Malaysia Case Law

12 Apr 2023

WRP ASIA PACIFIC SDN BHD Dato' Lee Son Hong

Citation

WA-24NCC-25-01/2023 (Mahkamah Tinggi)

Court

High Court

Case number

WA-24NCC-25-01/2023 (Mahkamah Tinggi)

The court granted the Fortuna injunction because triable issues existed as to the representative's authority and the existence/validity of the alleged RM10,000,000 debt (absence of contemporaneous records, auditors' qualified opinions, unidentified signatories and history of defendant's fiduciary breaches), rendering a winding-up petition premature and potentially abusive; the balance of convenience favoured preserving the company's status quo to avoid irreparable commercial harm; accordingly presentation of any winding-up petition based on the statutory notice was restrained until disposal o…

• Fortuna injunction
• Statutory demand
• Winding-up petitions
• Locus standi
• Abuse of process
• Bona fide dispute

27 Sept 2022

1. ) Conweld Engineering Sdn Bhd 2. ) Low Terk Chen 3. ) Low Man Fook 1. ) Goh Swee Boh @ Goh Cheng Kin 2. ) Goh Tze Chien

Citation

W-02(NCC)(W)-849-05/2019 (Mahkamah Rayuan)

Court

NCC

Case number

W-02(NCC)(W)-849-05/2019 (Mahkamah Rayuan)

The Court of Appeal held that Malaysian law continues to recognise the tort of collateral abuse of process as a distinct cause of action and restated its elements (initiation, predominant collateral purpose, and damages). However, on the facts the plaintiffs failed to prove the requisite damage and the second and third plaintiffs lacked locus standi to sue for the tort because they were not parties to the winding-up petition; therefore the plaintiffs' claims failed and the appeal and cross-appeal were dismissed.

• Collateral abuse of process
• Winding-up petitions
• Ex parte interlocutory orders (mareva/pl)
• Res judicata
• Striking out under order 18 r 19 rules of court
• Locus standi

25 Mar 2022

SURREALIST COMMUNITIES (M) SDN BHD PENCELAH 1. ) SCEC GROUP (MALAYSIA) SDN BHD 2. ) CEMERLANG SEJATI SDN BHD 3. ) Fong Cheng Ban 4. ) Aw Siew Fong 5. ) Liew Yoong Theng 6. ) Fong Chee Kang 7. ) Ahmad Khairul Bin Abdul Manan 8. ) Rosliana Bi

Citation

WA-28JM-20-10/2021 (Mahkamah Tinggi)

Court

High Court

Case number

WA-28JM-20-10/2021 (Mahkamah Tinggi)

The OS for judicial management was dismissed because the applicant failed to establish a bona fide, properly supported rescue proposal and did not make full and frank disclosure; the application was filed to frustrate a winding-up action immediately after failing to obtain an injunction; key audited financials and competent insolvency-prepared proposal were absent; the principal creditor (R1) holding the majority of the debt opposed the proposal making it unrealistic any scheme could obtain the required creditor approval, and the court will not act in vain.

• Judicial management
• Appointment of judicial manager
• Cipaa adjudication and setting aside
• Winding-up petitions
• Bona fide requirement
• Disclosure obligations

BUILDCON-CIMAC0 CONCRETE SDN BHD V FILOTEX TRADING SDN BHD

Citation

BUILDCON-CIMAC0 CONCRETE SDN BHD V FILOTEX TRADING SDN BHD

Court

Malaysian court

The motion to strike out was dismissed because the alleged multiplicity of proceedings did not exist as S1 was never served on the respondent, the petitioner had notified the respondent that S1 was against guarantors only and S1 was discontinued as to the respondent; although the applicability of O.18 r.19 to s.218 winding-up petitions is legally complex, the court followed Supreme Court authority recognizing the High Court's power to strike out abuses of process, and held that s.221(2)(f) does not itself empower striking out; on the facts dismissal of the motion was improper and costs were a…

• Striking out
• Multiplicity of proceedings
• Inherent jurisdiction
• Winding-up petitions
• Applicability of rules of the high court
• High court jurisdiction

FILOTEK TRADING SDN BHD v BUIDCON CIMACO CONCRETE SDN BHD

Citation

FILOTEK TRADING SDN BHD v BUIDCON CIMACO CONCRETE SDN BHD

Court

Malaysian court

The High Court held itself bound by the later Supreme Court and Court of Appeal authorities to treat Order 18 r 19 RHC 1980 as applicable to s218 winding-up petitions; however the court accepted that not all RHC provisions apply where the Companies (Winding-Up) Rules 1972 provide the procedural code and that the court retains inherent jurisdiction to deal with abuses of process.

• Winding-up petitions
• Striking out petitions
• Order 18 r 19 rules of the high court 1980
• Application of companies (winding-up) rules 1972
• Inherent jurisdiction
• Procedural conflict between special rules and rhc