CAMAS Services Sdn Bhd v Delta Park Sdn Bhd (In Liquidation) (WA-28PW-107-02/2022)

In enclosure 1 (Enclosure 1), the applicant Camas Services Sdn Bhd (Applicant) had applied to this Court for inter alia the following orders:

that all or any proceedings in relation to the winding up of the Respondent (Company) be terminated and/or permanently stayed including but not limited to the following proceedings:

Companies (Winding-Up) Petition No.: WA-28NCC- 684-12/2020 (“Petition”);

Post Winding-Up Application No. WA-28PW-207- 07/2021 (“Private Liquidator Application”);

Post Winding-Up Application No. WA-28PW-356- 12/2021 (“Written Interrogatories Application”); and

Post Winding-Up Application No. WA-28PW-381- 12/2021 (“Physical Examination Application”); S/N /k6ufFb1pkudAWjITLbHkg

(ii) That all and/or any orders granted in relation to the Winding Up Proceedings in paragraphs 1(a) to (d) (WU Proceedings), including the Winding-Up Order dated 27.04.2021 (“WU Order”) be set aside forthwith as an abuse of process;

(iii) That all and/or any WU Proceedings in paragraphs 1 (a) to (d) and/or all orders granted in relation to the WU Proceedings be stayed forthwith pending the full and final disposal of the application herein under Section 492 of the Companies Act 2016 and/ or inherent jurisdiction of the Honourable Court (“Interim Stay”);

(iv) That the Applicant be at liberty to apply;

That the costs of this application be paid forthwith by the Petitioner, Wong Koon Hung (NRIC No. 520606-10-5691) (“Petitioner”) to the Applicant;

In another application at enclosure 56 (Enclosure 56), the Proposed Intervener, Masera Realty Sdn Bhd (“Masera”) had applied to this Court for inter alia;

leave and extension of time, if required, to file the said

(ii) the order dated 13.6.2022 (13.6.2022 Order) be set aside.

The 13.6.2022 Order relates to an order given by this Court for an application in enclosure 38 which is Form of Summons filed by the Applicant for want of authority that Messrs. Ong Partnership and/or Mr. Ong Keh Keong had not been duly authorized to act for and on behalf of Masera Realty Sdn Bhd. S/N /k6ufFb1pkudAWjITLbHkg

The Court had proceeded to hear both Enclosure 1 and Enclosure 56 on 25.7.2020 and after hearing learned counsels for both the Applicant and Masera, this Court had granted order in terms for Enclosure 1 and dismissed Enclosure 56.

There is now an appeal against both of my decisions in Enclosure 1 and Enclosure 56.

On 16.12.2020, the Petitioner filed the Petition. The Petition was grounded upon an alleged debt pursuant to a Judgment dated 08.10.2018 (“Suit 660 Judgment”) vide Kuala Lumpur High Court Civil Suit No. WA-22NCvC-660-10/2016 (“Suit 660”).

7.

Based on the Suit 660 Judgment dated 08.10.2018, the High Court had made it amply clear that the Petitioner had no interest in claiming the Judgment Sum personally.

However, in filing the WU Petition, the Petitioner represented to this Honourable Court that the Company owes the Judgment Sum to him personally and petitioned to wind up the Company in his own name. S/N /k6ufFb1pkudAWjITLbHkg

It was submitted by the Applicant amongst others that:

the Petition was an abuse of court process and amounts to a fraud on the Court and the Orders thereto are fundamentally irregular and seriously defective;

(ii) the Petition was based on a debt under a judgment obtained by Masera and not the Petitioner;

(iii) the Petitioner had wrongly misrepresented to the Court that the Company owes the judgment sum to him personally;

(iv) the Petitioner was never a creditor as alleged and has no locus standi to commence the Petition;

the Petition was filed to circumvent the actual terms of the judgment dated 8.10.2018 in Suit WA-22NCVC-660-10/2016 (Suit 660 Judgment);

(vi) the Petition was filed to oppress and vex the former officers and Company Secretary;

(vii) to hamper the Company from recovering a judgement sum of RM 1,572,000 from the Petitioner’s solicitor, Mr Ong Keh Keong (OKK) who is personally indebted to the Company;

(viii) there has been active concealment and suppression of material facts on the part of the Petitioner and OKK. Finding’s of the Court Enclosure 56 S/N /k6ufFb1pkudAWjITLbHkg

In respect of Enclosure 56, I have since re-examined the 13.6.2022 Order which provides: a) That Messrs. Ong Partnership and/or Mr. Ong Keh Keong (hereinafter collectively referred to as “OKK”) had not been duly authorized to act for and on behalf of Masera in these proceedings including but not limited to the filing and conduct of the Proposed Intervener Application dated 16 March 2022 in Enclosure 14 (“Proposed Intervener Application”); b) That all actions taken, and all cause papers, applications, affidavits, and documents filed by OKK purportedly for and on behalf of Masera in the Proposed Intervener Application and/or the Termination/Stay Application including but not limited to those listed in Annexure A are null and void and be struck out forthwith as an abuse of process; and c) The cost of RM 5,000.00 be jointly and severally borne and paid forthwith by Messrs. Ong Partnership and/or Ong Keh Keong and/or Wong Koon Hung to the Applicant.

I have accordingly considered the reasons given by the directors of Masera, being the Petitioner and one Wong Kien Choon, who are the deponents of the Affidavit in Support of Enclosure 56 that:

they were never served with the 13.6.2022 Order;

(ii) that the previous solicitor i.e OKK was on medical leave and produced a Medical Certificate (MC);

(iii) they have merits in their defence against enclosure 38 in PW 107 which was the basis of the 13.6.2022 Order thereto; S/N /k6ufFb1pkudAWjITLbHkg

(iv) the said 13.6.2022 Order was granted ex parte and yet to be heard.

It is from the records of PW 107 that:

enclosure 38 in PW 107 was served on the Petitioner as seen in the affidavit of service affirmed by the Applicants solicitor’s process server affirmed on 22.7.2022 at enclosure 59 of PW 107;

(ii) the MC was produced only after the 13.6.2022 Order was made;

(iii) the said enclosure 38 in PW 107 was originally fixed to be heard on 7.4.2022 in the presence of the solicitors for the Petitioner who is also a director of Masera and that the Court had given directions to file in the Affidavit In Reply whereby Messrs Ong Partnership objected to the Applicants request for an extension of time;

(iv) Messrs Ong Partnership had thereafter not filed any Affidavit In Reply or Written Submissions for the said enclosure 38 in PW 107.

From the above, I find that the Petitioner and/or his solicitors knew of the proceedings but had chosen not to attend the same. They cannot now come to Court and plead ignorance of the hearing date for the said enclosure 38 in PW 107 and afford reasons which I find are unconvincing and appear to be an afterthought to justify Enclosure 56 being filed. S/N /k6ufFb1pkudAWjITLbHkg

The Suit 660 Judgment, which can be found in exhibit LKS-2 of enclosure 2, is a judgment whereby inter alia the sum of RM15,218,791 was expressly ordered to be paid by the Company herein to Masera. There is in the Suit 660 Judgment no order for the Company to pay the Petitioner herein.

The Petition is filed by the Petitioner against the Company on the pretext of the Suit 660 Judgment being made in favour of the Petitioner which I have found is clearly not the case. The said averment can also be found in the Affidavit Verifying the Petition of which the Petition and the Affidavit Verifying the Petition affirmed by the Petitioner are in in exhibit LKS -3 of enclosure 2.

It is thus plain and obvious to this Court that when the order was made to wind up the Company on 27.4.2021 (Winding Up Order), the Petitioner and/or its solicitor, OKK, had attempted to not only conceal the true facts of the Suit 660 Judgment but they had attempted to deliberately and consciously mislead this Court into making such an order.

It is apparent from the Want of authority Order dated 13.6.2022 that Masera had never authorized OKK or the Petitioner to act on its behalf. Consequently, the Petitioner did not have any locus whatsoever to file the Petition.

The Statutory Notice of Demand dated 10.11.2020 (Statutory Notice of Demand), as seen in exhibit LKS -3 of enclosure 2, issued by OKK S/N /k6ufFb1pkudAWjITLbHkg through the firm of Messrs Ong Partnership is therefore not only misleading but is also a total sham and an abuse of process. It goes without saying that the Statutory Notice of Demand is therefore wholly irregular and totally defective from the outset.

I also agree with learned counsel for the Applicant that the Petitioner, from the documents before this Court, now does not deny that the Suit 660 Judgment is payable to Masera and not the Petitioner as seen in paragraph 12 (b) of his Affidavit in Reply in enclosure 9.

After having examined the various affidavits before this Court, I can also find no legitimate explanation given by the Petitioner and/or OKK to this Court as to the misstatements made. This silence by the Petitioner and/or OKK are indeed deafening. I can only conclude in the circumstances that these serious and damaging allegations by the Applicant against them must therefore be presumed to be true. See the case of Takako Sakao v Ng Pek Yuen & Anor [2009] 6 MLJ 751 where the Federal Court held: “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. …. [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant's contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement S/N /k6ufFb1pkudAWjITLbHkg that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference.”

Based on all of the above I hold that the Petitioner knew at all material times of the true effect and orders given in the Suit 660 Judgment but that he had intentionally and dishonestly concealed the said true facts from the Court hearing the Petition. The Petition and the subsequent orders emanating from it are therefore a blatant abuse of court process and void ab initio. In the circumstances, this Court has the inherent jurisdiction to set aside the Winding Up Order will thus rely on the authority of Sibu Slipway Sdn Bhd v Yii Chee Ming & Ors and other appeals [2017] 1 MLJ 368 where Justice Nallini Pathmanathan JCA (as Her Ladyship then was) delivering the judgment of the Court of Appeal held: “[31] We conclude that this court has the inherent jurisdiction to intervene and set right or remedy an abuse of process in winding up proceedings, notwithstanding the lack of an express provision in the Act. In the case of Megah Teknik Sdn Bhd v Miracle Resources Sdn Bhd [2010] 4 MLJ 651; [2010] 6 CLJ 745 (‘Megah Teknik’) this Court recognised, albeit by way of obiter, that the winding up court has inherent jurisdiction. At para 25 of the judgment, Abu Samah Nordin JCA (now FCJ) stated, inter alia, as follows: [25] There is no express provision in the Companies Act 1965 or the Companies (Winding-Up) Rules 1972 similar to r 7.47(1) of the Insolvency Rules 1986. In the United Kingdom, before the S/N /k6ufFb1pkudAWjITLbHkg Insolvency Rules 1986 came into force a winding up order could not be rescinded after it had been drawn up. The only remedy was to apply for a stay: … or appeal … Until a similar provision is introduced into our Companies Act 1965 or Companies (Winding-Up) Rules 1972 we are of the considered view that a winding up which has been perfected and duly sealed cannot be set aside or rescinded save in those circumstances where the court may exercise its inherent jurisdiction … (Emphasis added.) [32] Clearly therefore this court recognised that notwithstanding the lack of express statutory provisions in the Act and the Rules, this did not affect the inherent jurisdiction of the court to intervene and provide redress even in respect of a winding up order that had been perfected and sealed.”

I also hold that from the facts before this Court, that OKK had intended by his actions of filing the Petition purportedly as solicitor for the Petitioner, acted in a manner not for the purpose of obtaining the relief so claimed but for the collateral purpose of preventing the Company from recovering a judgment of RM1,572,000 from OKK of which OKK is personally liable to the Company under the judgment dated 24.2.2017 obtained against OKK (OKK Judgment) by the Company vide Suit No. 22NCVC-326-07/2014 as seen in exhibit LSK-6 of enclosure 2 herein and which remains unpaid to date. Such an act is of course highly mischievous, irregular and improper. It cannot be anything less than a wrong in law.

This Court has further noted there appears to be some irregularities in the conduct of some of the matters which has been filed post S/N /k6ufFb1pkudAWjITLbHkg winding up by the Liquidator and/or the Petitioner of which the following was brought to the attention of this Court and which are as follows:

as shown in exhibit LKS-8 of enclosure 2, in the faired draft order for the Physical Examination Application, Masera was wrongly described as the Petitioner together with the

as seen in exhibit LKS -9 of enclosure 2, in the intitulement of the Written Interrogatories Application, Masera was misleadingly described as the Applicant together with the

the Liquidator of the Company refusing to sanction proceedings to recover the OKK Judgment for no legitimate reason as per the letters exhibited in exhibit LKS 11 of enclosure 2;

the solicitors for the Liquidator, Messrs Syed Muhammad Akhyari and the solicitors for the Petitioner, Messrs Ong Partnership share the same address for service i.e Suite B-6- 12, 6th floor Plaza Mont Kiara, 50480 Kuala Lumpur.

From all of the above findings, it is clear that Masera cannot be described as an Applicant or the Petitioner and that these in itself are again a serious case of misleading the Court. This Court therefore agrees with counsel for the Applicant that:

it appears that the Liquidator is being used as a tool by certain parties to advance their own ulterior motives; S/N /k6ufFb1pkudAWjITLbHkg

(ii) the actions by the Petitioner and/or OKK are premeditated for their own collateral purposes;

(iii) the Company has been unable to recover the OKK Judgment from OKK as OKK has used the Winding Up Order and the Petition to stifle the Company’s bankruptcy proceedings against OKK as shown in exhibit LKS-7 of enclosure 2.

Thus, from the facts before this Court it is also my decision to apply Section 493 of the Companies Act 2016 to terminate the Winding Up Order on the Company. Section 493 reads: “(1) At any time after an order for winding up has been made, the Court may, on the application of the liquidator or of any creditor or contributory and on proof to the satisfaction of the Court that all proceedings in relation to the winding up of the company ought to be terminated, make an order terminating the winding up of the company as the Court thinks fit.

In making an order under subsection (1), the Court may take into consideration, but not limited to, the following facts:

the satisfaction of the debts;

any agreement by the liquidators, creditors, contributories and other interested parties; or

other facts that the Court considers appropriate.”

I will further add that the said Winding Up Order on the Company is in my decision been obtained by fraud and is a nullity ab initio and should be set aside, following the authority of the Court of Appeal in Lua & Mansor v Tan Ah Kim [2017] 2 CLJ 175 and the Federal S/N /k6ufFb1pkudAWjITLbHkg Court in Malayan Banking Bhd v Gan Bee San & Ors and anor appeal (SKS Foam (M) Sdn Bhd, intervener) [2019] 2MLJ 137.

Wherefore this Court had

dismissed Enclosure 56 with costs of RM5,000; and

(ii) granted Order in Terms for prayers 1 (a), (b), (c) and (d), prayer 2, prayer 4 and for prayer 5 costs of RM20,000 for Enclosure 1 Dated: 25th day of July 2022 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE KUALA LUMPUR HIGH COURT Parties: Yee Mei Ken, Teh Soo Jin, Mattheus Goon Kin Zhi and Ho Yu Hang for the Applicant [Messrs Sia Boon Chee & Co.] Vickneswari a/p Veerasamy for the Proposed Intervener (Masera Realty Sdn Bhd) [Messrs Zamani & Co.] S/N /k6ufFb1pkudAWjITLbHkg Lim Kah Mun gor the Liquidator of the Respondent [Messrs Syed Muhamad Akhyari] Lee Ah Lan @ Lee Keok Hooi for the Petitioner [Messrs Ong & Partnership] S/N /k6ufFb1pkudAWjITLbHkg