Millennium Mall Sdn Bhd v 1. ) Low Yew Guan (WA-28JM-34-12/2024)

LOW YEW GUAN …PROPOSED INTERVENERS (IC No.: 651116-04-5235)

LEE OI KUAN (IC No.: 561203-06-5104)

LOW YEW LIM (IC No.: 520215-04-5265)

TEO PECK KWAN (IC No.: 650826-04-5008)

DATO TS. HJ. MOHD ZAIDI llAMDIN AND 195 OTHERS S/N 8GePss3J1E7fk3qxrcrA

Issues

There are broadly two issues before me. They are-i. Should the court grant the applicant a judicial management order [“JMO”] bearing in mind there is no documentary proof to prove there is an alleged white knight willing to pay off the debts of the applicant [Enclosure 1]; and ii. Should the proposed interveners be granted leave to intervene to oppose the JMO application and/or be granted leave to resume existing court actions against the applicant. [Enclosures 12 and 23]. My decision

I heard parties on 24-06-2025 and 07-07-2025. On 16-07-2025, I dismissed the applications by the applicant and the proposed interveners. S/N 8GePss3J1E7fk3qxrcrA

The plaintiff has appealed to the Court of Appeal on 12-08-2025. Both sets of proposed interveners have appealed to the Court of Appeal on 14-08-2025. These then are my Grounds of Decision for the three appeals. Facts

The applicant Millennium Mall Sdn Bhd is the manager of retail units of a commercial complex known as M Square Mall in Puchong (‘M Square’).

The applicant manages the retail units for the retail unit owners (including the proposed interveners here) by sub-leasing them to other tenants. The applicant provides a “guaranteed rental return”, in the form of Rental + Annual Entitlements (“GRR”), to the retail unit owners (including the proposed interveners here).

In 2016, the applicant failed to meet its contractual obligations to pay the GRR.

In 2020, a SAHC Suit No. BA-22NCvC-94-03/2020 (“Suit 94”) was filed by the retail unit owners (including the proposed interveners here) against, inter-alia, the applicant for the unpaid GRR. [See S/N 8GePss3J1E7fk3qxrcrA supporting affidavit Enclosure 21 page 75 and Enclosure 43 written submission at Annexure A]. 1st JM Application

On 31-01-2022, the applicant applied ex-parte, under section 404 of the Companies Act 2016 [“CA 2016”], for a JMO [“1st JMO”] to settle admitted debts of about RM 40,388,247 owed to the 196 proposed interveners in Enclosure 23 and the 4 proposed interveners in Enclosure 12.

The court granted the 1st JMO after the applicant represented, inter-alia, that they have a white knight who would inject RM 100 million to, firstly, settle the outstanding GRR and, secondly, to acquire the retail units. The white knight plan did not materialise and the retail unit owners (including the proposed Interveners here) applied to court for the 1st JMO to be declared no longer binding. The applicant finally agreed on 11-10-2024. [See supporting affidavit Enclosure 21 pages 450 - 465 and Enclosure 43 written submission at Annexure A]. 2nd JM Application S/N 8GePss3J1E7fk3qxrcrA

On 17-12-2024, the applicant filed a 2nd ex-parte application [Enclosure 1] before me for a 2nd JMO. Interveners

Four proposed interveners applied for leave to intervene to oppose and for leave to resume existing court actions against the applicant. [Enclosure 12]. The proposed interveners are all unsecured creditors.

Another 196 proposed interveners also applied for leave to intervene to oppose and for leave to resume existing court actions against the applicant. [Enclosure 23]. These proposed interveners are also all unsecured creditors.

The proposed interveners contend that similar to what happened in the 1st JMO, if this 2nd JMO is granted the applicant will abuse the moratorium by applying for multiple extensions for the 2nd JMO to prevent them from proceeding with their claim in Suit 94 and a further suit in SAHC Suit No. BA-22NCvC-1-01/2025 (“Suit 1”) which they have filed against, inter-alia, the applicant.

I shall now consider the two issues set out above. S/N 8GePss3J1E7fk3qxrcrA Issues Issue 1 - Should the court grant the applicant a JMO bearing in mind there is no documentary proof to prove there is an alleged white knight willing to pay off the debts of the applicant [Enclosure 1]? Law

The following principles on JM applications can be distilled from decided cases.

Under section 405 of CA 2016, the court has the power to grant or dismiss an application for a judicial management order.

Section 405(1) of CA 2016 states- …, the Court may make a judicial management order in relation to the company if-

the Court is satisfied that the company is or will be unable to pay its debts; and

the Court considers that the making of the order would be likely to achieve one or more of the following purposes: S/N 8GePss3J1E7fk3qxrcrA

(i). the survival of the company, or the whole of part of its undertaking as a going concern; … [Emphasis added]

The application for the JMO must be made by the company or its creditor. [See section 404 CA 2016].

The shareholders of the Company lack the locus standi to file a JM application in their capacity as shareholders of the Company. [See Han Yeow Min & Ors v Yu Chan Trading Sdn Bhd (In Receivership); Malayan Banking Berhad (Secured Creditor) [2022] 1 LNS 644, HC, at [11]].

The application may be made by ex parte OS as was done in Re Scomi Group Bhd [2022] 7 MLJ 620, HC, where this mode of application was not raised as an issue by the parties and the court. See also Companies Act of Malaysia, an annotation 2024 desk edition page 495.

The court should hear the ex parte application for a JMO early and scrutinise carefully whether to grant the JMO or not as the effect of the filing of an application for JM is the imposition of a moratorium on all legal proceedings until the dismissal of the application. [See section 410 CA 2016]. S/N 8GePss3J1E7fk3qxrcrA

The application for a JMO may be made again if the first application failed. The CA 2016 does not limit the application for a JMO to only once. What is important is that the criteria set out in section 405(1) of CA 2016 is satisfied, it is made bona fide and there is full and frank disclosure of all material facts. [See Syed Ibrahim & Co v Trans Fame Offshore Sdn Bhd; Bap Resources Sdn Bhd & Ors (Interveners) [2022] CLJU 1412, HC, at [12] and [15] and Han Yeow Min & Ors v Yu Chan Trading Sdn Bhd (In Receivership); Malayan Banking Berhad (Secured Creditor) [2022] 1 LNS 644, HC, at [19].

If the 2nd application for a JMO shows the application is “to misuse and manipulate the provisions of the Companies Act 2016 to derail, disrupt and/or to stall or delay any Winding Up proceedings or legal actions being commenced against it with the aforementioned filings of various applications or matters in different forums. … [it] is an abuse of Court process in the circumstances and the court will strike out the OS under Order 18 rule 19 ROC 2012. [See Han Yeow Min & Ors v Yu Chan Trading Sdn Bhd (In Receivership); Malayan Banking Berhad (Secured Creditor) [2022] 1 LNS 644, HC, at [9, 17 and 22]. S/N 8GePss3J1E7fk3qxrcrA

The Court must dismiss the JM application pursuant to section 409(b) of the CA 2016 if it is satisfied that: (a) a receiver or receiver and manager referred to in subparagraph 408(1)(b)(ii) has been or will be appointed; or (b) the making of the order is opposed by a secured creditor, unless the Court considers the public interest so requires as set out in section 405(5) CA 2016. [See Han Yeow Min & Ors v Yu Chan Trading Sdn Bhd (In Receivership); Malayan Banking Berhad (Secured Creditor) [2022] 1 LNS 644 HC at [12 - 13].

The burden is on the applicant to satisfy the court on a balance of probabilities that there is a plan that would likely achieve the survival of the company as a going concern. If the court is not satisfied, the application will be dismissed. [See Goldpage Assets Sdn Bhd v Gan Kam Seng & Ors [2021] 9 MLJ 618, HC, at [55] and Syed Ibrahim & Co v Trans Fame Offshore Sdn Bhd; Bap Resources Sdn Bhd & Ors (Interveners) [2022] CLJU 1412, HC, at [19]]. Application to facts

Under section 405(1) CA 2016, the burden is on the applicant to satisfy the court on a balance of probabilities that there is a plan that would likely achieve the survival of the company as a going S/N 8GePss3J1E7fk3qxrcrA concern. Mere assertion without proper evidence is insufficient. If the court is not satisfied, the application for a JMO will be dismissed. [See Goldpage Assets Sdn Bhd v Gan Kam Seng & Ors [2021] 9 MLJ 618, HC].

In Goldpage Assets Sdn Bhd v Gan Kam Seng & Ors [2021] 9 MLJ 618, HC, the High Court when dismissing the application for a JMO said- [37] From a reading of s 405 of the Companies Act 2016, this court has to then consider that the making of the order is likely to achieve one or more of the following purposes as stated in s 405(1)(b) of the Companies Act 2016:

the survival of the company or the whole or part of its undertaking as a going concern;

(ii) the approval of a compromise or arrangement between the company and its creditors;

(iii) a more advantageous realisation of the company’s assets would be effected than on a winding up. … [38] In Auto Management Services Ltd v Oracle Fleet UK Ltd [2007] EWHC 392 (Ch), Warren J, in the UK equivalent of a judicial management application which is known as an administration, held that: [3] There is no dispute about the applicable principles. There has to be a real prospect that the administration order will achieve the purpose. This does not mean that I need to be satisfied that, on S/N 8GePss3J1E7fk3qxrcrA a balance of probabilities, there will be a better outcome on administration as compared with winding up. There has to be only a real prospect. It is not enough to show a real prospect that administration would achieve no worse an outcome. The prospect of a better result must be shown. However, I venture to think if an administration can be shown in all but the most unlikely circumstances to produce a result no worse than liquidation and if it can be shown there are reasonably possible circumstances in which administration can, in fact, produce a better result, so that para 11(b) is satisfied, that will be a significant factor when it comes to exercising the discretion whether or not to make an order. [39] However as per my decision in Spacious Glory Sdn Bhd v Coconut Tree Sdn Bhd [2020] MLJU 1827 I have held that for the purposes of defining the term ‘likely’ under s 405 of the Companies Act 2016 this court will adopt the same definition with the term ‘likely’ as held in the UK in the case of Re AA Mutual International Insurance Co Ltd [2004] EWHC 2430 (Ch) to mean the applicant to demonstrate on a balance of probabilities that it is ‘more probable than not’ that this criterion will be fulfilled. … [44] After viewing the said letters I find that none of the so-called parties interested in collaborating with the applicant have indicated that they have entered into any form of agreement with the applicant and more importantly there is no indication that they would be injecting funds of any kind to the project or provide access to further financing for the project. S/N 8GePss3J1E7fk3qxrcrA [45] I have also been referred to the Companies Commission of Malaysia search, … which show that they do not possess sound financial standing to offer substantial financial aid to the applicant and that both Larisan Maju Sdn Bhd and Liam Soon Thiam Sdn Bhd share common directors which raises in my view the bona fides of such third parties and of the applicant. Mere assertion as to the likelihood of financing without proper evidence is insufficient, see Doltable Ltd v Lexi Holdings plc [2006] 1 BCLC 384 where the High Court in England in a judgment by Mann J observed: [34] As to the first, it fails on the facts. There is no evidence as to the likelihood of a refinancing being achieved. The company had been seeking one for some months, apparently without success. There was no proper evidence that it was likely or indeed possible within an administration. There was evidence in the form of assertion, but that is not sufficient. … [50] I further hold that the mere assertions of that there is a reasonable probability of rehabilitating the applicant or of preserving its business as a going concern and judicial management will serve the creditors interest better than by resorting to a winding up and merely playing lip service to the requirements under s 405(1)(b) of the CA 2016 is insufficient and I quote and adopt Re Wan Soon Construction Pte Ltd [2005] 3 SLR 375 where it was stated by the Singapore High Court that: the court is not mere rubber stamp in as much as it will accede to any every request to order such other sections or provisions to apply almost, or even wholly, as a matter of course. S/N 8GePss3J1E7fk3qxrcrA [51] Closer to home, our Court of Appeal in the case of CIMB Islamic Bank Bhd v Wellcom Communications (NS) Sdn Bhd & Anor [2019] MLJU 148; [2019] 4 CLJ 1, the Court of Appeal had stated that: [9] The effect of making a judicial management order in relation to an insolvent company which may have no prospect of recovering money or assets within a reasonable time indeed may be very drastic. Thus, the court’s consideration at all stages, that is to say from the date the application is filed and from the date of the order, if any is given, must be based on strict proof and evidence and not merely surmise and conjecture. … [55] Although the applicant states that it has in its application focused on revitalizing the project and that the Companies Act 2016 does not say that the applicant has to assist the JM in presenting a viable scheme, I agree with counsel for Plusbury that hope and speculation is not sufficient in a JM application and that it is incumbent upon the applicant to convince this court that there is a real prospect rescuing the company through a Judicial Management application. I am guided by the Singapore case of Re Genesis Technologies International (S) Pte Ltd [1994] 2 SLR(R) 298 where the court held that a mere allegation of belief that the purposes of the judicial management would be satisfied without any substantiation would be insufficient to discharge its burden. [56] All said and done and after considering in totality all the factors stated above I do not find that any of the considerations on the facts S/N 8GePss3J1E7fk3qxrcrA before me bring this application within the factors which this court has to consider under the respective sections and that a JM order would in the circumstances not achieve any of the statutory purposes under the CA 2016. [57] Wherefore I hereby dismiss the application… [Emphasis added]

I am not convinced the applicant has discharged its burden to satisfy the court on a balance of probabilities that there is a plan that “would likely achieve the survival of the company as a going concern” for these reasons-a. This is the 2nd JM Application. The 1st JM Application that had been approved by court had already taken about 2 years from 1/22 to 3/24 and yet failed to achieve the survival of the company as a going concern. b. To come to court for a 2nd JMO requires cogent proof that the 2nd plan is likely to achieve the survival of the company as a going concern. Mere assertion without proper evidence is insufficient [See Goldpage Assets Sdn Bhd v Gan Kam Seng & Ors [2021] 9 MLJ 618, HC]. c. The applicant is insolvent, with total liabilities of RM 47,273,934 exceeding total assets of RM 22,332,012. This insolvency situation is exacerbated by RM S/N 8GePss3J1E7fk3qxrcrA 36,494,061 in annual entitlements owed to owners of the Retail Units, reflecting long-standing financial distress that has persisted since 2020. [See Enclosure 4 Exhibit AJD- 15]. d. The applicant says there is a white knight, and I quote from Enclosure 8 AWS at paragraph 82 - “A central element of the Proposed Second SOP/statement of proposal is the involvement of Three S Asset Management Pte Ltd, a Singapore-based entity, which has agreed to act as the white knight by acquiring the retail units.” e. But Exhibit 18 which is exhibited in support is a bare company business profile of this unverified white knight. There is no letter of commitment from this white knight. There is not even a letter from the so-called white knight to the applicant or the creditors. f. Enclosure 4 Exhibit AJD 17 is also a bare statement of proposal to revive the applicant. g. The proposed second SOP is also unrealistic and unfair. Why should the retail unit owners give up their retail units in exchange for 100% fund units issued by the proposed SPV which will only mature in10 years’ time and only if the mall is profitable [reinvestment option] or give up their retail units in exchange for 50% in cash of the net S/N 8GePss3J1E7fk3qxrcrA purchase price of the retail unit [exit option] to settle debts owed to them from the applicant in the first place. [See WS Enclosure 43 at paragraph 10 and 11]. h. There is much force in the submissions of the proposed interveners in Enclosure 43 at Appendix A at paragraphs 13 to 14-

Effectively, the 2nd SOP has no option for the RUC to sell their units at a full price for cash or sell at a fair valued market rate. Instead, the unit owners have to either to take the uncertain investment fund units (reinvestment option) or accept a 50% discounted sale on their units (exit option).

To make things worse, there is a risk that this pattern of the Applicant’s conduct — of making misleading representations, seeking repeated extensions of JMO, stalling for time and ultimately abandoning the restructuring plan without candour in the 1st JM will be repeated in the 2nd JM again. Therefore, the Proposed Interveners are left with no choice but to intervene in the present judicial management.

For the reasons above, I dismiss the application for a JMO.

I now move to issue 2. S/N 8GePss3J1E7fk3qxrcrA Issue 2 - Should the proposed interveners be granted leave to intervene to oppose the JMO application and/or be granted leave to resume existing court actions against the applicant? [Enclosures 12 and 23]

The proposed interveners applied for leave to intervene and for leave to resume court actions against the applicant. [See Enclosures 12 and 23]. Law

Rule 13 (1) of the Companies (Corporate Rescue Mechanism) Rules 2018 says only two categories of persons can appear at the hearing of an application for a judicial management order to oppose the application. They are-

any person who has appointed or is or may be entitled to appoint a receiver or receiver and manager under subparagraph 408(1)(b)(ii) of the Act; or

any secured creditor referred to in paragraph 409(b) of the Act. S/N 8GePss3J1E7fk3qxrcrA

Thus Rule 13 (1) of the Companies (Corporate Rescue Mechanism) Rules 2018 does not state an unsecured creditor can appear at the hearing of an application for a judicial management order to oppose the application.

Rule 13 (1) of the Companies (Corporate Rescue Mechanism) Rules 2018 reads as follows-

Only the following person may appear at the hearing of an application for a judicial management order to oppose the application:

any person who has appointed or is or may be entitled to appoint a receiver or receiver and manager under subparagraph 408(1)(b)(ii) of the Act; or

any secured creditor referred to in paragraph 409(b) of the Act. [Emphasis added]

The Court of Appeal in Maybank Investment Bank Berhad & 3 Ors v Million Westlink Sdn Bhd (Civil Appeal No.: B-02(IM)-1590- 08/2019) permitted the intervention of unsecured creditors to oppose a judicial management application. S/N 8GePss3J1E7fk3qxrcrA

But this position was reconsidered in a more recent decision of the Court of Appeal in Desa Tiasa Sdn Bhd v Bellajade Sdn Bhd & Anor (Civil Appeal No.: B-02(IM)-626-04/2023) delivered on 04- 12-2024, where the Court of Appeal held unanimously that unsecured creditors do not possess locus standi to intervene in judicial management proceedings.

In its broad grounds as recorded in the hearing minutes, the Court of Appeal stated as follows: - [1] This is an appeal against the decision of the learned HCJ in allowing the proposed intervener (R2) to intervene in the proceeding for a Judicial Management Order. [2] Rule 2 read with rule 13 of the CRM Rules clearly provides that only the person who has appointed or is or may be entitled to appoint a receiver or receiver and manager or any secured creditor to appear at the hearing of an application for a judicial management order to oppose the application. The said provision clearly excludes unsecured creditors from participating at this stage. S/N 8GePss3J1E7fk3qxrcrA [3] Since the 2nd respondent is an unsecured creditor, then under rule 13 they cannot intervene in applications for a Judicial Management Order. [Emphasis added]

I am informed leave to appeal to the Federal court was granted on 29-07-2025. Application to facts

The Proposed interveners are all unsecured creditors.

I am bound by the more recent decision of the Court of Appeal in Desa Tiasa Sdn Bhd v Bellajade Sdn Bhd & Anor (Civil Appeal No.: B-02(IM)-626-04/2023).

It is also in line with the jurisprudence in judicial management that the company applying for a JMO cannot be expected to resist all legal actions from different fronts when it is warding off these actions in the hope of coming up with a rescue plan that would enable all to be paid in the proportions to be agreed so that all may survive. [See the CA decision in Kumpulan Liziz Sdn Bhd (in S/N 8GePss3J1E7fk3qxrcrA liquidation) v Pembinaan Azam Jaya Sdn Bhd [2022] 1 MLJ 570, CA, per Lee Swee Seng JCA].

In Sapura Fabrication Sdn Bhd v GAS [2025] SGCA 13 the Spore CA also said- 59 As stated in the above passage, the focus of the moratorium in the restructuring context is on giving the debtor company “breathing space” to organise its affairs and put forward a restructuring proposal.

The proposed interveners invoked Order 15 rule 6 ROC 2012 to intervene and cited the case of Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 MLJ 63, SC, in support.

In my view, Rule 13 of the Companies (Corporate Rescue Mechanism) Rules 2018, which is a specific subsidiary legislation to JM applications, must prevail over Order 15 rule 6 ROC 2012, which is a general subsidiary legislation on rules of court.

Further, the application is premature as the applicant had not even been granted the order for judicial management. The OS has yet to be heard by court. S/N 8GePss3J1E7fk3qxrcrA

The OS may even be dismissed by the court if the applicant fails to satisfy the strict requirements set out in section 405 CA 2016.

I dismiss the applications by the proposed interveners to intervene in this OS. Should the proposed interveners be granted leave to resume existing court actions against the applicant? Law

Once a JM application is filed in court, no other proceeding, execution or other legal process shall be commenced or continued and no distress may be levied against the applicant or its property except with leave of the Court and subject to such terms as the Court may impose. [See section 410(c) CA 2016].

Section 410(c) CA 2016 reads- “410. During the period beginning with the making of an application for a judicial management order and ending with the making of such an order or the dismissal of the application-S/N 8GePss3J1E7fk3qxrcrA

no other proceedings and no execution or other legal process shall be commenced or continued and no distress may be levied against the company or its property except with leave of the Court and subject to such terms as the Court may impose.” [Emphasis added]

The factors for court to consider when asked to grant leave are set out in Jepak Holdings Sdn Bhd v TNB Repair and Maintenance Sdn Bhd & Ors (Saidi bin Abang Samsudin & Anor, proposed intervener) [2021] MLJU 2148, HC, Nadzarin Wok Nordin J, and in Millenium Mall Sdn Bhd v Siew Chee Kok & Ors (Low Yew Guan & Ors, interveners) [2022] MLJU 1396, HC, Nadzarin Wok Nordin

In Kumpulan Liziz Sdn Bhd (in liquidation) v Pembinaan Azam Jaya Sdn Bhd [2022] 1 MLJ 570, CA, Lee Swee Seng JCA said- [134] We do not think we need to question the wisdom of the legislature in this aspect of staying all other proceedings including a winding up petition as the company applying for a JMO cannot be expected to resist all legal actions from different fronts when it is warding off these actions in the hope of coming up with a rescue plan that would enable all to be paid in the proportions to be agreed so that all may survive. S/N 8GePss3J1E7fk3qxrcrA [135] The Supreme Court of New South Wales’ decision in Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1305 on the moratorium in administration has succinctly summarised the reasons for it as follows: [38] The stay of proceedings imposed by s 440D may facilitate the achievement of this object, among others, by:

affording the administrator time to assess and report on the company without the distraction of the proceedings;

putting a brake on legal and associated costs;

allowing time for the development of proposals which might preserve the value of the company as a going concern;

giving the creditors time to consider their position for the purposes of the creditors’ meeting; and

in appropriate circumstances, preventing a creditor from obtaining some advantage over other creditors or potential creditors. [39] While the discretion under s 440D must be exercised with the objects of the part in mind, it remains one at large. A stay is the starting point. There must be circumstances which warrant its displacement. (Emphasis added.) [136] Its efforts during this time is to focus on convincing creditors to support its rescue scheme for once a winding up order is made; the whole rescue plan would have been scuttled unless a stay order could be obtained. … [139] The learned judge was concerned about possible abuse of the JMO application just so that all proceedings may be stayed pending S/N 8GePss3J1E7fk3qxrcrA the hearing of the JMO application. The solution is already built into s 410 of the CA 2016 itself in that leave to proceed may be applied for and the court may exercise its discretion to grant leave where there are cogent reasons for such a leave and the court may even impose such terms as the court may deem fit in granting the leave. See the case of Re Top Builders Capital Bhd & Ors [2021] 10 MLJ 327 for a consideration of the relevant factors in granting leave to a party to continue proceedings in a scheme of arrangement under ss 366 and 368(1) of the CA 2016. [Emphasis added]

Further, in Re Top Builders Capital Bhd & Ors [2021] 10 MLJ 327, HC, Ong Chee Kwan JC said- [99] As such, in line with the aforesaid objective, the starting principle when entertaining an application for leave under s 368(1) of the CA is that such leave will only be granted in ‘exceptional circumstances’ and the burden will be on the applicant to show so. However, it will be unwise to attempt at defining what would constitute ‘special circumstances’. A prescriptive and definitive list of factors would not be attempted because of the infinite variety of circumstances. But it will be safe to adopt the English High Court’s guide in Ronelp Marine Ltd v STX Offshore & Shipbuilding Co Ltd [2016] EWHC 2228 (Ch) that ‘exceptional circumstances’ here must be such that the circumstance or combination of circumstances must be of sufficient weight to overcome the strong imperative to have the claims dealt with under the machinery of the scheme of arrangement. S/N 8GePss3J1E7fk3qxrcrA [100] The fact that the applicant’s claim in the legal proceedings may have a ‘real prospect of success’ alone cannot constitute ‘special circumstances’. Similarly, the contention that the legal proceedings if permitted to proceed would finalise the quantum of the applicant’s claim and therefore assists the applicant in its claim as a recognised scheme creditor based on a fully adjudicated sum to be paid instead of a provisional sum asserted for voting purpose cannot constitute ‘special circumstances’. Such contentions would defeat the very purpose of the scheme of arrangement which depends on a summary determination of the claims to achieve an expedited solution to the company financially distressed situation. It must also follow that a claim that the scheme creditor’s claims will only be determined in a summary fashion as oppose to a full evaluation of the evidence commonly afforded by the civil suit cannot be a reason to grant leave. [101] Leave will likely be granted where the commencement or continuation of the legal proceedings does not impede the achievement of the scheme or where it would in fact facilitate and or assist towards the achievement of the scheme. For instance, where the claim is proprietary in nature and the applicant is not seeking anything other than to reclaim possession or ownership of property said to belong to him, leave will normally be granted. Another instant is where the adjudication of the quantum of the creditor’s claims is determinative of the question of approval of the scheme, leave may be granted to proceed with legal proceedings if the circumstances of the disputes are such that a summary decision on the claims is not appropriate. [102] Ultimately what the court is asked to do is to balance between the harm or loss to the applicant if leave is not granted with the harm and loss to the general body of creditors under the scheme of arrangement if leave is granted taking into consideration, inter alia, the structure and terms of the scheme and how the company seeks to implement the same, S/N 8GePss3J1E7fk3qxrcrA the support of the creditors for the scheme, the company’s financial position, the bona fide of the company in proceeding with the scheme, the stage of the legal proceedings and whether the outcome of the legal proceedings would have a determinative impact to the approval of the scheme. [103] At this juncture, I would also add that it will also be unwise to attempt at determining the circumstances where the court will impose terms when granting leave as in staying the enforcement or execution of the judgment. The court will have to exercise its discretion appropriately to impose such terms as may be necessary when granting leave that serve the interests of all parties based on the peculiar facts of each case.

The Singapore courts adopt a different test to that of Top Builders. The Spore CA in Sapura Fabrication Sdn Bhd v GAS [2025] SGCA 13 declined to follow Top Builders and preferred the test set out by its own High Court in Wang Aifeng v Sunmax Global Capital Fund 1 Pte Ltd [2022] SGHC 271. This is what the Spore CA said- 25 The Judge exercised his discretion to grant a carve-out in favour of the respondent based on an application of the test in Wang Aifeng (the “Discretionary Ground”). To recapitulate, the test in Wang Aifeng involves the consideration of the following factors (the “Wang Aifeng factors”) to guide the court’s exercise of discretion (at [32]):

the timing of the application for a carve-out;

the nature of the claim;

the existing remedies;

the merits of the claim;

the existence of prejudice to the creditors or to the orderly administration of the restructuring proceedings; and S/N 8GePss3J1E7fk3qxrcrA

other miscellaneous factors such as the potential of an avalanche of litigation being unleashed by the grant of permission, the proportionality of the cost of the proceeding to the scheme company’s resources, and the views of the majority creditors. Application to facts

In my view, leave will only be granted in ‘exceptional circumstances’ and the burden will be on the applicant to show. See Re Top Builders Capital Bhd & Ors [2021] 10 MLJ 327, HC, per Ong Chee Kwan JC.

The Proposed interveners have failed to show why leave should be granted bearing in mind the objective of a moratorium is for the applicant to “come up with a rescue plan that would enable all to be paid”. [See Kumpulan Liziz Sdn Bhd (in liquidation) v Pembinaan Azam Jaya Sdn Bhd [2022] 1 MLJ 570, CA, per Lee Swee Seng JCA].

Further, the proposed interveners’ application is premature as the applicant had not even been granted the order for judicial management. The OS has yet to be heard by me. S/N 8GePss3J1E7fk3qxrcrA

Without knowing the final details of the scheme, and the details can be varied over time, the Proposed interveners’ application is indeed premature at this stage.

The OS for a judicial management order may even be dismissed by me if the applicant failed to satisfy the strict requirements set out in section 405 CA 2016.

I therefore decline to grant leave to the proposed interveners to resume existing court actions against the applicant.

For the reasons above, I dismiss the JM application in enclosure 1 by the applicant for a JMO. No order as to costs.

I also dismiss the applications by the proposed interveners in Enclosures 12 and 23 to be granted leave to intervene to oppose the JMO application and to be granted leave to resume existing court actions against the applicant. No order as to costs. S/N 8GePss3J1E7fk3qxrcrA

I thank all counsel and their teams for the helpful submissions. Dated: 22th August 2025 ………(signed)………… Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for applicant: Muhillan A/L Sivananthan, Mohd Danish Bin Shahrir and Samantha Sum Pui Si. S. Muhillan (Kuala Lumpur) Counsel for proposed interveners in Enclosure 12: Low Eu Thuan and Jeremy Low Jian Min. Cheong Wai Meng & Van Buerle (Subang Jaya) S/N 8GePss3J1E7fk3qxrcrA Counsel for proposed interveners in Enclosure 23: Ryan Chu Soon Wei, O Ying Xin and Goh Xin Wei (Pupil in Chamber). Lee & Poh Partnership (Kuala Lumpur) CASES REFERRED TO: 1) Auto Management Services Ltd v Oracle Fleet UK Ltd [2007] EWHC 392. 2) CIMB Islamic Bank Bhd v Wellcom Communications (NS) Sdn Bhd & Anor [2019] MLJU 148; [2019] 4 CLJ 1, CA. 3) Desa Tiasa Sdn Bhd v Bellajade Sdn Bhd & Anor. 4) Doltable Ltd v Lexi Holdings plc [2006] 1 BCLC 384. 5) Goldpage Assets Sdn Bhd v Gan Kam Seng & Ors [2021] 9 MLJ 618, HC. 6) Han Yeow Min & Ors v Yu Chan Trading Sdn Bhd (In Receivership); Malayan Banking Berhad (Secured Creditor) [2022] 1 LNS 644, HC. 7) Jepak Holdings Sdn Bhd v TNB Repair and Maintenance Sdn Bhd & Ors (Saidi bin Abang Samsudin & Anor, proposed intervener) [2021] MLJU 2148, HC. 8) Kumpulan Liziz Sdn Bhd (in liquidation) v Pembinaan Azam Jaya Sdn Bhd [2022] 1 MLJ 570, CA. S/N 8GePss3J1E7fk3qxrcrA 9) Sapura Fabrication Sdn Bhd v GAS [2025] SGCA 13 the Spore CA. 10) Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC

11) Maybank Investment Bank Berhad & 3 Ors v Million Westlink Sdn Bhd. 12) Millenium Mall Sdn Bhd v Siew Chee Kok & Ors (Low Yew Guan & Ors, interveners) [2022] MLJU 1396, HC. 13) Re AA Mutual International Insurance Co Ltd [2004] EWHC 2430. 14) Re Genesis Technologies International (S) Pte Ltd [1994] 2 SLR(R) 298. 15) Re Scomi Group Bhd [2022] 7 MLJ 620, HC. 16) Re Top Builders Capital Bhd & Ors [2021] 10 MLJ 327, HC. 17) Re Wan Soon Construction Pte Ltd [2005] 3 SLR 375. 18) Ronelp Marine Ltd v STX Offshore & Shipbuilding Co Ltd [2016] EWHC 2228 (Ch). 19) Sapura Fabrication Sdn Bhd v GAS [2025] SGCA 13. 20) Spacious Glory Sdn Bhd v Coconut Tree Sdn Bhd [2020] MLJU 1827, HC. 21) Syed Ibrahim & Co v Trans Fame Offshore Sdn Bhd; Bap Resources Sdn Bhd & Ors (Interveners) [2022] CLJU 1412, HC. 22) Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 MLJ 63, SC. 23) Wang Aifeng v Sunmax Global Capital Fund 1 Pte Ltd [2022] SGHC 271. LEGISLATION REFERRED TO: S/N 8GePss3J1E7fk3qxrcrA 1) Companies Act 2016, section 404, section 405, section 405(1), section 405(1)(b), section 405(5), section 409(b) and section 410(c). 2) Companies (Corporate Rescue Mechanism) Rules 2018, Rule 13

(1). 3) Rules of Court 2012, Order 15 rule 6 and Order 18 rule 19. S/N 8GePss3J1E7fk3qxrcrA