1. ) Chan T'Shiao LI v 1. ) Malcolm Fernandez (WA-22NCvC-28-01/2023)

CHAN T’ SHIAO LI (NIRC NO: 780928-14-6104)

KIMBERLEY CHAN TSHIAO MIIN (NRIC NO: 811120-14-5028) (PASSPORT NO: A56049498) … PLAINTIFFS

MALCOLM FERNANDEZ

CHAN MEI YEE

MARCUS CHAN JAU CHWEN (NRIC NO: 840507-14-5009) 10/11/2025 15:14:07

LOW BENG CHOO (NRIC NO: 580529-10-5608) …DEFENDANTS GROUNDS OF JUDGMENT (Preliminary Objection for leave application in Enclosure 301)

Before this Court is a preliminary objection raised by the Administrators Pendente Lite (“APLs”) against the 3rd Defendant’s application for leave in Enclosure 301, supported by affidavit in Enclosure 302.

APLs contend that before any beneficiary/party may file substantive or interlocutory applications against the APLs, prior leave of court is mandatory.

The basis is that APLs are officers of the court, appointed under section 40 Trustee Act 1949 or Order 72 rule18 Rules of Court 2012 (“ROC 2012”). Therefore suits or applications touching their conduct should not proceed without leave.

They submit that leave was a precondition to sue or apply against court-appointed APLs. Without leave, Enclosures 215 and 267 are nullities. They argue nunc pro tunc leave cannot be granted because it would retrospectively validate actions filed without jurisdiction.

Therefore, Enclosure 215 (removal) and Enclosure 267 (injunction) are said to be irregular and ought to be struck out.

The 3rd Defendant’s earlier applications are:

Enclosure 215; an application to remove the APLs; and

Enclosure 267; an application for an interlocutory injunction to restrain the APLs from acting pending disposal of Enclosure 215.

The APLs contend that these applications were filed without prior leave of Court and are therefore incompetent. They further submit that the present application in Enclosure 301, seeking leave nunc pro tunc, cannot retrospectively validate them.

The submission that APLs are the officers of the court and no action should be taken against the officer of the court.

The following issues arise for determination:

Whether leave of Court is required before filing applications against APLs;

If leave is required, whether the Court may grant leave retrospectively (nunc pro tunc) to validate earlier applications.

The effect of Enclosure 301 on the fate of Enclosures 215 and 267. C. SUBMISSIONS OF PARTIES

The APLs argue that they are officers of the Court, akin to liquidators or receivers. No action should be taken against officers of the Court without prior leave.

They submit that Enclosures 215 and 267 are nullities for want of leave, and nunc pro tunc leave cannot cure a fundamental lack of jurisdiction. 3rd Defendant’s Submissions

The 3rd Defendant submits that there is no express statutory requirement for leave against APLs, unlike liquidators where subsection 236(2) Companies Act 2016 expressly applies.

At worst, it is a procedural safeguard, not a jurisdictional bar. Even if leave is required, the court’s inherent jurisdiction under Order 92 rule 4 ROC 2012, permits nunc pro tunc validation. 3rd Defendant cites the principle that the court should avoid shutting out substantive complaints by elevating technicalities. The omission to seek leave is a procedural irregularity, not a nullity.

The Court has inherent jurisdiction under Order 92 rule 4 ROC 2012 to regularise such irregularities. The Court may grant leave nunc pro tunc to preserve the substantive applications already filed

It is trite that certain categories, namely receivers, liquidators, provisional liquidators and APLs, are appointed by and answerable to the court. They act as the court’s delegates, and their role is to preserve and administer property under the court’s supervision. APLs, like liquidators or receivers, are appointed by court order. Once appointed, they act under the court’s supervision and are expected to be neutral custodians.

Because of this, courts often require leave before such officers are sued or made subject of hostile applications. The rationale is to prevent harassment, vexatious litigation, and distraction from their duties.

Because of this status, the common law position is that no action should be commenced against such court-appointed officers without leave of court. This is to protect them from harassment and multiplicity of proceedings while they carry out their duties.

It has to be noted that that there is key distinction between Liquidators/Receivers and APLs. The Liquidators/Receivers S/N UUbaOdnRmki/ljuOc8UHJw requirement of leave is statutory, e.g. subsection 236(2) Companies Act 2016 for liquidators.

Filing without leave is a jurisdictional defect whereas for APLs, there is no equivalent statutory provision in the Probate and Administration Act or ROC 2012. Their accountability is already safeguarded because they are subject to supervision by the appointing court and the beneficiaries can apply to vary their powers or remove them, which is precisely what Enclosure 215 is about.

Thus, the Court finds that the analogy with liquidators has persuasive force but is not binding in law. The requirement of leave here is grounded in prudence and court practice, not statute.

It is trite that liquidators and receivers, as officers of the Court, are protected by a statutory leave requirement. The rationale is to shield them from vexatious litigation.

In the present case, APLs are likewise officers of the Court. However, there is no express statutory provision imposing a leave requirement. Their accountability is already preserved through the Court’s supervisory jurisdiction.

Thus, while it may be prudent to obtain leave before commencing proceedings against them, the absence of such leave is not fatal. The Court believes that the omission is best characterised as a S/N UUbaOdnRmki/ljuOc8UHJw procedural irregularity. It does not deprive the Court of jurisdiction over the subject matter, nor render the proceedings a nullity.

The Court may, in the interests of justice, grant leave nunc pro tunc. This ensures that substantive complaints, such as alleged mismanagement of estate assets, are adjudicated on the merits.

Strictly speaking, as for the effect of Enclosure 301, the Court is of the opinion that Enclosure 301 was unnecessary. However, it serves the useful purpose of regularising the record and neutralising the APLs’ technical objection.

Therefore, by granting Enclosure 301, the Court confirms that Enclosures 215 and 267 remain valid and properly before the Court.

Upon perusal on the papers submitted before the Court and upon hearing the arguments from parties, the Court finds that:

There is no statutory requirement for prior leave against APLs.

The omission to seek leave before filing Enclosures 215 and 267 is an irregularity, not a nullity.

In any event, this Court grants leave nunc pro tunc via Enclosure 301 to validate the said applications. S/N UUbaOdnRmki/ljuOc8UHJw F.

For the foregoing reasons this Court gives the following orders:

The APLs’ preliminary objection is dismissed.

Enclosure 301 is allowed. Leave nunc pro tunc is granted to the 3rd Defendant in respect of Enclosures 215 and 267.

Costs of the preliminary objection shall be costs in the cause.

Accordingly, with the Court’s ruling on Enclosure 301, it follows that the substantive applications filed by the 3rd Defendant, namely Enclosures 215 and 267, remain properly before the Court.

The Court further notes that this ruling clears the way for the hearing of the related Notices of Application filed by the APLs against the 3rd Defendant, including Enclosures 200 and 249, which shall now proceed to be heard on their merits. Dated: 10th November 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR S/N UUbaOdnRmki/ljuOc8UHJw Counsel for The Plaintiffs : Rueban Kumar Messrs. Sitham & Associates Advocates & Solicitors Counsel for The 1st Defendant : Chia Eng Yi, Nur Fathin, Farisya Bt Md Noor Messrs. Cecil Abraham & Partners Advocates & Solicitors Counsel for The 2nd Defendant : Ong Yu Jian Messrs. Raj, Ong & Yudistra Advocates & Solicitors Counsel for The 3rd Defendant : Datuk Kamarul Hisham, Goik Kenwayne, Foong Kar Yee Messrs. Dennis Nik & Wong Advocates & Solicitors Counsel for The 4th Defendant : Datuk Kamarul Hisham, Goik Kenwayne, Foong Kar Yee Messrs. James Khong Advocates & Solicitors S/N UUbaOdnRmki/ljuOc8UHJw Counsel for The Administrators : B. Thangaraj & Nadeem Pendente Lite Rafiq Messrs. Thangaraj & Assoc. Advocates & Solicitors S/N UUbaOdnRmki/ljuOc8UHJw