Datuk Seri Maglin Dennis D'Cruz v Ketua Pengarah Jabatan Insolvensi Malaysia (WA-24NCC-250-05/2023)

TAN SRI DATUK SERI M. KAYVEAS [NRIC: 540429-06-5067]

KAYVEAS HOLDINGS SDN BHD [No. Syarikat: 829080-V]

BINTANG IRADAT (M) SDN BHD [No. Syarikat: 510546-X] …PROPOSED INTERVENERS GROUNDS OF JUDGMENT Introduction [1] The Proposed Interveners filed Enclosure 23 seeking to intervene in the current suit. I disallowed the application. They now appeal. Brief Background facts Civil Suit No.: WA-22NCC-326-06/2019 (“Suit 326”) [2] The late Datuk Seri Maglin and the former AMT members of myPPP, a society registered under the Societies Act, filed Suit 326 against the Proposed Interveners and other persons alleging fraudulent conduct on the part of the Proposed Interveners and several others which resulted in certain assets of myPPP (“the Subject Matter”) to be fraudulently transferred to entities connected to the Proposed Interveners. Suit 326 was filed by the plaintiffs in their representative capacity as former members of myPPP. At the conclusion of the trial, the High Court ruled in favour of the plaintiffs. (see Datuk Seri Maglin Dennis D’Cruz & 12 ors. v. Tan Sri M Kayveas & 9 ors. [2020] 1 LNS 1053). This was subsequently affirmed by the Court of Appeal and the leave application to appeal to Federal Court was dismissed. As at the time of the decision myPPP had been deregistered, the Court directed that the Subject Matter to be vested with the Director General of Insolvency (“DGI”). The Current Suit [3] With the deregistration of myPPP being rescinded, the Plaintiff initiated the current action to obtain a vesting order to effect the return of the property of myPPP to the Plaintiff. It was contended that the DGI did not take any steps to effect the orders in Suit 326. As such, the Plaintiff filed the current suit to “retake” the Subject Matter given the change in the status of myPPP. Enclosure 23 [4] Enclosure 23 was filed by the Proposed Interveners asking for them to be allowed to intervene in the current suit. The gist of the Proposed Interveners’ argument is anchored on the basis that the outcome of the current suit affects the Proposed Interveners as it emanates from Suit 326. Issue [5] The issue to be determined is whether the Proposed Interveners are allowed to intervene in this current proceeding. Finding [6] It is my view that the Proposed Interveners do not have the right to intervene. The reasons are as follows: i. the Proposed Interveners’ legal interest ended after Suit 326 was finally determined; and ii. this Court is functus officio. The Proposed Interveners’ legal interest ended after Suit 326 was finally determined. [7] It is settled law that those who apply to intervene because their legal interests would be directly affected will be allowed to intervene. Those with merely a monetary interest or those who are indirectly affected will not be allowed to intervene. (See Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52, Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 CLJ 1153) [8] It is my view that Suit 326 had determined the fate of the Proposed Interveners. Their legal interest ended with Suit 326. In Suit 326, the Court ruled that the said Subject Matter belonged to myPPP but due to its status as a deregistered society, all its shares vested with DGI. Suit 326 had been finally determined at the appellate level. [9] Had it not been for the deregistration of myPPP, it will not be wrong to postulate that the Subject Matter of Suit 326 would have been vested with myPPP. However, due to its status as a deregistered society, the said Subject Matter had to vest with the DGI. [10] The current suit is a follow up action taken by the Plaintiff to put into effect the order of the Court in Suit 326. This came about as a result of the change in circumstances where myPPP was subsequently reinstated. Also, it was the complaint of the Plaintiff that the DGI did not carry out any of the orders stated in Suit 326. [11] When I allowed the application of the Plaintiff, the main consideration was whether the DGI should still be vested with the Subjext Matter. Given the change in circumstances, it was obvious that the proper party to be given rights to the Subject Matter is the nominated person from myPPP. In this case, Datuk Seri Maglin Dennis D’Cruz or the Plaintiff. I am fortified in my decision as the DGI too had no response as to why it did not take any steps to enforce Suit 326. [12] The Proposed Interveners’ arguments that they must be included in the current Suit as it has direct bearing on them does not hold water. It is my view that their rights extinguished after all appeal avenues had ended in Suit 326. I am of the view that Suit 326 had an effect of dislodging the control of the Subject Matter from the Proposed Interveners. This was affirmed by the Court of Appeal. [13] Even if I allow the Proposed Interveners’ application, it cannot be a situation where the said Subject Matter were to revert back to the Proposed Interveners. That would be a backdoor appeal. It would also result in me overruling the Court of Appeal. Thus, the Plaintiff was correct in not naming the Proposed Interveners in the current suit. To do so would be to reignite a completed litigation and reopen the issues resolved in Suit 326. To argue that the Proposed Interveners must be included in the current suit to ensure “status quo is maintained” is specious. This Court is functus officio [14] During the hearing of the Proposed Interveners’ application, I raised with the parties whether they were aware of the decision of the Federal Court in Dr Lourdes Dava Raj A/L Curuz Darai Raj v. Dr Milton Lum Siew Wah & Anor [2020] 5 MLJ 185 (FC). Counsel for the Plaintiff sought to distinguish the case while Counsel for the Proposed Interveners i.e. the 1st Proposed Intervener himself sought time to study the decision. He subsequently filed further submissions referencing the case of Dr Lourdes. [15] In essence, the Federal Court in Dr Lourdes allowed a departure from the Federal Court case of Hong Leong Bank Bhd (formerly known as Hong Leong Finance Bhd) v Staghorn Sdn Bhd and other appeals [2008] 2 MLJ 288 (“Staghorn”). In Staghorn, the Apex Court held that an application for leave to intervene by a party not already a party to the proceedings must be made under O.15 r.6 of the Rules of High Court. The application may be made ‘at any stage of the proceedings’ meaning before judgment, otherwise the proceedings have concluded and there is no longer a proceeding in existence for the party to intervene in. The judge too would be functus officio. [16] In the current suit, I had already determined and made the relevant orders. There is nothing more that is required of this Court as far as the Plaintiff’s case is concerned. The Defendant namely the DGI too did not appeal against the decision. As such, I am functus officio and cannot make any further orders. [17] The door that allowed the Federal Court to depart form Staghorn was on a very specific point namely breach of the principle of natural justice - right to be heard. However, the Federal Court in Dr Lourdes did not overrule or hold Staghorn was in any manner wrong. Staghorn stood on its own facts. [18] To my mind, the decision in Dr Lourdes is distinguishable. Dr Lourdes was not given the opportunity to defend himself when the substantive finding of guilt was made by the Court of Appeal. Rightly, the Federal Court ruled that the order of the Court of Appeal was a nullity. This therefore opened the door to allow the intervention. [19] Juxtaposing the facts in Dr Lourdes to the current suit, it is obvious that the argument for a breach of natural justice does not arise in this current suit in any manner. Suit 326 was exhausted in its entirety up until the Federal Court. Suit 326 was the avenue for the Proposed Interveners to challenge the suit which they did. They were given every right to be heard in Suit 326. [20] The argument by the Proposed Interveners that “the right to be heard extends to all stages that affects them” does not subsist in perpetuity under all circumstances. The right must be contextually accorded. It was valid for Suit 326 but not in this current suit. Conclusion [21] It is my view that the application has no merits. I have no power to re-open the case to allow the Proposed Interveners to intervene. [22] The application is therefore dismissed with costs of RM5,000.00. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 19th March 2024 Counsel Gavin Jayapal, Kausalyaa Munesbaran and Sivanandini Sreegantham for the Plaintiff Messrs. Gavin Jayapal, Selangor Abdul Khaliq bin Nazeri for the Defendant