(b) The appellant has a prima facie case against the respondent. [note added] [16] But what are the factors that I have to consider when I decide whether the Applicant has met these two criteria? I can glean the answer from the authorities that the Court Of Appeal in Mesuntung (supra) referred to with approval. [17] One of the authorities referred to with approval in Mesuntung (supra) is Bruno Phillipe Fehrenbach v Pegawai Penerima Malaysia [1999] 6 CLJ 177 (HC). From Bruno Phillipe (supra), I am guided that some of the factors that I should consider include—(i) the nature of the Applicant’s claim in OS 11; (ii) the complexity of the issues involved in OS 11; (iii) the balance of convenience in granting or not granting the Applicant the leave to continue with the Appeal from OS 11; (iv) the justice of the case i.e. the justice of granting leave as against the justice of not granting leave; (v) the likelihood that the Applicant will get an advantage over the other creditors of Mammoth Empire (in liquidation); (vi) whether any prejudice Page 6 of 21 will be caused to the creditors; and (vii) the effects that granting leave will have on the liquidation process. [18] The Court Of Appeal in Mesuntung (supra) held— [20] In Bruno Phillipe Fehrenbach v. Pegawai Penerima Malaysia [1999] 6 CLJ 177 Abdul Malik Ishak J held as follows: In the context of our s. 226(3) of the Companies Act 1965, leave would readily be given by the court if all the requirements are fulfilled. It is a correct statement of the law to say and I so say that the court considers whether leave to proceed should be granted by looking at the nature of the plaintiff's claim, the balance of convenience and the justice of the case (Re Gordon Grant & Grant Pty Ltd (supra ); Re Stuart Bros Pty Ltd [1995] 16 ACSR 451; and Speiser v. Locums Financial Management Pty Ltd [1997] 22 ACSR 478 [15 ACLC 278] (SC NSW)). Thus, in a situation where it is unlikely that the plaintiff will obtain any advantage over the creditors and that no prejudice will be caused either to the creditors or to the orderly winding up of the company, leave will be granted as a matter of course (Re Gordon Grant & Grant Pty Ltd (supra ); and Ex p. Walker [1982] 6 ACLR 423). The court in Re Coastal Constructions Pty Ltd (In Liquidation) [1994] 13 ACSR 329 in determining whether leave to proceed should be granted was of the view that there was a necessity to examine the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved and, lastly, the stage which the proceedings have reached. It must not be forgotten that the applicant too must establish that he or she has a prima facie case meaning that the applicant must show that there is a real dispute between the parties (Zempilas v. JN Taylor Holdings Ltd (In Prov Liq) [1991] 3 ACSR 755 (SC SA); and Vagrand Pty Ltd (In Liq) v. Fielding [1993] 41 FCR 550 [113 ALR 128]). All these are factual situations where the courts are willing to grant leave to the applicants. Page 7 of 21 [emphasis added] [19] In Mesuntung (supra), the Court Of Appeal also referred to two Australian authorities with approval—(1) Vagrand Pty Ltd (in liq) v Fielding & Ors (1993) 11 ACLC 411; and (2) Capital Financial Group Ltd v Rothwells Ltd (No. 2) (1989) 7 ACLC 634. [20] From Vagrand (supra), I gleaned that I should also consider—(i) the rationale to require an applicant to first obtain leave before they can commence or continue with a suit against a company in liquidation is to protect the company; to safeguard the company from having to deal with and to finance the intended or existing litigation; (ii) whether it is more convenient or appropriate to grant leave and let the Appeal from OS 11 to progress to its conclusion; (iii) the effects that the Appeal from OS 11 will have on Mammoth Empire, particularly the financial effects; and (iv) whether the assets of Mammoth Empire will be unnecessarily utilised to resist the Appeal from OS 11. [21] The Court Of Appeal in Mesuntung (supra) held— [22] The approach of the Australia jurisdiction can be seen in the following two cases which dealt with the Australia equivalent of s. 226(3) of the Companies Act 1965. In Vagrand Pty Ltd (in liq) v. Fielding & Ors [1993] 11 ACLC 411 where the Federal Court of Australia held as follows: The second matter raised by Mr Coles, in his challenge to the order of Morling J, is the standard applied by his Honour in considering the merits of the case demonstrated by the applicants for leave. After referring to a number of authorities on the point, Morling J said at ACLC 175; ALR 317: Page 8 of 21 In summary, in the exercise of its discretion under s. 371(2) the Court should only grant leave to proceed where it is satisfied that a real dispute exists between the parties and that in light of all the circumstances it is more convenient (or otherwise appropriate) to allow the matter to proceed to judgment. . The reason for imposing a requirement of leave, in the case of litigation against companies in liquidation, was explained a century ago by Manning J, of the New South Wales Supreme Court, in Thomson v. Mulgoa Irrigation Co Ltd (1893) 4 BC (NSW)33: All that s. 140 means is that a company in liquidation is not to be harassed and its assets wasted by unnecessary litigation, and the leave of the Court is therefore required as a safeguard. Before any action can be brought or continued against a company, the Court must investigate the intended litigation. . In Re Sydney Formworks Pty Ltd (in liquidation) [1965] NSWR 646 at 649-650 McLelland CJ in Eq expressed the reason for the requirement of leave in this way: This view is in keeping with what I consider to be the obvious intention of the section, namely, to ensure that the assets of the company in liquidation will be administered in accordance with the provisions of the Companies Act and that no person will get an advantage to which, under those provisions, he is not properly entitled, and to enable the Court effectively to supervise all claims brought against the company which is being wound up. [emphasis added] Page 9 of 21 [22] From Capital Financial Group (supra), I similarly learnt that the rationale for requiring leave (particularly for the prima facie case criterion for leave) is to shield the wound up company and its liquidator from the vigours of further litigation, which may end up draining the resources available to the company. [23] The Court Of Appeal in Mesuntung (supra) held— [23] In Capital Financial Group Ltd v. Rothwells Ltd (No 2) [1989] 7 ACLC 634 where Rogers CJ in Comm D said as follows: It is necessary to understand the rationale which buttresses the requirement for showing the existence of a prima facie case. The provisional liquidators and liquidator, respectively, are entitled to be protected from involvement in court proceedings which may be perhaps only of a nuisance nature, or which may be thought to be totally devoid of any substance. The resources of the company in liquidation should not be frittered away in defending baseless claims. It seems to be that it is considerations of this nature which have led the courts uniformly over the years to demand that there be evidence showing a prima facie case… [24] And what tantamounts to a prima facie case is, in the view of the Court Of Appeal, a case where “there is a serious dispute between the litigants which warrant a trial to determine the truth of the combating allegations”: Mesuntung (supra), at paragraph [27]. [25] Further, when evaluating whether the Applicant has a prima facie case, I am not to analyse the merits of the Applicant’s case in OS 11 and the Appeal from OS 11, but to consider the Applicant’s claims to see if they are genuine, or on the other hand, baseless and untenable: Ganda Page 10 of 21 Setia Cemerlang Sdn Bhd & Anor v Maika Holdings [2017] 6 MLJ 661 (CA). [26] In Ganda Setia (supra), the Court Of Appeal, through Justice Mary Lim JCA (later FCJ), held— [43] Again, here, we are reminded of what is required in establishing a prima facie case. In Mesuntung Properties, it was clearly explained that in the context of s 226(3), what needs to be shown is that there is a serious dispute between the parties that warrants a trial to determine the truth. The court does not delve into the merits of the dispute but examine the complaints, to see if these complaints are genuine or are they baseless and devoid of any substance. If the answer is in the affirmative, resources of the respondent ought not to be wasted defending a baseless or frivolous claim. [emphasis added] [27] Also from Ganda Setia (supra), I gleaned that when I exercise the discretion whether or not to grant leave, it is a “balancing exercise”. I am to look into the “relevant considerations” surrounding OS 11 as well as the liquidation process. For instance, when the claim is a monetary claim, or when the claim is compensable in monetary terms, then these debts and disputes should be sorted out by the usual procedure of lodging proofs of debt. [28] The Court Of Appeal in Ganda Setia (supra) held— [39] Returning to Mesuntung Properties, we agree with the approach enunciated therein. The requirement of leave is necessary to ensure that companies in liquidation and the liquidators of wound up companies are not embroiled in time consuming and expensive litigation which, indirectly will Page 11 of 21 impact on returns to creditors of the wound up company. Since there is already in place a statutory mechanism for resolving disputes and debts by way of lodgment of proofs of debts, there must be some good, cogent or just reason why there should be a departure from that established procedure. The availability of the remedy sought before the winding up court is only one of the reasonable reasons that may be articulated for such departure. We can see complexities of legal and factual issues or even the status of proceedings already underway, being other relevant considerations in the weighing in of exercise of discretion. This is the balancing exercise discussed by Abdul Malik Ishak J in Bruno Phillipe that the winding up court will have to weigh when considering whether to exercise judicial discretion to grant or refuse leave to proceed against a company in liquidation. The onus is on the appellants to demonstrate why it is more appropriate in the particular facts and circumstances to proceed by separate civil action instead of by lodgment of a proof of debt. [emphasis added] CAN THE RELIEFS AND REMEDIES IN OS 11 BE ADEQUATELY DEALT WITH BY THIS WINDING UP COURT? [29] I find that the two declarations that the Applicant prays for actually relate to the SPA—the contract between the Applicant and Mammoth Empire. The Applicant wants a declaration that Mammoth Empire is bound by the contract, and a declaration that Mammoth Empire has breached the contract. The Applicant wants these declarations because the Applicant wants the usual remedy of damages for breach of contract. And damages is a monetary remedy. [30] The prayer for the LAD payment is also for a monetary sum. Page 12 of 21 [31] I also find that the specific relief prayer, although couched as a “mandatory injunction”, is actually for vacant possession. [32] Vacant possession of the Property is not in dispute between the parties. Mammoth Empire wants to give vacant possession to the Applicant. The Applicant too wants to take vacant possession. The Applicant’s rights and interest over the Property remain intact. [33] But what is in dispute, however, is the allegedly outstanding sum that Mammoth Empire says that the Applicant has to pay before vacant possession is given. The Applicant calls it an afterthought on the part of Mammoth Empire. [34] One of the conditions for vacant possession is that the Applicant has to pay the sums that are due under sub-clause 4(1) of the SPA’s Third Schedule, read together with the rights and obligations set out in Clause 26(1)(c) of the SPA. I suggest that there is no need to specifically refer to these clauses, as I am not making a finding as to whether the Applicant has to pay the alleged outstanding sum. The point here is that the hindrance against the delivery of vacant possession, is the monetary condition that must be satisfied before vacant possession is given. Mammoth Empire asserts that the Applicant is in default of paying the outstanding sum. [35] The Applicant, however, asserts that there was an earlier Notice To Deliver Vacant Possession, which did not contain a demand that she pays the alleged outstanding sum. She argues that it was only when she demanded for the LAD, that Mammoth Empire in turn raised this obligation to pay the alleged outstanding sum. Hence, it is an afterthought on the part of Mammoth Empire. Page 13 of 21 [36] But whether it is an afterthought or not, the dispute is over a monetary sum. And monetary sums can be dealt with in the liquidation process. [37] Put differently, the dispute is not about vacant possession. The dispute is about the outstanding monetary sum. [38] I therefore hold that the Applicant’s claims in OS 11—for damages, for LAD, and for vacant possession because it directly relates to the dispute over the alleged outstanding sum—are primarily monetary claims. And monetary claims can be dealt with through the liquidation process under the purview and jurisdiction of this winding up Court. [39] The Applicant has not satisfied the first of the two criteria. HAS THE APPLICANT SHOWN A PRIMA FACIE CASE IN OS 11? [40] The Applicant submits that she has a prima facie case. The Applicant says that she has a prima facie case because she seeks vacant possession, and Mammoth Empire has given her the VP Notice to take vacant possession. But, as discussed, vacant possession has the incumbent issue about the unpaid outstanding sum. [41] In my judgment, I find that the Applicant has not demonstrated a prima facie case, for these reasons. First, the Applicant’s OS 11 was dismissed by the Shah Alam Sessions Court. The Applicant’s cause against Mammoth Empire was already determined by the Court. She has had her “day in court”. The Applicant’s claims were rejected, causing her to resort to an Appeal to the High Court. Page 14 of 21 [42] Second, in OS 11, Mammoth Empire argues that the Applicant does not have the locus standi to maintain the suit. The Applicant would have had the locus standi and the right to sue Mammoth Empire according to section 22C of the Housing Development (Control And Licensing) Act