Ang Jimmy Tjun Min v Tjiang Giok Moy (JA-28NCC-200-12/2024)

TJIANG GIOK MOY (Netherlands Passport No. BJK16K2R4)

ANG EILEEN (Singapore Passport No. K1857087P)

SRI SKUDAI SDN. BHD. [Registration No. 197701002575 (33608-D)] …RESPONDENTS GROUNDS OF JUDGEMENT

This is the First and Second Respondent’s application that the terms and execution of the Court Order dated 13.03.2025, appointing Chong Chuan Long (NRIC No. 710625-10-5475) as interim liquidator (“the IL Order”) be stayed and/or set aside, pending the disposal of the Winding-Up Petition filed herein and any appeal therefrom pursuant to subsection 476(2) of the Companies Act 2016 [Act 777].

After considering all cause papers and the written submissions of the parties, I allowed the First and Second Respondent’s application in Enclosure 20 and awarded RM5,000.00 costs to be paid by the Petitioner to the First and Second Respondents and held that damages suffered by the Third Respondent incidental to the appointment of the interim liquidator be assessed and paid by the Petitioner.

Below are the grounds of my decision.

The background facts in this application are gathered from the Affidavits and submissions filed by the parties and stated in chronological order.

The Company was established in 1977 by the First Respondent and her late husband, Mr. Ang Tiong Loi (the "founders"). Being foreigners, the First Respondent and her late husband appointed nominees to be directors and shareholders to hold their position and the shares on their behalf.

Lowi Looi ("Looi") and his wife Siah Chin Neo ("Siah"), were the first directors and shareholders of the Company (non-family members).

In 1988, Siah, Leslie Looi Meng and Gan Mon Siong became the shareholders of the Company (non-family members).

In 1993, the Petitioner and Jeffrey Khoo were appointed as directors alongside Siah. The Petitioner held no shares at that point of time and was a minority on the Board of the Company.

In 2008, the First Respondent's husband passed away and in line to his wishes, in 2010, the shares held by Siah, Leslie Looi Meng and Siah Chin Leong were all transferred to the First Respondent, Second Respondent and the Petitioner.

Since 2010 to the present, the shares of the Company are held in the following proportions:

First Respondent - 50%

Petitioner - 25%

Second Respondent - 25%

Up until 2010, i.e 33 years after the Company had been established, the Petitioner held no shares in the Company until he inherited the same following the demise of his father. At all material times, the Petitioner had not invested any capital in the Company and remained a minority shareholder.

The Petitioner filed a Winding-Up Petition on 24.12.2024 against the Third Respondent, Sri Skudai Sdn. Bhd. (the “Company”) under paragraph 465(1)(f) and (h) of Act 777, alleging among others, breakdown of mutual trust and confidence, existence of a quasi-partnership, exclusion from management, and allegations of oppression amongst family shareholders.

On 31.01.2025, pending the hearing of the Winding-Up Petition (Enclosure 1), the Petitioner filed Enclosure 7 seeking the appointment of an interim liquidator on an urgent basis under section 476 of Act 777 and Rule 35 Companies (Winding-Up) Rules 1972.

On 13.03.2025, I have granted the ex-parte order (Enclosure 15) appointing an interim liquidator, Mr. Chong Chuan Long, over the Company.

The First and Second Respondents subsequently filed Enclosure 20, seeking to stay and/or set aside the interim order pending disposal of Enclosure 1, contending inter alia—

absence of urgency;

the appointment of an interim liquidator before factual disputes were adjudicated;

serious prejudice and costs to the Company’s operations and potential irreparable harm by the interim liquidator;

alleged failure of full and frank disclosure by the Petitioner in the ex-parte application;

the Company being a solvent investment holding

there being no risk of asset dissipation.

The Petitioner opposed Enclosure 20 on the basis that it was necessary for an interim liquidator to be appointed over the Company to maintain the status quo prior to the hearing of Enclosure 1.

It is the contention of the Petitioner that the Respondents have come to the Court with unclean hands by appointing Messrs Raslan Loong, Shen & Eow as their solicitors in this proceeding as Loong Caesar is the managing partner of Messrs Raslan Loong, Shen & Eow and he is also the newly appointed director for the Company.

The Petitioner submits that Loong Caesar clearly has personal interest in the Company and thus he is in a position of conflict of interest.

The First and Second Respondents denied the existence of any quasi-partnership.

Extensive affidavits and written submissions were exchanged between the parties, including affidavits explaining the genesis of the Company and its shareholding history.

I find the only issue to be determined is whether the Court ought to interfere with its earlier discretionary decision to allow the appointment of an interim liquidator pending disposal of the Winding-Up Petition.

This necessarily involves evaluating the followings:

whether the Petitioner failed to make full and frank disclosure of material facts when moving the Court ex-parte;

whether there was sufficient legal and factual basis under section 476 of Act 777 and Rule 35 Companies (Winding-Up) Rules 1972 for the appointment of an interim liquidator at the time of the ex parte application;

whether the Respondents demonstrated sufficient grounds to justify the stay or setting aside the IL Order; and

whether the balance of justice and convenience justified continuation of the interim liquidatorship pending the hearing of Enclosure 1.

In order to determine the issues, I have to examine whether the statutory and factual threshold for the appointment of an interim liquidator had been satisfied by the Petitioner at the time of the ex-parte application. These issues are interrelated and must be considered holistically. ANALYSIS AND COURT’S FINDINGS The Law on the appointment of an interim liquidator by the Court

The law on the appointment of an interim liquidator by the Court is governed by subsection 476(2) of Act 777 which provides as follows: “Provisions relating to Liquidators in Winding Up by Court Interim liquidator

(1) The Court may appoint the Official Receiver or an approved liquidator as an interim liquidator at any time after the presentation of a winding up petition and before the making of a winding up order.

The interim liquidator shall have and may exercise all the functions and powers of a liquidator subject to such limitations and restrictions as may be prescribed in the rules or as the Court may specify in the order appointing him. [Emphasis added]

The general rule is that appointment of an interim liquidator is a matter of judicial discretion, and not an automatic entitlement. It is an extraordinary remedy, and should be sparingly exercised by the Courts and must be justified by sufficient grounds.

The rules on the appointment of an interim liquidator by the Court is governed under Rule 35 of the Companies (Winding-Up) Rules 1972 which provides as follows: “35. Order appointing provisional liquidator

At any time after the presentation of a petition, the Court may, upon the application of any creditor or contributory of the Company and upon proof by affidavit of sufficient ground for the appointment of a provisional liquidator make the appointment upon such terms as the Court shall think just or necessary.”. [Emphasis added]

I refer to the Court of Appeal decision in the case of Ga Yee Furniture Sdn Bhd & Ors v Dato’ Khor Wooi Chen [2020] 12 MLJ 325 where the Court of Appeal held as follows: [7] The court will appoint an interim liquidator upon presentation of a winding up petition if there is good prima facie evidence that:

the Company will be wound up because the Company is obviously insolvent; or

the Company’s assets are in jeopardy; or

there are other circumstances which makes it imperative for the court to intervene.”. [Emphasis added]

Subrule 35(1) of the Companies (Winding-Up) Rules 1972 states that at any time after the presentation of a petition, the Court may, upon the application of any creditor or contributory of the Company and upon proof by affidavit of sufficient ground for the appointment of a provisional liquidator, make the appointment upon such terms as the court shall think just or necessary. Clearly, this rule talks of ”sufficient ground” that has to be set out before a provisional liquidator is appointed.

In this regard, I refer to the Court of Appeal decision in the case of Kok Fook Sang v. Juta Villa (M) Sdn. Bhd. & Ors [1996] 2 MLJ 666 where it was held that— “... a court will not appoint a provisional liquidator consequent upon the presentation of a winding-up petition unless there is good prima facie evidence that the company will be wound up because the company is obviously insolvent, or the company's assets are in jeopardy, or there are other circumstances which makes it imperative for the court to intervene: See Re Highfield Commodities Ltd [1984] 3 All ER 884; [1985] 1 WLR 149 and 7(2) Halsbury's Laws of England( 4th Ed) para 1490 note 3. In determining whether a winding-up order will be made, the court should first look to the sufficiency of the allegations in the petition. Reference may be made in this context to what was said in Tuan HJ Ishak bin Ismail v Leong Hup Holdings Bhd and Ors [1996] 1 MLJ 661 at pp 678H-681B. The primary facts set out in the petition if assumed to be true and the uncontested evidence taken as a whole must add up to the conclusion that it is imperative that the winding-up order be made.”. [Emphasis added]

The Court of Appeal decision in the Kok Fook Sang v. Juta Villa (M) Sdn. Bhd. & Ors (supra) has accepted the English position in the case of Re Highfield Commodities Ltd. [1984] 3 All ER 884 which states the followings: "... At the outset let me say that I accept that the court will be slow to appoint a provisional liquidator unless there is at least a good prima facie case for saving that a winding-up order will be made: see Re Mercantile Bank of Australia [1892] 2 Ch 204 at 210, Re North Wales Gunpowder Co [1892]2 QB 220 at 224 - Founding himself on cases such as Re Cilfoden Benefit Building Society [1868] LR 3 Ch App 462 (where the words 'in general' should be noted) and Re London and Manchester Industrial Association [1875] 1 Ch D 466, counsel for HCL contended that if the company opposed the application for the appointment of a provisional liquidator, no appointment would be made (and any ex parte appointment would be terminated) unless either the company was obviously insolvent or it was otherwise clear that it was bound to be wound up, or else the company's assets were in jeopardy, as seems to have been the case in Re Marseilles Extension Rly and Land Co [1867] WN 68.”.

I further refer to the Australian case of Re Qintex Ltd (No 3) (1990) 2 ACSR 627 where the Supreme Court of Tasmania spoke of the ‘threshold test’ to be applied before a provisional liquidator would be appointed. The court held that— “(i) Although there are no legislative fetters on the court's discretion to appoint a provisional liquidator under s 372(2) of the Companies (WA) Code following the filing of a winding-up application and prior to the making of a winding-up order, in the proper exercise of its judicial discretion the court must be satisfied, as a ‘threshold test’, that ultimately the court is likely to make the order sought. This ‘threshold test’ requires the court to be satisfied that:

applicant for the winding-up order is a creditor of the Company: where a disputed debt is concerned, the court will only fail to be so satisfied where the debt is disputed on some substantial ground;

there is subsisting a valid winding-up application; and

there is adequate evidence adduced to show that a winding-up is, in the absence of material to the contrary, likely. Re McLennan Holdings Pty Ltd [1983] 7 ACLR 732 , followed. Mann v Goldstein [1968] 1 WLR 1091 , considered.

(ii) Once the ‘threshold test’ is resolved in favour of an applicant, whether the court will make an order appointing a provisional liquidator to a Company will depend on the commercial realities and the circumstances of each case: urgency, and public interest are but some of these (and no one is decisive). The court must also consider the balance of convenience. Re Club Mediterranean Pty Ltd (1975) 11 SASR 481 , applied. Re Brylyn (No 2) Pty Ltd [1988] 12 ACLR 697 , followed.

(iii) The admission by a managing director of a Company that the Company has no money is evidence that the Company is unable to pay its debts. Re Flagstaff Silver Mining Co of Utah (1875) LR 20 Eq 268 , considered. At p 644 of the report, Underwood J had this to say: I adopt the following passage from Brylyn (No 2) at p 707: ‘The second point raised by counsel for the respondent has caused the greatest difficulty, namely whether any good purpose exists for the appointment of a provisional liquidator of this trustee Company on the ground that there was in fact nothing useful for him to do. The role of a provisional liquidator is traditionally to preserve the status quo until the hearing and determination of the application to wind up. Subject to an order of the court, he may exercise all or any of the powers contained in s 377(a) to (k). See r 61 which also gives him the power to carry on the business the Company. He has the power to bring and defend actions and also to sell or otherwise dispose of, in any manner, all or any part of the property of the Company. It is true that a provisional liquidator is not appointed for the asking. There must be good reason such as urgency, or unusual circumstances such as danger to assets, lack of control, deadlock, or some public interest element for his appointment and there must be something for him usefully to do. The attempt (sic) will also involve costs which ought not to be thrown away: Re Mclennan Holdings Pty Ltd ACLR 741; ACLC 793; Re Johannisberg Land and Gold Trust Co [1982] 1 Ch 583, per Chitty J at pp 589-90; Re Clearwater Pty Ltd [1981] 6 ACLR 201 ; Re Union Accident Insurance Co Ltd [1972] 1 All ER 1105…”. [Emphasis added]

Further, Eichelbaum CJ in Robert Bryce & Co Ltd v Chicken & Food Distributors Ltd [1991] MCLR 133 considered the principles applicable to an application for the appointment of a provisional liquidator by referring to Re Jeans West (Distribution) Pty Ltd (1990) 4 ACSR 470 ; 9 ACLC 592; 5 WAR 31, a decision of the Supreme Court of Western Australia, delivered on 09.04.1990, and his Lordship noted at page 134 of the report as follows: “... The Master concluded that the requirements which an applicant had to meet were first to show that there was a valid winding-up petition, and likelihood that the petitioner would succeed, and secondly, a need for an interim control of the Company pending a winding-up order. In relation to the second matter, factors regarded as relevant were: (a) whether the Company's assets were in jeopardy; (b) whether the status quo should be maintained; and (c) whether the interests of the creditors were safeguarded…”. [Emphasis added]

Based on the authorities above, it is clear that the Court will appoint interim liquidator when there is a prima facie case that the Company will be wound up failing which, the order to appoint an interim liquidator must be set aside. The Court in deciding the application will consider whether the company is obviously insolvent or where the company's assets are in jeopardy. Whether the Petitioner failed to make full and frank disclosure of material facts when moving the Court ex-parte

Rule 7 of Companies (Winding-Up) Rules 1972 provides that— “ (1) Every application in Court, other than a petition, shall be made by motion and shall be served on the party effected thereby not less than two days before the day named in the notice for hearing of the motion. An application for leave to serve short notice of motion shall be made ex parte.

Every application in Chambers shall be made by summons in Form 1, which unless otherwise ordered, shall be served on every person against whom an order is sought, and shall require that person or persons to whom the summons is addressed to attend at the time and place named in the summons; and the summons shall be served not less than two days before the day named in the summons, unless in any case it shall be otherwise ordered.”. [Emphasis added]

Rule 7 clearly provides that every application must be heard inter partes unless otherwise ordered. This has also been explained in the case of Dayatera Roof Systems Sdn. Bhd. v Seni Teliti Sdn. Bhd. [ 2015] 3CLJ 940 where it was held as follows: “[ 17] I am of the view that as a matter of general rule, SIC’s should be heard inter partes and not on an ex parte basis (‘general rule’). The general rule is premised on the following reasons: a) the opening words in r. 7(2) WUR have expressly stated that the SIC “shall be served on every person against whom an order is sought, and shall require that person or persons to whom the summons is addressed to attend at the time and place named in the summons”. Rule 7(2) WUR itself provides for an exception to the general rule, namely when the winding up court orders the SIC to be heard ex parte (‘ first exception’) ; and …. [18].. an application to court should only be made ex parte when “it is genuinely impossible to give notice without defeating the purpose of the order”. In other words, an application should be made ex parte when there is a need for secrecy, such as an application for Anton Piller and Mareva order. This, in my view, constitutes a second exception wherein a SIC may be filed ex parte (‘second exception’)…”. [ 19] In my view, ex parte applications to appoint PL under s. 231 CA and r. 35(1) WUR so as to prevent dissipation of the respondent company's assets, fall within the second exception. Such applications may be made ex parte as secrecy is essential to prevent dissipation of the assets of the respondent company. The following cases have held that pending the disposal of a winding up petition, a petitioner may apply to appoint a PL to prevent dissipation of the respondent company' s assets to the detriment of the respondent company' s creditors:

VC George J' s (as His Lordship then was) judgment in the High Court case of Re Lo Siong Fong [ 1994] 1 LNS 188; [1994 ] 2 MLJ 72, at p. 82;

the judgment of Ramly Ali J (as His Lordship then was) in the High Court in Emporium Jaya ( Bentong) Sdn Bhd, at p. 30;

the High Court' s decision by Abdul Malik Ishak J (as His Lordship then was) in Ameriasa To urs & Travel Sdn Bhd v. PJB Pacific Advisory Services Sdn Bhd [ 2004 ] 2 CLJ 586 , at p. 590;

Varghese George JC' s ( as His Lordship then was) judgment in the High Court case of Wiraflor ( Malaysia) Sdn Bhd v. Bio Science Capital Sdn Bhd [ 2011] 4 CLJ 441 ; [ 2011] 2 MLJ 94, at pp. 103, 115 and 116 ; and

the Singapore Court of Appeal' s judgment in Pac Asian Services Pty Ltd, at pp. 391 - 392. Despite the above, an application to appoint a PL may still be made on an inter partes basis if there is no need for secrecy - Ameriasa Tour s & Travel Sdn Bhd and Wiraflor (M) Sdn Bhd. Ex parte applications to appoint PL have been made in Emporium Jaya ( Bentong) Sdn Bhd, Pui Chiau Tien and Pac Asian Services Pty Ltd.”. [Emphasis added]

The Petitioner has submitted that risk of dissipation of assets by the First and Second Respondents (see paragraph 58 of the Petitioner’s Submission in Enclosure 34) is a non-starter as the application of the Petitioner was not premised on that ground and the appointment of the interim liquidator is to protect the assets of the Company. Therefore, I am of the considered view that the Petitioner’s application simply does not fall within the two exceptions to justify the need for the application to be heard ex parte.

The Respondent contended that the Petitioner has failed to justify the need to move the Court on ex parte basis and has also failed to provide an undertaking as to damages. Accordingly, the application in Enclosure 7 should have never been moved on ex parte basis in the first place and therefore, the Order obtained on 13.03.2025 (Encloure 15) should be set aside.

In reading the Affidavit in Support of the Petitioner’s application in Enclosure 7 as well as the Petitioner’s Winding-Up Petition in Enclosure 1, it is very clear that the Petitioner has not disclosed to this Court the genesis of the Company and how the Petitioner came to be a shareholder in the Company namely—

how the Company was founded;

(ii) who were the directors and shareholders at the inception of the Company; and

(iii) how the Petitioner inherited the shares

As agreed and admitted by the Petitioner, the Company was incorporated by the Petitioner’s father in 1977 having non-family members as the directors and shareholders of the Company and the Petitioner was only appointed to the Board in 1993 amongst non-family members and his brother-in-law. The Petitioner was a minority on the Board and held no shares then.

In 2010, the Petitioner inherited the father’s shares together with the First and Second Respondents and was a minority in the shareholding and he remained to be a minority on the Board of the Company. The First Respondent holds the majority of the shares.

In my opinion, the failure of the Petitioner to make a full and frank disclosure of all relevant facts in Enclosure 7 would empower this Court, without hesitation, to set aside the order of this Court dated 13.03.2025. The Supreme Court of Queensland had occasion to consider non-disclosure in the appointment of a provisional liquidator in South Downs Packers Pty Ltd v Beaver [1984] 8 ACLR

I need only to refer to the headnote which summarizes the case lucidly as follows: “..On 3 April 1984, the respondent presented a petition for the winding up of the Company on the just and equitable ground. On the same day, the respondent applied ex parte for the appointment of a provisional liquidator and an order in that behalf was made that day by a Master. The substantial ground of the application was the likelihood that the affairs of the Company would be conducted for the benefit of the Hart interests to the detriment of the Beaver interests and that substantial shareholders’ funds might be lost. It was said that the respondent obtained the order for the appointment of the provisional liquidator by material non-disclosure and on 26 April 1984 a summons was issued by way of appeal to the chamber judge against the Master's order; and on the same day a notice of motion for similar relief was given and also to set aside the order. On 10 May 1984, Matthews J refused the application. On appeal to the Full Court: Held: Per Connolly J, with whose reasons Campbell CJ agreed. McPherson J dissenting, the appeal should be dismissed. Per Campbell CJ, the question was whether the several allegations of non-disclosure in the present case, read in the context of the other material before the Master, were such as to lead to the conclusion that his Honour erred in not holding that the Master was thereby led or induced to appoint a provisional liquidator in the circumstances. Or, to put it in another way, did his Honour err in not finding that such non-disclosed facts were important to the Master in the formation of the latter's conclusion that the case was one for the appointment of a provisional liquidator? Per Connolly J, with whose reasons Campbell CJ agreed, the undisputed circumstances of the case warranted the appointment of a provisional liquidator. Not one of the allegations of non-disclosure touched or qualified in the slightest the essential facts. All were carefully considered by Matthews J who concluded that there had been no material non-disclosure. It was unnecessary to express a firm option on the proposition advanced by the appellants (and for which indeed there is support in the books) namely, that where an ex parte order has been obtained by material non-disclosure, it must be discharged, even if the non-disclosure resulted from ignorance of the materiality of the fact or forgetfulness. But, semble, when it is remembered that, upon the discharge of the order, a fresh application may immediately be made upon the merits the rule as stated seems to be somewhat inflexible and not to accord with modern views on the exercise of the judicial discretion...”. [Emphasis added]

The Petitioner’s primary basis for seeking immediate appointment of an interim liquidator was the alleged breakdown in relationship between the Petitioner and the Respondents, the existence of multiple suits in various countries, and assertions of mismanagement of the Company.

However, the Respondents demonstrated that the Company had continued operations without interruption, and no evidence was produced before the Court to prove that there were—

dissipation of assets;

(ii) ongoing misconduct requiring immediate intervention;

(iii) inability to preserve the status quo until disposal of the petition;

(iv) fraud; or

management paralysis.

The Petitioner’s affidavits did not provide contemporaneous documents indicating imminent danger to the Company. This fact again was not disclosed in the Affidavit in Enclosure 8.

This supports the Respondents’ contention that the threshold of urgency was not satisfied.

Further, where an order is obtained ex-parte, the Petitioner is subject to a strict duty of full and frank disclosure of all material facts, including those adverse to his own case, which encompassed the Company’s genesis, its historical corporate structure, and the manner in which the Petitioner acquired his shareholding.

The Respondents highlighted the Petitioner’s failure to disclose, in the ex-parte application—

the full genesis of the Company and the nominee arrangements;

(ii) the historical composition of the Board and share transfers;

(iii) the absence of any capital injection by the Petitioner; and

(iv) the Petitioner’s minority shareholder status for many years prior to 2010.

These facts were material as they went directly to the Petitioner’s central assertion that the Company was a quasi-partnership and whether urgency existed warranting an ex-parte interim liquidator appointment.

The non-disclosure was neither technical nor trivial; it struck at the very foundation of the justification for the ex parte order.

A breach of this duty, by itself, entitles the Court to set aside the order, without the need to consider the substantive merits. Whether the Respondents demonstrated sufficient grounds to justify the stay

The First and Second Respondents submit that there is no urgency in the need to appoint an interim liquidator which is unnecessary based on the history and circumstances of the Company.

There is a bona fide dispute between the Petitioner and the Respondents and the appointment of an interim liquidator before the allegations in the Winding-Up Petition are proven, would cause serious and irreparable damage to the Company and injure the rights of the First and Second Respondents as shareholders.

The First and Second Respondents submit that the main motivation for the Petitioner in obtaining IL Order is to frustrate the normal and legitimate business and affairs of the Company and deny the First and Second Respondents their rights and entitlement.

The Petitioner claims that he will be successful in his Winding-Up Petition to wind up the Company.

The Respondents say differently. The Respondents claim that the Court has the discretionary power to wind up companies where mutual trust and confidence have broken down between the shareholders in companies which are quasi-partnerships in nature on the basis that it is just and equitable to do so.

It is clear from the affidavits and documents referred to by the parties, that the need to protect the Company's assets by the appointment of an interim liquidator had not been shown. In the present case, there was zero evidence that there was even a remote danger of any asset dissipation by the First and Second Respondents as the Company is an investment holding Company and there is no need to dispose of any of its assets.

The Petitioner has obtained the IL Order without a full and frank disclosure of the circumstances and has concealed the fact that he himself has been the principal antagonist in the disputes with the First and Second Respondents and has therefore approached this Court with unclean hands.

It is settled law that the appointment of an interim liquidator is an exceptional and intrusive remedy, justified only where there is prima facie evidence of, inter alia—

imminent danger to the Company’s assets;

(ii) fraud or serious mismanagement; or

(iii) circumstances rendering the preservation of the status quo impossible.

I find the reasons provided by the Petitioner is unreasonable and not justified. The Company had continued operations without interruption and is a solvent investment holding Company. It is clearly showing that the Petitioner is abusing court process by using the interim liquidator appointment to pressure the other shareholders of the Company and interfere with the running of the Company absent any real danger of dissipation of the assets of the Company.

I refer to the case of Kong Long Huat Chemicals Sdn. Bhd .v Raylee Industries Sdn Bhd [1998] 6 MLJ 330 where the facts of that case bears similarities to the case at hand— “… In encl 9, Kenneth Teh deposed that the application in encl 10 was to, inter alia:

stay the order of this court in appointing a provisional liquidator over the respondent; and

set aside the appointment of the provisional liquidator over the respondent. It is germane to point out that since a receiver and manager has been appointed by BBMB for the respondent, a provisional liquidator will not be appointed by the court unless there is evidence to show that the receiver and manager are dissipating the assets: Re AH Hodge & Sons Ltd [1984] 2 ACLC 707 . Was there evidence here that the receiver and manager had dissipated the assets?” [Emphasis added]

Applying the principles stated in the above case, I find that no evidence was placed before the Court that there was a serious or just cause to fear dissipation of assets of the Company and the Petitioner’s affidavits did not provide contemporaneous documents indicating imminent danger to the Company. This supports the Respondents’ contention that the threshold of urgency was not satisfied. Whether the balance of justice and convenience justified continuation of the interim liquidatorship pending the winding-up petition

A substantial part of the Winding-Up Petition is based on events affecting entities other than the Company which have no bearing on the Company or section 465 of Act 777.

The Petitioner has not been excluded from participation in management of the Company therefore a stay and/or setting aside of the IL Order until the final disposal of the Winding-Up Petition and any appeal therefrom, would not prejudice the Petitioner in any way.

By contrast if a stay and/or setting aside is not allowed, the Respondents would be irreparably prejudiced and damaged in a way that cannot be compensated with costs.

The balance of convenience lies in favour of the Respondents, taking into account all the circumstances.

In this case, the Court would be obliged to remove the interim liquidator that was appointed pursuant to Enclosure 7. This was my judgment and I so hold accordingly.

Upon consideration of the entirety of the cause papers and submissions filed in regards of this application, I found that the Petitioner failed to establish sufficient grounds for the appointment of an interim liquidator under Rule 35 of the Companies (Winding-Up) Rules 1972.

Allegations of loss of confidence and family disputes, even if assumed to be true, do not per se justify the appointment of an interim liquidator.

These are heavily contested factual matters, requiring full ventilation at the Winding-Up hearing. Appointing an interim liquidator before resolving these issues risks prejudging the merits.

In these circumstances, the balance of convenience clearly favoured the maintenance of the status quo pending the determination of the Winding-Up Petition.

I am satisfied that the interim remedy had been invoked in a disproportionate manner and risked undermining the fairness of the process.

The Respondents adduced evidence that the appointment of the interim liquidator disrupted the Company’s accounting operations and banking mandates, potentially causing irreparable damage disproportionate to the Petitioner’s allegations.

In this regard, I refer to the case of Kong Long Huat Chemicals (supra) where the interim liquidator was removed by the Court when the appointment of the interim liquidator resulted in a disruption to the Company’s governance, significant costs to the Respondent Company and potential irreparable reputational and commercial harm.

I find that the Petitioner’s failure in disclosing material facts, failure in establishing clear evidence of risks of dissipation of assets has caused serious prejudice to the Company and potential reputational and commercial harm.

I am aware that this Court is the same which granted the order in Enclosure 7. However, I am of the view that the Court retains inherent power to stay, vary, or set aside an interim liquidator order where justice so requires under subsection 476(2) of Act 777 and Order 92 rule 4 Rules of Court 2012 (“ROC 2012”).

From all these circumstances added by a lack of transparency in the conduct of the Petitioner, I conclude that nowhere in the affidavits or submissions does the Petitioner demonstrate just cause or urgency for the interim liquidator appointment.

Hence, it is trite that pursuant to subsection 476(2) of Act 777 and Order 92 rule 4 ROC 2012, the Court retains inherent power to stay, vary, or set aside an interim liquidator order where justice so requires or where circumstances justify such intervention.

Intervention is justified where—

the ex-parte order was obtained without full disclosure of material facts; or

the appointment is likely to cause disproportionate prejudice to the Company.

I am satisfied that the interim remedy had been invoked in a disproportionate manner and risked undermining the fairness of the Winding-Up process.

Accordingly, the decision to set aside the interim liquidator order constituted a proper and principled exercise of judicial discretion, firmly grounded in established principles, and consistent with the interests of justice.

Based on the foregoing reasons, I allowed the Respondents’ application in Enclosure 20 as follows:

the terms and execution of Court Order (Enclosure 7) dated 13.03.2025 appointing Chong Chuan Long (NRIC No. 710625-10-5475) as interim liquidator be set aside forthwith;

costs in the sum of RM5,000.00 to be paid by the

damages suffered by the Company incidental to the appointment of the interim liquidator be assessed and paid by the Petitioner. Dated 7 March 2026. Signed by: sgd …………………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor for the Petitioner: Mr. Eric Tan and Ms. Jamie Chan Messrs Ong Kok Bin & Co Counsel/Solicitor for the Respondents: Mr. Prakash Menon and Mr Shawn Tan Messrs Raslan Loong, Shen &