on the other hand, as long as the prayers are for a monetary sum, I must not grant leave because it can be dealt with by the proof of debt process. [32] Instead, I must consider the width and depth of the surrounding facts and circumstances, before I apply the governing principles to those facts and circumstances—fundamental principles such as the balance of convenience, and the balance of justice—to achieve a just and fair outcome. At the same time, I am to steadfastly adhere to the principles propounded in Mesuntung (supra) and Ganda Setia (supra), and Dubon Bhd (In liquidation) v Wisma Cosway Management Corp [2020] 4 MLJ 288 (FC); [2020] 5 AMR 33; [2020] 6 CLJ 589; [2020] 3 MLRA 555. [33] In relation to a claim for a debt due—the principle is that if KCJ’s claim is merely for the recovery of a debt, the leave of Court should not granted, because the recovery of the debt can be obtained by filing a proof of debt in the winding up proceeding. The Federal Court in Dubon (supra) propounded— [41] As such the High Court judge was correct in applying the test he did, premised on the well-known principles cited, inter alia, in Mosbert Berhad (in liquidation) v Stella D’ Cruz [1985] 2 MLJ 446 and more recently by the Court of Appeal in Ganda Setia Cemerlang Sdn Bhd & Anor v Maika Holdings Bhd (in liquidation) [2017] 6 MLJ 661; [2017] 1 LNS 1576. The test is that set out in the old English decision of Re Cuthbert Lead Smelting Co Ltd [1886] WN 84 which held that if the party applying for leave could obtain all the relief in the Page 12 of 17 winding up, leave would be refused. If that party’s claim cannot however be adequately dealt with in the winding up or if the remedy sought cannot be granted in the winding up proceedings then leave would be granted. [42] For the reasons set out above, it is evident in the instant case that recovery of the debt is easily procured in the winding up proceedings by the filing of a proof of debt form. There is therefore no necessity for the grant of a leave. [emphasis mine] THE EVIDENCE THAT THERE WAS AN ASSIGNMENT OF 98% OF WHATEVER PAYMENT RECEIVED FROM THE PROJECT TO KCJ [34] KCJ asserts that 98% of all payments that RCo was meant to receive from the project were assigned to KCJ. I asked KCJ to demonstrate that there was such an assignment. But KCJ could not show me any documentary evidence, such as a written assignment or a written agreement that constituted such an assignment. KCJ showed me an Invoice from KCJ to RCo where KCJ billed RCo 98% of the amount of Progress Claim No. 33, which was paid. [35] KCJ informs me that there are 64 Progress Claims in total. KCJ showed me merely one out of 64 purported Progress Claims that infer this understanding between KCJ and RCo. [36] I find this insufficient to demonstrate that there was an assignment of 98% of all the payments to RCo from the project to KCJ. [37] Anyhow, I do not need to consider whether there was such an assignment—in order to decide whether to grant leave. Instead, I need to consider the purpose and the effect of KCJ’s intended suit. Page 13 of 17 KCJ’S INTENDED SUIT [38] What is KCJ’s intended suit? KCJ submits that it is for a Declaration that the RM722k retention sum is KCJ’s money; it is money that RCo had already assigned to them. And ultimately KCJ should be paid the full RM722K. [39] In my view, this argument is not tenable. Ultimately, KCJ is seeking a judgment for the RM722K. KCJ wants to be paid the full RM722K and not be subjected to the liquidation process as all other unsecured creditors are. [40] I made a comparison between a judgment in KCJ’s favour in the intended suit, and a purely monetary judgment obtained by any other unsecured creditor. And I see no difference between the two. A judgment in KCJ’s favour in the intended suit has the same parameters and effects as a judgment made in another unsecured creditor’s favour in that creditor’s suit against RCo for a debt due. APPLICANT’S REMEDY IS PROVABLE IN THE LIQUIDATION PROCESS [41] To my mind, KCJ’s remedy in the intended suit for money is provable in liquidation through the proof of debt process. [42] Considering the principles and factors that were gleaned from the case law authorities, as well as the justice of the matter and the balance of convenience, I find that the justice of granting leave to KCJ to pursue the intended suit for a monetary judgment, does not outweigh the costs and time required to oppose the intended suit. Particularly when the costs Page 14 of 17 are paid out of the assets of RCo, draining RCo’s already-limited resources. It would not be fair to the other creditors of RCo. THE PRESERVATION OF THE PARI PASSU PRINCIPLE [43] In the liquidation aspect of company law, the pari passu (equal ranking) principle is “paramount”. The rights of all unsecured creditors are equal, and must be protected—Ganda Setia (supra). [44] The pari passu principle dictates that all RCo’s unsecured creditors are treated equally in the liquidation process. It is “mandatory” to adhere to the pari passu principle. [45] In Malaysian Trustees Bhd v Transmile Group Bhd & Ors [2012] 3 MLJ 679 (CA); [2012] 3 AMR 499; [2012] 9 CLJ 1071; [2012] 3 MLRA 150, the Court Of Appeal, through Justice Ramly Ali JCA (later FCJ), enunciated— [22] The pari passu rule is the cornerstone of insolvency law. It is one of the most fundamental principles of the law of liquidation and is at the very heart of the whole statutory scheme of winding up. It is considered as the most universal of all insolvency principles. It is an old equitable principle that all persons similarly situated are entitled to equality in treatment in the distribution of the assets of the company in the process of liquidation (see McPherson's Law of Company Liquidation at para 13.100, at pp 13–1051 and Roy Goode Principles of Corporate Insolvency Law at p 175 para 7.02). . . [24] The pari passu rule is considered as mandatory in its application on the grounds of public policy. It reflects the principle that statutory provisions for pro rata distribution may not be excluded by a contract which gives one creditor more than its proper share (see Belmont Park Investments Pty Ltd v Page 15 of 17 BNY Corporate Trustee Services Ltd and another [2011] UKSC 38 — Supreme Court UK and British Eagle International Airlines Ltd v Compagnie National Air France [1975] 2 All ER 390). [emphasis mine] [46] If KCJ is given leave to commence the intended suit, and the presiding Court grants judgment for the monetary sum (RM722K) claimed, it would be tantamount to a preference given to KCJ over the other creditors. [47] I need to consider here whether to allow KCJ to pursue an outcome (a monetary judgment) that may run counter to the objective of the pari passu principle. And whether permitting KCJ to do so will cause RCo to incur avoidable costs and time to oppose the intended suit. CONCLUSION [48] I took into account the facts and circumstances surrounding this Application. I followed the principles relating to whether to grant leave to KCJ to commence the intended suit. And I considered the factors that weighed on the balance between granting leave and not granting leave. [49] In the end, I decided not to grant leave. My reasons are as follows—