Econpile (M) Sdn Bhd v 1. ) Irdk Ventures Sdn Bhd (dalam Likuidasi) (WA-22NCC-39-02/2023)

IRDK VENTURES SDN BHD (DALAM

TAN SRI DATO SRI DR. RAMASAMY A/L

PUAN SRI DATIN SRI DR. INDRA GANDHI A/P ELAYAPPAN (NO. K/P: 660114-08-5174) …DEFENDAN-DEFENDAN

The 2nd and 3rd Defendants filed an application on 30-10-2025 (“Enclosure 96”) seeking a stay of proceedings. They requested a stay pending the outcome of a post-winding up suit they had filed in Kuala Lumpur High Court Post Winding-Up Case No: WA-28PW-308-06/2025 (“PW 308”). S/N x83Q4d27/E6azpD8kiex7g

This action was fixed for trial over four days, namely 25-11-2025, 26-11-2025, 1-12-2025 and 2-12-2025. The trial date had been scheduled since 23-8-2024. On 2-10-2025, this Court had previously rejected a request made by the 2nd and 3rd Defendants, via letter, to adjourn the trial.

3.

On 14 November 2025, this Court heard and dismissed Enclosure The 2nd and 3rd Defendants have appealed to the Court of Appeal. Background facts

This is a suit by the Plaintiff, a creditor of the 1st Defendant, against the Defendants for an alleged conspiracy to deprive it of a debt claimed to be owed, arising from unpaid sums in a construction project undertaken for the 1st Defendant. The 2nd and 3rd Defendants are former directors and shareholders of the 1st Defendant.

On or around 18 July 2016, the Plaintiff received part payment of RM2,033,225.03 after heavily contested litigation over an Adjudication Decision dated 30 October 2015. The Plaintiff then commenced arbitration proceedings to recover the balance allegedly owed, amounting to RM4,006,664.78, which the 1st Defendant initially resisted.

The 1st Defendant’s counsel withdrew from the arbitration after filing statements of defence. Thereafter, the 1st Defendant delayed S/N x83Q4d27/E6azpD8kiex7g the arbitration, which had already been fixed for hearing from 8 May 2018 to 6 July 2018, ostensibly to appoint new counsel.

On 5 October 2018, the arbitral tribunal issued an ex parte Arbitration Award against the 1st Defendant (“Award”). The Award determined that RM3,841,087.81, comprising RM2,229,515.22 (progress claim no. 6) and RM1,611,572.59 (final account), was due from the 1st Defendant to the Plaintiff, together with interest and costs.

In the interim, and unbeknownst to the Plaintiff, the 1st Defendant was wound up on 5 July 2018 over a debt of RM28,607.50 on the petition of a third party. The Plaintiff subsequently obtained a winding-up order against the 1st Defendant on 17 July 2019. This was followed by further litigation by the Plaintiff against the liquidator of the 1st Defendant over the rejection of its proof of debt.

The Plaintiff’s proof of debt was eventually lodged with the current liquidator of the 1st Defendant, but no recovery has been made. The Plaintiff filed this action, citing as overt acts of the alleged conspiracy: a) the wrongful termination of the Plaintiff’s construction contract in 2015; b) sale of the project for RM90 million to a third party, and declaration and payout of a RM68 million dividend to the shareholders in February 2016; S/N x83Q4d27/E6azpD8kiex7g c) conduct of litigation, and delaying subsequent arbitration through various means while concealing the impending and eventual winding up of the 1st Defendant.

The Plaintiff seeks the following relief in this action: S/N x83Q4d27/E6azpD8kiex7g Analysis and findings

It is not disputed that this Court has the power to order a stay of court proceedings, including a limited stay pending the determination of related proceedings before another Court. This power must, of course, be exercised judiciously.

The High Court in Teguh Majuria Sdn Bhd & Ors v ATSA Architects Sdn Bhd & Ors [2022] 10 CLJ 492 (“Teguh Majuria”) is instructive on the law regarding stays of proceedings. Instead of the broader test of “special circumstances” or “rare and compelling circumstances,” it was held in Teguh Majuria, following BNP Paribas Wealth Management v. Jacob Agam And Another [2017] 3 SLR 27, that: “[18] In my view, "the efficient and fair resolution of the dispute as a whole" test is the appropriate test when considering an application for a limited (i.e., temporary) stay of a Malaysian court proceeding pending the determination before another Malaysian Court of related proceedings. The relevant factors for a court to consider are:

which proceeding was commenced first;

(ii) whether the decision in one proceeding is likely to have a material effect on the other proceeding;

(iii) the public interest in saving time and costs;

(iv) the public interest in avoiding inconsistent findings of fact on the same issues and same evidence before two courts; S/N x83Q4d27/E6azpD8kiex7g

the need to balance the advantages and disadvantages to each party arising from the decision to stay or not to stay. [19] Ultimately, the judge must look at all the circumstances of both the suits, balance the competing interests of the adverse parties and exercise his discretion whether to grant or not grant a stay to ensure the efficient and fair resolution of the dispute between the parties as a whole. The overall interests of justice are the paramount consideration for a judge deciding whether or not to grant a stay of proceedings of a suit pending the outcome of another suit.”

In this case, the other suit is PW 308. PW 308 seeks orders for leave of Court to sue the liquidator of the 1st Defendant and compel him to file an action to set aside the Award against the 1st Defendant on the grounds that the Award is invalid. Alternatively, PW 308 seeks to remove the liquidator and appoint the Official Receiver in his place.

Based on the relief sought in PW 308, it is not at all obvious that the stay of proceedings requested in Enclosure 96 is of a limited or temporary nature. There are numerous reasons why a liquidator may refuse to incur any time and cost in setting aside the Award if it is of no benefit to the winding up of the 1st Defendant.

In any case, this Court found that the facts and circumstances of this case satisfied none of the tests for a stay of proceedings for the following reasons: S/N x83Q4d27/E6azpD8kiex7g a) PW 308 and this action are not parallel suits and there is no risk of conflicting findings by 2 different Courts on any point of fact or law. Although the 2nd and 3rd Defendants contend that the setting aside of the Award will affect this action, there is no need for this Court to make a finding on matters pending in PW 308 or the contemplated action to set aside the Award. The Award remains valid until it is set aside, and any remedy that is contingent upon the validity of the Award can be crafted to provide for the possibility of nullification. b) The possible setting aside of the Award does not undermine the substratum of the claim in conspiracy, in that the survival of the Award is not essential to the sustainability of the claim. The Plaintiff’s chief complaint is that the Defendants took concerted steps to deprive it of the sum represented by the Award, including the events relied upon by the 2nd and 3rd Defendants to set aside the Award. Moreover, the usual remedy for conspiracy is damages, which are not necessarily confined to the sum awarded in the arbitration. c) The present action was commenced in February 2023 and is at the advanced stage of being ready for trial, whereas the prospect of setting aside the Award has only just begun with PW 308. S/N x83Q4d27/E6azpD8kiex7g Under Order 34 Rule 1(1)(b) of the Rules of Court 2012, the Court has a duty to ensure a just, expeditious and economical disposal of cases. This does not entail postponing the present action indefinitely while PW 308 and any ensuing action take their course. d) The only practical effect of proceeding with the trial of this action is that the merits of the Plaintiff’s conspiracy claim will be ventilated and costs incurred. It is the Plaintiff’s risk if aspects of the remedies sought are not recoverable. These factors do not outweigh the Court’s duty to hear the claim without undue delay, particularly when the decision in PW 308 may not materially affect the proceedings, and costs can be allocated as appropriate.

For the above reasons, Enclosure 96 was dismissed with costs of RM8,000.00 and the trial of this action was again directed to proceed as scheduled. Bertarikh: 21 November 2025 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR S/N x83Q4d27/E6azpD8kiex7g Peguam Untuk Plaintif: Tan Joon Meng, Pan Yan Teng and Serene Hiew Mun Yi Messrs Harold & Lam Partnership Untuk Defendan Ke-dua dan Ke-tiga Rabindra S. Nathan, Chew Ming Yee, Oazair B. Huneid Tyeb, Harjinder Kaur, Ainnur Annisa Bt Abd Razak, and Nur Aliya Bt Zamimi PDK Messrs Shahrizat Rashid & Lee S/N x83Q4d27/E6azpD8kiex7g