1. ) Mahathir Abdullah for the Applicant, Saidi Bin Abang Samsudin and Zul’Azman bin Ya’akub (Proposed Interveners) in Enclosure 134 v 1. ) Ananthan Morthi for the 1st Intervener (SAMAN PEMULA NO: WA-28JM-4-01/2020)

TNB REPAIR AND MAINTENANCE SDN BHD (No. Syarikat: 199501031112)

MASTIJAYA SDN BHD (No. Syarikat: 1254179-V)

QEOS ENERGY SDN BHD (No. Syarikat: 200901001867(844794-A)

OPTIMAL POWER SOLUTIONS SDN BHD (No. Syarikat: 488095-W)

APPLIED ENERGY SOLUTIONS SDN BHD (No. Syarikat: 666035-T)

BHJ ENTERPRISE SDN BHD (No. Syarikat: 1216913-H)

ARMADAJAYA SDN BHD (No. Syarikat: 201501024911(1150240-M)

TING LAY CHING (No. K/P: 760419-13-6070) berniaga di bawah nama dan gaya WAN SOON TRANSPORT CO. (No. PNP: SC20090890)

SOPHIE BIN SHARIEE (No. K/P: 750610-13-6275) berniaga di bawah nama dan gaya O.P. ENTERPRISE (No. PNP: 468/2007)

LU SENG CHAI (No. K/P: 790803-13-5507) berniaga di bawah nama dan gaya 3 BINA SMART TATAU (No. PNP: TTU/)4/2017) …PENCELAH-PENCELAH

SAIDI BIN ABANG SAMSUDIN (No.K/P: 590503-13-5445)

ZUL’ AZMAN BIN YA’AKUB (No.K/P: 721125-13-5743) …PENCELAH-PENCELAH YANG DICADANGKAN GROUNDS OF JUDGMENT (Enclosure 134)

In the Notice of Application at enclosure 134 (Enclosure 134), the Proposed Interveners, Saidi Bin Abang Samsudin and Zul’Azman bun Ya’akub (Proposed Interveners) have applied to this Court pursuant to section 411(4)(e) of the Companies Act 2016 and/or order 15 rule 6 of the Rules of Court 2012 and/or the inherent jurisdiction of this Court for inter alia leave to continue with the Kuala Lumpur High Court proceedings via Suit no. WA-22NCC-450- 09/2020 (Civil Suit) between the Proposed Interveners and QEOS LED Sdn Bhd and Siti Kathejah binti Abdullah where they are claiming amongst others for the transfer of shares in Jepak Holdings Sdn Bhd (Company) to either of the Proposed Interveners.

The brief grounds for Enclosure 134 are as follows:

4.1 On 18 September 2020, The Proposed Interveners commenced an action vide Kuala Lumpur High Court Suit No. 4 WA-22NCC-450-09/2020 against QEOS LED Sdn Bhd and Siti Kathejah binti Abdullah (“the said Action”).

4.2 The subject matter of the said action is a shareholding of 4,800,000 shares in Jepak Holdings Sdn Bhd, wherein the Proposed Interveners claim that they have sufficient interest in the said shares which entities them to seek a transfer thereof.

4.3 The First Proposed Intervener’s claim in the said Action is, inter alia, based upon the existence of trust obligations as between himself, the Second Proposed intervener and Siti Kathejah binti Abdullah.

4.4 The Second Proposed Intervener’s claim in the said Action is, inter alia, based on breaches of contract of QEOS LED Sdn Bhd.

4.5 The claim in the said Action is against QEOS LED Sdn Bhd and Siti Kathejah binti Abdullah wherein the relief sought includes, inter alia, the transfer of the shares of the Applicant herein, that is Jepak Holdings Sdn Bhd either to the First Proposed Intervener directly or to the Second Proposed Intervener to be transferred onwards to the First Proposed Intervener.

4.6 At the time the said Action was commenced on 18 September 2020, Jepak Holdings Sdn Bhd had not yet obtained an Order for Judicial management.

4.7 In the course of proceedings in the said Action, that is by way of a Written Submission in Reply dated 29 January 2021 filed on behalf of QEOS LED Sdn Bhd and Siti Kathejah binti Abdullah, the aid defendants revealed that Jepak Holdings 5 Sdn Bhd had obtained an Order for Judicial Management on 26 January 2021.

4.8 Based upon the said development and as the relief prayed fo in the said Action included, inter alia, the transfer of share in the Applicant herein that is Jepak Holdings Sdn Bhd, the High Court hearing the said Action directed the Proposed Interveners to obtain the leave of this Honourable Court to continue with the said Action, pursuant to Section 411(4)(e) of the companies Act 2016.

The Proposed Interveners contend that they have fulfilled the threshold to intervene and continue with the Civil Suit which is currently pending determination wherein there is an injunctive relief applied for and whereby the Defendants in the same have sought to strike out the claim.

It is submitted by the Proposed Interveners that:

the principles in a Winding Up Petition for leave be applicable in a situation such as in Enclosure 134 as they have sufficient legal interest to intervene due to the Civil Suit being for the majority shareholding of 4,800,000 shares (Affected Shares) in the Company

(ii) they recognise that it’s a discretionary power and have urged this Court to take into account the nature of the claim and balance of convenience 6

(iii) their legal rights are affected by the Judicial Management Order dated 26.1.2021 as their ability to seek a re transfer of the Affected Shares is subject to the leave of this court. Submissions of the Judicial Manager and the Company

The Judicial Manager submitted that as the Judicial Management Order is only for a limited time, there is no prejudice for the Civil Suit to continue after the discontinuance or expiry of the Judicial

It is also submitted by the Judicial Manager that Enclosure 134 will be prejudicial and effect the planned settlement between the Government of Malaysia and the Company.

In essence, the Company supports and adopts the submissions of the Judicial Manager and have urged this Court to look at the conduct of the Proposed Interveners and balance the interests of the parties to ultimately dismiss Enclosure 134.

The 3rd and 6th Interveners also opposed Enclosure 134 and have adopted the submissions of the Judicial Manager and the Company.

The Companies Act 2016 prohibits any transfer of shares so long as the Judicial Management Order is valid and in force. Section 411(4)(e) of the Companies Act 2016 provides that: 7 “4) During the period for which a judicial management order is in force:

no steps shall be taken to transfer any share of the company or to alter the status of any member of the company except with the leave of the Court and, if the Court grants leave, subject to such terms as the Court may impose.”

The Proposed Interveners had submitted that the position of a company under judicial management is akin to that of a company in respect of which winding up proceedings have been commenced and quoted the case of Twin Unitrade Sdn Bhd v TSK Holdings Sdn Bhd (2020) MLJU 2326. With respect I disagree with the Proposed Interveners on the same and I give my reasons below.

In the said case of Twin Unitrade Sdn Bhd (supra), this Court had held that: “It is also my view that as the effect of the JM Order is as though the company is being wound up as per section 430(1) of the Companies Act 2016 which provides that “(1) At any time when a judicial management order is in force in relation to a company under judicial management, sections 536, 537, 538 and 539 shall apply as if the company under the judicial management was a company being wound up and the judicial manager was the liquidator “ I find that the cases on the residual power of directors in a wound up company such as Equiticorp Holdings Ltd v United Securities Sdn Bhd [2007] 6 CLJ 268, Sri Hartamas Development Sdn Bhd v. MBF Finance Bhd [1991] 3 CLJ 2078; ; [1991] 1 CLJ (Rep) 436 and Re Union 8 Accident Insurance Co Ltd [1972] 1 All ER 1105 as instructive and of assistance in ascertaining the board’s residual powers and I hold that the board of directors do continue to hold certain residuary powers such as authority to instruct solicitors and counsel to oppose an Application to set aside the JM Order and to appeal against any such order made;”

From the part of the judgment in Twin Unitrade Sdn Bhd (supra) it is clear that this Court had made the said pronouncement in relation to 430(1) of the Companies Act 2016 and the residual power of directors in relation to the facts of the said case and that the ratio of a company under judicial management is akin to that of a company in respect of which winding up proceedings have been commenced is not applicable as a general statement.

This is because a judicial management is meant to rehabilitate companies under financial distress and the moratorium referred to is intended to assist the Company in this exercise as opposed to winding up proceedings which are meant as an insolvency process of last resort and which according to Ganda Setia Cemerlang Sdn Bhd & Anor v Maika Holdings Sdn Bhd [2017] 6 MLJ 661, where the Court of Appeal in quoting the Supreme Court in Mosbert Berhad (in liquidation) v Stella D’Cruz [1985] 2 MLJ 446 held: “…that the primary object of winding up of a company is to collect and distribute “the assets of the company pari passu amongst unsecured creditors after payment of preferential debts.” 9

In Leadmont Development Sdn Bhd v Infra Segi Sdn Bhd & Another [2018] 10 CLJ 412, the High Court had stated: “[21] It is clear from the Hansard, that the judicial management was introduced to rehabilitate companies that are under financial distress and to reduce the number of cases where companies are wound up. Datuk Liang Teck Meng (Simpang Renggam): minta Menteri Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan menyatakan berapakah jumlah kes syarikat yang digulungkan sepanjang tempoh 2010 hingga 2014 dan apakah peranan kerajaan dalam menangani kes syarikat yang digulungkan? Timbalan Menteri Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan (Dato' Paduka Ahmad Bashah bin Md Hanipah):.... Jumlah syarikat yang digulungkan sepanjang tempoh 2010 hingga bulan Ogos 2014 adalah sebanyak 9,010. Dari jumlah tersebut sebanyak 3,396 syarikat telah digulungkan secara sukarela manakala sebanyak 5,614 syarikat telah digulungkan melalui perintah mahkamah. Kementerian Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan prihatin berhubung keperluan memperkenalkan satu mekanisme untuk menyelamatkan syarikat-syarikat yang mengalami masalah kewangan. Namun masih boleh dipulihkan untuk beroperasi secara sedia kala. Dalam hal ini, Suruhanjaya Syarikat Malaysia yang merupakan agensi kementerian ini telah mengambil inisiatif untuk 10 memperkenalkan beberapa mekanisme penyelamat korporat melalui pembaharuan yang sedang dilakukan kepada Akta Syarikat 1965. Mekanisme yang dicadangkan ini akan menjadi satu alternative kepada penggulungan atau pembubaran syarikat. Antaranya ialah pengurusan kehakiman...”

In coming to the main issue of whether leave should be granted to the Proposed Interveners as prayed for in Enclosure 134, this Court has perused the Writ and Statement of Claim in exhibit A-1 of the Affidavit in Support of the Proposed Interveners in enclosure 135 as well as the Injunction Application applied for by them as found in exhibit A-3 of enclosure 135 (Injunction Application). I find that the Company is not named in the said Civil Suit but that the Affected Shares is the main subject matter of the said Civil Suit and that the Proposed Interveners have inter alia prayed for a re-transfer of the Affected Shares.

I hold, after reading the Injunction Application that the ground relied on by the Proposed Interveners for the injunction in the Civil Suit to prevent the transfer of the Affected Shares in the Company as being totally unnecessary and redundant in the circumstances of the case as section 411(4)(e) of the Companies Act 2016 already prevents any steps from being taken to transfer any share of the Company or to alter the status of any member of the Company.

Further under section 406 of the Companies Act 2016, the Judicial Management Order is only valid for a limited time, which in this case is the 22.12.2021 after the Court had extended by consent, the 11 Judicial Management Order on 23.7.2021. I therefore find that there is no prejudice for the Civil Suit to continue after the discontinuance or expiry of the Judicial Management Order.

In any event, none of the shareholders of the Company have the power to make any decisions on the Company as Section 411(4) of the Companies Act 2016 provides:-

no resolution shall be passed or order made for the winding up of the company;

no receiver or receiver and manager of the kind referred to in section 374 shall be appointed;

no other proceedings and no execution or other legal process shall be commenced or continued and no distress may be levied against the company or its property except with the consent of the judicial manager or with the leave of the Court and, if the Court grants leave, subject to such terms as the Court may impose;

no steps shall be taken to enforce security over the company's property or to repossess any goods in the company's possession under any hire purchase agreement, chattels leasing agreement or retention of title agreement, except with consent of the judicial manager or leave of the Court and subject to such terms as the Court may impose; and

no steps shall be taken to transfer any share of the company or to alter the status of any member of the company except with the leave of the Court and, if the Court grants leave, subject to such terms as the Court may impose. 12

Section 411(4) of the Companies Act 2016 is therefore in the circumstances a sufficient safeguard to protect the interest of the Proposed Interveners.

I also find that there is nothing in Enclosure 134 or the grounds therein which warrants a commencement of the Civil Suit at this moment in time and the Proposed Interveners have not satisfied this Court of the need for the same.

Looking at the circumstances of the case as a whole, I do find that Enclosure 134 will be prejudicial and effect the planned settlement between the Government of Malaysia and the Company as there is currently pending negotiations between the Ministry of Education (MOE) and the Company which was initiated and conducted by the Judicial Manager. On this I have noted that:

21.1.1 from the date of the JM’s appointment, the JM has attempted to seek the arrears of payment due from MOE and had amongst others written to the secretary of MOE as well as to the Prime Minister of Malaysia for an independent audit to be conducted and that MOE had only thereafter agreed to discuss and hold a meeting on the 20.4.2021, which was the first meeting with MOE in 3 years, where MOE had laid out the amount claimed which is being processed and which was a good progress towards settlement of the applicant’s claims 21.1.2 the JM further contends that thereafter the MOE had held a second meeting on 7.5.2021 where MOE had prepared a detail for the purposes of reconciliation to enable payments 13 to be made and that both these meetings shows the progress in the attempt to achieve a settlement with MOE without waiting for the decision in the Kuching Civil Suit with each party showing the documents in their possession to the other 21.1.3 it is alleged that it is only due to the pandemic that the third meeting with the MOE has not been held and that meeting has been scheduled to be fixed 21.1.4 the MOE appears to only be willing to discuss the settlement if legal suits are withdrawn

I agree with the JM’s counsel that there is a thus a possibility if the Civil Suit is allowed to continue, the negotiations with MOE would be protracted beyond the duration of the Judicial Management Order and prevent any hopes for an amicable settlement with MOE / Government of Malaysia and that it would be in the best interest of the judicial management if the Civil Suit is put on hold for the moment.

In Re Atlantic Computer Systems plc [1992] 1 All ER 476; [1992] Ch 505 which is a case involving the granting of leave to commence proceedings under judicial management it was stated that: “(1) It is in every case for the person who seeks leave to make out a case for him to be given leave.

Thus it will normally be a sufficient ground for the grant of leave if significant loss would be caused to the lessor by a refusal. For this purpose loss comprises any kind of financial loss, direct or indirect, including loss by reason of delay, and may extend to loss which is 14 not financial. But if substantially greater loss would be caused to others by the grant of leave, or loss which is out of all proportion to the benefit which leave would confer on the lessor, that may outweigh the loss to the lessor caused by a refusal.

In some cases there will be a dispute over the existence, validity or nature of the security which the applicant is seeking leave to enforce. It is not for the court on the leave application to seek to adjudicate upon that issue, unless (as in the present case, on the fixed or floating charge point) the issue raises a short point of law which it is convenient to determine without further ado. Otherwise the court needs to be satisfied only that the applicant has a seriously arguable case.”

In the context for leave in an administration, which is akin to a judicial management application in our jurisdiction, in the text, ‘Lightman & Moss on the Law of Administrators and Receivers of Companies’, Sweet and Maxwell it was stated that:

the burden is on the applicant to make out his case for leave to be granted;

the moratorium is intended to assist the company, under the management of the administrator, to achieve the purpose for which the administration order was made. If granting leave is unlikely to impede the achievement of that purpose, leave should normally be given;

if granting leave is likely to impede the achievement of the purpose of the administration, the private interests of the applicant 15 must be weighed against the collective interests of the general body of creditors, having regard to the parties’ interests and all the circumstances of the case;

great weight is usually given to proprietary interests and where an administration order is made in lieu of a liquidation, it should not be used to benefit the unsecured creditors at the expense of those with proprietary rights;

if significant loss is likely to be caused to the applicant by the continued suspension of his rights, then permission should be granted unless substantially greater loss would be caused to the general body of creditors by the grant of permission. Loss could comprise any kind of financial loss, direct or indirect, including loss by reason of delay, and may extend to loss which is not financial;

in carrying out the balancing exercise, the court must take into account all the circumstances such as: the financial position of the company, the administrator’s proposals, the period for which the administration order has already been in force and is expected to remain in force, the effect on the administration if leave were given, the effect on the applicant if leave were refused, the end result sought to be achieved by the administration, the prospects of that result being achieved, and the history of the administration so far;

conduct of the parties may also be a material consideration. Therefore, applicants should make their position clear to the administrator at the outset and, if necessary, apply to the court for leave promptly; and 16

(h)the above considerations may be relevant not only to the decision whether leave should be granted or refused, but also to a decision to impose terms if leave is granted or refused.

Taking into account all of the above, I hold in summation that in a leave application in a Judicial Management proceedings, the considerations which a court should take into account are as follows:- i. the burden is on the person who seeks leave to make out a case for him to be given leave ii. where the granting of leave is unlikely to impede the achievement of that purpose, leave should normally be given iii. whether significant loss is likely to be caused to the applicant by the continued suspension of his rights, then permission should be granted unless substantially greater loss would be caused to the general body of creditors by the grant of permission iv. leave should not be used to benefit the unsecured creditors at the expense of those with proprietary rights, in which event leave should be refused v. the court should carry out the balancing exercise and take into account all the circumstances of the case vi. the conduct of the parties including whether the application to the court for leave was made promptly

In light of my above decision, I hold that the principles in Bruno Phillipe Fehrenbach v Pegawai Penerima, Malaysia (selaku 17 Pelikuidasi Han Pacific Sdn Bhd) [1999] 5 MLJ 321 and in Pegang Mining Co Ltd v Choong Sam & Ors (1969) 2 MLJ 52, are not wholly applicable to the matter before me as the principles for leave in a Winding Up matter is with due respect not entirely similar to that as in an application as that in Enclosure 134 in respect of a Judicial Management Application.

In coming to my decision, I have also taken into consideration that the Proposed Interveners had previously applied in enclosure 69 and 71 both sometime in 19.8.2020 respectively to intervene in the proceedings but that the same were withdrawn with liberty to file afresh on 28.8.2020 without assigning any reasons thereto. It therefore clear that the Proposed Interveners were aware of the existence of the judicial Management proceedings since August 2020 and that from the said enclosure 69, Saidi Bin Abang Samsudin, one of the Proposed Interveners had already indicated in his previous application that he intended to sue for the Affected Shares and include the Company as a nominal Defendant.

It is also from the facts of the whole matter before me, that the QEOS Group had from the outset of this Judicial Management Application been the driving force and financier of the said Judicial Management Application and to now allow the Proposed Interveners to gain back control of the Company when the Company has been placed under a Judicial Management order and when the negotiations with MOE appear to be at a tail end would in my view be inappropriate based on the facts. 18

In the circumstances, I hold after balancing all of the above considerations, that the Civil Suit may currently be spanner in works for the Company’s negotiations with the MOE and for the same to bear any fruit, the said negotiations must be allowed to continue unimpeded to stand any chance of succeeding.

I therefore hold that leave ought not to be granted to the Proposed Interveners and I therefore dismiss Enclosure 134 with costs of RM5,000 each to Jepak Holdings and to the Judicial Manager and RM2,000 each to the 3rd and 6th interveners after hearing parties submit on costs. Dated: 4th day of October 2021 sgd. NADZARIN BIN WOK NORDIN JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT Parties: Mahathir Abdullah for the Applicant, Saidi Bin Abang Samsudin and Zul’Azman bin Ya’akub (Proposed Interveners) in Enclosure 134 [Messrs. Mahathir] Faizal Khalid and Afifah Azman for the Applicant Judicial Managers [Messrs. Sabri Ahmad & Co.] 19 Shim De Zhen for the Applicant Jepak Holdings Sdn Bhd [Messrs. Messrs Yeoh Shim Siow and Lay Kuan] Ananthan Morthi for the 1st Intervener [Messrs. Steven Thiru & Sudhar Partnership] Poon Choong Yiew for the 2nd, 6th to 10th Intervener [Messrs. James Liew & Kong] Simrenjeet Singh and Sareniya Thanaseharan for the 3rd Intervener [Messrs. Simrenjeet, Tay & Co.] Manjit Kaur Gill for the 4th & 5th Intervener [Messrs. Manjit Lavinder & Co.]