Kok Kai Sing v Brisdale Holdings Sdn. Bhd. (dalam Likuidasi) (WA-24NCvC-5712-11/2025)

KOK KAI SING (NRIC No: 690411-14-5289)

KOK KAI WENG (NRIC No:640813-08-5669)

KOK KHAI CHEW (NRIC No: 660222-08-5913)

BRISDALE HOLDINGS SDN BHD (IN LIQUIDATION) [Company Registration No.: 199301023846 (278584-V)]

PERSADA VISTA SDN BHD DEFENDANTS [Company Registration No.: 201601022141 (1193080-A)] GROUNDS OF JUDGMENT (Preliminary Objection)

This appeal is awkward as it was filed by the $ 2^{\mathrm{n d}} $ Defendant, whose preliminary objection was dismissed. Their contention is that this action is improperly constituted in the Civil Division of this Court. At the hearing on 31.03.2026, the preliminary question for determination is as follows: "Whether the second prayer in the Originating Summons ought to be heard and determined first in the High Court of Kuala Lumpur, Companies (Winding-Up) No.: D2-28-240-2008 between Ng Chai Guan and Brisdale Holdings Sdn. Bhd. ('the said Proceedings') before the remaining prayers can be heard by this Honourable Court?"

The second prayer in the Originating Summons (Enc. 1)("OS") states: Satu deklarasi bahawa Perintah Letak Hak bertarikh 7 Mei 2014 ("Perintah Letak Hak") yang diperolehi oleh Pelikuidasi Defendan Pertama di Mahkamah Tinggi Kuala Lumpur, Petisyen Penggulungan Syarikat No. D2-28-240-2008 adalah tidak sah, batal, dan tidak teratur (null, void and irregular) dan diketepikan setakat mana ia melibatkan Hartanah tersebut (Appendix 2, item no. 24); Translated into: A declaration that the Vesting Order dated 07.05.2014 ("Vesting Order") obtained by the Liquidator of the First Defendant in the High Court of Kuala Lumpur, Company Winding-Up Petition No. D2-28-240-2008, is null, void, and irregular and is set aside to the extent that it involves the Property (Appendix 2, item no. 24).

The $ 2^{\mathrm{nd}} $ Defendant contends that the entire action ought to be transferred to the Commercial Division exercising winding-up jurisdiction, or alternatively struck out, because the validity of the Vesting Order dated 07.05.2014 must first be determined in that forum. The 1st Defendant adopts a similar position, adding that the leave granted under s 471(1) of the Companies Act 2016 ("CA 2016") did not specifically authorise the setting aside of the Vesting Order.

The Plaintiffs resists the preliminary objection, contending that:-

(i) leave has been duly obtained;

Having carefully considered the submissions of all parties and the authorities cited, my decision in dismissing the preliminary objection is based on the reasons that follow.

Parties had thereafter proceeded with the OS proper, where I have allowed the same with costs on 19.6.2026, with the preliminary objection decided as I have decided herein. Any appeal on the OS itself will exclude my reasoning for dismissing the preliminary objection, which I will elaborate on below.

The Plaintiffs purchased the Property (a 1 $ \frac{1}{2} $ -storey terrace factory known as Lot 178, Bandar Armada Putra, Pulau Indah) from the 1st Defendant pursuant to a Sale and Purchase Agreement dated 21.12.1996 for RM27,000.00. The purchase price was paid in full. Vacant possession was delivered in 2004.

Title was issued on 22.10.2003 and a new title was issued on 30.08.2008. The 1st Defendant was wound up on 25.09.2008.

On 07.05.2014, the Liquidator obtained the Vesting Order under the then s 233 of the Companies Act 1965 ("CA 1965"). The Property was subsequently sold to the 2nd Defendant via public tender for RM90,000.00 pursuant to a Sale and Purchase Agreement dated 22.11.2016. The title was registered in the 2nd Defendant's name on 09.04.2019.

The Plaintiffs claim they only discovered the sale in or about July 2025. They applied for and obtained leave under s 471(1) CA 2016 to commence the present action, recorded as a Consent Order dated 06.11.2025 in Post Winding-Up Proceedings No. WA-28PW 603-10/2025. The liquidator of the 1 $ ^{st} $ Defendant did not object. The Consent Order states: "1. Pemohon-pemohon diberikan kebenaran di bawah s 471(1) Akta Syarikat 2016 untuk memulakan satu tindakan writ/ atau prosiding lain terhadap Responden (dalam likuidasi), dan sebarang rayuan selepasnya (jika ada) berkenaan dengan tuntuan Pemohon-pemohon ke atas hartanah yang dipegang di bawah hakmilik individu Pajakan Negeri 23184 Lot 90021 (dahulunya HS(D) 86892 PT 52532) Mukim Klang, Daerah Klang, Negeri Selangor dan dikenali sebagai Lot 178, West Port Tech Zone, Pulau Indah Bersama satu unit kilang teres 1 1/2 tingkat yang terbina atasnya yang beralamat di 15 (TF03-178), Lorong Sungai Chandong 18B, Bandar Sungai Chandong, Pulau Indah, 42920 Pelabuhan Klang, Selangor Darul Ehsan ("Hartanah tersebut"); dan

Kos permohonan ini ditanggung oleh Pemohon-pemohon."

SS 233 and 236 CA 1965 reads: 233 Custody and vesting company's property

(c) sell the immovable and movable property and things in action of the company by public auction, public tender or private contract with power to transfer the whole thereof to any person or company or to sell the same in parcels;

S 471 CA 2016 reads:

Action or proceeding stayed after winding up order

(i) The Court of Appeal Decision in Hor Chin Ser No Longer Binds This Court

The 2nd Defendant's preliminary objection rests heavily on the Court of Appeal's decision in Hor Chin Ser & Anor v Villa Genting Development Sdn Bhd (In Liquidation) & Ors [2017] 1 MLJ 311 CA.

In Hor Chin Ser, the liquidator of Villa Genting (the developer) obtained a vesting order under s 233 CA 1965 over 15 apartment units in Amber Court. The Court of Appeal held the vesting order was wrongly obtained for the following reasons that the first respondent was merely the developer, not the owner of the properties. The land belonged to Samaworld (M) Sdn Bhd, and the first respondent was only given the right to develop and sell the apartment land. The High Court judge had erroneously conflated Giant Bay (M) Sdn Bhd (the beneficial owner) with Giant Bay Development Sdn Bhd (the developer/vendor) which were two separate entities. The first respondent itself admitted in its own affidavit that it was not the owner but merely a developer. The strata titles further endorsed the first respondent as trustee, confirming it held no beneficial ownership.

S 233 CA 1965 only permits vesting of properties "belonging to the company" or "held by trustees on behalf of the company." Here, the company was the trustee for others, not the other way around. Following Angkutera Sdn Bhd v Jurimba Sdn Bhd & Anor [2016] 5 MLJ 242 CA, it was held that the developer's interest was purely monetary, giving the liquidator no basis to obtain the vesting order. Because the properties never belonged to the first respondent, the subsequent transfers to the second, third, and fourth respondents arose from void instruments under s 340 NLC. Applying Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1 FC and Kamarulzaman Bin Omar & Ors v Yakub bin Husin & Ors [2014] 2 MLJ 768 FC, the court held that as immediate purchasers, they could not claim indefeasibility as their titles were liable to be set aside regardless of good faith or payment of the full purchase price. The appellants' failure to lodge caveats also did not defeat their rights, following Samuel Naik. The vesting order and all subsequent transfers were accordingly set aside.

I note, however, that this decision was reversed by the Federal Court on 04.12.2017, a fact acknowledged by the 1st Defendant in its Reply Submission.

The Federal Court delivered no written grounds. Applying the Federal Court's own guidance in Tetuan Wan Shahrizal, Hari & Co v Public Prosecutor [2023] 4 MLJ 1 FC, I decline to speculate on the basis for the Federal Court's reversal. What is clear, however, is that Hor Chin Ser cannot be relied upon as a binding precedent for the proposition that only the winding-up court may adjudicate the validity of a vesting order. To the extent the 2nd Defendant's submission rests on that passage, it is misconceived. A careful analysis would show that the civil courts is also bestowed with the same discretion as the commercial courts (as in the winding up proceedings) to deal with the issue of a void transfer by the alleged void vesting order. The relevant judgment of Hor Chin Ser is as below: [41] Learned counsel for the second to fourth respondents had questioned the capacity of a winding up court to deal with the issue of void transfer. We however do not see any reason why a winding up court cannot deal with this issue of void transfer by the liquidator to the second, third and fourth respondents; especially when it flows from the liquidator's action in administrating the so called estate of the winding up of the first respondent. Furthermore, ss 23 and 24 of the Courts of Judicature Act 1964 empower the High Court to deal in such matter.

The 2nd Defendant's argument that only the "Commercial Division" exercising "specific subject-matter jurisdiction" under s 24(c) of the Courts of Judicature Act 1964 ("CJA 1964") can set aside the Vesting Order conflates administrative case distribution with substantive jurisdiction.

There is only one High Court of Malaya. Its jurisdiction is derived from Article 121 of the Federal Constitution ("FC") and ss 23 and 24 CJA 1964. The "Civil Division" and "Commercial Division" are internal administrative subdivisions designed to efficiently manage the Court's docket. A judge sitting in the Civil Division possesses the same coordinate jurisdiction and powers as a judge sitting in the Commercial Division. The ss 23 and 24 CJA 1964 is reproduced below: Civil jurisdiction-general

(1) Subject to the limitations contained in Article 128 of the Constitution, the High Court shall have jurisdiction to try all civil proceedings where—

(a) the cause of action arose;

(b) the defendant or one of several defendants resides or has his place of business;

(c) the facts on which the proceedings are based exist or are alleged to have occurred; or

(d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.

Without prejudice to the generality of section 23, the civil jurisdiction of the High Court shall include—

(a) jurisdiction under any written law relating to divorce and matrimonial causes;

(b) the same jurisdiction and authority in relation to matters of admiralty as is had by the High Court of Justice in England under the United Kingdom Supreme Court Act 1981;

(c) jurisdiction under any written law relating to bankruptcy or to companies;

The authorities cited by the 2nd Defendant, Malaysian Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340 CA (bankruptcy jurisdiction) and PT Cakra Manunggal Semesta [2023] 4 CLJ 147 HC (admiralty jurisdiction), concern distinct statutory jurisdictions with self-contained procedural codes. They are not analogous to the administrative distinction between the Civil and Commercial Divisions of the High Court. The 2nd Defendant's reliance on these authorities is inapposite.

The 1st Defendant contends that the leave granted by the Consent Order dated 06.11.2025 was limited to the recovery of the Property and did not extend to setting aside the Vesting Order. I am unable to accept this contention.

The Plaintiffs' Summons in Chambers dated 08.10.2025 expressly set out the Plaintiffs' intention to sue the Liquidator for breach of trust, negligence, and to recover the said Property or commensurate compensation. The Winding-Up Court was fully apprised that the Property had been vested under the Vesting Order and subsequently transferred to the 2nd Defendant.

A prayer to recover property that has been vested and transferred to a third party necessarily and inextricably engages the validity of the vesting order, which constitutes the root of that transfer. It is artificial to suggest that the Winding-Up Court, in granting leave on a consent basis, understood the application as anything other than one whose effective exercise would require the invalidation of the Vesting Order.

The 1st Defendant consented to the leave without objection. Having consented, it is now too late for the 1st Defendant to contend, at the submission stage, that the scope of leave was insufficient. The principle against approbation and reprobation applies.

I also accept the Plaintiffs' submission that the governing principle for leave under s 471(1) CA 2016, as set out in Mosbert Berhad (In Liquidation) v Stella D'Cruz [1985] 2 MLJ 446 SC and reaffirmed by the Federal Court in Dubon Bhd (in liquidation) v Wisma Cosway Management Corp [2020] 4 MLJ 288 FC, supports the Plaintiffs' position. The Winding-Up Court, by granting leave, necessarily accepted that the Plaintiffs' claim could not be adequately dealt with in the winding-up proceedings. Nallini FCJ (as she then was) succinctly state as follows: "As such the High Court judge was correct in applying the test he did, premised on the well-known principles cited, inter alia, in Mosbert Berhad (in liquidation) v StellaD' Cruz [1985] 2 MLJ 446 and more recently by the Court of Appeal in Ganda Setia Cemerlang Sdn Bhd & Anor v Maika Holdings Bhd (in liquidation) [2017] 6 MLJ 661; [2017] 1 LNS 1576. The test is that set out in the old English decision of Re Cuthbert Lead Smelting Co Ltd [1886] WN 84 which held that if the party applying for leave could obtain all the relief in the winding up, leave would be refused. If that party's claim cannot however be adequately dealt with in the winding up or if the remedy sought cannot be granted in the winding up proceedings then leave would be granted." And it has been clearly made out by Mary Lim JCA ( as she then was) in Ganda Setia Cemerlang Sdn Bhd & Anor v Maika Holdings Bhd (in liquidation) [2017] 6 MLJ 661 CA where it was held:

The 2nd Defendant's position is internally contradictory. On the one hand, it invokes its status as a registered proprietor under s 340(3) of the National Land Code 1965 ("NLC 1965") and relies on Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 FC to argue against any collateral attack on its title. On the other hand, it insists that the dispute be determined in the winding-up court, a forum to which it was never a party and in which its proprietary rights cannot be properly adjudicated.

The English decision in Re A. Singer & Co. (Hat Manufacturers), Ltd. [1943] 1 All ER 225 and the Australian decision in Re Jay-O-Bees Pty. Ltd. (In Liq.) [2004] NSWSC 818, while not binding, are persuasive authority for the proposition that the winding-up court exercises jurisdiction relating only to the winding-up of companies and does not extend to adjudicating the proprietary rights of third parties.

The core issues in this action, beneficial ownership, the alleged bare trust, the defeasibility of the 2nd Defendant's registered title under s 340(2)(b) NLC 1965, and the consequential proprietary reliefs, cannot fairly or properly be determined behind the 2nd Defendant's back in the winding-up proceedings. The present civil action, in which both Defendants are properly named and fully represented, is the appropriate forum.

(v) Dirga Niaga Is Directly on Point and Binding

The Court of Appeal's decision in Dirga Niaga (Selangor) Sdn Bhd (in liquidation) & Ors v Lim Chien Lang & Anor and another appeal [2020] 6 MLJ 89 CA is directly applicable. The facts are materially indistinguishable: beneficial owners whose interest was acquired by contract; winding-up of the developer; a "verification exercise" conducted without the beneficial owners' participation; an ex-parte vesting order; and a subsequent sale to a third-party purchaser.

Dirga Niaga rejected the very procedural objection now raised before me. The Court of Appeal held: "[W]here a High Court order is a nullity, a court of coordinate jurisdiction has the power under its inherent jurisdiction to set aside that order in any collateral proceeding."

The 2nd Defendant seeks to distinguish Dirga Niaga on the basis that the claim there arose from contractual rights. With respect, this is a distinction without a difference. The Plaintiffs' beneficial interest here likewise arises from contract, namely the Sale and Purchase Agreement dated 21.12.1996. The legal mechanism is identical.

The 1st Defendant's attempt to distinguish Dirga Niaga on the basis that the Plaintiffs have specifically prayed for the Vesting Order to be set aside (whereas no such prayer was made in Dirga Niaga) elevates form over substance. If anything, the Plaintiffs' express prayer places them on stronger ground than the Plaintiffs in Dirga Niaga.

The 1st Defendant relies on the judgment of Peh Swee Chin FCJ in Badiaddin for the proposition that a challenge to a perfected order must be made within the same proceedings in which the order was obtained. I accept the Plaintiffs' submission that this reliance is misconceived.

As held in Zainoor Fairose Atong (As The Representative Of The Estate Of Mazlan Ahmad, Deceased) & Ors [2018] 9 CLJ 47 CA, the ratio decidendi of Badiaddin is applied where a final order which was regularly obtained from another High Court of concurrent jurisdiction cannot be set aside unless it falls under the one special exception: In Badiaddin's case, the Federal Court held that one High Court could not set aside a final order regularly obtained from another High Court of concurrent jurisdiction. One special exception is where the final judgment of the High Court could be proved to be null and void on the ground of illegality or lack of jurisdiction. Apart from breach of rules of natural justice, a superior court could exercise its inherent and discretionary jurisdiction to set aside an order ex debito justitiae in cases involving orders which contravened 'any written law' but the contravention should be one which defies a substantive statutory prohibition. The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a nature that there was a real need to set aside the defective order to enable the court to do justice. (paras 3-5)

As articulated in Badiaddin by Mohd Azmi FCJ and Gopal Sri Ram JCA (as he then was), it establishes that where an order is made in contravention of a substantive statutory provision, it is a nullity and may be set aside ex debito justitiae in collateral proceedings. Gopal Sri Ram JCA's words are particularly apposite: "But where an order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose... It is wrong to assume that such an order may only be corrected on appeal."

The Plaintiffs' challenge to the Vesting Order is predicated on an alleged breach of s 233(2) CA 1965, which confines the vesting power to property "belonging to the company." Whether or not that challenge ultimately succeeds on the merits is a matter for the substantive hearing. What matters for present purposes is that the ground of challenge falls squarely within the Badiaddin exception as a substantive statutory contravention.

The 1st Defendant relies on SKS Foam (M) Sdn Bhd & Anor v Pentadbir Tanah Daerah Klang & Ors [2025] MLJU 591 HC ("SKS Foam (OS)") and Re SKS Foam (M) Sdn Bhd (In Liquidation) [2025] MLJU 3772 HC ("SKS Foam (PW)"). I find both inapplicable.

SKS Foam (OS) concerned an application by a liquidator to enforce a subsisting vesting order under s 417 NLC 1965. The factual and legal matrix is the opposite of the present case, where the Plaintiffs challenge a vesting order alleged to be void. Moreover, the passage relied upon by the 1st Defendant at paragraph [22] of that judgment is not the independent reasoning of the learned judge but of an earlier judgment that had dismissed a prior setting-aside application on res judicata grounds.

Re SKS Foam (PW) turned on res judicata following no fewer than four exhausted prior challenges to the same vesting order. That circumstance is entirely absent here. The Plaintiffs have never previously challenged the Vesting Order.

Significantly, the learned judge in Re SKS Foam (PW) expressly affirmed that the Badiaddin exception remains operative where the ground of challenge is a breach of a substantive statutory provision. That is precisely the Plaintiffs' case here.

If the preliminary objection were upheld, the Plaintiffs would be required to:

(i) apply to intervene in winding-up proceedings to which they were never a party;

This fragmented, multi-stage approach is precisely what the law against multiplicity of proceedings seeks to avoid. The present civil action, with all necessary parties before a single competent court, is the sensible and lawful vehicle for resolving this dispute.

For the reasons set out above, the 2nd Defendant's preliminary objection is accordingly dismissed. The setting aside of the Vesting Order (as prayed for in Prayer 2 OS) need not be heard and determined first in Winding-Up Proceedings No. D2-28-240-2008 before the remaining prayers are heard by this Court. Dated: 22 June 2026 Arziah binti Mohamed Apandi Judge Kuala Lumpur High Court NCvC 8 Wilayah Persekutuan Kuala Lumpur Plaintiffs Counsel: Mr. Tan Jun Sheng Messrs SS Ng & Lim Subang Jaya, Selangor Darul Ehsan Tel. No.: 03-5879 8558 Email: enquiry@ssnqlim.com 1st Defendant Counsel: Ms. Deva Premila Devadason Messrs E.D. Louis & Associates Kuala Lumpur Tel. No.: 03-2201 5252 Email: prem@edl-law.com $ 2^{\mathrm{n d}} $ . Defendant Counsel: Ms. Rossa Severinus Messrs Vazeer Akbar Majid & Co Petaling Jaya, Selangor Darul Ehsan Tel. No.:03-7877 7000 Email: vamkul@vamco.com.my / rossa@vamco.com.my) Cases referred: Hor Chin Ser & Anor v Villa Genting Development Sdn Bhd (In Liquidation) & Ors [2017] 1 MLJ 311 CA Angkutera Sdn Bhd v Jurimba Sdn Bhd & Anor [2016] 5 MLJ 242 CA, Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1 FC Kamarulzaman Bin Omar & Ors v Yakub bin Husin & Ors [2014] 2 MLJ 768 FC Tetuan Wan Shahrizal, Hari & Co v Public Prosecutor [2023] 4 MLJ 1 FC Malaysian Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340 CA PT Cakra Manunggal Semesta [2023] 4 CLJ 147 HC Mosbert Berhad (In Liquidation) v Stella D'Cruz [1985] 2 MLJ 446 SC Dubon Bhd (in liquidation) v Wisma Cosway Management Corp [2020] 4 MLJ 288 FC Ganda Setia Cemerlang Sdn Bhd & Anor v Maika Holdings Bhd (in liquidation) [2017] 6 MLJ 661 CA Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 FC Re A. Singer & Co. (Hat Manufacturers), Ltd. [1943] 1 All ER 225 Re Jay-O-Bees Pty. Ltd. (In Liq.) [2004] NSWSC 818 Dirga Niaga (Selangor) Sdn Bhd (in liquidation) & Ors v Lim Chien Lang & Anor and another appeal [2020] 6 MLJ 89 CA Zainoor Fairose Atong (As The Representative Of The Estate Of Mazlan Ahmad, Deceased) & Ors [2018] 9 CLJ 47 CA SKS Foam (M) Sdn Bhd & Anor v Pentadbir Tanah Daerah Klang & Ors [2025] MLJU 591 HC Re SKS Foam (M) Sdn Bhd (In Liquidation) [2025] MLJU 3772 HC Acts/Law referred: section 233 and 236 Companies Act 1965 section 471 Companies Act 2016 section 24(c) of the Courts of Judicature Act 1964 section 23 and 24 Courts of Judicature Act 1964 section 340(3) of the National Land Code 1965 section 340(2)(b) National Land Code 1965 section 417 National Land Code 1965