Midf Amanah Investment Nominees (Tempatan) Sdn Bhd v Efogen Sdn Bhd (dalam Penggulungan) (WA-28PW-5-01/2025)

The Applicant filed this application dated 6.1.2025 to seek an order for the Respondent to register the 20 million shares of the Respondent shares in the name of the Intervener in accordance with the share purchase agreement dated 30.12.2015 SPA . S/N 7sN/oczmk2PNk2wdz6CQ

The Applicant prayed for the following relief : Responden mendaftarkan 20,000,000 saham ke atas nama Abu Talib bin Abdul Rahman (No. K/P : 531231-04-5015) (yang mana pada masa ini 8,000,000 saham di daftarkan atas nama MIDF Nominees (T) dan 12,000,000 di daftarkan atas nama Tan Sri Abdul Rashid Abdul Manaf) selaras dengan Perjanjian Pembelian Saham bertarikh 30.12.2015 dalam masa empat belas (14) hari dari tarikh Perintah tersebut;

On 24.11.2025, I allowed this application. Here are the grounds of my decision. Background facts

This application is filed pursuant to a court order dated 4.7.2024 4.7.2024 leave order granted by the Kuala Lumpur High Court in Post Winding Up Suit No. : WA - 28 PW - 308 - 06 / 2024. Where the court has granted leave for the Applicant to make this application under section 107, section 471 and section 472 of the Companies Act 2016 CA 2016 .

The entire issued share capital of the Respondent, consisting of 20 million shares, were charged to Amanah International Finance Sdn Bhd ( AIF ) as security for a loan facility granted by AIF. The Applicant holds 8 million shares of the Respondent as nominee on behalf of AIF. The remaining 12 million shares of the Respondent are registered under the name of Tan Sri Abdul Rashid

Through the SPA entered between AIF (as seller) and the Intervener (as buyer), all of the Respondent s issued ordinary shares (i.e. 20 million shares) were sold by AIF to the Intervener at a purchase price of RM 20,250,000. S/N 7sN/oczmk2PNk2wdz6CQ

The salient provisions of the SPA are :

(a) The Respondent is a private limited company with 20 million issued and fully paid - up ordinary shares;

(b) As security for a credit facility granted by AIF, a charge was executed in favour of AIF over the entire 20 million shares;

(c) Pursuant to its rights as the chargee of the shares, AIF has become and is the owner of the entire 20 million shares. Of which 8 million shares at that time were registered in the name of the Applicant as the nominee of AIF. The remaining 12 million shares are registered in the name of TSR;

(d) The Intervener is fully aware of the registration of the shares as per (c) above;

(e) The Intervener has agreed to purchase the shares from AIF.

The sale of the shares was completed on 23.3.2016. In accordance with the terms of the SPA, AIF, via a letter dated 23.3.2016 (as reproduced below), delivered to the Intervener the relevant documents to register the transfer of the shares. The said letter was acknowledged by the Intervener. S/N 7sN/oczmk2PNk2wdz6CQ

Even though the SPA was completed in which AIF has received the purchase price, the Intervener has failed to register the shares in his name. As such, the Intervener is not reflected as the registered owner of the shares in the Respondent s records, even though the shares have been sold to the Intervener.

Through a letter dated 8.1.2019, AIF informed the Intervener as follows :

(a) Although the SPA was completed on 23.3.2016, a search from the Companies Commission of Malaysia (SSM) reveals that the Respondent registered shareholders are still the Applicant (8 million shares) and TSR (12 million shares);

(b) The Intervener should expedite the registration of the transfer of the shares into his name as the legal and beneficial owner thereof, and have the register of members updated; and

(c) Proof of registration must be submitted to AIF no later than 28.2.2019. S/N 7sN/oczmk2PNk2wdz6CQ

Nevertheless, the Intervener still failed to register the shares in his name.

On 1.4.2019, AIF lodged a complaint with SSM and requested SSM to investigate the matter. As there is a contravention of section 51 of the CA 2016, which provides that a company shall notify the SSM of the change of shareholder within 14 days from the date of the change.

On 10.4.2019, AIF received a response from SSM informing that the complaint has been referred to the Corporate Compliance Division for further action.

Through a winding up search, the Applicant discovered that the Respondent was wound up on 19.8.2019 under Suit No. : WA - 28 NCC - 563 - 06 / 2019. The Official Receiver was appointed as the liquidator of the Respondent.

Through a letter dated 17.9.2023, the Applicant wrote to the Respondent (in the care of the Kuala Lumpur Insolvency Department). The Applicant requested the Insolvency Department to register the shares of the Respondent to the Intervener.

Since the Respondent has been wound up, the court granted leave to the Applicant under the 4.7.2024 leave order. The 4.7.2024 leave order permitted the Applicant to make this application for an order that the 20 million shares of the Respondent (8 million shares registered in the name of the Applicant and 12 million shares registered in the name of TSR) be registered in the name of the Intervener in accordance with the SPA. S/N 7sN/oczmk2PNk2wdz6CQ Decision

I allowed this application. I granted an order that the Respondent registers the said 20 million shares in the name of the Intervener in accordance with the completion of the SPA. Here are my reasons. Transfer of the shares

Under section 472 of the CA 2016, the transfer of the shares in a company in respect of which a winding - up petition has been presented is void, unless ordered otherwise by a court. This also includes the alteration in the status of the members of the company.

Section 472 (1) of the CA 2016 reads : 472 Avoidance of dispositions of property or certain attachment, etc.

Thus with a validation order granted by the court, the transfer of the shares to the Intervener may be duly registered. Thereby resulting in an alteration in the status of the members of the Respondent, by reflecting the Intervener as the registered shareholder of the shares. Contractual obligation pursuant to the SPA S/N 7sN/oczmk2PNk2wdz6CQ

There can be no doubt that the shares ought to be registered in the name of the Intervener following the completion of the SPA. Under section 107 of the CA 2016, the court is empowered to order the Respondent to register the transfer of the shares.

Section 107 of the CA 2016 reads : 107 Order of Court for registration

In considering an application under section 107 of the CA 2016, the test that needs to be met is whether the application is well - founded.

Here, the SPA was validly entered between the Intervener and AIF. Full payment of RM 20,250,000 has been made by the Intervener and received by AIF. There is nothing left to be done, save for the formality of registering the shares in the name of the Intervener.

simple and straightforward. The the shares in his name is unfounded and constitutes a breach in completing his obligations under the SPA. In the circumstances, I am satisfied that this application is well - founded. Res judicata S/N 7sN/oczmk2PNk2wdz6CQ

Further, this application ought to be allowed because the validity of the SPA has already been adjudicated by the court. Through a judgment dated 6.5.2024 in Suit No. : WA - 22 M- 465 - 09 / 2018 ( suit 465 ), the High Court has decided that the SPA is valid and enforceable.

The decision of the High Court in suit 465 was affirmed by the Court of Appeal on 10.11.2025 vide Civil Appeal No. : W - 02 (MUA) (W) - 190 - 02 / 2023.

In suit 465, the High Court also took note of suit 333 (which was also raised by the Intervener in this proceeding). The High Court said : [63] Having considered the evidence before this Court brought by both parties as set out in the earlier paragraphs, and based on my findings on all the issues raised, I conclude that AIF had successfully proven the legality of the Facility Agreement, the legality of the subsequent variations of the terms of that Facility Agreement culminated in the Final Variation Letter, the legality of the Efogen SPA and all transactions related to that Efogen SPA pertaining to the Efogen Shares. TSH had breached the Facilities Agreement. It is my further conclusion that the Efogen SPA is valid and the drawdown of the 2nd Tranche for the purchase of the Efogen Shares by ATAR is valid. ATAR had breached the Efogen SPA. [64] This Court also took cognizance of what had transpired in Suit 333 involving both AIF and TSH and Roziah and the fate of the Efogen Shares in that proceeding which was made known to this Court by both parties. [65] In conclusion, I rule that all transactions and documents pertaining to the Efogen shares were legally valid. TSH and ATAR had failed to canvass probabilities.

The principle of res judicata applies in the present case. The issues raised by the Intervener have already been decided by the court in previous proceedings. (See the Supreme Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189). S/N 7sN/oczmk2PNk2wdz6CQ

Thus in this matter is an abuse of the process of the court. The Intervener was a party in the earlier proceedings and had full opportunity to present his case. Arguments of the Intervener

I will now address the various arguments canvassed by the Intervener. Locus standi

The Intervener raised a preliminary objection in respect of the Applicant order directing the Respondent to register all 20 million shares in the Intervener The objection is premised on the following grounds :

(a) The Applicant is not a party to the SPA. The SPA was executed between AIF and the Intervener only;

(b) The Applicant is AIF million shares only. The remaining 12 million shares are registered in the name of TSR. The Applicant has no contractual or legal entitlement to compel registration of those 12 million shares; and

(c) The Applicant has not adduced any evidence to show that it holds the 12 million shares as nominee for AIF. Or that TSR has transferred his rights in those shares to the Applicant. Without such authority, the Applicant cannot claim to be the owner of the S/N 7sN/oczmk2PNk2wdz6CQ 12 million shares and cannot now apply to register all 20 million shares.

I think the objection can be answered in the following way :

(a) The SPA entailed the sale of the entire 20 million shares of the Respondent, and not just the 8 million shares registered in the name of the Applicant. Notwithstanding that 12 million shares are registered by AIF to the Intervener pursuant to the SPA.

(b) It has already been decided by the High Court in suit 465 (and affirmed by the Court of A documents pertaining to the Efogen Efogen SPA and all transactions related to that Efogen SPA is valid and the drawdown of the 2nd tranche for the purchase of the Efogen shares by ATAR [i.e. the Intervener] is valid

(c) Vide the 4.7.2024 leave order (as reproduced below), the court has granted leave for the Applicant to make this application for an order to register the entire 20 million shares in the name of the Intervener. S/N 7sN/oczmk2PNk2wdz6CQ

(d) In the premises, I am satisfied that the Applicant has sufficient legal standing to file this application.

The Intervener alleges that there is no evidence to show that the Respondent has refused to register the shares. There was no act of refusal by the Respondent to justify the Applicant to make this application under section 107 of the CA 2016. To properly apply under section 107 of S/N 7sN/oczmk2PNk2wdz6CQ the CA 2016, the Applicant should have filed this application before the Respondent was wound up. The Intervener contends that section 107 of the CA 2016 does not apply after the Respondent has been wound up. I disagree.

There is evidence that the Applicant has requested and reminded the Respondent and the Intervener to register the transfer of the shares. This can be seen in the letter dated 8.1.2019 and the letter dated 17.1.2023.

Nevertheless, the Intervener did not proceed to register the shares in his name. The obligation to register the transfer of the shares falls on the Intervener and the Respondent. Their omission cannot be held adversely against the Applicant. (See the High Court case of Samanda Holdings v Sakullah Holdings Sdn Bhd & Ors [2006] 4 MLJ 381).

The Intervener cited the Federal Court case of Lai King Lung (practising as advocate and solicitor under the name and style of Messrs Chris Lai, Yap & Partners, advocates and solicitors) v Merais Sdn Bhd [2020] 5 MLJ 614, to argue that if a company is wound up, the directors becomes functus officio. In the same case however, the Federal Court also held that the management of the company is then vested in the liquidator.

In the present case, the Official Receiver is vested with power to manage the Respondent. With the sanction of the court to register the fficial Receiver is statutorily empowered to register the transfer of the shares to the Intervener. S/N 7sN/oczmk2PNk2wdz6CQ

I see no reason why this application cannot be made after the Respondent was wound up. Especially when the 4.7.2024 leave order expressly granted leave for this application to be made under section 107, section 471 and section 472 of the CA 2016. No issue of delay

The Intervener alleges that there has been substantial delay on the part of the Applicant to pursue for the registration of the shares. This is because the SPA was executed on 30.12.2015, and the Respondent was wound up, four years later, on 19.8.2019. The Applicant had every opportunity between 2015 and the winding - up order on 19.8.2019 to regularise the transfer of the shares.

I disagree. There was no delay on the part of the Applicant. The SPA was only completed on 23.3.2016. Prior to completion, the Applicant could not have pursued for the registration of the shares. Upon completion of the SPA, AIF had sent to the Intervener the necessary documents for the registration of the transfer of the shares on 23.3.2016.

The Applicant has been proactive in reminding and requesting the Intervener to register the transfer of the shares. This can be seen in the letter dated 8.1.2019 and the letter dated 17.1.2023.

The delay is actually on the part of the Intervener. As laid down in the case of Samanda Holdings (supra), the Intervener must be estopped from challenging that the Applicant ought to have filed this application sooner. transfer of the shares cannot be held adversely against the Applicant. S/N 7sN/oczmk2PNk2wdz6CQ No contravention of section 472 of the Companies Act 2016

The Intervener argues that the SPA dated 30.12.2015 was entered subsequent to a winding - up petition being presented in the court on 16.12.2025. There was no prior sanction of the court for the disposal of the shares as required under section 472 of the CA 2016. Therefore, the SPA is void. This argument is untenable.

To clarify, there were two winding - up petitions filed against the Respondent :

(a) The first winding - up proceeding was commenced under Suit No. : WA - 28 NCC - 1023 - 12 / 2015 first petition . This first petition was presented on 16.12.2015, but was later withdrawn on 23.3.2016.

(b) The second winding - up proceeding was commenced under Suit No. : WA - 28 NCC - 563 - 06 / 2019 second petition . This second petition was presented on 17.6.2019. The Respondent was wound up on 19.8.2019 pursuant to this second petition.

(c) The SPA is dated 30.12.2015 and was completed on 23.3.2016. That is to say, the SPA was completed on the day that the first petition was withdrawn, and before the second petition was presented on 17.6.2019.

In the first place, section 472 of the CA 2016 does not affect the validity of the SPA itself. It is the transfer of shares or alteration in the S/N 7sN/oczmk2PNk2wdz6CQ status of the members of the company that is voided by section 472 of the CA 2016, unless the court orders otherwise. There is therefore no question of the SPA being void under section 472 of the CA 2016, as alleged by the Intervener.

I refer to the High Court case of Yoke Ngoke Seong & Anor v Seou Lim Khoon @ Ors [2021] 7 MLJ 27 at 56, which said : While the transfer of the shares in a company in respect of which a winding up petition has been presented is rendered void unless ordered otherwise by a Court, I am, secondly, of the view that section 472 does not affect the validity of any contract to do so. [130] Section 472 itself contemplates the possibility of such a transfer, if sanctioned by the Court. [131] It seems to me that from its plain words, section 427 does not prohibit the transfer of shares in a company in respect of which a winding up petition has been presented, without more. What it does is to render any transfer of the shares in such a company void unless ordered otherwise by a Court, which is a very different proposition from an outright prohibition against the transfer of its shares. [132] A person with sufficiently strong finances may choose to purchase the shares of a company with valuable assets albeit shares in a company that is being wound up or has been wound up. Such a purchase could well be sanctioned by the Court if it is

If the Intervener had duly registered the transfer of the shares following the completion of the SPA on 23.3.2016, there would have been no issue with section 472 of the CA 2016. This is because there was no subsisting winding up petition against the Respondent at that material time, upon the withdrawal of the first petition on 23.3.2016. The second petition was only presented much later, i.e. more than three years later on 17.6.2019. S/N 7sN/oczmk2PNk2wdz6CQ

back in March 2016, and now that the Respondent has been wound up on 19.8.2019 pursuant to second petition presented on 17.6.2019, this application is made necessary. The Applicant has duly obtained the 4.7.2024 leave order to file this application for an order that the Respondent register the 20 million shares in the name of the Intervener pursuant to the SPA. There is no contravention of section 472 of the CA 2016, as alleged by the Intervener.

Moreover, the validity of the SPA has been upheld in suit 465, which decision was affirmed on appeal by the Court of Appeal. The legality of the SPA and all transactions related to the SPA pertaining to the shares have been litigated in suit 465. It was held that the SPA is valid and the drawdown of the 2nd tranche for the purchase of the shares by the Intervener is valid. In the circumstances, res judicata bites. Conclusion

For the reasons above, I allowed this application. I awarded costs of RM 10,000 to the Applicant. Dated 24 December 2025 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2 & Admiralty 9) S/N 7sN/oczmk2PNk2wdz6CQ Counsels Shaikh Abdul Saleem and Teoh Jo Vi (Messrs. Shaikh David & Co.) for the Plaintiff Khalid Yusoff and Mohd Faiz Iskandar bin Hamzah (Messrs. Abu Talib Shahrom) for the Intervener Nur Hazrin Arshad for the Official Receiver Case reference 1. Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 2. Samanda Holdings v Sakullah Holdings Sdn Bhd & Ors [2006] 4 MLJ 381 3. Lai King Lung (practising as advocate and solicitor under the name and style of Messrs Chris Lai, Yap & Partners, advocates and solicitors) v Merais Sdn Bhd [2020] 5 MLJ 614 4. Yoke Ngoke Seong & Anor v Seou Lim Khoon @ Ors [2021] 7 MLJ 27 Legislation reference 1. Section 107, section 471 and section 472 of the Companies Act 2016 S/N 7sN/oczmk2PNk2wdz6CQ