Ctg Property Sdn Bhd v Sulaiman @ Mohamed Helmi Bin Mohd Ilyas (WA-28PW-774-12/2024)

SULAIMAN @ MOHAMED HELMI BIN MOHD ILYAS (NRIC No: 810417-10-5663)

ADAM BIN MOHAMED ILYAS (NRIC No: 840310-14-5013)

ZAHRAH BINTI AHMAD (NRIC No: 560111-01-5578) …RESPONDENTS

This is an appeal to the Court of Appeal dated 6.1.2026 (Encl 37) from my decision on 9.12.2025 dismissing the Notice of Motion dated 27.12.2024 (“Encl 2”) for declarations that the directors of the Applicant are guilty of misfeasance, breach of fiduciary duty, misapplication of the assets of the Applicant and fraudulently transferring monies of the Applicant and for fraudulent trading. Relief was also sought for orders requiring the refund of various monies under ss 471, 472, 486(1) 536, 540, 541, and 542 of the Companies Act 2016 (“CA 2016”). The relief is sought against the Respondents, who were or are the directors of the Applicant.

Save where the context otherwise provides, all references to sections herein are with references to sections in CA 2016.

The Applicant was wound up by an Order of Court dated 10.3.2020, see Encl 1 Exhibit ‘LSK-1’. Mr. Ling Sie Kiong was appointed as the Liquidator (“Liquidator”).

This Notice of Motion was filed as a consequence of an application for Public Examination pursuant to ss 502 and 503 and Rule 53 of the Winding Up Rules 1972 (“the Rules”). a) During the Public Examination, the 1st Respondent (“R1”) was cross-examined by the Applicant’s Counsel and questioned on various bank statements of the Applicant with Hong Leong Bank. It concerned the transfer of substantial funds between 8.1.2028 and 8.5.2018, see Encl 1 Exhibit “LSK-2’ for the said bank statements. The Liquidator maintains that R1’s responses were unsatisfactory or false. b) R1 was also questioned on the sale of 5 bungalows which were constructed by Jaya Teguh Sdn Bhd (“Jaya Teguh”), the contractor of the Applicant appointed under the Articles of Agreement dated 26.5.2011 for a contract sum RM4,998,166.00, see Encl 1 Exhibit “LSK-3” for the said Articles. There was a dispute and pursuant to an Arbitration Award, a sum of RM1,500,000.00 was payable by the Applicant to Jaya Teguh, see Encl 1 Exhibit “LSK- 4” for the Arbitration Award dated 7.11.2018. Jaya Teguh filed a proof of debt with the Liquidator for the said

The Applicant claims that the said transfer of funds amounting to RM711,670.00 and the non-payment of the RM1,500,000.00 to Jaya Teguh by the Respondents was with the intention to defraud its creditors.

The Applicant submits that s. 540 empowers the Court to declare the Respondents personally liable for the Applicant’s debts if it is established that there was an intention to defraud its creditors.

I have dealt with the facts summarily as I am not, at this stage, concerned with the merits of Encl 2.

What became apparent during oral argument is that a Notice of Motion may not be appropriate for the nature of the claim and the relief sought. The claim was based in fraud. In this vein, it would be very difficult to draw inferences of mala fides on affidavit, see Re Bank of Credit and Commerce International SA (No 5) [1994] 1 BCLC 429, per Harman J; and the parties accept that it would similarly be inappropriate to determine fraud on affidavit.

Counsel for the Liquidator sought to remedy this. He requested that Encl 2, a Post-Winding Up Notice of Motion, be converted into a Writ so that the claim may be adjudicated through a trial.

This turns on the nature of a Post Winding Up Application and whether its nature would allow it to be converted into a Writ.

Prior to 2017, the filing of applications was governed by Rule 8 of the Rules. It provides: “8. Title of proceedings

Every proceeding in a winding-up matter shall be dated and shall, with any necessary additions, be intituled as follows: IN THE HIGH COURT IN................ AT ................ COMPANIES (WINDING-UP) NO ........ OF ............. In the matter of the Companies Act 1965 and In the matter of ..................................

The first proceeding in every winding-up matter shall have a distinctive number assigned to it in the office of the Registrar, and all proceedings in any matter subsequent to the first proceeding shall bear the same number as the first proceeding.” 6 12. In other words, the ‘first proceeding’ after commencement of Winding Up Proceedings, being the Petition, shall bear a distinctive number. The first number will be carried by the first proceeding, the Petition. Subsequent applications, will bear the same number as the Petition.

All applications are governed by Rule 7 of the Rules. It provides: “7. Motions and summon

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.”

Under rule 7, an application is to be made by a Notice Motion and if in Chambers, by Summons. Both types of application are interlocutory in nature and are by Rule 7, specifically contrasted to a Petition, which is originating. They are not originating proceedings. The application here (Encl 2) is stated to be a Notice of Motion, an interlocutory proceeding within Rule 7.

The new ‘Post Winding Up Application’ is a peculiar animal and is frequently misunderstood. It is sometimes said to be a ‘fresh action’, in other words, a fresh originating proceeding.

It is not.

The Post Winding up Application was initially created by Practice Direction No 2 of 2017 (“PD 2/17”) which came into force on 1.6.2017. It dealt with the creation of Commercial Court 10 to deal with applications made after the grant of a winding up order for further relief in the winding up. These applications were made within the Petition itself. On 1.7.2018, PD 2/17 was superseded by a new Practice Direction known as Practice Direction No. 1 of 2018 (“PD 1/18”). I will only deal with these Practice Directions in the context of post winding up applications.

The material portions of PD 2/17 provide as follows. “PRACTICE DIRECTION NO. 2 OF 2017 SPECIAL REGISTRATION CODES FOR POST-WINDING-UP COMPANY CASES AND POST-BANKRUPTCY CASES IN THE HIGH COURT I am directed to refer to the above matter.

On 3 April 2017, the Post-Winding-Up and Related High Court was established at Commercial Division 10 of the High Court of Malaya in Kuala Lumpur.

With the establishment of the said High Court, this Practice Direction is issued to prescribe a special registration code for the registration of post-winding-up company cases and post-bankruptcy cases.

APPLICATION This Practice Direction shall apply throughout the High Court of Malaya as well as the High Courts of Sabah and Sarawak.

CLASSIFICATION OF CODES AND SPECIAL CAUSE BOOK The registration of Post-Winding-Up Company Cases and Post-Bankruptcy Cases shall use the following codes: Type of Case Code No. Matter Civil 28PW Post-winding company cases (Any application made after a Winding Up Order has been granted) 29PB Post-bankruptcy cases (Any application made after a Receiving Order and Adjudication Order have been made)”.

Thereafter, Commercial Court 10 became known as Insolvency Court 1.

PD 1/18, which superseded PD 2/17 provides as follows. “PRACTICE DIRECTION NO. 1 OF 2018 REGISTRATION OF SPECIAL CODES FOR POST-WINDING-UP CASES, POST-BANKRUPTCY CASES AND VOLUNTARY ARRANGEMENTS UNDER THE COMPANIES ACT 2016 AND THE INSOLVENCY ACT 1967 AND THE PRESCRIPTION OF NEW INTITULEMENTS The Right Honourable the Chief Justice, after consultation with the Right Honourable the Chief Judge of Malaya and the Right Honourable the Chief Judge of Sabah and Sarawak, and in accordance with the Companies Act 2016 [Act 777], the Insolvency Act 1967 [Act 360] and the rules made thereunder, hereby issues this Practice Direction to prescribe special registration codes and intitulements for the cases stated below.

APPLICATION OF THE PRACTICE DIRECTION This Practice Direction shall apply to all High Courts in Malaysia as well as the High Courts of Sabah and Sarawak.

CLASSIFICATION OF SPECIAL REGISTRATION CODES The registration of the following cases in the High Court shall use the following codes: Type of Case Code No. Matter Civil (Commercial) 28PW Post-winding company cases (Any application made after a Winding Up Order has been granted) 24PW Post cases under s. 181(2)(e) of the Companies Act 1965 or s. 346 (2)(e) of the Companies Act 2016 28VA Voluntary Arrangement cases under s. 396 of the Companies Act 2016 28JM Judicial Management cases under s. 404 of the Companies Act 2016 Civil (Bankruptcy) 29PB Post-bankruptcy cases (Any application made after a Receiving Order and Adjudication Order have been made) 29VA Voluntary arrangement cases under s. 2C of the Insolvency Act 1967

Cases under codes 24PW, 28VA, 28JM and 29VA shall be fixed before a High Court Judge / Judicial Commissioner.

CODES 28PW AND 24PW Every post-winding-up case under codes 28PW and 24PW shall contain the following intitulement:

the original case number of the winding-up petition which granted the winding-up order;

the statutory provision forming the basis of the post-winding-up application;

the name of the applicant; and

the name of the company being wound up. An example of the intitulement is as set out in Appendix A. SPECIAL INTITULEMENT FOR POST-BANKRUPTCY CASES

UNDER CODE 29PB Every post-bankruptcy case under code 29PB shall contain the following intitulement:

a list of the post-bankruptcy case numbers previously filed;

a list of the bankruptcy case numbers under which the judgment debtor was adjudged bankrupt;

the statutory provision forming the basis of the post-bankruptcy case; and

the name of the applicant. An example of the intitulement is as set out in Appendix B.” 12 21. In my judgment, the effect of both Practice Directions is to only create new registration codes and new forms of intitulement for each fresh application filed after a winding up order made. Without these Practice Directions, new applications after a winding up order but ‘within’ the Petition, would otherwise be filed as a pure interlocutory application carrying a registration number of the Petition only.

This would perpetuate an administrative inconvenience. The number of creditors could be numerous with each creditor possibly making applications for relief, let alone the applications by the liquidator which could also be numerous. It would be difficult for the system to track each such application and monitor its progress. I would guess that new application codes would facilitate the tracking of each winding up and winding up applications.

I note that both PD 2/17 and PD 1/18 require that the intitulement for the Post Winding Up Application carries with it the Original Petition Number. This, in my judgment, also suggests that a Post Winding Up Application is indeed an interlocutory proceeding owing its existence to the originating Petition, which resulted in the Winding Up Order. Such applications remain interlocutory within Rule 7. Both PD 2/17 and PD 1/18 are therefore purely administrative in nature. They do not alter the nature of post winding up ‘applications’, which remain interlocutory within Rule 7. Rule 7 (and possibly the Rules of Court) which would have to be amended if a Post Winding Application was to constitute an originating proceeding.

It may be that after a Winding Up Order is made, only applications that may be considered as ‘within the Petition’ may be filed as a Summons or Motion within Rule 7, see Practice and Procedure of the Companies Court, Boyle & Marshall (1997), para 10.4. There is English authority to suggest that all other applications should be filed as originating proceedings such as for the removal of a liquidator, see Re Corbenstoke Ltd (No 2) [1990] BCLC 60. But I accept that these involve different procedural provisions.

The final question is whether Encl 2, a defective interlocutory proceeding in the form of a Notice of Motion may be converted to a Writ, an originating proceeding so as to allow a trial for fraud to be conducted.

In short, while I am loathe to dismiss an application for a procedural error, I find great difficulty in accepting that an interlocutory proceeding which owes its existence to another originating proceeding (the Petition) can be re-born or morphed to a new and fresh originating Writ. Nor do I think that the filing of a motion based in fraud is a mere irregularity falling within Rule 194 of the Rules. The claim in Encl 2 should be refiled in the form of a fresh originating application by way of a Writ, see the recent decision concerning fraudulent trading which was commenced by way of a Writ resulting in a lengthy trial before Justice Atan Mustaffa in Sarens (M) Sdn Bhd v Causeway Iron Works Sdn Bhd & Ors [2026] MLJU 356.

As such, I find that Encl 2 is defective and cannot be cured. I therefore dismissed Encl 2 with costs of RM10,000.00. Dated the 1st day of March 2026 ...........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR, MALAYSIA Counsel for the Applicant: Solicitors: Ranjan N. Chandran & Joshua Nathanael Mogan Messrs. Susielan & Assoc. (Kuala Lumpur) Counsel for the Respondents: Solicitors: Muhammad Shafee, Muhammad Farhan & Wee Yeong Kang Messrs. Shafee & Co. (Kuala Lumpur) Case References: • Practice and Procedure of the Companies Court, Boyle & Marshall (1997) • Re Bank of Credit and Commerce International SA (No 5) [1994] 1 BCLC 429 • Re Corbenstoke Ltd (No 2) [1990] BCLC 60 • Sarens (M) Sdn Bhd v Causeway Iron Works Sdn Bhd & Ors [2026] MLJU 356 Legislation References: • Companies Act 2016 (“CA 2016”) • Rule 53 of the Winding Up Rules 1972 (“the Rules”) Decision Date: 9th December 2025