/akn/my/judgment/high-court/2026/5d4be345-2491-4415-9e07-bcd455458670
High Court of Malaysia18 Mar 2026WA-28NCC-114-01/2025
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“SION) COMPANIES (WINDING UP) PETITION NO.: WA-28NCC-114- 01/2025 In the matter of Nuemera (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”
“htungsgesetz in Germany. 22. According to the appellants' research, legislation in England goes back to the time of King Edward III (50 Edward III, c 6). The present legislation can be traced to the Fraudulent Conveyances Act 1571 (13 Eliz, c 5), which was replaced by section 172 of the Law of Property Act 1925. **Note”
“an, book 4, title 6, para 6, The Digest of Justinian, book 42, title 8), and it remains in differing forms an important feature of many European legal systems: see, for example, article 1341-2 of the French Civil Code, and the Anfechtungsgesetz in Germany. 22. According to the appellants' research, legislation in Engla”
“*Note : Serial number will be used to verify the originality of this document via eFILING portal 34 82. In England, the restriction has a long history and was given statutory force in s. 423 of the Insolvency Act 1986. In Scotland, the common law applied the Roman law concept of actio pauliana preventing gratuitous tra”
“back to the time of King Edward III (50 Edward III, c 6). The present legislation can be traced to the Fraudulent Conveyances Act 1571 (13 Eliz, c 5), which was replaced by section 172 of the Law of Property Act 1925. **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 2”
“ification is that I would, however, regard the continued use in this context of the phrase 'good prima facie case' as unsatisfactory. In American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 at 507, [1975] AC 396 at 404, Lord Diplock said of the phrase 'prima facie case' that it 'may in some contexts be an elusive con”
“e 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 542 per Harman J). [100] The circumstances justifying the appointment of a provisional liquidator are”
“he 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.””
“ican Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) • Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400 • BTI 2014 LLC v Sequana SA and others [2024] AC 211 • Chai Yung Fei v Meto Steel Sdn Bhd & Ors [2017] MLJU 2438 • Dan-Bunkering (Singapore) Pte Ltd v The Owners of The Ship or Vessel ‘Pdz Mewah’ (IMO No.: 9064009) o”
“16. In relation to the traditional test, the Court of Appeal in Tenaga Nasional Berhad v ATA Industrial (M) Sdn Bhd [2019] MLJU 926 at paras 35 to 36 held, and I gratefully accept, that the meaning of ‘prima facie evidence’ can be found in Sarkar Law of Evidence and Halsbury’s Laws of England: “[35] Sarkar Law of Evide”
“d to put the assets of the company outside the reach of its creditors. 80. In Dan-Bunkering (Singapore) Pte Ltd v The Owners of The Ship or Vessel ‘Pdz Mewah’ (IMO No.: 9064009) of Port Klang & Anor [2020] MLJU 1574, Atan Mustaffa J held at para 107: “[107] Given these facts as a whole, this Court finds that the transf”
“s as stated **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 by Lord Reed in the Supreme Court of England in BTI 2014 LLC v Sequana SA and others [2024] AC 211. “[55] However, short of an inevitable insolvent liquidation, the interest of shareholders persist. Lord Ree”
“8. 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 at paras 74 to 86. Specifically”
“s, see the Supreme Court in MacDonald and another v Carnbroe Estates Ltd [2020] 1 BCLC 419 at para 21 to 23 per Lord Hodge and the Supreme Court of England in Invest Bank PSC v El-Husseiny and others [2026] AC 1, see para 83 below. 83. In the recent decision of the Supreme Court in El Husseiny (supra) the history of th”
“editors. … 35. The reasoning in Kinsela, as set out in the dictum quoted at the end of para 31 above, was cited with approval by Dillon LJ, giving the judgment of the Court of Appeal, in West Mercia [1988] BCLC 250.” 79. In Kinsela, the Court set aside the transaction designed to put the assets of the company outside t”
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Content
1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF FEDERAL TERRITORY OF KUALA LUMPUR (COMMERCIAL DIVISION) COMPANIES (WINDING UP) PETITION NO.: WA-28NCC-114- 01/2025 In the matter of Nuemera (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
1
MOHD NOOR AMIN BIN MOHD NOOR KHAN (NRIC No.: 690319-10-5439)
2
SHARIZA BINTI KAMARUZZAMAN (NRIC No.: 690322-10-5982) 2 3. NUR JASNI BIN MOHAMED (NRIC No.: 721202-14-5161)
4
NUEMERA (M) SDN BHD (Company No.: 689575-W) …RESPONDENTS GROUNDS OF JUDGMENT Nuemera (No.4)
1
These Grounds concern a Petition (Encl 1) filed by the Petitioner to wind up the 4th Respondent (“the Company”) under section 465(1)(f) and/or (h) of the Companies Act 2016 (“CA 2016”). The Petitioner is a contributory of the Company and claims locus under s. 464(1)(c).
2
Save where the context otherwise provides, all references in these Grounds to sections are with reference to sections in CA
2016
The Contents of these Grounds are as set out in the table below: Contents Para No INTRODUCTION 3-6 THE TEST - INTERIM LIQUIDATORS 7 The First Limb 8-11 The Second Condition 12 Proving it is ‘Likely’ or a ‘Good Prima Facie’case 13-21 BACKGROUND FACTS 22-23 The Arbitration Award 24-28 The Tax Dispute & Solvency 29-33 ALLEGED MISAPPLICATION OF THE AWARD MONIES & THE RM93.25 PAYMENT TO ZIST 34-39 THE PAYMENT TO ZIST - RM93.25 40-44 INSTANCES OF MISAPPLICATION 45-46 First - Payments to ZIST to Put the RM93.25m Beyond the Reach of LHDN 47-59 Second - Suit 29 60-64 Third - Suit 138 65-69 Directors’ Fees & the Ambank Redemption 70-76 Summary 77-88 CONCLUSION 89-90
3
S. 465(1)(f) and (h) provide: “465. (1) The Court may order the winding up if—
f
(f) the directors have acted in the affairs of the company in the directors’ own interests rather than in the interests of the members as a whole or acted in any other manner which appears to be unfair or unjust to members; …
h
(h) the Court is of the opinion that it is just and equitable that the company be wound up;”
4
The Petition is predicated on 3 grounds, namely: “Just & Equitable” – s. 465(h) a. Loss of substratum – falling under the just and equitable limb. b. Breakdown of relationship of trust and confidence – also falling under the just and equitable limb. “Directors Acting in their Own Interests” – s. 465(f) c. That the directors have acted in their own interests rather than in the interest of the members as a whole or acted in a manner which is unfair or unjust to the Petitioner.
5
These Grounds specifically deal with the Petitioner’s application (“Encl. 9”) to appoint Dato’ Jeyaraj a/l V. Ratnaswamy and Ralph Ravin Ratnaswamy of MustaphaRaj Insolvency PLT as interim liquidators (“IL”) over the Company pending the disposal of Encl 1.
6
The Petitioner maintains that Encl 9 is predicated on the third ground, being the directors’ acting in their own interests to the detriment of the shareholders or the Petitioner. As such, the underlying basis on which I will deal with Encl 9 will be limited to such alleged misbehaviour of the directors of the Company within s. 456(1)(f).
7
The traditional test for the appointment of an IL is 2-fold: first, a prima facie case for the winding up of the company is made out; and secondly, there is evidence of misapplication of assets of the company requiring protection by the appointment of the IL. The First Limb
8
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 at paras 74 to 86. Specifically for interim liquidators: “[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.
Subsection
(1983) 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”. A small correction. ‘Strong prima facie’ case should read ‘good prima facie’, which is the traditional test applied in both Kok Fook Sang and Emporium Jaya.
9
I note that a good prima facie case may not be enough, at least in the case of a trading company. 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 over a trading company: “[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.”
10
More importantly, this panel of the Court of Appeal recognised that in the case of a trading company, the panel of the Court of Appeal in Rochdale Drinks (supra) raised the bar from a ‘good prima facie’ case that a winding up order will be made, to show that it is ‘likely’ that such an order would be made. In Rochdale Drinks, Rimer LJ held: “[76] The appointment of a provisional liquidator to a trading company is, however, a most serious step for a court to take. It is likely in many cases to have a terminal effect on the company's trading life. It is not an order to be made lightly and its making requires the giving by the court of the most anxious consideration. … [77] … The qualification is that I would, however, regard the continued use in this context of the phrase 'good prima facie case' as unsatisfactory. In American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 at 507, [1975] AC 396 at 404, Lord Diplock said of the phrase 'prima facie case' that it 'may in some contexts be an elusive concept', and Plowman J's chosen phrase also included a 'good', which may perhaps tend to increase the risk of elusiveness. Given the potential seriousness of the appointment of a provisional liquidator, I consider that in the case of a creditor's petition the threshold that the petitioner must cross before inviting such an appointment ought to be nothing less than a demonstration that he is likely to obtain a winding-up order on the hearing of the petition.”.
11
In the case of a trading company, I accept that this higher test should apply for the reasons set out in Rochdale (supra). For the purposes of this decision, I need not decide as to whether this higher test should apply to all companies or just trading companies. Given my findings (below), both tests are met. The Second Condition
12
Rimer LJ in Rochdale Drinks 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 542 per 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.” Proving it is ‘Likely’ or a ‘Good Prima Facie’ case
13
As stated above, before the appointment of the IL may be made, the Petitioner must satisfy the first limb, that the winding up of Neumera is likely and/or that there that there is a ‘good prima facie case’ that the company will be wound up, as the case may be.
14
Counsel for the Respondents added a peculiar twist to the first limb. He submitted that if there is contested dispute on the material facts, or that if the allegations are explained, then no good prima facie case will be established. He applied the traditional ‘good prima facie’ test as opposed to the ‘likely’ test. No matter, as his argument deals with the method of establishing ‘good prima facie’ case, which will be the same when determining whether it will be ‘likely’ that a winding up order will be made.
15
First, I refer to the summary of Azizul Adnan J (as he then was) in Chai Yung Fei v Meto Steel Sdn Bhd & Ors [2017] MLJU 10 2438 at paras 14 to 17 in determining whether it is ‘likely’ that the company will be wound up. The summary is this: “(a) first, to consider the sufficiency of the allegations contained in the petition. In doing so, the court may assume that the primary facts set out in the petition are true;
a
(a) second, the court must establish the uncontested evidence contained in the affidavits averred on behalf of the parties;
b
(b) finally, an evaluation must be made on the allegations contained in the petition and of the uncontested facts in order to ascertain whether:
i
(i) The company would be likely to be wound up;
Subparagraph
(ii) The company’s assets are in jeopardy; or
Subparagraph
(iii) There are other circumstances that make it imperative for the court to intervene.”
16
In relation to the traditional test, the Court of Appeal in Tenaga Nasional Berhad v ATA Industrial (M) Sdn Bhd [2019] MLJU 926 at paras 35 to 36 held, and I gratefully accept, that the meaning of ‘prima facie evidence’ can be found in Sarkar Law of Evidence and Halsbury’s Laws of England: “[35] Sarkar Law of Evidence, Malaysia Edition, Volume 1 defines prima facie evidence as evidence which, if accepted, appears to be sufficient to establish a fact unless rebutted by acceptable evidence to the contrary. It is not conclusive. [36] Halsbury’s Laws of England, Fourth Edition, Volume 17 defines prima facie evidence and conclusive evidence as follows – “Prima facie evidence” means evidence which, if not balanced or outweighed by other evidence, will suffice to establish a particular contention. …”
17
As such, in determining whether there is a ‘good prima facie’ case or it is ‘likely’, that the Company will be wound up, I must rely on the undisputed evidence. And also, the contested allegations in the Petition as verified on affidavit, which I must assume to be true unless rebutted or outweighed.
18
The question that then arises is how contested evidence may be rebutted or outweighed. That question must be answered in the context of the proceedings in question. Here, I am faced with Encl 9, a Summons in Chambers to be dealt with on affidavit evidence.
19
It is remembered that it is no function of the Court to try disputed affidavit evidence, see per Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) at p. 404. The only exception is that as stated by Lord Diplock himself speaking for the Privy Council in Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212, where he had this to say at p 217: “Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.”
20
Our Supreme Court in Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400, when commenting on Eng Mee Yong (supra), said: “Although Lord Diplock was dealing with an application for removal of caveat in that particular case, we are of the view that the above principle of law is relevant and applicable in all cases where a judge has to decide a case or matter on affidavit evidence. Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable.”
21
As such, if the Petitioner establishes a good prima facie case or that it is likely that the Company will be wound up, in order to rebut the contested allegations in the Petition (which I must assume to be true) the Respondents must overcome the difficult exception in Eng Mee Yong (supra) and Mod Ismail (supra). With respect, I cannot accept the submission of counsel that a ‘prima facie’ case will fall merely if the underlying facts are disputed. Or if explanations have been proffered, which I am unable to definitively accept in the face of contested allegations on affidavit.
22
The Company’s internal ownership is as follows: a. The 1st to 3rd Respondents were directors of the Company at the material time. The 1st Respondent, Datuk Mohd Noor Amin (“Amin”) is apparently the pre-eminent leader of the Company. b. The Petitioner holds 25% of the Company. It is not disputed that the true beneficial owners of those shares are her husband En. Mohamed Shihab (“Shibab”) and Amin’s former partner in legal practice, Mr. Peter Yap from the firm of Amin, Yap & Co.
23
The evidence suggests that the Company’s principal activity was in a project known as the PCBS Solution, which was the subject of a contract between the Company and MCMC whereby the Company was appointed to build, operate and manage a nationwide blocking service for lost or stolen mobile phones (see paras 95-96, Encl. 1). The Arbitration Award 14 24. Disputes arose between the Company and MCMC, which were referred to arbitration. The Company succeeded and was awarded RM113,257,500.00 together with interest at 5% per annum (“the Award”).
25
The Petitioner claims that trouble within the Company started when it received the proceeds from the Award of approximately RM137 million by end October 2022 (which included about RM24 million in late payment interest). It is alleged that by then, the Company’s principal activity, being the PCBS Solution, had come to an end by virtue of the suspension of the Project by MCMC and the subsequent arbitration (see paras 98-104 of Encl. 1).
26
Once the monies were received, there were discussions between Amin and Shihab on a declaration of dividends. The relationship started to break down. Due to Amin’s reluctance to declare dividends, Shihab requested for a loan but Amin decided that he would borrow the money from the Company and then loan it to Shihab. However, Amin required 15% of the Petitioner’s shares as collateral. Shihab refused.
27
Instead, Shihab asked that at least a RM30 million be declared as dividends so that he could receive RM7.5 million to help clear some of his financial obligations (see pp. 10-21, Encl. 2).
28
Amin’s response was that the outstanding dispute with the tax authorities (“LHDN”) had to be resolved first before any dividends could be paid out. Shihab agreed. This was on 5.12.2022. The Tax Dispute & Solvency
29
On 13.5.2022, LHDN obtained judgment against the Company for RM42.163 million (“LHDN Judgment”). LHDN then issued a statutory winding-up notice on 9.3.2023, giving the statutory 21 days to pay, i.e., before 30.3.2023.
30
It is likely that the financial position of the Company as at 28.3.2023 was that it was insolvent. There were unpaid salaries and more importantly, there was the outstanding LHDN Judgment. At the very least, the financial position of the Company appeared to be precarious.
31
Things improved when the Company won the large Award against MCMC for RM113 million. The full amount of approximately RM137 million was received in October 2022. There is insufficient information to determine whether the Company had returned to solvency, but certainly, directors should have been careful in the management of these funds especially if the Company was bordering on insolvency.
32
In Maju-TH Sdn Bhd (Lembaga Tabung Haji, proposed intervener) [2025] 8 MLJ 875 I noted the directors fiduciary duties to both the creditors and the shareholders when the company is insolvent or bordering on insolvency is as stated by Lord Reed in the Supreme Court of England in BTI 2014 LLC v Sequana SA and others [2024] AC 211. “[55] However, short of an inevitable insolvent liquidation, the interest of shareholders persist. Lord Reed at [81] said:
81
Where the company is insolvent or bordering on insolvency but is not faced with an inevitable insolvent liquidation or administration, the directors’ fiduciary duty to act in the company’s interests has to reflect the fact that both the shareholders and the creditors have an interest in the company’s affairs. In those circumstances, the directors should have regard to the interests of the company’s general body of creditors, as well as to the interests of the general body of shareholders, and act accordingly Where their interests are in conflict, a balancing exercise will be necessary. [56] In this regard, the effect of insolvency is not binary. The greater the financial difficulty, the greater the intrusion of the rights of the creditors and the greater the dilution of shareholder ‘primacy’. Lord Reed continued at [81]: ... Consistently with what was said in Kinsela at p 733 (para 33 above), and with the reasoning in paras 48-59 above, it can I think be said as a general rule that the more parlous the state of the company the more the interests of the creditors will predominate, and the greater the weight which should therefore be given to their interests as against those of the shareholders. That is most clearly the position where an insolvent liquidation or administration is inevitable, and the shareholders consequently cease to retain any valuable interest in the company.”
33
This is where the directors may have erred being the manner they should have safeguarded the monies from Award. ALLEGED MISAPPLICATION OF THE AWARD MONIES
34
On 28.3.2023, a substantial portion of the Award comprising RM93.25 million was transferred to Messrs Zaid Ibrahim Sufflan TH Liew (“ZIST”). The Petitioner claims that a large portion of this sum was misapplied by the directors and in particular, Amin.
35
This alleged misapplication is the basis for the appointment of the IL under Encl 9.
36
Amin, in a remarkable statement, openly says that the RM93.25 million was transferred because of the pending claim by LHDN. Essentially, he claims and admits that these monies were transferred ZIST to avoid LHDN attaching these funds or part thereof, see at para 233 of Encl 38 reproduced at para 48 below. It is implicit from Amin’s affidavit at Encl 38, that he maintains that such transfer was legitimate. More of this later.
37
The Petitioner is alarmed at the manner in which these sums were applied. Out of these sums deposited with ZIST, over RM16 million was paid out to ZIST and its associate in Singapore, Niru & Co., purportedly for legal fees (see paras 150-152 and 160-163 and Schedule A of the Petition at Encl. 1). A further RM17.5 million was transferred to a law firm known as T.L. Chen & Co. as “Consultancy charges”. (Itemised payments for invoices issued by ZIST and payments directly deducted from ZIST’s client account appear at
Schedule
Schedule A and Schedule B of the Petition). 38. Further, RM3,585,772.38 was used to pay off Amin’s personal housing loan. Director’s fees and other emoluments in excess of RM16 million with RM12 million to be paid to himself were also declared. 39. From the RM93.25 million deposited with ZIST on 28.3.2023, what remained as at 7.8.2024 was a mere RM82,757.32 and RM1,359,073.32 respectively. The latter sum is held for the purpose of reimbursing ZIST in the event its undertaking in the event a judgment of a creditor had to be paid. At the end of 2023, the “Cash and cash equivalents” of the Company was only RM1,944,546.00, see p. 213, Encl. 38. THE PAYMENT TO ZIST - RM93.25 40. The Petitioner has raised numerous instances of alleged misapplication of the RM93.25 million. 19 41. The allegations begin with the payment of RM93.25 million to ZIST from the Award. The payment was made in 8 tranches on 28.3.2023, see the Company’s CIMB Bank statement, at pp. 57-58, Encl. 2. No. Date of Payment Description of Transaction Amount (RM) 1. 28.3.2023 Stakeholder Money 1,500,000.00 2. 28.3.2023 Stakeholder Money 3,750,000.00 3. 28.3.2023 Stakeholder Money 3,000,000.00 4. 28.3.2023 Provision for LHDN 43,000,000.00 5. 28.3.2023 Disputed GST and SS 6,000,000.00 6. 28.3.2023 Provisional Profess 10,000,000.00 7. 28.3.2023 Defence Costs 2,000,000.00 8. 28.3.2023 Tax Liability AND/O 24,000,000.00 TOTAL 93,250,000.00 42. That all payments were made on 28.3.2023, is said to be significant as on the next day (29.3.2023) the Company filed for a Fortuna Injunction against LHDN. 43. From ZIST’s Current Account statements, it appears that the RM93.25 million was initially transferred to ZIST’s RHB current account. RM87,805,878.61 was then transferred to ZIST’s Maybank client’s account on 6.4.2023. ZIST’s Maybank client’s account statement from 6.4.2023 to 7.8.2024 appears at Annexure P-18 at pp.69-90, Encl. 2. 44. The Petitioner complains that Amin provided no explanation as to what has happened to the balance in ZIST’s RHB current account of RM5,444,121.39 after the transfer to Maybank. INSTANCES OF MISAPPLICATION 45. The Petitioner alleges that a substantial portion of the RM93.25 million deposited with ZIST was wrongfully dissipated and misapplied. 46. The Petitioner relies on numerous instances and allegations of misapplication. In my mind, and for the purposes of this decision, I am satisfied that 3 transactions (out of the many transactions complained of) justify the appointment of the IL. They are as follows. First - Payments to ZIST to Put the RM93.25m Beyond the Reach of LHDN 47. First, the Petitioner claims that the RM93.25 million was transferred to ZIST to avoid any action by LHDN to enforce the LHDN Judgment. 48. According to Amin, he was told that LHDN had powers to freeze bank accounts. He says that in order to prevent an interim seizure of the Company’s bank accounts, the Board decided that RM93.25 million would be placed in ZIST’s client’s account. ZIST, if necessary, would give a solicitors’ undertaking to LHDN in respect of the Company’s liability to LHDN. See Amin’s Affidavit (Encl. 38) at paras 228-234, in particular, at para 233. The following is the relevant extract from Encl 38. 49. From para 233 of Encl 38 (above), it seems plain enough that Amin openly admits the transfer of RM93.25 million was to avoid any steps by LHDN, legitimate or otherwise, to recover the LHDN Judgment. 23 50. Amin’s justification was that ZIST could, if necessary, issue a solicitors’ undertaking to pay LHDN the tax due, which will effectively protect LHDN’s interests. 51. I must say that I have difficulty with this explanation. 52. First, LHDN had the benefit of the LHDN Judgment and is entitled to be paid these monies due by way of tax. If the tax issue was resolved, there would be no difficulty in obtaining a refund from LHDN, being the Government of Malaysia. There was no reason to place the monies with ZIST except to put these monies out of the reach of LHDN and other creditors. This, in itself, amounts to a serious breach of the directors’ duties (see the summary at paras 78 to 86 below). 53. Secondly, it appears that the RM93.25 million was quickly depleted. The Petitioner claims that there was no question of ZIST being able to give LHDN a meaningful solicitors’ undertaking for the tax due. 54. From ZIST’s Maybank CA (“the CA Statement”) (at p. 71 of P-18 of Encl 2), these monies appeared to be deposited in fixed deposits coded from “A” to “H”. The final balance is seen from a Summary of the fixed deposit statement in ZIST Maybank clients’ account at p. 90, Encl. 2. The Summary is reproduced below 55. Looking at Item 17 of the full CA Statement (Code “D”) (at p. 71 of P-18, Encl 2), RM43 million was deposited in relation to the “Notice from Lembaga Hasil Dalam Negara Malaysia dated 9 Mac 2023” (said to be LHDN’s statutory winding up notice). 56. Despite apparently being deposited with ZIST on 28.3.2023 for safeguarding for LHDN, the Petitioner claims that it can be seen from CA Statement (at P-18 at pp.69-90, Encl. 2), that there were payments from these sums prior to Jan 2024 when the Tax Dispute was allegedly resolved. 57. For example, on 9.5.2023, 2 payments of RM4 million and RM3 million each were paid out to TL Chen & Co purportedly as “Consultancy Fees” (Items 18 and 19) and on 7.12.2023, a payment of ZIST’s invoice of RM216,303.82 (Item 29). 25 58. The Petitioner avers that Amin’s claim that the RM 43 million deposited with ZIST to safeguard LHDN’s interests at para 48 above should not accepted given the depletion of these funds. 59. It matters not that the tax issue with LHDN was resolved in January 2024. There can be little justification for the sums to be placed with ZIST since 28.3.2023 admittedly to put these sums out of the reach of LHDN (see Summary at para 86 below). Second - Suit 29 60. Secondly, in respect of Suit 29, the allegations in the Petition are that the invoices issues by ZIST were inflated and were for works that were not done given the notices of discontinuance filed some 4 months after commencement of the action, and a trial that never happened. Below is what is alleged in para 156 of the Petition: (Invoice No. 5388/23 for RM322,271.39 is at Annexure 3); (Invoice No. 5349/23 for RM318,000.00 is at Annexure 4; (The various notices of discontinuance are at Annexure 5). 61. It appears that the justification for these large invoices was that Amin reviewed and agreed to the fee proposals which he found reasonable with nothing to suggest that the invoices were improper (see paras 333-338 at p. 45, Encl. 14). 62. On submission at Encl 61 (and on my request, refiled as Encl 231 but with an Index), Counsel’s response is that the Petitioner has shifted stance (para 143), no evidence has been adduced to support such wild allegations (para 145) and that the Company instituted this complex action to ‘leverage its position’ (para 151), which suggests commencing Suit 29 for tactical reasons. This, it is said, required considerable work. 63. However, it is inescapable that the bills of RM1,064,096.83 million issued over 2 months with Suit 29 not even going to trial, is an extremely large sum. The size of the Bills and the time within which the invoices were raised in themselves constitute evidence of misapplication. Amin’s own subjective assessment that he had reviewed the bills and found that they were reasonable, with respect, does not carry much weight. 64. In short, I am unable to definitively conclude that the Respondents’ explanation is so overwhelming to entirely rebut (within Eng Mee Yong) the Petitioner’s claims that there has been overcharging and misapplication of funds. Third - Suit 138 65. Thirdly, the invoices in Suit 138 are also challenged for being inflated. Below is what is alleged in the Petition (see paras 156.6 to 156.8, Encl. 1): 66. The timing is said to be important. Suit 138 was filed on 25.3.2023, 3 days before the monies were transferred to ZIST. (see: pp.182-184, Encl. 2). 29 67. Over a span of 2 months, ZIST invoiced over RM1.88 million, an extraordinary amount. At Schedule B of the Petition, it was pointed out that, from 23.3.2023 to 19.7.2024, ZIST’s invoices were in excess of RM6 million. These are said to comprise: a. 3 invoices issued on 31.3.2023 (a mere 6 days after filing of the action) for the sums of RM479,209.00, RM371,610.25 and RM212,560.25 (a total of RM1,063,379.50); b. 8 invoices issued on 26.5.2023, barely 2 months after the first 3 invoices were issued, for the sums of RM57,407.67, RM375,407.67, RM68,007.67, RM42,635.63, RM32,035.63, RM53,235.63, RM318,235.63 (a total of RM946,965.53); c. 2 invoices were issued on 3.4.2024 for the sums of RM218,316.59 and RM163,775.09 (a total of RM382,091.68); and d. 5 invoices for a total of RM1,242,749.88, issued on 6.6.2024 for RM24,937.47, RM405,937.47, RM405,937.47, RM270,937.47 and RM135,000.00. 68. Amin’s response in respect of Suit 138, is that there was nothing fraudulent and “nothing unusual”, see paras 344-350 of Encl. 14). Given the seriousness of the allegations, the response is flippant, and frankly, inadequate. 30 69. Again, given the size of the bills themselves and the speed at which Suit 138 was filed just days before the monies were transferred to ZIST, I cannot conclude that the invoices raised were proper so as to entirely rebut the allegations of misapplication of funds. On the face of the bills, they really do appear extraordinarily large. The attack on the Petitioner for not having proof of wrongdoing falls well short of rebutting the size and timing of these invoices. On the contrary, these invoices appear to be good evidence of misapplication. Directors’ Fees & the Ambank Redemption 70. Apart from the 3 instances I principally rely on, there are other allegations which include declaring substantial directors’ fees of RM12 million and a further RM4,189,500.00 as “Directors’ other emoluments” for the end of the financial year 2022, see, paras 186 to 192 at pp. 42-43, Encl. 1. 71. Items 1 to 4 in the Statement (Code “A”) at p. 69 of P-18, Encl 2, show that a sum of RM3.75 million was deposited to settle Amin’s Ambank loan, see paras 181 to 185 of the Petition (Encl. 1). 72. Out of the this, RM3,585,772.38 was used to redeem Amin’s property and part of the balance was used to pay 2 of ZIST’s invoices for RM48,944.50 and RM20,510.50. 31 73. Amin accepts that RM3.585 million was transferred from the Company to Ambank to repay his personal loan, although he says that he then became indebted to the Company, see para 278, Encl. 14. Amin claims, that the RM3.585 million was offset against directors’ fees of RM12 million (see, paras 279-280 at p. 38, Encl. 14). 74. Amin’s explanation is heavily challenged. The Petitioner claims the payment to Ambank was never treated as an amount owing from Amin in the financial statements of the Company. For the years 2020 to 2023, the “Amount due to a director” (which the Petitioner assumes to be Amin) was stated to be: a. Year 2020 – RM3,126,128.00; b. Year 2021 – RM3,508,791.00; (see p. 491, Encl. 1) c. Year 2022 – RM3,229,235.00; and d. Year 2023 – RM4,781,270.00. (see p. 243, Encl. 38) 75. The Petitioner also stresses that the payment to Ambank was not treated as a loan from the Company to Amin. And only negligible amounts are captured as “Amount due from a director / directors”, see p. 453, Encl. 1 and p. 241 Encl. 38. 76. I cannot possibly assess the veracity of such claims on affidavit evidence. These allegations properly belong before a professional. Summary 77. In short, the Petitioner claims that the evidence suggests that it was in the in the face of winding-up by LHDN, that the RM93.25 million was transferred to ZIST. Almost immediately, monies were transferred to TL Chen & Co, and ZIST started issuing substantial invoices. Directors’ fees and other emoluments were declared and paid out. Investments were made. Amin’s personal loan was redeemed. 78. The complaint is that the initial deposit with ZIST was made to put these funds beyond the reach of the Company’s creditors, in particular, LHDN. This is admitted. To transfer assets out of the debtor to defeat the claims of creditors is a fraud on creditors and a most egregious breach of the directors’ duties, see Kinsela v Russell Kinsela Pty Ltd (1986) 4 NSWLR 722 as explained and approved by the Supreme Court in BTI 2014 LLC v Sequana SA and others [2024] AC 211 at para 31. Lord Reed held: “30. The idea that creditors” interests might be a relevant factor received more extended consideration in the New Zealand case of Nicholson v Permakraft (NZ) Ltd [1985] 1 NZLR 242 (“Permakraft”), where Cooke J expressed the view, obiter, that directors might owe a duty to the company to consider the interests of creditors “if the company is insolvent, or near-insolvent, or of doubtful solvency, or if a contemplated payment or other course of action would jeopardise its solvency” (p 249). … 31. That reasoning influenced the judgment of Street CJ in Kinsela v Russell Kinsela Pty Ltd (1986) 4 NSWLR 722 (“Kinsela”), a decision of the New South Wales Court of Appeal which heralded a more radical change in the way in which the law understands the concept of a company's interests. The case concerned a transaction entered into by a company with the approval of the shareholders at a time when it was balance sheet insolvent, and in anticipation of its imminent collapse, for the purpose and with the effect of placing its assets beyond the immediate reach of its creditors. … 35. The reasoning in Kinsela, as set out in the dictum quoted at the end of para 31 above, was cited with approval by Dillon LJ, giving the judgment of the Court of Appeal, in West Mercia [1988] BCLC 250.” 79. In Kinsela, the Court set aside the transaction designed to put the assets of the company outside the reach of its creditors. 80. In Dan-Bunkering (Singapore) Pte Ltd v The Owners of The Ship or Vessel ‘Pdz Mewah’ (IMO No.: 9064009) of Port Klang & Anor [2020] MLJU 1574, Atan Mustaffa J held at para 107: “[107] Given these facts as a whole, this Court finds that the transfer of ownership of the Vessel from Dai Zhun to PDZ Holdings on 30.11.2016 was a sham transaction made with the fraudulent intention of dissipating the asset of Dai Zhun to frustrate any judgement which Dan Bunkering may obtain against Dai Zhun. 81. The prohibition against putting the assets of the company out of reach of creditors, is not new. 82. In England, the restriction has a long history and was given statutory force in s. 423 of the Insolvency Act 1986. In Scotland, the common law applied the Roman law concept of actio pauliana preventing gratuitous transfers in fraud of creditors, see the Supreme Court in MacDonald and another v Carnbroe Estates Ltd [2020] 1 BCLC 419 at para 21 to 23 per Lord Hodge and the Supreme Court of England in Invest Bank PSC v El-Husseiny and others [2026] AC 1, see para 83 below. 83. In the recent decision of the Supreme Court in El Husseiny (supra) the history of the legislation was traced. The Supreme Court found: “The legislation 21. Attempts by debtors to defeat their creditors and make themselves judgment-proof are not new. In Roman law, the actio pauliana was designed to counter these attempts (see The Institutes of Justinian, book 4, title 6, para 6, The Digest of Justinian, book 42, title 8), and it remains in differing forms an important feature of many European legal systems: see, for example, article 1341-2 of the French Civil Code, and the Anfechtungsgesetz in Germany. 22. According to the appellants' research, legislation in England goes back to the time of King Edward III (50 Edward III, c 6). The present legislation can be traced to the Fraudulent Conveyances Act 1571 (13 Eliz, c 5), which was replaced by section 172 of the Law of Property Act 1925. 24. … section 423 of the IA 1986 was not enacted in exactly the terms suggested in the Cork Report, a point we note later in this judgment. Such conduct is highly prejudicial to the interest of the shareholders.” 84. What is clear, however, is that putting assets outside the reach of the creditors is a breach of the fiduciary duty of the directors and highly prejudicial to shareholders. 85. It is to be remembered that the Award was received at a time when the Company was insolvent or doubtful insolvency (see para 30 above) within Lord Reed’s formulation in Sequana (supra) at para 78 above. And it was incumbent on the directors to exercise prudence in the application of these monies. What would amount to a clear breach of their duties is if these monies were recklessly spent or deliberately dissipated which would drive the Company back into insolvency. Indeed, there appears to be very little of the RM137 million received from the Award left (see para 39 above). 86. As I have said earlier, I have only focused on several instances of possible misapplication of funds by the directors or Amin. I am, however, persuaded that these constitute good prima facie evidence and that it is likely that the Company will be wound up for possible misapplication of funds. Under either test (see para 11 above), the burden is met. To reiterate, these instances are: a. that RM93.25 million was transferred to ZIST to put these sums beyond the reach of LHDN for its judgment sum of RM43 million and LHDN’s other claims, which in Amin’s opinion, could be as high as RM80 million. The transfer to defeat LHDN’s claim is admitted by Amin; b. the exorbitant payments to ZIST for Suit 24 and Suit 138. I also refer to the payments to TL Chen and Niru Pillai. These payments could amount to over inflated charges to dissipate the assets of the Company. 87. I have not forgotten the payments to Amin of RM12 million in director’s fees and the use of RM3.585 million of Company’s funds to redeem his personal housing loan. However, there are too many other investments and expenditure from the RM1.5 million investment in a loss-making company to a RM2 million ‘investment’ in branded handbags, to be exhaustively dealt with in these Grounds. They really should be investigated by independent professionals. Interim liquidators are a suitable step for such investigations. In Rochdale Drinks (supra), the Court of Appeal in England held: “[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;” 88. I agree that interim liquidators be appointed to preserve whatever is left of the Company’s assets and to conduct a thorough investigation of the application of the award sum. The commencement of such actions as may be necessary to recover any monies wrongfully paid out, may follow if the evidence is sufficient. Further, periodic reports to the Court may be necessary. CONCLUSION 89. For the above reasons, I find that there is good prima facie evidence and it is likely, that the Company will be wound up. And further, the evidence also shows that the assets of the Company were and will be at risk. The very evidence of misapplication of funds (as elaborated above) shows that there is a risk to the remaining assets of the Company. It is no excuse to say that the assets have been distributed and thus there is no continuing evidence of misapplication. Any defence that the appointment of the IL is pointless fails. The ‘horse has bolted after the stable doors have closed’ is no defence to an application such as this. 90. In the circumstances, I granted Encl 9 with costs of RM60,000 subject to allocatur. These costs are to be paid to the Petitioner by the 1st to 3rd Respondents jointly and severally. Dated the 27th day of March 2026 ..........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Counsel for the Petitioners: Solicitors: Ranjit Singh, Elizabeth Lau & Lynnette Wong Messrs. Elizabeth Lau (Kuala Lumpur) Counsel for the Respondents: Solicitors: Chetan Jethwani, Eugene Jayaraj Williams, Ong Kang Nyong, Lim Zhi Yang & Divesh Ramani. Messrs. Zaid Ibrahim Suflan T H Liew & Partners (Kuala Lumpur) Case References: • American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) • Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400 • BTI 2014 LLC v Sequana SA and others [2024] AC 211 • Chai Yung Fei v Meto Steel Sdn Bhd & Ors [2017] MLJU 2438 • Dan-Bunkering (Singapore) Pte Ltd v The Owners of The Ship or Vessel ‘Pdz Mewah’ (IMO No.: 9064009) of Port Klang & Anor [2020] MLJU 1574 • Econpile (M) Sdn Bhd v ASM Development (KL) Sdn Bhd & Anor [2025] MLJU 2914 • Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212 • Invest Bank PSC v El-Husseiny and others [2026] AC 1 • Kinsela v Russell Kinsela Pty Ltd (1986) 4 NSWLR 722 • Maju-TH Sdn Bhd (Lembaga Tabung Haji, proposed intervener) [2025] 8 MLJ 875 • Revenue and Customs Commissioners v Payroll & Pension Services (PPS Umbrella Co) Ltd [2025] 2 BCLC 291 • Tenaga Nasional Berhad v ATA Industrial (M) Sdn Bhd [2019] MLJU 926 Legislation References: • Companies Act 2016 (“CA 2016”) • Insolvency Act 1986 Decision Date: 18th March 2026
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