Mr. Hamed Ahmed Al Ghazali v Abrar Group International Sdn Bhd (W-02(A)-902-06/2023)

MR. HAMED AHMED AL GHAZALI (Sultanate of Oman Passport)

MR. ABDUL LATIF AL KHUNAINI (Kuwait Passport P05268143)

MR. FAISAL AL HAJRI (Kuwait Passport P05361503)

MR. HUSAM ABU GHAZALEH (Kingdom of Jordan Q074571)

MR. AHMAD AL OSAIMI (Kuwait Passport P05875721)

FUAD AL WOHAIB (Kuwait Passport P05034177) AND ABRAR GROUP INTERNATIONAL SDN BHD

Mr. Hamed Ahmed Al Ghazali (Sultanate of Oman Passport)

Mr. Abdul Latif Al Khunaini (Kuwait Passport P05268143)

Mr. Faisal Al Hajri (Kuwait Passport P05361503)

Mr. Husam Abu Ghazaleh (Kingdom of Jordan Q074571)

Mr. Ahmad Al Osaimi (Kuwait Passport P05875721)

Fuad Al Wohaib (Kuwait Passport P05034177) Plaintiffs And Abrar Group International Sdn Bhd (283272-P) Defendant CORAM S. NANTHA BALAN, JCA. LIM CHONG FONG, JCA. AHMAD KAMAL BIN MD. SHAHID, JCA. GROUNDS OF JUDGMENT INTRODUCTION [1] This is an appeal concerning the proof of debt filed against a company that has been voluntarily wound up. [2] The Appellants, who were the plaintiffs in the High Court, are foreign individuals from the Middle East. [3] The Respondent, who was the first defendant in the High Court, is a private incorporated company governed by the Companies Act 2016. It is the holding company of Abrar Global Asset Management Sdn Bhd ( ), an asset management company. [4] We heard the appeal on 20th May 2025 and thereafter reserved our decision to deliberate on the submissions advanced by the parties. [5] Having now done so, we deliver our decision below together with the supporting grounds. BACKGROUND [6] Between March and June 1997, the Appellants (other than the Second Appellant) were invited by AGAM to invest in a short-term investment ( ). The Raya Fund promised a return on capital and profit of between 15% 20% within a year, by June 1998. The Raya Fund was structured based on Bai Bithaman Ajil Islamic financing for the sole purpose of enabling AGAM to purchase shares in Mun Loong Bhd ( ) from the Respondent at RM13.00 per share in April 1997, and for the subsequent repurchase of those Shares by the Respondent from AGAM at RM15.60 per share in October 1998. For this purpose, an asset purchase agreement, an asset sale agreement, a trust deed, and a power of attorney were executed between the Respondent and AGAM. The investment was further guaranteed by the Respondent and its directors AGAM. [7] The Raya Fund was the brainchild of Dr Wan Hasni Wan Suleiman ( ), an astute Bumiputra businessman and the Chief Executive Officer of the Abrar group of companies, which included the Respondent and AGAM. [8] Pursuant thereto, the First to Sixth Appellants invested USD1,400,000.00, USD1,983,339.94, USD198,333.99, USD99,985.00, USD91,630.31, and USD385,000.00 respectively. [9] Following the Asian Financial Crisis of 1998, the Malaysian stock market crashed. The Respondent fell into severe financial difficulties and was consequently unable to repurchase the Shares. [10] On 23rd February 1999, AGAM informed all investors, including the Appellants, that the Raya Fund could no longer be realised due to the stock market crash. The Respondent proposed a settlement through the issuance of new shares in Abrar Corporation Bhd, but this proposal did not materialise. [11] Instead, on 27th May 2000, the Respondent was placed under special administration by Pengurusan Danaharta Nasional Bhd pursuant to the Danaharta Act 1998. A workout proposal was prepared to settle claims and debts owed to the effect when the Respondent entered into on 30th November 2005, under the charge of Anwar Yahya and later Lim San Peen, the second defendant in the High Court, as liquidator L ). [12] Pursuant to the said liquidation, the Appellants submitted proofs of debt to the Liquidator. The First and Third to Sixth Appellants submitted their respective proofs of debt, while the Second Appellant submitted a proof of debt on behalf of the Khuniani investors [13] IN THE HIGH COURT [14] As the Appellants are dissatisfied with the rejection of their proof of debt, they instituted Kuala Lumpur High Court Originating Summons no. WA-28PW-115-04/2021 on 14th April 2021 and claimed as follows against the Respondent and Lim San Peen in Bahasa Melayu ( ): a) Kebenaran membuat permohonan ini; b) Bahawa keputusan Encik Lim San Peen (Penyelesai terhormat) menolak tuntutan hutang Plaintif Plaintif dibalikan dan/atau diubahsuai; c) Bahawa Encik Lim San Peen (Penyelesai terhormat) dan/atau pekerjanya membayar kepada Plantif Plaintif dan/atau kepada sesiapa sepertimana dilantik oleh Plaintif Plaintif jumlah wang berikut: i. Abdul Latif Al Khunaini (Kuwait Passport P05268143) RM RM6,384,000.00 dan/atau apa apa jumlah yang difikirkan suai manfaat Mahkamah yang Mulia ini; ii. Hamed Ahmed Al Ghazali (Sultanate of Oman Passport) Number FJ1448465 and 1497401 RM8,667,195.57 dan/atau apa-apa jumlah yang difikirkan suai manfaat Mahkamah yang Mulia ini; iii. Faisal Al Hajri (Kuwait Passport P05361503) RM904,402.96 dan/atau apa apa jumlah yang difikirkan suai manfaat Mahkamah yang Mulia ini; iv. Fuad Al Wohaib (Kuwait Passport P05034177) RM1,755,600.00 dan/atau apa apa jumlah yang difikirkan suai manfaat Mahkamah yang Mulia ini; v. Husam Abu Ghazaleh (Kingdom of Jordan Q074571) RM455,931.60 dan/atau apa apa jumlah yang difikirkan suai manfaat Mahkamah yang Mulia ini; vi. Ahmad Al Osaimi (Kuwait Passport P05875721) RM417,834.21 dan/atau apa apa jumlah yang difikirkan suai manfaat Mahkamah yang Mulia ini; d) Selanjutnya secara alternatif Responden Pertama membuat restitusi jumlah wang kepada Plantif Plaintif sepertimana dalam perenggan C i-vi diatas; e) Kos dari estet Responden Pertama dibayar serta merta kepada Plaintif-Plaintif; f) Relif yang lain yang mana difikirkan suai manafaat oleh Mahkamah yang Mulia ini. [15] The learned High Court judge dismissed the Application with costs of RM3,000.00 ) and held as follows in the grounds of

Having read the submissions by the parties, I am in agreement with the winding-up of the Defendant for the following reasons:

There is no debt owing by the Defendant to the Plaintiffs since the investment agreement is between the Plaintiffs and AGAM. The Defendant was never a party to the investment agreement. In fact, AGAM had itself admitted to this fact in its letter dated 25. 07.1998 to the Defendant.

(ii) A Corporate Guarantee was given by the Defendant to AGM. A cause of action lies with AGM and not the Plaintiffs. There is, however, no guarantee by the Defendant to the Plaintiffs or to the Raya Fund investors.

Therefore, this Court finds that the Liquidator was not wrong in rejecting of contract between the parties herein. against a company in a winding-up.

(i) The Plaintiffs in their submission seek to make a claim based on constructive trust agains they had invested in the Raya Fund are held by the Defendant on trust foe them. ust, fiduciary obligations, inequitable conduct and entrustment of trust monies. Which R6 (the six Plaintiffs) now specifically seek to enforce/ make restitution as per the reliefs in (see Enclosure 37, paragraph 19) money is trust money and is not part of the case is wholly inconsistent with the fact that the Plaintiffs have filed PODs with the Liquidator. By having so, they have placed themselves as creditors and with adequately in the winding-up or the remedy sought cannot be given in the winding - Holdings Sdn bhd (in liquidation) [2017] 6 MLJ 661 at paragraph [18]. The Plaintiffs are required to first to first obtain leave under section 263 of the CA 1965 to bring such a claim against the Defendant. The Plaintiffs cannot do so under an appeal under section 263 of the CA 1965.

(iii) The Plaintiffs did not in their affidavits make claims based on Quistclose trust. This contention is made for the fir [16] The Appellants are dissatisfied with the Judgment and have therefore on 6th June 2023 appealed to the Court of Appeal. FINDINGS OF THIS COURT [17] Our function here is merely to review the decision of the High Court. In Vasudevan Vazhappulli Raman v T Damodaran PV Raman & Anor [1981] CLJ 84, Abdoolcader J (as he then was, later FCJ) held as follows, with emphasis added by us: "There is a catenation of cases on this point and it will suffice to cull and refer to a few which restate the well-settled principles. An appellate court can review questions of discretion if it is clearly satisfied that the judge was wrong but there is a presumption that the judge has rightly exercised his discretion and the appellate court must not reverse the judge's decision on a mere "measuring cast" or on a bare balance as the mere idea of discretion involves room for choice and for differences of opinion (Charles Osenton & Co v. Johnston [1942] AC 130 (at page 148), 148 per Lord Wright). The Privy Council held in Ratnam v. Cumarasamy & Anor [1964] CLJU 237; [1964] 1 LNS 237; [1965] 1 MLJ 228 that an appellate court will not interfere with the discretion exercised by a lower court unless it is clearly satisfied that the discretion had been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice, referring to Evans v. Bartlam [1937] AC 473. The House of Lords, approving the decision of the English Court of Appeal in Ward v. James [1966] 1 QB 273, held to the same effect in Birkett [1978] AC 297 (at pages 317, 326), 317, 326. For good measure, we would refer to the felicitous expression of Goulding J., in Re Reed (a debtor) [1979] 2 All ER 22, 25 on this point (at page 25): ... the duties of an appellate court in such a matter as this are, in my judgment, confined to those normally exercisable where the lower court has a discretion, that is to say, we are not justified in setting aside or varying an order simply because we may think we might have come to a different conclusion ourselves on similar material. We can only interfere if either we can see that the court below has applied a wrong principle, or has taken into account matters that are in law irrelevant, or has excluded matters that it ought to have taken into account, or otherwise that no court, properly instructing itself in the law, could have come to the conclusion which in fact was arrived at." [18] Before us, the Appellants contended that the Respondent had overlooked material considerations and failed to provide proper reasons debt, and thereby failed to repay them their investments in the Raya Fund as promised. In support, reliance was placed on Lim Chiew v Siteman Construction Sdn Bhd (Lee Chao Yong, applicant) [2017] 11 MLJ 307, where Lau Bee Lan J (as she then was, later JCA) held as follows: There are a plethora of cases on the applicable law governing an application under s 279 of CA 1965 which include Andrew Christopher Chuah Choong Eng Chuan v. Ooi Woon Chee & Anor [2006] 2 MLRA 675; [2007] 2 MLJ 12; [2007] 2 CLJ 405 (CA) at 419-420 [10], Koh Huat Kwan v. Pegawai Penerima; (Selaku Pelikuidasi bagi Poh Mah Housing Development Sdn Bhd) & Ors [2016] 1 MLRA 348; [2015] 5 MLJ 323; [2015] 7 CLJ 16 (CA) at 24 [16], Abric Project Management Sdn Bhd (supra) at 533 [37]. The principle is that the Court will not interfere with the exercise of the liquidator's powers, acts or decisions unless the Applicant can show that the conduct of the liquidator falls under the following categories: "(a) the liquidator did not address himself to the correct questions;

the liquidator has made errors of law;

the liquidator has acted fraudulently;

the liquidator was not bona fide in his conduct;

the conduct of the liquidator was so utterly unreasonable and absurd that no reasonable person would so act; or

the liquidator has taken into consideration entirely irrelevant [19] In this regard, the Appellants contended that there was ample evidence of both the Respondent and AGAM having solicited their participation in, and payment towards, the Raya Fund investment. Accordingly, the Respondent was obliged, in good faith, equity, and good conscience, to repay the Appellants notwithstanding the stock market crash in 1998. The Appellants further emphasised that Dr Wan Hasni had misapplied the Raya Fund monies invested by them for purposes other than the purchase of Mun Loong shares. He was subsequently charged in the Sessions Court by the Securities Commission. At all material times, the Respondent did nothing to disavow its illegal acts. [20] Additionally, by a letter dated 23rd February 1999, the Respondent wrote to the Fourth Appellant proposing a settlement in respect of the repayment of the Raya Fund investment. In the premises, and by reason of the contemporaneous exchanges between the parties particularly the , the Appellants contended that the Respondent had admitted liability and agreed to repay them. In support, reliance was placed on Gerard Jude Timothy Pereira v Kasi Palaniappan [2017] 1 LNS 889 (CA). [21] Finally, the Appellants contended that, in the circumstances of this case, AGAM and the Respondent ought to be treated as one and the same. In support, reliance was placed on Hewlett Packard Sdn Bhd v Agih Tinta Sdn Bhd [2022] 9 CLJ 15 (CA) and Sou Yong v Yuzin Abdullah [2006] 2 CLJ 1179 (CA). According to the Appellants, AGAM was merely a puppet, acting at the behest of its parent company, the Respondent. Further reliance was placed on Amalgamated Investment Property Co Ltd (in liquidation) v Texas Commerce International Bank Ltd [1981] 3 All ER 577 (HL). Alternatively, the Appellants argued that the Respondent and AGAM stood in a fiduciary relationship, citing Appeals [2012] 2 CLJ 535 (CA) and PECD Bhd (in liquidation) v Amtrustee Bhd [2014] 1 MLJ 91 (FC). [22] The Respondent, in reply, contended that the proofs of debt submitted by the Appellants in September 2020 were premised largely on allegations of fraud against the Respondent. By letter dated 20th October 2020, the Liquidator requested the Appellants to substantiate their claims in writing with further documentary evidence. Only the First and Fifth Appellants responded, on 21st October 2020 and 22nd October 2020 respectively, by re-submitting documents that had already been furnished in September 2020. Consequently, on 30th October 2020, the Liquidator rejected the proofs of debt on the grounds that there was insufficient evidence to establish the claims and, in any event, such claims were not provable in winding-up proceedings. [23] The Respondent further submitted that the contemporaneous documentary evidence unequivocally demonstrated that the Raya Fund investors had invested with AGAM and not with the Respondent. It was AGAM which subsequently invested with the Respondent, and there was [24] claim that their investments were held on constructive trust by the Respondent was not pleaded before the Liquidator. The argument was advanced for the first time before the High Court, and was not premised on a Quistclose trust. [25] Finally, the Respondent relied on Sunrise Megaway Sdn Bhd (in liquidation) v Kathryn Ma Wai Fong [2021] 3 MLJ 602 (CA), submitting [26] The applicable law governing the approach of the High Court when s. 517 of the Companies Act 2016, which is in pari materia with s. 279 of the Companies Act 1965. That provision states as follows:

Appeal against decision of liquidator Any person aggrieved by an act or decision of the liquidator may apply to the Court which may confirm, reverse or modify the act or decision complained of and make such order as it thinks just. [27] In Wong Sin Fan & Ors v. Ng Peak Yam & Anor [2013] 2 MLRA 287 (FC), Zulkefli Ahmad Makinuddin CJM (later PCA) held as follows: Based on the above principles of law, we are of the view that the court should be slow to interfere with any act or decision of the liquidators in discharging their roles in company liquidation and will do so only if it is so unreasonable and absurd that no reasonable person would have acted in that way. The court will not interfere with the decision simply because its opinion might differ from that of the liquidator. (See the case of Andrew Christopher Chuah Choong Eng Chuan v. Ooi Woon Chee & Anor [2006] 2 MLRA 675; [28] Consequently, and upon our review, we find that there is evidently no privity of contract between the Appellants and the Respondent pertaining to the Raya Fund investment. The contract is undoubtedly between the Appellants and AGAM. Furthermore, we find that the exchanges of correspondences between the parties post the Asian Financial Crisis neither created a contractual relationship nor constituted an admission of actionable liability by the Respondent. [29] directly sought from AGAM only. The claim made by them to the Liquidator via their proofs of debt is misplaced. [30] As to the other non-contractual claims, the law and hence the approach to be adopted by the High Court is provided in s. 523 Companies Act 2016 as follows:

Description of debts provable in winding up

Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust shall not be provable in winding up.

A person having notice of any winding up order in a winding up by the Court or a resolution has been passed in a voluntary winding up shall not prove under the winding up for any debt or liability contracted by the company subsequent to the date of his so having notice.

Save as provided in subsections (1) and (2), all debts and liabilities present or future, certain or contingent, to which the company is subject at the date of the winding up order or the resolution, or to which the company may become subject before dissolution by reason of any obligation incurred before the date of the winding up order shall be deemed to be debts provable in winding up.

An estimation shall be made by the liquidator of the value of any debt or liability provable under subsection (3) which, by reason of its being subject to any contingency or for any other reason, does not bear a certain value.

Any person aggrieved by the estimate made under subsection (4) may appeal to the Court.

If in the opinion of the Court, the value of the debt or the liability is incapable of being fairly estimated, the Court may make an order to that effect, and the debt or liability shall for the purposes of this act be deemed to be a debt not provable in winding up.

If in the opinion of the Court the value of the debt or liability is capable of being fairly estimated, the Court may assess the same and may give all necessary directions for this purpose, and the amount of the value when assessed shall be deemed to be a debt provable in winding up. [31] We noted that the abovementioned s. 523 Companies Act 2016 is in pari materia with s. 40 Insolvency (formerly Bankruptcy) Act 1967. [32] In Pilecon Realty Sdn Bhd v. Public Bank Berhad & Ors [2013] 3 MLRA 298 (FC), Zaleha Zahari FCJ explained as follows on administration of an insolvent company under the scheme of the Companies Act 1965 prior to the enactment of s. 523 Companies Act 2016: Section 4(1) and (2) of the Civil Law Act1956 is the provision relating to the administration of insolvent estates and winding up of companies. It provides as follows: "4. Administration of insolvent estates, and winding up of companies.

In the administration by any court of the assets of any deceased person whose estate proves to be insufficient for the payment in full of his debts and liabilities, and in the winding up of any company under any law from time to time in force relating to companies, whose assets prove to be insufficient for the payment of its debts and liabilities, and the costs of winding up, the same rules shall prevail and be observed, as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as are in force for the time being, under the law of bankruptcy, with respect to the estates of persons adjudged bankrupt,

All persons who, in any such case, would be entitled to prove for and receive dividends, out of the estate of any such deceased person, or out of the assets of any such company, may come in under the decree or order for the administration of the estate, or under the winding up of the company, and make such claims against the same as they may respectively be entitled to by virtue of this Act." [45] The provisions of the BA in relation to the debts of a bankrupt are clearly applicable to an insolvent company by virtue of s 291(1) and 291(2) of the Companies Act. It provides as follows: "Subdivision (2) - Proof and Ranking of Claims

Proof of debts

In every winding up, subject in the case of insolvent companies to the application in accordance with this Act of the law relating to bankruptcy, all debts payable on a contingency and all claims against the company present or future, certain or contingent, ascertained or sounding only in damages shall be admissible to proof against the company, a just estimate being made so far as possible of the value of such debts or claims as are subject to any contingency or sound only in damages or for some other reason do not bear a certain value.

Subject to s 292, in the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and debts provable and the valuation of annuities and future and contingent liabilities as are in force for the time being under the law relating to bankruptcy in relation to the estates of bankrupt persons, and all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding up and make such claims against the company as they respectively are entitled to by virtue of this section. [46] Section 8, and in particular, subsection (2A) of the BA, are clear and unambiguous. In the absence of an express provision limiting its application, there is no reason to limit its application only against a bankrupt and not to a wound up debtor. We are in agreement with the Court of Appeal that upon a true construction of s 4(1) and (2) of the Civil Law Act 1956, s 291(1) and (2) of the Companies Act, s 8(2A) of the BA is equally applicable to a secured creditor [33] The Appellants here have also sought to claim from the Liquidator for their Raya Fund investment loss grounded on fraud, breach of fiduciary duty and/or constructive trust. We are however of the view that these are unliquidated damages not ordinarily provable pursuant to s. 523(1) Companies Act 2016 before the Liquidator without a trial. In the premises, it is incumbent upon the Appellant to have commenced and succeed in a writ action against the Respondent before submitting their proofs of debt. That notwithstanding and since the Respondent has been wound up, it is also mandatory for the Appellants to obtain the prior leave of the High Court to commence that writ action; see Ganda Setia Cermerlang Sdn Bhd & Anor v. Maika Holdings Bhd [2017] 6 MLJ 661. [34] We have also reviewed the case of Amalgamated Investment Property Co Ltd (in liquidation) v. Texas Commerce International Bank Ltd (supra) which has been strenuously relied by the Appellants but we find that the facts therein are starkly different involving a nominee arrangement, guarantee and mutual mistake which are clearly absent here. That aside, it is also not a case which emanated from the rejection of a proof of debt made to the liquidator of a wound-up company. [35] We do not therefore find the learned High Court judge is plainly wrong in any way in dismissing the Application. Appellate intervention is hence unwarranted. We are cognisant Kamaluddin Md Said JCA held as follows in Sunrise Megaway Sdn Bhd (in liquidation) v. Kathryn Ma Wai Fong (supra): The threshold test is that the court should be slow to interfere with any act or decision of the Liquidator in discharging his role in company's liquidation particularly in matters involving the admission or rejection of proof of debt which involve commercial considerations. The court can only interfere in very exceptional circumstances when the liquidator has acted in utter CONCLUSION [36] For the foregoing reasons, we find no merit in the appeal. The appeal is accordingly dismissed and Judgment of the High Court is affirmed. [37] For completeness, we are mindful that the Appellants have waited for a long time in excess of 20 years trying to recover their Raya Fund investment loss. Although this Court has wide powers as conferred by s. 69(4) Courts of Judicature Act 1964 which provides:

Hearing of appeals

The Court of Appeal may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires. these powers must nonetheless be exercised judiciously and cautiously. In Harris Solid State (M) Sdn Bhd & Ors v. Bruno Gentil Pereira & Ors [1996] 3 MLJ 489 (FC) subsequently approved in UEM Group Bhd (previously known as United Engineers (M) Bhd) v. Genisys Integrated Engineers Pte Ltd [2018] Supp MLJ 303 (FC), Gopal Sri Ram JCA (later FCJ) held as follows: Lobo, relying on s 69(4) of the Courts of Judicature Act has argued that we can. And Nathan, after due consideration, conceded that we could. In our judgment, Counsels are entirely correct in the common ground upon which they stand. The broad language in which the section is cast, to which we have drawn attention earlier, amply supports the view that Counsel have taken as to the powers this Court may exercise when allowing or dismissing an appeal. [85] We observe that the language of the section is similar, though not identical, to O 41 r 33 of the Indian Civil Procedure Code 1908 which, before its amendment in 1976, read as follows: The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. (Emphasis added.) [86] The words in the Rule to which we have lent emphasis resemble the following words appearing in s 69(4): make any order which ought to have been given or made, and make such further or other orders as the case requires. [87] It follows, therefore, that cases decided by Indian Courts when interpreting r. 33 may be relied upon as a useful guide when seeking to determine the scope of the section. A study of the Indian decisions reveals that a common thread runs through them all. It is that the power is to be exercised in order to meet the justice of the particular case. See, for example Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur ILR 44 Cal. 759 (PC), per Lord Sumner at p. 769. [88] In Ganesh Ram v. Baikunthesh Prasad Singh & Ors AIR [1951] Pat. 291, 293, Ramaswami J explained the scope of r 33 in language that so reflects our own views upon the reach of s 69(4) that we would gratefully accept all that fell from him: The rule has been newly introduced in the Code of 1908. Its object is clearly to enable the Court to do complete justice between the parties. Its terms are very wide and in a proper case it gives the appellate Court ample discretion to pass any decree or make any order to prevent the ends of justice from being defeated. Having regard to the wide language of the rule it is not expedient to lay down any hard and fast rule regarding its true scope. Involving as it does an exercise of judicial discretion the question whether the Court should exercise the powers in a particular case would no doubt depend upon the special facts and circumstances of the case. It may be conceded that the discretion is not to be exercised in an arbitrary manner nor in such a way as to abrogate the other provisions of the Code with respect to the institution of appeals and cross objections and the like. But there is ample authority for the view that the power contained in r 33 extends to those cases where as a result of the appellate Court's interference with the decree in favour of the appellant further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience (see for instance, Jawahar Banu v. Shujaat Hussain Beg AIR [1921] All 367, and Gangadhar v. Banabashi AIR [1914] Cal 722). [89] All the Indian cases we have had an opportunity to peruse voice the same opinion as that expressed by Ramaswami J in the passage above-quoted. [90] We would add that Muniappa v. Ramasetty & Anor AIR [1961] Mys 166 is authority for the proposition that the powers under the Indian equivalent may be resorted to even when an appeal is dismissed. And this certainly accords with the view that forms common ground between Counsel before us in this appeal upon the extent of this Court's power under s 69(4). [91] Based upon the foregoing discussion, we are satisfied that this Court may, in a proper case make consequential orders even after dismissing an appeal in [38] Based on the unique circumstances here, we have initially thought of granting leave to the Appellants to forthwith commence the aforementioned writ action against the wound-up Respondent pursuant to s. 69(4) Courts of Judicature Act 1964. However, after careful consideration, we find it is arbitrary and inappropriate for us to do so in the absence of full evidential material from both the parties before us to decide on whether such leave ought to be granted. See also Tsoi Ping Kwan v. Medan Juta Sdn Bhd & Anor [1996] 3 MLJ 367 (CA). We therefore make no consequential order. [39] In view of the dismissal of the appeal, we award costs of RM 10,000.00 to the Respondent subject to allocator. Dated this 25th September 2025 Sgd. LIM CHONG FONG COURT OF APPEAL JUDGE LIST OF COUNSELS: Counsels for the Appellants Solicitors for the Appellants MESSRS. THE CHAMBERS OF LIM YEEU REN Advocates & Solicitors B-3A-12 Block B, Oasis Square, No. 2 Jalan PJU 1A/7A, Oasis Square, Oasis Damansara, 47301, Petaling Jaya Selangor. Counsel for the Respondent Solicitors for Respondent MESSRS. LEE HISHAMUDDIN ALLEN & GLEDHILL Advocates & Solicitors Level 6, Menara Dutamas, Solaris Dutamas, No.1, Jalan Dutamas, 50480 Kuala Lumpur. STATUTE/LEGISLATION REFERRED TO: ss. 517, 523 of the Companies Act 2016; s. 69(4) Courts of Judicature Act 1964. CASES REFERRED TO: Vasudevan Vazhappulli Raman v T Damodaran PV Raman & Anor [1981] CLJ 84; Lim Chiew v Siteman Construction Sdn Bhd (Lee Chao Yong, applicant) [2017] 11 MLJ 307; Gerard Jude Timothy Pereira v Kasi Palaniappan [2017] 1 LNS 889; Hewlett Packard Sdn Bhd v Agih Tinta Sdn Bhd [2022] 9 CLJ 15; Sou Yong v Yuzin Abdullah [2006] 2 CLJ 1179 Amalgamated Investment Property Co Ltd (in liquidation) v Texas Commerce International Bank Ltd [1981] 3 All ER 577; w Chuan & Ors v Ooi Woon Chee & Ors and Other Appeals [2012] 2 CLJ 535; PECD Bhd (in liquidation) v Amtrustee Bhd [2014] 1 MLJ 91; Sunrise Megaway Sdn Bhd (in liquidation) v Kathryn Ma Wai Fong [2021] 3 MLJ 602; Wong Sin Fan & Ors v. Ng Peak Yam & Anor [2013] 2 MLRA 287; Pilecon Realty Sdn Bhd v. Public Bank Berhad & Ors [2013] 3 MLRA 298; Ganda Setia Cermerlang Sdn Bhd & Anor v. Maika Holdings Bhd [2017] 6 MLJ 661; Harris Solid State (M) Sdn Bhd & Ors v. Bruno Gentil Pereira & Ors [1996] 3 MLJ 489; UEM Group Bhd (previously known as United Engineers (M) Bhd) v. Genisys Integrated Engineers Pte Ltd [2018] Supp MLJ 303; Tsoi Ping Kwan v. Medan Juta Sdn Bhd & Anor [1996] 3 MLJ 367.