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BA-28JM-10-04/2025 Kand. 07/11/2025 12:41:15 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO. BA-28JM-10-04/2025 DALAM PERKARA SEKSYEN- SEKSYEN 404,405,406 & 407 AKTA SYARIKAT 2016 DALAM PERKARA KOH LEK CONSTRUCTION & RENOVATION SDN. BHD (NO. SYARIKAT: (199401027768/313450-D) DALAM PERKARA KAEDAH 8&17 KAEDAH-KAEDAH SYARIKAT (MEKANISME PENYELAMAT KORPORAT) 2018 KOH LEK CONSTRUCTION & RENOVATION SDN.BHD (NO. SYARIKAT: 199401027768/313450-D) ... PEMOHON SMARTECH INTERNATIONAL SDN BHD (NO. SYARIKAT: 200801021284 / 822599-P) ... PENCELAH YANG DICADANGKAN GROUNDS OF JUDGMENT (Enclosure 19 — Application to Intervene) Introduction 1. Enclosure 19 is an application by Smartech International Sdn Bhd (‘Smartech’”) seeking leave to intervene in the present judicial management (“JM’) proceedings commenced by Koh Lek Construction & Renovation Sdn Bhd (“the Applicant”). Smartech claims to be an unsecured creditor of the Applicant in respect of retention sums and GST arising from a construction project. 2. Having carefully considered the parties’ affidavits and submissions, | dismissed the application. My reasons are as follows. Background Facts 3. Smartech was appointed as a subcontractor by the Applicant to carry out construction works. It alleges that the Applicant has failed to pay RM245,125.00, comprising RM231,250.00 in retention sums and RM13,875.00 in GST. The debt, according to Smartech, became due after the issuance of the Certificate of Practical Completion and the expiry of the defect liability period. 4. Following non-payment, Smartech initiated arbitration proceedings against the Applicant. However, upon the filing of the present JM application, those proceedings were stayed pursuant to the statutory moratorium under section 410 of the Companies Act 2016 (“CA 2016”). Smartech therefore seeks to intervene in these JM proceedings to protect its interests and to ensure its debt is taken into account in any proposed rescue plan. 2 Submissions of the Parties Smartech’s Submissions 5. Smartech submits that it has a direct legal interest in the outcome of the JM application, as the moratorium has prevented it from pursuing recovery of its debt. It contends that as an unsecured creditor, it is entitled to be heard where the proceedings directly affect its rights. Reliance is placed on Order 15 rule 6(2)(b) of the Rules of Court 2012, which permits any person whose interests are affected by pending proceedings to intervene. 6. Smartech further argues that the judicial management process will determine whether and how its debt is to be treated. It contends that justice requires that unsecured creditors like itself be heard so that their interests are not overlooked when the Court considers whether to make a JM order. Applicant’s Submissions 7. The Applicant objects to the intervention. It submits that Smartech is neither a secured creditor nor a debenture holder and therefore has no statutory right to intervene in or oppose the JM application under section 409 of the CA 2016. That section limits the right to oppose the making of a JM order to a receiver/receiver and manager or any secured creditor. 8. The Applicant also contends that Smartech’s claim is disputed and does not confer any special standing. Allowing intervention by every unsecured creditor would, it argues, defeat the purpose of judicial management, which is to provide the company temporary protection from creditor action while attempting rehabilitation. 9. Reliance is placed on Re Biaxis (M) Sdn Bhd [2022] 7 MLJ 443 and the Court of Appeal decision in Kumpulan Liziz Sdn Bhd v Pembinaan Azam Jaya Sdn Bhd [2022] 1 MLJ 570, both of which reaffirm that unsecured creditors do not have the locus standi to intervene in JM proceedings. Analysis and Findings 10. The question for determination is whether Smartech, being an unsecured creditor with a disputed claim, possesses the locus standi to intervene at this stage of the JM proceedings. 11. Section 409 of the Companies Act 2016 specifically enumerates those who may oppose a JM order. The list is exhaustive. Unsecured creditors are not included, save for the limited right under section 407(3) to object to the nomination of the judicial manager where they represent a majority in value of all creditors. Smartech has not demonstrated that it represents such a majority. 12. \tseems to me that the statutory framework deliberately restricts participation in JM proceedings to certain classes of creditors. The legislative intent is to ensure that the JM process proceeds without being encumbered by numerous creditor objections, thereby facilitating the company's rehabilitation. 13. While Smartech invokes Order 15 rule 6(2)(b) of the Rules of Court as the basis for intervention, that procedural rule cannot be read in isolation. It is subordinate to the specific provisions of the CA 2016, which define who may be heard. To allow an unsecured creditor to intervene through procedural rules would effectively override the clear statutory intent. 14. | also find that Smartech’s position as an unsecured creditor whose arbitration claim has been stayed does not create a special or distinct interest. The statutory moratorium under section 410 applies to all creditors, secured and unsecured alike. The impact on Smartech is not unique, and its rights are preserved for consideration in due course should a judicial manager be appointed. 15. The authorities relied upon by the Applicant, particularly Re Biaxis and Kumpulan Liziz, support this interpretation. In those cases, the courts held that unsecured creditors lacked locus stand! to oppose or intervene in JM proceedings, emphasising that the appropriate stage for their participation is after the appointment of the judicial manager, during the consideration of the rescue proposal. Conclusion 16. Forthese reasons, | find that Smartech does not have locus standi to intervene in these judicial management proceedings. Its position as an unsecured creditor, although presently affected by the statutory moratorium, does not give rise to a legal right to be heard at this stage. Its interests can be adequately safeguarded through the JM process itself. 17. Accordingly, Enclosure 19 is dismissed, with no order as to costs. Dated: 7™ NOVEMBER 2025 Pain N RAJA KOZ LA BINT| RAJA TORAN Judicial Commisgioner Muamalat and Iinsdivency Shah Alam COUNSEL Solicitor for the Appellant Solicitor for the Respondent S/N t)J2FQKGrEes7RB2110zQ Tetuan Soo Thein Ming & Nashrah Aras 9, Menara Bangkok Bank Berjaya Central Park, No 105 Jalan Ampang, 50450 Kuala Lumpur Phone No : 03-2181 9900 1. Kong Chee Wah Tetuan Lim Fung Yin @ Co Suite C-3A-09, Level 3A, Block C, Plaza Mont Kiara No.2 Jalan Kiara, Mont Kiara, 50480 Kuala Lumpur Phone No : 03-2387 0230 1. Alia Alef