Tan Kok Aun v Prolific Properties Sdn Bhd (MA-22NCvC-25-04/2024)

TAN GEOK LAY (NO. K/P: 720509-01-5308) ... PLAINTIF-PLAINTIF DAN PROLIFIC PROPERTIES SDN BHD (NO. PENDAFTARAN: 946453-P) ... DEFENDAN GROUNDS OF JUDGMENT (Enclosure 23) A. INTRODUCTION [1] By a notice of application dated 15.05.2026 (Notis Permohonan Enclosure 23), the plaintiffs apply under Order 19 rule 7, read with Order 13 rule 6 and Order 92 rule 4 of the Rules of Court 2012 ("ROC 2012"), for judgment in default to be entered against the defendant for: (a) the principal sum of RM214,362.12; (b) interest at the rate of 5% per annum on that sum from 29.11.2017 until 01.08.2024, amounting to RM71,561.71; and (c) accordingly, the total sum of RM285,923.83, together with the costs of the application. [2] The application is not of the ordinary kind. The defendant is a company which was wound up by an order of this Court made on 01.08.2024 in Companies Winding-Up Petition No. MA- 28NCC-29-05/2024. Since that date, the defendant has been capable of acting only through its liquidators, and the action itself could be proceeded with only upon leave of the Court under section 471(1) of the Companies Act 2016. Such leave was granted by an order dated 17.11.2025 made in Case No. 28PW-24-06/2025. [3] A second feature takes the application outside the usual run of default judgments. Before the winding-up order was made, the defendant had pleaded to the claim: a Pernyataan Pembelaan dated 10.07.2024 was filed on its behalf, and the plaintiffs joined issue by a Jawapan Kepada Pernyataan Pembelaan dated 18.07.2024. A defence therefore stands on the record. The default relied upon on the face of Enclosure 23 is the defendant's failure to enter an appearance and/or its failure to take the appropriate steps in this action, notwithstanding that it was notified through its liquidators. [4] The application accordingly raises three questions: first, whether the action, and this application, are maintainable against the defendant in liquidation; secondly, whether, upon this record, a default within the contemplation of the ROC 2012 is made out such that the Court has power to enter judgment notwithstanding the defence filed on 10.07.2024; and thirdly, if such power exists, what judgment the plaintiffs appear entitled to on their claim as pleaded, including the claim to interest. [5] Enclosure 23 is supported by the Afidavit Sokongan of the first plaintiff, Tan Kok Aun, affirmed on 13.05.2026 (Enclosure 24). Service of the application and of the supporting affidavit upon the defendant's liquidators is proved by the Afidavit Penyampaian of Nurul Shahkina binti Jaapar affirmed on 21.05.2026 (Enclosure 25). No affidavit in reply was filed. There was no appearance by or on behalf of the defendant or its liquidators at any stage, and the application was determined by way of e-Review on 03.06.2026. [6] These are the grounds of my decision. B. MATERIAL FACTS AND PROCEDURAL HISTORY [7] By a sale and purchase agreement dated 29.11.2017, the plaintiffs agreed to purchase from the defendant a unit known as Unit H-22-07, Satori Suite, Melaka, at the purchase price of RM409,088.00 (Enclosure 24, paragraph 7). [8] Following the execution of that agreement, the plaintiffs paid to the defendant sums amounting in the aggregate to RM214,362.12 (Enclosure 24, paragraph 8). The defendant failed to deliver vacant possession of the unit to the plaintiffs (Enclosure 24, paragraph 9). [9] The plaintiffs commenced this action against the defendant. The Pernyataan Tuntutan is dated 24.04.2024; the writ was amended, the Writ Terpinda being dated 10.06.2024; and the Writ Terpinda together with the related cause papers was duly served on the defendant (Enclosure 24, paragraphs 10 and 11). [10] The defendant, then represented by Messrs LY Ooi & Choi, pleaded to the claim: the Pernyataan Pembelaan is dated 10.07.2024, and the plaintiffs' Jawapan Kepada Pernyataan Pembelaan is dated 18.07.2024. The pleadings had, in substance, closed before the events next described. [11] On 01.08.2024, upon the petition of Tan Huey Leng and 29 others in Petition No. MA-28NCC-29-05/2024, this Court ordered that the defendant be wound up under the Companies Act 2016 and that the Official Receiver be appointed as interim liquidator of the company (Enclosure 24, paragraph 12 and exhibit "TKA-TAB A"). The plaintiffs were informed of the winding-up order by the defendant's former solicitors. [12] The conduct of the defendant's liquidation thereafter came to be in the hands of two liquidators: Mr Wong Chong Yong, care of Messrs DC Restructuring Solutions PLT, and Mr Ng Choon Jin, care of Messrs S.L. Ng Associates (Enclosure 24, paragraph 13; exhibit "TKA-TAB B"). [13] By an order dated 17.11.2025 made in Case No. 28PW-24 06/2025, the plaintiffs were granted leave under section 471(1) of the Companies Act 2016 to proceed with this action against the defendant notwithstanding the winding up. [14] On 07.01.2026, the plaintiffs' solicitors dispatched by GDEX courier to each of the two liquidators a complete set of the cause papers, namely the Writ Terpinda dated 10.06.2024, the Pernyataan Tuntutan dated 24.04.2024, the Pernyataan Pembelaan dated 10.07.2024, the Jawapan Kepada Pernyataan Pembelaan dated 18.07.2024 and the order dated 17.11.2025. Both consignments were delivered and received on 08.01.2026 (Enclosure 24, paragraphs 14 and 15; exhibit "TKA-TAB B", GDEX consignment numbers MY35104554412 and MY35104554400). The covering letters dated 07.01.2026 notified the liquidators that the Court had fixed the next mention of the action on 15.01.2026. [15] On 06.04.2026, the plaintiffs' solicitors again dispatched by GDEX courier to each liquidator letters dated 03.04.2026 enclosing the same five documents. Both consignments were delivered and received on 07.04.2026 (Enclosure 24, paragraph 16; exhibit "TKA-TAB B", GDEX consignment numbers MY35105731306 and MY35105731318). Each letter gave express notice that the liquidator was to comply strictly with the entering of appearance, that the Court had fixed 15.05.2026 for case management, and that attendance was compulsory. [16] Notwithstanding those notifications and the acknowledged receipt of the cause papers, no appearance was entered for the defendant by its liquidators and no step of any kind was taken on the defendant's behalf in this action (Enclosure 24, paragraph 17). [17] Enclosure 23 was filed on 15.05.2026, supported by Enclosure 24 affirmed on 13.05.2026. On 18.05.2026, sealed copies of Enclosure 23 and of Enclosure 24 were dispatched by GDEX courier to each of the two liquidators, and both consignments were delivered and acknowledged as received on 19.05.2026 (Enclosure 25, paragraphs 4 and 5; exhibits "NSJ"-"TAB A" and "NSJ"-"TAB B", GDEX consignment numbers MY35120128080 and MY35120128104). The covering letters dated 18.05.2026 further notified the liquidators that the matter stood for mention on 22.05.2026. [18] The liquidators did not respond. There was no attendance by or for the defendant at the case management dates of which notice had been given, no affidavit in reply to Enclosure 24, and no appearance upon the disposal of Enclosure 23 on 03.06.2026. C. ISSUES FOR DETERMINATION [19] Three issues arise for determination:

whether this action, and the present application, are maintainable against the defendant in liquidation (the maintainability issue);

whether, a defence dated 10.07.2024 remaining on the record, the defendant is in default within the meaning of the ROC 2012 such that the Court has power to enter judgment against it, whether under Order 13 rule 6 and Order 19 rule 7 as invoked or otherwise under the Rules (the default issue); and

if such power exists, whether the plaintiffs appear entitled on their claim as pleaded to the sums sought, including interest, and the terms upon which judgment should be entered (the entitlement issue). D. GOVERNING LAW AND FRAMEWORK [20] The maintainability issue is governed by section 471(1) of the Companies Act 2016. Upon the making of a winding-up order, no action or proceeding may be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court may impose. The provision preserves the statutory scheme of collective realisation and rateable distribution by protecting the company in liquidation from a multiplicity of individual suits; leave, once granted, lifts the embargo to the extent of its terms. [21] The ROC 2012 maintains two distinct default regimes. Order 13 addresses default of appearance; by Order 13 rule 6(1), where the writ is endorsed with a claim of a description not mentioned in rules 1 to 4 and the defendant fails to enter an appearance, the plaintiff may proceed with the action as if the defendant had entered an appearance. Order 19 addresses default of pleading; by Order 19 rule 7(1), where the claim is of a description not mentioned in rules 2 to 5 and the defendant fails to serve a defence, the plaintiff may apply to the Court for judgment, "and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim". By rule 7(3), the application is made by notice of application. Two features of rule 7 bear emphasis: judgment under it is a judicial act, given only upon the Court's satisfaction as to the plaintiff's entitlement on the pleaded claim, and that discipline is peculiarly apt where the defendant is not before the Court. [22] Order 34 governs pre-trial case management. By Order 34 rule 6(1), if at the time appointed for the pre-trial case management any party fails to attend, the Court may dismiss the action or proceedings, or strike out the defence or counterclaim, or enter judgment, or make such other order as the Court thinks fit. By rule 6(2), an order made in the absence of a party concerned or affected by it may be set aside by the Court, on the application of that party, on such terms as it thinks just. Corresponding protection attends judgments entered in default: Order 13 rule 8 and Order 19 rule 9. Finally, three provisions of general application: Order 1A requires the Court, in administering the Rules, to have regard to the overriding interest of justice and not only to technical non-compliance; Order 2 rule 1 provides that noncompliance with the Rules is an irregularity which does not nullify the proceedings or any step, document, judgment or order in them; and Order 92 rule 4 declares, for the removal of doubt, that nothing in the Rules limits or affects the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [24] None of the foregoing is contentious, and it is unnecessary to set out the law at greater length. The centre of gravity of this application lies not in any dispute as to the content of these provisions but in their application to an unusual record, to which I now turn. E. ANALYSIS AND DETERMINATION The First Issue: Maintainability [25] The winding-up order of 01.08.2024 brought the embargo in section 471(1) of the Companies Act 2016 into operation, and this action could not thereafter be proceeded with as of right. The order dated 17.11.2025 in Case No. 28PW-24 06/2025 granted the plaintiffs leave to proceed with this action against the defendant. That order was itself among the documents delivered to and received by both liquidators on 08.01.2026 and again on 07.04.2026. Nothing on the record suggests that leave was granted upon terms which would preclude the relief now sought. [26] The statutory threshold is accordingly satisfied. The action is maintainable, and the present application has been properly directed to the liquidators, who are the only persons through whom the defendant can now act. The first issue is answered in the plaintiffs' favour. The Second Issue: Whether the Defendant Is in Default Such That Judgment May Be Entered [27] It is convenient to begin with what the application cannot rest upon. The first limb of prayer 2 of Enclosure 23 relies upon a failure to enter appearance. A default of appearance cannot, however, be found in the teeth of this record: a defence was filed for the defendant on 10.07.2024, and the plaintiffs themselves joined issue upon it by their Jawapan Kepada Pernyataan Pembelaan dated 18.07.2024. A defendant which has pleaded to the claim has necessarily participated in the action, and the plaintiffs' own conduct treated it as having done so. That limb, and with it Order 13 rule 6, must be put aside. [28] Nor, read literally, does Order 19 rule 7 fit the facts. The rule is engaged where the defendant "fails... to serve a defence". A defence was served before the winding-up order was made. If the matter rested upon the letter of that rule alone, an application for judgment in default of pleading would fail in limine. [29] But the matter does not rest there, for two reasons. First, prayer 2 does not rely upon default of appearance alone; in the alternative, it relies upon the defendant's failure to take the appropriate steps in this action notwithstanding notification through its liquidators. Secondly, prayer 5 seeks such further or other relief as the Court considers just and suitable. The substance of Enclosure 23 of which the liquidators had full and timely notice is that judgment in specified sums be entered because the defendant, acting by its liquidators, has wholly abstained from this action despite leave having been obtained and despite every opportunity to participate. It is the substance of an application, and not the label of the enabling rule recited in its heading, which governs: Order 1A and Order 2 rule 1 of the ROC 2012 put that beyond argument. [30] The consequence of the winding up must then be faced squarely. Upon the making of the winding-up order, the defendant could act in this litigation only through its liquidators; the authority of the solicitors formerly retained by the company came to an end with that order. The Pernyataan Pembelaan of 10.07.2024 remains a pleading on the file; but a pleading does not prosecute itself. Since 01.08.2024, no person with authority to act for the defendant has come forward to maintain it. [31] What the record then discloses is a sustained and fully informed abstention. The liquidators received the complete cause papers, including the leave order, on 08.01.2026, with notice of the mention on 15.01.2026. They received the same set again on 07.04.2026, together with an express direction to enter appearance and notice that attendance at the case management on 15.05.2026 was compulsory. They received the sealed copy of this application and the supporting affidavit on 19.05.2026, with notice of the mention on 22.05.2026, and thus had the application in hand a full fifteen days before its disposal on 03.06.2026. At no point was an appearance entered, an attendance recorded, an affidavit filed, or any communication addressed to the Court. This is not oversight, nor want of notice. It is an election, by the only persons with authority to act for the defendant, not to defend this action. [32] The question is whether the Court is powerless in the face of that election because Order 19 rule 7 speaks of a failure to serve a defence. In my judgment, it is not. The Rules provide expressly for the very situation which has arisen. Order 34 rule 6(1) empowers the Court, upon a party's failure to attend the pre-trial case management, to strike out the defence or to enter judgment or to make such other order as it thinks fit. The premise of the rule is that pleadings are not an end in themselves: a party which will not attend and will not prosecute its pleaded case cannot shelter indefinitely behind the paper it has filed while the opposing party is held at bay. The powers conferred by Order 34 rule 6(1) exist to prevent precisely that state of affairs. [33] The power is a strong one, and it is to be exercised with restraint - the more so against a company in liquidation, which speaks only through officers upon whom many demands are made. The Court would not act upon a single missed date or upon equivocal notice. What must, at a minimum, appear is: first, actual and repeated notice to the liquidators of the action and of what was required of them; secondly, a clear direction to appear or attend; thirdly, an opportunity to respond to the specific application for judgment; and fourthly, continued default in the face of all of it. Each requirement is satisfied here. Receipt of every consignment is acknowledged on the GDEX records exhibited in "TKA-TAB B" and in "NSJ"-"TAB A" and "TAB B"; the direction of 03.04.2026 as to appearance and compulsory attendance was explicit; the application itself was in the liquidators' hands from 19.05.2026; and the default nonetheless continued, complete and unbroken, to the date of disposal. [34] Order 92 rule 4 reinforces, though it does not supplant, the express power. To withhold judgment on this record would leave the plaintiffs - who have done everything the law required of them: obtained leave under section 471(1), given notice upon notice, and moved the Court - in indefinite procedural limbo, while a defence which no one is authorised or willing to advance blocked the road to any adjudication. Preventing that injustice is the very office of the inherent powers preserved by Order 92 rule 4, which here operate in aid of Order 34 rule 6(1) and of prayer 5 of Enclosure 23. Nor could it sensibly be suggested that the plaintiffs must instead conduct a full trial against an empty chair; the Rules do not require so barren and costly an exercise where the express power to enter judgment upon non-attendance is engaged. [35] It follows that the Pernyataan Pembelaan dated 10.07.2024 falls to be struck out pursuant to Order 34 rule 6(1), read with Order 92 rule 4, and that the Court has power to enter judgment against the defendant. The invocation of Order 19 rule 7 and Order 13 rule 6 in the heading of Enclosure 23, rather than Order 34 rule 6, is an irregularity of label only. It occasioned no prejudice, because the relief sought judgment in the specific sums itemised in prayer 3 was spelled out on the face of the application served upon and received by the liquidators. Order 2 rule 1 is a complete answer to it. [36] Two safeguards should be recorded. First, although judgment, once the defence is struck out, need not pass through Order 19 rule 7, I adopt the discipline of that rule and give only such judgment as the plaintiffs appear entitled to on their claim as pleaded. That entails judicial scrutiny of entitlement and of quantum, to which I turn under the third issue; the scrutiny is the more important where the defendant is in liquidation, since the judgment will speak to the general body of its creditors. Secondly, the defendant is not without recourse: an order made in the absence of a party may be set aside on that party's application upon such terms as are just (Order 34 rule 6(2)), and the like protection attends judgments entered in default (Order 13 rule 8; Order 19 rule 9). The second issue is answered in the plaintiffs' favour. The Third Issue: Entitlement and Quantum [37] The principal sum. The affidavit evidence in Enclosure 24, paragraphs 7 to 9, establishes that by the sale and purchase agreement dated 29.11.2017 the plaintiffs purchased Unit H- 22-07, Satori Suite, Melaka, at the price of RM409,088.00; that they paid the defendant sums totalling RM214,362.12; and that the defendant failed to deliver vacant possession of the unit. That evidence stands wholly uncontradicted; the pleadings setting out the claim were twice delivered into the liquidators' hands, and no challenge of any kind was mounted. The sum of RM214,362.12 is a specific and ascertained figure — the aggregate of the plaintiffs' own payments — and it is deposed, in Enclosure 24, paragraph 21, to be clear, certain and ascertainable. I so find. The plaintiffs appear entitled on their claim to judgment for the principal sum of RM214,362.12. [38] Interest. The claim, as pleaded and as deposed to in Enclosure 24, paragraph 19, is for interest at 5% per annum on RM214,362.12 from 29.11.2017 until 01.08.2024, in the sum of RM71,561.71. The arithmetic has been verified: the period from 29.11.2017 to 01.08.2024 comprises 2,437 days, and interest on RM214,362.12 at 5% per annum for 2,437 days, computed on a 365-day year, yields RM71,561.71 exactly. The rate and period are as claimed and are unchallenged. [39] Two features of the interest claim confirm its moderation. First, the rate sought is a modest 5% per annum. Secondly and significantly - the claim is deliberately brought to an end on 01.08.2024, the date of the winding-up order: no interest is sought for any period of the liquidation. That confinement is consonant with the scheme of a winding up, under which the claims of unsecured creditors fall to be ascertained as at the commencement of the liquidation, and it removes any concern that judgment might carry the plaintiffs' claim beyond what could properly be asserted against a company in liquidation. Interest is allowed as claimed, in the sum of RM71,561.71. The total for which judgment is to be entered is accordingly RM285,923.83. [40] Post-judgment interest. None is sought: the prayers in Enclosure 23 stop at the total sum and costs. Consistently with the plaintiffs' own confinement of interest to the date of the winding-up order, and in the exercise of the power under Order 42 rule 12 of the ROC 2012 to determine the rate of interest which a judgment debt is to carry, I order that the judgment sum shall carry no interest after the date of judgment. [41] Costs. The plaintiffs seek the costs of the application (prayer 4). They have been put to expense which would have been wholly avoidable had the liquidators responded to any one of the communications set out above. Costs of RM2,000.00 are awarded to the plaintiffs. [42] One rider is necessary. Nothing decided today touches the administration of the defendant's liquidation. The judgment ascertains the plaintiffs' claim as a judgment debt; the manner in which that debt is to be proved, ranked and satisfied is a matter for the winding up, and these orders confer no right of execution against the defendant's assets otherwise than in accordance with the law governing its liquidation. F. CONCLUSION [43] The three issues are answered as follows. The action and the application are maintainable, leave under section 471(1) of the Companies Act 2016 having been granted on 17.11.2025. Although a defence stands on the file, no person with authority to act for the defendant has maintained it since the winding-up order, notwithstanding exhaustive and acknowledged notice to the liquidators; the Rules meet that state of affairs through Order 34 rule 6(1), read with Order 92 rule 4, rather than leaving the plaintiffs remediless under the letter of Order 19 rule 7. And upon scrutiny of the claim as pleaded and of the unchallenged affidavit evidence, the plaintiffs' entitlement to the principal sum and to interest is made out in precisely the amounts sought. [44] Enclosure 23 is therefore allowed, and leave is granted to enter judgment against the defendant, upon the terms which follow. G. ORDERS OF THE COURT [45] It is ordered that:

the Pernyataan Pembelaan dated 10.07.2024 is struck out pursuant to Order 34 rule 6(1), read with Order 92 rule 4, of the Rules of Court 2012;

judgment is entered for the plaintiffs against the defendant for:

the principal sum of RM214,362.12;

(ii) interest in the sum of RM71,561.71, being interest at the rate of 5% per annum on RM214,362.12 from 29.11.2017 until 01.08.2024, making a total judgment sum of RM285,923.83;

the judgment sum shall carry no interest after the date of judgment;

costs of RM2,000.00 are awarded to the plaintiffs; and

these orders are without prejudice to the requirements of the law governing the winding up of the defendant as to the proof, ranking and satisfaction of the judgment debt, and there shall be liberty to apply. Dated 17 July 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff : Puan Nur Syifa' Illvera binti Kimal Tetuan C T Chew & Co. Peguambela dan Peguamcara No. 43-G, Jalan Ong Kim Wee, 75300 Melaka.