Norliah Binti A P Kunhibava v 1. ) Mohd Noor Amin Bin Mohd Noor Khan (WA-28NCC-114-01/2025)

(M) Sdn Bhd (Company No. 689575-W) And In the matter of Sections 464(1)(c), 465(1)(f) and 465(1)(h) of the Companies Act 2016 BETWEEN NORLIAH BINTI A P KUNHIBAVA (NRIC No.: 681124-71-5072) …PETITIONER AND

MOHD NOOR AMIN BIN MOHD NOOR KHAN (NRIC No.: 690319-10-5439)

SHARIZA BINTI KAMARUZZAMAN (NRIC No.: 690322-10-5982)

NUR JASNI BIN MOHAMED (NRIC No.: 721202-14-5161)

NUEMERA (M) SDN BHD (Company No.: 689575-W) …RESPONDENTS

These Grounds concern a Petition (Encl 1) filed by the Petitioner to wind up the 4th Respondent (“Nuemera”) under section 465(1)(f) and/or (h) of the Companies Act 2016 (“CA 2016”).

The appeal for which these Grounds are written was filed by the Respondents against the dismissal of the application in Encl 133 filed under Order 38 rule 2(2) of the Rules of Court 2012 (“ROC”).

Encl 133 was an application for leave: a. to cross-examine the Petitioner, Mohamed Shihab bin Kunhi Mohamed and Yap Sin Kien (collectively the “Deponents”) on various affidavits filed in relation to an interlocutory application, i.e., Encl 9, the Petitioner’s application for the appointment of interim liquidators(“IL”); and b. to stay the proceedings in Encl 9 pending completion of the cross-examination of the Deponents.

The affidavits, as specified in Encl 133 are: a. the Petitioner’s affidavits of 23.1.2025, 28.2.2025 and 5.3.2025; b. Shihab’s affidavit of 28.2.2025; and Yap Sin Kien (Peter)’s affidavit of 28.2.2025.

All references to sections are with reference to sections in CA

The contents of these Grounds are as out in the table below. Contents Para No INTRODUCTION 6-8 FACTUAL BACKGROUND 9-23 Encl 9 24-27 The Application for an Interim Liquidator 28 The First Condition 29-32 The Second Condition 33 Summary & the Test 34-35 ENCL 133 & CROSS-EXAMINATION 36-41 Bad Faith & Abuse 42-46 Summary 47-50 CONCLUSION 51-52 Postscript 53-54

The crux of the Respondent’s case in proposing Encl 133 is as set out their written submissions, Encl 144, at paras 3 to 6: “3. We will elaborate below, but the essence of the Respondents’ position in this application is that the affidavits filed by and on behalf of the Petitioner which are the subject of the intended cross examination, contain falsehoods and unsubstantiated conjectures.

The Respondents have filed affidavits seeking to refute the false and speculative allegations.

The outcome of all this is that this Honourable Court is confronted with evidence in all these affidavits proffered by both parties, which conflict diametrically. Factual disputes are glaringly apparent on their face.

The consequence of this is that Encl 9 cannot be allowed because unless the factual disputes are resolved, the Honourable Court would not be able to conclude that there is a prima facie case for winding up.”

Therefore, Counsel for the Respondents maintains that Encl 133 is to resolve factual disputes on the conflicts of evidence in the affidavits filed. It was submitted that cross-examination was required to resolve such conflicts, which was necessary before Encl 9 could even be heard.

In order to properly appreciate the context of Encl 133, its factual background must be understood. Norliah bt A P Kunhibava v Mohd Noor Amin bin Mohd Noor Khan & Ors [2025] MLJU 2136 (“Grounds 1”), would help.

Encl 133 was filed in the Petition (Encl 1). The Petitioner claims that here has been gross financial mismanagement, misapplication of Neumera’s funds including drastic increases in administrative expenses and excessive management fees.

Nuemera’s principal activity was operating a project known as the PCBS Solution, which arose from a contract between Nuemera and the Malaysian Communications and Multimedia Commission (“MCMC”), whereby Nuemera was appointed to build, operate and manage a nationwide blocking service for lost or stolen mobile phones.

The PCBS Solution came to an end upon the suspension of the Project by MCMC.

Disputes arose. Nuemera succeeded in the arbitration against MCMC and was awarded RM113,257,500.00 together with interest at 5% per annum. By end October 2022 and pursuant to the arbitration award, Nuemera received approximately RM137 million which included approximately RM24 million in late payment interest.

The Petitioner claims that when Nuemera received these monies, the relationship between the shareholders began to unravel. Unsurprisingly, issues such as the need to declare dividends arose.

The Petitioner asserts that in March 2023, RM93.25 million out of the said monies received was transferred to Nuemera’s solicitors, Messrs Zaid Ibrahim Sufflan TH Liew (“ZIST”). Incidentally, ZIST are the solicitors on record for Nuemera and the Respondents in this Petition, and Mr. TH Liew, a partner in ZIST, appears as Counsel.

The Petitioner claims that a large portion of these monies were rapidly dissipated out of ZIST. Over RM16 million (purportedly as legal fees) was paid to ZIST itself and also to its associate in Singapore, Niru & Co. The payments to ZIST were towards their invoices, see Schedule A of the Petition. Such payments were directly deducted from ZIST’s client’s account with Maybank, as set out in Schedule B of the Petition. A further RM17.5 million was transferred to a law firm known as T.L. Chen & Co. as “Consultancy charges”.

The Petitioner challenges these ‘payments’ as exorbitant and improper.

Further, the sum of RM3,585,772.38 allegedly used to pay off Amin’s personal housing loan is also challenged. Similarly, a declaration of director’s fees and other emoluments in excess of RM16 million (with RM12 million thereof to be paid to Amin himself) is hotly disputed. As was the large expenditure by Nuemera.

In the end, the Petitioner claims that from the RM93.25 million deposited with ZIST on 28.3.2023, what remains as at 7.8.2024 are only the sums of RM82,757.32 and RM1,359,073.32. The latter is retained due to ZIST’s undertaking given in respect of a judgment by a creditor.

All this was reflected in a summary of ZIST’s client’s account with Maybank. Particular attention was drawn to ZIST’s invoices for legal fees, which are heavily criticised as over-inflated.

An example cited are the fees paid for ‘Suit 29’, a suit against six (6) government agencies for the tort of misfeasance in public office. The suit was commenced on 29.3.2023 and was withdrawn on 31.7.2023. The total fees invoiced and paid was RM1,064,096.83 for alleged work done over two (2) months, from 25.5.2023 to 25.7.2023. This is set out in para 156 of the Petition. All that ZIST did, it is alleged, was to file a six (6) page affidavit on 20.7.2023.

A second example are the fees in ‘Suit 138’ filed on 25.3.2023 against five (5) Defendants, again, for misfeasance in public office. It is alleged that invoices issued from 25.5.2023 to 24.7.2024 were for a total of no less than RM1,833,350.99.

The claim is that there were clear wrongful if not fraudulent acts, see the Petition at para 17 and in particular at para 17.12, for payments to ZIST.

Mr. Liew submits that all payments from the RM93.25 million deposited with ZIST and in particular, the fees for Suit 129 of RM1,064,096.83 are justifiable.

The central application that caused the current flurry of applications by the Respondent was Encl 9 for, inter alia, the appointment of the IL over Nuemera pending disposal of the Petition. Essentially, it was filed on the third ground of the Petition, i.e., the directors’ alleged misdeeds and breaches of duty. It includes the alleged of misapplication of funds from ZIST’s clients’ account.

It is said that Encl 9 was designed to protect the assets of Neumera and to take such assets out of the hands of Neumera’s management and to place them in the hands of independent professional interim liquidators.

The filing of Encl 9 was followed closely by applications filed by the Respondents, as set out below: a. an application to, inter alia, strike out the Petition (“Encl 13”); b. an application for, inter alia, an ad interim stay of Encl 9 and the advertisement of the Petition (“Encl 19”); c. an application (“Encl 62”) to expunge three (3) affidavits filed by the Petitioner without leave on 4.4.2025 (“the 3 Affidavits”), which were allegedly filed in response to Encl 13. Encl 62 was met with an application (“Encl 71”) to admit the 3 Affidavits; d. in short, for the reasons set out in my Grounds 1, I ruled that Encl 9 was to be heard first. The Respondents filed an Appeal (“the Appeal”), which was followed by Encl 99, to stay Encl 9 pending the hearing of the Appeal.

Counsel for the Petitioner, Mr Ranjit Singh, argued that the filing of the said interlocutory applications are an abuse, a clear motive to ‘derail’ the hearing of Encl 9, in particular, by having the other interlocutory applications heard first. I felt that I did not need to go that far. I found that on the balance of convenience, Encl 9, for the appointment of the IL should be best heard first, as it was designed to protect the assets of Neumera, as opposed to the other applications which were said to reduce the reputational risk to Nuemera.

It is remembered that cross-examination is sought so that Encl 9, the appointment of the IL, could be properly heard on established facts. The traditional test for the appointment of an IL is 2-fold: a. whether a prima facie case for the winding up of the company is made out; and b. there is evidence of misapplication of assets of Neumera requiring protection by the appointment of the IL.

In Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd & Anor [2025] MLJU 2914, I considered the need to show a prima facie case for the appointment of ‘interim caretakers’ in general, from interim liquidators to an interim judicial manager, see paras 74 to 86. Specifically for interim liquidators, I said: “[74] As a start to the analysis, in all the cases for the appointment of an interim caretaker, by whatever name called, a prima facie case for the final appointment must be shown. It is a universal test. There are several examples worth considering. [75] The first is the provisional (now interim) liquidator. The power to appoint an interim liquidator is a draconian power seen as a serious intrusion into the company, see Re Forrester & Lanego Ltd. [1977] 2 BCLC 155 at 158, the power being referred to as to the ‘nuclear weapon of the Companies Court’, see Re a Company (No. 007070 of 1996) [1997] 2 BCLC 139 at 142, commonly seen as a weapon of last resort. [76] As a pre-condition, the winding up petition must disclose a good ground for winding up, see McLennon Holdings Pty Ltd.

1 ACLC 786. Similarly, in Kok Fook Sang v Juta Villa (M) Sdn Bhd & Ors [1996] 2 MLJ 666; Emporium Jaya (Bentong) Sdn Bhd (in liquidation) v Emporium Jaya (Jerantut) Sdn Bhd [2002] 1 MLJ 182, it was held that there must be a strong prima facie case that the company will be wound up and obviously, a final liquidator appointed”.

I noted that a mere prima facie case is not enough. The first condition was recently considered in Revenue and Customs Commissioners v Payroll & Pension Services (PPS Umbrella Co) Ltd [2025] 2 BCLC 291, the Court of Appeal in England recognised the drastic nature of the appointment of a provisional liquidator: “[55] The appointment of a provisional liquidator is, in my view, qualitatively different from the grant of an interim injunction. The grant of the latter is designed to hold the ring while the underlying dispute is determined. The grant of the former is almost invariably the instant death of a trading company. The drastic nature of the appointment of a provisional liquidator was highlighted by this court in HMRC v Rochdale Drinks Distributors Ltd [2011] EWCA Civ 1116, [2013] BCC 419.”

More importantly, this panel of the Court of Appeal recognised that the panel of the Court of Appeal in Revenue and Customs Commissioners v Rochdale Drinks Distributors Ltd [2012] 1 BCLC 748 raised the test from a prima facie case that a winding up order will be made, to show that it is likely that such an order would be made.

I accept that this higher test is the correct test which is in line with the test in Kok Fook Sang v Juta Villa (M) Sdn Bhd & Ors [1996] 2 MLJ 666, of a ‘strong prima facie’ test.

Rimer LJ in Rochdale Drinks (supra) explained the second condition, that there must be a risk to the assets of the company. At para 99, his Lordship said: “[99] … I start from the premise that RDD is insolvent, or is at least likely to be shown to be insolvent at the hearing of the petition; and that HMRC are likely to obtain an order for its winding up. That is not, I consider, sufficient without more to justify the appointment of a provisional liquidator. The usual basis on which such an appointment is sought is because of a risk of jeopardy to the company's assets, namely the risk of their dissipation before the winding-up order is made, with the consequence that their collection and rateable distribution between the company's creditors will be frustrated. Such risk does not refer to (or only to) 'dissipation' in the sense in which that word is ordinarily used in the context of freezing orders, that is a deliberate making away with the assets so as to frustrate the enforcement of a future judgment; it includes any serious risk that the assets may not continue to be available to the company (see Re a Company (No 003102 of 1991), ex p Nyckeln Finance Co Ltd [1991] BCLC 539 at 542per Harman J). [100] The circumstances justifying the appointment of a provisional liquidator are not, however, confined to jeopardy of this particular nature. In cases in which there are real questions as to the integrity of the company's management and as to the quality of its accounting and record-keeping function, it will be an important part of a liquidator's function to ensure that he obtains control of its books and records so that he can engage in all necessary investigations of its transactions. These will or may include investigations of those who have been managing the company with a view to considering the bringing of claims against them; … . If there is any risk that, pending the hearing of the petition, records may be lost or destroyed, that will also found the basis for the appointment of a provisional liquidator, who will be able immediately to secure them and commence his own inquiries into the affairs of the company and the conduct of its management.”

In my judgment, before the appointment of the IL may be made there are two (2) requirements. The law, as it stands, requires that the Petitioner must show that the winding up of Neumera is likely and that there is a risk of dissipation of its assets.

Since the Respondent maintains that Encl 133 is required for the appointment of the IL under Encl 9, these two (2) requirements set the scope of the proposed cross.

The principles for the grant of an order for cross-examination in a winding up Petition are set out in Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd (in receivership) [2018] 11 MLJ 684 per Mohd Nazlan Mohd Ghazali J (as he then was). His Lordship held as follows.

As a starting point, it is clear that the Court has a discretion whether to grant or refuse an application to cross-examine deponents of affidavits and the burden lies on the applicant to convince the court to exercise its discretion in its favour. In winding up Petitions however, the discretion is to be exercised sparingly and only in exceptional circumstances, see Nasser Ali (supra) (at paras 18 to 23).

Justice Nazlan noted that in Maril-Rionebel (M) Sdn Bhd & Anor & Perdana Merchant Bankers Bhd and other appeals [2001] 3 CLJ 248, Abdul Hamid Mohamed JCA’s critical statements against applications to strike out winding up Petitions apply equally to an application to cross-examine in a winding-up petition. Quite simply, a Petition is not designed for oral evidence but should be decided on affidavit evidence. Further, the absence of provisions in CA 2016 and the Companies (Winding-Up) Rules for cross-examination, suggests that in a winding up Petition, an order for cross-examination would be rare. His Lordship said in relation to Maril-Rionebel (supra): “[21] Whilst the said decision was critical of striking out application against petitions, I take the view that the underlying basis for such a stance would apply equally to the application to cross-examine, as it is not specifically provided for in the CA or the Companies Winding-Up Rules 1972, which have been promulgated to achieve expeditious disposal of the petitions in the first place.”

The relevant factors in considering whether an application to cross-examine deponents of affidavits in a winding-up petition should be granted, are set out at paras 24 to 38 in Nasser Ali (supra). They include, in particular, that: a. the application must be made in good faith (paras 26 and 27); b. the applicant must identify with clarity, the specific issues for cross-examination and demonstrate that such issues are genuinely relevant to the determination of the matter (para 31).

Further, in respect of an application to cross-examine on affidavits filed in interlocutory applications, Balwant Singh Purba v R Rajasingam [1987] 2 CLJ 317 at p 317, makes it clear that such applications should not be allowed if the issue in question is one that should be determined at the trial of the action proper.

With these principles in mind, I dismissed Encl 133 for the following reasons.

It was submitted that Encl 133 was filed for the collateral purpose of delaying or even evading Encl 9. It was therefore an abuse of process and filed in bad faith, see Nasser Ali (supra). Also: a. in Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189 at p.190, Salleh Abas FJ (later Lord President) held that: “…It is really a matter of common sense and an elementary legal principle that a party who swears an affidavit much be prepared to stand up to it by cross-examination unless the application to cross-examine him is without just cause, vexatious or motivated by desire to delay the proceedings (Allen v. Allen) …”. b. in Dato Ting Check Sii v. Datuk Haji Mahomad Tufail bin Mahmud & Anor [2007] 7 MLJ 618 at p 626: “(d) There is no inflexible rule or practice prohibiting the adducing of oral evidence or the cross-examination of the deponents of affidavits in winding up applications. Where necessity suggests or expediency requires, it is open to the Judge trying winding up proceedings, to allow oral evidence. Where the application for calling oral evidence is not only belated but is intended to retard and delay the progress of the winding up application the court must refuse to exercise the discretion to allow oral evidence, as in winding up petition, expedition is absolutely necessary (see Veeramachineni Seethiah v Bode Venkatasubbiah & Ors AIR (36) 1949 Madras 675).”

As such, the Respondents’ delay in filing Encl 133 works against the exercise of discretion to grant cross. The Court of Appeal in Indrani a/p Rajaratnam & Ors v. Fairview Schools Bhd [2001] 4 MLJ 56 at p. 61 and p. 62 held that a judge is entitled to refuse a belated application to cross-examine: “The grant or the refusal of an application under O 38 r 2(3) of the RHC is very much an exercise of a judge’s power of discretion and the question that must be determined is whether Abdul Malek Ahmad J (as he then was) had exercised his discretion judicially. From his written judgment, it is very clear that the learned judge considered the following factors when exercising his discretion. …

That the appellants delayed in making the application to cross-examine. The oral application was made on 24 January 1995, the second time the petition was adjourned to be heard on its merits. The learned trial judge considered that the application should have been made earlier when the petition was initially fixed to be heard on its merits on 20 December 1994. There was no indication then that the appellants intended to cross-examine any of the respondent’s deponents even though their affidavits had already been filed in court.”

The circumstances of our case are telling. The Respondents have to date, filed five (5) formal applications to stay Encl 9: a. Encl 13, which, in addition to an order to strike out the Petition, seeks to stay the Petition and Encl 9 pending its disposal; b. Encl 19 for, amongst others, an ad-interim stay of Encl 9 and the advertising and gazetting of the Petition, pending the determination of Encl 13; c. Encl 99, for, amongst others, an order to stay Encl 9 pending the final determination of the Appeal, which was dismissed on 9.7.2025; d. a Notice of Motion dated 14.7.2025 filed in the Court of Appeal to stay Encl 9 pending disposal of the Appeal. The Motion was dismissed on 22.7.2025; e. the present Encl 133.

It was submitted that the Respondents have made multiple failed attempts to delay the hearing of Encl 9. As stated above, the Respondents have filed five (5) applications to stay Encl 9, including Encl 133. Further, Respondents’ counsel and solicitors have made persistent requests during previous court appearances to have other interlocutory applications heard before Encl 9. However, these attempts failed.

The timing of filing Encl 133 is questionable and more than suspicious. In this regard: a. the affidavits on which the Respondents sought to cross-examine the Deponents were filed between 28.2.2025 and 5.3.2025. A genuine application for cross should have been made soon thereafter; b. however, the Respondents only chose to file Encl 133 on 30.7.2025, almost five (5) months after the affidavits were filed. However, Encl 133 was filed just eight (8) days after the Court of Appeal dismissed their motion to stay Encl 9 on 22.7.2025. This suggests that Encl 133 was filed in reaction to the refusal of the Court of Appeal to stay Encl 9.

In my judgment, the numerous applications made by the Respondents to stay Encl 9, including the present Encl 133, are in the circumstances, nothing more than a tactic to delay Encl 9 and are an abuse of process.

Further, the nature of a winding up Petition prevents cross-examination except in rare circumstances, which I do not see.

Lastly, I am reminded that it was claimed that the cross-examination was to allow the parties to proceed with the hearing of Encl 9. But the test for the appointment of the IL is merely to show that the winding up of Neumera was likely and that there was only a risk of dissipation of Neumera’s assets. There is no necessity to resolve factual disputes to definitively arrive at a conclusion that Neumera will be wound up and there have been actual dissipation of assets. That is for the Petition.

Accordingly, no useful purpose would be served to order cross-examination. In the end, what became obvious is that the Respondents could have simply fought Encl 9 instead of making these numerous applications and manoeuvres to stay Encl 9, which shows an intention to evade and delay Encl 9.

Accordingly, I dismissed Encl 133. Given my finding of abuse, I wanted to give the parties ample time to prepare for an argument on costs. I therefore reserved my ruling on costs.

On 25.9.2025, I heard arguments. Mr. Ranjit Singh previously indicated that he would be seeking costs against the solicitors, ZIST, personally. He did not pursue this. However, he did press for costs on an indemnity basis of RM45,000.00 against the Respondents, which I granted.

After I dismissed Encl 133 on 22.9.2025, the Respondents on 25.9.2025 then filed Encl 157 to recuse me from further hearing this matter.

What Encl 157 also prayed for was a stay of proceedings, which would also mean a stay of Encl 9. Dated the 27th day of October 2025 ........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Case References: • Balwant Singh Purba v R Rajasingam [1987] 2 CLJ 317 • Dato Ting Check Sii v. Datuk Haji Mahomad Tufail bin Mahmud & Anor [2007] 7 MLJ 618 • Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd & Anor [2025] MLJU 2914 • Indrani a/p Rajaratnam & Ors v. Fairview Schools Bhd [2001] 4 MLJ 56 • Kok Fook Sang v Juta Villa (M) Sdn Bhd & Ors [1996] 2 MLJ 666 • Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189 • Maril-Rionebel (M) Sdn Bhd & Anor & Perdana Merchant Bankers Bhd and other appeals [2001] 3 CLJ 248 • Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd (in receivership) [2018] 11 MLJ 684 • Norliah bt A P Kunhibava v Mohd Noor Amin bin Mohd Noor Khan & Ors [2025] MLJU 2136 • Revenue and Customs Commissioners v Payroll & Pension Services (PPS Umbrella Co) Ltd [2025] 2 BCLC 291 • Revenue and Customs Commissioners v Rochdale Drinks Distributors Ltd [2012] 1 BCLC 748 Counsel for the Petitioner: Solicitors: Ranjit Singh, Elizabeth Lau & Wong Jing Wen Messrs. Elizabeth Lau (Kuala Lumpur) Counsel for the Respondents: Solicitors: Eugene Jayaraj Williams, Ong Kang Nyong & Divesh Ramani Messrs. Zaid Ibrahim Suflan T H Liew & Partners (Kuala Lumpur) Legislation References: • Companies Act 2016 (“CA 2016”) • Order 38 rule 2(2) of the Rules of Court 2012 (“ROC”) Decision Date: 22nd September 2025