Menara Jutamas Sdn Bhd v Abdul Kadir Bin Haji Sheikh Fadzir (WA-29NCC-928-07/2022)

MENARA JUTAMAS SDN BHD [Company No: 201201018475 (1003988-P)]

AMCORP GLOBAL LIMITED (Formerly known as Tee Land Limited) [Company No (Singapore): 201230851-R] ...JUDGMENT CREDITOR

These Grounds concern a Notice of Appeal (Encl 176) dated 10.12.2025 appealing to the Court of Appeal against my decision on 12.11.2025 dismissing an appeal from the decision of the Registrar under Encl 141. Essentially, the appeal concerns the validity of the bankruptcy proceedings against the Judgment Debtor (“JD”).

The chronology of events below are taken from the Judgment Debtor’s (“JD”) Written Submissions, for which I am grateful.

3.6.2022 - A Notice of Bankruptcy was filed against the JD by the Judgment Creditors (collectively, “JC”) comprising (Menara Jutamas Sdn Bhd (JC1) and Amcorp Global Limited, formally known as Tee Land Limited (JC2).

8.8.2023 - JC filed the Creditor’s Petition (“CP”).

1.8.2024 - JD wrote to Agensi Kaunseling dan Pengurusan Kredit (AKPK) for the appointment of AKPK as the nominee for a Voluntary Arrangement.

28.8.2024 - AKPK accepted the appointment and assigned Gunasegaran Munusamy as a nominee for the Voluntary Arrangement.

25.9.2024 - JD filed an ex-parte application for an Interim Order (“IO”) at the Kuala Lumpur High Court vide Suit No: WA-29VA-4-09/2024 (“VA Court”) together with an Affidavit in Support affirmed by the JD.

9.10.2024 - The Deputy Registrar of the Kuala Lumpur High Court granted an IO.

20.12.2024 - AKPK proposed that a Creditors’ Meeting be held on 20.12.2024 but one of the creditors was not able to attend and requested for the meeting to be held in January 2025.

27.12.2024 - The JD, by way of letter dated 27.12.2024, proposed payment to the JC. However, neither AKPK nor the JD received any response from the JC in respect of the proposed payment arrangement.

10.1.2025 - The JD filed an Affidavit requesting for a 30- day extension of the IO.

4.2.2025 - The JD proposed a Voluntary Arrangement (“VA”) which was tabled at a purported creditors’ meeting held at AKPK. Upon the conclusion of the meeting, 91% of the creditors approved the VA proposal. The JC rejected the proposal without any counter proposal. 4 25.2.2025 - The Report of the Nominee dated 7.2.2025 was purportedly sealed by the Kuala Lumpur High Court pursuant to s. 2J(1) of the Insolvency Act 1967 (“IA”) and circulated to all the creditors.

13.3.2025 - A Bankruptcy Order was entered against the

19.3.2025 - The JD instructed his previous solicitors, Messrs Nizam Bashir & Associates to file a Notice of Appeal against the Bankruptcy Order.

24.4.2025

7.5.2025 - - Notice of change of solicitors was filed. A Notice of Application to annul the Bankruptcy Order was filed with an Affidavit affirmed by the

The Contents of these grounds are set out in the table set out below. Contents Para No CHRONOLOGY OF EVENTS 2 i) No Leave under Order 46 rule 2(1) (b) by JC2 6-16 ii) The VA pursuant to s. 2K (22) of the IA 17-20 No valid Creditors’ Meeting under s. 2I 21-23 iii)Judgment Debtor Has Demonstrated an Ability to Pay His Debts 24-26 The Exhausting of all modes of execution and enforcement against the Principal Debtor before commencing bankruptcy proceedings against the Guarantor (JD) 27-35 CONCLUSION 36

In essence, the JD claims that the Bankruptcy Order obtained on 13.3.2025 (Encl 142) based on the Bankruptcy Notice dated 3.6.2022 (Encl 3) was null and void and should be set aside, for 4 reasons. a. The first is that no prior leave of Court under O. 46, r. 2 (b) of the Rules of Court 2012 (“RoC”) was obtained to substitute the name of Tee Land Limited with Amcorp Global Limited before the commencement of the bankruptcy proceedings. b. There is a VA in force. The Nominee’s Report was sealed on 25.2.2025, which extended the validity of the IO to 25.3.2025 pursuant to s 2K (2) of the IA. The Bankruptcy Order obtained on 13.3.2025 was therefore invalid. c. JD has demonstrated an ability to pay his debts as JD’s VA was purportedly approved during an alleged creditors’ meeting on 4.2.2025, thus rendering the JD solvent. d. JC had failed to exhaust all modes of execution and enforcement within s. 5(3)(b) of the IA against the principal debtor, Sazean Development Sdn Bhd (in liquidation) (“Sazean”) before commencing bankruptcy proceedings against the JD, a guarantor. All the JC did was to file a proof of debt with the Liquidator of Sazean.

I will deal with each contention in turn

No Leave under Order 46 rule 2(1)(b) by JC2

There was a change in the name of Tee Land Limited to Amcorp Global Limited.

It was submitted that JC2 did not obtain prior leave of court under Order 46 rule 2(1)(b) of the RoC to substitute the name of Tee Land Limited with Amcorp Global Limited before the commencement of the bankruptcy proceedings.

Order 46 rule 2(1)(b) of the RoC provides: “When leave to issue any writ of execution is necessary (O.46, r. 2)

(1) A writ of execution to enforce a judgment or order may not be issued without the leave of the Court in the following cases:

Where six years or more have lapsed since the date of the judgment or order;

Where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order.”

It was therefore submitted that the bankruptcy proceedings initiated through the Bankruptcy Notice on 3.6.2022 (Encl 3) is void ab initio.

The JC requested the issue of the Bankruptcy Notice premised on a Judgment dated 16.5.2019 obtained by the JC. Tee Land Limited was not a party to these bankruptcy proceedings, whereby JC1 failed to obtain leave of court allegedly in contravention of Order 46 rule 2(1)(b) to substitute the name of Tee Land Limited with Amcorp Global Limited. This failure allegedly rendered the Bankruptcy Order null and void. The JD relies on Re Liew Kong Ken, Ex P Sucorp Enterprise Sdn Bhd [1998] 2 CLJ SUPP 508 at paras 63 and 65 and the Court of Appeal in Kay Hian Pte Ltd v Ma Boon Lan [2014] 1 CLJ 464 which followed Re Liew Kong Ken (supra).

With respect, Order 46, r. 2 (b) does not apply as there is no change of parties. It is undisputed that Amcorp Global Limited is the same entity as Tee Land Limited. This is clear from the intitulement of the BN itself which states that Amcorp Global Limited was formerly known as Tee Land Limited with the same company number of 201230851-R.

A mere change in name of a party does not affect the rights and liabilities of that party. a. In Ambank (M) Bhd v Yong Kim Yoong Raymond [2009] SCGA 5, the Court of Appeal held that change in the parties occurs when a party dies or the judgment is assigned to another party but does not include a mere change in name: “[53] … However, the answer to the third issue, viz, whether AmBank is prevented from commencing bankruptcy proceedings against YKY by O 46 r 2(1)(b) of the Rules of Court, is obviously "no". The change in the parties referred to in O 46 r 2(1)(b) (see [6] above) clearly means a change in the identities of the parties, such as when a party to the judgment has died or the judgment has been assigned to another party (see Singapore Civil Procedure 2007 (G P Selvam ed) (Sweet & Maxwell Asia, 2007) at para 46/2/3). It does not mean a change in the name of a party. A change in name does not affect the rights or liabilities of the party (see s 28(6) of the Companies Act (Cap 50, 2006 Rev Ed), K-Rex Finance Ltd v Cheng Chih Cheng [1993] 1 SLR 46, MBf Finance Bhd v Ting Kah Kuong [1993] 3 MLJ 73 and Re Amran bin Ahmad; ex p MBf Finance Bhd [2005] 7 MLJ 477).” b. In Per Bageswari A/P M Subramaniam; Ex Parte Ammetlife Insurance Bhd (dahulunya dikenali sebagai Am Life Insurance Bhd) [2024] MLJU 12, Kenneth St James JC (as he then was) rejected the same argument raised by the JD herein. He held: “[11] Second, the JD’s argument that the SC Judgment and the HC Order are not made in favour of the JC: “Ammetlife Insurance Berhad”, and hence “Ammetlife Insurance Berhad” cannot issue the BN against the JC—is untenable. … [12] The JC merely changed its name under section 28 of the Companies Act 2016 (CA). Subsection 28(5) provides that a change of a company’s name does not affect the rights or obligations of the company. And it does not render any legal proceeding by or against the company defective. Subsection 28(6) further provides that any proceedings commenced by or against the company in its former name can be continued by or against it in its new name. [16] Third, in the intitulement of the BN, the JC is named as: “Ammetlife Insurance Berhad [Company No. 15743-P] (formerly known as AmLife Insurance Berhad)”. The JC had in fact disclosed its change of company name when it commenced this bankruptcy proceeding against the JD.”

In my judgment, a mere change in name does not amount to a change of a party and falls outside the scope of O. 46, r. 2 (b).

Order 2, r.2(1) protects any irregularity. It provides that: “2. Application to set aside for irregularity (O. 2 r. 2)

An application to set aside any proceedings, any step taken in any proceedings or any document, judgment or order therein for non-compliance with these Rules shall not be allowed unless the application is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity and the non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs.”

First, the JD had ample opportunity to challenge the BN and the CP right up to the granting of the Bankruptcy Order. Yet, no objection was raised in respect of the change in name of Amcorp Global Limited. The challenge was not made in a reasonable time. Secondly, the complaints are at best a mere non-compliance with the RoC, and there is no miscarriage of justice. There is simply no prejudice whatsoever to the JD.

There is nothing in this point.

(ii) The VA pursuant to s. 2K(2) of the IA

The JD filed for protection under a Voluntary Arrangement pursuant to s. 2K (2) of the Insolvency Act 1967 (“IA”) whereby an Interim Order (“IO”) was obtained on 9.10.2024, see Exhibit ‘KSF-2’ Encl 147.

First, the IO was only valid for 90 days and expired on 7.1.2025. It cannot be extended. S. 2D (3) provides: “(3) An interim order referred to in subsection (1) shall be valid for a period of ninety days from the date the order is made and such period shall not be extended.”

The IO itself provides that it expired on 7.1.2025. The rationale for this limited period is due to its incursion into the rights of creditors, as explained by the Singapore Court in Re Aathar Ah Kong Andrew [2018] SGHC 227: “[41] First, the interim order is intended to function as a temporary moratorium. Read together, ss 45(4) and 48(2) indicate that the purpose of the interim order is to allow the creditors some time to consider and, if thought fit, to approve the debtor’s proposal. … In In re A Debtor (No 83 of 1988) [1990] 1 WLR 708, Scott J too remarked (at 710), in relation to similar provisions found in the United Kingdom’s Insolvency Act 1986, that the general intention of [such] legislative provisions was to provide a short period during which the affairs of the debtor could be looked into by an independent insolvency practitioner, and to provide time for a voluntary arrangement regarding the affairs of the debtor to be considered by the debtor’s creditors. It was thus clear to me that the interim order is intended to exist only for a limited purpose and to operate only for a limited period of time to achieve its purpose. This is actually unsurprising since the effect of an interim order is a serious incursion into the rights of creditors to proceed against a debtor to recover what is owed.”

The limited time frame also provides that the creditors’ meeting to approve a VA must be summoned before the expiry of the IO and in the manner prescribed under s. 2I of the IA and r. 12 of the VA Rules. These provide: a. S. 2I of the IA provides: “(1) Where an interim order has been made, the nominee shall, before the expiry of the interim order referred to in subsection 2D

(3), summon every of the debtor's creditor to a meeting by giving a prescribed notice to such creditors as to approve the debtor's proposal for a voluntary arrangement ... …

The meeting summoned under subsection (1) or any subsequent meeting may, by special resolution, resolve to approve the proposed voluntary arrangement with or without modification …”. b. Rule 12 of the VA Rules provides: “(1) The nominee, after preparing the debtor’s proposal under rule 11, shall summon the meeting of creditors within fourteen days.

Notice of the meeting of creditors under subrule (1) shall be made in Form 10 and sent to all of the creditors specified in the debtor’s statement of affairs.” No valid Creditors’ Meeting under s. 2I

No creditors’ meeting was summoned by the Nominee within the validity of the IO. In this regard, the IO expired on 7.1.2025. The Notice to Summon the Meeting to be held on 4.2.2025 was only issued on 21.1.2025, after the lapse of the IO.

A meeting of creditors was convened on 4.2.2025, during which the JD’s proposed voluntary arrangement was allegedly approved by the creditors. It had no effect as it was approved after the lapse of the IO.

Therefore, the Bankruptcy Order that was entered against the JD on 13.3.2025 was perfectly valid as there was nothing restraining the hearing of the bankruptcy proceedings.

(iii) Judgment Debtor Has Demonstrated an Ability to Pay His Debts

S. 6(3) of the IA provides that: “(3) If the court is not satisfied with the proof of the petitioning creditor’s debt or of the act of bankruptcy or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made, the court may dismiss the petition.”

The argument is that there is no act of bankruptcy committed by the JD pursuant to the meeting of creditors summoned on 14 4.2.2025 because the JD’s voluntary arrangement was allegedly approved, thus showing that the JD is able to pay his debts. Whether the approval of the VA could lead to the conclusion that the JD is solvent is immaterial. The fact is there was no such approval of the VA, as the meeting of creditors was invalid having being held after the expiry of the IO.

I cannot see how the Court’s discretion could be exercised under s. 6(3). This is no ground to set aside the Bankruptcy Order. The Exhausting of all modes of execution and enforcement against the Principal Debtor before commencing bankruptcy proceedings against the Guarantor (JD)

Under s. 5(3)(b) of the IA, the JC must obtain leave of Court before commencing bankruptcy proceedings against a non-social guarantor. S. 5(4) of the IA provides: “(4) Before granting leave referred to in para (3)(b), the court shall satisfy itself that the petitioning creditor has exhausted all modes of execution and enforcement to recover debts owed to him by the debtor.”

Rule 97 of the Insolvency Rules (“IR”) provides as follows: “Application for leave of court

An application for leave of court under para 5(3)(b) of the Act shall be made by summons in chambers supported by an affidavit and be served on the debtor.

The Court in granting the leave under subrule (1) must satisfy itself that the petitioner has exhausted all modes of execution and enforcement under subsection 5(6) of the Act.

Such leave shall not be granted unless the petitioning creditor had complied with the requirement of this rule.

29.

4.

Further, in para 19 of Encl 4, the JCs have affirmed that they have filed a Proof of Debt with the Liquidator of Sazean, the Principal Debtor, in respect of which the JD is a Guarantor.

31.

The Winding-up Petition was filed by Susan Veronica Hendroff and Christopher Oh Kim Teck, not the JC. The JC merely filed a Proof of Debt in the Winding Up before initiating this bankruptcy action against the JD.

In Hong Leong Bank Bhd v. Ong Moon Huat & Another Appeal [2018] 1 LNS 1612 it was held in relation to s. 5(6) of the IA: “[3] A purposive construction of the section as a whole discloses that the section seeks to introduce protection for the guarantor against whom bankruptcy proceedings are to be brought. The protection comes in the form of ensuring that enforcement has been exhausted in respect of the principal debtor prior to proceeding against the guarantor.”

In Liew Hon Kon v. Bank Pertanian Malaysia Bhd [2021] 9 CLJ 82, the Court of Appeal confirmed that under s. 5(3) of the IA, before commencing bankruptcy proceedings against a non-social guarantor, leave must be obtained by showing that the JC had exhausted all modes of execution and enforcement against the principal debtor.

In my judgment, the JC could not have taken any other steps and has exhausted all modes of execution and enforcement to recover the debts owed by Sazean, principal debtor. With the winding up of Sazean, there was nothing further that the JC could have done except to file a Proof of Debt, which was done.

For the reasons aforesaid, I dismissed the appeal in Encl 141 with costs of RM10,000.00 to be paid by the JD to the JC. Dated the 30th day of January 2026 ...........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Counsel for the Judgment Debtor: Solicitors: Lourdes Abishegam & Shamitha Ganisan Messrs. Zahir Jeya & Zainal (Petaling Jaya) Counsel for the Judgment Creditor: Solicitors: Wong Han Wey & Sasithra Avadiar Messrs. Lee Hishamuddin Allen & Gledhill (Kuala Lumpur) Case References: • Ambank (M) Bhd v Yong Kim Yoong Raymond [2009] SCGA 5 • Hong Leong Bank Bhd v. Ong Moon Huat & Another Appeal [2018] 1 LNS 1612 • Kay Hian Pte Ltd v Ma Boon Lan [2014] 1 CLJ 464 • Liew Hon Kon v. Bank Pertanian Malaysia Bhd [2021] 9 CLJ 82 • Per Bageswari A/P M Subramaniam; Ex Parte Ammetlife Insurance Bhd (dahulunya dikenali sebagai Am Life Insurance Bhd) [2024] MLJU 12 • Re Aathar Ah Kong Andrew [2018] SGHC 227 • Re Liew Kong Ken, Ex P Sucorp Enterprise Sdn Bhd [1998] 2 CLJ SUPP 508 Legislation References: • Insolvency Act 1967 (“IA”) • Rule 97 of the Insolvency Rules (“IR”) • Rules of Court 2012 (“RoC”) Decision Date: 12th November 2025