Andrew Heng v REEBOK (M) SDN BHD (WA-28PW-609-12/2022)

Enclosure 28 is the application by the Applicant to replace the Official Receiver (“OR”) with private liquidators, namely Andrew Heng and Anoopal Kaur as Joint Liquidator of the Respondent Company.

The Respondent was wound-up on 11.03.2016, following a petition filed by the Applicant. The OR was appointed as Liquidator of the Respondent.

At the material time when the company was wound up, the company had two assets: a) No. 65, Medan Burhanuddin Helmi, Taman Tun Dr Ismail, 60000 Kuala Lumpur which is valued at rm8,000,000.00 on 8.07.2016; and b) No. 25, Lorong Sri Gambut 2, KJ Techno-Industrial Park, 42450 Klang, Selangor which is valued at RM500,000.00 on 8.07.2016. S/N K3pc8bex4kGasyCZxChVQA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The creditors of the Respondent are as follows: NO. CREDITORS AMOUNT DUE (RM)

MY SQUARE DEVELOPMENT SDN BHD 153,130.96 (The

CITYLIFE HOSPITALITY SDN BHD 125,554.80 3. UNITED OVERSEAS BANK (M) SDN BHD 2,275,184.49 4. TENAGA NASIONAL BERHAD 46,843.55 TOTAL 2,600,713.80 It is to be noted that the Intervener is not a creditor of the Respondent. [5] On 27.01.2022, the OR conducted a creditor’s meeting where the representative of the creditors and the Intervener attended. The purpose of the creditor’s meeting was to appoint the nominated private liquidators to be appointed and to replace the OR for the purpose of the winding up of the Respondent. [6] The Applicant avers that majority of the creditors have agreed to appoint the nominated private liquidators, namely, Anoopal Kaur and Andrew Heng (“nominated private liquidators”) from Baker Tilly. However, the Intervener who is a contributory holding only one (1) share in the Respondent had voted in opposition to the appointment of the nominated private liquidators, to replace the Official Receiver during the creditor’s meeting. S/N K3pc8bex4kGasyCZxChVQA [7] The main objections raised by the Intervener are:

The application is defective because it was filed by the proposed Liquidator and not by any creditor. I find this submission by the Intervener to be misconceived because enclosure 28 was filed by the solicitor representing My Square Development Sdn Bhd which is one of the four creditors of the Respondent. Furthermore, the affidavit in support of the application (Enclosure 5) by Ng Hoe Heng, clearly states the application is filed by My Square Development Sdn Bhd.

The Intervener also raised a preliminary objection against this application on the grounds that the applicant has used the wrong procedure. Thus, it contravenes practice direction No. 2 of 2018 which requires the Applicant to file a Notice of Motion instead of an Originating Summons. I find this non-compliance does not prejudice the Intervener and does not render the application a nullity. It is just a technical non-compliance which does not go to the substance of this application (see the case of Zion Shipping Ltd (2024) CLJU 466). Thus, the preliminary objection is dismissed. [8] In considering the merits of this application, the issue is whether the court has to favour the wishes of the creditors or the contributories, in the appointment of a private Liquidator. The cases have clearly held that where there is a difference between the wishes of the creditors S/N K3pc8bex4kGasyCZxChVQA and that of the contributories, the wishes of the creditors shall prevail. See the case of Syarikat Yong Thai v Zung Zang Holdings Sdn Bhd

MLJU 747. [9] In the following cases the Applicant had relied on Section 477 Companies Act 2016 (supra) to allow the application to replace the Official Receiver with the private liquidators nominated by the majority creditors. a) Rentak Arena Development Sdn Bhd (In Liquidation) 2020 1 LNS 1871 where there were 2 applications filed by 2 separate creditors of the company pursuant to section 477 Companies Act 2016 (“CA 2016”) and the court had allowed one of the applications. b) MCC Overseas (M) Sdn Bhd (see Tab B of Enclosure 41) where there were 2 applications filed by 2 separate creditors pursuant to section 477 CA 2016 (supra) and the Court has allowed one of the applications to replace the Official Receiver with the nominated private liquidator. Thus, the Intervener’s submission that this court does not have the power to allow this application under section 477 (1)(c) of the CA 2016 is misconceived. S/N K3pc8bex4kGasyCZxChVQA [10] I agree with the Applicant’s submission that this Court ought to give preference to account of the wishes of the creditors of the Respondent over the wishes of the contributory. Reference is made to the case of Syarikat Yong Thai v Zung Zang Holding (2018) MLJU 747 where JC Mairin Idang at the High court of Kota Kinabalu had allowed the application to the appoint the private liquidator to replace the Official Receiver by taking into account of the wishes and views of the creditors of the company. “[11] I agree with the submission of Mr Chung Juin Dau, counsel for the supporting creditors that the court must give weight to the wishes and view of the petitioner and the supporting creditors when considering such application. The law is clear I have discretion on the appointment of the Liquidators. Of course the court must also consider the backgrounds of the proposed private liquidator. I have to also to consider the position of the parties here and the majority voice in support of the appointment of LSP. To my mind whomsoever liquidator appointed, he is to conduct the affairs of ZZPSB and GESB in the best interest of the Creditors and the Contributories…” In the Applicant’s case, the majority creditors of the company have agreed with the appointment of the nominated private liquidators since there is a resolution to appoint them.

The Applicant also states that the total value of the assets of the company is estimated at RM9 million in 2016. Due to the substantial estimated value of the assets, the Applicant submits that it is in the interest of the Respondent and the creditors to appoint an experienced liquidator to expedite the dissolution of the company. As such, the Applicant avers that the Applicant’s S/N K3pc8bex4kGasyCZxChVQA case is a fit and proper case for this court to exercise its discretion to allow the Applicant’s nominated private liquidators to replace the Official Receiver. [11] For the reasons aforesaid I allow paragraphs 1, 14 and 15 of Enclosure 28 with costs. The other prayers are unnecessary as the powers of the Liquidators have been stipulated by the relevant provisions of the CA

Dated 10 April 2025 ………t.t…….……………. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE APPLICANTS: CHAN HOO YAN SOLICITORS FOR THE PETITIONER: TETUAN PREAKAS & PARTNERS COUNSEL FOR THE INTERVENER: ISHI MASOURI BIN HAMZAH SOLICITORS FOR THE INTERVENER: TETUAN VINOD SHARMA LAW FIRM S/N K3pc8bex4kGasyCZxChVQA Cases Referred to: ➢ Zion Shipping Ltd (2024) CLJU 466 ➢ Rentak Arena Development Sdn Bhd (In Liquidation) 2020 1 LNS 1871 ➢ Syarikat Yong Thai v Zung Zang Holdings Sdn Bhd (2018) MLJU 747 Legislation Referred to: ➢ Companies Act 2016 ➢ Winding-Up Rules 1972 Decision date: 8 November 2024