinggi)

The Court held that the consent/compromise order dated 8.10.2021 admitted the applicant's debt and therefore a fresh proof of debt was not required; WWF's insistence on a new POD and withholding 65% of the claim pending the next dividend exercise was untenable and contrary to the Court Order and applicable insolvency provisions, and the liquidators were directed to pay 65% of the applicant's admitted claim and to call a creditors' meeting as ordered.
26 Sept 2022

NG LAY GUEK Mammoth Empire Land Sdn Bhd (In Liquidation) PIHAK KETIGA Jabatan Insolvensi Malaysia

Citation

PA-28PW-18-03/2022 (Mahkamah Tinggi)
Court

High Court
Case number

PA-28PW-18-03/2022 (Mahkamah Tinggi)

Leave denied because the applicant's claims are primarily monetary and can be adequately dealt with by the winding up court via proof of debt; the applicant failed to show a prima facie case (locus standi not established under s.22C and OS 11 was dismissed), and granting leave would prejudice other creditors and undermine the pari passu distribution principle.